Part 1 Preliminary

Division 1 Definitions and applications

1 Short title

This Act may be cited as the Living Marine Resources Management Act 1995 .

2 Commencement

The provisions of this Act commence on a day or days to be proclaimed.

3 Interpretation

In this Act –

[Section 3 Amended by No. 33 of 2000, s. 4, Applied:16 Jun 2000] abalone quota unit means one-3500th of the total allowable catch set for the commercial abalone fishery for a quota period;

[Section 3 Amended by No. 7 of 2007, s. 4, Applied:30 Apr 2007]

[Section 3 Amended by No. 7 of 2007, s. 4, Applied:30 Apr 2007] Aboriginal activity means –

(a) the non-commercial use of the sea and its resources by Aborigines; and

(b) the taking of prescribed fish by Aborigines for the manufacture, by Aborigines, of artefacts for sale; and

(c) manufacturing of the kind referred to in paragraph (b) ;

[Section 3 Amended by No. 25 of 2005, s. 24, Applied:21 Jul 2005]

[Section 3 Amended by No. 25 of 2005, s. 24, Applied:21 Jul 2005] Aborigine means an Aboriginal person within the meaning of the Aboriginal Lands Act 1995 ;

[Section 3 Amended by No. 7 of 2007, s. 4, Applied:30 Apr 2007] adult means a natural person who has attained the age of 18 years;

apparatus includes –

(a) any net, dilly, crab pot, rock lobster pot, rock lobster ring, rake, spade, dredge, implement, gear, equipment, contrivance, device, trap, pitch fork, spear or spear gun used, or capable of being used, in connection with fishing; and

(b) any hook, rod or line used, or capable of being used, for fishing; and

(c) any buoy, float, raft or dredge used, or capable of being used, in connection with fishing; and

(d) anything else used, or capable of being used, in connection with fishing;

[Section 3 Amended by No. 18 of 2021, s. 236, Applied:05 Nov 2021]

[Section 3 Amended by No. 18 of 2021, s. 236, Applied:05 Nov 2021] Appeal Tribunal means the Tasmanian Civil and Administrative Tribunal;

approved means approved by the Secretary;

[Section 3 Amended by No. 24 of 2021, s. 4, Applied:31 Mar 2023] approved electronic record system means the electronic record system approved under section 145A ;

aquatic observation means an activity on, in or under water relating to the observation of fish and their habitat;

arrangement means an arrangement under Part 7 ;

authorisation means a permit, licence or other authority permitting a person to undertake an activity;

Australian fishing zone means the Australian fishing zone as defined in the Commonwealth Act;

coastal waters means –

(a) any part of the territorial sea of Australia adjacent to the State within 3 nautical miles of the baseline by reference to which the territorial limits of Australia are defined for the purposes of international law; and

(b) the marine or tidal waters on the landward side of any territorial sea of Australia adjacent to the State but not within the limits of the State;

Commonwealth Act means the Fisheries Management Act 1991 of the Commonwealth or an Act enacted in substitution of that Act;

Commonwealth Minister means the Minister administering the Commonwealth Act and any other Minister exercising powers and performing functions under that Act;

commercial purposes means the purpose of sale, processing, manufacture, marine farming or any other purpose that is directed to gain or reward;

commercially protected fish means fish referred to in section 100 ;

consult includes to seek information, advice, opinion and representation;

control order means an order referred to in Division 7 of Part 9 ;

conviction includes –

(a) a plea of guilty; or

(b) a finding by a court that a person committed an offence for which the person was charged even though a conviction was not recorded; or

(c) a finding of guilty by a court even though a conviction is not recorded;

[Section 3 Amended by No. 45 of 1997, s. 4, Applied:13 Nov 1997] corresponding law means –

(a) the Commonwealth Act; and

(b) the Export Control Act 1982 of the Commonwealth; and

(c) a law of another State or a Territory of the Commonwealth that relates to the management or protection of living marine resources;

deed of agreement means a deed of agreement referred to in section 99 ;

demerit point means a demerit point referred to in Division 6 of Part 9 ;

document includes –

(a) any tape, disc or other device or medium on which information is recorded or stored mechanically, photographically, electronically or otherwise; and

(b) [Section 3 Amended by No. 80 of 2001, Sched. 1, Applied:01 Jul 2002] anything on which any material has been recorded in a manner that, by the use of any device or instrument, it may be reproduced in a manner suitable for human perception;

draft management plan means a draft management plan referred to in Division 2 of Part 3 ;

examine includes count, measure, weigh and grade;

[Section 3 Amended by No. 45 of 1997, s. 4, Applied:13 Nov 1997] export means to transport beyond State waters;

[Section 3 Amended by No. 46 of 2017, s. 28, Applied:04 Dec 2017] finfish farming has the same meaning as it has in the Environmental Management and Pollution Control Act 1994 ;

fish means fish referred to in section 4 ;

fish habitat means an area of the natural environment of fish which has particular importance to the life cycle of fish;

fish hatchery means a place or premises where fish are bred for marine farming or sale or for placement or introduction into State waters;

fish processing licence means a fish processing licence in force under Part 4 ;

[Section 3 Amended by No. 42 of 1998, s. 4, Applied:18 Dec 1998]

[Section 3 Amended by No. 42 of 1998, s. 4, Applied:18 Dec 1998] fisheries officer means –

(a) the Secretary; and

(b) a police officer; and

(c) a person appointed as a fisheries officer under section 164 ; and

(d) an officer referred to in section 171 ;

fishery means anything referred to in section 6 ;

[Section 3 Amended by No. 3 of 2022, s. 4, Applied:18 Mar 2022] fishing includes any of the following activities, other than an activity carried out under the authority of a marine farming licence:

(a) searching for, attempting to take, catching, taking or harvesting fish;

(b) any other activity which may reasonably be expected to result in catching, taking or harvesting fish;

(c) [Section 3 Amended by No. 3 of 2022, s. 4, Applied:18 Mar 2022] an activity under an arrangement that is necessary for an activity under paragraph (a) or (b) to occur under that arrangement;

[Section 3 Amended by No. 45 of 1997, s. 4, Applied:13 Nov 1997]

[Section 3 Amended by No. 45 of 1997, s. 4, Applied:13 Nov 1997] fishing body means a body corporate or an association certified as a fishing body under section 25 ;

fishing certificate means a fishing certificate referred to in section 63 ;

fishing licence means a fishing licence in force under Part 4 ;

fishing vessel means a vessel that is equipped for, or used for, fishing or transporting fish for a commercial purpose;

foreign boat means a foreign boat as defined in the Commonwealth Act;

habitat protection plan means a plan approved under Division 3 of Part 5 ;

handling licence means a handling licence in force under Part 4 ;

[Section 3 Amended by No. 45 of 1997, s. 4, Applied:13 Nov 1997] import means to transport from beyond State waters to within State waters;

infringement notice means an infringement notice referred to in Division 5 of Part 9 ;

inland waters means waters within the meaning of the Inland Fisheries Act 1995 ;

introduced fish means –

(a) fish which were brought into the State; and

(b) any progeny or subsequent progeny of those fish unless prescribed to be otherwise;

Joint Authority means a Joint Authority established under the Commonwealth Act of which the Minister is a member;

Joint Authority fishery means a fishery under the management of a Joint Authority;

licence means any licence specified in Part 4 ;

licensee means a person holding a licence;

living marine resources means fish and their environment;

management plan means a management plan approved under Part 3 ;

managing authority, in relation to a marine resources protected area, means –

(a) the Minister; or

(b) a body or association declared to be the managing authority under section 115 ;

marine farm means an area to which a marine farming licence relates within which marine farming is carried out;

marine farming includes the farming, culturing, enhancement or breeding of fish for trade, business or research;

marine farming development plan means a marine farming development plan approved under Part 3 of the Marine Farming Planning Act 1995 ;

marine farming licence means a marine farming licence in force under Part 4 ;

marine resources protected area means an area established as a marine resources protected area under Part 5 ;

marine resources protected area management plan means a marine resources protected area management plan approved under Part 5 ;

master, in relation to a vessel, means the person having command, charge or management of the vessel;

[Section 3 Amended by No. 56 of 1997, s. 4, Applied:12 Dec 1997] [Section 3 Amended by No. 7 of 2007, s. 4, Applied:30 Apr 2007]

native title rights and interests means native title rights and interests recognised under the Native Title Act 1993 of the Commonwealth;

non-exploitative use of fish includes the viewing, photographing or feeding of fish and the feelings associated with knowing fish are in State waters but does not include the removal, killing or injuring of fish;

noxious fish means –

(a) any fish of a species prescribed as noxious fish; or

(b) any fish declared to be noxious fish under section 127 ;

noxious matter means any matter which is harmful to fish or fish habitat;

objectives of resource management means the objectives set out in Schedule 1 ;

permit means a permit under Division 2 of this Part;

place includes –

(a) any land whether covered by water or not; and

(b) any building or structure, whether permanent or temporary; and

(c) any vessel, aircraft, vehicle or trailer; and

(d) any tent, camp or caravan;

[Section 3 Amended by No. 7 of 2007, s. 4, Applied:30 Apr 2007]

[Section 3 Amended by No. 7 of 2007, s. 4, Applied:30 Apr 2007] possession – see section 6A ;

protected fish means fish declared to be protected fish under section 135 ;

[Section 3 Amended by No. 7 of 2007, s. 4, Applied:30 Apr 2007]

[Section 3 Amended by No. 7 of 2007, s. 4, Applied:30 Apr 2007] process, in relation to any fish, means to –

(a) void or purge the fish; or

(b) break up, cut up, skin or fillet the fish; or

(c) shell or shuck the fish; or

(d) dry, cure, smoke or cook the fish; or

(e) chill the fish (either dead or alive); or

(f) freeze the fish; or

(g) pack the fish (either dead or alive); or

(h) can the fish; or

(i) treat the fish by any other means; or

(j) hold the fish in readiness for processing by any means;

public authority means –

(a) a person or body established or constituted by an Act for a public purpose; and

(b) a council;

public notice means a notice which is published in the Gazette and a daily newspaper circulating generally in the State;

purchase includes –

(a) take in exchange; and

(b) agree or offer to take in exchange; and

(c) receive, accept or take delivery under an agreement to take in exchange;

[Section 3 Amended by No. 33 of 2000, s. 4, Applied:16 Jun 2000] quota period means –

(a) in relation to the commercial abalone fishery, a period of one year; and

(b) in relation to any other fishery, the period during which a total allowable catch may be taken;

[Section 3 Amended by No. 7 of 2007, s. 4, Applied:30 Apr 2007]

[Section 3 Amended by No. 7 of 2007, s. 4, Applied:30 Apr 2007] recreational fishing means fishing carried out other than –

(a) for a commercial purpose; or

(b) as part of an Aboriginal activity;

regulations means regulations made under this Act;

repealed Act means the Fisheries Act 1959 ;

[Section 3 Amended by No. 56 of 1997, s. 4, Applied:12 Dec 1997] [Section 3 Amended by No. 7 of 2007, s. 4, Applied:30 Apr 2007] [Section 3 Amended by No. 56 of 1997, s. 4, Applied:12 Dec 1997] [Section 3 Amended by No. 7 of 2007, s. 4, Applied:30 Apr 2007] [Section 3 Amended by No. 56 of 1997, s. 4, Applied:12 Dec 1997] [Section 3 Amended by No. 7 of 2007, s. 4, Applied:30 Apr 2007] [Section 3 Amended by No. 56 of 1997, s. 4, Applied:12 Dec 1997] [Section 3 Amended by No. 7 of 2007, s. 4, Applied:30 Apr 2007] [Section 3 Amended by No. 56 of 1997, s. 4, Applied:12 Dec 1997] [Section 3 Amended by No. 7 of 2007, s. 4, Applied:30 Apr 2007]

[Section 3 Amended by No. 7 of 2007, s. 4, Applied:30 Apr 2007] rock lobster quota unit, for a quota period, means a unit that is an entitlement to one 10 507th of the total allowable catch set for the commercial rock lobster fishery for that quota period;

sale includes –

(a) [Section 3 Amended by No. 7 of 2007, s. 4, Applied:30 Apr 2007] any method of disposition for valuable consideration or in the expectation of receiving any kind of reward; and

(b) barter; and

(c) the disposition to an agent for sale on consignment; and

(d) offering or attempting to sell; and

(e) receiving or having in possession for sale; and

(f) exposing for sale; and

(g) sending or delivering for sale; and

(h) causing or permitting to be sold, offered or exposed for sale; and

(i) [Section 3 Amended by No. 7 of 2007, s. 4, Applied:30 Apr 2007] disposal by way of raffle, lottery or other game of chance; and

(j) [Section 3 Amended by No. 7 of 2007, s. 4, Applied:30 Apr 2007] resale;

Secretary means the Secretary of the Department;

[Section 3 Amended by No. 7 of 2007, s. 4, Applied:30 Apr 2007]

size, in relation to fish, includes prescribed measurement of length or breadth, or of other linear measurement or of weight;

special penalty means a special penalty referred to in Division 10 of Part 9 ;

species means a species, subspecies, hybrid, variant, race, mutation or separate population of any fish;

[Section 3 Amended by No. 24 of 2021, s. 4, Applied:31 Mar 2023] structure includes a platform, pontoon, jetty, building or any other thing used in connection with fishing or marine farming;

[Section 3 Amended by No. 24 of 2021, s. 4, Applied:31 Mar 2023] suitable person  – see section 76B ;

supervisor means a person referred to in section 89 ;

[Section 3 Amended by No. 24 of 2021, s. 4, Applied:31 Mar 2023]

total allowable catch means the total quantity of a kind or species of fish that may be taken from a fishery;

[Section 3 Amended by No. 7 of 2007, s. 4, Applied:30 Apr 2007]

[Section 3 Amended by No. 7 of 2007, s. 4, Applied:30 Apr 2007] take, in relation to fish, includes any of the following activities (except where the activity is authorised under a marine farming licence or fish processing licence):

(a) capture, carry away, catch, collect, destroy, dredge or fish for, gather, kill, raise, remove or in any other way obtain the fish (whether from water, land under water or the foreshore);

(b) land the fish from a vessel or in any other way bring the fish ashore;

(c) transfer the fish from one fishing vessel to another fishing vessel;

(d) attempt, cause or permit an act referred to in paragraph (a) , (b) or (c) ;

vary includes substitute, add or delete;

vehicle includes any vehicle designed to move or be moved on one or more wheels or revolving runners;

vessel includes –

(a) a boat, ship, craft, hovercraft, aircraft or platform and any trailer used to transport any of them; and

(b) a vehicle that is capable of use in or on water whether floating, partly submersible or submersible and whether or not self propelled;

waters include –

(a) the bed and subsoil under any waters; and

(b) the airspace above any waters;

waters relevant to the State means –

(a) the coastal waters of the State; and

(b) the Australian fishing zone.

[Section 3 Amended by No. 56 of 1997, s. 4, Applied:12 Dec 1997] [Section 3 Amended by No. 7 of 2007, s. 4, Applied:30 Apr 2007] [Section 3 Amended by No. 56 of 1997, s. 4, Applied:12 Dec 1997] [Section 3 Amended by No. 7 of 2007, s. 4, Applied:30 Apr 2007] [Section 3 Amended by No. 56 of 1997, s. 4, Applied:12 Dec 1997] [Section 3 Amended by No. 7 of 2007, s. 4, Applied:30 Apr 2007]

4 Meaning of fish

(1)  Fish is any aquatic organism of any species, whether dead or alive, which, in the normal course of events, spends part or all of its life in the aquatic environment.

(2)  Fish includes –

(a) bony fishes of the class Osteichthyes; and

(b) sharks, rays, lampreys and other cartilaginous fishes of the classes Chondrichthyes and Agnatha; and

(c) aquatic reptiles; and

(d) sea squirts and other aquatic chordates; and

(e) [Section 4 Subsection (2) amended by No. 45 of 1997, s. 5, Applied:13 Nov 1997] sea-stars, sea-urchins, sea-cucumbers and other echinoderms; and

(f) lobsters, crabs, prawns and other aquatic arthropods; and

(g) bristle worms, fan worms, arrowworms and other aquatic annelids, chaetognaths, nematodes, nemerteans and platyhelminths; and

(h) squid, oysters, abalone and other aquatic molluscs and brachiopods; and

(i) [Section 4 Subsection (2) amended by No. 45 of 1997, s. 5, Applied:13 Nov 1997] seafans, sponges, corals, jelly-fish, salps and other bryozoans, poriferans, coelenterates and ctenophores; and

(j) protozoans and bacteria; and

(k) seagrass, seaweed and other aquatic vascular plants, algae, diatoms, euglenoids and any other marine plants.

(3)  A reference to fish includes –

(a) the eggs, spat, spawn, seeds, spores, larvae or other offspring of an aquatic organism; and

(b) a shell containing fish or any other part derived from an aquatic organism; and

(c) raw, cooked, dismembered, frozen, preserved, salted or otherwise processed fish; and

(d) any other saltwater product declared by the regulations to be a fish for the purpose of any provision of this Act.

(4)  Fish does not include –

(a) a whale as defined in the Whales Protection Act 1988 ; or

(b) any aquatic mammal or aquatic bird; or

(c) [Section 4 Subsection (4) amended by No. 6 of 2009, s. 4, Applied:27 Apr 2009] [Section 4 Subsection (4) amended by No. 3 of 2022, s. 5, Applied:18 Mar 2022] freshwater fish as defined in the Inland Fisheries Act 1995 , other than –

(i) freshwater fish that –

(A) is of a kind or species declared not to be freshwater fish in an order made and in force under section 4(1)(b) of that Act; and

(B) is in, or has been taken from, State waters that are not excepted waters as defined in that Act; or

(ii) freshwater fish that –

(A) is of a kind, or species, of fish that forms a fishery or part of a fishery to which an arrangement applies; and

(B) is in, has been taken from, or is to be placed or introduced into, State waters to which the arrangement referred to in subparagraph (ii)(A) relates.

5 Meaning of State waters

(1)  State waters are –

(a) any waters of the territorial sea of Australia that are –

(i) within 3 nautical miles of the baseline by reference to which the territorial limits of Australia are defined for the purposes of international law; and

(ii) adjacent to the State; and

(b) any marine or tidal waters that are on the landward side of that baseline and are adjacent to the State, except inland waters; and

(c) any land which is swept by those waters to the highest landward extent; and

(d) in relation to a fishery managed under a law of Tasmania under an arrangement, any waters to which the arrangement relates; and

(e) in relation to recreational fishing to which the Commonwealth Act does not apply, any waters to which the legislative powers of Tasmania extend.

(2)  In relation to a fishery managed under a law other than a law of Tasmania under an arrangement, State waters do not include any waters to which the arrangement relates.

6 Meaning of fishery

[Section 6 Substituted by No. 26 of 1997, s. 4, Applied:03 Sep 1997]

(1)  A fishery includes activities by way of fishing identified by reference to any or all of the following:

(a) a species, type or class of fish;

(b) a description of fish by reference to sex, size or another characteristic;

(c) an area of water, seabed or land;

(d) a method of fishing;

(e) a class or type of vessel;

(f) a class of persons;

(g) a purpose of an activity;

(h) a season.

(2)  A fishery includes the activity of processing or handling fish.

(3)  [Section 6 Subsection (3) inserted by No. 3 of 2022, s. 6, Applied:18 Mar 2022] For the purposes of subsection (1)(g) , a purpose of an activity may include, but is not limited to, a purpose of an activity specified in an arrangement entered into under Part 7 .

6A Meaning of possession

[Section 6A Inserted by No. 7 of 2007, s. 5, Applied:30 Apr 2007]

(1)  A person is taken to be in possession of something for the purposes of this Act if the person has, either alone or jointly with others, actual possession or actual custody of the thing.

(2)  A person is also taken to be in possession of something for the purposes of this Act if –

(a) the thing is at or in a place that the person, either alone or jointly with others, occupies; or

(b) the person, either alone or jointly with others, enjoys the thing at or in any place; or

(c) the person has, whether it is exercised for the person's own benefit or for the benefit of others, any control over the thing.

(3)  Subsection (2) applies whether or not any other person has actual possession or actual custody of the thing.

(4)  However, subsection (2)(a) does not apply if the person proves that the person had no knowledge of the thing.

7 Purpose and objectives

(1)  The purpose of this Act is to achieve sustainable development of living marine resources having regard to the need to –

(a) increase the community's understanding of the integrity of the ecosystem upon which fisheries depend; and

(b) provide and maintain sustainability of living marine resources; and

(ba) [Section 7 Subsection (1) amended by No. 45 of 1997, s. 6, Applied:13 Nov 1997] take account of a corresponding law; and

(c) take account of the community's needs in respect of living marine resources; and

(d) take account of the community's interests in living marine resources.

(2)  A person must perform any function or exercise any power under this Act in a manner which furthers the objective of resource management.

8 Act binds Crown

(1)  This Act binds the Crown in right of Tasmania and, in so far as the legislative power of Parliament permits, in all its other capacities.

(2)  The Crown is not liable for prosecution for an offence under this Act, but an officer, employee or agent of the Crown is liable for prosecution for an offence under this Act.

9 Ownership of living marine resources

(1)  All living marine resources present in waters referred to in section 5 (1) (a) , (b) and (c) are owned by the State.

(2)  Any fish specifically provided for under a marine farming licence are not owned by the State but are the property of the holder of that licence.

10 Effect of Act

(1)  An authorisation under this Act takes precedence over any other public or private fishing rights.

(2)  Subsection (1) does not –

(a) extinguish or impair any native title rights and interests; or

(b) [Section 10 Subsection (2) amended by No. 7 of 2007, s. 6, Applied:30 Apr 2007] preclude Aborigines from engaging in Aboriginal activities.

Division 2 Permits and exemptions

11 Exemption from Act

[Section 11 Substituted by No. 7 of 2007, s. 7, Applied:30 Apr 2007]

(1)  The Minister, by instrument in writing, may exempt a person or a class of persons from any provision of this Act.

(1A)  [Section 11 Subsection (1A) inserted by No. 46 of 2017, s. 29, Applied:04 Dec 2017] The Minister must not, under subsection (1) , exempt a person or a class of persons from a requirement to hold a licence in relation to an activity, referred to in section 64(1)(a) or (c) , that relates to finfish farming.

(2)  The exemption may be granted on the Minister's own initiative or consequent on an application made by or on behalf of the person or class of persons.

(3)  The Minister, having regard to any relevant considerations, may grant the exemption –

(a) for such period not exceeding 3 years as the Minister thinks fit; and

(b) on such conditions, if any, as the Minister thinks fit.

(4)  The Minister, by instrument in writing, may at any time –

(a) vary the conditions of the exemption, if any; or

(b) revoke the exemption.

(5)  The Minister is to ensure that each person who has the benefit of the exemption is given adequate advance notice of the variation of its conditions or of its revocation.

(6)  However, in the case of a class exemption where not all members of the class are individually known, notice under subsection (5) may be given by means of a public notice.

(7)  The exemption remains in force until the first of the following occurs:

(a) the period for which the exemption has been granted expires;

(b) the exemption is revoked.

(8)  A person must not contravene a condition of an exemption granted under this section.

Penalty:  Fine not exceeding 500 penalty units or imprisonment for a term not exceeding 6 months, or both, and a daily fine not exceeding 5 penalty units.

(9)  In this section –

relevant consideration, in relation to the granting of an exemption, includes –

(a) the reasons for, and the nature and scope of, the exemption; and

(b) the purpose and objectives of this Act set out in section 7 ; and

(c) whether the exemption is likely to yield any commercial, educational, environmental, economic, scientific or other benefit (either locally, nationally or internationally) having particular regard to fisheries or allied industries; and

(d) whether the exemption is likely to involve any risk to the State's fisheries or allied industries; and

(e) whether the objects of the exemption are reasonably capable of being attained by other means; and

(f) the likely impact of the exemption, if any, on the operation of any management plan; and

(g) whether the exemption will be fair having regard to the interests and obligations of any existing licence and permit holders; and

(h) the character and antecedents of any person who will have the benefit of the exemption; and

(i) the Crown's experience with any exemptions of a similar kind; and

(j) compliance monitoring requirements.

12 Permits

(1)  A person may apply to the Minister for a permit to take any action which otherwise would contravene a provision of this Act for the following purposes:

(a) scientific research;

(b) the promotion of fishing or fish products;

(c) the development of fisheries;

(d) the development of fishing technology;

(e) educational and community awareness programs;

(f) fish stock depletion or enhancement;

(g) the collection, keeping, breeding, hatching or cultivating of rare or endangered fish;

(h) [Section 12 Subsection (1) amended by No. 7 of 2007, s. 8, Applied:30 Apr 2007] sport or recreation purposes by a person who, in the opinion of the Minister, would otherwise be unable by reason of that person's disability to engage in fishing by methods permitted under this Act;

(i) [Section 12 Subsection (1) amended by No. 7 of 2007, s. 8, Applied:30 Apr 2007] Aboriginal cultural and ceremonial activities;

(j) [Section 12 Subsection (1) amended by No. 7 of 2007, s. 8, Applied:30 Apr 2007] the development of marine farming;

(ja) [Section 12 Subsection (1) amended by No. 3 of 2022, s. 7, Applied:18 Mar 2022] the marine farming of fish for research purposes pursuant to an arrangement under section 161 ;

(k) [Section 12 Subsection (1) amended by No. 7 of 2007, s. 8, Applied:30 Apr 2007] law enforcement;

(l) [Section 12 Subsection (1) amended by No. 7 of 2007, s. 8, Applied:30 Apr 2007] environmental monitoring;

(m) [Section 12 Subsection (1) amended by No. 7 of 2007, s. 8, Applied:30 Apr 2007] bio-prospecting.

(2)  An application for a permit is to –

(a) be in an approved form; and

(b) contain any details the Minister requires; and

(c) be accompanied by a fee determined by the Minister; and

(d) be lodged with the Minister.

(3)  The Minister may require an applicant to provide further information or a declaration relating to the application or operation of a permit.

(4)  The Minister, without any applications being made, may –

(a) [Section 12 Subsection (4) amended by No. 7 of 2007, s. 8, Applied:30 Apr 2007] issue permits authorising the taking of actions which would otherwise contravene provisions of this Act; and

(b) [Section 12 Subsection (4) amended by No. 7 of 2007, s. 8, Applied:30 Apr 2007] determine to whom any such permit is to be issued; and

(c) [Section 12 Subsection (4) amended by No. 7 of 2007, s. 8, Applied:30 Apr 2007] determine the system by which the Minister is to make a determination under paragraph (b) ; and

(d) [Section 12 Subsection (4) amended by No. 7 of 2007, s. 8, Applied:30 Apr 2007] determine the conditions of any such permit.

13 Grant of permit

(1)  The Minister may –

(a) grant an application for a permit; or

(b) refuse to grant the application.

(2)  Before granting an application for a permit, the Minister is to consult with the relevant fishing body if –

(a) the Minister considers that granting the application is likely to have a significant effect on the fishing body; or

(b) [Section 13 Subsection (2) amended by No. 7 of 2007, s. 9, Applied:30 Apr 2007] the Minister intends to grant the application for any of the purposes specified in section 12(1)(b) , (c) , (d) , (f) or (j) .

(3)  [Section 13 Subsection (3) inserted by No. 7 of 2007, s. 9, Applied:30 Apr 2007] However, subsection (2) does not apply to a permit for the purpose specified in section 12(1)(k) .

14 Issue of permit

(1)  If the Minister grants an application for a permit, the Minister, on payment of any fee the Minister determines, is to issue the permit.

(2)  The permit is to be in an approved form.

15 Condition of permit

(1)  The Minister may grant an application for a permit subject to any reasonable condition the Minister determines.

(2)  [Section 15 Subsection (2) amended by No. 7 of 2007, s. 10, Applied:30 Apr 2007] A person must not contravene a condition of a permit.

Penalty:  Fine not exceeding 1 000 penalty units or imprisonment for a term not exceeding 1 year, or both, and a daily fine not exceeding 10 penalty units.

(3)  The Minister may vary any condition of a permit by notice in writing served on the person who holds the permit.

15A Permit for conduct of research activities under arrangement

[Section 15A Inserted by No. 3 of 2022, s. 8, Applied:18 Mar 2022]

(1)  In this section –

Director, EPA has the same meaning as in section 92A ;

finfish has the same meaning as it has in the Environmental Management and Pollution Control Act 1994 ;

marine aquaculture research activities means the marine farming of fish for research purposes pursuant to an arrangement under section 161 .

(2)  Before issuing a permit that authorises marine aquaculture research activities, the Minister must –

(a) consult with the Director, EPA in respect of the proposed permit; and

(b) if the permit relates to the marine farming of finfish, include in the conditions to which the permit is subject such conditions as the Director, EPA considers are necessary in respect of the marine aquaculture research activities.

(3)  Marine aquaculture research activities are taken to be research activities for the purposes of the Animal Welfare Act 1993 .

16 Duration of permit

A permit remains in force for the period, not exceeding 12 months, specified in the permit unless the Minister sooner revokes it.

17 Revocation of permit

The Minister may revoke a permit by notice in writing served on the person who holds the permit.

Part 2 Administration

18 Function of Minister

The Minister must ensure that this Act is administered in a way which promotes the sustainable management of living marine resources.

19 Powers of Minister

The Minister may do any one or more of the following in order to promote the sustainable management of living marine resources:

(a) enter into a joint venture arrangement with another person;

(b) buy shares or take an interest in a company;

(c) enter into an agreement of any kind.

20 Delegation

(1)  The Minister, in writing, may delegate to a person any of the Minister's functions or powers, other than –

(a) this power of delegation; or

(b) any power conferred under sections 19 , 47 (2) , 110 (2) , Division 3 of Part 5 , Parts 6 and 7 and section 279 .

(2)  The Secretary, in writing, may delegate to a person any of the Secretary's functions or powers other than –

(a) this power of delegation; or

(b) [Section 20 Subsection (2) amended by No. 45 of 1997, s. 7, Applied:13 Nov 1997] any power conferred under section 164 .

21 Consultation with police

(1)  The Secretary must meet with the Commissioner of Police at least 4 times each year to discuss –

(a) any matter relevant under this Act; and

(b) the following matters in connection with the enforcement of this Act:

(i) [Section 21 Subsection (1) amended by No. 76 of 2003, Sched. 1, Applied:01 Jan 2004] past activities of the Police Service;

(ii) [Section 21 Subsection (1) amended by No. 76 of 2003, Sched. 1, Applied:01 Jan 2004] future activities of the Police Service;

(iii) any activities of the Department which may affect that enforcement.

(2)  The Commissioner of Police must provide the Secretary at least 4 times each year with a report containing the following matters:

(a) past enforcement and prosecution activities under way or completed;

(b) measurement of the appropriateness, effectiveness and efficiency of enforcement activities;

(c) any other matter in relation to enforcement;

(d) any other matter agreed to at a meeting referred to in subsection (1) or requested by the Secretary.

22 Inquiries

[Section 22 Substituted by No. 7 of 2007, s. 11, Applied:30 Apr 2007]

(1)  The Minister, by instrument in writing, may direct a qualified person to conduct an inquiry into a matter under this Act.

(2)  Sections 8 and 33 , and Part 3 of the Commissions of Inquiry Act 1995 (other than sections 17 , 18 , 19 and 23 of that Part) apply to the inquiry as if –

(a) the qualified person conducting it were a Commission established under section 4 of that Act; and

(b) the subject of the inquiry were the matter into which that Commission had been directed to inquire under that Act.

(3)  In this section –

qualified person means –

(a) the Secretary; or

(b) a person who, in the Minister's estimation, has qualifications, expertise or experience relevant to the subject of the inquiry.

23 Bequests and donations

(1)  The Minister may acquire by bequest or donation any property for the purposes of this Act.

(2)  The Minister may agree to a condition to which any bequest or donation is subject if it is consistent with the purposes of this Act.

(3)  The rule of law relating to perpetuities does not apply to any condition to which the Minister has agreed.

(4)  Any property acquired under this section, to the extent to which it has not been applied in conformity with any bequest or donation, passes to, and devolves on, the successors in office of the Minister.

(5)  If the Minister has agreed to a condition, that condition binds the property in the hands of any successor in office of the Minister in whom the property may be vested.

24 Immunity from liability

(1)  The following persons are not personally liable for an honest act done or omission made in the exercise or purported exercise of a power or the performance or purported performance of a function under this Act:

(a) the Minister;

(b) the Secretary;

(c) a fisheries officer;

(d) an assistant fisheries officer;

(e) [Section 24 Subsection (1) amended by No. 42 of 1998, s. 5, Applied:18 Dec 1998] a person employed in the Department.

(f) [Section 24 Subsection (1) amended by No. 42 of 1998, s. 5, Applied:18 Dec 1998] .  .  .  .  .  .  .  .  

(2)  Subsection (1) does not preclude the Crown from incurring liability that a person referred to in that subsection would, but for that subsection, incur.

25 Fishing bodies

[Section 25 Substituted by No. 45 of 1997, s. 8, Applied:13 Nov 1997]

(1)  The Minister may issue a certificate certifying that a body corporate is a fishing body if satisfied that it represents the interests of participants in –

(a) the fishing industry or part of the fishing industry; or

(b) a fishery; or

(c) the marine farming industry or part of the marine farming industry; or

(d) any combination of these.

(2)  The Minister may issue a certificate certifying that an association is a fishing body if satisfied that it represents the interests of participants in –

(a) the fishing industry or part of the fishing industry; or

(b) a fishery; or

(c) the marine farming industry or part of the marine farming industry; or

(d) any combination of these.

(3)  The Minister may revoke a certificate if no longer satisfied as to the matters referred to in this section.

26.

[Section 26 Repealed by No. 45 of 1997, s. 8, Applied:13 Nov 1997]

27 Advisory committees

(1)  The Minister may establish advisory committees to provide information and advice to the Minister on matters related to the administration of this Act.

(2)  The Minister may appoint any person as a member of an advisory committee on any terms and conditions the Minister determines.

(3)  The Minister may abolish an advisory committee at any time.

28 Preparation of draft code of practice

(1)  Any of the following bodies may prepare a draft code of practice for the purpose of this Act:

(a) a fishing body;

(b) an advisory committee established under this Act.

(2)  Before preparing a draft code of practice, a body must consult in writing with –

(a) any person or body likely to be affected by the code of practice; and

(b) any other person or body the Minister determines.

(3)  A body must submit to the Minister –

(a) a copy of the draft code of practice; and

(b) a copy of any submission or representation received from a person or body referred to in subsection (2) (a) or (b) ; and

(c) its response to the submission or representation.

29 Matters included in a draft code of practice

(1)  A draft code of practice may provide for any or all of the following:

(a) the preservation of good order amongst fishers;

(b) the conduct of persons engaged in commercial or recreational fishing, marine farming activities and handling fish;

(c) the efficient utilisation of fishing resources catching strategies;

(d) the use of fishing equipment in a safe manner and in particular circumstances or locations;

(e) the handling, storage, processing, transport, marketing and presentation of fish for sale;

(f) the equipment on fishing boats for the handling and storage of fish;

(g) the storage or holding of fish for human consumption;

(h) the manner of preparing fish for marketing or sale;

(i) the restoration or rehabilitation of fish habitat;

(j) the common names of fish to be used in the marketing and sale of fish;

(k) any other prescribed matter.

(2)  A draft code of practice may –

(a) include any standards, prescriptions, guidelines, protocols, procedures or other specifications; and

(b) apply generally, specifically or in a limited manner or circumstance; and

(c) contain different provisions according to differences in time, places or circumstances; and

(d) apply to a particular fishery.

30 Approval of code of practice

(1)  On receipt of a draft code of practice, the Minister, by public notice, must state –

(a) the purpose and general effect of the draft code of practice; and

(b) the place at which a copy of the draft code of practice may be obtained; and

(c) the cost, if any, of obtaining a copy of the draft code of practice; and

(d) that any person may submit written representations in relation to the draft code of practice within the period, not less than 45 days, specified in the notice.

(2)  The Minister must consider any representations received under subsection (1) .

(3)  The Minister may amend a draft code of practice to remove any inconsistency with this Act, regulations, a management plan or any other Act.

(4)  The Minister may –

(a) approve the draft code of practice; or

(b) refuse to approve the draft code of practice.

(5)  The Minister must not approve a draft code of practice if it contains any provision which is inconsistent with this Act, the regulations, a management plan or any other Act.

(6)  If the Minister approves a draft code of practice, the Secretary, by public notice, is to notify that approval.

31 Commencement of code of practice

A code of practice or a provision of a code of practice takes effect –

(a) on the day on which the code of practice is approved by the Minister; or

(b) on a later day specified in the code of practice as the day on which it takes effect.

Part 3 Fisheries Management

32 Management plan

A management plan consists of rules relating to a specified fishery.

33 Rules

[Section 33 Substituted by No. 26 of 1997, s. 5, Applied:03 Sep 1997]

(1)  The Minister may make rules in respect of –

(a) a management plan; or

(b) a fishery in respect of which there is no management plan; or

(c) any other matter under this Act.

(2)  Rules in respect of a management plan take effect on a date specified in the rules that is a date after the provisions of Division 2 of this Part have been complied with.

(3)  The Minister must –

(a) consult with the relevant fishing body before making any rules under subsection (1)(b) or (c) ; and

(b) notify any proposed rules by public notice.

34 Fishing licence rules

Rules may be made in relation to the following matters relating to fishing licences:

(a) different classes of licences;

(b) the number of licences to be granted;

(c) the criteria and qualifications for the granting of a licence;

(d) the procedure or system for determining who are to be granted or issued licences;

(e) objections to the granting of licences;

(f) endorsement of licences;

(g) conditions of licences;

(h) the grounds on which the Minister may cancel, suspend or refuse to renew or transfer a licence;

(i) the period for which a licence is in force;

(j) the criteria for a variation of a licence;

(k) the requirement for a licensee to, and the method by which a licensee is to, nominate any area, port or place or period specified in the management plan in or during which fishing is to be undertaken, any vessel is to be used or fish are to be unloaded;

(l) the prohibition of more than a specified number of persons from operating under a licence and specifying the functions of those persons.

35 Fishery capacity rules

Rules may be made in relation to the following matters relating to the capacity of a fishery:

(a) the quantity of fish that may be taken;

(b) the apparatus that may be used;

(c) the number of vessels and persons in that fishery;

(d) the method by which capacity is to be determined.

35A Rock lobster quota unit rules

[Section 35A Inserted by No. 33 of 2000, s. 5, Applied:16 Jun 2000] The Minister may make rules in relation to the taking of rock lobster for commercial purposes in respect of incompletely caught rock lobster quota units in subsequent years.

36 Entitlement rules

Rules may be made in relation to the following matters relating to entitlements under a licence:

(a) [Section 36 Amended by No. 26 of 1997, s. 6, Applied:03 Sep 1997] the manner in which any entitlement is to be expressed, fixed, allocated or specified;

(ab) [Section 36 Amended by No. 26 of 1997, s. 6, Applied:03 Sep 1997] the number and nature of an entitlement;

(b) the period during which an entitlement arises;

(c) the suspension of an entitlement;

(d) the manner in which any entitlement is to be increased or reduced;

(e) the conversion of one kind of entitlement into another kind of entitlement;

(f) the prohibition on doing anything in excess of any entitlement;

(g) [Section 36 Amended by No. 26 of 1997, s. 6, Applied:03 Sep 1997] the authorisation of the transfer or temporary transfer of any entitlement.

37 Prohibited and permitted fishing rules

[Section 37 Amended by No. 26 of 1997, s. 7, Applied:03 Sep 1997] Rules may be made in relation to the following matters:

(a) the prohibition of all fishing activities in a fishery or part of a fishery;

(b) the prohibition of any fishing activity of a specified class in a fishery;

(c) the period during which any fishing activity is permitted or prohibited;

(d) the method by which, and circumstances in which, the Minister may–

(i) prohibit all fishing activities or any fishing activity of a specified class in a fishery; or

(ii) permit in a fishery or in any part of a fishery, fishing or any fishing activity of a specified class that is otherwise prohibited.

38 Rules relating to vessels and apparatus

Rules may be made in relation to the following matters relating to vessels and apparatus:

(a) the prohibition or regulation of the use of any vessel in a fishery;

(b) the registration, marking or identification of any vessel used in a fishery;

(c) the reporting of the position of any vessel;

(d) the prohibition or regulation of the carrying or use of apparatus in a fishery;

(e) the registration or identification of apparatus used in a fishery;

(f) [Section 38 Amended by No. 26 of 1997, s. 8, Applied:03 Sep 1997] the installation, carriage or use of any apparatus on vessels used in a fishery;

(g) [Section 38 Amended by No. 26 of 1997, s. 8, Applied:03 Sep 1997] vessels used for fishing for commercial purposes;

(h) [Section 38 Amended by No. 26 of 1997, s. 8, Applied:03 Sep 1997] vessels used for carrying fish for commercial purposes;

(i) [Section 38 Amended by No. 26 of 1997, s. 8, Applied:03 Sep 1997] charter vessels used for recreational fishing;

(j) [Section 38 Amended by No. 26 of 1997, s. 8, Applied:03 Sep 1997] charter vessels used for non-exploitative use of fish;

(k) [Section 38 Amended by No. 26 of 1997, s. 8, Applied:03 Sep 1997] the use of any vessel for any of the purposes referred to in paragraphs (g) , (h) , (i) and (j) ;

(l) [Section 38 Amended by No. 26 of 1997, s. 8, Applied:03 Sep 1997] the use of vessels for storing, dealing, processing or treating fish;

(m) [Section 38 Amended by No. 26 of 1997, s. 8, Applied:03 Sep 1997] the carrying of any firearm, explosive or toxic or poisonous substance on any vessel used for fishing.

39 Rules relating to fish and fishing

Rules may be made in relation to the following matters relating to fish and fishing:

(a) the regulation of fishing in a fishery;

(b) the possession of fish taken in a fishery;

(c) requirements relating to any accidental or incidental taking of fish in a fishery;

(d) the identification of fish by any means;

(e) the checking, measuring, grading, counting or weighing of fish taken in a fishery;

(f) the prohibition of the purchase or sale of fish taken or dealt with in contravention of a management plan;

(g) the prohibition of fish being unloaded outside the port, place or area nominated by the holder of a licence;

(h) the notification of the time and place of arrival at a place to land fish;

(i) the measures to limit accidental or incidental catches;

(j) the measures to offset arrangements to compensate for damage to the environment done by fishing or damage to kinds or species of fish which is prohibited or restricted by a management plan;

(k) the prohibition in any specified period of taking or bringing fish onto land or into State waters;

(l) the possession of a greater quantity, weight or volume of fish of a specified species than the quantity, weight or volume specified in a management plan in respect of that species of fish;

(m) the area, port or place in which, or at which, fish may be unloaded or delivered.

40 Miscellaneous matters

(1)  Rules may be made in relation to the following matters:

(a) the obligations on licensees, persons acting for those licensees or masters of vessels;

(b) the keeping of records and submissions of returns by –

(i) any person acting under a licence; or

(ii) any other person who handles, unloads, lands, stores, packs, consigns, transports, processes, sells or purchases fish;

(ba) [Section 40 Subsection (1) amended by No. 45 of 1997, s. 9, Applied:13 Nov 1997] giving effect to any agreement under section 162 ;

(c) the participation in research programs and the requirement in that research to carry scientific equipment;

(d) the requirement to carry observers or research personnel to research, monitor or ensure compliance with this Act.

(2)  [Section 40 Subsection (2) amended by No. 12 of 2017, s. 4, Applied:13 Jun 2017] Rules may provide that the Minister may determine–

(a) any opening or closing dates of seasons; and

(b) the opening or closure of any part of a fishery; and

(ba) [Section 40 Subsection (2) amended by No. 26 of 1997, s. 9, Applied:03 Sep 1997] [Section 40 Subsection (2) amended by No. 33 of 2000, s. 6, Applied:16 Jun 2000] the limits for taking or possessing fish; and

(bb) [Section 40 Subsection (2) amended by No. 26 of 1997, s. 9, Applied:03 Sep 1997] the manner in which fish containers and receptacles are to be marked, tagged and notified; and

(bc) [Section 40 Subsection (2) amended by No. 26 of 1997, s. 9, Applied:03 Sep 1997] the type, volume and marking of containers and receptacles containing fish; and

(bd) [Section 40 Subsection (2) amended by No. 26 of 1997, s. 9, Applied:03 Sep 1997] the marking of fish; and

(c) any other specified matter relating to the characteristics of fish.

(3)  [Section 40 Subsection (3) inserted by No. 12 of 2017, s. 4, Applied:13 Jun 2017] If the rules provide for the Minister to make a determination, the rules must specify how that determination is to be notified.

40A Rules relating to fish processing

[Section 40A Inserted by No. 26 of 1997, s. 10, Applied:03 Sep 1997] Rules may be made in respect of the following:

(a) fish processing;

(b) the manner in which, and the means by which, fish may be unloaded, delivered, consigned or transported for processing;

(c) the manner in which fish are received, transported or stored;

(ca) [Section 40A Amended by No. 45 of 1997, s. 10, Applied:13 Nov 1997] the notification of the receipt, dispatch, import or export of fish;

(cb) [Section 40A Amended by No. 45 of 1997, s. 10, Applied:13 Nov 1997] the notification of the time and manner of –

(i) taking possession of fish at any place; and

(ii) the arrival or departure of fish from a place where the fish are processed or stored; and

(iii) the transport of fish to or from a place; and

(iv) the transfer of possession of fish to any person at any place;

(d) [Section 40A Amended by No. 45 of 1997, s. 10, Applied:13 Nov 1997] the marking and labelling of receptacles and containers in which fish are transported, exported, received or stored;

(e) the dimensions of those receptacles and containers;

(f) the treatment of, and dealing with, processed fish;

(g) the processing of fish;

(h) any premises, place, vessel or vehicle on or in which fish are stored;

(i) the quality and quantity of fish for sale within the State or for export.

40B Rules relating to handling

[Section 40B Inserted by No. 26 of 1997, s. 10, Applied:03 Sep 1997] Rules may be made in respect of the following:

(a) the manner in which, and the means by which, fish may be unloaded, delivered, consigned or transported by handlers;

(b) the manner in which fish are received or stored by handlers;

(c) the manner in which fish may be exported;

(ca) [Section 40B Amended by No. 45 of 1997, s. 11, Applied:13 Nov 1997] the notification of the receipt, dispatch, import or export of fish;

(cb) [Section 40B Amended by No. 45 of 1997, s. 11, Applied:13 Nov 1997] the notification of the time and manner of –

(i) taking possession of fish at any place; and

(ii) the arrival or departure of fish from a place where the fish are processed or stored; and

(iii) the transport of fish to or from a place; and

(iv) the transfer of possession of fish to any person at any place;

(d) the type of receptacle or container in which fish may be exported;

(e) [Section 40B Amended by No. 45 of 1997, s. 11, Applied:13 Nov 1997] the marking and labelling of receptacles and containers in which fish are transported, exported, received or stored;

(f) the dimensions of those receptacles and containers;

(g) the composition of water or other packing material in which fish are placed when being exported.

40C Rules relating to fish and fishing

[Section 40C Inserted by No. 26 of 1997, s. 10, Applied:03 Sep 1997] Rules may be made in respect of the following:

(a) reporting or notifying the landing and receiving of any fish;

(b) the non-exploitative use of fish;

(c) the possession of –

(i) the flesh or other part of any specified class of fish; and

(ii) any specified class of mutilated or disfigured fish;

(d) the prevention of destruction or wastage of fish;

(e) any activities that interfere with, or obstruct, fishing;

(f) [Section 40C Amended by No. 42 of 1998, s. 6, Applied:18 Dec 1998] the size, number, weight or any other characteristics of fish which may be taken, possessed, offered for sale, sold or purchased;

(g) the sale and purchase of fish;

(h) the landing, surrender to the Crown and sale of fish taken in contravention of this Act;

(i) the naming of fish and prohibiting of the sale of fish except under specified names.

40D General provisions relating to rules

[Section 40D Inserted by No. 26 of 1997, s. 10, Applied:03 Sep 1997]

(1)  Rules may be made so as to apply differently according to any matter, condition, limitation, restriction, exception or circumstance specified in the rules.

(2)  Rules may adopt or incorporate the whole or any part of any document, standard, rule, code, specification or method, with or without modification, issued, prescribed or published by any person or body before or after the rules take effect.

(3)  [Section 40D Subsection (3) inserted by No. 7 of 2007, s. 12, Applied:30 Apr 2007] Rules may authorise any matter to be from time to time determined, applied or regulated by –

(a) the Minister; or

(b) the Secretary or another fisheries officer.

(4)  [Section 40D Subsection (4) inserted by No. 7 of 2007, s. 12, Applied:30 Apr 2007] Rules that are made wholly or partly in substitution for other rules may contain provisions of a savings and transitional nature.

41 Rules prevail

Any provision of rules made under this Division which is inconsistent with a provision of any regulations prevails over the latter provision to the extent of that inconsistency.

41A Management plan prevails

[Section 41A Inserted by No. 26 of 1997, s. 11, Applied:03 Sep 1997] Any provision of a management plan which is inconsistent with any provision of any rules made under this Division prevails over the latter provision to the extent of that inconsistency.

42 Offences and penalties

[Section 42 Substituted by No. 7 of 2007, s. 13, Applied:30 Apr 2007]

(1)  Rules made under this Division may provide that –

(a) a contravention of any of the rules is an offence; and

(b) in respect of any such offence, provide for the imposition of –

(i) a penalty of either or both of the following:

(A) imprisonment for a term not exceeding 2 years;

(B) a fine not exceeding 5 000 penalty units and, in the case of a continuing offence, a further fine not exceeding 10 penalty units for each day during which the offence continues; or

(ii) a penalty specified in the regulations.

(2)  Rules made under this Division may –

(a) provide that an offence under the rules is a prescribed offence for the purposes of Division 5 of Part 9 (an offence in respect of which an infringement notice may be served); and

(b) prescribe the penalty or special penalty, or both, for that prescribed offence.

43 Decisions to prepare management plan

(1)  The Minister may determine that a management plan is to be prepared relating to a fishery within State waters.

(2)  As soon as practicable after the Minister determines that a management plan is to be prepared, the Secretary, after consultation with any appropriate person, must prepare a draft management plan.

44 Public exhibition of draft management plan

(1)  As soon as possible after a draft management plan has been prepared, the Secretary must refer it to the Minister for approval for it to be publicly exhibited.

(2)  The Minister may –

(a) give approval to the public exhibition of the draft management plan; or

(b) refuse to give approval.

(3)  If the Minister gives approval to the public exhibition of a draft management plan, the Secretary, by public notice, must notify –

(a) that a draft management plan has been prepared; and

(b) the fishery to which the draft management plan relates; and

(c) that a person may submit written representations in relation to the draft management plan; and

(d) the period during which representations may be made; and

(e) the address to which representations may be sent; and

(f) the place at which a copy of the draft management plan may be obtained; and

(g) the cost, if any, of obtaining a copy of the draft management plan; and

(h) the place at which the draft management plan is exhibited; and

(i) the period during which the draft management plan is to be exhibited.

(4)  The period during which representations may be made and the period during which the draft management plan is to be exhibited is to be each at least 60 days from the date on which the notice is first published.

(5)  The Secretary may make available –

(a) the history of the fishery or area to which a draft management plan relates; and

(b) policies considered relevant in the preparation of the draft management plan; and

(c) any other information the Secretary considers necessary or advisable to consider the draft management plan.

45 Interim management plan

(1)  The Minister, by notice published in the Gazette, may declare any rules, regulations, orders or a draft management plan referred to in a public notice under section 44 to constitute an interim management plan.

(2)  A notice under subsection (1) must state the date on which the interim management plan is to take effect.

(3)  An interim management plan has effect as if it were a management plan approved under section 47 .

(4)  An interim management plan which relates to any matter that was the subject of the repealed Act must be generally consistent with that Act.

(5)  An interim management plan ceases to take effect on the earlier of the following:

(a) a date 12 months or later as the Minister determines after it took effect;

(b) the date on which a management plan covering the fishery takes effect.

46 Consideration of representations

After considering any representations received in relation to a draft management plan, the Secretary –

(a) may amend the draft management plan to take account of the representations; and

(b) must prepare a report in relation to the representations received.

47 Approval of draft management plan

(1)  The Secretary must submit to the Minister –

(a) the draft management plan with any amendments made under section 46 ; and

(b) the report prepared under that section.

(2)  The Minister must approve a draft management plan if satisfied that –

(a) the plan promotes and develops commercial or recreational fishing without detriment to the fish habitat and environment; and

(b) the Secretary has taken appropriate action in relation to any representation made in respect of the plan.

(3)  If the Minister is not satisfied under subsection (2) , the Minister must –

(a) advise the relevant fishing body accordingly; and

(b) refer the draft management plan to the Secretary; and

(c) specify any matter which requires action before the Minister may be satisfied under subsection (2) .

(4)  The Minister is to make available at the request of any person and on payment of a fee determined by the Minister a copy of a report prepared under section 46 .

48 Notification of approval of draft management plan

If the Minister approves a draft management plan, the Secretary, by public notice, must notify –

(a) that the draft management plan has been approved; and

(b) that the plan as approved is a management plan; and

(c) the date on which the management plan takes effect; and

(d) the period during which the management plan is in force; and

(e) the place at which a copy of the management plan may be obtained; and

(f) the cost of obtaining a copy of the management plan; and

(g) any other information the Secretary considers relevant to the management plan.

48A Correction of management plan

[Section 48A Inserted by No. 42 of 1998, s. 7, Applied:18 Dec 1998]

(1)  [Section 48A Subsection (1) substituted by No. 33 of 2000, s. 7, Applied:16 Jun 2000] The Minister, after consultation with the relevant fishing body and by order published in the Gazette, may change a management plan if satisfied that the change is –

(a) to correct any error in the management plan; or

(b) to remove any anomaly in the management plan; or

(c) to clarify or simplify the management plan; or

(d) to remove any inconsistency between management plans or between a management plan and any Act; or

(e) to make procedural changes to a management plan; or

(f) for any other prescribed purpose.

(2)  The Secretary is to –

(a) specify the change by public notice; and

(b) notify the change to any person holding a licence for commercial purposes affected by the order by notice served on the licensee.

Division 3 Changes, review and revocation

49 Order changing management plan

(1)  The Minister, by order published in the Gazette, may change a management plan by amending, substituting or adding any provision of the management plan if satisfied that an emergency has arisen, or is likely to arise, making it necessary or advisable to change the management plan.

(2)  The Minister may change a management plan for one or more of the following purposes:

(a) to safeguard the fish being covered by the management plan from the outbreak of disease or the introduction of exotic kinds or species of fish or other things that are harming, or capable of harming, the fish;

(b) to safeguard the quality and quantity of fish covered by the management plan;

(c) to protect the fish covered by the management plan or other fish or their habitat from actual or anticipated damage or injury.

(2A)  [Section 49 Subsection (2A) inserted by No. 26 of 1997, s. 12, Applied:03 Sep 1997] [Section 49 Subsection (2A) omitted by No. 42 of 1998, s. 8, Applied:18 Dec 1998] .  .  .  .  .  .  .  .  

(3)  An order may provide for any one or more of the following:

(a) the suspension of fishing;

(b) the prohibition, restriction or variation of the controls or the kinds of fishing methods that may be employed;

(c) the alteration to the quantity, ages, sizes, sex, kinds or species of fish that may be taken;

(d) emergency provisions to safeguard fish;

(e) that a contravention of, or failure to comply with, a provision of the order is an offence;

(f) [Section 49 Subsection (3) amended by No. 7 of 2007, s. 14, Applied:30 Apr 2007] the imposition of a penalty in respect of any offence.

50 Notification of changes to management plan

(1)  Before the Minister makes an order under section 49 –

(a) the Minister must consult with the relevant fishing body; and

(b) the Secretary, by public notice, must specify the changes that are proposed to be made to a management plan by the order.

(2)  [Section 50 Subsection (2) amended by No. 26 of 1997, s. 13, Applied:03 Sep 1997] After the Minister makes an order under section 49 , the Secretary, by notice in writing, must notify any person holding a licence for commercial purposes affected by the order of–

(a) the contents of the order; and

(b) the period during which the order is in force.

(3)  [Section 50 Subsection (3) inserted by No. 26 of 1997, s. 13, Applied:03 Sep 1997] The Secretary, by public notice, may publish a notice referred to in subsection (2) .

51 Period of order

(1)  An order under section 49 is in force for the period, not exceeding 90 days, specified in the order.

(2)  The Minister, by notice published in the Gazette, may extend an order once only for a further period not exceeding 90 days if satisfied that there is likely to be a significant risk to living marine resources if the order is not extended.

52 Suspension of substituted provision

The application of a provision of a management plan which is substituted by an order under section 49 –

(a) is suspended for the period during which the order is in force; and

(b) has effect the day after that period ends.

53 Review of management plan

(1)  The Minister may direct the Secretary to conduct a review of a management plan if satisfied that it is necessary or desirable to do so because of biological, economic or other factors relating to the fishery to which the management plan relates.

(2)  In conducting a review, the Secretary is to consult with –

(a) the relevant fishing body; and

(b) any person the Secretary considers appropriate.

(3)  As a result of a review, the Secretary may recommend to the Minister any alterations the Secretary considers should be made to the management plan.

(4)  The Minister may –

(a) approve any alteration to the management plan the Secretary recommends; or

(b) refuse to approve any alteration.

(5)  The Minister is to make available at the request of a person and on payment of a fee determined by the Minister a copy of the review.

54 Notification of proposed alteration

(1)  If the Minister approves any alteration to a management plan recommended by the Secretary under section 53 , the Secretary, by public notice, must notify –

(a) that the management plan is to be altered; and

(b) that a person may submit written representations in relation to any proposed alteration; and

(c) the place at which particulars of the alteration may be obtained; and

(d) the address to which representations may be sent; and

(e) the period during which representations may be made.

(2)  The period during which representations may be made is to be at least one month from the date on which the notice is first published.

55 Recommendations after review

(1)  After considering any representation and within 60 days after the period specified in a public notice under section 54 , the Secretary must forward to the Minister a report.

(2)  A report is to contain –

(a) a summary of each representation received; and

(b) a summary of any action taken by the Secretary in relation to any representation; and

(c) a recommendation as to whether the management plan –

(i) should be altered in a particular way; or

(ii) should not be altered; and

(d) a statement of the reasons for that recommendation.

(3)  The Minister is to make available at the request of a person and on payment of a fee determined by the Minister a copy of the report.

56 Acceptance of recommendation

(1)  The Minister must accept any recommendation of the Secretary following a review if satisfied that the Secretary –

(a) has conducted the review in a satisfactory and thorough manner; and

(b) has taken appropriate action in relation to any representation.

(2)  If the Minister is not satisfied under subsection (1) , the Minister must –

(a) refer the recommendation to the Secretary; and

(b) require the Secretary to re-consider the recommendation and any representation.

57 Notification of alteration of management plan

(1)  If the Minister accepts the recommendation of the Secretary, the Secretary, by public notice, must notify –

(a) that as a result of a review, the Minister has accepted a recommendation to alter or not to alter a management plan; and

(b) the details of any alteration; and

(c) the date on which any alteration takes effect.

(2)  [Section 57 Subsection (2) amended by No. 26 of 1997, s. 14, Applied:03 Sep 1997] The Secretary, by notice in writing, must notify any person holding a licence for commercial purposes who is affected by any alteration to a management plan.

58 Revocation of management plan

(1)  The Minister, after receiving advice from the Secretary, by order, may revoke a management plan if satisfied that it is necessary or desirable to do so because biological, economic or other factors make it impossible, difficult or unsafe for fishing to be conducted in the fishery to which the management plan relates.

(2)  Before revoking a management plan, the Minister is to consult with the relevant fishing body.

59 Emergency order

(1)  The Minister, if satisfied that an emergency exists and after consulting with the relevant fishing body if practicable, may, by public notice, make an order in relation to any of the following:

(a) a closed season for a fishery;

(b) the closure or opening of State waters or a part of State waters for a particular fishery;

(c) the prohibition of taking, having, possessing or selling a species of fish by any person or class of person.

(2)  An order has effect, unless sooner revoked, for the period, not exceeding 3 months, specified in the notice.

(3)  A provision of an order which is inconsistent with a provision of a management plan prevails over the latter provision to the extent of that inconsistency.

(4)  The Secretary, by notice in writing served on the licensee, must notify any licensee affected by an order.

(5)  [Section 59 Subsection (5) amended by No. 7 of 2007, s. 15, Applied:30 Apr 2007] A person must not contravene an order.

Penalty:  Fine not exceeding 5 000 penalty units or imprisonment for a term not exceeding 1 year, or both, and a daily fine not exceeding 5 penalty units.

Part 4 Licences, Quotas and Agreements

60 Fishing licence

(1)  A person without a fishing licence must not in State waters –

(a) participate in fishing; or

(b) take fish; or

(c) use any apparatus for the purpose of fishing; or

(d) take any other action which may be taken only by the holder of a fishing licence.

Penalty:  Fine not exceeding 5 000 penalty units or imprisonment for a term not exceeding 2 years, or both, and a daily fine not exceeding 50 penalty units.

(2)  This section does not apply to –

(a) a person who is fishing for recreational purposes and is not required to be licensed under a management plan for that fishing; or

(b) [Section 60 Subsection (2) amended by No. 45 of 1997, s. 12, Applied:13 Nov 1997] [Section 60 Subsection (2) amended by No. 17 of 1996, Applied:21 May 1998] [Section 60 Subsection (2) amended by No. 42 of 1998, s. 9, Applied:18 Dec 1998] a person who uses a licence with the Minister's approval under section 87 ; or

(ba) [Section 60 Subsection (2) amended by No. 45 of 1997, s. 12, Applied:13 Nov 1997] [Section 60 Subsection (2) amended by No. 7 of 2007, s. 16, Applied:30 Apr 2007] a person who carries out an activity specified in subsection (1) , other than taking fish with a spear or by diving, under the close direct supervision of –

(i) a natural person who is the holder of a fishing licence; or

(ii) a supervisor; or

(c) [Section 60 Subsection (2) amended by No. 7 of 2007, s. 16, Applied:30 Apr 2007] an Aborigine who is engaged in an Aboriginal activity.

(3)  A person is to apply for a fishing licence in accordance with section 77 .

61 Authority of fishing licence

A fishing licence authorises the holder of the licence to carry out fishing in accordance with the licence.

62 Conditions of fishing licence

A fishing licence is subject to –

(a) the rules of a management plan applicable to that licence; and

(b) any condition specified in the licence.

63 Fishing certificate

(1)  [Section 63 Subsection (1) amended by No. 24 of 2021, s. 5, Applied:31 Mar 2023] The Secretary is to maintain a certificate or certificates for a person in respect of a fishing licence or fishing licences held by the person in such form (including electronic form) as the Secretary thinks fit.

(2)  The Secretary may determine which fishing certificate specifies which fishing licence.

(3)  A fishing certificate is to specify –

(a) the name of the holder of the fishing licence; and

(b) the fishing licence or fishing licences to which it relates; and

(c) any other detail the Secretary determines.

64 Marine farming licence

(1)  A person without a marine farming licence must not –

(a) carry out any marine farming in State waters; or

(b) take live fish for the purpose of marine farming in State waters; or

(c) operate a fish hatchery or breed, culture or farm fish –

(i) in inland waters if the fish in the normal course of events would be transferred to State waters or waters sourced from State waters; or

(ii) on land if State waters are used as a growing medium or the waters in which the fish are normally kept has characteristics similar to any State waters.

Penalty:  Fine not exceeding 500 penalty units or imprisonment for a term not exceeding 12 months, or both.

(1A)  [Section 64 Subsection (1A) inserted by No. 45 of 1997, s. 13, Applied:13 Nov 1997] Subsection (1) does not apply to –

(a) a person who carries out any activity specified in that subsection under the supervision of the holder of a marine farming licence or a supervisor at a place specified on that licence; or

(b) [Section 64 Subsection (1A) amended by No. 17 of 1996, Applied:21 May 1998] a person who is authorised to use a marine farming licence by means of a sublease under section 74 of the Marine Farming Planning Act 1995 at a place specified on that licence; or

(c) a person who is under the supervision of a person referred to in paragraph (b) .

(2)  Subsection (1) (c) (i) does not apply to a person operating a fish hatchery for freshwater fish under a licence under the Inland Fisheries Act 1995 .

(3)  A person is to apply for a marine farming licence in accordance with section 77 .

(4)  An application for a marine farming licence must not be granted to a person –

(a) [Section 64 Subsection (4) amended by No. 33 of 2000, s. 8, Applied:16 Jun 2000] for an area in State waters unless the person holds a lease under the Marine Farming Planning Act 1995 in respect of the area to which that licence is to relate; or

(b) for any area unless it contains the conditions and restrictions imposed under a marine farming development plan in relation to that area; or

(c) for an area within inland waters unless the marine farm obtains water from State waters.

(4A)  [Section 64 Subsection (4A) inserted by No. 45 of 1997, s. 13, Applied:13 Nov 1997] Subsection (4)(a) does not apply to a person who is the owner of the area to which the application for the marine farming licence relates.

(5)  This section does not apply to breeding, rearing or keeping alive fish –

(a) for domestic purposes; or

(b) for display purposes.

65 Authority of marine farming licence

A marine farming licence authorises the holder of the licence to carry out marine farming in accordance with the licence.

66 Conditions of marine farming licence

A marine farming licence is subject to –

(a) the marine farming development plan to which the licence relates; and

(b) any condition specified in the licence.

66A Marine farming licence depends on marine farming lease

[Section 66A Inserted by No. 7 of 2007, s. 17, Applied:30 Apr 2007]

(1)  The Minister must cancel a marine farming licence if the holder of the licence –

(a) ceases for any reason to hold a lease under the Marine Farming Planning Act 1995 for the area to which the licence relates; and

(b) is not, under that Act, being granted a new lease for that area.

(2)  The cancellation takes effect as soon as the holder of the licence is given written notice of it by the Minister.

(3)  In this section –

lease means a lease of any kind within the meaning of the Marine Farming Planning Act 1995 .

67 Fish processing licence

(1)  [Section 67 Subsection (1) amended by No. 45 of 1997, s. 14, Applied:28 Nov 1997] [Section 67 Subsection (1) substituted by No. 7 of 2007, s. 18, Applied:30 Apr 2007] A person who does not hold a fish processing licence must not, for commercial purposes, process –

(a) abalone, giant crab, rock lobster or scallop; or

(b) more than a prescribed quantity of prescribed fish during a prescribed period.

Penalty:  Fine not exceeding 500 penalty units and a daily fine not exceeding 10 penalty units.

(2)  [Section 67 Subsection (2) substituted by No. 45 of 1997, s. 14, Applied:28 Nov 1997] Subsection (1) does not apply to the processing of fish –

(a) on any vessel used to take the fish by a person authorised to take the fish with that vessel; or

(b) for sale by retail to the public or served as meals to the public in, or from, a place; or

(c) [Section 67 Subsection (2) amended by No. 33 of 2000, s. 9, Applied:16 Jun 2000] by the holder of a marine farming licence if the fish are produced by the holder under that licence; or

(ca) [Section 67 Subsection (2) amended by No. 7 of 2007, s. 18, Applied:30 Apr 2007] by the holder of a marine farming licence if the fish have been produced under the authority of any marine farming licence and are being packed live, or being held in readiness to be packed live, for sale; or

(d) by the holder of a fishing licence if the fish are caught by the holder under that licence; or

(e) [Section 67 Subsection (2) amended by No. 7 of 2007, s. 18, Applied:30 Apr 2007] by a person under the supervision of the holder of a fish processing licence at the place at which the fish may be processed under the licence; or

(f) [Section 67 Subsection (2) amended by No. 7 of 2007, s. 18, Applied:30 Apr 2007] by an Aborigine who is engaged in an Aboriginal activity.

(3)  A person is to apply for a fish processing licence in accordance with section 77 .

(4)  [Section 67 Subsection (4) inserted by No. 7 of 2007, s. 18, Applied:30 Apr 2007] In this section –

abalone means fish of the genus Haliotis;

giant crab means crab of the species Pseudocarcinus gigas;

rock lobster means rock lobster of the genus Jasus;

scallop means fish of the species –

(a) Equichlamys bifrons (commonly known as queen scallop); or

(b) Pecten fumatus (commonly known as commercial scallop); or

(c) Mimachlamys asperrimus (commonly known as doughboy scallop).

68 Processing fish

[Section 68 Subsection (3) amended by No. 45 of 1997, s. 15, Applied:13 Nov 1997] [Section 68 Substituted by No. 7 of 2007, s. 19, Applied:30 Apr 2007]

(1)  A fish processing licence is to specify the places where the fish that it authorises to be processed may be processed.

(2)  Under subsection (1) , a place may be specified as –

(a) a place where fish of any kind may be processed; or

(b) a place where only fish of a particular kind may be processed.

(3)  The holder of a fish processing licence must not process fish at a place other than the place specified for that purpose in the licence.

Penalty:  Fine not exceeding 500 penalty units.

(4)  The holder of a fish processing licence must not –

(a) have, at a place specified in the licence pursuant to subsection (1) , fish that have been taken illegally; or

(b) cause or allow another person to have, at a place specified in the licence pursuant to subsection (1) , fish that have been taken illegally.

Penalty:  Fine not exceeding 500 penalty units or imprisonment for a term not exceeding 2 years, or both.

69 Storing fish

[Section 69 Amended by No. 45 of 1997, s. 16, Applied:13 Nov 1997] The holder of a fish processing licence must not hold or store live or dead fish of a prescribed class that have been, are being or are to be processed under the licence at a place other than–

(a) the place at which the fish are to be processed under the licence; or

(b) any place specified for that purpose in the licence.

Penalty:  Fine not exceeding 200 penalty units.

70 Conditions of fish processing licence

A fish processing licence is subject to –

(a) the rules of a management plan applicable to that licence; and

(b) any condition specified in the licence relating to any one or more of the following matters:

(i) returns and records to be kept and provided;

(ii) the alteration of premises at which fish are processed;

(iii) any other matter the Minister determines.

Division 4 Handling licences

71 Handling licence

(1)  The Minister may require a person or class of persons who does any of the following to hold a handling licence:

(a) receive fish from a licensee;

(b) transport or store fish received from a licensee;

(c) otherwise deal with fish received from a licensee.

(1A)  [Section 71 Subsection (1A) inserted by No. 45 of 1997, s. 17, Applied:13 Nov 1997] Subsection (1) does not apply to a person who carries out any activity specified in that subsection under the supervision of the holder of a handling licence.

(2)  A person who is required to hold a handling licence must not do any of the activities specified in subsection (1) without holding a handling licence.

Penalty:  Fine not exceeding 500 penalty units or imprisonment for a term not exceeding one year and a daily fine not exceeding 10 penalty units.

(3)  A person is to apply for a handling licence in accordance with section 77 .

72 Authority of handling licence

A handling licence authorises the holder to carry out any activity referred to in section 71 and specified in the licence.

73 Conditions of handling licence

A handling licence is subject to –

(a) the rules applicable to that licence; and

(b) any condition specified in the licence.

74 Records and information

(1)  The Minister may require any person or class of persons who carries out any activity referred to in section 71 to keep records and information relating to any one or more of the following matters:

(a) the person from whom fish were received;

(b) any authorisation of that person to be in possession of the fish;

(c) the person to whom fish were delivered or consigned;

(d) the date on which fish were received;

(e) the quantity and species or class of fish.

(2)  A person must provide the Secretary with any records and information kept under subsection (1) .

(3)  A person, without reasonable cause, must not fail to keep records or give information as required.

Penalty:  Fine not exceeding 100 penalty units.

Division 5 General provisions relating to licences

74A Interpretation of Division

[Section 74A Inserted by No. 24 of 2021, s. 6, Applied:31 Mar 2023]

(1)  In this Division –

category, of licence – see section 76A(1) ;

commercial fishing licence means a licence that authorises the licence holder to carry out fishing for commercial purposes;

eligible person, in respect of a category of licence, means –

(a) a person that has been approved as eligible to hold a licence of that category by the Secretary under section 76A ; or

(b) a person that is taken to be approved as eligible to hold a licence of that category under section 76C ;

recreational fishing licence means a licence that authorises the licence holder to carry out recreational fishing.

(2)  For the purposes of this Division, a person is eligible to hold a licence if the person is an eligible person in respect of that category of licence.

75 Guidelines

(1)  The Minister may issue guidelines consistent with this Act in respect of any matter relating to a licence or licensing.

(2)  The Minister may amend or revoke any guidelines.

(3)  In performing a function or exercising a power relating to a licence, the Secretary is to take into account –

(a) any guidelines issued by the Minister; and

(b) any other matter the Secretary considers relevant.

76 Management plan prevails

[Section 76 Substituted by No. 56 of 1997, s. 5, Applied:12 Dec 1997]

(1)  Any provision of a management plan which is inconsistent with any provision of this Part prevails over the latter provision to the extent of that inconsistency.

(2)  Subsection (1) does not apply to a provision of a management plan that relates to any matter referred to in Division 6A .

76A Eligible person

[Section 76A Inserted by No. 24 of 2021, s. 7, Applied:31 Mar 2023]

(1)  The categories of licence are as follows:

(a) recreational fishing licence;

(b) commercial fishing licence;

(c) marine farming licence;

(d) fish processing licence;

(e) handling licence.

(2)  A person may apply to the Secretary to be approved as eligible to hold a licence of a particular category.

(3)  An application under subsection (2) must –

(a) be made in an approved form; and

(b) specify the category of licence to which the application relates; and

(c) contain the information required in the approved form; and

(d) be accompanied by the prescribed fee.

(4)  The Secretary may grant an application for a person to be approved as eligible to hold a licence of a particular category, with or without conditions, or may refuse to grant the application.

(5)  The Secretary may only grant an application under subsection (4) if satisfied that –

(a) the applicant is a suitable person to hold a licence of the category specified in the application; and

(b) in the case of a natural person who is applying to be eligible to hold a licence of a category, other than the category of licence for recreational fishing, the person is an adult.

(6)  If a person’s application to be eligible to hold a licence of a particular category is refused under this section, the person may not make a further application in respect of that category of licence under this section until 12 months has lapsed from the date on which the person’s application was refused.

(7)  The Secretary may require a person to –

(a) provide such further information as the Secretary considers necessary in order to consider the application; and

(b) verify by statutory declaration any information given in connection with an application under this section.

(8)  The Secretary may defer a decision on an application under subsection (2) pending the determination or discontinuation of any proceedings against the applicant for an offence against –

(a) this Act; or

(b) any other Act that the Secretary considers relevant to the making of the decision; or

(c) a corresponding law.

76B Suitability of person to be eligible person

[Section 76B Inserted by No. 24 of 2021, s. 7, Applied:31 Mar 2023]

(1)  In this section –

applicant means a person applying to be approved as eligible to hold a licence of a particular category under section 76A .

(2)  For the purposes of determining whether an applicant or an eligible person is a suitable person to hold a licence of a particular category, the Secretary may take into account the following matters:

(a) in the case of an applicant, whether the applicant is a fit and proper person to hold a licence of that category;

(b) in the case of an eligible person, whether the eligible person is or remains a fit and proper person to hold a licence of that category;

(c) whether the applicant or eligible person has, within the last 5 years, been convicted of any offence, under this Act, any other Act or a corresponding law, which the Secretary considers is relevant to the holding of a licence of that category;

(d) whether the applicant or eligible person has any unpaid fees, levies, charges or royalties due and payable by the person under this Act;

(e) anything else that the Secretary considers relevant.

(3)  In determining whether an applicant or an eligible person is a suitable person to hold a licence of a particular category, the Secretary may take all steps and make all inquiries that are reasonable and appropriate.

76C Certain persons taken to be eligible persons

[Section 76C Inserted by No. 24 of 2021, s. 7, Applied:31 Mar 2023]

(1)  This section applies subject to section 76D .

(2)  A person who applies for or holds a recreational fishing licence is taken to be approved as eligible to hold a licence of that category under section 76A .

(3)  A person who held a fishing licence of a particular category immediately before the commencement of this section is taken to be approved as eligible under section 76A to hold a licence of that category.

(4)  For the avoidance of doubt, a person who is taken under this section to be approved as eligible to hold a licence of a particular category is not taken to be approved as eligible to hold a licence of any other category.

76D Review of approval as eligible person

[Section 76D Inserted by No. 24 of 2021, s. 7, Applied:31 Mar 2023]

(1)  The Secretary may investigate an eligible person to determine whether the person is a suitable person to hold a licence of the category in respect of which the person is an eligible person at the following times:

(a) in the case of an eligible person who is the holder of a recreational fishing licence, at any time;

(b) in the case of an eligible person who is the holder of a licence other than a recreational fishing licence –

(i) when the person renews the licence; or

(ii) if the person is convicted of an offence under this Act, any other Act or a corresponding law, at that time;

(c) in the case of person who is eligible to hold a licence of a particular category but has not held a licence of that category during the past 2 years, at any time.

(2)  If, following an investigation under subsection (1) , the Secretary determines that an eligible person is not a suitable person to hold a licence of a particular category, the Secretary must notify the person in writing that they are no longer eligible to hold a licence of that category.

(3)  If the Secretary provides a person with written notification under subsection (2) that they are no longer eligible to hold a licence of a particular category, from the date specified in the notice, the following applies:

(a) if the person has been approved as eligible to hold a licence of that category under section 76A , that approval is revoked;

(b) if section 76C applies to that person in respect of a licence of that category, the person is no longer taken to be eligible to hold a licence of that category under that section.

(4)  The Secretary may not notify an eligible person under subsection (2) that they are no longer eligible to hold a licence of a particular category unless the Secretary has –

(a) at least 14 days before notifying the person under subsection (2) , issued a notice to the eligible person –

(i) advising that the Secretary has determined that the person is not a suitable person to hold a licence of that category; and

(ii) specifying the grounds on which the Secretary has determined that the person is not suitable to hold a licence of that category; and

(iii) inviting the person to provide to the Secretary, within 14 days after receiving the notice, written reasons as to why the person is a suitable person to hold a licence of that category; and

(b) considered any written reasons provided to the Secretary under subsection (5) .

(5)  An eligible person to whom a notice has been issued under subsection (4)(a) may provide to the Secretary, within 14 days after receiving the notice, written reasons as to why the person is a suitable person to hold a licence of the category specified in the notice.

(6)  If the Secretary determines that a person is not a suitable person to hold a licence of a particular category under this section, that person may not make a further application under section 76A , to be approved as eligible to hold a licence of that category, for a period of 12 months from the date of the determination.

76E Licence depends on holder’s approval as eligible person

[Section 76E Inserted by No. 24 of 2021, s. 7, Applied:31 Mar 2023]

(1)  If the Secretary notifies a person under section 76D(2) that they are no longer eligible to hold a licence of a particular category, the Secretary must cancel any licences of that category held by that person.

(2)  A cancellation under subsection (1) takes effect as soon as the holder of the licence is given written notice of the cancellation of the licence by the Secretary.

77 Applications in relation to a licence

[Section 77 Subsection (2) amended by No. 7 of 2007, s. 20, Applied:30 Apr 2007] [Section 77 Subsection (2) amended by No. 45 of 1997, s. 18, Applied:13 Nov 1997] [Section 77 Subsection (2A) inserted by No. 45 of 1997, s. 18, Applied:13 Nov 1997] [Section 77 Substituted by No. 24 of 2021, s. 7, Applied:31 Mar 2023]

(1)  An application for the grant, renewal, variation or transfer of a licence or quota or entitlement under a licence –

(a) may be made by a person who is eligible to hold the licence; and

(b) must be made to the Secretary in an approved form; and

(c) must contain the information required in the approved form; and

(d) must be accompanied by the prescribed fee.

(2)  The Secretary may require a person to provide such further information as the Secretary considers necessary in order to consider the application.

77A Licensing agent

[Section 77A Inserted by No. 24 of 2021, s. 7, Applied:31 Mar 2023]

(1)  In this section –

party to a deed of agreement means a person who has a right to take and acquire commercially protected fish pursuant to a deed of agreement.

(2)  The following persons may nominate an adult to be a licensing agent for the purposes of a licence or a deed of agreement:

(a) a person applying for a licence;

(b) the holder of a licence;

(c) a party to a deed of agreement.

(3)  A person applying for the grant of a commercial fishing licence must nominate an adult to be the licensing agent for the purposes of the licence if the applicant is a partnership, a corporation or a trustee.

(4)  The nomination of a person to be a licensing agent under this section must –

(a) be made to the Secretary in an approved form; and

(b) specify those activities that the licence holder or party to the deed of agreement authorises the licensing agent to carry out on behalf of the licence holder or the party to the deed of agreement; and

(c) contain the information required in the approved form.

(5)  Activities that may be specified under subsection (4)(b) include, but are not limited to, the following activities:

(a) the provision of specified classes of records, documents or information, on behalf of the licence holder or the party to the deed of agreement;

(b) access and use of any specified online facility on behalf of the licence holder or the party to the deed of agreement;

(c) the receipt of specified classes of records, documents or information, on behalf of the licence holder or the party to the deed of agreement;

(d) the signing of specified classes of records, documents or information, on behalf of the licence holder or the party to the deed of agreement;

(e) specified actions of an administrative nature required or permitted under this Act, on behalf of the licence holder or the party to the deed of agreement.

(6)  Any notice or other document required to be served on the holder of a licence or a party to a deed of agreement by or under this Act is taken to be served on the holder of the licence or the party to the deed of agreement if such service on the licensing agent is an activity authorised under subsection (4)(b) .

(7)  A licensing agent under this section is not entitled to any rights conferred by, or interest in, a licence only because the person is a licensing agent.

(8)  The holder of a licence or a party to a deed of agreement may revoke the nomination of a licensing agent for the licence or deed of agreement by notice in writing to the Secretary in the approved form.

(9)  The holder of a commercial fishing licence that is a partnership, a corporation or a trustee must nominate a new licensing agent for the purposes of that licence in accordance with subsection (4) if –

(a) the licensing agent has had his or her nomination as a licensing agent revoked under subsection (8) ; or

(b) the licensing agent is no longer able to carry out the activities of a licensing agent for the purposes of the licence.

78 Grant of licence

[Section 78 Subsection (1) amended by No. 45 of 1997, s. 19, Applied:13 Nov 1997] [Section 78 Subsection (1) amended by No. 45 of 1997, s. 19, Applied:13 Nov 1997] [Section 78 Subsection (1) amended by No. 7 of 2007, s. 21, Applied:30 Apr 2007] [Section 78 Subsection (1) amended by No. 42 of 1998, s. 10, Applied:18 Dec 1998] [Section 78 Subsection (1) amended by No. 7 of 2007, s. 21, Applied:30 Apr 2007] [Section 78 Subsection (1) amended by No. 7 of 2007, s. 21, Applied:30 Apr 2007] [Section 78 Subsection (2A) inserted by No. 14 of 2005, s. 4, Applied:06 May 2005] [Section 78 Substituted by No. 24 of 2021, s. 7, Applied:31 Mar 2023]

(1)  The Secretary may grant an application for a licence with or without conditions.

(2)  The Secretary may refuse to grant a licence to an applicant –

(a) if the applicant is not eligible to hold the licence; or

(b) if the applicant is disqualified from holding the licence; or

(c) if there are environmental or resource constraints on granting the licence; or

(d) if granting the application will contravene a management plan; or

(e) on such other grounds that the Secretary considers reasonable for refusing the application.

(3)  The Secretary must not grant a licence under this section if the application is for a licence to replace a licence that –

(a) has been surrendered or cancelled; or

(b) is suspended.

78A.

[Section 78A Inserted by No. 31 of 2009, s. 4, Applied:24 Jun 2009] [Section 78A Repealed by No. 25 of 1995, s. 78A, Applied:24 Jun 2010]

79 Issue of licence

(1)  A licence is to be in an approved form.

(2)  [Section 79 Subsection (2) substituted by No. 42 of 1998, s. 11, Applied:18 Dec 1998] A licence may be issued –

(a) as a separate instrument; or

(b) as an endorsement on a fishing certificate.

80 Term of licence

(1)  A licence is in force for the period, not exceeding 10 years, specified in the licence.

(2)  Subject to this Act or a management plan, a licence ceases to be in force –

(a) on a day specified in the licence; or

(b) if a date is not specified, on 28 February –

(i) in the last year in respect of which it was granted; or

(ii) if fees are paid by annual instalments, in the year in which an instalment for a succeeding year is not paid before the commencement of that succeeding year.

81 Renewal of licence

[Section 81 Subsection (1) amended by No. 7 of 2007, s. 22, Applied:30 Apr 2007] [Section 81 Subsection (2) amended by No. 7 of 2007, s. 22, Applied:30 Apr 2007] [Section 81 Subsection (2) amended by No. 45 of 1997, s. 20, Applied:13 Nov 1997] [Section 81 Subsection (2) amended by No. 7 of 2007, s. 22, Applied:30 Apr 2007] [Section 81 Subsection (2) amended by No. 42 of 1998, s. 12, Applied:18 Dec 1998] [Section 81 Subsection (4) amended by No. 7 of 2007, s. 22, Applied:30 Apr 2007] [Section 81 Subsection (5) inserted by No. 7 of 2007, s. 22, Applied:30 Apr 2007] [Section 81 Substituted by No. 24 of 2021, s. 8, Applied:31 Mar 2023]

(1)  The holder of a licence may, before the licence ceases to be in force, apply to the Secretary for the renewal of the licence.

(2)  The Secretary may, on payment of the prescribed fee, renew the licence with or without conditions.

(3)  The Secretary may refuse to renew the licence –

(a) if the applicant has failed to comply with a condition of the licence in the previous 5 years; or

(b) if the applicant is disqualified from holding the licence; or

(c) if there are environmental or resource constraints on renewing the licence; or

(d) in the case of a fish processing licence –

(i) if any place, vessel or vehicle to which the licence relates has not been used to process fish within the previous 2 years; or

(ii) if the Secretary of a Department administering any Act relating to public health has advised the Secretary not to renew the licence; or

(e) if the applicant has not paid any fees, levies, charges or royalties due and payable by that person under this Act; or

(f) on such other grounds that the Secretary considers reasonable for refusing the application.

(4)  If the application for the renewal of the licence is not determined by the Secretary before the day on which it ceases to be in force, it is, despite section 80 , taken to continue in force until it is renewed or its renewal is refused under this section.

82 Transfer of licence

[Section 82 Subsection (2) substituted by No. 45 of 1997, s. 21, Applied:13 Nov 1997] [Section 82 Subsection (2) amended by No. 7 of 2007, s. 23, Applied:30 Apr 2007] [Section 82 Subsection (2) amended by No. 42 of 1998, s. 13, Applied:18 Dec 1998] [Section 82 Subsection (2) amended by No. 96 of 2001, s. 25, Applied:01 Jul 2002] [Section 82 Subsection (3) inserted by No. 45 of 1997, s. 21, Applied:13 Nov 1997] [Section 82 Subsection (3) substituted by No. 42 of 1998, s. 13, Applied:18 Dec 1998] [Section 82 Subsection (3A) inserted by No. 42 of 1998, s. 13, Applied:18 Dec 1998] [Section 82 Subsection (3A) amended by No. 96 of 2001, s. 25, Applied:01 Jul 2002] [Section 82 Subsection (3B) inserted by No. 42 of 1998, s. 13, Applied:18 Dec 1998] [Section 82 Subsection (4) amended by No. 42 of 1998, s. 13, Applied:18 Dec 1998] [Section 82 Subsection (4) inserted by No. 45 of 1997, s. 21, Applied:13 Nov 1997] [Section 82 Subsection (4) substituted by No. 7 of 2007, s. 23, Applied:30 Apr 2007] [Section 82 Subsection (5) inserted by No. 7 of 2007, s. 23, Applied:30 Apr 2007] [Section 82 Subsection (6) inserted by No. 7 of 2007, s. 23, Applied:30 Apr 2007] [Section 82 Substituted by No. 24 of 2021, s. 8, Applied:31 Mar 2023]

(1)  The holder of a licence may apply to the Secretary to transfer –

(a) the licence to a person (the transferee); or

(b) a quota or entitlement under the licence to another licence holder.

(2)  The Secretary may grant an application to transfer a licence, or transfer a quota or entitlement under a licence, with or without conditions.

(3)  The Secretary may refuse to grant an application for the transfer of a licence –

(a) if the transferee is not eligible to hold the licence; or

(b) if the transferee is disqualified from holding the licence; or

(c) if granting the application will contravene a management plan; or

(d) if there are environmental or resource constraints on granting the application; or

(e) if, in respect of a relevant licence within the meaning of the Fishing (Licence Ownership and Interest) Registration Act 2001 , an application has not been made under that Act by the owner of that licence to cancel all entries in the register under that Act relating to that licence; or

(f) if the applicant has not paid any fees, levies, charges or royalties due and payable by that person under this Act; or

(g) on such other grounds that the Secretary considers reasonable for refusing the application.

(4)  The Secretary may refuse to grant an application for the transfer of a commercial fishing licence if the transferee is a partnership, a corporation or a trustee and the transferee has not nominated an adult to be the licensing agent for the purposes of the licence in accordance with section 77A .

(5)  The Secretary may refuse to grant an application to transfer a quota or entitlement under a licence under subsection (1)(b)  –

(a) if granting the application will contravene a management plan; or

(b) if there are environmental or resource constraints on granting the application; or

(c) if, in respect of a relevant licence within the meaning of the Fishing (Licence Ownership and Interest) Registration Act 2001 , an application under that Act has not been made by the owner of that licence and the other licensee to vary an entry in the register relating to the quota or entitlement under the licence; or

(d) if the applicant has not paid any fees, levies, charges or royalties due and payable by that person under this Act; or

(e) on such other grounds that the Secretary considers reasonable for refusing the application.

(6)  The Secretary may defer a decision on an application under subsection (1) pending the determination or discontinuation of any proceedings against the applicant, the transferee or an associate of the transferee for an offence against –

(a) this Act; or

(b) any other Act that the Secretary considers relevant to the making of the decision; or

(c) a corresponding law.

(7)  For the purposes of subsection (6) , a person is an associate of the transferee if the person –

(a) holds or will hold any relevant financial interest, or is or will be entitled to exercise any relevant power (whether in the person’s own right or on behalf of any other person), in a business of the proposed transferee and, by virtue of that interest or power, is able or will be able to exercise a significant influence over or in respect of the management or operation of that business; or

(b) holds or will hold any relevant position (whether in the person’s own right or on behalf of any other person) in a business of the transferee; or

(c) is a relative of the transferee.

(8)  In this section –

relative means –

(a) the spouse, parent, child or sibling (whether of the full or half blood); or

(b) the person with whom a person is in a personal relationship within the meaning of the Relationships Act 2003 ;

relevant financial interest, in relation to a business, means –

(a) any share in the capital of the business; or

(b) any entitlement to receive any income derived from the business;

relevant position, in relation to a business, means the position of director, manager or other executive position or secretary, however that position is designated in that business;

relevant power means any power, whether exercisable by voting or otherwise and whether exercisable alone or in association with others –

(a) to participate in a directorial, managerial or executive decision; or

(b) to elect or appoint any person to any relevant position.

83 Variation of licence

[Section 83 Subsection (1) substituted by No. 45 of 1997, s. 22, Applied:13 Nov 1997] [Section 83 Subsection (1A) amended by No. 42 of 1998, s. 14, Applied:18 Dec 1998] [Section 83 Subsection (1A) inserted by No. 45 of 1997, s. 22, Applied:13 Nov 1997] [Section 83 Subsection (1A) amended by No. 42 of 1998, s. 14, Applied:18 Dec 1998] [Section 83 Subsection (1A) amended by No. 7 of 2007, s. 24, Applied:30 Apr 2007] [Section 83 Subsection (1A) amended by No. 42 of 1998, s. 14, Applied:18 Dec 1998] [Section 83 Subsection (1B) inserted by No. 45 of 1997, s. 22, Applied:13 Nov 1997] [Section 83 Subsection (1B) substituted by No. 42 of 1998, s. 14, Applied:18 Dec 1998] [Section 83 Subsection (1C) inserted by No. 45 of 1997, s. 22, Applied:13 Nov 1997] [Section 83 Subsection (1C) substituted by No. 7 of 2007, s. 24, Applied:30 Apr 2007] [Section 83 Subsection (1D) inserted by No. 7 of 2007, s. 24, Applied:30 Apr 2007] [Section 83 Subsection (2) amended by No. 7 of 2007, s. 24, Applied:30 Apr 2007] [Section 83 Subsection (2) amended by No. 7 of 2007, s. 24, Applied:30 Apr 2007] [Section 83 Subsection (4) amended by No. 7 of 2007, s. 24, Applied:30 Apr 2007] [Section 83 Subsection (5) inserted by No. 7 of 2007, s. 24, Applied:30 Apr 2007] [Section 83 Substituted by No. 24 of 2021, s. 8, Applied:31 Mar 2023]

(1)  The Secretary may, at any time, vary a licence by notice to the holder of the licence.

(2)  The variation of a licence under subsection (1) may be made –

(a) on the application of the holder of the licence; or

(b) on the Secretary’s own initiative.

(3)  The Secretary must not vary a licence under subsection (1) if –

(a) varying the licence will contravene a management plan; or

(b) varying the licence will contravene a marine farming development plan under the Marine Farming Planning Act 1995 ; or

(c) varying the licence will, if it includes matters provided for under a deed of agreement, be inconsistent with that deed of agreement; or

(d) there are environmental or resource constraints on varying the licence.

(4)  The Secretary may defer a decision on an application under subsection (2)(a) pending the determination or discontinuation of any proceedings against the applicant for an offence against –

(a) this Act; or

(b) any other Act that the Secretary thinks is relevant to the making of that decision; or

(c) a corresponding law.

(5)  If the Secretary varies a licence, the Secretary –

(a) may require the holder to return the previously issued licence; and

(b) is to issue a substitute licence.

(6)  A variation of a licence takes effect on the day on which the substitute licence is issued.

(7)  In this section –

vary a licence includes vary the conditions of the licence by doing one or more of the following:

(a) omitting an existing condition;

(b) amending an existing condition;

(c) adding a new condition.

84 Damages in respect of transfer or variation of licence

A person who has a legal or equitable interest in a licence is not entitled to bring any action for damages against the Crown in respect of the transfer of the licence or any quota or entitlement under the licence or the variation of the licence.

85 Effectiveness of licences

A licence is of no effect for any period during which any fees, charges or royalties payable in respect of the licence are not paid by the due date or by the due date as extended under section 275 .

86.

[Section 86 Subsection (4) omitted by No. 45 of 1997, s. 23, Applied:13 Nov 1997] [Section 86 Repealed by No. 7 of 2007, s. 25, Applied:30 Apr 2007]

86A Compliance with conditions

[Section 86A Amended by No. 7 of 2007, s. 26, Applied:30 Apr 2007] [Section 86A Inserted by No. 45 of 1997, s. 24, Applied:13 Nov 1997] A person must not contravene a condition of a licence.

Penalty:  Fine not exceeding 500 penalty units or imprisonment for a term not exceeding 2 years, or both, and a daily fine not exceeding 50 penalty units.

87 Prohibition on use of licence by other persons

(1)  [Section 87 Subsection (1) amended by No. 24 of 2021, s. 9, Applied:31 Mar 2023] [Section 87 Subsection (1) substituted by No. 42 of 1998, s. 15, Applied:18 Dec 1998] A holder of a licence, without the Secretary’s approval, must not allow another person to use the licence –

(a) by means of leasing, subleasing or lending; or

(b) by acting as a supervisor; or

(c) by any other arrangement or agreement.

Penalty:  Fine not exceeding 100 penalty units.

(2)  [Section 87 Subsection (2) substituted by No. 42 of 1998, s. 15, Applied:18 Dec 1998] [Section 87 Subsection (2) amended by No. 7 of 2007, s. 27, Applied:30 Apr 2007] [Section 87 Subsection (2) substituted by No. 24 of 2021, s. 9, Applied:31 Mar 2023] The Secretary may, for the purposes of subsection (1) , grant an approval for a person to use a licence if satisfied that the person for whom the approval is sought –

(a) is eligible to hold the licence; and

(b) is not disqualified from holding a licence under this Act.

(2A)  [Section 87 Subsection (2A) amended by No. 24 of 2021, s. 9, Applied:31 Mar 2023] [Section 87 Subsection (2A) inserted by No. 42 of 1998, s. 15, Applied:18 Dec 1998] The Secretary may defer a decision in respect of an approval if –

(a) [Section 87 Subsection (2A) amended by No. 24 of 2021, s. 9, Applied:31 Mar 2023] the person for whom the approval is sought has been charged with an offence under this Act, a corresponding law or any other Act the Secretary considers relevant; and

(b) the charge has not been determined at the time the application was made –

until the charge is determined.

(3)  [Section 87 Subsection (3) amended by No. 7 of 2007, s. 27, Applied:30 Apr 2007] It is a defence in proceedings under subsection (1) if the defendant establishes that he or she–

(a) was no longer the holder of the relevant licence because the licence has been transferred; or

(b) is otherwise authorised to do so.

(4)  [Section 87 Subsection (4) amended by No. 24 of 2021, s. 9, Applied:31 Mar 2023] Unless the Secretary otherwise determines, any agreement which allows a person to use a licence held by another person is unenforceable–

(a) for the purposes of this Act or any other Act; and

(b) in any legal proceedings initiated by any of the parties to the agreement.

88 Substitute licensee

(1)  [Section 88 Subsection (1) amended by No. 24 of 2021, s. 10, Applied:31 Mar 2023] Unless otherwise provided, the Secretary may approve a suitable person nominated by the licensee or the personal representative of the licensee to be a substitute licensee to execute any documents in respect of the licence–

(a) during any period the licensee is unable to execute the document; or

(b) if the licensee has died.

(2)  [Section 88 Subsection (2) amended by No. 24 of 2021, s. 10, Applied:31 Mar 2023] The executor or administrator of the estate of a deceased licensee is a substitute licensee for any period the Secretary determines.

(3)  [Section 88 Subsection (3) inserted by No. 24 of 2021, s. 10, Applied:31 Mar 2023] A substitute licensee for a licence is, for the purposes of this section, taken to be approved as eligible to hold that category of licence under section 76A .

(4)  [Section 88 Subsection (4) inserted by No. 24 of 2021, s. 10, Applied:31 Mar 2023] For the avoidance of doubt, a substitute licensee is not taken to be approved as eligible to hold a category of licence under section 76A for the purpose of applying for or holding any other licence.

89 Supervision of activities

(1)  [Section 89 Subsection (1) substituted by No. 45 of 1997, s. 25, Applied:13 Nov 1997] The holder of a licence must ensure that any activity carried out under the authority of the licence is supervised by a supervisor, a person designated under subsection (7) or under a form of supervision approved under subsection (5) .

Penalty:  Fine not exceeding 500 penalty units or imprisonment for a term not exceeding 2 years, or both, and a daily fine not exceeding 50 penalty units.

(2)  A supervisor is –

(a) if the licence is granted to a natural person, the licensee; or

(b) [Section 89 Subsection (2) amended by No. 24 of 2021, s. 11, Applied:31 Mar 2023] .  .  .  .  .  .  .  .  

(ba) [Section 89 Subsection (2) amended by No. 45 of 1997, s. 25, Applied:13 Nov 1997] a person approved to use a licence under section 87 ; or

(c) a person approved as substitute licensee under section 88 .

(3)  A person may be a supervisor in respect of activities carried out under one marine farming licence or under more than one specified marine farming licence.

(4)  [Section 89 Subsection (4) amended by No. 7 of 2007, s. 28, Applied:30 Apr 2007] [Section 89 Subsection (4) substituted by No. 45 of 1997, s. 25, Applied:13 Nov 1997] A supervisor must ensure that any activity carried out under a licence complies with this Act as if the supervisor were the holder of the licence.

Penalty:  Fine not exceeding 500 penalty units or imprisonment for a term not exceeding 2 years, or both, and a daily fine not exceeding 50 penalty units.

(5)  [Section 89 Subsection (5) amended by No. 24 of 2021, s. 11, Applied:31 Mar 2023] If for any reasonable reason the supervisor is unable to supervise an activity, the Secretary may approve another form of supervision that is acceptable in the circumstances.

(6)  [Section 89 Subsection (6) inserted by No. 45 of 1997, s. 25, Applied:13 Nov 1997] [Section 89 Subsection (6) omitted by No. 24 of 2021, s. 11, Applied:31 Mar 2023] .  .  .  .  .  .  .  .  

(7)  [Section 89 Subsection (7) inserted by No. 45 of 1997, s. 25, Applied:13 Nov 1997] If the holder of a marine farming licence is a partnership, corporation or trustee the holder must –

(a) designate a person to supervise any activity for which the licence is required; and

(b) if required by a fisheries officer to do so, identify that person.

Penalty:  Fine not exceeding 500 penalty units or imprisonment for a term not exceeding 2 years, or both, and a daily fine not exceeding 50 penalty units.