Part 6Regulation of fishing and processing

Part 6—Regulation of fishing and processing Division 1—Commercial fishing 51—Interpretation In this Division— authority means a licence, permit or registration; licence means a fishery licence; permit means a fishery permit; registration means registration of any of the following: (a) a boat; (b) the master of a boat; (c) a device. 52—Obligation of commercial fishers to hold licence or permit A person must not, for a commercial purpose, engage in a fishing activity of a class that constitutes a fishery unless— (a) the person holds a licence or permit in respect of the fishery; or (b) the person is acting as the agent of a person holding a licence or permit in respect of the fishery. (i) if the offence involves the taking of fish of a priority species or a fishing activity engaged in for the purpose of taking fish of a priority species—$500 000; (i) if the offence involves the taking of fish of a priority species or a fishing activity engaged in for the purpose of taking fish of a priority species—$250 000 or imprisonment for 4 years; (ii) in any other case—$50 000 or imprisonment for 2 years. 53—Obligation for boats and devices used in commercial fishing to be registered (1) A person must not, for a commercial purpose, use a boat, or cause, suffer or permit a boat to be used, for the purpose of engaging in a fishing activity of a class that constitutes a fishery unless— (a) the boat— (i) is registered for use under a licence or permit in respect of the fishery held by him or her or a person for whom he or she is acting as an agent; or (ii) is being used in the place of a boat referred to in subparagraph (i) with the consent of the Minister and in accordance with the conditions (if any) of that consent; and (b) the boat is in the charge of a natural person who— (i) is registered as the master of a boat that may be used under the licence or permit; or (ii) is acting in the place of a person referred to in subparagraph (i) with the consent of the Minister and in accordance with the conditions (if any) of that consent. (b) in the case of a natural person—$50 000. (2) A person must not, for a commercial purpose, use a device, or cause, suffer or permit a device to be used, for the purpose of engaging in a fishing activity of a class that constitutes a fishery unless the device is registered for use under a licence or permit in respect of the fishery held by him or her or a person for whom he or she is acting as an agent. (b) in the case of a natural person—$50 000. 54—Application for licence, permit or registration (1) An application for an authority must— (a) be made in a manner and form approved by the Minister; and (b) be completed in accordance with the instructions contained in the form; and (c) be accompanied by the prescribed fee or an instalment of the fee in accordance with the regulations. (2) An applicant must provide the Minister with such evidence as the Minister thinks appropriate as to the identity, age and address of the applicant and any other information required by the Minister for the purposes of determining the application. (3) A licence or permit granted to a natural person may include a photograph of the holder of the licence or permit and, consequently, an applicant for a licence or permit who is a natural person may be required by the Minister— (a) to attend at a specified place for the purpose of having the applicant's photograph taken; or (b) to supply the Minister with 1 or more photographs of the applicant as specified by the Minister. (4) An authority will not be issued by the Minister except on payment of the licence, permit or registration fee prescribed by the regulations or on payment (in accordance with the regulations) of an instalment of the relevant fee. (5) The Minister may, by notice in writing, require an applicant for an authority, within a time fixed by the notice (which may not be less than 28 days after service of the notice), to comply with any requirement under this section to the Minister's satisfaction. (6) If the applicant fails to comply with the notice under subsection (5), the Minister may, without further notice, refuse the application but keep the fee that accompanied the application. (7) An application— (a) for a licence or permit in respect of a fishery—will be determined by the Minister subject to, and in accordance with, the regulations for the fishery; (b) for registration of a boat to be used pursuant to a licence or permit in respect of a fishery—will not be granted by the Minister unless he or she is satisfied— (ii) as to the matters prescribed by the regulations for the fishery; (c) for registration of a person as the master of a boat to be used pursuant to a licence or permit in respect of a fishery—will not be granted by the Minister unless he or she is satisfied— (ii) that a boat is registered in the name of the applicant under this Division; and (iii) that the person nominated as the proposed master is not disqualified from being registered as a master and is otherwise a fit and proper person to be master of the boat; (d) for registration of a device to be used pursuant to a licence or permit in respect of a fishery—will not be granted by the Minister unless he or she is satisfied— (ii) as to the matters prescribed by the regulations for the fishery. (8) The Minister must, before determining an application that relates to, or is to apply in respect of, a specially protected area, consult with the relevant Minister. (9) The Minister must refuse to grant an application for a fishery authority if— (a) the applicant is disqualified from holding or obtaining a fishery authority; or (b) the applicant is a body corporate and a director of the body corporate is disqualified from holding or obtaining a fishery authority. (10) The Minister may refuse to grant an application for an authority in the following circumstances: (a) the Minister is not satisfied the applicant is a fit and proper person to hold an authority of the kind to which the application relates; (b) the Minister is of the opinion that the issue of the authority would be inconsistent with— (i) an inter-governmental agreement or arrangement; or (ii) any instrument made under this Act; (c) in the case of an application to register a device— (i) the applicant does not produce the device for examination after being requested by the Minister to do so; or (ii) the applicant could not lawfully use the device in the fishery even if it were registered; (d) prescribed grounds for the refusal exist. 55—Conditions of licence, permit or registration (1) An authority may be subject to such conditions as the Minister thinks fit and specifies in the authority. (2) The Minister may at any time, by written notice given to the holder of an authority, vary or revoke a condition of the authority, or impose a further condition. (3) The holder of an authority must not contravene a condition of the authority. (a) if the condition related to the holder's quota entitlement under the authority—$20 000; (b) in any other case—$10 000. 56—Duration of authority and periodic fee and return etc (1) A licence remains in force (except for any period during which it is suspended) from the day on which it is granted— (b) — (i) if it is in respect of a fishery for which there is a management plan—until the management plan expires or is revoked; or (ii) in any other case—for a period (not exceeding 10 years) specified in the licence. (2) A permit remains in force (except for any period during which it is suspended) from the day on which it is granted— (b) for a period (not exceeding 3 years) specified in the permit. (3) Subject to this Act, registration remains in force until the expiry of the relevant licence or permit but if— (a) the licence or permit is suspended under this Act for any period, the registration will be taken to have been suspended for the same period; or (b) the licence or permit is cancelled or surrendered under this Act, the registration will be taken to have been cancelled or surrendered. (4) If a person registered as the master of a boat used pursuant to an authority is disqualified from being so registered, the registration will be taken to have been cancelled. (5) The holder of an authority must— (a) in each year, pay to the Minister the relevant annual fee (in total or by instalments) in accordance with the regulations; and (b) lodge with the Minister periodic returns in accordance with the regulations. (6) If the holder of an authority fails to pay the relevant annual fee (or an instalment of the relevant annual fee) in accordance with this section, the Minister may, by written notice, require the person to make good the default specified in the notice and, in addition, pay to the Minister the amount prescribed as a penalty for default. (7) If the holder of an authority fails to comply with a notice under subsection (6), the Minister may, by further written notice, suspend the person's authority until the notice under that subsection has been complied with. (7a) Subject to subsection (7b), if— (a) an authority has been suspended by the Minister under subsection (7); and (b) the suspension has been in effect for more than 6 months; and (c) the Minister cannot locate the holder of the authority after making a reasonable attempt to do so, the Minister may cancel the authority. (7b) The Minister must, before cancelling an authority under subsection (7a), make a reasonable attempt to give notice of the Minister's intention to cancel the authority to any person noted on the register of authorities as having an interest in the authority. (8) The Minister may, on application by the holder of the licence or permit on which any registration is endorsed, revoke the registration. (9) In this section— annual fee means the annual licence, permit or registration fee. 57—Transfer of licence or permit (1) A licence or permit is not transferable. (2) However, if the regulations for a fishery provides that licences or permits, or a class of licence or permit, in respect of the fishery are transferable, then, with the consent of the Minister, such a transfer may occur. (3) An application for consent to the transfer of a licence or permit must— (a) be a joint application made by the holder of the licence or permit and the transferee; and (b) be made in a manner and form approved by the Minister; and (c) be completed in accordance with the instructions contained in the form; and (d) be accompanied by the prescribed fee. (4) The Minister may only consent to the transfer of a licence or permit if— (a) the Minister is satisfied as to the matters prescribed by the regulations for the fishery; and (b) where the register of authorities includes a notation that a specified person has an interest in the licence or permit—that person consents to the transfer. (5) If a licence or permit is transferable, the registration of a boat used under the licence or permit is also transferable. (6) If— (a) a licence or permit is transferable; and (b) the holder of the licence or permit dies, the licence or permit (as the case may be) vests in the personal representative of the deceased (whether the personal representative is a natural person or body corporate) as part of the estate of the deceased but cannot be transferred in the course of the administration of the estate except with the consent of the Minister. (7) If a deceased licence or permit holder was, immediately before his or her death, registered as the master of a boat that may be used under the licence or permit— (a) the boat may, while the licence or permit remains vested in the personal representative of the deceased, continue to be used for the purpose of engaging in fishing activities under the licence or permit if it is in the charge of a person who is acting with the consent of the Minister and in accordance with the conditions of that consent; and (b) a person so acting will be taken to be acting under section 53(b)(ii). (8) A licence or permit that vests in the personal representative of a deceased licence or permit holder will, if it is not transferred within 2 years after the death of the licence or permit holder or such further period as may be approved by the Minister, be suspended pending such transfer. (9) In this section— personal representative means— (a) the executor of the will or administrator of the estate of the deceased licence or permit holder; or (b) in relation to any period for which there is not an executor or administrator—the Public Trustee. 58—Acquisition of licences etc by Minister (1) If under a management plan for a fishery, the share of aquatic resources allocated between different fishing sectors is adjusted so that the share allocated to holders of licences in respect of the fishery is reduced and the share allocated to persons who do not hold such licences is increased, the Minister may, for the purpose of giving effect to the adjustment, acquire licences in respect of the fishery or entitlements under such licences. (2) An acquisition under subsection (1) must be made in accordance with the regulations. (3) Regulations made for the purposes of this section may— (a) provide for a scheme of acquisition by the Minister and include in the scheme provision for compulsory acquisition and the payment of compensation to persons whose licences or entitlements are compulsorily acquired; and (b) prescribe the method of calculation of amounts payable for the acquisition of licences or entitlements or as compensation for their compulsory acquisition; and (c) provide for a process of objection and appeal in relation to the payment of compensation under the regulations. 59—Obligation to carry authority and identification while engaging in fishing activities (1) Subject to the regulations, the holder of a licence or permit (being a natural person) must, at all times when he or she is engaging in any fishing activity under the licence or permit, carry with him or her— (a) the licence or permit; and (b) identification in the form issued by the Minister. (2) Subject to the regulations, if a registered boat is being used on any waters for any purpose, the person in charge of the boat must carry with him or her— (a) the licence or permit under which the boat may be used for the purpose of taking aquatic resources; and (b) identification in the form issued by the Minister. (3) Subject to the regulations, if a registered device is being used in or on any waters for any purpose— (a) if the device is not being used on or from a boat, the person using the device must carry with him or her— (i) the licence or permit under which the device may be used; and (ii) identification in the form issued by the Minister; (b) in any other case, the person in charge of the boat must carry with him or her— (i) the licence or permit under which the device may be used; and (ii) identification in the form issued by the Minister. Division 2—Aboriginal traditional fishing 60—Management of aboriginal traditional fishing (1) The Minister and a native title group that is party to an indigenous land use agreement may make an aboriginal traditional fishing management plan under the agreement for the management of specified aboriginal traditional fishing activities in a specified area of waters. (2) An aboriginal traditional fishing management plan under an indigenous land use agreement must— (a) be consistent with— (i) the agreement; and (ii) the objects of this Act; and (iii) any management plan under Part 5 that relates to the area of waters to which the plan applies; and (b) include the management objectives of the plan; and (c) specify the management tools and other measures to be used to achieve the management objectives; and (d) identify the area of waters to which the plan applies; and (e) identify any fisheries constituted in relation to those waters; and (f) specify the classes of aboriginal traditional fishing activities that are authorised by the plan; and (g) identify, or provide a mechanism for identifying, the classes of persons who are authorised to engage in aboriginal traditional fishing activities under the plan; and (h) provide a method for determining how aboriginal traditional fishing activities may be distinguished from other kinds of fishing activities; and (i) provide for any other matter relating to aboriginal traditional cultural fishing as required by the agreement. (3) The Minister must cause notice of an aboriginal traditional fishing management plan made under an indigenous land use agreement to be published in the Gazette fixing the date on which the plan will take effect. 61—Availability and evidence of aboriginal traditional fishing management plans (1) Copies of each aboriginal traditional fishing management plan must be kept available for inspection and purchase by the public during ordinary office hours at a place or places determined by the Minister. (2) In legal proceedings, evidence of the contents of an aboriginal traditional fishing management plan may be given by production of a document certified by the Minister as a true copy of the plan. (3) An apparently genuine document purporting to be a certificate of the Minister will be accepted as such in the absence of proof to the contrary. Division 3—Processing 62—Obligation of fish processors to be registered (1) A person must not act as a fish processor unless he or she is registered as a fish processor under this Division. (2) However, a person is not required to be registered as a fish processor if— (a) the person only processes aquatic resources obtained from a registered fish processor; or (b) the person— (i) is the holder of a fishery authority or aquaculture licence; and (ii) only processes aquatic resources taken under the fishery authority, or aquatic resources farmed under the aquaculture licence (as the case may be) for sale to a registered fish processor or directly to persons who consume such aquatic resources; or (c) the person belongs to a prescribed class of persons. (3) A registered fish processor must not use any premises, place, boat or vehicle for or in connection with processing, storing, transporting or dealing with aquatic resources unless the premises, place, boat or vehicle is specified in the certificate of registration. (4) Aquatic resources present in any premises, place, boat or vehicle specified in the certificate of registration of a registered fish processor will be taken to be present for a commercial purpose. 63—Classes of registration (1) There are the following classes of registration of fish processor for the purposes of this Act: (a) fish processors registration—registration authorising a person— (i) to engage in any activity involved in processing aquatic resources for the purposes of trade or business; and (ii) to store, transport and deal with aquatic resources for the purposes of trade or business; (b) restricted registration—registration as a fish processor subject to conditions limiting the activities authorised under the registration— (i) to the storage of aquatic resources; or (ii) to the transport of aquatic resources; or (iii) to the buying and selling of aquatic resources on behalf of another without ever taking physical possession of the aquatic resources; or (iv) to such activities involving the processing of aquatic resources as the Minister thinks fit. (2) Conditions limiting the activities that may be carried out under the authority of registration— (a) may be imposed by the Minister on the grant of the registration; and (b) may be varied or revoked by the Minister at any time on application by the registered fish processor. 64—Applications for registration (1) An application for registration as a fish processor must— (a) be made in a manner and form approved by the Minister; and (b) be completed in accordance with the instructions contained in the form; and (c) specify the premises, places, boats and vehicles proposed to be used by the applicant for or in connection with processing, storing, transporting or dealing with aquatic resources; and (d) be accompanied by the fee prescribed by the regulations or an instalment of the fee in accordance with the regulations. (2) An applicant must provide the Minister with such evidence as the Minister thinks appropriate as to the identity, age and address of the applicant and any other information required by the Minister for the purposes of determining the application. (3) The Minister may refuse to grant an application for registration in the following circumstances: (a) the Minister is not satisfied the applicant is a fit and proper person to hold registration of the kind to which the application relates; (b) prescribed grounds for the refusal exist. (4) Registration will not be granted by the Minister except on payment of the registration fee prescribed by the regulations or on payment (in accordance with the regulations) of an instalment of the registration fee. 65—Conditions of registration (1) It is a condition of registration as a fish processor that the processor will only process, store, transport or deal with aquatic resources of a class specified in the registration. (2) Registration as a fish processor may be subject to such other conditions (in addition to conditions limiting the activities that may be carried out under the authority of the registration) as the Minister thinks fit and specifies in the registration. (3) The Minister may at any time, by written notice given to a registered fish processor, vary or revoke a condition of the registration, or impose a further condition. (4) A registered fish processor must not contravene a condition of the registration. 66—Duration of registration and periodic fee and return etc (1) Registration remains in force (except for any period during which it is suspended) from the day on which it is granted— (b) for a period (not exceeding 3 years) specified in the registration. (2) A registered fish processor must— (a) in each year, pay to the Minister the annual fee (in total or by instalments) in accordance with the regulations; and (b) lodge with the Minister periodic returns in accordance with the regulations. (3) If a registered fish processor fails to pay the annual fee (or an instalment of the annual fee) in accordance with this section, the Minister may, by written notice, require the person to make good the default and, in addition, pay to the Minister the amount prescribed as a penalty for default. (4) If a registered fish processor fails to comply with a notice under subsection (3), the Minister may, by further written notice, suspend the person's registration until the notice under that subsection has been complied with. (5) The Minister will, on granting an application for registration, specify in the certificate of registration the premises, places, boats and vehicles proposed to be used by the registered fish processor for or in connection with processing, transporting, storing or dealing with aquatic resources. 67—Misuse of authorities A person must not— (a) except as contemplated by this Act or without other reasonable excuse, give any other person the possession or control of an authority that is not in the name of that other person; or (b) except as contemplated by this Act or without other reasonable excuse, have in his or her possession or control an authority that is not in his or her name; or (c) by words or conduct, falsely represent that he or she is the person named in an authority. 68—Issue of duplicate authority On application by the holder of an authority and payment of the prescribed fee, the Minister may, if satisfied— (a) that the authority has been lost, stolen or destroyed; or (b) that other proper cause exists, issue to the holder a duplicate authority. 69—Effect of suspension of authority While an authority is suspended under this Act it has no force or effect.