Fish Resources Management Act 1994

Western Australia

CONTENTS

Part 1 — Preliminary

1. Short title 2

2. Commencement 2

3. Objects 2

4. Interpretation 3

5. Meaning of “WA waters” 11

6. Application of Act to Aboriginal persons 12

7. Exemptions 12

8. Crown bound 13

Part 2 — Administration

9. Minister continued in existence as body corporate 14

11. Fisheries officers and other staff 14

12. Delegation by Minister 14

13. Delegation by CEO 15

14. Minister may carry out research 15

Part 3 — Commonwealth‑State management of fisheries

Division 1 — Preliminary

15. Interpretation 16

Division 2 — Joint Authorities

16. Powers and functions of Minister 16

17. Judicial notice 17

18. Functions of Joint Authority 17

19. Delegation 17

20. Procedure of Joint Authorities 18

21. Report of Joint Authority 19

Division 3 — Arrangements for management of particular fisheries

22. Arrangement for management of particular fishery 19

23. Application of this Act to fisheries in accordance with arrangements 20

24. Functions of Joint Authority 21

25. Joint Authority to exercise certain powers instead of Minister etc. 21

26. Application of provisions relating to offences 22

27. Presumption relating to certain statements 23

28. Regulations, orders etc. 23

Part 4 — Advisory Committees

Division 1 — Rock Lobster Industry Advisory Committee

29. Rock Lobster Industry Advisory Committee 26

30. Functions of Advisory Committee 27

31. Chairperson 27

32. Constitution and proceedings 27

Division 2 — Recreational Fishing Advisory Committee

33. Recreational Fishing Advisory Committee 27

34. Functions of Advisory Committee 29

35. Chairperson 29

36. Constitution and proceedings 29

Division 3 — Aquaculture Development Council

37. Aquaculture Development Council 30

38. Functions of Council 30

39. Chairperson 31

40. Constitution and proceedings 31

Division 4 — Fishery Management Advisory Committees

41. Fishery Management Advisory Committees 31

Division 5 — Other Committees

42. Other committees 32

Part 5 — General regulation of fishing

Division 1 — Prohibited fishing

43. Order may prohibit fishing 33

44. Orders subject to tabling, disallowance etc. 33

Division 2 — Protected fish

45. Class of fish may be prescribed to be protected fish 34

46. Totally protected fish 34

47. Commercially protected fish 34

48. Defences 35

49. Mutilation of fish to prevent determination prohibited 35

Division 3 — Bag and possession limits

50. Bag limits — taking of fish 35

51. Possession limits — possession of fish 36

Division 4 — General penalty

52. General penalty 37

Part 6 — Management of fisheries

Division 1 — Interpretation

53. Meaning of “authorisation” in this Part 39

Division 2 — Management plans

54. Determination of management plan 39

55. Instruments subject to tabling, disallowance etc. 39

56. General contents 39

57. Expiry date 40

58. Management plan — authorisations 40

59. Management plan — capacity of fishery 41

60. Management plan — entitlements 42

61. Management plan — prohibited fishing in fishery 42

62. Management plan — miscellaneous 43

63. How an interim managed fishery becomes a managed fishery 45

Division 3 — Procedure before determining or amending management plans

64. Procedure before determining management plan 46

65. Procedure before amending management plan 46

Division 4 — Managed fishery licences and interim managed fishery permits

66. Grant of managed fishery licences and interim managed fishery permits 47

67. Duration of licences and permits 48

68. Renewal of licences and permits 48

69. Conditions 49

70. Authorisation ceases to have effect if management plan ceases to have effect 49

71. Prior fishing confers no right to authorisation 49

72. Grant of authorisation confers no right to subsequent authorisation 50

73. Other licences do not authorise fishing in fishery 50

73A. Authorisation is subject to restrictions in relation to certain marine reserves 50

Division 5 — Offences

74. Contravention of management plan 51

75. General penalty 51

76. Court to order reduction of entitlement in certain circumstances 52

77. Contravention of condition of licence or permit 53

78. General penalty 53

Part 7 — Fish processing

79. Fish processing establishment not to be established without permit 54

80. Grant of permit 54

81. Conditions 55

82. Fish processor to be licensed 56

83. Grant of fish processor’s licence 56

84. Duration of licence 57

85. Renewal of licence 57

86. Fish must not be processed or stored except at place specified in licence 57

87. Conditions 58

88. Contravention of condition of permit or licence 59

89. Regulations relating to fish processing 59

Part 8 — Aquaculture

90. Persons engaging in aquaculture and related activities to be licensed 60

91. Exceptions 60

92. Grant of aquaculture licence 61

93. Duration of licence 62

94. Renewal of licence 62

95. Conditions 64

96. Contravention of condition of licence 64

97. Grant of aquaculture leases 65

98. Limitation on granting of leases in certain marine reserves 66

98A. Limitation on renewal of leases in certain marine reserves 67

99. Aquaculture licence required in connection with lease 68

100. Termination of lease 68

101A. Minister’s powers in relation to aquaculture 69

102. Regulations relating to aquaculture 70

Part 9 — Noxious fish

103. Species of fish may be prescribed to be noxious fish 72

104. Noxious fish not be kept etc. 72

105. Noxious fish not to be brought into the State etc. 72

106. Requirements relating to noxious fish 73

107. Recovery of cost of destruction of noxious fish 73

108. No compensation payable for incidental damage 74

Part 10 — Designated fishing zones

109. Area may be prescribed to be designated fishing zone 75

110. Designated fishing zone not to be created in marine nature reserve or marine park 75

111. Signs to be erected 75

112. Directions relating to designated fishing zones 76

113. Regulations relating to designated fishing zones 76

Part 11 — Fish habitat protection areas and Abrolhos Islands reserve

Division 1 — Fish habitat protection areas

114. Application of Division to other Acts 77

115. Area may be set aside as fish habitat protection area 77

116. Fish habitat protection area not to be created in marine nature reserve or marine park 78

117. Minister to determine draft plan for fish habitat protection area 78

118. Notice of proposal to establish fish habitat protection area 78

119. Vesting of management of fish habitat protection areas 79

120. Regulations relating to fish habitat protection areas 80

Division 2 — Abrolhos Islands reserve

121. Regulations relating to Abrolhos Islands reserve 81

122. Vesting of management of reserve 82

123. Application of certain sections of the Parks and Reserves Act 1895 83

Part 12 — Register

124. Registrar 84

125. Register 84

126. Information to be included in register 84

127. Application for notation of security interest 85

128. Notation of security interest 85

129. Registrar not to be concerned with certain matters 86

130. Effect of notation — security holder to be notified of certain events affecting security interest86

131. Removal or variation of notation 87

132. Register may be amended 88

133. No compensation payable 88

134. Regulations relating to register 88

Part 13 — General provisions relating to authorisations

135. Applications 89

136. Grant of authorisations not as of right 89

136A. Grant or renewal of authorisations over areas in marine reserves 90

137. Effect of authorisations 91

138. Form of authorisations 91

139. Renewal after expiry 91

140. Transfer 92

141. Temporary transfer of entitlements 93

142. Variation 93

143. Cancellation, suspension and non‑renewal 94

144. Voluntary surrender 96

145. Return of authorisations 96

Part 14 — Right to object or apply for review

146. Meaning of “affected person” 97

147. CEO to notify persons of certain decisions 98

148. CEO to publish notice of certain decisions 98

149. Review 99

150. Continuation of authorisation pending decision on renewal 99

151. Notice of when decision has effect 100

152. Notice of decision upon application for review 100

Part 15 — Miscellaneous offences

170. Use of explosives or noxious substances for fishing 102

171. Interference with lawful fishing activities 102

172. Unlawful interference with fishing gear 103

173. Purchase or sale of fish taken in contravention of this Act103

174. Use of foreign boat for fishing 104

175. Having foreign boat equipped with fishing gear 104

175A. Mandatory maximum sentences for individuals convicted of third or subsequent offences 105

176. False statements in applications 106

Part 16 — Fisheries officers

177. Certificate of appointment 107

178. Production of certificate 107

179. Honorary fisheries officers 107

180. Police officers to have powers of fisheries officers 108

181. Naval officers to have powers of fisheries officers in dealing with foreign boats 109

182. Routine inspection 109

183. Entry onto land 110

184. Entry and search of non‑residential premises in connection with offence 110

185. Entry and search of residential premises in connection with offence 110

186. Entry and search of tents, camps and unauthorised structures 111

187. Warrants 111

188. Warrants may be granted by telephone etc. 112

189. Provision of information 113

190. Production of authorisations etc. 114

191. Other powers of fisheries officers 115

191A. Additional powers of fisheries officers in relation to cruelty118

192. Arrest 118

193. Seizure 119

194. Fish may be returned to water etc. 120

195. Seizure of abandoned etc. fishing gear 121

196. Person not to interfere with seized property 122

197. Giving of assistance 122

198. Fisheries officer to try to minimize damage 123

199. False or misleading information 123

200. Obstruction of fisheries officers 124

Part 17 — Legal proceedings

Division 1 — Proceedings

201. Proceedings 125

Division 2 — Responsibility of certain persons

202. Liability of master 125

202A. Liability of person in charge of a fishing tour 126

203. Liability of authorisation holder 127

204. Liability of officers for offence by body corporate 128

Division 3 — Evidentiary provisions

205. Proof of exemptions 128

206. Proof of place of offence 129

207. Proof that boat was a foreign boat 129

208. Proof of contents etc. of package 129

209. Proof that fish were taken for sale 130

210. Fish on fishing boats and commercial premises etc. presumed to be for sale 130

211. Proof of purpose 131

212. Evidence of licensing matters 131

213. Evidence of scientific matters 132

214. Determination of characteristics of fish 133

215. Accuracy of measuring equipment 133

216. Position to be ascertained by reference to Australian Geodetic Datum 134

Division 4 — Forfeiture

217. Return of things seized 134

218. Order for forfeiture 135

219. Forfeiture of abandoned fishing gear 136

220. Certain fish forfeited upon seizure 136

221. Disposal of forfeited things 137

Division 5 — Additional penalties

222. Additional penalty based on value of fish 137

223. Court may cancel or suspend authorisation 138

224. Automatic cancellation of authorisation if 3 offences are committed in any 10 year period 138

225. Court may prohibit person from being on fishing boats or certain places etc. 139

Division 6 — Infringement notices

226. Interpretation 140

227. Authorised persons 141

228. Giving of notice 141

229. Form of notice 141

230. Extension of time 142

231. Withdrawal of notice 142

232. Payment of penalty 142

Part 18 — Financial provisions

Division 1 — Collection of levy imposed under Fishing Industry Promotion Training and Management Levy Act 1994

233. When levy is payable 144

234. Payment by instalments 144

235. Exemption from levy 144

236. Penalty for non‑payment 145

237. Recovery of levy 145

Division 2 — Accounts

238. Fisheries Research and Development Account 145

239. Recreational Fishing Account 149

240. Fishing Industry Promotion Training and Management Levy Account 151

241. AFMA Account 152

242. Fisheries Research and Development Corporation Account153

243. Application of Financial Management Act 2006 and Auditor General Act 2006 154

Part 19 — Miscellaneous

244. Protection from liability 155

245. Remuneration of committee members 155

246. Policy guidelines — general 156

247. Policy guidelines — foreign interests 156

248. Consultation relating to guidelines 157

249. Inquiry relating to authorisation 157

250. Confidentiality 158

251. Exclusive licences 160

252. Exclusive licence not to be granted in marine nature reserve or marine park 161

254. Minister to be notified of certain works on a waterway 161

255. Minister may prohibit activities that pollute waters 162

256. Regulations — general power 162

257. Regulations — other licences 163

258. Regulations — miscellaneous 164

259. Categories of fish 168

261. Service of notices 168

262. CEO to keep and make available copies of subsidiary legislation 168

263. Annual report 169

266. Savings and transitional provisions 169

Schedule 1

Constitution and proceedings of Advisory Committees

1. Meaning of “Advisory Committee” 170

2. Term of office of members 170

3. Vacation of office by member 170

4. Proceedings of Committee 171

5. Chairperson 171

6. Voting 171

7. Person may attend at meeting 172

8. Disclosure of interests 172

9. Minutes 172

Schedule 3

Savings and transitional provisions

1. Interpretation Act 1984 not affected 173

2. Director of Fisheries 173

3. Inspectors 173

4. Honorary inspectors 173

5. Fisheries Research and Development Fund 173

6. Rock Lobster Industry Advisory Committee 174

7. Arrangements 174

8. Limited entry fishery taken to be a managed fishery 174

9. Limited entry fishery notice taken to be management plan 174

10. Limited entry fishery licence continued in force 175

11. Permit to establish processing establishment continued in force 175

12. Processor’s licence continued in force 175

13. Fish farm licence continued in force 176

14. Proclaimed fishing zones continued in force 176

15. Fishing boat licence continued in force 176

16. Carrier boat licence continued in force 176

17. Professional fisherman’s licence continued in force 177

18. Recreational fishing licence continued in force 177

19. Transitional regulations 177

Notes

Compilation table 178

Provisions that have not come into operation 180

Western Australia

Fish Resources Management Act 1994

An Act relating to the management of fish resources, to repeal and amend certain Acts, and for related purposes.

Part 1 — Preliminary

1. Short title

This Act may be cited as the Fish Resources Management Act 1994 1.

2. Commencement

This Act comes into operation on such day as is fixed by proclamation 1.

3. Objects

(1) The objects of this Act are to conserve, develop and share the fish resources of the State for the benefit of present and future generations.

(2) In particular, this Act has the following objects —

(a) to conserve fish and to protect their environment;

(b) to ensure that the exploitation of fish resources is carried out in a sustainable manner;

(c) to enable the management of fishing, aquaculture and associated industries, aquatic eco‑tourism and other tourism reliant on fishing;

(d) to foster the development of commercial and recreational fishing and aquaculture including the establishment and management of aquaculture facilities for community or commercial purposes;

(e) to achieve the optimum economic, social and other benefits from the use of fish resources;

(f) to enable the allocation of fish resources between users of those resources;

(g) to provide for the control of foreign interests in fishing, aquaculture and associated industries;

(h) to enable the management of fish habitat protection areas and the Abrolhos Islands reserve.

[Section 3 amended by No. 41 of 2000 s. 4; No. 2 of 2002 s. 4.]

4. Interpretation

(1) In this Act, unless the contrary intention appears —

“Aboriginal person” means a member of the Aboriginal race of Australia;

“Abrolhos Islands reserve” means Reserve No. 20253 classified as of Class “A”;

“AFMA” means the Australian Fisheries Management Authority established under the Fisheries Administration Act 1991 of the Commonwealth;

“aquaculture” means the keeping, breeding, hatching or culturing of fish;

“Aquaculture Development Council” means the advisory committee established under section 37;

“aquaculture lease” means a lease granted under section 97;

“aquaculture licence” means an aquaculture licence granted under section 92;

“aquatic eco‑tourism” means tourism relating to fish in their natural environment and includes the viewing or feeding of fish but does not include the taking of fish;

“Australian fishing zone” has the same meaning as in the Commonwealth Act;

“authorisation” means a licence or permit;

“bed”, in relation to any waters, means the land permanently or intermittently covered by the waters or the land over which the waters permanently or intermittently flow;

“boat” means a vessel, craft or floating platform of any description that is capable of use in or on water, whether floating or submersible;

“category 1 fish” means any fish of a species prescribed under section 259 to be category 1 fish;

“category 2 fish” means any fish of a species prescribed under section 259 to be category 2 fish;

“category 3 fish” means any fish of a species prescribed under section 259 to be category 3 fish;

“category 4 fish” means any fish of a species prescribed under section 259 to be category 4 fish;

“CEO” means the chief executive officer of the Department;

“coastal waters”, in relation to the State, has the same meaning as in the Commonwealth Act;

“commercial fishing” means fishing for a commercial purpose;

“commercial fishing licence” means a licence granted under the regulations authorising a person to engage in commercial fishing;

“commercial purpose” means the purpose of sale or any other purpose that is directed to gain or reward;

“commercially protected fish” means any fish of a class prescribed under section 45 to be commercially protected fish;

“Commonwealth Act” means the Fisheries Management Act 1991 of the Commonwealth;

“Department” means the department of the Public Service principally assisting the Minister in the administration of this Act;

“designated fishing zone” means an area prescribed under section 109 to be a designated fishing zone;

“document” includes any tape, disc or other device or medium on which information is recorded or stored mechanically, photographically, electronically or otherwise;

“entitlement” means an entitlement that a person has from time to time under a managed fishery licence or an interim managed fishery permit;

“exclusive licence” means an exclusive licence granted under section 251;

“exemption” means an exemption granted under section 7;

“fish” means an aquatic organism of any species (whether alive or dead) and includes —

(a) the eggs, spat, spawn, seeds, spores, fry, larva or other source of reproduction or offspring of an aquatic organism; and

(b) a part only of an aquatic organism (including the shell or tail),

but does not include aquatic mammals, aquatic reptiles, aquatic birds, amphibians or (except in relation to Part 3 and Division 1 of Part 11) pearl oysters;

“fisheries officer” means a fisheries officer referred to in section 11;

“Fisheries Research and Development Corporation” means the Fisheries Research and Development Corporation established under the Primary Industries and Energy Research and Development Act 1989 of the Commonwealth;

“fishery” means —

(a) one or more stocks or parts of stocks of fish that can be treated as a unit for the purposes of conservation or management; and

(b) a class of fishing activities in respect of those stocks or parts of stocks of fish;

“fish habitat protection area” means an area set aside under section 115 as a fish habitat protection area;

“fishing” or “fishing activity” means —

(a) searching for fish;

(b) attempting to take fish;

(d) engaging in any other activity that can reasonably be expected to result in the taking of fish;

“fishing boat” means a boat that is used for commercial fishing;

“fishing boat licence” means a licence granted under the regulations authorising a person to use a boat for commercial fishing;

“fishing gear” means any equipment, implement, device, apparatus or other thing used or designed for use for, or in connection with, fishing;

“fishing tour” means a tour a central purpose of which is to provide an opportunity for recreational fishing and may include the provision of fishing guidance, fishing gear, accommodation or transport;

“fish processor’s licence” means a fish processor’s licence granted under section 83;

“foreign boat” has the same meaning as in the Commonwealth Act;

“forfeited entitlement” means the amount by which an entitlement is reduced under section 76;

“honorary fisheries officer” means an honorary fisheries officer appointed under section 179;

“interim managed fishery” means a fishery declared by a management plan to be an interim managed fishery;

“interim managed fishery permit”, in relation to an interim managed fishery, means a permit granted under section 66 in respect of that fishery;

“levy” means a levy imposed under the Fishing Industry Promotion Training and Management Levy Act 1994;

“licence” means —

(a) an aquaculture licence;

(b) a commercial fishing licence;

(d) a fish processor’s licence;

(e) a managed fishery licence;

(f) a recreational fishing licence; or

(g) any other licence provided for in the regulations;

“managed fishery” means a fishery declared by a management plan to be a managed fishery;

“managed fishery licence”, in relation to a managed fishery, means a licence granted under section 66 in respect of that fishery;

“management plan”, in relation to a fishery, means a management plan determined for that fishery under section 54;

“marine management area” has the same meaning as in the Conservation and Land Management Act 1984;

“marine nature reserve” has the same meaning as in the Conservation and Land Management Act 1984;

“marine park” has the same meaning as in the Conservation and Land Management Act 1984;

“master”, in relation to a boat, means the person for the time being having the command, charge or management of the boat;

“noxious fish” means any fish of a species prescribed under section 103 to be noxious fish;

“noxious substance” means any substance that may be harmful to fish;

“peak industry body” means such body (whether incorporated or not) as is prescribed for the purposes of this definition;

“pearl oyster” has the same meaning as in section 3(1) of the Pearling Act 1990;

“permit” means —

(a) an interim managed fishery permit; or

(b) a permit granted under section 80;

“place” means any land, building, structure (whether permanent or temporary), tent, boat, aircraft or vehicle or any part of any land, building, structure, tent, boat, aircraft or vehicle;

“possession” includes having under control in any place, whether for the use or benefit of the person in relation to whom the term is used or another person, and whether or not another person has the actual possession or custody of the thing in question;

“premises” includes part of any premises but does not include —

(a) an unauthorised structure; or

(b) a caravan that is not in an area registered as a caravan park by a local government or regional local government;

“private land” means any land that —

(a) is alienated from the Crown for any estate of freehold; or

(b) is the subject of a conditional purchase agreement, or of any lease or concession with or without a right of acquiring the fee simple in that land;

“process” means cut up, break up, shell, skin, shuck, fillet, cook, void, purge, pack, chill, freeze, can, preserve, or otherwise treat any fish and, in relation to fish of a prescribed class, includes hold or consign the fish live for export;

“protected fish” means —

(a) commercially protected fish; or

(b) totally protected fish;

“purchase” includes —

(a) take in exchange;

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

“recreational fishing” means fishing for a purpose other than a commercial purpose;

“Recreational Fishing Advisory Committee” means the advisory committee established under section 33;

“recreational fishing licence” means a licence granted under the regulations authorising a person to engage in a specified activity by way of recreational fishing;

“register” means the register kept under section 125;

“Registrar” means the Registrar referred to in section 124;

“repealed Act” means the Fisheries Act 1905;

“Rock Lobster Industry Advisory Committee” means the advisory committee continued in existence under section 29;

“security holder”, in relation to an authorisation or aquaculture lease, means a person noted on the register as having a security interest in the authorisation or aquaculture lease;

“security interest”, in relation to an authorisation or aquaculture lease, means an interest in the authorisation or aquaculture lease (however arising) which secures payment of a debt or other pecuniary obligation or the performance of any other obligation;

“sell” includes —

(a) auction;

(b) put out to tender;

(d) supply for profit;

(e) offer for sale;

(f) receive for sale;

(g) expose for sale; or

(h) consign or deliver for sale;

“species” includes subspecies, hybrid or variant;

“specified”, in relation to a regulation, management plan, order, notice or other instrument, means specified in the regulation, management plan, order, notice or other instrument (as the case may be);

“take”, in relation to fish, includes catch, capture, entrap, enclose, gather, remove, poison, stun, kill or destroy fish by any means;

“this Act” includes regulations, orders and management plans made or determined under this Act;

“totally protected fish” means any fish of a class prescribed under section 45 to be totally protected fish;

“unauthorised structure” means any hut, shack or other structure on land other than private land the erection of which has not been authorised under a written law;

“unit”, in relation to an entitlement, means a unit as defined from time to time in the relevant management plan;

“vary”, in relation to an authorisation, means to vary anything in the authorisation and includes to substitute any boat, place or other thing in respect of which the authorisation is granted;

“vehicle” has the same meaning as in the Road Traffic Act 1974;

“waters” includes —

(a) the bed or subsoil, if any, under any waters; and

(b) the airspace above any waters;

“WA waters” has the meaning given by section 5.

(2) A class of fishing activities or a fishery may be defined in an order, management plan, regulation, arrangement, notice, authorisation or other instrument by reference to all or any of the following —

(a) a species or type of fish;

(b) a description of fish by reference to sex, weight, size, reproductive cycle or any other characteristic;

(d) a method of fishing;

(e) a type of fishing gear;

(f) a class of boats, vehicles or aircraft;

(g) a class of persons;

(h) a purpose of activities.

[Section 4 amended by No. 14 of 1996 s. 4; No. 5 of 1997 s. 46; No. 41 of 2000 s. 5; No. 2 of 2002 s. 5; No. 74 of 2003 s. 56(2); No. 55 of 2004 s. 381; No. 28 of 2006 s. 232.]

5. Meaning of “WA waters”

In this Act, a reference to WA waters —

(a) is a reference to all waters within the limits of the State;

(b) except for purposes relating to a fishery that is to be managed in accordance with the law of the Commonwealth under an arrangement under Part 3 and except for purposes specified in paragraph (d), is a reference to any waters not within the limits of the State that are on the landward side of waters adjacent to the State that are within the Australian fishing zone;

(c) for purposes relating to a fishery that is to be managed in accordance with the law of the State under an arrangement under Part 3, is a reference to any waters to which the legislative powers of the State extend, with respect to that fishery, whether under section 5 of the Coastal Waters (State Powers) Act 1980 of the Commonwealth or otherwise; and

(d) for purposes relating to recreational fishing, within the meaning of the Commonwealth Act, other than recreational fishing —

(i) carried on by the use of a foreign boat; or

(ii) prohibited or regulated by a plan of management determined under section 17 of the Commonwealth Act,

is a reference to any waters to which the legislative powers of the State extend with respect to such fishing.

6. Application of Act to Aboriginal persons

An Aboriginal person is not required to hold a recreational fishing licence to the extent that the person takes fish from any waters in accordance with continuing Aboriginal tradition if the fish are taken for the purposes of the person or his or her family and not for a commercial purpose.

7. Exemptions

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

(2) The Minister may grant an exemption for any purpose.

(3) The CEO may only grant an exemption for the following purposes —

(a) scientific research;

(b) the collection, keeping, breeding, hatching or culturing of rare or endangered fish;

(d) the promotion of fishing or fish products;

(e) the promotion of tourism or recreational activities;

(f) fish stock depletion or enhancement; or

(g) educational and community awareness programmes.

(4) An application for an exemption —

(a) may be made to the Minister or the CEO;

(b) must be in a form approved for that purpose by the CEO; and

(5) An exemption may be granted subject to such conditions as the Minister or the CEO (as the case may be) thinks fit and specifies in the instrument.

(6) The Minister or the CEO (as the case may be) may, if he or she thinks fit, by further instrument in writing —

(a) vary or revoke an exemption; or

(b) delete, vary or add to any conditions imposed in relation to that exemption.

(7) A person must not contravene a condition of an exemption.

Penalty: In the case of an individual, $10 000 or, in the case of a body corporate, $20 000.

[Section 7 amended by No. 28 of 2006 s. 236(1).]

8. Crown bound

(1) This Act binds the Crown in right of the State and, subject to the limits of the legislative power of the State, the Crown in all its other capacities.

(2) Nothing in this Act makes the Crown in any of its capacities liable to be prosecuted for an offence.

Part 2 — Administration

9. Minister continued in existence as body corporate

(1) The body corporate constituted by the Minister and referred to in section 4A of the repealed Act under the name “Minister for Fisheries” is preserved and continued in existence.

(2) The corporate identity and the rights, obligations and assets of the body corporate are not affected by the repeal of the repealed Act.

(3) The body corporate —

(a) has perpetual succession and a common seal;

(b) may sue and be sued in its corporate name; and

(4) If a document is produced bearing a seal purporting to be the common seal of the Minister for Fisheries, it is to be presumed that the common seal is the common seal of the Minister for Fisheries, unless the contrary is proved.

[10. Repealed by No. 28 of 2006 s. 233.]

11. Fisheries officers and other staff

There are to be appointed under Part 3 of the Public Sector Management Act 1994 such fisheries officers and other staff as are required for the purposes of the administration of this Act.

12. Delegation by Minister

(1) The Minister may, by instrument in writing, delegate to a person, either generally or as otherwise provided in the instrument, any power or duty under this Act, other than —

(a) this power of delegation; and

(b) the powers conferred under sections 7, 43, 54, 97, 115, 119, 122, 246, 247, 251 and 255.

(2) Anything done by a delegate under a delegation under this section has the same force and effect as if it had been done by the Minister.

13. Delegation by CEO

(1) The CEO may, by instrument in writing, delegate to a person, either generally or as otherwise provided in the instrument, any power or duty under this Act, other than this power of delegation.

(2) Anything done by a delegate under a delegation under this section has the same force and effect as if it had been done by the CEO.

[Section 13 amended by No. 28 of 2006 s. 236(1).]

14. Minister may carry out research

The Minister may cause to be carried out any research, exploration, experiments, works or operations of any kind for the purposes of this Act.

Part 3 — Commonwealth‑State management of fisheries

Division 1 — Preliminary

15. Interpretation

In this Part, unless the contrary intention appears —

“arrangement” means an arrangement made by the State with the Commonwealth under this Part, whether or not it is also made with another State or other States;

“Commonwealth Minister” means the Minister for the time being administering the Commonwealth Act and any other Minister exercising powers and performing functions under section 60 of the Commonwealth Act;

“fishery” means a fishery identified in an arrangement as a fishery to which the arrangement applies;

“Joint Authority” means —

(a) the Western Australian Fisheries Joint Authority continued in existence under the Fisheries Legislation (Consequential Provisions) Act 1991 of the Commonwealth; and

(b) any other Joint Authority established under the Commonwealth Act of which the Minister is a member;

“Joint Authority fishery” means a fishery in respect of which there is in force an arrangement under which the fishery is to be under the management of a Joint Authority.

Division 2 — Joint Authorities

16. Powers and functions of Minister

(1) The Minister may exercise any power and perform any function conferred on the Minister by the Commonwealth Act, including any power or function conferred on the Minister as a member of a Joint Authority.

(2) If, in the exercise of the power conferred on the Minister by the Commonwealth Act, the Minister appoints a deputy, the deputy may exercise the powers and perform the functions conferred by that Act on the deputy of a member of a Joint Authority other than the Commonwealth Minister.

17. Judicial notice

All courts and persons acting judicially must take judicial notice of the signature of a person who is or has been a member of a Joint Authority or a deputy of a member of a Joint Authority and of the fact that the person is, or was at a particular time, such a member or deputy.

18. Functions of Joint Authority

A Joint Authority has such functions in relation to a fishery in respect of which an arrangement is in force as are conferred on it by the law in accordance with which, under the arrangement, the fishery is to be managed.

19. Delegation

(1) A Joint Authority may, by instrument in writing, delegate to a person, either generally or as otherwise provided in the instrument, any of its powers under this Act other than this power of delegation.

(2) If a power delegated under subsection (1) is exercised by the delegate, the power must, for the purposes of this Act, be taken to have been exercised by the Joint Authority.

(3) A delegation under this section may be expressed as a delegation to the person from time to time holding or performing the duties of a specified office, including an office —

(a) in the service of;

(b) in the service of an authority of; or

the Commonwealth, another State or a Territory.

(4) A delegate of a Joint Authority is, in the exercise of delegated powers, subject to the directions of the Joint Authority.

(5) A delegation of a power under this section —

(a) may be revoked, by instrument in writing, by the Joint Authority (whether or not constituted by the persons constituting the Joint Authority at the time the power was delegated);

(b) does not prevent the exercise of the power by the Joint Authority; and

(6) A certificate signed by a member of a Joint Authority stating any matter with respect to a delegation under this section by the Joint Authority is evidence of that matter.

(7) A document purporting to be a certificate referred to in subsection (6) must, unless the contrary is established, be taken to be such a certificate and to have been duly given.

(8) Nothing in this section —

(a) limits the operation of sections 58 and 59 of the Interpretation Act 1984; or

(b) is intended to prevent the delegation by a Joint Authority, in accordance with the law of the Commonwealth, of powers conferred on the Joint Authority by that law.

20. Procedure of Joint Authorities

(1) Sections 66 to 68 (inclusive) of the Commonwealth Act apply to and in relation to the performance by a Joint Authority of its functions under a written law of the State.

(2) A written record of a decision of a Joint Authority, if signed by the Commonwealth Minister, or a deputy of that Minister, who took part in or made the decision, is evidence that the decision, as recorded, was duly made.

(3) In any legal proceedings, an instrument or other document signed, on behalf of a Joint Authority, by a member of that Joint Authority —

(a) must be taken to have been duly executed by the Joint Authority; and

(b) unless the contrary is proved, must be taken to be in accordance with a decision of the Joint Authority.

21. Report of Joint Authority

The Minister must cause a copy of a report of a Joint Authority prepared under section 70 of the Commonwealth Act to be laid before each House of Parliament as soon as practicable after the preparation of the report.

Division 3 — Arrangements for management of particular fisheries

22. Arrangement for management of particular fishery

(1) The State may, in accordance with section 74 of the Commonwealth Act, make an arrangement referred to in section 71 or 72 of that Act for the management of a particular fishery.

(2) An arrangement may be terminated as provided by the Commonwealth Act.

(3) After an arrangement has been made but before the arrangement takes effect authorisations, regulations, orders and instruments may be granted, renewed, made or determined for the purposes of the operation of this Act as affected by the arrangement as if the arrangement had taken effect.

(4) An authorisation, regulation, order or instrument referred to in subsection (3) does not have effect before the arrangement takes effect.

(5) On the termination of an arrangement, authorisations, regulations, orders and instruments granted, renewed, made or determined, for the purposes of the operation of this Act as affected by the arrangement cease to have effect.

(6) After action for the purpose of the termination of an arrangement has been taken, but before the termination takes effect authorisations, regulations, orders and instruments may be granted, renewed, made or determined for the purposes of the operation of this Act as affected by the termination of the arrangement, as if the arrangement had been terminated.

(7) An authorisation, regulation, order or instrument referred to in subsection (6) does not have effect before the termination of the arrangement takes effect.

23. Application of this Act to fisheries in accordance with arrangements

(1) Subject to subsection (2), if an arrangement is in force that provides that a particular fishery is to be managed in accordance with the law of the State, the provisions of this Act apply to and in relation to the fishery.

(2) The provisions of this Act do not apply to or in relation to the fishery in respect of —

(a) foreign boats, operations on or from foreign boats or persons on foreign boats, in the Australian fishing zone; or

(b) matters that occurred in the Australian fishing zone before the arrangement took effect.

24. Functions of Joint Authority

(1) If, in respect of a fishery, an arrangement is in force under which a Joint Authority has the management of the fishery and the fishery is to be managed in accordance with the law of the State, the Joint Authority has the functions of —

(a) keeping constantly under consideration the condition of the fishery;

(b) formulating policies and plans for the good management of the fishery; and

(i) exercising the powers conferred on it by this Act; and

(ii) co‑operating and consulting with other authorities (including other Joint Authorities within the meaning of the Commonwealth Act) in matters of common concern.

(2) A Joint Authority is to pursue the following objectives in the performance of its functions under subsection (1) —

(a) ensuring, through proper conservation, preservation and fisheries management measures, that fish resources are not endangered by over‑exploitation; and

(b) achieving the optimum utilization of those resources.

25. Joint Authority to exercise certain powers instead of Minister etc.

(1) Except as provided in this section, an authorisation granted or renewed under this Act otherwise than by virtue of this section does not authorise the doing of any Act or thing in or in relation to a Joint Authority fishery.

(2) If a Joint Authority fishery is to be managed in accordance with the law of the State —

(a) the powers (including powers with respect to authorisations) conferred on the Minister or another person under this Act (this Part excepted) are exercisable by the Joint Authority instead of the Minister or other person; and

(b) references in the relevant provisions to the Minister and to another person authorised to exercise a power, are taken to be references to the Joint Authority.

(3) An authorisation granted by a Joint Authority must be limited (whether by conditions or otherwise) to apply only in relation to a Joint Authority fishery, or Joint Authority fisheries, managed by the Joint Authority.

(4) A Joint Authority may endorse an authorisation (including an authorisation granted by the Joint Authority or another Joint Authority) to extend the operation of the authorisation to matters to which the licensing powers of the Joint Authority under this Act are applicable.

(5) If an endorsement referred to in subsection (4) is made —

(a) the endorsement ceases to have effect if the authorisation ceases to have effect; and

(b) the Joint Authority may suspend or cancel the endorsement as if it were an authorisation granted by the Joint Authority.

(6) Subject to section 28, if at a time a fishery becomes a Joint Authority fishery, a regulation, order or instrument made or determined under this Act would, but for this subsection, apply to the fishery, the regulation, order or instrument, as the case may be, ceases so to apply.

(7) This section does not empower a Joint Authority to grant, or to take other action in respect of, an authorisation in respect of a foreign boat or to endorse such an authorisation.

26. Application of provisions relating to offences

Provisions of this Act that relate to offences, enforcement and legal proceedings —

(a) apply in respect of anything done to, or in relation to, fish to which a Joint Authority fishery relates or otherwise in relation to a Joint Authority fishery; and

(b) for the purpose of paragraph (a) are to be read —

(i) as if any reference in the provisions to an authorisation were a reference to an authorisation or an endorsement of an authorisation, as the case may be, granted, renewed or made by the relevant Joint Authority, in relation to the person alleged to have committed the offence or the boat alleged to have been used in the commission of the offence; and

(ii) as if any reference in the provisions to fish were a reference to fish to which the Joint Authority fishery relates.

27. Presumption relating to certain statements

A statement in an arrangement must be conclusively presumed to be correct if it is to the effect that specified waters —

(a) in the case of an arrangement to which the Commonwealth and the State are the only parties, are waters adjacent to the State; and

(b) in the case of any other arrangement, are waters adjacent to the States that are parties to the arrangement or are waters adjacent to a specified State or States.

28. Regulations, orders etc.

(1) If a Joint Authority is to manage a fishery in accordance with the law of the State, the Governor may, for the purpose of giving effect to a decision of the Joint Authority —

(a) make regulations for the management of the fishery;

(b) make a regulation applying to the fishery a regulation made otherwise than under this section; or

(c) amend a regulation made otherwise than under this section so that it is expressed to apply to the fishery, whether or not it also applies to another fishery.

(2) If a Joint Authority is to manage a fishery in accordance with the law of the State, the Minister may, for the purpose of giving effect to a decision of the Joint Authority —

(a) make an order that applies to the fishery;

(b) by order published in the Gazette apply to the fishery an order under this Act made otherwise than under this section; or

(c) by order published in the Gazette amend an order under this Act made otherwise than under this section so that it is expressed to apply to the fishery, whether or not it also applies to another fishery.

(3) If a Joint Authority is to manage a fishery in accordance with the law of the State, the Minister may, for the purpose of giving effect to a decision of the Joint Authority —

(a) by instrument in writing published in the Gazette, determine a management plan for the fishery;

(b) by instrument in writing published in the Gazette apply to the fishery a management plan under this Act made otherwise than under this section; or

(c) by instrument in writing published in the Gazette amend a management plan under this Act made otherwise than under this section so that it is expressed to apply to the fishery, whether or not it also applies to another fishery.

(4) The power conferred —

(a) on the Governor to make regulations otherwise than under subsection (1) does not extend to the making of a regulation of a kind referred to in subsection (1)(a) or (b) or the amendment of a regulation in the manner referred to in subsection (1)(c);

(b) on the Minister to make orders otherwise than under subsection (2) does not extend to the making of an order of a kind referred to in subsection (2)(a) or (b) or the amendment of an order in the manner referred to in subsection (2)(c);

(c) on the Minister to make or determine instruments otherwise than under subsection (3) does not extend to the making or determination of an instrument of a kind referred to in subsection (3)(a) or (b) or the amendment of a management plan in the manner referred to in subsection (3)(c).

(5) If a regulation, order or instrument affecting a fishery that is to be managed by a Joint Authority is expressed to be made under this section, it must be conclusively presumed that it was made for the purpose of giving effect to a decision of the Joint Authority.

Part 4 — Advisory Committees

Division 1 — Rock Lobster Industry Advisory Committee

29. Rock Lobster Industry Advisory Committee

(1) The Rock Lobster Industry Advisory Committee (in this Division referred to as the “Advisory Committee”) previously constituted under the repealed Act is preserved and continued in existence subject to the provisions of this Act.

(2) The Advisory Committee is to consist of 14 members of whom —

(a) one is to be the CEO ex officio and one is to be another officer of the Department appointed by the Minister;

(b) 2 are to be persons appointed by the Minister on the nomination of the body known as the Rock Lobster and Prawning Association of Australia Inc.;

(c) 8 are to be persons appointed by the Minister in accordance with the prescribed procedure who engage in the commercial fishing of rock lobster;

(d) one is to be a person appointed by the Minister who engages in the recreational fishing of rock lobster; and

(e) one is to be a person appointed by the Minister who in the Minister’s opinion —

(i) is independent of the Department and of the rock lobster industry; and

(ii) has relevant expertise in business management, economics, marketing, fisheries management or fisheries research.

(3) If within 30 days of being requested in writing by the Minister to do so, the body referred to in subsection (2)(b) has not made any nomination for appointment required to be made by the body under that paragraph, the Minister may make the appointment at his or her discretion.

(4) A person appointed under subsection (3) is to be taken to have been nominated under the paragraph referred to in that subsection.

[Section 29 amended by No. 28 of 2006 s. 236(1).]

30. Functions of Advisory Committee

(1) The functions of the Advisory Committee are —

(a) to identify issues that affect rock lobster fishing;

(b) to advise the Minister on matters relating to the management, protection and development of rock lobster fisheries; and

(c) to advise the Minister on matters relating to rock lobster fisheries on which the advice of the Advisory Committee is sought by the Minister.

(2) The Advisory Committee may do all things necessary or convenient to be done for or in connection with the performance of its functions.

31. Chairperson

The person appointed under section 29(2)(e) is to be the chairperson of the Advisory Committee.

32. Constitution and proceedings

Schedule 1 has effect with respect to the constitution and proceedings of the Advisory Committee.

Division 2 — Recreational Fishing Advisory Committee

33. Recreational Fishing Advisory Committee

(1) An Advisory Committee to be known as the Recreational Fishing Advisory Committee (in this Division referred to as the “Advisory Committee”) is to be established.

(2) The Advisory Committee is to consist of 15 persons of whom —

(a) one is to be the CEO ex officio or an officer of the Department nominated by the CEO to Act in his or her place;

(b) 6 are to be persons appointed by the Minister in accordance with the prescribed procedure who represent regional recreational fishing interests;

(c) one is to be a person appointed by the Minister who in the Minister’s opinion represents the recreational fishing media;

(ca) one is to be a person appointed by the Minister who in the Minister’s opinion represents interests involved in fishing tours, aquatic eco‑tourism and charter boats used for recreational fishing;

(d) one is to be a person appointed by the Minister who in the Minister’s opinion represents the fishing tackle industry;

(e) one is to be a person appointed by the Minister on the nomination of the body known as the Western Australian Recreational and Sportfishing Council;

(f) one is to be a person appointed by the Minister on the nomination of the peak industry body;

(g) one is to be a person appointed by the Minister who in the Minister’s opinion represents the interests of the community;

(h) one is to be a person appointed by the Minister who has an interest in recreational fishing issues but who in the Minister’s opinion is independent of the Department and has no commercial interest in recreational fishing; and

(i) one is to be an Aboriginal person, appointed by the Minister who in the Minister’s opinion represents the interests of Aboriginal people.

(3) If within 30 days of being requested in writing by the Minister to do so, a body referred to in subsection (2)(e) or (f) has not made any nomination for appointment required to be made by the body under that paragraph, the Minister may make the appointment at his or her discretion.

(4) A person appointed under subsection (3) is to be taken to have been nominated under the relevant paragraph referred to in that subsection.

[Section 33 amended by No. 41 of 2000 s. 6; No. 74 of 2003 s. 56(3); No. 28 of 2006 s. 236(1).]

34. Functions of Advisory Committee

(1) The functions of the Advisory Committee are —

(a) to identify issues that affect recreational fishing;

(b) to advise the Minister on issues relating to recreational fishing and the management of recreational fishing;

(d) to advise the Minister on any matter related to recreational fishing on which the advice of the Advisory Committee is sought by the Minister.

(2) The Advisory Committee may do all things necessary or convenient to be done for or in connection with the performance of its functions.

35. Chairperson

The person appointed under section 33(2)(h) is to be the chairperson of the Advisory Committee.

36. Constitution and proceedings

Schedule 1 has effect with respect to the constitution and proceedings of the Advisory Committee.

Division 3 — Aquaculture Development Council

37. Aquaculture Development Council

(1) An Advisory Committee to be known as the Aquaculture Development Council (in this Division referred to as the “Council”) is to be established.

(2) The Council is to consist of not less than 7 persons and not more than 8 persons of whom —

(a) one is to be the CEO ex officio or an officer of the Department nominated by the CEO to Act in his or her place;

(b) not less than 3 persons and not more than 4 persons are to be persons appointed by the Minister in accordance with the prescribed procedure who have an interest in the aquaculture industry including at least —

(i) one person representing freshwater aquaculture interests; and

(ii) one person representing marine aquaculture interests;

(c) one is to be a person appointed by the Minister who is an officer of the Public Service (other than an officer of the Department);

(d) one is to be a person appointed by the Minister who has relevant expertise in business or marketing; and

(e) one is to be a person appointed by the Minister who in the Minister’s opinion is independent of the Department and of the aquaculture industry.

[Section 37 amended by No. 28 of 2006 s. 236(1).]

38. Functions of Council

(1) The functions of the Council are —

(a) to identify issues that affect aquaculture;

(b) to advise the Minister on issues relating to aquaculture and the management of aquaculture; and

(c) to advise the Minister on any matter related to aquaculture on which the advice of the Council is sought by the Minister.

(2) The Council may do all things necessary or convenient to be done for or in connection with the performance of its functions.

39. Chairperson

The Minister is to appoint a member of the Council to be the chairperson of the Council.

40. Constitution and proceedings

Schedule 1 has effect with respect to the constitution and proceedings of the Council.

Division 4 — Fishery Management Advisory Committees

41. Fishery Management Advisory Committees

(1) The Minister may, by instrument in writing, establish an advisory committee for a fishery consisting of such persons as the Minister thinks fit.

(2) The function of an advisory committee is to provide information and advice to the Minister on matters related to the protection and management of the fishery.

(3) The instrument establishing an advisory committee —

(a) must identify the fishery for which the committee is established and the members of the committee;

(b) may provide for any other matter that, in the Minister’s opinion, is necessary for the operation of the committee.

(4) The Minister may, by further instrument in writing, amend or revoke an instrument made under this section.

(5) An advisory committee may be established under this section for a fishery whether or not a management plan is in force in respect of that fishery.

Division 5 — Other Committees

42. Other committees

(1) The Minister may, by instrument in writing, establish other advisory committees, consisting of such person’s as the Minister thinks fit, to provide information and advice to the Minister on matters related to the administration of this Act.

(2) The instrument establishing an advisory committee —

(a) must specify the functions, and identify the members, of the committee;

(b) may provide for any other matter that, in the Minister’s opinion, is necessary for the operation of the committee.

(3) The Minister may, by further instrument in writing, amend or revoke an instrument made under this section.

Part 5 — General regulation of fishing

Division 1 — Prohibited fishing

43. Order may prohibit fishing

(1) The Minister may, by order published in the Gazette, prohibit persons or any specified class of persons from engaging in any fishing activity of a specified class.

(2) An order may prohibit a fishing activity at all times or during any specified period.

(3) A person must not —

(a) contravene a provision of an order;

(b) have in the person’s possession any fish taken in contravention of an order; or

(c) have in the person’s possession any fishing gear intended to be used to engage in an activity that the person is prohibited from engaging in by an order.

Penalty: As provided in sections 52 and 222.

(4) It is a defence in proceedings for an offence against subsection (3)(b) for the person charged to prove that the person did not know, and could not reasonably be expected to have known, that the fish had been taken in contravention of an order.

(5) The Minister may, by further order published in the Gazette, amend or revoke an order made under this section.

44. Orders subject to tabling, disallowance etc.

(1) An order made under this Division is “subsidiary legislation” for the purposes of the Interpretation Act 1984.

(2) Section 42 of the Interpretation Act 1984 applies to and in relation to an order made under this Division as if the order were a regulation.

Division 2 — Protected fish

45. Class of fish may be prescribed to be protected fish

(1) A class of fish may be prescribed to be —

(a) totally protected fish; or

(b) commercially protected fish,

for the purposes of this Act.

(2) A class of fish may be defined for the purposes of subsection (1) by reference to all or any of the following —

(a) a species or type of fish;

(b) a description of fish by reference to sex, size, weight, reproductive cycle or any other characteristic;

(d) a period of time during which the fish is taken;

(e) any other factor.

46. Totally protected fish

A person must not —

(a) take;

(b) have in the person’s possession;

(d) consign; or

(e) bring into the State or into WA waters,

any totally protected fish.

Penalty: As provided in sections 52 and 222.

47. Commercially protected fish

A person must not —

(a) take for the purpose of sale;

(b) have in the person’s possession for the purpose of sale;

(d) consign; or

(e) sell or purchase,

any commercially protected fish.

Penalty: As provided in sections 52 and 222.

48. Defences

It is a defence in proceedings for an offence against section 46 or 47 for the person charged to prove —

(a) in the case of an offence relating to the taking of protected fish, that on becoming aware of the taking of the fish, the person took immediate steps to return the fish to its natural environment with the least possible injury;

(b) that the fish were of a prescribed class and were being, or had been, kept, bred, cultured or hatched in accordance with an aquaculture licence; or

49. Mutilation of fish to prevent determination prohibited

A person must not alter, mutilate or disfigure any fish with the intention of preventing the determination of whether or not that fish is a protected fish.

Penalty: In the case of an individual, $25 000.

In the case of a body corporate, $50 000.

[Section 49 amended by No. 50 of 2003 s. 63(2).]

Division 3 — Bag and possession limits

50. Bag limits — taking of fish

(1) In this section, “one day” means a period of 24 hours commencing at midnight or, in relation to a bag limit for which a different period is provided by the regulations under subsection (6), such period as is provided.

(2) The regulations may specify the maximum quantity of fish of a specified class that a person may take, or bring onto land or into WA waters, in one day (the “bag limit”).

(3) A person must not take, or bring onto land or into WA waters, on any one day more fish than the bag limit of those fish.

Penalty: As provided in sections 52 and 222.

(4) It is a defence in proceedings for an offence against subsection (3) for the person charged to prove that —

(a) the fish were taken for a commercial purpose by a person in accordance with an authorisation;

(b) the fish were kept, bred, hatched or cultured by the person in accordance with an aquaculture licence; or

(5) The regulations may specify different bag limits for different areas of the State or different classes of persons.

(6) The regulations may provide that a bag limit applies to a period of 24 hours commencing at a time other than midnight.

(7) This section does not authorise the taking of fish or the bringing of fish onto land or into WA waters in contravention of any other provision of this Act.

51. Possession limits — possession of fish

(1) The regulations may specify the maximum quantity of fish of a specified class that a person may have in possession in specified circumstances (the “possession limit”).

(2) A person must not have in the person’s possession in any such circumstances more than the possession limit of those fish.

Penalty: As provided in sections 52 and 222.

(3) Subsection (2) applies irrespective of the period over which the fish were taken.

(4) It is a defence in proceedings for an offence against subsection (2) for the person charged to prove that —

(a) the fish were taken for a commercial purpose by a person in accordance with an authorisation;

(b) the fish were kept, bred, hatched or cultured by the person in accordance with an aquaculture licence; or

(5) The regulations may specify different possession limits for different areas of the State or different classes of persons.

(6) This section does not authorise the possession of fish in contravention of any other provision of this Act.

Division 4 — General penalty

52. General penalty

(1) The general penalty for contravention of section 43(3), 46, 47, 50(3) or 51(2) is —

(a) for a first offence against that section —

(i) if the offence relates to category 1 fish, in the case of an individual, to a fine not exceeding $5 000 or, in the case of a body corporate, to a fine not exceeding $10 000;

(ii) if the offence relates to category 2 fish, in the case of an individual, to a fine not exceeding $3 000 or, in the case of a body corporate, to a fine not exceeding $6 000;

(iii) if the offence relates to category 3 fish, in the case of an individual, to a fine not exceeding $2 000 or, in the case of a body corporate, to a fine not exceeding $4 000; or

(iv) in any other case, in the case of an individual, to a fine not exceeding $1 000 or, in the case of a body corporate, to a fine not exceeding $2 000;

and

(b) for a second or subsequent offence against that section —

(i) if the offence relates to category 1 fish, in the case of an individual, to a fine not exceeding $10 000 or, in the case of a body corporate, to a fine not exceeding $20 000;

(ii) if the offence relates to category 2 fish, in the case of an individual, to a fine not exceeding $6 000 or, in the case of a body corporate, to a fine not exceeding $12 000;

(iii) if the offence relates to category 3 fish, in the case of an individual, to a fine not exceeding $4 000 or, in the case of a body corporate, to a fine not exceeding $8 000; or

(iv) in any other case, in the case of an individual, to a fine not exceeding $2 000 or, in the case of a body corporate, to a fine not exceeding $4 000.

(2) For the purposes of subsection (1) —

(a) if an offence relates to more than one category of fish, then the relevant subparagraph that applies under subsection (1)(a) or (1)(b) is the subparagraph with the higher penalty;

(b) if it is not possible to determine the fish to which an offence relates, then subsection (1)(a)(iv) or (1)(b)(iv) (as the case requires) applies.

Part 6 — Management of fisheries

Division 1 — Interpretation

53. Meaning of “authorisation” in this Part

In this Part, “authorisation” means —

(a) in relation to a managed fishery, a managed fishery licence; or

(b) in relation to an interim managed fishery, an interim managed fishery permit.

Division 2 — Management plans

54. Determination of management plan

(1) The Minister may, by instrument in writing published in the Gazette, determine a management plan for a fishery.

(2) The Minister may, by further instrument in writing published in the Gazette, amend or revoke a management plan.

55. Instruments subject to tabling, disallowance etc.

(1) An instrument under section 54 that determines, amends or revokes a management plan is “subsidiary legislation” for the purposes of the Interpretation Act 1984.

(2) Section 42 of the Interpretation Act 1984 applies to and in relation to an instrument referred to in subsection (1) as if the instrument were a regulation.

56. General contents

(1) A management plan must —

(a) identify the fishery to which it relates; and

(b) declare the fishery to be either —

(i) a managed fishery; or

(ii) an interim managed fishery.

(2) A management plan declaring a fishery to be an interim managed fishery may further classify the fishery as a developmental fishery.

(3) A management plan may include any provision that, in the Minister’s opinion, is necessary for the protection or management of the fishery or any part of the fishery.

57. Expiry date

(1) A management plan for an interim managed fishery may provide that the plan only has effect for a specified period.

(2) Subsection (1) does not limit the Minister’s power to revoke a management plan.

58. Management plan — authorisations

(1) Without limiting section 56(3), a management plan may prohibit a person from engaging in fishing or any fishing activity of a specified class in the fishery or any part of the fishery otherwise than in accordance with an authorisation.

(2) The management plan may —

(a) provide for different classes of authorisations;

(b) restrict the number of authorisations that can be granted or provide that no further authorisations can be granted;

(d) specify a procedure for determining which persons are to be granted authorisations if the number of eligible persons seeking an authorisation exceeds the number of authorisations that can be granted;

(e) provide for the submission and consideration of objections to the grant of authorisations;

(f) provide for specified things to be endorsed on authorisations;

(g) specify conditions to which authorisations are subject;

(h) specify grounds on which the CEO may cancel, suspend or refuse to renew an authorisation (in addition to those already specified in section 143(1)(a) to (g));

(i) specify a period for which an authorisation remains in force after it has been granted or renewed;

(j) specify criteria to be satisfied before the CEO can vary an authorisation on the application of the holder of the authorisation;

(k) specify grounds on which the CEO may refuse to transfer an authorisation or any part of an entitlement under an authorisation;

(l) prescribe fees payable in respect of applications for —

(i) the grant, renewal and variation of authorisations; or

(ii) the transfer of authorisations or entitlements under authorisations;

(m) prescribe fees payable for the issue of authorisations.

[Section 58 amended by No. 28 of 2006 s. 236(1).]

59. Management plan — capacity of fishery

(1) Without limiting section 56(3), a management plan may specify the capacity of the fishery or any part of the fishery.

(2) The capacity may be specified by reference to —

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

(b) a quantity of fishing gear that may be used;

(d) a number of persons who may engage in fishing; or

(e) any other thing.

(3) The capacity is to be determined in accordance with the method specified in the management plan or prescribed in the regulations.

60. Management plan — entitlements

(1) Without limiting section 56(3), a management plan may provide for a scheme relating to the extent of the entitlements conferred by authorisations in respect of the fishery or any part of the fishery.

(2) The management plan may —

(a) specify the way in which entitlements are to be fixed and allocated;

(b) provide for all or any of the entitlement to be specified in an authorisation;

(c) provide for entitlements to be expressed in terms of units (however described) and from time to time specify the extent of the entitlement arising from such units;

(d) suspend entitlements during a specified period;

(e) provide for entitlements to be increased or reduced;

(f) provide for the conversion of one kind of entitlement into another kind of entitlement;

(g) prohibit a person from doing any thing in excess of an entitlement;

(h) authorise the temporary transfer of entitlements (either generally or only in specified circumstances);

(i) specify —

(i) the criteria that a person must satisfy before the person can buy any forfeited entitlement under section 76(4); and

(ii) the way in which any forfeited entitlement may be sold under that section.

61. Management plan — prohibited fishing in fishery

(1) Without limiting section 56(3), a management plan may —

(a) prohibit all fishing activities in the fishery or in any part of the fishery during any specified period;

(b) prohibit any fishing activity of a specified class in the fishery or in any part of the fishery (either at all times or during any specified period);

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

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

(2) Nothing in this section derogates from the power to prohibit any fishing activity of a specified class under section 43.

[Section 61 amended by No. 28 of 2006 s. 236(1).]

62. Management plan — miscellaneous

Without limiting section 56(3), a management plan may —

(a) regulate fishing in the fishery, or the possession of fish taken in the fishery;

(b) prohibit or regulate the use of any boat, vehicle or aircraft in the fishery or require the registration, marking or identification of boats, vehicles or aircraft, used in the fishery;

(d) provide for the registration or identification of fishing gear used in the fishery;

(e) require specified gear or equipment to be installed in or carried or used on boats used in the fishery;

(f) require persons engaged in fishing in the fishery to participate in research programmes and to carry scientific equipment;

(g) require persons engaged in fishing in the fishery to carry observers or research personnel for the purposes of research, monitoring or compliance programmes;

(h) provide for and regulate the identification of fish (whether taken in the fishery or otherwise) by tagging, marking or other specified means;

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

(j) prohibit the purchase or sale of fish taken or dealt with in contravention of the management plan;

(k) specify requirements relating to any bycatch of fish in the fishery;

(l) require the holder of an authorisation to nominate —

(i) an area (being one of the areas specified in the management plan for the purposes of this paragraph); or

(ii) a period (being one of the periods specified in the management plan for the purposes of this paragraph),

within or during which fish will be taken, or any boat will be used, under the authorisation;

(m) require the holder of an authorisation to nominate a port, place or area (being a port, place or area specified in the management plan) within or at which fish taken under the authorisation will be unloaded;

(n) prohibit fish taken under an authorisation from being unloaded outside the port, place or area nominated by the holder of the authorisation;

(o) prohibit more than a specified number of persons from operating under an authorisation and specifying the respective functions that may be performed by each person;

(p) impose other obligations on the holders of authorisations, persons acting on behalf of such holders or masters of boats;

(q) require specified records to be kept, and specified returns to be submitted at specified times, by —

(i) persons acting under the authority of authorisations; or

(ii) other persons who handle, unload, land, store, pack, consign, transport, process, sell or purchase fish (whether taken in the fishery or otherwise);

(r) prohibit a person from making an entry or statement that is false or misleading in a material particular in a record or return required to be kept or submitted under a management plan;

(s) require persons to report to the CEO or to a fisheries officer (whether by radio or otherwise) the position of any boat, the landing of any fish or any other matter;

(t) require each fishing operation in the fishery to be under the control of a natural person, who is the holder of the authorisation or a person nominated by the holder;

(u) prohibit or regulate the handling, transfer, landing, unloading, storage, packaging, labelling, transport, delivery, consigning, processing, sale or purchase of fish (whether taken in the fishery or otherwise).

[Section 62 amended by No. 28 of 2006 s. 236(1).]

63. How an interim managed fishery becomes a managed fishery

An interim managed fishery can only become a managed fishery by a new management plan being determined for the fishery and the fishery being declared by that plan to be a managed fishery.

Division 3 — Procedure before determining or amending management plans

64. Procedure before determining management plan

(1) Before determining a management plan for a managed fishery under section 54(1) the Minister must —

(a) consult with —

(i) any advisory committee established in respect of the fishery; and

(ii) such other advisory committees or persons, if any, as the Minister thinks appropriate;

and

(b) consider any representations made under subsection (3).

(2) The Minister must, not less than 2 months before determining a management plan for a managed fishery under section 54(1), prepare a draft of the plan and by notice in the Gazette —

(a) state that the Minister intends to determine a management plan for the fishery;

(b) invite interested persons who wish to comment on the draft plan to make representations to the Minister by a date specified in the notice; and

(c) specify an address from which copies of the draft plan may be obtained and an address to which representations may be forwarded.

(3) A person may, not later than the date specified in the notice, make representations to the Minister in connection with the draft plan.

65. Procedure before amending management plan

(1) A management plan must specify an advisory committee or advisory committees or a person or persons who are to be consulted before the plan is amended or revoked.

(2) Before amending or revoking a management plan the Minister must consult with the advisory committee or advisory committees or the person or persons specified for that purpose in the plan.

(3) Despite subsection (2), the Minister may amend a management plan without consulting in accordance with that subsection if, in the Minister’s opinion, the amendment is —

(a) required urgently; or

(b) of a minor nature.

(4) If —

(a) the Minister amends a management plan; and

(b) the amendment is made without consultation because it is, in the Minister’s opinion, required urgently,

the Minister must consult with the advisory committee or advisory committees or the person or persons specified for that purpose in the plan as soon as practicable after the plan has been amended.

Division 4 — Managed fishery licences and interim managed fishery permits

66. Grant of managed fishery licences and interim managed fishery permits

(1) If a person applies to the CEO for the grant of an authorisation and —

(a) the CEO is satisfied that the criteria specified in the relevant management plan for the grant of the authorisation have been satisfied; and

(b) if a procedure is specified in the plan for determining which persons are to be granted authorisations, the person is selected in accordance with that procedure,

the CEO may grant to the person an authorisation.

(2) An authorisation may authorise a person, or persons acting on that person’s behalf, to engage in fishing or any fishing activity of a specified class in a managed fishery or an interim managed fishery (as the case requires).

(3) The entitlement a person has under an authorisation may be limited by reference to all or any of the following —

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

(b) a quantity of fishing gear that may be used or carried;

(c) a boat, vehicle or aircraft, or a number of boats, vehicles or aircraft, or a class or length of boat, vehicle or aircraft, that may be used;

(d) a number of persons that may operate;

(e) an area of land or waters;

(f) a period of time;

(g) any other factor.

(4) For the purposes of subsection (3), the extent of an entitlement under an authorisation may be expressed in terms of units of entitlement defined in the management plan.

[Section 66 amended by No. 28 of 2006 s. 236(1).]

67. Duration of licences and permits

Except as otherwise provided in this Act or in the authorisation, an authorisation remains in force for 12 months, or such other period as is specified in the relevant management plan, from the day on which it is granted or renewed.

68. Renewal of licences and permits

If a person applies to the CEO for the renewal of an authorisation, the CEO is, subject to sections 136A and 143, to renew the authorisation.

[Section 68 amended by No. 5 of 1997 s. 47; No. 28 of 2006 s. 236(1).]

69. Conditions

(1) An authorisation is subject to —

(a) any conditions specified in the relevant management plan; and

(b) any conditions imposed by the CEO under this section.

(2) An authorisation may be granted, renewed or transferred subject to such conditions as the CEO thinks fit and specifies in the authorisation.

(3) The CEO may, at any time, by notice in writing given to the holder of an authorisation, delete or vary conditions of the authorisation or add new conditions to the authorisation.

(4) Subsection (3) does not apply to conditions specified in the management plan.

[Section 69 amended by No. 28 of 2006 s. 236(1).]

70. Authorisation ceases to have effect if management plan ceases to have effect

If —

(a) a management plan for a managed fishery is revoked; or

(b) a management plan for an interim managed fishery is revoked or expires,

any authorisation in force in respect of the fishery ceases to have effect.

71. Prior fishing confers no right to authorisation

(1) The fact that a person engaged in fishing, or used any boat for fishing, in a fishery before a management plan was determined for the fishery is not to be taken as conferring upon that person any right to the grant of an authorisation if a management plan is determined for that fishery.

(2) Despite subsection (1), the CEO is to take into account a person’s past history of fishing in a fishery when determining whether or not to grant the person an authorisation.

[Section 71 amended by No. 28 of 2006 s. 236(1).]

72. Grant of authorisation confers no right to subsequent authorisation

(1) The grant of an authorisation to any person is not to be taken as conferring on that person any right to the grant of another authorisation if a subsequent management plan is determined for the fishery.

(2) Despite subsection (1), the CEO is to take into account the fact that a person held an authorisation when determining whether or not to grant the person another authorisation.

[Section 72 amended by No. 28 of 2006 s. 236(1).]

73. Other licences do not authorise fishing in fishery

A commercial fishing licence, fishing boat licence or any other licence granted under the regulations does not authorise a person to use a boat for fishing or engage in a fishing activity in a managed fishery or an interim managed fishery.

73A. Authorisation is subject to restrictions in relation to certain marine reserves

(1) An authorisation under this Part is subject to sections 13A and 13B of the Conservation and Land Management Act 1984.

(2) Subsection (1) does not apply to —

(a) an authorisation issued or renewed before the commencement of section 48 of the Acts Amendment (Marine Reserves) Act 1997 1; or

(b) an authorisation issued or renewed in relation to an area which is affected, after the issue or renewal of the authorisation, by a reservation under section 13 of the Conservation and Land Management Act 1984, or by a notice under section 62 of that Act.

[Section 73A inserted by No. 5 of 1997 s. 48.]

Division 5 — Offences

74. Contravention of management plan

A person must not contravene a provision of a management plan, being a provision the contravention of which is specified in the plan to be an offence.

Penalty: As provided in sections 75 and 222.

75. General penalty

(1) The general penalty for a contravention of section 74 is —

(a) if the provision of the management plan that is contravened is designated in the plan as a major provision —

(i) for a first offence against that section, in the case of an individual, to a fine not exceeding $25 000 and imprisonment for 1 year or, in the case of a body corporate, to a fine not exceeding $50 000; or

(ii) for a second or subsequent offence against that section, in the case of an individual, to a fine not exceeding $50 000 and imprisonment for 2 years or, in the case of a body corporate, to a fine not exceeding $100 000;

(b) in any other case —

(i) for a first offence against that section, in the case of an individual, to a fine not exceeding $10 000 or, in the case of a body corporate, to a fine not exceeding $20 000; or

(ii) for a second or subsequent offence against that section, in the case of an individual, to a fine not exceeding $20 000 or, in the case of a body corporate, to a fine not exceeding $40 000.

(2) A provision may be designated in a management plan as a major provision for the purposes of this section by reference to the circumstances in which the provision is contravened.

76. Court to order reduction of entitlement in certain circumstances

(1) This section applies to an entitlement limited by reference to —

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

(b) a quantity of fishing gear that may be used or carried; or

(2) If a court convicts a person of an offence against section 74 and the court is satisfied that —

(a) the person —

(i) has exceeded an entitlement; or

(ii) has done anything in order to exceed an entitlement or in order to conceal the fact that an entitlement had been exceeded;

and

(b) the amount by which the entitlement was exceeded or was to be exceeded can be ascertained by the court,

the court must order that the entitlement be reduced by that amount.

(3) For the purposes of subsection (2), if —

(a) the entitlement was defined by reference to a number of units; and

(b) the amount by which the entitlement was exceeded or was to be exceeded is not an exact unit,

the court is to round the amount up or down (as the case may be) to the nearest unit.

(4) If the court orders the reduction of an entitlement under subsection (2) —

(a) the CEO must reduce the entitlement accordingly; and

(b) the CEO may sell the forfeited entitlement —

(i) to any person who satisfies the criteria specified in the relevant management plan; and

(ii) in the way specified in the management plan.

[Section 76 amended by No. 28 of 2006 s. 236(1).]

77. Contravention of condition of licence or permit

A person must not contravene a condition of —

(a) a managed fishery licence; or

(b) an interim managed fishery permit.

Penalty: As provided in sections 78 and 222.

78. General penalty

The general penalty for contravention of section 77 is —

(a) for a first offence against that section, in the case of an individual, to a fine not exceeding $10 000 or, in the case of a body corporate, to a fine not exceeding $20 000; or

(b) for a second or subsequent offence against that section, in the case of an individual, to a fine not exceeding $20 000 or, in the case of a body corporate, to a fine not exceeding $40 000.

Part 7 — Fish processing

79. Fish processing establishment not to be established without permit

(1) Except as provided in subsection (2), a person must not —

(a) construct any place for the purpose of using the place to process fish for a commercial purpose; or

(b) establish any plant or facilities in or on any place for the purpose of enabling the use of the place to process fish for a commercial purpose,

unless the person is authorised to do so by a permit granted by the CEO under section 80.

Penalty: In the case of an individual, $20 000 and a daily penalty of $750 or, in the case of a body corporate, $40 000 and a daily penalty of $1 500.

(2) Subsection (1) does not apply to a place that is to be used —

(a) to process fish that are to be sold by retail to the public, or served as meals to the public, in, on or from the place; or

(b) to process fish that have been kept, bred, hatched or cultured in or on the place in accordance with an aquaculture licence.

(3) The regulations may limit the circumstances in which subsection (2) applies.

[Section 79 amended by No. 28 of 2006 s. 236(1).]

80. Grant of permit

(1) If a person applies to the CEO for a permit and the CEO is satisfied that —

(a) the person is a fit and proper person to hold such a permit;

(b) the person intends to process fish for a commercial purpose in or on the place;

(d) it is in the better interests of the fishing industry to grant the permit having regard to —

(i) the number of establishments in respect of which permits or fish processor’s licences have already been granted or sought;

(ii) the size and nature of those establishments; and

(iii) such other matters as the CEO thinks fit;

and

(e) the construction or modification (as the case may be) and the use of the place has been approved by other relevant authorities,

the CEO may grant to the person a permit.

(2) The permit may authorise the person, or persons acting on that person’s behalf, to construct the place or to modify the place for the purpose of enabling the use of the place to process fish for a commercial purpose.

[Section 80 amended by No. 28 of 2006 s. 236(1).]

81. Conditions

(1) A permit under section 80 is subject to —

(a) any prescribed conditions; and

(b) any conditions imposed by the CEO under this section.

(2) A permit may be granted or transferred subject to such conditions as the CEO thinks fit and specifies in the permit.

(3) The CEO may, at any time, by notice in writing given to a permit holder, delete or vary conditions of the permit or add new conditions to the permit.

(4) Subsection (3) does not apply to prescribed conditions.

[Section 81 amended by No. 28 of 2006 s. 236(1).]

82. Fish processor to be licensed

(1) Except as provided in subsection (2), a person must not process fish for a commercial purpose unless the person is authorised to do so by a fish processor’s licence.

Penalty: In the case of an individual, $20 000, a daily penalty of $750 and the penalty provided in section 222 or, in the case of a body corporate, $40 000, a daily penalty of $1 500 and the penalty provided in section 222.

(2) Subsection (1) does not apply to the processing of fish, other than fish of a prescribed class —

(a) on any boat if the fish have been taken by the use of that boat;

(b) at any place for the purpose of the fish being sold by retail to the public, or served as meals to the public, in, on or from the place; or

(c) in or on any land or premises if the fish have been kept, bred, hatched or cultured in or on the land or premises in accordance with an aquaculture licence.

83. Grant of fish processor’s licence

(1) If a person applies to the CEO for the grant of a fish processor’s licence and the CEO is satisfied that —

(a) the person is a fit and proper person to hold such a licence;

(b) the person has been granted a permit under section 80 and has complied with the conditions of the permit; and

the CEO may grant to the person a fish processor’s licence authorising that person, or persons acting on that person’s behalf, to process fish for a commercial purpose.

(2) The CEO must specify in the licence the place at which fish may be processed under the licence.

(3) If —

(a) fish of a prescribed class are to be stored by or on behalf of the licence holder before processing; and

(b) the fish are to be stored at a place other than the place referred to in subsection (2),

the CEO may specify in the licence the place or places at which such fish may be stored before processing.

[Section 83 amended by No. 28 of 2006 s. 236(1).]

84. Duration of licence

Except as otherwise provided in this Act or in the licence, a fish processor’s licence remains in force for a period of 12 months from the day on which it is granted or renewed.

85. Renewal of licence

If a person applies to the CEO for the renewal of a fish processor’s licence, the CEO is, subject to sections 136A and 143, to renew the licence.

[Section 85 amended by No. 5 of 1997 s. 49; No. 28 of 2006 s. 236(1).]

86. Fish must not be processed or stored except at place specified in licence

The holder of a fish processor’s licence must not —

(a) process fish for a commercial purpose at a place other than the place specified for that purpose in the licence; or

(b) store fish of a prescribed class that are to be processed under the licence at a place other than —

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

(ii) any place specified for that purpose in the licence under section 83(3).

Penalty: In the case of an individual, $20 000 and the penalty provided in section 222 or, in the case of a body corporate, $40 000 and the penalty provided in section 222.

87. Conditions

(1) It is a condition of a fish processor’s licence that the place specified in the licence under section 83(2) must not be modified or altered without the prior written approval of the CEO.

(2) In addition to the condition referred to in subsection (1), a licence is subject to —

(a) any prescribed conditions; and

(b) any conditions imposed by the CEO under this section.

(3) A licence may be granted, renewed or transferred subject to such conditions as the CEO thinks fit and specifies in the licence.

(4) The CEO may, at any time, by notice in writing given to a licence holder, delete or vary conditions of the licence or add new conditions to the licence.

(5) Subsection (4) does not apply to the condition referred to in subsection (1) or prescribed conditions.

[Section 87 amended by No. 28 of 2006 s. 236(1).]

88. Contravention of condition of permit or licence

A person must not contravene a condition of —

(a) a permit under section 80; or

(b) a fish processor’s licence.

Penalty: In the case of an individual, $20 000 and the penalty provided in section 222 or, in the case of a body corporate, $40 000 and the penalty provided in section 222.

89. Regulations relating to fish processing

(1) The regulations may —

(a) regulate the processing of fish;

(b) regulate the storage of fish for the purposes of processing;

(i) keep specified records; and

(ii) submit specified returns at specified times.

(2) Subsection (1) applies to the processing of fish whether the processing is for a commercial purpose or otherwise.

Part 8 — Aquaculture

90. Persons engaging in aquaculture and related activities to be licensed

Except as provided in section 91, a person must not —

(a) engage in aquaculture;

(b) if the person is the owner or occupier of private land, sell fish in, or taken from, waters on that land;

(c) receive or purchase, for the purpose of sale or resale, from the owner or occupier of private land, fish in, or taken from, waters on that land; or

(d) if the person is not the owner or occupier of private land, take fish from waters on that land for the purpose of sale,

unless the person is authorised to do so by an aquaculture licence.

Penalty: In the case of an individual, for a first offence $5 000 and for any subsequent offence $10 000 or, in the case of a body corporate, for a first offence $10 000 and for any subsequent offence $20 000.

91. Exceptions

Section 90 does not apply to or in relation to any person by reason only of the person —

(a) keeping, breeding, hatching, culturing or selling any fish of a prescribed class, for a prescribed purpose or in a prescribed area;

(b) keeping any fish at a place specified in a fish processor’s licence under section 83(2) for the purpose of processing the fish in accordance with the licence;

(c) keeping any fish in or on any premises for the purpose of serving the fish as meals to the public, or otherwise for the purpose of consumption, in or on those premises; or

(d) selling any fish of a prescribed class in, or taken from, a dam or lake on private land in a prescribed area if —

(i) the person is the owner or occupier of the land; and

(ii) the fish are sold to a person who is authorised by an aquaculture licence to purchase the fish.

92. Grant of aquaculture licence

(1) If a person applies to the CEO for the grant of an aquaculture licence and the CEO is satisfied that —

(a) the person is a fit and proper person to hold such a licence;

(b) it is in the better interests of the aquaculture industry to grant the licence;

(c) the activities to be conducted under the licence are unlikely to adversely affect other fish or the aquatic environment; and

(d) the activities to be conducted under the licence have been approved by other relevant authorities,

the CEO may grant to the person an aquaculture licence.

(2) The licence may authorise the person, or persons acting on that person’s behalf, to engage in an activity referred to in section 90.

(3) The CEO may seek the advice of such authority or authorities as the CEO thinks fit in order to determine whether or not subsection (1)(c) is satisfied.

(4) An aquaculture licence must not be issued in relation to —

(a) an area of a marine nature reserve; or

(b) an area of a marine park from which aquaculture is excluded under section 13B of the Conservation and Land Management Act 1984.

(5) An aquaculture licence must not be issued in relation to —

(a) an area of a marine park other than one from which aquaculture is excluded under section 13B of the Conservation and Land Management Act 1984; or

(b) an area of a marine management area,

unless the Minister to whom the administration of the Conservation and Land Management Act 1984 is for the time being committed by the Governor approves the granting of the licence.

(6) Subsections (4) and (5) do not affect the validity of —

(a) a licence issued before the commencement of section 50 of the Acts Amendment (Marine Reserves) Act 1997 1; or

(b) a licence issued in relation to an area which is affected, after the issue of the licence, by a reservation under section 13 of the Conservation and Land Management Act 1984, or by a notice under section 62 of that Act.

[Section 92 amended by No. 5 of 1997 s. 50; No. 28 of 2006 s. 236(1).]