Fisheries Regulation 2001

Zero bag limit. The regulation sets the prescribed number of fish and the prescribed quantity of fish at zero. This is not a modest restriction; it is a complete prohibition on taking or possessing fish in ACT waters, absent authority under the Fisheries Act. The practical effect is that any lawful taking of fish must be authorised by a permit, licence, or other instrument issued under the Act. Recreational fishing in the ACT is effectively banned unless an instrument says otherwise. The zero limit applies to all fish species, all sizes, and all periods. There is no seasonal or species-based carve-out in the regulation itself.

Commercial quantity. For three priority species (abalone, Murray Cod, rock lobster), the regulation defines the threshold above which possession is deemed commercial. The numbers are relatively low: 20 Murray Cod or rock lobsters, 100 abalone. These thresholds trigger the Act’s offences for possessing a commercial quantity without a licence. The definition is fixed in the regulation rather than left to ministerial discretion, giving certainty but also limiting flexibility to adjust to stock assessments quickly.

Aquaculture capacity limit. The limit of 10 000 litres is a volumetric cap on the total water capacity of aquaculture operations. This includes all tanks, ponds, and raceways. It is a small limit by commercial standards; a single large tank holding 10 000 litres is roughly 10 cubic metres. This constrains the scale of any aquaculture business in the ACT. The limit applies per licence, but the regulation does not specify whether multiple licences can be held by one person or entity to aggregate capacity.

Strict liability for hoop net use. If hoop nets are declared as permissible gear, their use is tightly restricted. The only lawful method is lowering and raising vertically by hand. Any other method (e.g., setting the net horizontally, using a mechanical winch, leaving it unattended) is an offence of strict liability. The maximum penalty is 5 penalty units. At the republication date, that is $800 for an individual and $4,050 for a corporation. The strict liability element means prosecutors do not need to prove intention or recklessness; the mere fact of using the net in a prohibited way is enough. The only potential defence is honest and reasonable mistake of fact, under chapter 2 of the Criminal Code.

Application of Criminal Code. Section 2A incorporates the Criminal Code’s general principles. This affects how offences are interpreted, what defences are available, and how burden of proof operates. For strict liability offences under section 5, the Criminal Code provides that the defence of mistake of fact is available, and the prosecution bears the legal burden of proving the physical elements beyond reasonable doubt, while the accused bears the evidential burden for any defence.

Repeal of infringement notice provisions. Earlier versions of the regulation contained schedules and sections for infringement notice offences and penalties. These were all omitted by SL2004-2. The consequence is that the only enforcement mechanism for breaches of the regulation is prosecution in a court, not on-the-spot fines or penalty notices. This increases the cost and time of enforcement for minor breaches.

The regulation directly affects several groups, though its reach is circumscribed by the small geographic size of the ACT and the limited scale of its fisheries.

Recreational fishers. Any person who wishes to fish recreationally in ACT waters is affected because the default bag limit is zero. Without a permit from the Fisheries Act, taking any fish is an offence. This effectively eliminates recreational line fishing, netting, or hand gathering in the ACT, unless the Minister has issued a specific permit or declaration. The regulation does not create a licensing scheme; that is left to the Fisheries Act. The effect on tourism and local tackle shops is indirect but real: the ACT offers negligible lawful recreational fishing, which may reduce visitor demand for related services.

Commercial fishers. No fish may be taken commercially under the regulation because the prescribed quantity is zero kilograms. Commercial fishing in the ACT is therefore impossible without a licence under the Act that overrides the regulation. Even if a licence exists, the quantity of fish that may be taken is set by the licence conditions; the regulation does not provide any positive allowance. The commercial quantity thresholds in section 4A are relevant to enforcement: possession of 20 or more Murray Cod, even if not taken from ACT waters, may attract penalties if the person does not hold a licence authorising possession of a commercial quantity.

Aquaculture operators. Anyone holding or applying for an aquaculture licence under the Fisheries Act is directly constrained by the 10 000 litre capacity limit. This is a small limit. A single backyard aquaculture setup can exceed 10 000 litres for koi or native fish. For commercial aquaculture, the limit effectively caps production at hobby scale. The regulation does not distinguish between different types of aquaculture (e.g., native fish, ornamental, hatchery) or different water volumes for different purposes. The limit may incentivise operators to locate outside the ACT, in New South Wales, where capacity limits are higher.

Hoop net users. If the Minister ever declares hoop nets as permissible gear (a power under section 17 of the Fisheries Act), then any person using a hoop net is affected. The vertical hand-only method is restrictive. It precludes using hoop nets as set traps, netting from boats, or using mechanical retrieval. This likely limits hoop net use to shore-based, shallow-water scooping for crustaceans or small fish. The strict liability offence means users must be careful to comply exactly, as there is no need to prove intent to convict.

Enforcement agencies. The repeal of infringement notice provisions means enforcement is heavier. The ACT Parks and Conservation Service or police must lay charges and proceed to court for any breach of the regulation, from taking a single fish to using a hoop net incorrectly. This consumes more resources and may deter enforcement of minor breaches.

Businesses dependent on fishing. Charter boat operators, fishing guides, bait shops, and fish markets are indirectly affected. A zero bag limit means no lawful catch from ACT waters, so any fish sold in the ACT must be sourced from outside the territory or from aquaculture. The aquaculture capacity limit restricts local supply.

Duty not to take fish. Section 3 imposes a duty on every person not to take any fish in any period. The duty is absolute in the regulation, though the Fisheries Act may create exceptions. The duty applies to all fish species, including introduced species.

Duty not to possess fish. Section 4 imposes a duty not to possess a quantity of fish greater than zero kilograms. This means any possession of fish (e.g., keeping a catch in a bucket, transporting fish in a vehicle) is unlawful unless authorised under the Act. The duty is triggered by possession, not just taking.

Duty to comply with aquaculture capacity limit. Section 4AA imposes a duty on an aquaculture licence holder not to exceed 10 000 litres of total water capacity in their operation. This is a volumetric cap; presumably compliance requires measuring all tanks, ponds, and containers. There is no provision for temporary exceedances or multiple licences.

Duty to use hoop nets only vertically by hand. Section 5(2) imposes a duty on any person using a hoop net (if declared permissible) to use it only by lowering it into the water and drawing it out vertically by hand. The duty applies to all uses, not just for taking fish.

Rights. The regulation itself confers no rights on individuals. It imposes prohibitions and duties. Any right to fish or possess fish must arise from the Fisheries Act (e.g., a permit, licence, or exemption). The regulation is entirely restrictive. The only right of potential value is the right to rely on the defence of mistake of fact for strict liability offences under section 5, because section 2A incorporates the Criminal Code.

No right to a hearing before infringement notice. Because infringement notice provisions were repealed, there is no right to choose to pay a fine instead of going to court. For any breach, the only process is court prosecution, which carries the risk of a criminal record and higher penalties.

Duty to know the law. Because section 5 is strict liability, there is no requirement for the prosecution to prove the accused knew the method of use was prohibited. The accused is effectively deemed to know the regulation. This is a heavy burden on recreational users who may not read the regulation.

The regulation provides for only one maximum penalty: 5 penalty units for a breach of section 5 (hoop net misuse). At the republication date, 5 penalty units equals $800 for an individual and $4,050 for a corporation, based on the penalty unit values set by the Legislation Act 2001. These amounts are not indexed in the regulation itself; they change when the penalty unit rate changes.

Breaches of sections 3, 4, 4AA, and 4A are not directly penalised under the regulation. Instead, they engage penalty provisions in the Fisheries Act 2000. The regulation merely sets the numbers; the Act contains the offence provisions. For example, taking fish in contravention of a bag limit is an offence under the Act. The Act’s penalties are likely more severe than the regulation’s. The regulation’s penalty only applies to the hoop net restriction.

Because infringement notice provisions were repealed in 2004, there is no ability for enforcement officers to issue on-the-spot fines for any breach of the regulation. Every alleged breach must be prosecuted in the Magistrates Court. This raises enforcement costs and may lead to fewer prosecutions for minor infringements, creating a de facto low-enforcement environment.

Strict liability applies to the hoop net offence. This means that the prosecution only needs to prove the physical elements: that the person used a hoop net and that the use was not by lowering and drawing vertically by hand. No proof of intention, knowledge, or recklessness is required. The accused may raise the defence of honest and reasonable mistake of fact under the Criminal Code, but must first point to evidence of such a mistake. This is a high bar for a casual fisher who may not have read the regulation.

The regulation does not specify who enforces it. The Fisheries Act likely delegates enforcement to authorised officers (e.g., ACT Parks and Conservation rangers, police). They have powers of search, seizure, and arrest under the Act. The regulation itself does not create any enforcement powers.

For breaches of sections 3, 4, 4AA, and possession of a commercial quantity without authorisation, the Act’s penalty provisions apply. Those penalties are not set out in the regulation but can include significant fines, forfeiture of fish and gear, and even imprisonment for serious offences (the Act’s higher penalties).

Fisheries Act 2000. The regulation is made under this Act and gives substance to several of its sections. Section 3 gives effect to section 37(1) of the Act by prescribing the number of fish. Section 4 gives effect to section 45(1) by prescribing the quantity. Section 4AA implements section 48 by setting the aquaculture capacity limit. Section 4A defines “commercial quantity” in the Act’s dictionary. Section 5 activates a power under section 17 of the Act to declare hoop nets as permissible gear. The regulation does not override the Act; it fills in numbers left blank. If the Act is amended to change these references, the regulation may become inoperative.

Criminal Code 2002 (ACT). Section 2A applies chapter 2 of the Criminal Code to all offences under the regulation. This imports standard principles: the elements of offences, burden of proof (prosecution proves beyond reasonable doubt physical elements, accused proves any defence on balance of probabilities), and the distinction between strict liability and other fault elements. For strict liability offences, the Code provides that the defence of mistake of fact is available. This is critical for section 5, where the prosecution does not need to prove fault but the accused can avoid liability by showing an honest and reasonable mistake.

Legislation Act 2001. The regulation is a subordinate law under the Legislation Act. That Act governs its making, commencement, republication, and interpretation. Section 133 of the Legislation Act defines “penalty unit” for offences in subordinate laws, which sets the dollar value at $160 (individual) and $810 (corporation) at republication date. Section 127 of the Legislation Act gives notes explanatory status only. The regulation’s republication includes endnotes and editorial changes under part 11.3.

Other ACT laws. The regulation does not interact directly with other ACT laws, but related statutes may affect fishers. For example, the Nature Conservation Act 2014 may list protected fish species; possession of those may be separately prohibited. The Water Resources Act 2007 may affect aquaculture operations regarding water extraction. The Planning and Development Act 2007 may require development approval for aquaculture tanks. These interactions are not mentioned in the regulation but arise from the broader legal framework.

Commonwealth laws. The regulation applies only within ACT waters (generally the territory’s rivers, lakes, and ponds). For fisheries in Commonwealth waters (e.g., offshore or across borders), the Commonwealth Fisheries Management Act 1991 may apply. The ACT regulation does not purport to apply outside the territory. Transporting fish across the border into New South Wales will engage NSW fisheries laws. The commercial quantity definition in section 4A could be used as evidence of intent to supply under other laws.

No interaction with native title or customary fishing. The regulation does not mention traditional fishing rights or native title. Any such rights would need to be established under the Fisheries Act or other legislation. The zero bag limit would apply equally, unless an exemption exists under the Act.

The regulation was originally notified as the Fisheries Regulations 2001 on 30 August 2001 and commenced that day. It was renamed under the Legislation Act 2001 to the Fisheries Regulation 2001 at a later republication.

The first substantive amendment came from the Statute Law Amendment Act 2002 (A2002-30), which substituted sections 3 and 4 to set the prescribed number and quantity at zero. Before that amendment, the regulation likely had different numbers, though the source does not show the original text. This 2002 amendment effectively imposed a complete ban on taking and possessing fish, a major shift from whatever previous limits existed.

The Fisheries Amendment Regulations 2004 (No 1) (SL2004-2) omitted sections 6, 7, 8 and the schedule on infringement notice offences and penalties. This removed the administrative enforcement mechanism, leaving only court prosecution. The reasons are not stated in the source, but it may reflect a policy decision to rely on the Act’s enforcement provisions or to avoid duplication.

The Criminal Code Harmonisation Act 2005 (A2005-54) inserted sections 2 and 2A to apply the Criminal Code to offences. It also substituted section 5 (hoop nets) to clarify the strict liability element and the physical method of use. Before 2005, section 5 may have been different.

The Fisheries Amendment Act 2006 (A2006-48) inserted section 4A to define commercial quantity for priority species. The definition originally applied to those species, and the heading was later amended by the Statute Law Amendment Act 2007 (No 2) (A2007-16) from “Commercial quantity” to “Commercial quantity,Act, dict, def commercial quantity” for clarity.

The most recent amendment, the Fisheries Legislation Amendment Act 2019 (A2019-27), inserted section 4AA (aquaculture capacity limit of 10 000 litres) and amended section 4A to update the species list or definitions. It also renumbered paragraphs. This amendment commenced on 18 November 2019, which is the republication date.

The regulation has had eight republications, with the last earlier republication (R7) covering 11 July 2007 to 17 November 2019. The regulation is therefore infrequently amended, suggesting low policy priority for ACT fisheries.

The source material contains no references to court cases. The regulation itself is a subordinate instrument, and litigation concerning it would likely arise as part of prosecutions under the Fisheries Act. No reported decisions are listed in the endnotes, and none are known from standard legal databases for ACT fisheries matters during this period. This is consistent with low enforcement activity under the regulation.

Prosecutions for breaches of sections 3, 4, 4AA would be brought under the Fisheries Act, not the regulation. Any case law would therefore cite the Act. The only regulation-specific offence is section 5 (hoop nets), but no cases are publicly reported.

The strict liability nature of the hoop net offence may lead to occasional prosecutions, but the small number of hoop net users and the limited geographic scope suggest minimal litigation. The absence of infringement notices also means no administrative review cases.

One potential area for litigation would be the interpretation of “prescribed number” and “prescribed quantity” where a person holds a permit under the Act. The regulation does not address how the zero limit interacts with permits. A permit might override the regulation, but that is a matter of Act interpretation. No cases have tested this.

The aquaculture capacity limit is new (2019) and unlikely to have been litigated yet. Questions could arise about whether “total water capacity” includes sump tanks, settlement ponds, or water treatment systems, or how to measure capacity of irregularly shaped ponds.

The zero bag limit is absolute and includes possession, not just taking. Many fishers assume that catch and release is exempt, or that possession of fish in a freezer from a previous lawful catch is fine. The regulation does not distinguish. Possessing any fish, even dead and frozen, is a breach of section 4 unless authorised. This could affect people who moved to the ACT with a home freezer full of fish from another state.

No allowance for stocked or introduced species. The regulation applies to “fish” as defined in the Fisheries Act, which covers all fish species. Even European carp, redfin, or trout that are stocked in urban lakes for recreational fishing are covered. The zero bag limit means that even if the ACT Government stocks lakes for fishing, no one may take them without a permit. This can lead to conflict between management intentions and the regulation.

The aquaculture capacity limit of 10 000 litres is very small. For comparison, a standard shipping container is about 33,000 litres. A backyard swimming pool holds 30,000-80,000 litres. The limit caps commercial production at a level that may not be viable. It also does not specify how to treat multi-level tanks, raceways, or recirculating systems that use the same water repeatedly. Does “capacity” mean total water volume at any one time, or the maximum volume the system can hold? The regulation does not define it, creating interpretive risk.

Commercial quantity thresholds are low. Possession of 20 Murray Cod (even small ones) is a commercial quantity, regardless of whether they were caught elsewhere lawfully. A recreational fisher from NSW who crosses into the ACT with a cooler of 20 Murray Cod could be charged with possessing a commercial quantity without a licence. The threshold for abalone (100) is also low; a diver who collects abalone in NSW and returns to the ACT could be at risk.

Hoop net use is prohibited unless the Minister declares hoop nets permissible. Section 5 only applies if a declaration is made under the Act. As of the republication date, there is no indication that such a declaration has been made. Therefore hoop nets are effectively banned entirely, not just restricted in use. A person using a hoop net in ACT waters may be committing an offence under the Act for using prohibited gear, regardless of the regulation.

Strict liability means no excuse of ignorance. For the hoop net offence, a person who uses a hoop net in any manner other than vertical hand lowering and raising is guilty, even if they did not know the rule. This is a trap for tourists or new residents.

No infringement notices. Enforcement can only be through court prosecution. This means even a minor technical breach (e.g., possessing 1 gram of fish) must go to court, which is costly and time-consuming. The practical effect may be that minor breaches go unenforced, creating legal risk but low actual risk of prosecution.

The regulation does not provide for exemptions. All exemptions must come from the Fisheries Act (e.g., scientific permits, traditional fishing rights, emergency authorisation). The regulation is a blunt instrument.

Compliance with the Fisheries Regulation 2001 is straightforward in theory but requires careful attention to whether you have any authority under the Fisheries Act.

Do not take any fish from ACT waters without a specific permit. The prescribed number is zero, so any taking is unlawful. If you wish to fish, you must obtain a licence, permit, or other authorisation under the Fisheries Act. There is no general recreational fishing licence in the ACT that overrides the zero bag limit; the Act would need to provide a specific exemption. Check the current terms of any such authorisation; it may specify a bag limit.

Do not possess any fish in the ACT unless you hold a permit that authorises possession, or unless the fish were lawfully taken outside the ACT and are being transported through the ACT with no intent to possess within the territory. However, the regulation does not include a transit defence. Possession of fish by a traveller passing through the ACT could technically be an offence. To minimise risk, avoid crossing the ACT border with fish. If you must, keep records of lawful origin (e.g., receipt from a NSW fish market, or a recreational fishing licence showing where and when caught). But note: section 4 prescribes 0kg of fish, so any possession is prima facie unlawful.

If you hold an aquaculture licence, measure all water-holding structures. The capacity limit of 10 000 litres is total water capacity, not just operational water. Include all tanks, ponds, raceways, and sumps. If using a recirculating system, measure the highest water volume the system can contain. If you exceed 10 000 litres, you are in breach. Obtain a licence variation or reduce capacity.

If you intend to use a hoop net, first confirm that the Minister has declared hoop nets as permissible gear under section 17 of the Fisheries Act. This is not a matter that appears in the regulation itself; check the ACT legislation register for any notifiable instrument making such a declaration. If no declaration exists, using a hoop net is illegal regardless of method. If a declaration exists, then you must use the hoop net only by lowering it into the water and drawing it out vertically by hand. Do not set the net horizontally, leave it unattended, or use a mechanical retrieval system. The net must be retrieved by hand each time.

Understand the commercial quantity thresholds. Even if you are not a commercial fisher, possession of 20 Murray Cod, 20 rock lobsters, or 100 abalone in the ACT will be treated as possession of a commercial quantity. This triggers offences under the Fisheries Act. Avoid possessing such numbers even temporarily.

Keep records of any authorisations. If you hold a permit or licence that allows you to take or possess fish, keep a copy on your person or in your vehicle. Enforcement officers may ask to see it. The regulation does not require a permit to be carried, but the Fisheries Act likely does.

Seek legal advice for any aquaculture development. The 10 000 litre limit may be too small for many commercial ventures. Options include applying for an amendment to the regulation, or locating the aquaculture operation in NSW. The ACT Government may issue a licence with conditions that purport to override the limit, but the regulation is clear: the prescribed capacity limit is 10 000 litres. A licence condition inconsistent with the regulation may not be valid. Clarify with the ACT regulator.

Monitor amendments. The regulation is rarely amended, but when it is, the changes may directly affect your activities. The ACT legislation register provides free alerts.

Do not rely on the absence of infringement notices as leniency. The repeal of infringement notice provisions means that any breach, no matter how minor, must be prosecuted in court. The risk of a criminal record is real. Compliance must be strict.