Subdiv 5Miscellaneous

Subdivision 5—Miscellaneous 90—Provisions relating to things seized (1) If a thing is seized under this Part, the following provisions apply: (a) the thing seized must be held pending proceedings for an offence against this Act related to the thing seized, unless the Minister— (i) on application, authorises its release to the person from whom it was seized or a person who had legal title to it at the time of its seizure, subject to such conditions as the Minister thinks fit (including conditions as to the giving of security for satisfaction of an order under paragraph (b)(i)(B)); or (ii) in the case of fish or another perishable thing, orders that it be forfeited to the Crown; (b) if proceedings for an offence against this Act related to the thing seized are commenced within the prescribed period after its seizure and the defendant is found guilty of the offence, the court must consider the question of forfeiture and— (i) if the thing seized has not been forfeited by order of the Minister— (A) order that it be forfeited to the Crown; or (B) where it has been released under paragraph (a)(i), order that it be forfeited to the Crown or order that the person to whom it was released pay to the Minister an amount equal to its market value at the time of its seizure, as the court thinks fit; or (C) make no order for forfeiture; or (ii) if the thing seized has been forfeited by order of the Minister— (A) confirm the order for forfeiture; or (B) quash the order for forfeiture, as the court considers appropriate in the circumstances; (c) if— (i) the thing seized has not been released under paragraph (a)(i); and (ii) proceedings for an offence against this Act related to the thing seized— (A) are not commenced within the prescribed period after its seizure; or (B) are commenced within the prescribed period after its seizure and the defendant is not found guilty of the offence; or (C) are commenced within the prescribed period after its seizure and the defendant is found guilty of the offence but either no order for forfeiture is made under paragraph (b)(i) or an order is made under paragraph (b)(ii) quashing the order for forfeiture, the person from whom the thing was seized or a person who had legal title to it at the time of its seizure is entitled to recover, by action in a court of competent jurisdiction— (iii) if the thing seized has not been forfeited by order of the Minister—the thing itself or, if it has deteriorated or been destroyed, compensation of an amount equal to its market value at the time of its seizure; or (iv) if the thing seized has been forfeited by order of the Minister—compensation of an amount equal to its market value at the time of its seizure or, if it has been sold, the amount realised by its sale; (d) despite paragraph (c), if fish or another perishable thing is seized in relation to an expiable offence and the offence is expiated— (i) the fish or other perishable thing is, if it has not already been forfeited to the Crown by order of the Minister, forfeited to the Crown by force of this paragraph; and (ii) whether it has been forfeited by order of the Minister or under this paragraph, no compensation may be recovered in respect of the fish or other perishable thing by a person; (e) if the thing seized is forfeited to the Crown under this section, it may be disposed of by sale, destruction or otherwise as the Minister directs; (f) if compensation is payable under this subsection, the money required for that purpose must be paid out of the Fund. (2) Despite subsection (1), if— (a) a fisheries officer finds a device for taking fish unattended and, under this section, seizes the device and fish caught or trapped by the device; and (b) the owner of the device is unknown, the following provisions apply: (c) the Minister may order that the fish (if any) be forfeited to the Crown, in which case, the fish may be disposed of by sale, destruction or otherwise as the Minister directs and any proceeds of sale must be paid into the Fund; (d) notice of the seizure of the device must be given in accordance with the regulations; (e) if, after the expiration of 1 month from the giving of the notice, the owner remains unknown and the Minister determines that there is reason to believe that the device had been, was being, or was intended to be, used in contravention of this Act, the Minister may order that it be forfeited to the Crown, in which case it may be disposed of by sale, destruction or otherwise as the Minister directs and any proceeds of sale must be paid into the Fund. prescribed period means 12 months or such longer period as the court may, on application by the Minister, allow. 91—Offence to hinder etc authorised persons (1) A person must not— (a) hinder or use abusive, threatening or insulting language to an authorised person, a person accompanying or assisting a fisheries officer or another person engaged in the administration of this Act; or (b) fail to comply with a requirement made of the person by a fisheries officer under section 81; or (c) fail to comply with a direction given to the person by a fisheries officer under section 81; or (d) in response to a requirement made of the person by a fisheries officer under section 81(1)(e)— (i) state a name or address that is false; or (ii) produce false evidence of his or her identity; or (e) in response to a requirement made of the person by a fisheries officer under section 81(1)(f)—fail to give information or answer a question to the best of the person's knowledge, information or belief; or (f) in response to a requirement made of the person by a fisheries officer under section 81(1)(g)—produce a document or record that the person knows, or ought to know, is false or misleading in a material particular; or (g) by words or conduct, falsely represent that the person is an authorised person. (2) A person must not assault an authorised person, a person accompanying or assisting a fisheries officer or another person engaged in the administration of this Act. Maximum penalty: $10 000 or imprisonment for 2 years. Division 2—Orders made by Minister 92—Protection orders (1) The Minister may issue a protection order under this Division for the purpose of securing compliance with this Act. (2) A protection order— (a) must be in the form of a written notice served on the person to whom the notice is issued; and (b) must specify the person to whom it is issued (whether by name or a description sufficient to identify the person); and (d) may impose any requirement reasonably required for the purpose for which the order is issued, including 1 or more of the following: (i) a requirement that the person discontinue, or not commence, a specified activity indefinitely or for a specified period or until further notice from the Minister; (ii) a requirement that the person not carry on a specified activity except at specified times or subject to specified conditions; (iii) a requirement that the person take specified action in a specified way and within a specified period; (iv) a requirement that the person comply with any specified code or standard prepared or published by the Minister or by another specified body; (v) a requirement that the person undertake specified tests or monitoring; (vi) a requirement that the person provides the Minister with specified results or reports; (vii) a requirement that the person appoint or engage a person with specified qualifications to prepare a plan or report or to undertake tests or monitoring required by the order; and (e) must state that the person may, within 14 days, appeal to the ERD Court against the order. (3) A fisheries officer may, if of the opinion that urgent action is required for the protection of a fish habitat, issue an emergency protection order imposing requirements of a kind referred to in subsection (2)(d) as reasonably required for the protection of the fish habitat. (4) An emergency protection order may be issued orally but, in that event, the person to whom the order is issued must be advised immediately of the person's right to appeal to the ERD Court against the order. (5) If an emergency protection order is issued orally, the fisheries officer who issued it must confirm it in writing at the earliest opportunity by written notice given to the person to whom it applies. (6) If an emergency protection order is issued, the order will cease to have effect on the expiration of 72 hours from the time of its issuing unless confirmed by a written protection order issued by the Minister and served on the relevant person. (7) The Minister or a fisheries officer may, if of the opinion that it is reasonably necessary to do so in the circumstances, include in an emergency or other protection order a requirement for an act or omission that might otherwise constitute a contravention of this Act and, in that event, a person incurs no criminal liability under this Act for compliance with the requirement. (8) The Minister may, by written notice served on a person to whom a protection order has been issued, vary or revoke the order. (9) A person to whom a protection order is issued must comply with the order. 93—Action on non-compliance with protection order (1) If the requirements of a protection order are not complied with, the Minister may take any action required by the order. (2) Action may be taken on the Minister’s behalf by a fisheries officer or another person authorised by the Minister for the purpose. (3) A person taking action under this section may enter any relevant place or vehicle at any reasonable time. (4) The reasonable costs and expenses incurred by the Minister in taking action under this section may be recovered by the Minister as a debt from the person who failed to comply with the requirements of the protection order. (5) If an amount is recoverable from a person by the Minister under this section— (a) the Minister may, by written notice to the person, fix a period, being not less than 28 days from the date of the notice, within which the amount must be paid by the person and, if the amount is not paid by the person within that period, the person is liable to pay interest charged at the prescribed rate per annum on the amount unpaid; and (b) the amount together with any interest charge so payable is, until paid, a charge in favour of the Minister on any land owned by the person in relation to which the protection order is registered under this Division. 94—Reparation orders (1) If the Minister is satisfied that a person has caused harm to a fish habitat by contravention of this Act, the Minister may issue a reparation order requiring the person— (a) to take specified action within a specified period to make good any resulting damage to the fish habitat; or (b) to make a payment or payments into an approved account to enable action to be taken to address any resulting damage to the fish habitat, or both. (2) A reparation order— (a) must be in the form of a written notice served on the person to whom it is issued; and (b) must specify the person to whom it is issued (whether by name or a description sufficient to identify the person); and (d) may include requirements for action to be taken to prevent or mitigate further harm to the fish habitat, or for a plan of action to be prepared to the satisfaction of the Minister; and (e) may include requirements for specified tests or monitoring; and (f) may include requirements for providing to the Minister specified results or reports; and (g) may include requirements that the person to whom it is issued appoint or engage a person with specified qualifications to prepare a plan or report or to undertake tests or monitoring required by the order; and (h) in the case of an order requiring payment into an approved account, may provide that payments must occur in accordance with a scheme specified by the Minister (either at the time of the making of the order or at a later time when the extent or impact of any action has been assessed or finally determined); and (i) must state that the person may, within 14 days, appeal to the ERD Court against the order. (3) A fisheries officer may, if of the opinion that urgent action is required to prevent or mitigate further harm, issue an emergency reparation order containing requirements of a kind referred to in subsection (2), other than a requirement for payment into an approved account. (4) An emergency reparation order may be issued orally but, in that event, the person to whom it is issued must be advised immediately of the person's right to appeal to the ERD Court against the order. (5) If an emergency reparation order is issued orally, the fisheries officer who issued it must confirm it in writing at the earliest opportunity (and in any event within 2 business days) by written notice given to the person to whom it applies. (6) If an emergency reparation order is issued, the order will cease to have effect on the expiration of 72 hours from the time of its issuing unless confirmed by a written reparation order issued by the Minister and served on the relevant person. (7) The Minister or a fisheries officer may, if of the opinion that it is reasonably necessary to do so in the circumstances, include in an emergency or other reparation order a requirement for an act or omission that might otherwise constitute a contravention of this Act and, in that event, a person incurs no criminal liability under this Act for compliance with the requirement. (8) The Minister may, by written notice served on a person to whom a reparation order has been issued, vary or revoke the order. (9) A person to whom a reparation order is issued must comply with the order. Maximum penalty: $50 000. 95—Action on non-compliance with reparation order (1) If the requirements of a reparation order are not complied with, the Minister may take any action required by the order. (2) Action taken by the Minister under subsection (1) may be taken on the Minister's behalf by a fisheries officer or another person authorised by the Minister for the purpose. (3) A person taking action under this section may enter any relevant place or vehicle at any reasonable time. (4) The reasonable costs and expenses incurred by the Minister in taking action under this section may be recovered by the Minister as a debt from the person who failed to comply with the requirements of the reparation order. (5) If an amount is recoverable from a person by the Minister under this section— (a) the Minister may, by written notice to the person, fix a period, being not less than 28 days from the date of the notice, within which the amount must be paid by the person and, if the amount is not paid by the person within that period, the person is liable to pay interest charged at the prescribed rate per annum on the amount unpaid; and (b) the amount together with any interest charge so payable is until paid a charge in favour of the Minister on any land owned by the person in relation to which the reparation order is registered under this Division. 96—Reparation authorisations (1) If the Minister is satisfied that a person has caused harm to a fish habitat by contravention of this Act, the Minister may (whether or not a reparation order has been issued to the person) issue a reparation authorisation under which fisheries officers or other persons authorised by the Minister for the purpose may take specified action on the Minister's behalf to make good any resulting damage to the fish habitat. (2) A reparation authorisation— (a) must be in the form of a written notice; and (b) must specify the person alleged to have caused the harm (whether by name or a description sufficient to identify the person); and (d) may include authorisation for action to be taken to prevent or mitigate further harm to the fish habitat. (3) The Minister must, as soon as practicable after issuing a reparation authorisation, serve a copy of the authorisation on the person alleged to have caused the harm. (4) The Minister may, by written notice, vary or revoke a reparation authorisation and must, as soon as practicable after doing so, serve a copy of the notice on the person alleged to have caused the harm. (5) If a person other than a fisheries officer is authorised to take action under subsection (1), the following provisions apply: (a) the Minister must issue the person with an instrument of authority; (b) the person may exercise such powers of a fisheries officer as are reasonably required for the purpose of taking action under that subsection; (c) the provisions of this Act apply in relation to the exercise of such powers by the person in the same way as in relation to a fisheries officer; (d) the person must produce the instrument of authority for the inspection of any person in relation to whom the person intends to exercise powers of a fisheries officer. (6) A person taking action under a reparation authorisation may enter any relevant place or vehicle at any reasonable time. (7) The reasonable costs and expenses incurred by the Minister in taking action under a reparation authorisation may be recovered by the Minister as a debt from the person who caused the relevant harm. (8) If an amount is recoverable from a person by the Minister under this section— (a) the Minister may, by written notice to the person, fix a period, being not less than 28 days from the date of the notice, within which the amount must be paid by the person and, if the amount is not paid by the person within that period, the person is liable to pay interest charged at the prescribed rate per annum on the amount unpaid; and (b) the amount together with any interest charge so payable is until paid a charge in favour of the Minister on any land owned by the person in relation to which the reparation authorisation is registered under this Division. 97—Related matters (1) The Minister should, so far as is reasonably practicable, consult with any other public authority that may also have power to act with respect to the particular matter before the Minister issues a protection order, reparation order or reparation authorisation under this Division. (2) Subsection (1) does not apply— (a) if action is being taken under this Act as a matter of urgency; or (b) in any other circumstance of a prescribed kind. (3) A person cannot claim compensation from— (a) the Minister or the Crown; or (b) a fisheries officer; or (c) a person acting under the authority of the Minister or a fisheries officer, in respect of a requirement imposed under this Division or on account of any act or omission undertaken or made in the exercise (or purported exercise) of a power under this Division. 98—Registration of orders or authorisations by Registrar-General (1) If— (a) the Minister issues an order or authorisation under this Division; and (b) the order or authorisation is issued in relation to an activity carried out on land, or requires a person to take action on or in relation to land, the Minister may apply to the Registrar-General for the registration of the order or authorisation in relation to that land. (2) An application under this section must— (a) define the land to which it relates; and (b) comply with any requirement imposed by the Registrar-General for the purposes of this section. (3) The Registrar-General must— (a) on due application under subsection (2); and (b) on lodgement of a copy of the relevant order or authorisation, register the order or authorisation in relation to the land by making such entries in any register book, memorial or other book or record in the Lands Titles Registration Office or in the General Registry Office as the Registrar-General thinks fit. (4) An order or authorisation registered under this section is binding on each owner and occupier from time to time of the land. (5) The Registrar-General must, on application by the Minister, cancel the registration of an order or authorisation in relation to land and make such endorsements to that effect in the appropriate register book, memorial or other book or record in respect of the land as the Registrar-General thinks fit. (6) The Minister may, if the Minister thinks fit, apply to the Registrar-General for cancellation of the registration of an order or authorisation under this section in relation to land, and must do so— (a) on revocation of the order or authorisation; or (b) in respect of— (i) an order— (A) on full compliance with the requirements of the order; (B) if the Minister has taken action under this Division to carry out the requirements of the order—on payment to the Minister of any amount recoverable by the Minister in relation to the action so taken; or (ii) an authorisation—on payment to the Minister of any amount recoverable by the Minister under this Division in relation to the action taken in pursuance of the authorisation. 99—Effect of charge A charge imposed on land under this Division has priority over— (a) any prior charge on the land (whether or not registered) that operates in favour of a person who is an associate of the owner of the land; and (b) any other charge on the land other than a charge registered prior to registration under this Division of the relevant order or authorisation in relation to the land. Division 3—Court orders 100—Additional orders court can make on conviction (1) A court that convicts a person of an offence against this Act may, by order, in addition to imposing any other penalty, do 1 or more of the following as it thinks fit: (a) impose conditions on a specified authority, or vary conditions of a specified authority, held by the person; (b) suspend a specified authority held by the person; (c) disqualify the person from holding or obtaining an authority of a specified class; (d) disqualify the person from being the director of a body corporate that holds an authority of a specified class; (e) prohibit the person from being in, on, or in the vicinity of, specified waters without a lawful purpose; (f) prohibit the person from any 1 or more of the following: (i) engaging in a fishing activity of a specified class; (ii) being in or on a specified boat, boats of a specified class or boats carrying devices of a specified class; (iii) being in or on any specified premises or place used in connection with the processing of aquatic resources; (iv) having possession of devices of a specified class; (v) having possession of fish or other aquatic resources of a specified class. (2) An order under subsection (1) may be made either on the court's own initiative or on the application of the prosecution. 101—Orders ERD Court may make on application by Minister The ERD Court may, on application by the Minister, make an order of a kind referred to in section 100(1) against a person if the Court is satisfied that— (a) an order of that kind has been made against the person under a corresponding law; and (b) the making of the order is justified in the circumstances of the case. 102—Provisions relating to orders under this Division (1) The court may stipulate that a suspension, disqualification or prohibition order under this Division is to apply— (a) permanently; or (b) for a specified period; or (c) until further order. (2) A person who contravenes an order under this Division is, in addition to liability for contempt of the order, guilty of an offence. Maximum penalty: $100 000. (3) In proceedings for an offence against subsection (2) involving an alleged contravention of an order prohibiting a person from being in, on, or in the vicinity of, particular waters without a lawful purpose, the prosecution need not prove the absence of a lawful purpose and the burden is on the defendant to prove a purpose on which he or she relies. (4) If an authority has been suspended under this Division, the authority may be renewed but remains subject to suspension until the expiration of the period of suspension. (5) If an appeal has been instituted against a conviction, an order made under this Division by the convicting court is suspended until determination of the appeal. Division 4—Demerit points scheme 103—Interpretation (1) In this Division— associate of a person means— (a) a relative of the person or of the person's spouse or domestic partner; or (b) a body corporate where the person or a relative of the person or of the person's spouse or domestic partner has, or 2 or more such persons together have, a relevant interest or relevant interests in shares in the body corporate the nominal value of which is not less than 10 per cent of the nominal value of the issued share capital of the body corporate; or (c) a trustee of a trust of which the person, a relative of the person or of the person's spouse or domestic partner or a body corporate referred to in paragraph (b) is a beneficiary; or (d) an employee, employer or partner of the person; or (e) a person declared by the regulations to be an associate of the other person for the purposes of this Division; beneficiary of a trust includes an object of a discretionary trust; domestic partner means a person who is a domestic partner within the meaning of the Family Relationships Act 1975, whether declared as such under that Act or not; eligible transferee, in relation to an authority to be transferred, means a person who— (a) is not disqualified, or liable to disqualification, under this Act from holding or obtaining an authority; and (b) is not an associate of the holder of the authority; expiate includes pay the amount payable in connection with an infringement notice or penalty notice issued under a law of another State in respect of an alleged offence; relative of a person means the spouse, domestic partner, parent or remoter linear ancestor, son, daughter or remoter issue or brother or sister of the person; relevant interest has the same meaning as in the Corporations Act 2001 of the Commonwealth; spouse—a person is the spouse of another if they are legally married. (2) In this Division, a reference to an offence committed by a person includes a reference to an offence allegedly committed by a person that the person has expiated. 104—Demerit points for certain offences (1) If a person is found guilty of, or expiates, an offence against this Act of a kind prescribed by the regulations, the number of demerit points prescribed by the regulations in relation to that offence is, subject to this section, incurred by that person. (4) If a person is found guilty of, or expiates, 2 or more offences arising from the same incident, demerit points are incurred only in respect of the offence (or 1 of the offences) that attracts the most demerit points. (5) Demerit points incurred or recorded by or in relation to a person under a corresponding law will be taken to be incurred by that person under this Division. (6) If a court by which a person is found guilty of an offence is satisfied by evidence given on oath immediately on the finding of guilt that the offence is trifling, or that any other proper cause exists, it may order that a reduced number of demerit points, or no demerit points, are incurred by the person in respect of that offence. (6a) In deciding whether any proper cause exists for the purposes of subsection (6), the court may have regard to any of the following matters: (a) the circumstances in which the offence was committed; (b) whether, as a result of being found guilty of the offence, the person would be liable to be disqualified under section 105, and whether such disqualification would cause hardship to the person that is disproportionate to the offence; (c) any other cause as the court thinks proper in the circumstances. (7) The Minister must cause the demerit points incurred by a person under this Division to be recorded against a fishery authority if— (a) the person who incurred the demerit points is the holder of the fishery authority and the demerit points were incurred in relation to an offence committed or allegedly committed by the person against a prescribed provision of this Act; or (b) the person who incurred the demerit points is the registered master of a boat registered for use under the fishery authority and the demerit points were incurred in relation to an offence committed or allegedly committed by the person against section 120(4). 105—Consequences of certain number of demerit points being incurred by person or recorded against authority (1) If a natural person has incurred an aggregate of 200 or more demerit points in respect of offences committed within a period of 5 years up to and including the most recent date on which the person committed an offence in respect of which the person incurred demerit points, the person is liable to be disqualified under this Division— (a) from holding or obtaining an authority; and (b) from being a director of a body corporate that holds an authority; and (c) from being registered as the master of a boat used pursuant to an authority, for a period of 10 years. (2) If a body corporate has incurred an aggregate of 200 or more demerit points in respect of offences committed within a period of 5 years up to and including the most recent date on which the body corporate committed an offence in respect of which the body corporate incurred demerit points— (a) the body corporate; and (b) each director of the body corporate, is liable to be disqualified under this Division from holding or obtaining an authority for a period of 10 years. (a) an aggregate of 200 or more demerit points are recorded against a fishery authority in respect of offences committed within a 5 year period up to and including the most recent date on which an offence was committed in respect of which demerit points were recorded against the fishery authority; and (b) the fishery authority is not transferable, the fishery authority is liable to be cancelled under this Division. 106—Notices to be sent by Minister when certain number of demerit points are incurred or recorded (1) The Minister must notify a person when— (a) the person has incurred a number of demerit points equal to or exceeding one-half of the number that results in the person becoming liable to be disqualified under section 105; or (b) a number of demerit points equal to or exceeding one-half of the number that results in an authority held by the person becoming liable to cancellation or compulsory acquisition under this Division are recorded against the authority. (2) Notice under this section must be in writing and may be given personally or sent by post. (3) The operation of this Division is not affected by any failure to comply with subsection (1). 107—Notices to be sent by Minister when person becomes liable to disqualification or authority is to be cancelled (1) If a person is liable to be disqualified under section 105, the Minister must give the person notice of the disqualification. (2) If a fishery authority is liable to cancellation under section 105, the Minister must give the holder of the authority notice of the cancellation. (3) A notice of disqualification must inform the person to whom it is given— (a) that the person is disqualified— (i) from holding or obtaining an authority; and (ii) from being a director of a body corporate that holds an authority; and (iii) from being registered as the master of a boat used pursuant to an authority, for a period of 10 years; and (b) that any transferable authority held by the person— (i) must, within 180 days after the date specified in the notice, be transferred to an eligible transferee; and (ii) is suspended until any such transfer has taken effect; and (iii) if not transferred as required by the notice, will be compulsorily acquired by the Minister in accordance with the regulations; and (c) that any authority held by the person that is not transferable is cancelled. (4) Notice under this section must be in writing and may be given personally or sent by post. 108—Disqualification etc and discounting of demerit points (1) A disqualification or cancellation under this Division takes effect on the day specified in the notice of disqualification or cancellation given under section 107. (2) If a transferable authority held by a person to whom a notice of disqualification is given is not transferred as required by the notice, the Minister must acquire the authority compulsorily in accordance with the regulations. (3) An authority that is compulsorily acquired under this section cannot subsequently be issued to— (a) the person from whom it was so acquired; or (b) an associate of that person. (4) If a person is given a notice of disqualification under section 107— (a) the person is disqualified— (i) from holding or obtaining an authority; and (ii) from being a director of a body corporate that holds an authority; and (iii) from being registered as the master of a boat used pursuant to an authority, for a period of 10 years; and (b) any transferable authority held by the person is, by force of this section, suspended until transferred in accordance with the notice; and (c) any authority held by the person that is not transferable is, by force of this section, cancelled. (5) If a disqualification has taken effect under this section, the following demerit points are discounted: (a) all demerit points in respect of the offence that brought the aggregate of the demerit points to 200 or more (and led to the notice of disqualification being sent to the person under section 107); (b) all demerit points in respect of offences committed prior to the time at which the person committed that offence (whether or not the person had been found guilty of, or had expiated, those offences when the disqualification took effect). (6) If an authority that is liable to compulsory acquisition is transferred as required under this Division, all demerit points recorded against the authority are discounted. 109—Court not to take into account demerit points in determining penalty In determining the penalty to be imposed on a person convicted of an offence against this Act, the court must not take into account the fact that, in consequence of the conviction, demerit points will be incurred by the person.