This instrument is the Fisheries Management Regulations 2019.
3 Authority
This instrument is made under the Fisheries Management Act 1991.
4 Simplified outline of this instrument
This instrument affects the operation and administration of the Act in various ways.
The application of the Act extends to areas outside the AFZ that are specified in Part 2 of this instrument and Schedule 1 to this instrument.
There are short ways of referring to certain areas in the AFZ for managing fishing in those areas (see Part 3 and Schedule 2).
To conserve the marine environment, there is a limit on the length of boats that may be used for fishing in the AFZ (see Part 4).
Special procedures must be followed in making fishing rights available by tender (see Part 5).
Under the Act, AFMA may cancel a fishing concession if payments relating to the fishing concession have not been made within a period set by Part 6 of this instrument.
Fishing concessions are subject to conditions, including those set out in Part 7 (and Schedules 3 to 5) which deal with such things as nominating boats for fishing concessions, catch limits and protecting the marine environment.
Holders of fish receiver permits must keep records and give information to AFMA in accordance with Part 8.
Masters and owners of boats must ensure information such as identification codes allocated by AFMA, and names and radio call signs of foreign boats, are clearly displayed on the boats. Certain information must also be given to AFMA.
Under the Act, AFMA may direct that fishing not occur in part of a fishery. It is an offence for the master of a boat to navigate the boat in certain ways in an area subject to such a direction (see Division 3 of Part 9).
There are rules about the keeping and disposing of fishing equipment an officer finds in the AFZ if the owner of the equipment is unknown (see Division 4 of Part 9).
There are rules about identifying and disclosing identifying information about persons detained because they are reasonably suspected of having committed an offence using a foreign boat and who are not Australian citizens or Australian residents (see Part 10).
Part 11 provides for administrative matters, including:
(a) information that must be included in certain registers; and
(b) collection and disclosure by AFMA of information relevant to law enforcement, border protection, fisheries or the marine environment; and
(c) the operation of the Statutory Fishing Rights Allocation Review Panel; and
(d) the placement of caveats on the transfer of certain fishing concessions; and
Part Part 7 - Fisheries Management Regulations 2019 - Standard conditions for fishing concessions | Zoe
(e) fees.
Part 12 sets out transitional provisions.
5 Definitions
Note: A number of expressions used in this instrument are defined in the Act, including the following:
(a) AFMA;
(b) AFZ;
(c) Australian boat and Australian‑flagged boat;
(d) boat;
(e) coastal waters;
(f) fish;
(g) fishery, fishing, fishing concession, fishing permit and fishing right;
(h) high seas;
(i) officer.
(1) In this instrument:
Act means the Fisheries Management Act 1991.
Antarctic Convergence has the same meaning as in the Convention on the Conservation of Antarctic Marine Living Resources, as in force at the time when this instrument commences (see in particular paragraph 4 of Article 1 of the Convention).
Note: The Convention on the Conservation of Antarctic Marine Living Resources is in the Australian Treaty Series 1982 No. 9 ([1982] ATS 9) and could in 2019 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
approved vessel monitoring system means a vessel monitoring system in a class approved under section 9.
boat statutory fishing right means a statutory fishing right to use a boat in a managed fishery granted under any of the following:
(a) the Eastern Tuna and Billfish Fishery Management Plan 2010;
(b) the Northern Prawn Fishery Management Plan 1995;
(c) the Southern and Eastern Scalefish and Shark Fishery Management Plan 2003;
(d) the Western Tuna and Billfish Fishery Management Plan 2005.
closed zone: see subsection 85(1).
concession holder means the holder of a licence, permit, or right, that is a fishing concession.
Coral Sea Fishery means the fishery of that name referred to in item 1 of the table in section 18.
crustacean means fish of the subphylum Crustacea.
declared fishery means a fishery in respect of which a declaration under subsection 91(1) of the Act is in force.
designated quota statutory fishing right means a quota statutory fishing right granted under any of the following:
(a) the Bass Strait Central Zone Scallop Fishery Management Plan 2002;
(b) the Heard Island and McDonald Islands Fishery Management Plan 2002;
(c) the Macquarie Island Toothfish Fishery Management Plan 2006;
(d) the Small Pelagic Fishery Management Plan 2009;
(e) the Southern Bluefin Tuna Fishery Management Plan 1995.
Eastern Skipjack Fishery means the fishery of that name referred to in item 2 of the table in section 18.
eligible person means a person who is registered as an eligible person for a grant of a fishing right under section 26 of the Act.
finfish means fish of the class Osteichthyes.
gear statutory fishing right means a statutory fishing right to use particular fishing equipment in a managed fishery granted under either of the following:
(a) the Northern Prawn Fishery Management Plan 1995;
(b) the Southern Squid Jig Fishery Management Plan 2005.
giant crab means fish of the species Pseudocarcinus gigas.
Heard Island and McDonald Islands Fishery means the area of the fishery under the Heard Island and McDonald Islands Fishery Management Plan 2002.
interaction means physical contact that:
(a) occurs between an organism and one or more of the following:
(i) an individual other than an observer;
(ii) a nominated boat;
(iii) any object on board, or attached to, a nominated boat, other than equipment that is being used by an observer;
(iv) a nominated boat’s equipment; and
(b) is of a kind that could cause the organism to be distressed.
IUU vessel list means an Illegal, Unreported and Unregulated vessel list established by a governing commission for an international fisheries management organisation, as in force from time to time.
Macquarie Island Toothfish Fishery means the fishery area under the Macquarie Island Toothfish Fishery Management Plan 2006.
mollusc means fish of the phylum Mollusca.
nominated boat, in relation to a fishing concession, means a boat that is specified in, or nominated for the purposes of, the fishing concession in accordance with section 32 of the Act and section 33 of this instrument.
Norfolk Island Inshore Fishery means the fishery of that name referred to in item 3 of the table in section 18.
Norfolk Island Offshore Demersal Finfish Fishery means the fishery of that name referred to in item 4 of the table in section 18.
Northern Bluefin Tuna means fish of the species Thunnus thynnus and includes the subspecies Thunnus orientalis.
Northern Prawn Fishery target species means:
(a) prawns; or
(b) molluscs of the subclass Coleoidea (commonly known as squid) or of the family Pectinidae (commonly known as scallops).
northern waters means the area described in clause 1 of Schedule 3.
North West Slope Trawl Fishery means the fishery of that name referred to in item 5 of the table in section 18.
observer means a person approved by AFMA to carry out the functions of an observer.
operating, in relation to an approved vessel monitoring system, means sending a signal that:
(a) is in a format that has been approved by AFMA; and
(b) identifies accurately the location of the boat to which the vessel monitoring system is fitted.
outer envelope: see paragraph 23(b).
possess, in relation to fish on a nominated boat, includes control.
prawn means a crustacean of:
(a) the family Aristeidae, Penaeidae or Solenoceridae (all commonly known as prawns); or
(b) the family Nephropidae (commonly known as scampi); or
(c) the family Scyllaridae (commonly known as bugs); or
(d) the infraorder Caridae (commonly known as shrimp or carid prawns).
prawn fishery waters means the area described in Part 1 of Schedule 5.
precedence list has the same meaning as in Division 4 of Part 3 of the Act (see subsection 28(2) of the Act).
processed form: a Southern Bluefin Tuna is in processed form if it is in processed form A or processed form B.
processed form A: a Southern Bluefin Tuna is in processed form A if it has been gilled and gutted so that:
(a) the gill plates are removed; and
(b) the tail is wholly removed (see subsection (2)).
processed form B: a Southern Bluefin Tuna is in processed form B if it has been gilled and gutted so that:
(a) the gill plates are not removed; and
(b) the tail is not wholly removed (see subsection (2)).
protected community means a listed threatened ecological community within the meaning of the Environment Protection and Biodiversity Conservation Act 1999.
protected organism means an organism that is:
(a) part of a protected community; or
(b) a protected species.
protected species means:
(a) a listed threatened species within the meaning of the Environment Protection and Biodiversity Conservation Act 1999 (other than a conservation dependent species within the meaning of that Act); or
(b) a listed marine species within the meaning of that Act; or
(c) a listed migratory species within the meaning of that Act; or
(d) a whale.
provision subject to an infringement notice means section 93, 95 or 100 of the Act.
Queensland waters means waters that are within:
(a) the coastal waters of Queensland; or
(b) those parts of the AFZ that are within the scheduled area for Queensland under Schedule 1 to the Offshore Petroleum and Greenhouse Gas Storage Act 2006.
quota statutory fishing right means a right described in paragraph 21(1)(a) or (b) of the Act.
registration envelope: see paragraph 23(a).
reserve price, in relation to a tender process, means the minimum bid amount that will be accepted as a tender.
reserve price envelope: see section 26.
scheduled species, in relation to a fishing permit, means a species for which quota units are specified in an attachment to the permit.
shark means fish of the class Chondrichthyes.
South Australian waters means the area described in clause 2 of Schedule 4.
Southern Bluefin Tuna means fish of the species Thunnus maccoyii (Castelnau, 1872).
Southern Bluefin Tuna Fishery has the same meaning as SBT Fishery area has in the Southern Bluefin Tuna Fishery Management Plan 1995.
South Tasman Rise Fishery means the fishery of that name referred to in item 6 of the table in section 18.
Tasmanian waters means the area described in clause 3 of Schedule 4.
tender means a tender for the grant of a fishing right.
tender envelope: see paragraph 23(b).
tender manager, in relation to a tender process, means:
(a) if AFMA appoints an independent tender manager in relation to a tender process—that independent tender manager; or
(b) otherwise—AFMA.
trawling includes board trawling, midwater or pelagic trawling and Danish seining.
trip means:
(a) for the Heard Island and McDonald Islands Fishery—a voyage in a boat to or from any port inside or outside Australia for the purpose of exercising a right under a fishing concession; or
(b) for the Macquarie Island Toothfish Fishery—a voyage in a boat to or from any port inside or outside Australia for the purpose of exercising a right under a fishing concession; or
(c) for the high seas—a voyage in a boat to or from any port inside or outside Australia for the purpose of exercising a right under a fishing concession; or
(d) in any other case—a voyage in a boat to Australia or from Australia for the purpose of exercising a right under a fishing concession.
tuna means:
(a) fish of the family Scombridae (commonly known as tuna and tuna‑like fish), other than fish of the genera Scomberomorus, Scomber, Acanthocybium, Grammatorcynus and Rastrelliger (commonly known as mackerel); or
(b) fish of the family Istiophoridae or Xiphiidae (commonly known as billfish); or
(c) fish of the family Bramidae (commonly known as pomfrets or Ray’s bream).
unforeseen emergency includes the following:
(a) a threat to the safety of human life;
(b) a threat to the safety of a boat and property on board a boat;
(c) the giving of assistance to a person, boat or aircraft in danger or distress;
(d) a serious danger to navigation on or near a boat’s course;
(e) a failure, malfunction or defect that caused, or is likely to cause, serious damage to a boat, or that interfered with, or is likely to interfere with, the normal control of a boat.
vessel monitoring system has the meaning given by subsection 167B(4) of the Act.
Victorian waters means the area described in clause 1 of Schedule 4.
Western Deepwater Trawl Fishery means the fishery of that name referred to in item 7 of the table in section 18.
Western Skipjack Fishery means the fishery of that name referred to in item 8 of the table in section 18.
WGS84: see subsection 6(2).
(2) For the purposes of the definitions of processed form A and processed form B in subsection (1), the tail of a Southern Bluefin Tuna is wholly removed if it is removed by cutting through the backbone near the base of the tail.
6 Geographic coordinates
(1) Except as otherwise indicated, geographic coordinates in this instrument are expressed in terms of the Geocentric Datum of Australia 1994 (commonly known as GDA94).
Note: The Geocentric Datum of Australia 1994 was published in Gazette No. GN35 of 6 September 1995.
(2) In this instrument, a reference to WGS84 is a reference to the World Geodetic System 1984.
(3) In this instrument, GDA94 and WGS84 are taken to be equivalent.
Note: See US National Imagery and Mapping Agency, Technical Report—NIMA TR8350.2 Third Edition (including amendments to 23 June 2004)—Department of Defense World Geodetic System 1984—Its Definition and Relationships with Local Geodetic Systems, in particular Chapters 2.2.1 and 7.
7 Conversion of weight for Southern Bluefin Tuna in the Southern Bluefin Tuna Fishery
(1) For the purposes of giving effect to any provision of the Act or this instrument that requires the weight of Southern Bluefin Tuna taken from the Southern Bluefin Tuna Fishery to be calculated in processed form, the weight is to be calculated in accordance with subsection (2) or (3).
(2) If the tuna is in processed form A, the weight is the amount, expressed in kilograms, calculated using the formula:
Start formula 1.176 times Processed weight end formula
where:
processed weight is the weight, measured in kilograms, of the tuna.
(3) If the tuna is in processed form B, the weight is the amount, expressed in kilograms, calculated using the formula:
Start formula open bracket 1.12 times Processed weight close bracket plus N end formula
where:
N is the number of tuna in the batch being weighed.
processed weight is the weight, measured in kilograms, of the batch of tuna.
8 Determining length of boat
For the purposes of this instrument, the length of a boat is the overall length of the boat determined in accordance with section 10 of the Shipping Registration Act 1981.
9 Approved vessel monitoring systems
(1) AFMA may approve one or more classes of vessel monitoring systems for the purposes of this instrument.
(2) AFMA may vary or revoke an approval under this section.
(3) AFMA must ensure that information about an approval, or the variation or revocation of an approval, is published on AFMA’s website.
Part 2—Application of Act to areas outside the AFZ
10 Simplified outline of this Part
The Act extends to 6 areas outside the AFZ:
(a) waters off the Australian Antarctic Territory; and
(b) waters of most of the southern hemisphere outside the exclusive economic zone of any country (in relation to persons who are fishing for Southern Bluefin Tuna or Northern Bluefin Tuna, or in relation to boats being used for fishing for Southern Bluefin Tuna or Northern Bluefin Tuna); and
(c) waters over the South Tasman Rise (south of Tasmania); and
(d) waters that are subject to the Convention on the Conservation of Antarctic Marine Living Resources; and
(e) waters that are subject to the Southern Indian Ocean Fisheries Agreement; and
(f) waters that are subject to the Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean.
In these areas, the Act applies to:
(a) Australian citizens; and
(b) corporations that are incorporated in Australia or carry out activities mainly in Australia; and
(c) Australian boats and Australian‑flagged boats that are not Australian boats; and
(d) persons aboard such boats.
11 Antarctic waters
For the purposes of subsection 8(1) of the Act, the Act applies, in respect of all waters within 200 nautical miles seaward of the baseline by reference to which the territorial limits of the Australian Antarctic Territory are defined under international law, to:
(a) Australian citizens; and
(b) bodies corporate that are incorporated in Australia or carry on activities mainly in Australia; and
(c) Australian boats and Australian‑flagged boats that are not Australian boats; and
(d) persons on board boats to which paragraph (c) applies.
12 High seas fishing zone
(1) For the purposes of subsection 8(1) of the Act, the Act applies, in respect of the area of waters described in Part 1 of Schedule 1 to this instrument (the high seas fishing zone), to:
(a) Australian citizens; and
(b) bodies corporate that are incorporated in Australia or carry on activities mainly in Australia; and
(c) Australian boats and Australian‑flagged boats that are not Australian boats; and
(d) persons on board boats to which paragraph (c) applies.
(2) However, the Act does not apply in relation to the high seas fishing zone to:
(a) persons who are not fishing for Southern Bluefin Tuna or Northern Bluefin Tuna; or
(b) boats that are not being used for fishing Southern Bluefin Tuna or Northern Bluefin Tuna.
13 South Tasman Rise
For the purposes of subsection 8(1) of the Act, the Act applies, in respect of the area of waters described in Part 2 of Schedule 1 to this instrument, to:
(a) Australian citizens; and
(b) bodies corporate that are incorporated in Australia or carry on activities mainly in Australia; and
(c) Australian boats and Australian‑flagged boats that are not Australian boats; and
(d) persons on board boats to which paragraph (c) applies.
14 Convention on the Conservation of Antarctic Marine Living Resources
(1) For the purposes of subsection 8(1) of the Act, the Act applies, in respect of the area of waters covered by the Convention on the Conservation of Antarctic Marine Living Resources, as in force at the time when this instrument commences, to:
(a) Australian citizens; and
(b) bodies corporate that are incorporated in Australia or carry on activities mainly in Australia; and
(c) Australian boats and Australian‑flagged boats that are not Australian boats; and
(d) persons on board boats to which paragraph (c) applies.
Note: The Convention on the Conservation of Antarctic Marine Living Resources is in the Australian Treaty Series 1982 No. 9 ([1982] ATS 9) and could in 2019 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
(2) Subsection (1) only applies to areas outside the AFZ (see subsection 8(1) of the Act).
Note: To find out where the outer limits of the AFZ are, see the definition of Australian fishing zone in subsection 4(1) of the Act.
15 Southern Indian Ocean Fisheries Agreement
For the purposes of subsection 8(1) of the Act, the Act applies, in respect of the area of waters covered by the Southern Indian Ocean Fisheries Agreement, as in force at the time when this instrument commences, to:
(a) Australian citizens; and
(b) bodies corporate that are incorporated in Australia or carry on activities mainly in Australia; and
(c) Australian boats and Australian‑flagged boats that are not Australian boats; and
(d) persons on board boats to which paragraph (c) applies.
Note: The Southern Indian Ocean Fisheries Agreement is in the Australian Treaty Series 2012 No. 21 ([2012] ATS 21) and could in 2019 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
16 Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean
For the purposes of subsection 8(1) of the Act, the Act applies, in respect of the area of waters covered by the Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean, as in force at the time when this instrument commences, to:
(a) Australian citizens; and
(b) bodies corporate that are incorporated in Australia or carry on activities mainly in Australia; and
(c) Australian boats and Australian‑flagged boats that are not Australian boats; and
(d) persons on board boats to which paragraph (c) applies.
Note: The Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean is in the Australian Treaty Series 2012 No. 28 ([2012] ATS 28) and could in 2019 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
Part 3—References to areas of the AFZ
17 Simplified outline of this Part
For the purposes of managing fishing, some areas of the AFZ may be referred to briefly as follows:
(a) Coral Sea Fishery;
(b) Eastern Skipjack Fishery;
(c) Norfolk Island Inshore Fishery;
(d) Norfolk Island Offshore Demersal Finfish Fishery;
(e) North West Slope Trawl Fishery;
(f) South Tasman Rise Fishery;
(g) Western Deepwater Trawl Fishery;
(h) Western Skipjack Fishery.
Those areas are described in detail in Schedule 2.
18 Referring to areas of waters within the AFZ
(1) For the purposes of paragraph 168(2)(p) of the Act, an area mentioned in an item of the following table may be referred to by the name mentioned in that item for the purposes of managing fishing activities in the AFZ.
(2) However, the areas mentioned in items 2 and 8 of the table in subsection (1) are prescribed only for the purposes of managing commercial fishing for skipjack tuna by purse‑seining.
Part 4—Regulation of boats to conserve the marine environment
19 Simplified outline of this Part
To conserve the marine environment, boats that are more than 130 metres long must not be used in the AFZ.
20 Regulation of boats to conserve the marine environment
(1) This section is made for the purposes of section 14 of the Act.
(2) A person commits an offence of strict liability if:
(a) the person uses a boat to engage in fishing in the AFZ; and
(b) the boat is more than 130 metres in length (see section 8 of this instrument).
Penalty: 25 penalty units.
(3) Subsection (2) does not apply if:
(a) the boat is owned and operated by or on behalf of the Commonwealth, or a State or Territory; and
(b) a scientific permit is in force authorising the use of the boat by a person; and
(c) the person engages in fishing in the AFZ for scientific research purposes in accordance with the conditions of the permit.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
Part 5—Tenders
Division 1—Preliminary
21 Simplified outline of this Part
AFMA may manage a process to select persons to be granted fishing rights by tender itself, or may appoint an independent manager to manage the process on AFMA’s behalf. AFMA may also appoint a probity auditor to oversee the process.
There are rules about how tenders are to be made, dealt with and ranked for the purposes of selecting the persons.
22 Administration of the tender process
If a grant of fishing rights is to be made by tender:
(a) AFMA may manage the tender process itself or may appoint an independent tender manager to manage the process on AFMA’s behalf; and
(b) AFMA may appoint a probity auditor to oversee the tender process.
Division 2—Applications and tender process
23 Applications under subsection 26(1) of the Act
If a person has applied under subsection 26(1) of the Act for registration as an eligible person for a grant of a fishing right:
(a) the application must be enclosed in a sealed, opaque envelope on which is written the word ‘registration’ (the registration envelope); and
(b) the registration envelope and the envelope referred to in paragraph 27(3)(b) of the Act (the tender envelope) must be submitted together enclosed in a sealed, opaque envelope (the outer envelope).
Note: Subsection 27(2) of the Act requires an application for registration as an eligible person to be accompanied by a tender. Subsection 27(3) of the Act sets out requirements for the tender.
24 Opening outer envelopes
(1) As soon as practicable after the closing date for tenders, the tender manager is to open each outer envelope.
(2) The tender manager must ensure, if AFMA has appointed a probity auditor for the tender process, that the auditor and the tender manager are present at the opening of the outer envelopes.
(3) The following procedure must then be carried out:
(a) for each outer envelope, the tender manager is to open the registration envelope inside it and record:
(i) the name of the person who submitted the enclosed registration application; and
(ii) whether a tender envelope was submitted with the application; and
(iii) whether any other conditions of the tender in relation to the contents of, or markings on, the outer envelope have been complied with;
(b) the tender manager must not open any tender envelope, but is to nominate a place where the tender envelopes will be kept until they are opened under section 27;
(c) the tender manager is to keep the original registration applications or, if the tender manager is not AFMA, give the applications to AFMA;
(d) AFMA:
(i) is to assess the registration applications under section 26 of the Act to determine each applicant’s eligibility for the grant of fishing rights in accordance with the conditions for registration in the Act and the plan of management for the fishery concerned; and
(ii) if the tender manager is not AFMA—is then to give the tender manager a list of the eligible persons.
Division 3—Recording and ranking of tenders
25 Application procedures if fishery divided into sectors
If:
(a) the fishery in which fishing rights are to be allocated is divided into sectors by a plan of management for the fishery; and
(b) fishing rights in 2 or more sectors of the fishery are to be allocated by one tender process;
the tender manager is to carry out the ranking procedure set out in this Division for each of those sectors.
26 Procedures for reserve price
If AFMA sets a reserve price, AFMA must, before the closing time for tenders, place a written statement of the reserve price in a sealed envelope (the reserve price envelope) and, if AFMA is not the tender manager, give the envelope to the tender manager.
27 Tenders—recording and ranking
The procedure for recording and ranking tenders is as follows:
(a) the tender manager is to open the tender envelope for each eligible person;
(b) the tender manager is to record, for each eligible person:
(i) the person’s name; and
(ii) the amount bid by the person per fishing right; and
(iii) whether the person’s bid is invalid and, if it is, the reason why it is invalid (see section 28 for how invalid bids are dealt with); and
(iv) any other information required by the conditions of tender;
(c) the tender manager is to rank the tenders, except invalid bids, submitted by eligible persons according to the amount bid per fishing right;
(d) if 2 or more tenderers bid the same amount per fishing right, they are to be ranked equally;
(e) if AFMA has set a reserve price, the tender manager is then to open the reserve price envelope and record, for each tender, whether the amount bid is less than, equal to or higher than the reserve price (see section 28 for how bids less than the reserve price are dealt with);
(f) if the conditions of tender set a minimum number of fishing rights that a tenderer may acquire, the tender manager is then to record, for each tender, whether the minimum number that the tenderer will accept is equal to or more than the minimum number set by the conditions;
(g) if the conditions of tender set a maximum number of fishing rights that a tenderer may acquire, the tender manager is then to record, for each tender, whether the maximum number that the tenderer is prepared to acquire is equal to or less than the maximum number set by the conditions;
(h) subject to section 28, the tender manager is to prepare a precedence list setting out for each eligible person who tendered:
(i) the person’s name and contact details; and
(ii) the amount bid per fishing right; and
(iii) if the conditions of tender allow a tenderer to specify the maximum number of fishing rights that the tenderer is prepared to acquire, or the minimum number of fishing rights that the tenderer will accept, at the amount bid—those maximum and minimum numbers;
(i) if the conditions of tender allow a tenderer to acquire less than all of the available fishing rights—the precedence list must also set out the matters provided for in section 29;
(j) if the tender manager is not AFMA, the tender manager is then to give AFMA a report incorporating the precedence list.
28 Certain persons not to be placed on precedence list
(1) If:
(a) an eligible person has tendered; and
(b) either the bid is less than the reserve price or is invalid;
then the person is not to be recorded on the precedence list.
Note: A grant of a fishing right is made to persons on the precedence list only (see section 29 of the Act).
(2) For a person who, under subsection (1), is not recorded on the precedence list, the tender manager must record:
(a) the person’s name; and
(b) the reason why the person is not recorded on the precedence list.
(3) The fact that a person is not placed on the precedence list does not affect the person’s registration as an eligible person.
29 Procedures if tenderer can acquire less than all available rights
(1) For the purposes of paragraph 27(i), the precedence list must also set out the number of fishing rights to which each tenderer is entitled, determined as set out in subsections (3), (4), (5), (6) and (7) of this section.
(2) Subsection (1) applies whether or not the conditions of tender also allow a tenderer to specify, at the amount tendered per fishing right:
(a) the maximum number of fishing rights that the tenderer is prepared to acquire; or
(b) the minimum number of fishing rights that the tenderer will accept.
(3) For each tender, if a person ranked above another tenderer has tendered for less than all the available fishing rights, the next‑highest‑ranked tenderer is entitled to the lesser of:
(a) the remaining number of fishing rights; and
(b) the number of fishing rights that the other tenderer has tendered for.
(4) If:
(a) a tenderer nominates a minimum number of fishing rights that the tenderer will accept for an amount bid; and
(b) that number is greater than the number of fishing rights remaining after deducting the entitlements of all higher‑ranked tenderers from the total number of fishing rights offered;
the tenderer is not entitled to those fishing rights, even if the amount bid per fishing right is higher than that of the next‑highest‑ranked tenderer.
(5) If a tenderer does not nominate a minimum number of fishing rights that the tenderer will accept for an amount bid, the tenderer is taken to have nominated, as the minimum number at that amount:
(a) one fishing right; or
(b) if AFMA has set a minimum number of fishing rights that a person may accept—that number.
(6) If 2 or more tenderers are equally ranked, their respective entitlements to fishing rights are to be proportional to the maximum number of fishing rights that each is prepared to accept at the amount bid.
(7) However, a tender is to be disregarded if the granting of entitlements in accordance with subsection (6) would lead to the tenderer being granted less than any minimum number of fishing rights that:
(a) the tenderer would accept; or
(b) the conditions of tender specify as the minimum that a tenderer may acquire.
Part 6—Prescribed period for payment
30 Simplified outline of this Part
Under the Act, AFMA may cancel a fishing concession if the concession holder has not, within a period prescribed by the regulations:
(a) paid money relating to the concession; or
(b) made a satisfactory arrangement relating to the money.
This Part prescribes the period.
31 Prescribed period for payment
For the purposes of paragraph 39(1)(c) of the Act, the prescribed period is 21 days.
Part 7—Standard conditions for fishing concessions
Division 1—Preliminary
32 Simplified outline of this Part
Section 42B of the Act lets regulations prescribe conditions that apply to fishing concessions. This Part prescribes a number of conditions about:
(a) nominating boats for fishing concessions; and
(b) vessel monitoring systems and observers; and
(c) disposing of fish taken in declared fisheries only to holders of fish receiver permits; and
(d) catch limits for specified areas; and
(e) processing fish; and
(f) protecting the marine environment and reporting certain interactions with protected organisms.
Division 2—Nominated boats
33 Nominated boat must be used on trip
(1) For the purposes of section 42B of the Act, this section prescribes conditions that apply to a fishing concession that is:
(a) a fishing permit; or
(b) any of the following:
(i) a boat statutory fishing right;
(ii) a gear statutory fishing right;
(iii) a designated quota statutory fishing right.
(2) A boat must not be used on a trip for the purpose of exercising a right under a fishing permit unless:
(a) the boat is specified in the permit; or
(b) the boat is nominated for the purposes of the permit under subsection 32(1A) or (1B) of the Act and the requirements of subsection (4) of this section are satisfied in relation to the nomination.
(3) A boat must not be used on a trip for the purpose of exercising a right under a statutory fishing right mentioned in paragraph (1)(b) unless the boat is nominated for the statutory fishing right and the requirements of subsection (4) are satisfied in relation to the nomination.
Note: It is not necessary to nominate a boat for a quota statutory fishing right granted under any of the following:
(a) the Eastern Tuna and Billfish Fishery Management Plan 2010;
(b) the Southern and Eastern Scalefish and Shark Fishery Management Plan 2003;
(c) the Western Tuna and Billfish Fishery Management Plan 2005.
(4) The requirements of this subsection are satisfied in relation to the nomination of a boat for the fishing concession if:
(a) the nomination is made by the concession holder by written notice given to AFMA; and
(b) the owner of the boat has consented to its nomination; and
(c) the boat is not nominated by another person for another fishing concession; and
(d) for a fishing concession that is not a designated quota statutory fishing right—another boat is not nominated for the fishing concession; and
(e) the boat has an approved vessel monitoring system that is capable of operating at all times; and
(f) the boat is able to carry safely an observer, the observer’s safety equipment and the observer’s monitoring equipment for the duration of a trip; and
(g) the boat meets any requirements of the Act (including this or any other instrument under the Act) that apply to the boat; and
(h) in the case of a boat that is to replace a boat that has been previously nominated—the fishing concession has not been suspended under section 38 of the Act.
(5) It is a condition of the fishing concession that a boat nominated under this section must not be used unless the boat is on the register applicable to the fishing concession.
Division 3—Vessels on IUU vessel list
34 Conditions
For the purposes of section 42B of the Act, this Division prescribes conditions that apply to fishing concessions.
35 Concession holders not to use vessels on IUU vessel list
The holder of a fishing concession must not use a boat for fishing under the fishing concession if the boat is on an IUU vessel list.
Division 4—Vessel monitoring systems
36 Conditions
For the purposes of section 42B of the Act, this Division prescribes conditions that apply to fishing concessions.
37 Concession holder to ensure that vessel monitoring system is fitted and operating
(1) The holder of a fishing concession must ensure that each nominated boat is fitted with an approved vessel monitoring system.
(2) The holder of a fishing concession must take all reasonable steps to ensure that the approved vessel monitoring system on a nominated boat is operating at all times.
(3) If the approved vessel monitoring system stops operating, the holder of the fishing concession must ensure that AFMA is informed as soon as practicable after the holder of the concession becomes aware that the vessel monitoring system has stopped operating.
Division 5—Observers on nominated Australian boats
38 Conditions
For the purposes of section 42B of the Act, this Division prescribes conditions that apply to a fishing concession if the nominated boat for the fishing concession is an Australian boat.
39 Requirement to carry observer
(1) An observer must be carried on board the nominated boat for a fishing concession for a particular trip if AFMA has decided that a person should be placed on the boat as an observer for that trip in order to assist AFMA to pursue its objectives or in the performance of its functions by doing one or more of the following:
(a) monitoring compliance with Australia’s international obligations;
(b) collecting data or samples;
(c) monitoring the taking of fish that the holder of the concession is authorised to take under the Act or this instrument;
(d) monitoring the taking of any fish or protected organism taken as bycatch, or any impact that the activities under the concession may have on any fish or protected organism.
(2) AFMA may give notice of a decision under subsection (1):
(a) orally; or
(b) in writing; or
(c) by email addressed to the holder of the fishing concession at the holder’s email address registered under the Act.
40 Concession holder to ensure provision for observer and equipment
(1) If an observer is to be carried on a nominated boat for a particular trip, the holder of the fishing concession must ensure that:
(a) the observer; and
(b) the observer’s safety equipment; and
(c) the observer’s monitoring equipment;
are on board the boat when the boat commences the trip.
(2) The holder of the fishing concession must ensure that an observer is provided with adequate food and accommodation while the observer is on board the boat during a trip.
(3) The holder of the fishing concession must ensure that an observer is carried safely on the boat.
41 Concession holder to ensure observer is able to perform functions
(1) If an observer is on board a nominated boat during a trip, the holder of the fishing concession must ensure that the observer:
(a) is given assistance by the holder of the concession, the master of the boat and crew members of the boat; and
(b) is given access to all parts of the boat;
to the extent reasonably necessary to enable the observer to do anything that applies under subsection 39(1).
(2) The holder of the fishing concession must not interfere with, or obstruct, the observer in the course of collecting data or samples.
(3) The holder of the fishing concession must ensure that:
(a) the master of the boat; and
(b) crew members of the boat;
do not interfere with, or obstruct, the observer in the course of collecting data or samples.
Division 6—Disposal of fish taken in declared fisheries
42 Conditions
For the purposes of section 42B of the Act, this Division prescribes conditions that apply to fishing concessions for a declared fishery.
43 Fish to be disposed of to fish receiver permit holder
(1) The holder of a fishing concession for a declared fishery must ensure that fish taken and retained under the concession are disposed of only to a holder of a fish receiver permit.
(2) This section does not apply in relation to fish taken under an aquarium sector permit granted by AFMA for the Coral Sea Fishery.
Division 7—Catch limits in northern waters
44 Conditions
(1) For the purposes of section 42B of the Act, this section prescribes conditions that apply to the following fishing concessions:
(a) a foreign fishing licence that authorises the use of a boat for taking tuna in northern waters;
(b) a fishing permit that authorises the use of a boat for taking tuna in northern waters;
(c) a fishing right that includes the right to take tuna in northern waters.
(2) The concession holder must not possess on the nominated boat more than 2 fish of one or more species mentioned in clause 2 of Schedule 3.
(3) The concession holder must not possess on the nominated boat more than 10 fish of one or more species mentioned in clause 3 of Schedule 3.
(4) The concession holder must not possess on the nominated boat more than 20 fish of one or more species mentioned in clause 4 of Schedule 3.
Division 8—Catch limits for Victorian waters
45 Interpretation
(1) For the purposes of this Division, the weight of a fish is taken to be the weight of the whole fish before it has undergone any preparation.
(2) For the purposes of this Division, if a concession holder lands fish at a place on or within the coastline of Victoria, the concession holder is to be treated as having taken the fish in Victorian waters.
46 Conditions
For the purposes of section 42B of the Act, this Division prescribes conditions that apply to the following fishing concessions:
(a) a foreign fishing licence that authorises the use of a boat for fishing in Victorian waters;
(b) a fishing permit that authorises the use of a boat for taking fish in Victorian waters;
(c) a fishing right that includes the right to take fish in Victorian waters.
47 Crustaceans
(1) The concession holder must not take the following fish from Victorian waters:
(a) school prawns (Metapenaeus macleayi);
(b) eastern king prawns (Melicertus plebejus).
Note 1: The Commonwealth has made an arrangement with Victoria under Part 5 of the Act. On account of that arrangement, as it exists on the commencement of this instrument, rock lobster (family Palinuridae) may not be taken under a concession granted under the Act.
Note 2: The concession holder may take any other species of crustaceans from Victorian waters.
(2) The concession holder must not possess on the nominated boat:
(a) more than 50 kilograms of crustaceans not of a species mentioned in Part 2 of Schedule 4; or
(b) within the amount of crustaceans referred to in paragraph (a):
(i) more than 5 giant crabs; or
(ii) more than 10 kilograms of inshore (or bay) bugs (family Scyllaridae).
Note: The species mentioned in Part 2 of Schedule 4 are target species, and are subject to specific management arrangements under Part 3 of the Act.
48 Molluscs
The concession holder must not possess on the nominated boat more than 50 kilograms of specimen shells or shellfish (class Gastropoda).
Note 1: The Commonwealth has made an arrangement with Victoria under Part 5 of the Act. On account of that arrangement, as it exists on the commencement of this instrument, abalone (any species of family Haliotidae) may not be taken under a concession granted under the Act.
Note 2: A concession holder may take any other species of molluscs from Victorian waters.
49 Finfish
(1) The concession holder must not take finfish of a species mentioned in clause 7 of Schedule 4 from Victorian waters.
Note: The concession holder may take finfish of any other species from Victorian waters.
(2) The concession holder must not possess on the nominated boat:
(a) more than 200 kilograms of finfish of one or more species mentioned in clause 8 of Schedule 4; or
(b) within the amount of finfish referred to in paragraph (a):
(i) more than 10 yellowtail kingfish (Seriola lalandi); or
(ii) more than 20 kilograms of striped trumpeter (Latris lineata); or
(iii) more than 50 kilograms of snapper (Chrysophrys auratus).
(3) This section does not apply to fish taken by trawling.
Division 9—Catch limits for South Australian waters
50 Interpretation
(1) For the purposes of this Division, the weight of a fish is taken to be the weight of the whole fish before it has undergone any preparation.
(2) For the purposes of this Division, if a concession holder lands fish at a place on or within the coastline of South Australia, the concession holder is to be treated as having taken the fish in South Australian waters.
51 Conditions
For the purposes of section 42B of the Act, this Division prescribes conditions that apply to the following fishing concessions:
(a) a foreign fishing licence that authorises the use of a boat for fishing in South Australian waters;
(b) a fishing permit that authorises the use of a boat for taking fish in South Australian waters;
(c) a fishing right that includes the right to take fish in South Australian waters.
52 Crustaceans
(1) The concession holder:
(a) must not take prawns of any species, other than a species mentioned in Part 2 of Schedule 4, from South Australian waters; and
(b) must not take more than 5 giant crabs from South Australian waters per trip.
Note 1: The Commonwealth has made an arrangement with South Australia under Part 5 of the Act. On account of that arrangement, as it exists on the commencement of this instrument, rock lobster (species of family Palinuridae) may not be taken under a concession granted under the Act.
Note 2: The concession holder may take any other species of crustaceans from South Australian waters.
(2) The concession holder must not possess on the nominated boat more than 200 kilograms of bay bugs (family Scyllaridae).
(3) The concession holder must not possess on the nominated boat more than 50 kilograms of crustaceans of one or more species not mentioned in Part 2 of Schedule 4.
Note: The species mentioned in Part 2 of Schedule 4 are target species, and are subject to specific management arrangements under Part 3 of the Act.
53 Molluscs
(1) The concession holder must not possess on the nominated boat:
(a) more than 500 kilograms of mollusc that are not of a species mentioned in Part 3 of Schedule 4; or
(b) within the amount of molluscs referred to in paragraph (a)—more than 50 kilograms of specimen shells or shellfish (class Gastropoda).
Note 1: The Commonwealth has made an arrangement with South Australia under Part 5 of the Act. On account of that arrangement, as it exists on the commencement of this instrument, abalone (species of family Haliotidae) may not be taken under a concession granted under the Act.
Note 2: A concession holder may take any other species of molluscs from South Australian waters.
(2) The concession holder must not take scallops (species of family Pectinidae) from South Australian waters.
Note: A concession holder may take any other species of molluscs from South Australian waters.
54 Finfish
(1) The concession holder must not take finfish of a species mentioned in clause 9 of Schedule 4 from South Australian waters.
Note: The concession holder may take any other species of finfish from South Australian waters.
(2) The holder must not take more than 200 kilograms of finfish of one or more species mentioned in clauses 10, 11 and 12 of Schedule 4 from South Australian waters per trip by trawling.
(3) The holder must not take more than 200 kilograms of finfish of one or more species mentioned in clauses 10, 11, 12 and 13 of Schedule 4 from South Australian waters per trip by a method other than trawling.
(4) The holder must not take from South Australian waters more than:
(a) 20 kilograms of finfish of one or more species mentioned in clause 10 of Schedule 4 per trip; or
(b) 50 kilograms of finfish of one or more species mentioned in clause 11 of Schedule 4 per trip; or
(c) 10 yellowtail kingfish (Seriola lalandi) per trip; or
(d) 100 kilograms of mulloway (Argyrosomus japonicus) per trip.
Division 10—Catch limits for Tasmanian waters
55 Interpretation
(1) For the purposes of this Division, the weight of a fish is taken to be the weight of the whole fish before it has undergone any preparation.
(2) For the purposes of this Division, if a concession holder lands fish at a place on or within the coastline of Tasmania, the concession holder is to be treated as having taken the fish in Tasmanian waters.
56 Conditions
For the purposes of section 42B of the Act, this Division prescribes conditions that apply to the following fishing concessions:
(a) a foreign fishing licence that authorises the use of a boat for fishing in Tasmanian waters;
(b) a fishing permit that authorises the use of a boat for taking fish in Tasmanian waters;
(c) a fishing right that includes the right to take fish in Tasmanian waters.
57 Crustaceans
(1) The concession holder must not take prawns of any species, other than a species mentioned in clause 4 of Schedule 4, from Tasmanian waters.
Note 1: The Commonwealth has made an arrangement with Tasmania under Part 5 of the Act. On account of that arrangement, as it exists on the commencement of this instrument, rock lobster (species of family Palinuridae) may not be taken under a concession granted under the Act.
Note 2: The concession holder may take any other species of crustaceans from Tasmanian waters.
(2) The concession holder must not possess on the nominated boat:
(a) more than 50 kilograms of crustaceans of a species not mentioned in Part 2 of Schedule 4; or
(b) within the amount of crustaceans referred to in paragraph (a)—more than 5 giant crabs.
Note: The species mentioned in Part 2 of Schedule 4 are target species, and are subject to specific management arrangements under Part 3 of the Act.
58 Molluscs
(1) The concession holder must not take limpets or keyhole limpets (superfamilies Fissurellacea, Patellacea and Siphonariacea) from Tasmanian waters.
Note 1: The Commonwealth has made an arrangement with Tasmania under Part 5 of the Act. On account of that arrangement, as it exists on the commencement of this instrument, abalone (species of family Haliotidae) may not be taken under a concession granted under the Act.
Note 2: A concession holder may take any other species of molluscs from Tasmanian waters.
(2) The concession holder must not possess on the nominated boat:
(a) more than 500 kilograms of molluscs not of a species mentioned in Part 3 of Schedule 4; or
(b) within the amount of molluscs referred to in paragraph (a)—more than 50 kilograms of specimen shells or shellfish (class Gastropoda).
Note: The species mentioned in Part 3 of Schedule 4 are target species, and are subject to specific management arrangements under Part 3 of the Act.
59 Finfish
(1) The concession holder must not take finfish of a species mentioned in clause 14 of Schedule 4 from Tasmanian waters.
(2) The concession holder must not possess on the nominated boat more than 20 kilograms of bastard trumpeter (Latridopsis forsteri).
(3) The concession holder must not possess on the nominated boat more than 50 kilograms of blue groper (Achoerodus gouldii).
(4) The concession holder must not possess on the nominated boat:
(a) more than 250 kilograms of finfish of one or more species that are mentioned in clause 15 of Schedule 4; or
(b) within the amount of finfish referred to in paragraph (a), more than 150 kilograms of striped trumpeter (Latris lineata).
60 Other species
The concession holder must not take any fish of a species mentioned in clause 16 of Schedule 4 from Tasmanian waters.
Division 11—Catch limits for prawn fishery waters
61 Conditions
For the purposes of section 42B of the Act, this Division prescribes conditions that apply to the following fishing concessions:
(a) a foreign fishing licence that authorises the use of a boat for fishing for any Northern Prawn Fishery target species in prawn fishery waters;
(b) a fishing permit that authorises the use of a boat for taking any Northern Prawn Fishery target species in prawn fishery waters;
(c) a fishing right that includes the right to take any Northern Prawn Fishery target species in prawn fishery waters.
62 Crustaceans
The concession holder must not possess on the nominated boat:
(a) more than 6 tropical rock lobsters (Panulirus ornatus); or
(b) more than 10 mud crabs of genus Scylla.
63 Molluscs
The concession holder must not take a mollusc of a species mentioned in clause 2 of Schedule 5 from prawn fishery waters.
64 Finfish
(1) The concession holder must not take tuna, except longtail tuna (Thunnus tonggol), from prawn fishery waters.
(2) The concession holder must not take finfish of a species mentioned in clause 3 of Schedule 5 from prawn fishery waters.
(3) The concession holder must not take longtail tuna (Thunnus tonggol) from prawn fishery waters that are Queensland waters.
(4) The concession holder must not possess on the nominated boat more than 10 finfish of one or more species mentioned in clause 4 of Schedule 5.
(5) For finfish of one or more species that are mentioned in clause 5 of Schedule 5:
(a) if a trip ends in March, April, May or June, the concession holder must not possess on the nominated boat more than 500 kilograms of such finfish; and
(b) if a trip ends in any other month, the concession holder must not possess on the nominated boat more than 50 kilograms of such finfish.
(6) For the purposes of subsection (5), if a fish has been processed while on the boat, the weight of the fish to be used is the whole weight equivalent worked out using one of the following methods:
(a) multiply the weight of the gilled and gutted fish by 1.1 and express the result in kilograms;
(b) multiply the weight of the fillets from the fish by 2.6 and express the result in kilograms;
(c) multiply the weight of the headed and gutted fish by 1.4 and express the result in kilograms.
65 Other species
The holder must not take any fish of a species mentioned in clause 6 of Schedule 5 from prawn fishery waters.
Division 12—Fish processing during a trip
66 Conditions
For the purposes of section 42B of the Act, this Division prescribes conditions that apply to fishing concessions.
67 Prohibited ways of processing fish
If a fish of a species mentioned in an item of the following table is taken and retained during a trip, the concession holder must ensure that none of the parts of the fish mentioned in the item are removed from the carcass before the fish is landed and disposed of in accordance with any requirements under the Act.
<table cellspacing="0" cellpadding="0" style="width:100%; border-collapse:collapse"><thead><tr><td colspan="3" style="border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Prohibited ways of processing fish</span></p></td></tr><tr><td style="width:8.58%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Item</span></p></td><td style="width:47.2%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Species</span></p></td><td style="width:44.22%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Parts of fish that must not be removed</span></p></td></tr></thead><tbody><tr style="height:62.5pt"><td style="width:8.58%; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><a id="CU_270471"></a><span>1</span></p></td><td style="width:47.2%; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Any species of shark other than the following:</span></p><p class="Tablea"><span>(a) angel shark (family Squantinidae);</span></p><p class="Tablea"><span>(b) ray;</span></p><p class="Tablea"><span>(c) skate;</span></p><p class="Tablea"><span>(d) spurdog (of genus </span><span style="font-style:italic">Squalus</span><span>)</span></p></td><td style="width:44.22%; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>The following:</span></p><p class="Tablea"><span>(a) the caudal lobe;</span></p><p class="Tablea"><span>(b) a dorsal, pectoral or caudal fin</span></p></td></tr><tr><td style="width:8.58%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>2</span></p></td><td style="width:47.2%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Any species of:</span></p><p class="Tablea"><span>(a) angel shark (family Squantinidae); or</span></p><p class="Tablea"><span>(b) dogfish (family Squalidae)</span></p></td><td style="width:44.22%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>A dorsal or caudal fin</span></p></td></tr><tr><td style="width:8.58%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>3</span></p></td><td style="width:47.2%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Any species of:</span></p><p class="Tablea"><span>(a) ray; or</span></p><p class="Tablea"><span>(b) skate</span></p></td><td style="width:44.22%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>The following:</span></p><p class="Tablea"><span>(a) the skin;</span></p><p class="Tablea"><span>(b) a fillet</span></p></td></tr><tr><td style="width:8.58%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><a id="CU_871722"></a><span>4</span></p></td><td style="width:47.2%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Any species of banjo shark (of genus </span><span style="font-style:italic">Trygonorrhina</span><span>)</span></p></td><td style="width:44.22%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>The following:</span></p><p class="Tablea"><span>(a) the skin;</span></p><p class="Tablea"><span>(b) a fillet;</span></p><p class="Tablea"><span>(c) a pectoral fin;</span></p><p class="Tablea"><span>(d) the tail</span></p></td></tr><tr><td style="width:8.58%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>5</span></p></td><td style="width:47.2%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Any species of elephant fish (of family Callorhinchidae, Chimaeridae or Rhinochimaeridae)</span></p></td><td style="width:44.22%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>The following:</span></p><p class="Tablea"><span>(a) the second dorsal fin;</span></p><p class="Tablea"><span>(b) the tail</span></p></td></tr></tbody></table>
68 Removal of shark liver
(1) This section applies if a shark is:
(a) taken during a trip; and
(b) processed during the trip by the removal of its liver.
(2) The concession holder must ensure that the shark’s carcass and the liver are retained for the duration of the trip.
(3) The concession holder must ensure that the liver is disposed of:
(a) at the same time as the shark’s carcass is disposed of; and
(b) if section 43 applies—to the same holder of a fish receiver permit.
Division 13—Impacts on the marine environment
69 Conditions
For the purposes of section 42B of the Act, this Division sets out conditions that apply to fishing concessions.
70 No interaction with protected organism
The concession holder must ensure that, as far as practicable, there is no interaction with a protected organism during a trip.
71 Reporting interaction with protected organism
If there is an interaction with a protected organism during a trip and an observer is on board the nominated boat, the concession holder must ensure that the interaction is reported to the observer as soon as practicable.
Note: The concession holder may have an additional obligation to record the interaction in a logbook kept in accordance with a determination made under section 42 of the Act.
72 Requirements if protected organism is injured by interaction
(1) If during a trip:
(a) there is an interaction with a protected organism; and
(b) the interaction injures the organism;
the concession holder must ensure that the organism is given as much assistance as is practicable.
(2) If an observer is on board the nominated boat, the concession holder must ensure that the injury is reported to the observer as soon as practicable.
Note: The concession holder may have an additional obligation to record the injury in a logbook kept in accordance with a determination made under section 42 of the Act.
73 Requirements if protected organism killed by interaction
(1) If during a trip:
(a) there is an interaction with a protected organism; and
(b) the interaction results in the death of the organism; and
(c) an observer is on board the nominated boat;
the concession holder must ensure that the death is reported to the observer as soon as practicable.
Note: The concession holder may have an additional obligation to record the death in a logbook kept in accordance with a determination made under section 42 of the Act.
(2) If during a trip:
(a) there is an interaction with a protected organism; and
(b) the interaction results in the death of the organism; and
(c) it is necessary to discharge the organism’s carcass;
the concession holder must ensure that the carcass is discharged from the boat in a way that does not attract birds or mammals to the boat.
Part 8—Fish receiver permits
74 Simplified outline of this Part
Holders of fish receiver permits must keep records, and give AFMA returns, about fish they receive and dispose of.
75 Holder of fish receiver permit to keep records
(1) For the purposes of paragraph 92(2)(a) of the Act, the holder of a fish receiver permit must make a record in respect of fish received by the holder.
(2) The record:
(a) must be in the form required by a determination by AFMA in force under section 42 of the Act for a logbook in respect of the relevant fishery (being, if the determination so provides, a record in an electronic form); and
(b) must include the information required by sections 77 and 78 of this instrument.
(3) The holder of the fish receiver permit must keep the record for at least 5 years:
(a) if the permit specifies premises at which fish received under the permit by the holder of the permit are to be kept while in the possession of the holder—at those premises; or
(b) in any other case—at the holder’s business or residential premises.
76 Holder of fish receiver permit to give returns of information
(1) For the purposes of paragraph 92(2)(b) of the Act, the holder of a fish receiver permit must give a return in respect of fish received by the holder within 3 days after receiving the fish.
(2) The return:
(a) must be in a form required by a determination by AFMA in force under section 42 of the Act for returns in respect of the relevant fishery (being, if the determination so provides, a return in an electronic form); and
(b) must include the information required by sections 77 and 78 of this instrument.
77 Information about fish received
(1) A record or return required by section 75 or 76 must include the following information in relation to the receiving of fish:
(a) the full name and address of the holder of the fish receiver permit;
(b) the full name and address of the person from whom the fish were received;
(c) the name of the boat that was used to take the fish;
(d) the name and amount (by weight) of each species of fish;
(e) the type (if any) of processing to which the fish were subjected before being received;
(f) the date on which the fish were received;
(g) the full name and office of the person providing the information.
(2) The record or return must also include:
(a) the number (if any) of Southern Bluefin Tuna received; and
(b) for each Southern Bluefin Tuna received in processed form—whether the Southern Bluefin Tuna was in processed form A or processed form B.
(3) The record or return must also include the number (if any) of fish received that are of any of the following kinds:
(a) yellowfin tuna (Thunnus albacares);
(b) bigeye tuna (Thunnus obesus);
(c) longtail tuna (Thunnus tonggol);
(d) albacore tuna (Thunnus alalunga);
(e) black marlin (Makaira indica);
(f) blue marlin (Makaira nigricans);
(g) striped marlin (Tetrapturus audax);
(h) broadbill swordfish (Xiphias gladius);
(i) fish of the family Bramidae (commonly known as pomfrets or Ray’s bream).
78 Information about fish disposed of
(1) A record or return required by section 75 or 76 must include the following information in relation to the disposal of fish (except for private or domestic use):
(a) the full name and address of the holder of the fish receiver permit;
(b) the full name and address of the person to whom the holder of the fish receiver permit disposed of the fish;
(c) the name and amount (by weight) of each species of fish;
(d) the type (if any) of processing to which the fish were subjected before their disposal;
(e) the date on which the fish were disposed of;
(f) the full name and office of the person providing the information.
(2) The record or return must also include:
(a) the number (if any) of Southern Bluefin Tuna disposed of; and
(b) for each Southern Bluefin Tuna disposed of in processed form—whether the Southern Bluefin Tuna was in processed form A or processed form B.
(3) The record or return must also include the number (if any) of fish disposed of that are of any of the following kinds:
(a) yellowfin tuna (Thunnus albacares);
(b) bigeye tuna (Thunnus obesus);
(c) longtail tuna (Thunnus tonggol);
(d) albacore tuna (Thunnus alalunga);
(e) black marlin (Makaira indica);
(f) blue marlin (Makaira nigricans);
(g) striped marlin (Tetrapturus audax);
(h) broadbill swordfish (Xiphias gladius);
(i) fish of the family Bramidae (commonly known as pomfrets or Ray’s bream).
(4) A record or return that relates to the disposal of fish for private or domestic use must include the following information:
(a) the full name and address of the holder of the fish receiver permit;
(b) a declaration that the fish were disposed of for private or domestic use;
(c) the name and amount (by weight) of each species of fish;
(d) the type (if any) of processing to which the fish were subjected before their disposal;
(e) the month in which the fish were disposed of.
Part 9—Operation of boats and equipment
Division 1—Preliminary
79 Simplified outline of this Part
Masters and owners of boats must ensure information such as identification codes allocated by AFMA, and names and radio call signs of foreign boats, are clearly displayed on the boats. Certain information must also be given to AFMA.
Under the Act, AFMA may direct that fishing not occur in parts of the fishery. It is an offence for the master of a boat to navigate the boat in certain ways in an area subject to such a direction.
There are rules about keeping and disposing of fishing equipment an officer finds in the AFZ if the owner of the equipment is unknown.
Division 2—Operation of boats
80 Identification code for a boat
Identification codes
(1) AFMA must allocate an identification code to any boat that is to be used for the purposes of a fishing right or fishing permit.
(2) The identification code must be in the form of:
(a) a number or numbers; or
(b) a letter or letters; or
(c) a combination of one or more numbers and one or more letters.
Requirement to display identification code
(3) The identification code must be displayed clearly and prominently on the boat at all times so that it is visible from the outside of the boat.
(4) A person commits an offence of strict liability if:
(a) the person is the master or owner of a boat; and
(b) the boat has been allocated an identification code under subsection (1); and
(c) the boat is being used for the purposes of the fishing right or fishing permit for which the identification code was allocated; and
(d) the boat does not display its identification code in accordance with subsection (3).
Penalty: 15 penalty units.
Requirement to remove identification code if boat no longer being used
(5) The identification code must be removed from the boat or obliterated as soon as practicable after the fishing right or fishing permit ceases to apply in relation to the boat.
(6) A person commits an offence of strict liability if:
(a) the person is the master or owner of a boat; and
(b) the boat has been allocated an identification code under subsection (1); and
(c) the fishing right or fishing permit for which the identification code was allocated ceases to apply in relation to the boat; and
(d) the boat’s identification code is not removed from the boat or obliterated in accordance with subsection (5).
Penalty: 15 penalty units.
Exception
(7) Subsections (4) and (6) do not apply in relation to a boat that:
(a) is licensed to be used to take fish under a law of a State or Territory; and
(b) displays an identifying marking under that law.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
Displaying incorrect information on boat
(8) A person commits an offence of strict liability if:
(a) the person is the master or owner of a boat; and
(b) the boat has been allocated an identification code under subsection (1); and
(c) the boat is being used for the purposes of the fishing right or fishing permit for which the identification code was allocated; and
(d) the boat shows a letter or number that is not:
(i) the boat’s name or identification code; or
(ii) an identification marking allocated to the boat under a law of a State or Territory.
Penalty: 15 penalty units.
81 Production of documents on a foreign boat
(1) This section applies for the purposes of paragraph 168(2)(l) of the Act in relation to a foreign boat that is being used under a foreign fishing licence or a Treaty licence.
(2) For the purposes of subsection 84(1) of the Act, if a document in a foreign language is given to an officer, the officer may ask the master to give the officer a written translation of the document into English.
(3) The officer may nominate a person who is to make the translation.
(4) If the officer asks the master for a translation, the master must give the officer the translation as soon as practicable.
Penalty: 15 penalty units.
(5) An offence against subsection (4) is an offence of strict liability.
(6) For the purposes of subsection 84(1) of the Act, if an officer removes a document from the boat to make a copy of, or take an extract from, the document, the officer must:
(a) keep the document for no longer than is reasonably necessary to make the copy or take the extract; and
(b) allow the master, or a person nominated by the master, to accompany the officer while the officer has the document away from the boat.
82 Identification of the call sign of a foreign boat
(1) The master of a foreign boat that is being used in the AFZ under a foreign fishing licence must show the boat’s international radio call sign on the boat in accordance with subsections (2) and (3).
Penalty: 25 penalty units.
(2) The call sign must be displayed clearly and prominently on the boat at all times so that it is visible from the outside of the boat.
(3) The call sign must be displayed in a position or positions on the boat that makes each sign clearly visible from an aircraft or a boat.
(4) An offence against subsection (1) is an offence of strict liability.
83 Identification of the name of a foreign boat
(1) The master of a foreign boat that is being used in the AFZ under a foreign fishing licence must show the boat’s name on the boat in accordance with subsection (2).
Penalty: 25 penalty units.
(2) The name must be displayed clearly and prominently on the boat at all times so that it is visible from the outside of the boat.
(3) An offence against subsection (1) is an offence of strict liability.
84 Information relating to persons on board a boat
(1) This section applies in relation to:
(a) a boat that is used in the AFZ under a fishing concession; and
(b) an Australian boat engaged in fishing outside the AFZ.
(2) AFMA may, at any time, ask the master of the boat to give it the names, dates of birth, residential addresses and positions of persons on board the boat.
(3) The master must give the information to AFMA as soon as practicable.
Penalty: 15 penalty units.
(4) AFMA must not ask the master under subsection (2) more than once in a period of 48 hours.
(5) An offence against subsection (3) is an offence of strict liability.
Division 3—Closure or partial closure of a fishery
85 Meaning of closed zone
(1) A closed zone is any part of a fishery that is subject to a direction given under subsection 41A(2) of the Act (for such period or periods as the direction is in force under section 41A of the Act).
(2) A closed zone relates to a boat if the boat may be used:
(a) to engage in fishing in any part of a closed zone under a fishing concession or a foreign master fishing licence; or
(b) to engage in fishing for scientific research in any part of a closed zone under a scientific permit.
86 Navigating in area that is a closed zone
Offence
(1) The master of a boat commits an offence of strict liability if the boat is navigated in an area that is a closed zone that relates to the boat.
Penalty: 25 penalty units.
Exceptions
(2) Subsection (1) does not apply if information given by the boat’s vessel monitoring system shows, for the period that the boat was in the closed zone:
(a) that the boat was travelling at a speed of 5 knots or more as worked out under subsection (4); or
(b) that:
(i) the boat was navigated in the closed zone for a period of 30 minutes or more; and
(ii) the boat was stationary (see subsection (5)).
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
(3) Subsection (1) does not apply if:
(a) AFMA had given approval for the boat to be navigated in the closed zone because of an unforeseen emergency, or circumstances beyond the control of the master of the boat; and
(b) the boat was navigated in the closed zone in accordance with any instructions given by AFMA.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
Working out a boat’s speed
(4) To work out a boat’s speed in knots for the purposes of this section:
(a) for each consecutive pair of points identified by the boat’s vessel monitoring system, identify the shortest distance between the pair of points in a straight line; and
(b) divide the distance by the time taken by the boat to travel between the 2 points.
(5) For the purposes of this section, a boat is taken to be stationary if it is travelling at a speed of 0.5 knots or less as worked out under subsection (4).
Division 4—Unclaimed equipment
87 Sale or disposal of unclaimed equipment
(1) This section applies to equipment used for fishing if:
(a) an officer finds the equipment in the AFZ; and
(b) the identity of the owner of the equipment is unknown.
(2) The officer must keep the equipment in safe custody for 30 days after the day on which it was found.
(3) If the owner of the equipment has not been identified by the end of the period, AFMA must place a notice in:
(a) one or more newspapers circulating in the port in Australia or an external Territory nearest to where the equipment was found; or
(b) if there is no newspaper circulating in the port—one or more newspapers nominated by the CEO.
(4) The notice must:
(a) describe the equipment; and
(b) identify the place, or approximate place, where it was found; and
(c) state that unless the owner of the equipment is identified within 14 days after the date of publication of the newspaper, the equipment may be sold by public auction.
(5) AFMA may attempt to sell the equipment by public auction if:
(a) the owner of the equipment is not identified at the end of 14 days after the date on which the latest of the notices is published; and
(b) the equipment is in saleable condition.
(6) For the purposes of the auction:
(a) the Commonwealth is taken to be the absolute owner of the equipment; and
(b) an officer may conduct the auction without holding an auctioneer’s licence under the law of the State or Territory in which the auction is held; and
(c) the proceeds of the sale of the equipment must be paid to AFMA.
(7) AFMA may direct how the equipment is to be disposed of if:
(a) the equipment is not in saleable condition; or
(b) the equipment is offered, but not sold, at the auction.
(8) AFMA may dispose of equipment that is marine debris in such manner as AFMA considers to be appropriate without complying with subsections (2) to (7).
Part 10—Detention of suspected illegal foreign fishers
Division 1—Simplified outline of this Part
88 Simplified outline of this Part
There are rules about the kinds of personal identifier to be obtained from persons detained because they are reasonably suspected of having committed an offence using a foreign boat and are not Australian citizens or Australian residents.
Authorised officers must give such persons certain information before carrying out identification tests to obtain personal identifiers from the persons.
There are also rules about what kinds of personal identifiers may be disclosed to other organisations and which Australian and international organisations they may be disclosed to.
This Part also identifies Australian Government agencies that may disclose information about potentially illegal fishing to foreign governments and intergovernmental bodies.
Division 2—Identifying detainees
89 Personal identifiers
For the purposes of paragraph (g) of the definition of personal identifier in subclause 26(1) of Schedule 1A to the Act, other identifiers are as follows:
(a) a sample of a person’s handwriting;
(b) a photograph of a tattoo, scar or other identifying mark of a person, if the obtaining of the photograph does not involve:
(i) the removal of any of the person’s clothing; or
(ii) the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914.
90 Personal identifiers detainees must provide
For the purposes of paragraph 28(2)(e) of Schedule 1A to the Act, other types of personal identifier are as follows:
(a) an audio or a video recording of the detainee (other than a video recording under clause 37 of Schedule 1A to the Act);
(b) an iris scan of the detainee’s eyes;
(c) a sample of the detainee’s handwriting;
(d) a photograph of a tattoo, scar or other identifying mark of the detainee, if the obtaining of the photograph does not involve:
(i) the removal of any of the detainee’s clothing; or
(ii) the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914.
91 Personal identifiers officers must require non‑citizens to provide by way of identification tests
For the purposes of paragraph 29(1)(a) of Schedule 1A to the Act, the types of personal identifier are as follows:
(a) fingerprints or handprints of the non‑citizen (including those taken using paper and ink or digital livescanning technologies);
(b) a measurement of the non‑citizen’s height and weight;
(c) a photograph or other image of the non‑citizen’s face and shoulders;
(d) an audio or a video recording of the non‑citizen (other than a video recording under clause 37 of Schedule 1A to the Act);
(e) an iris scan of the non‑citizen’s eyes;
(f) the non‑citizen’s signature;
(g) a sample of the non‑citizen’s handwriting;
(h) a photograph of a tattoo, scar or other identifying mark of the non‑citizen, if the obtaining of the photograph does not involve:
(i) the removal of any of the non‑citizen’s clothing; or
(ii) the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914.
92 Information to be provided before carrying out identification tests
(1) For the purposes of paragraph 30(1)(b) of Schedule 1A to the Act, the matters of which the authorised officer must inform the non‑citizen before carrying out an identification test are:
(a) the reason why a personal identifier is required to be provided; and
(b) how a personal identifier may be collected; and
(c) how any personal identifier that is collected may be used; and
(d) the circumstances in which a personal identifier may be disclosed to a third party; and
(e) that a personal identifier may be produced in evidence in a court or tribunal in relation to the person; and
(f) that the Privacy Act 1988 applies to a personal identifier, and that the person has a right to make a complaint to the Australian Information Commissioner about the handling of personal information; and
(g) that the Freedom of Information Act 1982 gives a person access to certain information and documents in the possession of the Government of the Commonwealth and its agencies, and that the person has a right to seek access to that information or those documents under that Act, and to seek amendment of records containing personal information that is incomplete, incorrect, out of date or misleading; and
(h) if the non‑citizen is a minor or an incapable person—how a personal identifier is to be obtained from a minor or incapable person.
Note: Division 3 of Part 5 of Schedule 1A to the Act deals with the identification of minors and incapable persons.
(2) For the purposes of subclause 30(3) of Schedule 1A to the Act, if a form is to be given to a non‑citizen setting out any information mentioned in subsection (1), it must be given to the non‑citizen at a time that gives the non‑citizen enough time to read and understand the form before the identification test is conducted.
93 Authorising access to video recordings
For the purposes of subclause 41(3) of Schedule 1A to the Act, the types of personal identifier are as follows:
(a) fingerprints or handprints of a non‑citizen (including those taken using paper and ink or digital livescanning technologies);
(b) a measurement of a non‑citizen’s height and weight;
(c) a photograph or other image of a non‑citizen’s face and shoulders;
(d) an audio or a video recording of a non‑citizen (other than a video recording under clause 37 of Schedule 1A to the Act);
(e) an iris scan of a non‑citizen’s eyes;
(f) a non‑citizen’s signature;
(g) a sample of a non‑citizen’s handwriting;
(h) a photograph of a tattoo, scar or other identifying mark of a non‑citizen.
94 Providing video recordings—permitted provision
For the purposes of paragraph 42(2)(f) of Schedule 1A to the Act, the Australian Human Rights Commission is prescribed.
95 Providing video recordings—limitations
For the purposes of paragraph 42(3)(a) of Schedule 1A to the Act, the types of personal identifier are as follows:
(a) fingerprints or handprints of a non‑citizen (including those taken using paper and ink or digital livescanning technologies);
(b) a measurement of a non‑citizen’s height and weight;
(c) a photograph or other image of a non‑citizen’s face and shoulders;
(d) an audio or a video recording of a non‑citizen (other than a video recording under clause 37 of Schedule 1A to the Act);
(e) an iris scan of a non‑citizen’s eyes;
(f) a non‑citizen’s signature;
(g) a sample of a non‑citizen’s handwriting;
(h) a photograph of a tattoo, scar or other identifying mark of a non‑citizen.
Division 3—Disclosure of identifying information
96 Authorising access to identifying information
For the purposes of subclause 52(3) of Schedule 1A to the Act, the types of personal identifier are as follows:
(a) fingerprints or handprints of a non‑citizen (including those taken using paper and ink or digital livescanning technologies);
(b) a measurement of a non‑citizen’s height and weight;
(c) a photograph or other image of a non‑citizen’s face and shoulders;
(d) an audio or a video recording of a non‑citizen (other than a video recording under clause 37 of Schedule 1A to the Act);
(e) an iris scan of a non‑citizen’s eyes;
(f) a non‑citizen’s signature;
(g) a sample of a non‑citizen’s handwriting;
(h) a photograph of a tattoo, scar or other identifying mark of a non‑citizen.
97 Authorising disclosure of identifying information
For the purposes of subclause 54(1) of Schedule 1A to the Act, AFMA may authorise the following agencies to disclose identifying information under that subclause:
(a) the Department of Foreign Affairs and Trade;
(b) the Department administered by the Minister administering Part XII of the Customs Act 1901.
98 Disclosure of identifying information to Australian bodies
For the purposes of paragraph 54(1)(d) of Schedule 1A to the Act, AFMA may authorise the disclosure of identifying information under subclause 54(1) of that Schedule to any of the bodies mentioned in the following table:
99 Disclosure of identifying information to international organisations
For the purposes of paragraph 54(1)(e) of Schedule 1A to the Act, AFMA may authorise the disclosure of identifying information under subclause 54(1) of that Schedule to any of the following organisations:
(a) Interpol;
(b) the United Nations;
(c) any of the intergovernmental organisations (known as Regional Fisheries Bodies) mentioned in the following table:
Division 4—Disclosures relating to illegal fishing activities
100 Authorising disclosure of information relating to illegal fishing activities
(1) This section is made for the purposes of paragraph 108B(3)(b) of the Act.
(2) The following agencies are declared to be prescribed agencies for the purposes of subsection 108B(1) of the Act:
(a) the Department of Foreign Affairs and Trade;
(b) the Department administered by the Minister administering Part XII of the Customs Act 1901.
Part 11—Administration
Division 1—Simplified outline of this Part
101 Simplified outline of this Part
Under the Act, information described in Division 2 of this Part must be included in the Register of Statutory Fishing Rights, the High Seas Register and the Fishing Permits Register.
AFMA may collect, and disclose to government bodies, researchers and the holders of fishing concessions concerned, information about:
(a) possible breaches of laws; and
(b) border protection; and
(c) management and monitoring of, and research into, fisheries and the marine environment.
There are rules about the operation of the Statutory Fishing Rights Allocation Review Panel, covering the operation of the Panel’s registries and fees for witnesses appearing before the Panel.
There is also a scheme for the placement of caveats on the transfer of certain fishing concessions.
Fees set out in Schedule 6 apply for certain applications, registrations and other matters.
Division 2—Registers
102 Information to be included in registers
(1) This section prescribes particulars to be included in:
(a) the Register of Fishing Rights for the purposes of paragraph 45(1)(f) of the Act; and
(b) the High Seas Register for the purposes of paragraph 57B(2)(i) of the Act; and
(c) the Fishing Permits Register for the purposes of paragraph 57H(1)(e) of the Act.
(2) A particular mentioned in subsection (3) does not apply if:
(a) the particular does not exist in relation to the particular fishing concession; or
(b) it is not necessary for AFMA to collect the particular, either for its own purposes, or in accordance with an international fisheries agreement.
(3) For the purposes of subsection (1), the particulars are set out in the following table.
<table cellspacing="0" cellpadding="0" style="width:100%; border-collapse:collapse"><thead><tr><td colspan="2" style="border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Particulars to be included in registers</span></p></td></tr><tr><td style="width:7.66%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Item</span></p></td><td style="width:92.34%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Particular</span></p></td></tr></thead><tbody><tr><td style="width:7.66%; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>1</span></p></td><td style="width:92.34%; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>For the person to whom the fishing concession is granted:</span></p><p class="Tablea"><span>(a) name; and</span></p><p class="Tablea"><span>(b) postal address; and</span></p><p class="Tablea"><span>(c) telephone number; and</span></p><p class="Tablea"><span>(d) fax number; and</span></p><p class="Tablea"><span>(e) email address; and</span></p><p class="Tablea"><span>(f) ABN or ACN</span></p></td></tr><tr><td style="width:7.66%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>2</span></p></td><td style="width:92.34%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>For any other holder of the fishing concession:</span></p><p class="Tablea"><span>(a) name; and</span></p><p class="Tablea"><span>(b) postal address; and</span></p><p class="Tablea"><span>(c) telephone number; and</span></p><p class="Tablea"><span>(d) fax number; and</span></p><p class="Tablea"><span>(e) email address; and</span></p><p class="Tablea"><span>(f) ABN or ACN</span></p></td></tr><tr><td style="width:7.66%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>3</span></p></td><td style="width:92.34%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Number of the fishing permit</span></p></td></tr><tr><td style="width:7.66%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>4</span></p></td><td style="width:92.34%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Number of the boat statutory fishing right</span></p></td></tr><tr><td style="width:7.66%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>5</span></p></td><td style="width:92.34%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Number of the quota statutory fishing right</span></p></td></tr><tr><td style="width:7.66%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>6</span></p></td><td style="width:92.34%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Any alphanumeric code assigned for the purposes of the registration of the fishing concession</span></p></td></tr><tr><td style="width:7.66%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>7</span></p></td><td style="width:92.34%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Total weight in kilograms of fish that may be taken for the purposes of the fishing concession</span></p></td></tr><tr><td style="width:7.66%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>8</span></p></td><td style="width:92.34%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Total headrope length in metres that can be used for the purposes of the fishing concession</span></p></td></tr><tr><td style="width:7.66%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>9</span></p></td><td style="width:92.34%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Whether a gear statutory fishing right has been nominated in relation to a boat statutory fishing right</span></p></td></tr><tr><td style="width:7.66%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><a id="CU_21116357"></a><span>10</span></p></td><td style="width:92.34%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Whether a quota statutory fishing right has been nominated in relation to a boat statutory fishing right</span></p></td></tr><tr><td style="width:7.66%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>11</span></p></td><td style="width:92.34%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>For a boat that has been nominated for the fishing concession:</span></p><p class="Tablea"><span>(a) name; and</span></p><p class="Tablea"><span>(b) any previous names; and</span></p><p class="Tablea"><span>(c) any distinguishing symbol that identifies the boat; and</span></p><p class="Tablea"><span>(d) length; and</span></p><p class="Tablea"><span>(e) colour; and</span></p><p class="Tablea"><span>(f) beam in metres; and</span></p><p class="Tablea"><span>(g) gross registered tonnage; and</span></p><p class="Tablea"><span>(h) moulded depth in metres; and</span></p><p class="Tablea"><span>(i) when it was built; and</span></p><p class="Tablea"><span>(j) where it was built; and</span></p><p class="Tablea"><span>(k) a code representing the type of boat; and</span></p><p class="Tablea"><span>(l) a code representing the gear type used on the boat; and</span></p><p class="Tablea"><span>(m) port of registry; and</span></p><p class="Tablea"><span>(n) registry number; and</span></p><p class="Tablea"><span>(o) whether the boat’s registration has previously been cancelled or suspended, and the country which cancelled or suspended the registration; and</span></p><p class="Tablea"><span>(p) any previous flag under which it has been operated; and</span></p><p class="Tablea"><span>(q) normal crew complement; and</span></p><p class="Tablea"><span>(r) a code representing the boat’s current flag state; and</span></p><p class="Tablea"><span>(s) a code representing any previous flag state; and</span></p><p class="Tablea"><span>(t) number of freezers on the boat; and</span></p><p class="Tablea"><span>(u) each type of freezer used on the boat; and</span></p><p class="Tablea"><span>(v) capacity of each freezer used on the boat; and</span></p><p class="Tablea"><span>(w) fish hold capacity; and</span></p><p class="Tablea"><span>(x) engine type; and</span></p><p class="Tablea"><span>(y) power in kilowatts of the main engine or engines; and</span></p><p class="Tablea"><span>(z) serial number of each engine; and</span></p><p class="Tablea"><span>(za) aspiration of each engine; and</span></p><p class="Tablea"><span>(zb) number of turbochargers; and</span></p><p class="Tablea"><span>(zc) type of aftercooler system; and</span></p><p class="Tablea"><span>(zd) radio call sign; and</span></p><p class="Tablea"><span>(ze) International Radio Call Sign; and</span></p><p class="Tablea"><span>(zf) make and model of each communication system on the boat; and</span></p><p class="Tablea"><span>(zg) whether the boat is authorised to conduct transhipping in the area of competence for the Indian Ocean Tuna Commission; and</span></p><p class="Tablea"><span>(zh) colour photographs of the boat, in high resolution and with sufficient brightness and contrast to show the boat clearly, including:</span></p><p class="Tablei"><span>(i) a photograph measuring at least 12 cm </span><span style="font-family:Symbol, serif"></span><span> 7 cm that shows the full overall length of the starboard side of the boat and all of the boat’s structural features along that side; and</span></p><p class="Tablei"><span>(ii) a photograph measuring at least 12 cm </span><span style="font-family:Symbol, serif"></span><span> 7 cm that shows the full overall length of the port side of the boat and all of the boat’s structural features along that side; and</span></p><p class="Tablei"><span>(iii) a photograph measuring at least 12 cm </span><span style="font-family:Symbol, serif"></span><span> 7 cm that is taken from astern and shows the boat’s stern</span></p></td></tr><tr><td style="width:7.66%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>12</span></p></td><td style="width:92.34%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>For the owner of a boat that has been nominated for the fishing concession:</span></p><p class="Tablea"><span>(a) name; and</span></p><p class="Tablea"><span>(b) postal address; and</span></p><p class="Tablea"><span>(c) nationality</span></p></td></tr><tr><td style="width:7.66%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>13</span></p></td><td style="width:92.34%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>For the master of a boat that has been nominated for the fishing concession:</span></p><p class="Tablea"><span>(a) name; and</span></p><p class="Tablea"><span>(b) nationality</span></p></td></tr></tbody></table>
Division 3—Collection and disclosure of information
103 Collection of information
For the purposes of paragraph 168(2)(u) of the Act, AFMA may collect information relating to:
(a) possible breaches of the laws of Australia or of a foreign country; or
(b) the control and protection of Australia’s borders; or
(c) the administration and management of fisheries or marine environments; or
(d) research or monitoring conducted, or proposed to be conducted, into fisheries or marine environments.
104 Disclosure of information
(1) This section applies to information, including e‑monitoring data and personal information, of the kind referred to in paragraph 168(2)(v) of the Act.
(2) AFMA may disclose the information:
(a) to a government entity if AFMA is satisfied that the information relates to the performance of a function of the entity; or
(b) to a person conducting research if AFMA is satisfied that the research is related to, or will support, AFMA’s functions or objectives; or
(c) in the case of data collected from a vessel monitoring system fitted to a boat that has been nominated for a fishing concession, e‑monitoring data or information collected from the holder of a fishing concession (and without limiting paragraph (a) or (b))—to a person who:
(i) was the holder of the fishing concession at the time to which the data or information relates; or
(ii) has been nominated by a person described in subparagraph (i); or
(d) in the case of information relating to the disposal of fish by the holder of a fish receiver permit—to the person who was the holder of the permit when the fish were disposed of.
(3) In this section:
government entity means:
(a) the Commonwealth, a State or a Territory; or
(b) an agency or authority of the Commonwealth or of a State or Territory; or
(c) a foreign country or part of a foreign country.
Division 4—Statutory Fishing Rights Allocation Review Panel
105 Administrative matters
(1) For the purposes of paragraph 137(3)(a) of the Act, the Registrar of the Statutory Fishing Rights Allocation Review Panel must ensure that each Registry of the Panel is open for business from 9.30 am to 1.00 pm, and from 2.00 pm to 4.00 pm, on each business day in the place where the Registry is located.
(2) For the purposes of paragraph 137(3)(a) of the Act, the Registrar of the Panel must:
(a) date documents received by the Panel; and
(b) for an application for review of a decision to grant a fishing right, acknowledge the application in writing.
106 Fees and allowances for appearing before Panel
For the purposes of subsection 158(1) of the Act, a person who is summoned under paragraph 146(2)(a) of the Act to appear before the Statutory Fishing Rights Allocation Review Panel to give evidence is entitled to be paid the same fees and allowances for expenses in relation to the appearance as are payable under the Administrative Review Tribunal Rules 2024 to a person summoned to appear before the Administrative Review Tribunal.
Division 5—Restrictions on transfers
107 Caveats
(1) This section is made for the purposes of paragraphs 32A(4)(d) and 46(4D)(d) of the Act and prescribes circumstances that relate to the following fishing concessions:
(a) a fishing permit;
(b) a fishing right.
(2) A transfer of a fishing concession (or ownership of a fishing concession) must not be registered if:
(a) AFMA has received a notification in the approved form for the purposes of this section; and
(b) the notification was made by the concession holder, other than a lessee of the fishing concession; and
(c) the notification is expressed as having the effect of placing a caveat on a transfer of the fishing concession for the benefit of another person; and
(d) either:
(i) the caveat has not been withdrawn by the person for whose benefit the caveat exists by further notification given to AFMA in the approved form; or
(ii) the transfer is not being made with the consent of that person given to AFMA in the approved form; and
(e) subsection (3) does not apply.
(3) This subsection applies if AFMA is satisfied, on the application of the concession holder who made the notification, that the transfer should be registered on account of an order made by a court.
Note: Sections 54 and 57K of the Act provide for applications to be made to a prescribed court for an order for the rectification of a register that is relevant to the operation of this section.
(4) Nothing in this section requires AFMA to be satisfied as to the accuracy or validity of any information or matter that is notified under this section.
Division 6—Fees
108 Fees
(1) For the purposes of subsections 52(1), 57D(1) and 57J(1) and paragraph 168(2)(e), of the Act, the fee payable for an application, registration, inspection or other matter mentioned in an item in the table in clause 1 of Schedule 6 to this instrument is the fee applicable under that item.
(2) Despite subsection (1), no fee is payable for an application for the grant of a port permit, or for a variation of a condition of a port permit, for a foreign fishing boat that is engaged in fisheries research activities in collaboration with:
(a) the Commonwealth, a State or a Territory; or
(b) an agency or authority of the Commonwealth or of a State or Territory.
Part 12—Transitional provisions
Division 1—Simplified outline of this Part
117 Simplified outline of this Part
This Part deals with matters of a transitional nature relating to the making or amendment of this instrument.
Division 2—Provisions for this instrument as originally made
118 Things done under the Fisheries Management Regulations 1992 or the Fisheries Management (Southern Bluefin Tuna Fishery) Regulations 1995
(1) If:
(a) a thing was done for a particular purpose under the Fisheries Management Regulations 1992, or the Fisheries Management (Southern Bluefin Tuna Fishery) Regulations 1995, as in force immediately before those instruments were repealed; and
(b) the thing could be done for that purpose under this instrument;
the thing has effect for the purposes of this instrument as if it had been done for that purpose under this instrument.
(2) Without limiting subsection (1), a reference in that subsection to a thing being done includes a reference to a notice, application, or other instrument being given or made.
119 Infringement notices
(1) Division 7 of Part 11 applies in relation to an alleged contravention of a provision subject to an infringement notice whether the alleged contravention occurs before, on or after the commencement of this instrument.
(2) However, Part 10 of the Fisheries Management Regulations 1992, as in force immediately before the repeal of that instrument, continues to apply to an infringement notice given under that Part before that repeal.