Living Marine Resources Management Act 1995

The Act affects every person who catches, transports, processes, or sells fish from Tasmanian waters for commercial purposes. Commercial fishers must hold a fishing licence and, in managed fisheries, a quota or access entitlement. Marine farmers must hold a marine farming licence and comply with the applicable marine farming development plan. Fish processors and fish handlers each require their own licence under Divisions 3 and 4 of Part 4.

Recreational fishers are also subject to the Act. Bag limits, size restrictions, and gear prohibitions apply through rules made under Division 1 of Part 3. Licensing requirements do not generally apply to recreational fishing for non-prescribed species, but the Act contains a recreational rock lobster TAC regime.

Aboriginal persons engaged in Aboriginal activities, defined in section 3 as non-commercial use of sea resources and related artefact manufacture, are not subject to the normal licensing requirements (section 10(2)(b)).

Exporters and importers of fish are subject to the fish disease and importation rules in Division 4 of Part 5, which control the introduction of non-endemic species and the movement of potentially diseased stock.

Commonwealth marine reserve managers and the Commonwealth Department of the Environment interact with the Act through the joint management framework in Part 7 and through the referral obligations under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 for actions that may affect matters of national environmental significance.

Licence and quota holders must comply with the conditions of their licence, fish only in the fishery and area authorised, respect TAC limits, and not exceed their individual quota. They must not transfer licences or quotas except in the manner permitted by the Act and any applicable management plan.

Masters of fishing vessels carry primary liability for offences committed on or by use of their vessel (section 210). If a crew member commits an offence, the master is taken to have committed that offence unless they can establish the defences in section 210(2): no knowledge, reasonable steps to prevent, and steps to minimise impact.

Employers similarly bear responsibility for offences committed by employees in the course of their employment (section 211), subject to the same defences.

Record-keeping is a significant obligation. Licence holders must maintain catch records, logbooks, and returns as required by management plans and the rules under Part 6. The electronic record system approved under section 145A may be required for certain fisheries. Scientific observers appointed under Division 3 of Part 6 must be accommodated on vessels when required.

Supervisors for marine farming must be approved by the Secretary (section 88) and are accountable for activities carried out under the licence. A supervisor may be responsible for activities under more than one licence.

Notification obligations include reporting fish disease to the Secretary (Part 10, Division 1) and complying with requirements about importing fish that may carry disease.

The Minister holds the broadest discretionary powers. The Minister may make or revoke management plans (sections 35 and 58), set or vary TACs, grant exemptions from the Act (section 11), prohibit fishing in any fishery or area, and enter into agreements with the Commonwealth and other states about joint fisheries management under Part 7.

The Secretary administers the licensing system. The Secretary may grant, refuse, suspend, cancel, or attach conditions to licences. When licence holders no longer meet eligibility requirements (section 76), the Secretary must cancel affected licences. The Secretary may authorise persons to prosecute offences (section 207) and appoint fisheries officers.

Fisheries officers may, under Part 8: board and search vessels; enter premises used for fish handling or storage; require production of licences; seize fish, apparatus, records, and vessels suspected of involvement in offences; take samples; and arrest persons without warrant in circumstances set out in Division 7. Search warrants may be obtained from magistrates for premises where evidence of an offence may be found.

The Marine Resources Protected Area regime in Division 2 of Part 5 allows the Minister to declare areas with heightened habitat protections, restricting activities that could damage marine habitats or protected species within those areas.

Habitat protection plans under Division 3 of Part 5 are another discretionary tool, enabling the Minister to impose specific habitat conditions across a fishery or area.

The Act operates a multi-tier penalty regime.

Summary offences under Parts 8 and 9 carry penalties expressed in penalty units. Fishing without a licence, exceeding quota, and related everyday compliance failures are typically summary offences prosecuted in a court of petty sessions. The limitation period for complaints is five years from the date of the offence (section 208), significantly longer than the ordinary limitation period under the Justices Act 1959.

Infringement notices may be served by fisheries officers or persons authorised by the Secretary for prescribed offences (section 234). Notices may cover up to three offences. Payments go into the Public Account under the Monetary Penalties Enforcement Act 2005 framework.

Indictable offences are created in Division 9 of Part 9. These include unlawful possession of fish (section 264) and trafficking in fish (section 264A). Trafficking captures not only direct taking but also processing, selling, concealing, transporting, or otherwise dealing in fish that were unlawfully taken or possessed. Indictable offences may be dealt with summarily by consent, with a maximum summary penalty of 5,000 penalty units or two years' imprisonment. On indictment, the penalty is higher.

Special penalties under Division 10 impose additional penalties calculated by reference to the quantity or value of fish, apparatus, or illegal proceeds involved. For rock lobster pot offences in non-special protected areas, section 268 imposes a mandatory special penalty of two penalty units per unauthorised pot used or possessed.

Demerit points provide a civil consequence alongside criminal penalties. Conviction for any fisheries offence triggers the allocation of demerit points to the convicted person, the licence, and the fishing certificate (section 242). The number of points equals the number of penalty units imposed by way of fine plus a multiplier for any imprisonment (suspended or actual). Accumulating excessive demerit points leads to mandatory or discretionary suspension and cancellation of licences through the control orders regime in Division 7 of Part 9.

Forfeiture of fish, apparatus, vehicles, and vessels used in an offence is also available under Division 4 of Part 9.

Management plan creation follows a prescribed process under Division 2 of Part 3. The Secretary prepares a draft and gives notice to affected licence holders. Affected persons may make representations. After receiving advice, the Minister makes the plan by order.

Management plan review must be conducted periodically as prescribed. The Minister, on receiving advice from the Secretary, may amend a plan following further consultation (Division 3 of Part 3). Revocation under section 58 is available where biological, economic, or other factors make fishing in the fishery impossible, difficult, or unsafe.

Licence applications are processed by the Secretary. Decisions on grant, refusal, condition, suspension, or cancellation are subject to review by the Tasmanian Civil and Administrative Tribunal (TCAT, formerly the Magistrates Court), following internal review procedures under Division 3 of Part 10.

Demerit point consequences are triggered once the number of points allocated to a licence or person reaches the threshold prescribed for the relevant category of licence or fishery. Notices must be served before suspension or cancellation takes effect.

Prosecution time limits: five years under section 208, overriding the shorter period in the Justices Act 1959.

Scientific observer placement: the Secretary may require a licence holder to carry a scientific observer on a vessel for a period specified in the requirement.

Commonwealth EPBC Act: The most significant external interaction. Finfish farming expansion in Tasmanian waters may constitute a controlled action under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) where it could affect matters of national environmental significance such as threatened species (including the Maugean skate) or Commonwealth marine reserves. The Minister for the Environment (Cth) decides whether referrals are required and what conditions attach to approved actions. Tasmanian operators who expand marine farming without necessary EPBC referral face Commonwealth enforcement, not just Tasmanian penalties. Commercial fishing activities that enter Commonwealth marine reserve zones may breach section 354 of the EPBC Act independently of Tasmanian licensing status.

Aboriginal Lands Act 1995 (Tas): Defines who is an "Aborigine" for the purpose of the exemption for Aboriginal activities in section 10.

Justices Act 1959 (Tas): The ordinary procedural statute for summary proceedings, modified by section 208's five-year limitation period for fisheries offences.

Monetary Penalties Enforcement Act 2005 (Tas): Governs the form and enforcement of infringement notices under section 234.

Marine Farming Planning Act 1995 (Tas): Provides the planning framework for marine farming development plans, which interacts with marine farming licences under Part 4 of the Act.

Native Title Act 1993 (Cth): Section 10(2)(a) preserves native title rights and interests that may affect access to living marine resources.

Corresponding laws of other states and the Commonwealth are taken into account in achieving the Act's purposes (section 7(1)(ba)), and Part 7 enables the formal joint management of fisheries that straddle state boundaries or Commonwealth waters.

Master liability is automatic: The master of a fishing vessel is taken to have committed any offence committed on that vessel (section 210(1)). The master must affirmatively prove lack of knowledge, inability to prevent the offence, and steps taken to minimise impact. Simply not being present when the offence occurred does not establish the defence.

Employer liability is similarly strict: Employers bear the same automatic liability for employee offences under section 211. This catches vessel owners who engage contractors as well as direct employers.

Trafficking definition is broad: Section 264A captures everyone in the supply chain of unlawfully taken fish, including processors and buyers who receive fish from others, even if they did not personally take the fish.

Special penalties stack: In rock lobster and certain other fisheries, a court must impose a special penalty per pot or apparatus unit in addition to any other fine. These penalties accumulate with demerit points, making a single apparent summary offence potentially very costly.

Demerit points attach to licences, not just persons: A conviction allocates points to the person and to the licence. A person who has sold a licence may still have points allocated to the certificate that authorised the licence, affecting future entitlements.

EPBC referral obligations are separate: Holding a valid Tasmanian marine farming licence does not insulate an operator from Commonwealth EPBC Act liability if an expansion or changed operation triggers a controlled action assessment. Failure to refer can result in Commonwealth stop orders and civil penalties.

Five-year prosecution window: Fisheries investigations are often long-running. The extended limitation period in section 208 means that conduct discovered years after it occurred can still be prosecuted.

Electronic records: Where an approved electronic record system is prescribed for a fishery, failure to use it can constitute a separate offence from the underlying failure to report a catch.

Rock lobster quota compliance: A commercial fisher holds a rock lobster licence and a quota share worth 500 kg for the season. The fisher continues taking rock lobster after reaching 500 kg, arguing they were setting pots before the TAC closed. The fisher has committed an offence under the licence conditions and the management plan. The master of the vessel is also liable. A conviction would generate a fine and demerit points allocated to the licence. The special penalties regime under Division 10 could further increase the financial impact based on the weight of fish taken over quota.

Marine farming expansion referral: A Tasmanian salmon farmer wants to increase the number of licensed sea cages at a Macquarie Harbour site. The expansion is authorised under the Marine Farming Planning Act 1995, and the Secretary approves the new marine farming licence conditions. However, the scale of the expansion means there is a real chance the Maugean skate population could be affected. The operator must refer the proposal to the Commonwealth Minister under section 68 of the EPBC Act. Proceeding without referral risks both Commonwealth enforcement action and a judicial review challenge of the kind pursued in Huon Aquaculture Group Limited v Minister for the Environment [2018] FCA 1011.

Recreational abalone limit: A recreational diver takes abalone in excess of the bag limit set by rules under Division 1 of Part 3. The diver is stopped by a fisheries officer who boards a tinny under Part 8 powers. The officer may serve an infringement notice without initiating court proceedings. Alternatively, if the quantity suggests commercial intent, a prosecution may follow, and possession of fish above the recreational limit without a commercial licence is an offence.

Fish trafficking prosecution: A fish processor receives a shipment of abalone that was unlawfully taken. The processor was aware the supplier's licence had been suspended. Under section 264A, the processor has trafficked in fish without lawful excuse. The processor faces both the indictable trafficking charge and, if the processor was also an employer, potential employer liability for any offences committed by staff in handling the stock.