Fisheries Management Act 1994 No 38



An Act relating to the management of fishery resources.
Part 1 Preliminary
1   Name of Act
This Act may be cited as the Fisheries Management Act 1994.
2   Commencement
This Act commences on a day or days to be appointed by proclamation.
3   Objects of Act
(1)  The objects of this Act are to conserve, develop and share the fishery resources of the State for the benefit of present and future generations.
(2)  In particular, the objects of this Act include—
(a)  to conserve fish stocks and key fish habitats, and
(b)  to conserve threatened species, populations and ecological communities of fish and marine vegetation, and
(c)  to promote ecologically sustainable development, including the conservation of biological diversity,
and, consistently with those objects—
(d)  to promote viable commercial fishing and aquaculture industries, and
(e)  to promote quality recreational fishing opportunities, and
(f)  to appropriately share fisheries resources between the users of those resources, and
(g)  to provide social and economic benefits for the wider community of New South Wales, and
(h)  to recognise the spiritual, social and customary significance to Aboriginal persons of fisheries resources and to protect, and promote the continuation of, Aboriginal cultural fishing.
Note—
At common law, the public has a right to fish in the sea, the arms of the sea and in the tidal reaches of all rivers and estuaries. The public has no common law right to fish in non-tidal waters—the right to fish in those waters belongs to the owner of the soil under those waters. However, the public may fish in non-tidal waters if the soil under those waters is Crown land. In the case of non-tidal waters in rivers and creeks, section 38 declares that the public has a right to fish despite the private ownership of the bed of the river or creek. However, the right to fish in tidal or non-tidal waters is subject to any restriction imposed by this Act.
s 3: Am 1997 No 153, Sch 1 [1]; 2001 No 104, Sch 1 [1]; 2009 No 114, Sch 1 [1].
4   Definitions
(1)  In this Act—
Aboriginal cultural fishing means fishing activities and practices carried out by Aboriginal persons for the purpose of satisfying their personal, domestic or communal needs, or for educational, ceremonial or other traditional purposes, and which do not have a commercial purpose.
Aboriginal fishing assistance program—see section 237B.
Aboriginal person means a person who—
(a)  is a member of the Aboriginal race of Australia, and
(b)  identifies as an Aboriginal person, and
(c)  is accepted by the Aboriginal community as an Aboriginal person.
advisory council means an advisory council established by the Minister under section 229.
advisory group means an advisory group established by the Secretary under section 230.
aquaculture is defined in Part 6.
aquaculture lease means an aquaculture lease granted or renewed under Part 6.
aquaculture permit means an aquaculture permit issued and in force under Part 6.
Australian fishing zone has the same meaning as it has in the Commonwealth Act.
biological diversity means the diversity of life and is made up of the following 3 components—
(a)  genetic diversity—the variety of genes (or units of heredity) in any population,
(b)  species diversity—the variety of species,
(c)  ecosystem diversity—the variety of communities or ecosystems.
boat means any kind of vessel, however navigated.
charter fishing boat licence means a licence for a boat issued under Part 4A and in force.
commercial fisher means a person who holds a commercial fishing licence.
commercial fishing licence means a commercial fishing licence issued under Division 1 of Part 4 and in force.
Commonwealth Act means the Fisheries Management Act 1991 of the Commonwealth.
Crown land means Crown land within the meaning of the Crown Land Management Act 2016.
cultivate includes propagate, hatch, breed, rear and farm.
Department means the Department of Industry, Skills and Regional Development.
ecologically sustainable development has the same meaning as under section 6(2) of the Protection of the Environment Administration Act 1991.
electronic communication has the same meaning as it has in the Electronic Transactions Act 2000.
examine includes count, measure, weigh and grade.
exercise a function includes perform a duty.
fish is defined in section 5.
fisheries management charge means a fee, charge or contribution that is required to be paid by or under this Act.
fisheries officer means a person for the time being appointed under Part 9 as a fisheries officer for the purposes of this Act.
Note—
Under Part 9, a police officer is also a fisheries officer for the purposes of this Act.
fishery is defined in section 6.
fishing activity means the activity of taking fish, including—
(a)  searching for fish, or
(b)  any activity that can reasonably be expected to result in the locating, aggregating or taking of fish, or
(c)  carrying fish by boat from the place where they are taken to the place where they are to be landed.
fishing boat licence means a licence issued under section 107B and in force.
fishing business is defined in section 34Q.
fishing business determination is defined in section 34Q.
fishing business transfer rules is defined in section 34T.
fishing closure is defined in section 8.
fishing determination means a determination of total allowable catch of fish or total allowable fishing effort made under Part 2A.
fishing gear means any equipment (other than a boat or aircraft) used for fishing activities.
foreign boat has the same meaning as it has in the Commonwealth Act.
forfeited quota—see section 40V.
freshwater means water in a river or creek that is not subject to tidal influence—
(a)  including any body of freshwater that is naturally or artificially stored (such as a freshwater lake, lagoon, dam, reservoir, pond, canal, channel or waterway), but
(b)  not including any coastal lake that is intermittently open to tidal influence.
The regulations may, for the purpose of avoiding doubt about the application of this definition, specify the point at which any river, creek or other body of water becomes subject to tidal influence.
function includes a power, authority or duty.
habitat means any area occupied, or periodically or occasionally occupied, by fish or marine vegetation (or both), and includes any biotic or abiotic component.
leased area means the area that is the subject of an aquaculture lease.
management plan means—
(a)  in relation to a share management fishery—a management plan for the fishery made under Division 5 of Part 3, or
(b)  in relation to any other fishery—a management plan under the regulations referred to in section 40(2)(a).
marine vegetation means any species of plant that at any time in its life must inhabit water (other than fresh water).
master of a boat means the master or other person for the time being in charge or command of the boat.
native title holder has the same meaning as it has in the Native Title Act 1993 of the Commonwealth.
net includes anything attached to a net.
noxious fish—see section 209.
noxious marine vegetation—see section 209.
owner of a fishing business is defined in section 34Q.
oyster means any bivalve mollusc of the family Ostreidae.
possession of a thing includes having the thing under control at any place, even though some other person has physical possession of the thing.
possession limit means a possession limit (within the meaning of section 17A) imposed by the regulations or by an order under section 17C.
premises includes any structure, building or place, whether built on or not.
process fish means cut up, break up, shell, skin, shuck, purge, cook, pack, chill, freeze, can, preserve or otherwise treat or process fish.
prohibited size fish means a fish declared by the regulations under Division 2 of Part 2 to be a prohibited size fish.
public authority means a person or body established or constituted by an Act for a public purpose, and includes a Government Department, a local government authority or a state-owned corporation.
public water land means land submerged by water (whether permanently or intermittently), being—
(a)  Crown land, or
(b)  land vested in a public authority, or
(c)  land vested in trustees for public recreation or for any other public purpose, or
(d)  land acquired by the Minister under Division 1 of Part 8,
but does not include land which is the subject of an aquaculture lease or land of which a person has exclusive possession under a lease under any other Act.
quota—see section 40R.
records includes documents containing financial or any other kind of information.
Note—
The Interpretation Act 1987 defines document to include not only paper but also computer or other electronic records.
recreational fisher means a fisher who takes fish by any method, otherwise than for sale.
registered fish receiver means a fish receiver registered under Division 4 of Part 4.
registered native title body corporate has the same meaning as it has in the Native Title Act 1993 of the Commonwealth.
registered native title claimant has the same meaning as it has in the Native Title Act 1993 of the Commonwealth.
restricted fishery means an exploratory, developmental or other restricted fishery declared under Division 3 of Part 4.
Secretary means the Secretary of the Department.
sell includes—
(a)  sell by wholesale, retail, auction or tender, or
(b)  barter or exchange, or
(c)  supply for profit, or
(d)  offer for sale, receive for sale or expose for sale, or
(e)  consign or deliver for sale, or
(f)  have in possession for sale, or
(g)  cause or allow any of the above to be done.
Share Appeal Panel means the Share Management Fisheries Appeal Panel constituted under Division 9 of Part 3.
share management fishery means a fishery specified in Schedule 1.
share management plan means a management plan for a share management fishery.
Share Register means the Share Management Fisheries Register kept in accordance with Division 10 of Part 3.
species of fish includes fish that are of variety, domesticated form or hybrid of the species.
supporting plan, in relation to a share management fishery, means a supporting plan made under Division 5 of Part 3.
TAF Committee means the Total Allowable Fishing Committee appointed under Schedule 2.
take fish includes—
(a)  catch or kill fish, or
(b)  gather or collect fish, or
(c)  remove fish from any rock or other matter,
or attempt to do so.
trust fund means a trust fund established under Division 3 of Part 8.
vehicle includes aircraft, caravan or trailer.
Note—
The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.
Note—
Section 14.7 of the Biodiversity Conservation Act 2016 enables certain animals to be declared to be fish and certain fish to be declared to be animals, and also enables certain plants to be declared to be marine vegetation and certain marine vegetation to be declared to be plants, for the purposes of that Act and this Act.
(2)  In this Act, a reference to taking fish for sale includes a reference to taking fish for use as bait in taking fish for sale.
(3)  For the purposes of any provision of this Act that provides for an increased maximum penalty for a second or subsequent offence, an offence is to be regarded as a second or subsequent offence in relation to another offence only if—
(a)  a conviction was recorded in relation to the other offence, and
(b)  the other offence occurred on a separate occasion.
Note—
Penalties for offences are expressed in penalty units. Under the Crimes (Sentencing Procedure) Act 1999, the amount of a penalty unit is currently $110.
(4)  A reference in this Act to the common name of a species of fish does not limit any scientific description of a species of fish in this Act. If there is any inconsistency between the common name and the scientific description of a species, the scientific description of the species prevails.
Note—
The common name of a species of fish is generally the standard name for the fish as defined in the Australian Standard entitled AS SSA 5300—2011, Australian Fish Names Standard published on 20 October 2011.
s 4: Am 1996 No 141, Sch 1 [1] [2]; 1997 No 153, Schs 1 [2], 2 [1], 4 [1], 5 [1]–[4]; 2000 No 86, Schs 2 [1], 3 [1], 4 [1], 6.2 [1], 7 [1]; 2001 No 56, Sch 1.5 [1] [2]; 2004 No 26, Sch 1 [2] [3]; 2006 No 18, Sch 1 [2]; 2008 No 86, Sch 1 [1]; 2009 No 114, Sch 1 [2]–[4]; 2010 No 59, Sch 2.33 [1]; 2015 No 59, Sch 1 [2] [3] [5]–[8]; 2016 No 63, Sch 11.2 [1], 2017 No 17, Sch 4.32 [1]; 2017 No 56, Sch 1 [1].
5   Definition of “fish”
(1)  In this Act, fish means marine, estuarine or freshwater fish or other aquatic animal life at any stage of their life history (whether alive or dead).
(2)  In this Act, fish includes—
(a)  oysters and other aquatic molluscs, and
(b)  crustaceans, and
(c)  echinoderms, and
(d)  beachworms and other aquatic polychaetes.
(3)  In this Act, fish also includes any part of a fish.
(4)  However, in this Act, fish does not include whales, mammals, reptiles, birds, amphibians or other things excluded from the definition by the regulations.
s 5: Am 1997 No 153, Sch 5 [5].
6   Definition of “fishery”
(1)  In this Act, fishery means a class of fishing activity.
(2)  For the purposes of this Act, a fishery may be identified by reference to any one or more of the following—
(a)  a species or other class of fish,
(b)  an area of waters or seabed,
(c)  a method of fishing,
(d)  a class of boat,
(e)  a class of persons,
(f)  a purpose of activities.
7   Waters to which Act applies
(1)  This Act applies—
(a)  in relation to all waters that are within the limits of the State, and
(b)  except for purposes relating to a fishery, or a part of a fishery, that is to be managed in accordance with the law of the Commonwealth pursuant to an arrangement under Division 3 of Part 5 and except for purposes prescribed by paragraph (d)—in relation to any waters of the sea 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, and
(c)  for purposes relating to a fishery, or a part of a fishery, that is managed in accordance with the law of the State pursuant to an arrangement under Division 3 of Part 5—in relation to any waters to which the legislative powers of the State extend with respect to that fishery, whether pursuant to section 5 of the Coastal Waters (State Powers) Act 1980 of the Commonwealth or otherwise, and
(d)  for purposes relating to recreational fishing activities engaged in otherwise than by use of a foreign boat (other than recreational activities prohibited or regulated under a plan of management determined under section 17 of the Commonwealth Act)—in relation to any waters to which the legislative powers of the State extend with respect to such activities.
Note—
In many cases the legislative powers of the State will extend beyond three nautical miles, particularly in relation to recreational fishing.
(2)  This section is subject to any express limitations in this Act.
(3)  This Act is intended to have extraterritorial application in so far as the legislative powers of the State permit.
Note—
Section 7 and Part 5 implement Commonwealth/State arrangements with respect to fisheries and are in the same form as the fisheries legislation of other States and Territories.
s 7: Am 2001 No 104, Sch 1 [2] [3]; 2009 No 114, Sch 1 [5].
Part 1A Fishery management strategies
pt 1A: Ins 2000 No 86, Sch 2 [2].
7A   Definitions
In this Part—
designated fishing activity means a fishing activity described in Schedule 1A.
fishing activity includes any activity that may be the subject of environmental assessment under Schedule 1AA.
fishing regulatory controls has the same meaning it has in Schedule 1AA.
s 7A: Ins 2000 No 86, Sch 2 [2]. Am 2003 No 102, Sch 2.2 [1]; 2017 No 60, Sch 5.2 [4].
7B   Declaration of designated fishing activities
(1)  Schedule 1A describes designated fishing activities for the purposes of this Part.
(2)  The Governor may, by proclamation published on the NSW legislation website on the recommendation of the Minister, amend Schedule 1A by inserting, omitting or amending the description of a fishing activity.
(3)  The regulations may make provisions of a savings or transitional nature consequent on the amendment of Schedule 1A.
s 7B: Ins 2000 No 86, Sch 2 [2]. Am 2009 No 56, Sch 4.21 [1].
7C   Fishery management strategy for designated activities
(1)  The Minister is to arrange for the preparation of a draft fishery management strategy for each designated fishing activity.
(2)  The Minister may, from time to time, revise the existing strategy for an activity or arrange for the preparation of a new draft strategy for the activity (whether or not a review of the existing strategy is required because performance indicators are not being met).
(2A)  An existing strategy may be revised by including provisions in a subsequent strategy (whether or not relating to the same activity) that are expressed to amend, replace or otherwise revise the provisions of the existing strategy.
(2B)  The Minister may set priorities, or revise priorities, for the implementation of any action contemplated by an existing strategy, in particular, for the purpose of co-ordinating the implementation of actions that are common to 2 or more strategies.
(3)    (Repealed)
(4)  A draft fishery management strategy becomes the existing fishery management strategy when it is approved by the Minister. However, the first fishery management strategy to be approved in respect of a designated fishing activity must be approved in accordance with section 7F.
s 7C: Ins 2000 No 86, Sch 2 [2]. Am 2002 No 112, Sch 1.9 [1]; 2003 No 102, Sch 2.2 [2]; 2004 No 26, Sch 1 [4].
7D   Purpose of fishery management strategy
(1)  A fishery management strategy is the strategy for achieving the objectives of this Act with respect to the designated fishing activity for which it is prepared. The draft strategy is the basis for environmental assessment under Schedule 1AA of that activity.
(2)  A draft strategy is to be prepared (in accordance with guidelines agreed between the Minister administering this Act and the Minister administering the EPA Act) so as to enable—
(a)  an environmental assessment consistent with the principles on which assessments of activities are undertaken under Part 5 of the EPA Act, and
(b)  the cumulative environmental impact of fisheries approvals under this Act to be assessed.
Note—
Schedule 1AA makes special provision for the environmental assessment of designated fishing activities. Section 115I of that Act requires the preparation of a draft fishery management strategy for any fishing activity that is subject to environmental assessment under that Division. The draft strategy is subject to public consultation in conjunction with the environmental impact statement for the assessment.
s 7D: Ins 2000 No 86, Sch 2 [2]. Am 2017 No 60, Sch 5.2 [4].
7E   Content of fishery management strategy
A fishery management strategy is to—
(a)  describe the designated fishing activity for which it is prepared, and
(b)  incorporate any management plan or draft management plan for the fishery concerned, and
(c)  outline the fishing regulatory controls or proposed fishing regulatory controls applicable to the designated fishing activity, and
(d)  outline the likely interaction of the designated fishing activity with other fishing activities, and
(e)  include performance indicators to monitor whether the objectives of the strategy (and the management plan) and ecologically sustainable development are being attained, and
(f)  describe how the designated fishing activity is to be monitored, and
(g)  specify at what point a review of the strategy is required when a performance indicator is not being satisfied.
Note—
See section 57 for content of a management plan for a share management fishery.
s 7E: Ins 2000 No 86, Sch 2 [2].
7F   Revision of draft strategy and publication of approved strategy following environmental assessment
(1)  Following a determination under Schedule 1AA, the Minister is to revise the draft fishery management strategy for the designated fishing activity concerned and make any amendment that is necessary to reflect the result of the determination.
(2)    (Repealed)
(3)  The Minister is to publish the approved strategy (as so revised) in connection with the publication of the determination under Schedule 1AA.
s 7F: Ins 2000 No 86, Sch 2 [2]. Am 2002 No 112, Sch 1.9 [2] [3]; 2003 No 102, Sch 2.2 [3]; 2017 No 60, Sch 5.2 [4].
7G   Management plan not to be made until completion of environmental assessment
(1)  Until a determination is made under Schedule 1AA with respect to a designated fishing activity, the first management plan for the fishery concerned cannot be made.
(2)  If the management plan for a share management fishery is not made within the time required by section 42(3), the Minister is not required to recommend that the description of the fishery be omitted from Schedule 1 if the Minister is satisfied, after having consulted with any relevant advisory group or advisory council, that the fishery should be retained as a share management fishery despite the delay in making the plan.
s 7G: Ins 2000 No 86, Sch 2 [2]. Am 2015 No 59, Sch 1 [9]; 2017 No 60, Sch 5.2 [4].
Part 2 General fisheries management
Division 1 Fishing closures
8   Closure of waters to fishing
(1)  The Minister may from time to time, by notification, prohibit, absolutely or conditionally, the taking of fish, or of a specified class of fish, from any waters or from specified waters.
(2)  Any such prohibition is called a fishing closure.
9   Publication of notification of closures
(1)  The notification of a fishing closure is to be published in the Gazette.
(2)  However, if the Minister considers that the fishing closure is required urgently, the Minister may publish the notification using either or both of the following methods—
(a)  by causing a copy of the notification to be exhibited in a prominent place adjacent to the waters to which the fishing closure applies,
(b)  by publishing the notification on the Department’s website.
(3)  In any such urgent case, the Minister is to publish the notification in the Gazette as soon as practicable.
(4)  The Minister may take any other steps the Minister considers reasonable to publicly notify a fishing closure.
(5)  This section applies to an amendment or revocation of a fishing closure in the same way as it applies to a fishing closure.
s 9: Am 2015 No 59, Sch 1 [10].
10   Duration of closures
(1)  A fishing closure takes effect on the publication of the notification or on a later date specified in the notification.
(2)  A fishing closure remains in force, subject to this Act, for the period (not exceeding 5 years) specified in the notification.
11   Amendment or revocation of closures
The Minister may from time to time amend or revoke a fishing closure by a further notification published in accordance with this Division.
12   General provisions relating to closures
Sections 42–45 of the Interpretation Act 1987 apply to notifications of fishing closures in the same way as they apply to statutory rules within the meaning of that Act.
Note—
The above provisions of the Interpretation Act 1987 relate to standard provisions authorising the adoption of other publications by reference, the making of differential closures, the amendment or repeal of closures and judicial notice and presumptions as to validity for closures.
13   Regulations relating to closures
The regulations may make provision for or with respect to giving effect to fishing closures or to any other matter relating to fishing closures.
14   Offences relating to closures
(1)  A person who takes fish in contravention of a fishing closure is guilty of an offence.
Maximum penalty—
(a)  in the case of an individual—
(i)  200 penalty units or imprisonment for 6 months (or both) for a first offence, or
(ii)  400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or
(b)  in the case of a corporation—
(i)  1,000 penalty units for a first offence, or
(ii)  2,000 penalty units for a second or subsequent offence.
(2)  A person who is in possession of fish taken in contravention of a fishing closure is guilty of an offence.
Maximum penalty—
(a)  in the case of an individual—
(i)  200 penalty units or imprisonment for 6 months (or both) for a first offence, or
(ii)  400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or
(b)  in the case of a corporation—
(i)  1,000 penalty units for a first offence, or
(ii)  2,000 penalty units for a second or subsequent offence.
(3)  It is a defence to a prosecution for an offence under subsection (2) if the person charged satisfies the court that the person did not know and could not reasonably have known that the fish had been taken in contravention of a provision of or made under this Act.
s 14: Am 2009 No 114, Sch 1 [6].
Division 2 Offences relating to size, quantity and particular species of fish
pt 2, div 2, hdg: Subst 2009 No 114, Sch 1 [7].
14A   Definitions
(1)  In this Division—
commercial quantity of a priority species of fish means—
(a)  in relation to an offence against section 16—the quantity specified as a commercial quantity of fish for the species concerned in Column 3 of Part 1 of Schedule 1B, or
(b)  in relation to an offence against section 17 or 18—the quantity specified as a commercial quantity of fish for the species concerned in Column 3 of Part 2 of Schedule 1B.
priority species of fish means—
(a)  in relation to an offence against section 16—a species of fish specified in Column 1 of Part 1 of Schedule 1B, or
(b)  in relation to an offence against section 17 or 18—a species of fish specified in Column 1 of Part 2 of Schedule 1B.
(2)  If the commercial quantity of a priority species of fish is specified by reference to the total weight of the fish concerned, the total weight of the fish is to be determined in accordance with the regulations.
(3)  The common name of a species of fish specified in Column 2 of Schedule 1B is for information purposes only and does not limit the description of the species of fish in Column 1.
(4)  The Governor may, by regulation made on the recommendation of the Minister, amend Schedule 1B to insert, alter or omit any matter in that Schedule.
s 14A: Ins 2009 No 114, Sch 1 [8].
15   Declaration of prohibited size fish
(1)  The regulations may declare that fish of a specified species that do not comply with a minimum size, maximum size or range of sizes specified for fish of that species are prohibited size fish.
(1A)  The regulations may declare different prohibited size fish for different classes of persons or for different circumstances.
(2)  The regulations may prescribe the method of determining the size of any class of fish.
(3)  The regulations may specify the size of fish by reference to measurement or weight (or both), or by reference to the number of individuals in any specified weight.
s 15: Am 2009 No 114, Sch 1 [9] [10].
16   Prohibited size fish
(1)  A person who has prohibited size fish in the person’s possession is guilty of an offence.
Maximum penalty—
(a)  in the case of an individual—
(i)  200 penalty units or imprisonment for 6 months (or both) for a first offence, or
(ii)  400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or
(b)  in the case of a corporation—
(i)  1,000 penalty units for a first offence, or
(ii)  2,000 penalty units for a second or subsequent offence.
(2)  A person who has prohibited size fish in the person’s possession, in circumstances of aggravation, is guilty of an offence.
Maximum penalty—
(a)  in the case of an individual—
(i)  400 penalty units or imprisonment for 12 months (or both) for a first offence, or
(ii)  800 penalty units or imprisonment for 18 months (or both) for a second or subsequent offence, or
(b)  in the case of a corporation—
(i)  2,000 penalty units for a first offence, or
(ii)  4,000 penalty units for a second or subsequent offence.
(3)  A person who sells prohibited size fish is guilty of an offence.
Maximum penalty—
(a)  in the case of an individual—
(i)  200 penalty units or imprisonment for 6 months (or both) for a first offence, or
(ii)  400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or
(b)  in the case of a corporation—
(i)  1,000 penalty units for a first offence, or
(ii)  2,000 penalty units for a second or subsequent offence.
(4)  A person who sells prohibited size fish, in circumstances of aggravation, is guilty of an offence.
Maximum penalty—
(a)  in the case of an individual—
(i)  400 penalty units or imprisonment for 12 months (or both) for a first offence, or
(ii)  800 penalty units or imprisonment for 18 months (or both) for a second or subsequent offence, or
(b)  in the case of a corporation—
(i)  2,000 penalty units for a first offence, or
(ii)  4,000 penalty units for a second or subsequent offence.
(5)  For the purposes of subsections (2) and (4), a person has possession of prohibited size fish, or sells prohibited size fish, in circumstances of aggravation if—
(a)  the prohibited size fish in possession or sold by the person are a priority species of fish, and
(b)  the quantity of prohibited size fish in possession or sold by the person is a commercial quantity of that species of fish.
s 16: Subst 2009 No 114, Sch 1 [11].
17   Bag limits—taking of fish
(1)  The regulations may specify the maximum quantity of fish of a specified species, or of a specified class, that a person may take on any one day (the daily limit).
(2)  A person who takes on any one day more fish than the daily limit of those fish is guilty of an offence.
Maximum penalty—
(a)  in the case of an individual—
(i)  200 penalty units or imprisonment for 6 months (or both) for a first offence, or
(ii)  400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or
(b)  in the case of a corporation—
(i)  1,000 penalty units for a first offence, or
(ii)  2,000 penalty units for a second or subsequent offence.
(2A)  A person who takes on any one day more fish than the daily limit of those fish, in circumstances of aggravation, is guilty of an offence.
Maximum penalty—
(a)  in the case of an individual—
(i)  400 penalty units or imprisonment for 12 months (or both) for a first offence, or
(ii)  800 penalty units or imprisonment for 18 months (or both) for a second or subsequent offence, or
(b)  in the case of a corporation—
(i)  2,000 penalty units for a first offence, or
(ii)  4,000 penalty units for a second or subsequent offence.
(2B)  For the purposes of subsection (2A), a person takes fish in circumstances of aggravation if—
(a)  the fish taken are a priority species of fish, and
(b)  the quantity of fish taken is a commercial quantity of that species of fish.
(3)  The regulations may specify different daily limits for commercial fishers or other classes of fishers or in any other circumstances specified in the regulations. The regulations may also include restrictions as to size or otherwise in respect of any daily limit of fish.
(3A)  The regulations may specify a daily limit of zero for fish of a specified species or of a specified class. In that case, a reference in this section to taking more fish than the daily limit of those fish is to be read as a reference to taking any of those fish.
(4)  This section does not authorise the taking of fish in contravention of a fishing closure or other provision of or made under this Act.
(5)  The regulations may provide that the maximum quantity of any fish that may be taken applies to a period other than one day. In that case, a reference in this section to any one day is to be read as a reference to that other period.
(6)  The Minister is required to consult any relevant advisory council or advisory group about any proposal to specify or change daily limits under this section.
s 17: Am 1997 No 153, Sch 5 [6]; 2002 No 53, Sch 2.15 [1]; 2009 No 114, Sch 1 [12]–[14]; 2015 No 59, Sch 1 [11].
17A   Bag limits—possession of fish
(1)  Possession limits for fish may be imposed under this Act.
(2)  A possession limit is the maximum quantity of fish that a person may have in the person’s possession in any specified circumstances.
(3)  A possession limit may be imposed in relation to a specified species of fish or fish of a specified class.
(4)  A possession limit may apply generally or be limited to—
(a)  a particular class of fishers, or
(b)  fish of a particular size, or
(c)  particular waters, or
(d)  any other specified circumstances.
(5)  The possession limit of any fish need not be the same as the daily limit of those fish.
(6)  A possession limit of zero may be imposed.
(7)  This section does not authorise the possession of fish in contravention of any other provision of or made under this Act.
ss 17A–17C: Ins 2015 No 59, Sch 1 [12].
17B   How possession limits are imposed
(1)  A possession limit may be imposed—
(a)  by the regulations, or
(b)  by Ministerial order.
(2)  If there is any inconsistency between a possession limit imposed by the regulations and a possession limit imposed by Ministerial order, the possession limit imposed by Ministerial order prevails.
(3)  The Minister is required to consult any relevant advisory council or advisory group about any proposal to impose a possession limit by regulation or to change possession limits imposed by the regulations.
(4)  In this section—
Ministerial order means an order of the Minister under section 17C.
ss 17A–17C: Ins 2015 No 59, Sch 1 [12].
17C   Ministerial order imposing possession limit
(1)  The Minister may, by order, impose a possession limit.
(2)  The order is to be published in the Gazette.
(3)  However, if the Minister considers that the imposition of a possession limit is required urgently, the Minister may publish notification of the order using either or both of the following methods—
(a)  by causing a copy of the order to be exhibited in a prominent place adjacent to the waters to which the order applies,
(b)  by publishing notice of the order on the Department’s website.
(4)  In any such urgent case, the Minister is to publish the order in the Gazette as soon as practicable.
(5)  The Minister may take any other steps the Minister considers reasonable to publicly notify an order under this section.
(6)  Subsections (2)–(5) apply to an amendment or revocation of an order under this section in the same way as they apply to the making of an order under this section.
(7)  An order under this section has effect for the period (not exceeding 5 years) specified in the order.
(8)  Subsection (7) does not prevent the making of a further order under this section.
(9)  Sections 40 and 41 of the Interpretation Act 1987 apply in respect of an order under this section (including an order that amends or revokes an order) in the same way as they apply in respect of a statutory rule.
(10)  For that purpose, a reference in those sections to the day of publication on the NSW legislation website is to be read as a reference to the day of first publication of the order in accordance with this section.
ss 17A–17C: Ins 2015 No 59, Sch 1 [12].
18   Offence of contravening possession limit
(1)    (Repealed)
(2)  A person who has in the person’s possession more than the possession limit of any fish is guilty of an offence. This subsection applies irrespective of the period over which the fish were taken.
Maximum penalty—
(a)  in the case of an individual—
(i)  200 penalty units or imprisonment for 6 months (or both) for a first offence, or
(ii)  400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or
(b)  in the case of a corporation—
(i)  1,000 penalty units for a first offence, or
(ii)  2,000 penalty units for a second or subsequent offence.
(2A)  A person who has in the person’s possession, in circumstances of aggravation, more than the possession limit of any fish is guilty of an offence. This subsection applies irrespective of the period over which the fish were taken.
Maximum penalty—
(a)  in the case of an individual—
(i)  400 penalty units or imprisonment for 12 months (or both) for a first offence, or
(ii)  800 penalty units or imprisonment for 18 months (or both) for a second or subsequent offence, or
(b)  in the case of a corporation—
(i)  2,000 penalty units for a first offence, or
(ii)  4,000 penalty units for a second or subsequent offence.
(2B)  For the purposes of subsection (2A), a person has possession of fish in circumstances of aggravation if—
(a)  the fish in the person’s possession are a priority species of fish, and
(b)  the quantity of fish in the person’s possession is a commercial quantity of that species of fish.
(3)    (Repealed)
(3A)  If a possession limit of zero is imposed for fish of a specified species or of a specified class, a reference in this section to being in possession of more than the possession limit of those fish is to be read as a reference to being in possession of any of those fish.
(4), (5)    (Repealed)
s 18: Am 1997 No 153, Sch 5 [7]; 2009 No 114, Sch 1 [15]–[18]; 2015 No 59, Sch 1 [13]–[16].
18A   Additional monetary penalty for bag limit offences involving priority species
(1)  A court that finds a person guilty of an offence against section 17 or 18 in respect of any species of fish that is a priority species of fish in relation to the offence concerned may impose an additional penalty for the offence of up to 10 times the market value of the fish the subject of the offence.
(2)  The market value of the fish the subject of the offence is the amount determined by the court as the price at which the fish might reasonably have been expected to be sold by the person who committed the offence at the time the offence was committed.
(3)  In determining the market value of the fish the subject of the offence, the court may have regard to the following—
(a)  the price for which fish of that species were being sold at the time of the offence (whether or not to purchasers within this State and whether or not legally),
(b)  the price for which the fish were sold, or for which fish of that species have previously been sold, by the person who committed the offence,
(c)  any other matters it considers appropriate.
(4)  The court may determine the market value of the fish the subject of the offence by reference to the weight of the fish the subject of the offence, the number of fish the subject of the offence or by any other method it considers appropriate.
(5)  The penalty provided for by this section is in addition to the maximum penalty provided for by this Act in respect of the particular offence concerned.
s 18A: Ins 2009 No 114, Sch 1 [19].
19   Protected fish
(1)  The regulations may declare that fish of a specified species are protected fish.
(2)  A person who takes protected fish is guilty of an offence.
(3)  A person who has protected fish in the person’s possession is guilty of an offence.
(4)  The regulations may declare the possession of any protected fish to be prohibited absolutely.
(5)  If the possession of protected fish is prohibited absolutely, subsection (3) applies whether or not the fish are taken from waters to which this Act applies.
Maximum penalty—
(a)  in the case of an individual—
(i)  200 penalty units or imprisonment for 6 months (or both) for a first offence, or
(ii)  400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or
(b)  in the case of a corporation—
(i)  1,000 penalty units for a first offence, or
(ii)  2,000 penalty units for a second or subsequent offence.
s 19: Am 1997 No 153, Sch 5 [8]; 2009 No 114, Sch 1 [20] [21].
20   Fish and waters protected from commercial fishing
(1)  The regulations may declare that fish of a specified species are protected, absolutely or conditionally, from all or a class of commercial fishing.
(2)  The regulations may declare specified waters to be waters in which all or a class of commercial fishing is prohibited absolutely or conditionally.
(3)  A person who—
(a)  takes fish of a species declared under subsection (1) in breach of the declaration, or
(b)  takes fish from waters declared under subsection (2) in breach of the declaration, or
(c)  sells fish taken in breach of a declaration under subsection (1) or (2),
is guilty of an offence.
Maximum penalty—
(a)  in the case of an individual—
(i)  1,000 penalty units or imprisonment for 6 months (or both) for a first offence, or
(ii)  2,000 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or
(b)  in the case of a corporation—
(i)  2,000 penalty units for a first offence, or
(ii)  4,000 penalty units for a second or subsequent offence.
(4)  The regulations may declare the sale of any species of fish that is protected from commercial fishing under subsection (1) to be prohibited absolutely.
(5)  A person who sells fish of a species declared under subsection (4) is guilty of an offence.
Maximum penalty—
(a)  in the case of an individual—
(i)  1,000 penalty units or imprisonment for 6 months (or both) for a first offence, or
(ii)  2,000 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or
(b)  in the case of a corporation—
(i)  2,000 penalty units for a first offence, or
(ii)  4,000 penalty units for a second or subsequent offence.
(6)  Subsection (5) applies whether or not the fish were taken from waters to which this Act applies.
(7)  A person cannot be found guilty of both an offence against subsection (3)(c) and an offence against subsection (5) in respect of the same sale.
(8)  Nothing in this section limits the power of the Minister to make a fishing closure in relation to commercial fishing.
s 20: Am 1997 No 153, Sch 5 [9]. Subst 2001 No 104, Sch 1 [4]. Am 2009 No 114, Sch 1 [22] [23]; 2010 No 59, Sch 2.33 [2].
20A   Fish and waters protected from recreational fishing
(1)  The regulations may declare that fish of a specified species are protected, absolutely or conditionally, from all or a class of recreational fishing.
(2)  The regulations may declare specified waters to be waters in which all or a class of recreational fishing is prohibited absolutely or conditionally.
(3)  A person who—
(a)  takes fish of a species declared under subsection (1) in breach of the declaration, or
(b)  takes fish from waters declared under subsection (2) in breach of the declaration,
is guilty of an offence.
Maximum penalty—
(a)  in the case of an individual—
(i)  200 penalty units or imprisonment for 6 months (or both) for a first offence, or
(ii)  400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or
(b)  in the case of a corporation—
(i)  1,000 penalty units for a first offence, or
(ii)  2,000 penalty units for a second or subsequent offence.
(4)  Nothing in this section limits the power of the Minister to make a fishing closure in relation to recreational fishing.
s 20A: Ins 2009 No 114, Sch 1 [24].
20B   Shark finning and related prohibitions
(1)  A person must not, while on board a boat in any waters—
(a)  remove a fin from any species of shark, or
(b)  be in possession of a shark fin that is not naturally attached to the body of a shark, or
(c)  be in possession of any part of a shark.
Maximum penalty—
(a)  in the case of an individual—
(i)  200 penalty units or imprisonment for 6 months (or both) for a first offence, or
(ii)  400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or
(b)  in the case of a corporation—
(i)  1,000 penalty units for a first offence, or
(ii)  2,000 penalty units for a second or subsequent offence.
(2)  The regulations may provide for circumstances in which a person does not commit an offence against this section.
s 20B: Ins 2015 No 59, Sch 1 [17].
21   Defences
(1)  It is a defence to a prosecution for an offence under this Division if the person charged satisfies the court that—
(a)  the fish were lawfully taken from or lawfully cultivated in waters to which this Act does not apply, or
(b)  the fish were cultivated under the authority conferred by an aquaculture permit, or
(c)  the fish were taken or in possession under the authority conferred by any other permit under this Act, or
(d)  the person has any other defence that is prescribed by the regulations.
(2)  Subsection (1)(a) does not apply to the following offences—
(a)  an offence under section 19(3), if the possession of the protected fish is prohibited absolutely by the regulations,
(b)  an offence under section 20(5).
s 21: Am 1997 No 153, Sch 5 [10]; 2001 No 104, Sch 1 [5]; 2009 No 114, Sch 1 [25] [26].
Division 2A Trafficking in fish
pt 2, div 2A (ss 21A–21C): Ins 2009 No 114, Sch 1 [28].
21A   Definitions
(1)  In this Division—
indictable quantity of a species of fish means the quantity specified as an indictable quantity of fish for the species concerned in Column 3 of Schedule 1C.
indictable species of fish means a species of fish specified in Column 1 of Schedule 1C.
(2)  If an indictable quantity of a species of fish is specified by reference to the total weight of the fish concerned, the total weight of the fish is to be determined in accordance with the regulations.
(3)  The common name of a species of fish specified in Column 2 of Schedule 1C is for information purposes only and does not limit the description of the species of fish in Column 1.
(4)  The Governor may, by regulation made on the recommendation of the Minister, amend Schedule 1C to insert, alter or omit any matter in that Schedule.
pt 2, div 2A (ss 21A–21C): Ins 2009 No 114, Sch 1 [28].
21B   Trafficking in fish
(1)  A person must not traffic in an indictable species of fish.
Maximum penalty—Imprisonment for 10 years.
(2)  For the purposes of this Division, a person traffics in an indictable species of fish if—
(a)  the person dishonestly takes, sells, receives or possesses fish of an indictable species, and
(b)  the taking, selling, receiving or possession of the fish by the person contravenes another provision of this Act or of the regulations, and
(c)  the quantity of fish of an indictable species taken, sold, received or possessed is not less than an indictable quantity of the species concerned.
(3)  Any defence that is applicable to proceedings for an offence in respect of a contravention of another provision of this Act or of the regulations also applies to proceedings for an offence against this section in respect of the same contravention.
(4)  A person may be found guilty of an offence against this section in relation to a contravention of another provision of this Act whether or not the person has been found guilty of an offence against another provision of this Act in relation to that contravention.
pt 2, div 2A (ss 21A–21C): Ins 2009 No 114, Sch 1 [28].
21C   Additional monetary penalty may be imposed
(1)  A court that finds a person guilty of an offence against section 21B may impose an additional penalty for the offence of up to 10 times the market value of the fish the subject of the offence.
(2)  The market value of the fish the subject of the offence is the amount determined by the court as the price at which the fish might reasonably have been expected to be sold by the person who committed the offence at the time the offence was committed.
(3)  In determining the market value of the fish the subject of the offence, the court may have regard to the following—
(a)  the price for which fish of that species were being sold at the time of the offence (whether or not to purchasers within this State and whether or not legally),
(b)  the price for which the fish were sold, or for which fish of that species have previously been sold, by the person who committed the offence,
(c)  any other matters it considers appropriate.
(4)  The court may determine the market value of the fish the subject of the offence by reference to the weight of the fish the subject of the offence, the number of fish the subject of the offence or by any other method it considers appropriate.
(5)  The penalty provided for by this section is in addition to the maximum penalty provided for by this Act in respect of the offence concerned.
pt 2, div 2A (ss 21A–21C): Ins 2009 No 114, Sch 1 [28].
Division 3 Fishing gear
22   Registration of fishing gear
(1)  The regulations may make provision for or with respect to the registration of specified classes of fishing gear.
(2)  If a class of fishing gear is registrable, a person who uses unregistered gear of that class to take fish is guilty of an offence.
Maximum penalty—In the case of a corporation, 50 penalty units or, in any other case, 25 penalty units.
23   Regulations relating to fishing gear
The regulations may make provision for or with respect to fishing gear (including the classes of nets or traps that may lawfully be used for taking fish).
24   Lawful use of nets or traps
(1)  A person must not use a net or trap for taking any fish unless its use by the person for taking those fish is declared by the regulations to be a lawful use of the net or trap.
Maximum penalty—
(a)  in the case of an individual—
(i)  200 penalty units or imprisonment for 6 months (or both) for a first offence, or
(ii)  400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or
(b)  in the case of a corporation—
(i)  1,000 penalty units for a first offence, or
(ii)  2,000 penalty units for a second or subsequent offence.
(2)  This section does not affect any other prohibition of the use of a net or trap under a fishing closure or other provision of or made under this or any other Act.
s 24: Am 2009 No 114, Sch 1 [29].
25   Possession of illegal fishing gear
(1)  A person who is in possession of any fishing gear in, on or adjacent to any waters is guilty of an offence if—
(a)  the use by that person of that fishing gear for taking fish from those waters is, at that time, prohibited by or under this Act, or
(b)  the taking of fish from those waters is, at that time, prohibited by or under this Act.
Maximum penalty—
(a)  in the case of an individual—
(i)  200 penalty units or imprisonment for 6 months (or both) for a first offence, or
(ii)  400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or
(b)  in the case of a corporation—
(i)  1,000 penalty units for a first offence, or
(ii)  2,000 penalty units for a second or subsequent offence.
(2)  A person who is on board a boat is taken to be in possession of any fishing gear found in the boat.
(3)  It is a defence to a prosecution for an offence under this section if the person charged satisfies the court that the fishing gear was being transported, in accordance with the written authority of a fisheries officer, to waters where the person could lawfully take fish with that gear.
(4)  It is a defence to a prosecution for an offence under this section if the person charged satisfies the court that the fishing gear was in his or her possession for a lawful purpose (including any purpose prescribed as lawful by the regulations).
s 25: Am 2009 No 114, Sch 1 [30]; 2010 No 59, Sch 1.14 [1].
Division 4
26–34  (Repealed)
pt 2, div 4: Rep 2015 No 59, Sch 1 [18].
s 26: Rep 2015 No 59, Sch 1 [18].
s 27: Rep 2015 No 59, Sch 1 [18].
s 28: Am 2000 No 86, Sch 3 [2]. Rep 2015 No 59, Sch 1 [18].
ss 29–31: Rep 2015 No 59, Sch 1 [18].
s 32: Am 2006 No 18, Sch 1 [3]. Rep 2015 No 59, Sch 1 [18].
s 33: Rep 2015 No 59, Sch 1 [18].
s 34: Rep 2015 No 59, Sch 1 [18].
Division 4A Recreational fishing fee
pt 2, div 4A: Ins 1997 No 153, Sch 2 [2]. Subst 2000 No 86, Sch 4 [2].
34A   Definitions
In this Division—
fishing fee means a recreational fishing fee payable under this Division.
fishing fee exemption certificate means a certificate issued under section 34I and in force.
official receipt means a receipt issued under this Division for payment of a recreational fishing fee, being—
(a)  if the fishing fee was paid in person—the hard copy receipt issued as evidence of payment (or a copy of that receipt), or
(b)  if the fishing fee was paid over the telephone or by electronic means—the receipt number issued as evidence of payment, or
(c)  any other evidence of payment of a fishing fee prescribed by the regulations.
s 34A: Ins 1997 No 153, Sch 2 [2]. Subst 2000 No 86, Sch 4 [2]. Am 2009 No 114, Sch 1 [31].
34AA   Purpose of fishing fees
The purpose of fishing fees is to provide revenue to assist activities supported through the recreational fishing trust funds established under Division 3 of Part 8, including the following—
(a)  enhancing, maintaining or protecting recreational fishing,
(b)  carrying out research into fish and their ecosystems,
(c)  managing recreational fishing,
(d)  ensuring compliance with recreational fishing regulatory controls.
s 34AA: Ins 2001 No 104, Sch 1 [6]. Am 2009 No 114, Sch 1 [32].
34B   Recreational fishing fee
A recreational fishing fee is payable by recreational fishers as required by this Division.
s 34B: Ins 1997 No 153, Sch 2 [2]. Subst 2000 No 86, Sch 4 [2].
34C   Recreational fishers required to pay fishing fee
(1)  A fishing fee is payable by all recreational fishers, unless exempted by or under this section.
(2)  A fisher is exempt from paying a fishing fee—
(a)  if the fisher is under 18 years of age, or
(b)  if the fisher is of or over 18 years of age and is only assisting a fisher under 18 years of age to take fish by means of a single rod or line, or
(c)  if the fisher holds a licence, permit or other authority under this Act or the regulations and is taking fish in accordance with that licence, permit or other authority, or
(d)  if the fisher is engaging in recreational fishing activities that are exempt from payment of a fishing fee by virtue of a fishing fee exemption certificate that is in force, or
(e)  if the fisher is taking fish from water subject to an aquaculture permit and is taking fish to which the permit relates, or
(f)  if the fisher is an Aboriginal person, or
(g)  if the fisher is taking fish from an aquarium, or from a body of water of a class exempted by the regulations, or
(h)  if the fisher is a fisher of a class exempted by the regulations.
(3)  The regulations may require recreational fishers to produce evidence that they are exempt from paying a fishing fee.
s 34C: Ins 1997 No 153, Sch 2 [2]. Subst 2000 No 86, Sch 4 [2]. Am 2001 No 56, Sch 1.5 [3]; 2009 No 114, Sch 1 [33].
34D   Periods for which fishing fee payable
(1)  A fishing fee is payable for any period during which a recreational fisher takes fish from any waters otherwise than for sale.
(2)  A fishing fee may be paid for any of the following periods—
(a)  a period of 3 days,
(b)  a period of 1 month,
(c)  a period of 12 months,
(d)  a period of 3 years.
(3)  The regulations may prescribe other periods for which a fishing fee may be paid (whether in addition to, or substitution for, the periods referred to in subsection (2)).
s 34D: Ins 1997 No 153, Sch 2 [2]. Subst 2000 No 86, Sch 4 [2].
34E   Amount of fishing fee
(1)  The amount of the fishing fee is (subject to this section)—
(a)  for a period of 3 days—$5, or
(a1)  for a period of 1 month—$10, or
(b)  for a period of 12 months—$25, or
(c)  for a period of 3 years—$70.
(2)  The regulations may prescribe a different amount for any such period and may prescribe the amount for any other period for which a fishing fee may be paid.
s 34E: Ins 1997 No 153, Sch 2 [2]. Subst 2000 No 86, Sch 4 [2]. Am 2001 No 56, Sch 1.5 [4].
34F   Reductions in fishing fee payable
The regulations may provide for reductions in the amount of the fishing fee otherwise payable by persons of a specified class.
s 34F: Ins 1997 No 153, Sch 2 [2]. Subst 2000 No 86, Sch 4 [2].
34G   Issue of receipt on payment of fishing fee
(1)  A person who pays a fishing fee is entitled to be issued with an official receipt for the payment.
(2)  A receipt is evidence of the payment of the fishing fee and not an authority to take fish, and accordingly cannot be refused or made subject to any conditions.
(3)  A receipt is to be in a form approved by the Minister.
(3A)  The Secretary is to make appropriate arrangements to ensure that a person who pays a fishing fee is issued with an official receipt for the payment.
(4)  The regulations may make provision for the issue of replacement receipts for receipts that are lost, destroyed or damaged.
(5)  A receipt is not transferable.
s 34G: Ins 1997 No 153, Sch 2 [2]. Subst 2000 No 86, Sch 4 [2]. Am 2009 No 114, Sch 1 [34].
34H   Arrangements for collection of fishing fees and issue of receipts
(1)  The Secretary may enter into arrangements with any person for the collection of fishing fees and the issue of official receipts. A person who enters into such an arrangement is an authorised agent for the purposes of this Act.
(2)  The Secretary is to ensure that sufficient arrangements are made to enable the payment of fishing fees in convenient locations throughout the State.
(3)  An arrangement may make provision for the payment of a commission to the authorised agent, whether by way of the retention of a percentage of the amount of fishing fees paid or by way of a separate payment.
(4)  An arrangement may make provision for the authorised agent to make specified records, and follow specified procedures, with respect to the collection and remittance of fishing fees and the issue of official receipts.
s 34H: Ins 1997 No 153, Sch 2 [2]. Subst 2000 No 86, Sch 4 [2].
34I   Fishing fee exemption certificates
(1)  The Minister may issue a fishing fee exemption certificate in respect of any recreational fishing activities.
(2)  A certificate exempts persons carrying out those recreational fishing activities from the obligation to pay a fishing fee under this Division.
(3)  A certificate may be issued—
(a)  to a person in respect of recreational fishing activities that are carried out under the supervision or guidance of the person (or an employee or agent of the person), or
(b)  to the owner of a boat (or another person authorised by the owner) in respect of recreational fishing activities that are carried out on the boat, or
(c)  to such other persons or class of persons, and in respect of such other activities, as the regulations may prescribe.
(4)  The fee (if any) payable for the certificate and other matters concerning the certificate are to be prescribed by the regulations. The fee for the certificate is taken to be a fishing fee paid under this Division for the purposes of Division 3 of Part 8.
s 34I: Ins 1997 No 153, Sch 2 [2]. Subst 2000 No 86, Sch 4 [2].
34J   Offences
(1)  A recreational fisher who is required by this Division to pay a fishing fee is guilty of an offence if the fisher fails to pay the fishing fee.
Maximum penalty—20 penalty units.
(2)  A recreational fisher who is required by this Division to pay a fishing fee is guilty of an offence if the fisher does not have an official receipt for the payment of the fishing fee in his or her immediate possession when taking fish from any waters.
Maximum penalty—20 penalty units.
(3)  For the purposes of proceedings under this section, a person who is in possession of fishing gear on, in or adjacent to any waters is presumed conclusively to be taking fish from those waters (even though the person takes or proposes to take fish only from other waters outside the State). The regulations may provide exemptions from this subsection.
(4)  For the purposes of this section, a person has an official receipt in his or her immediate possession only if the person is able to immediately produce the official receipt if required.
s 34J: Ins 2000 No 86, Sch 4 [2]. Am 2009 No 114, Sch 1 [35] [36].
Division 4B Acquisition of commercial fishing entitlements
pt 2, div 4B: Ins 2000 No 86, Sch 5 [1].
34K   Purpose of Division
The purpose of this Division is to provide an equitable mechanism for the reallocation of fisheries resources and for the payment of compensation to commercial fishers for the acquisition of their fishing entitlements.
s 34K: Ins 2000 No 86, Sch 5 [1].
34L   Declaration by Minister of acquisition of entitlements
(1)  The Minister may, by order published in the Gazette—
(a)  declare that any fishery (or part of a fishery) specified in the order is a fishery to which this Division applies, and
(b)  specify the relevant commercial fishing entitlements that are to be acquired under this Division.
(2)  For the purposes of this Division—
(a)  any such declaration is an acquisition declaration, and
(b)  the fishery (or the part of a fishery) to which the declaration relates is the declared fishery, and
(c)  the specified commercial fishing entitlements are the acquired entitlements.
s 34L: Ins 2000 No 86, Sch 5 [1].
34M   Consultation on proposed acquisition declaration
The Minister is required to give the following persons and bodies an opportunity to make submissions on any proposed acquisition declaration and to take any submission that is duly made into account—
(a)  the persons whose commercial fishing entitlements are proposed to be acquired,
(b)  any relevant advisory council or advisory group,
(c)  the local community in the area affected by the proposed declaration.
Note—
Section 284 sets out the public consultation procedure.
s 34M: Ins 2000 No 86, Sch 5 [1]. Am 2015 No 59, Sch 1 [19].
34N   Termination of commercial fishing entitlements following declaration of acquisition
(1)  As soon as practicable after an acquisition declaration, the Minister is to cancel the acquired entitlements.
(2)  For that purpose, the Minister may do any one or more of the following—
(a)  cancel any shares in a share management fishery,
(b)  cancel a commercial fishing licence,
(c)  take any other action available to the Minister.
s 34N: Ins 2000 No 86, Sch 5 [1].
34O   Entitlement to compensation for acquired entitlements
(1)  The persons who held acquired entitlements that are cancelled under this Division are entitled (subject to this Division) to compensation from the State for the market value of the entitlements they held—
(a)  as at 19 January 2000, subject to paragraph (b), or
(b)  as at a later date notified in the acquisition declaration.
(2)  If the amount of the compensation is not agreed between the Minister and the person entitled to compensation, the Minister is to determine the amount after a review of the matter by a panel constituted by the Minister in accordance with the regulations.
(3)  If the person entitled to compensation is not satisfied with the review of the matter by the panel, the Minister may (at the person’s request) refer the matter to the Valuer-General for advice as to the amount of compensation required to be paid under this section.
(4)  A person who is dissatisfied with the amount of compensation offered to the person under this Division or with any delay in the payment of compensation may appeal to the Land and Environment Court.
(5)  The regulations may make provision for or with respect to the payment of compensation in accordance with this Division.
s 34O: Ins 2000 No 86, Sch 5 [1].
Division 4C Fishing businesses
pt 2, div 4C, hdg: Ins 2004 No 26, Sch 1 [5]. Am 2006 No 58, Sch 2.15.
pt 2, div 4C: Ins 2004 No 26, Sch 1 [5].
34P   Definitions
In this Division—
fishing authority means a licence, permit, share, endorsement or any other authority relating to fishing activities issued or given under this Act or any other law (whether or not of this State).
NSW fishing authority means a fishing authority issued or given under this Act.
transfer of a fishing business or a component of a fishing business means the transfer, transmission, conveyance or assignment of a fishing business or component of a fishing business, and includes any other dealing in a fishing business or component of a fishing business of a kind prescribed by the regulations.
s 34P: Ins 2004 No 26, Sch 1 [5].
34Q   Fishing business determinations
(1)  The Secretary may, from time to time—
(a)  determine that a business that the Secretary considers to be a separate and identifiable fishing business is a fishing business, and
(b)  determine the components of that fishing business.
(2)  Such of the following as the Secretary considers to be owned, used, held or acquired in connection with a fishing business may be determined to be a component of the fishing business—
(a)  one or more fishing boats,
(b)  fishing gear,
(c)  any fishing authority held by a person,
(d)  the catch history of any person (determined in accordance with this Act and the regulations).
(3)  For the purposes of this Act—
(a)  a fishing business is a business determined by the Secretary to be a fishing business under this section, and
(b)  the fishing business is comprised of those components that are determined by the Secretary to be components of the fishing business.
(4)  The Secretary may, from time to time, amend or revoke a determination under this section by making a further determination.
(5)  A determination by the Secretary under this section is called a fishing business determination.
(6)  A fishing business determination is to be made—
(a)  in accordance with such provisions (if any) relating to the making of fishing business determinations as may be contained in the regulations or a management plan for a fishery (or both), and
(b)  in a manner consistent with any guidelines relating to transfers of fishing businesses, approved by the Secretary before the commencement of this section, that had effect in relation to any transfer made before the fishing business transfer rules took effect.
(7)  The Secretary may make a fishing business determination at any time—
(a)  on his or her own initiative, or
(b)  on an application made, in a form and manner approved by the Secretary, by the person (or persons) who own the business in respect of which the determination is sought.
(8)  The Secretary is required to give the person (or persons) who own a business that is the subject of a fishing business determination notice in writing of the determination.
(9)  A reference in this Act to the owner of a fishing business is a reference to the person (or persons) who, from time to time, owns or own a business that is, or has been, determined to be a fishing business by the Secretary under this section.
s 34Q: Ins 2004 No 26, Sch 1 [5]. Am 2006 No 18, Sch 1 [4].
34R   Allocation of fishing business number
(1)  The Secretary is to allocate a unique identification number to each fishing business.
(2)  The Secretary may endorse a NSW fishing authority that is a component of a fishing business with the number allocated to the fishing business.
ss 34R–34T: Ins 2004 No 26, Sch 1 [5].
34S   Register of fishing business determinations
(1)  The Secretary is required to keep a register of fishing business determinations.
(2)  For each fishing business determination there is to be recorded in the register—
(a)  the name of the person (or persons) who own the business the subject of the determination,
(b)  the number allocated by the Secretary to the fishing business,
(c)  particulars of the components of the fishing business,
(d)  such other particulars as are required by the regulations to be recorded in the register in relation to a fishing business.
(3)  The register may be kept wholly or partly by means of a computer.
(4)  The register is to be made available for public inspection at the head office of the Department during ordinary business hours.
(5)  If the register is kept wholly or partly by means of a computer, subsection (4) may be complied with by making the contents of the register available on the website of the Department.
(6)  The Secretary may correct any error in or omission from the register.
(7)  A certificate signed or purporting to be signed by the Secretary, or an officer of the Department authorised in writing by the Secretary to exercise the functions conferred by this subsection, that certifies that, on a specified date or during a specified period, the particulars contained in the register as to specified matters were as so specified, is admissible in any proceedings and is evidence of the matters so certified.
ss 34R–34T: Ins 2004 No 26, Sch 1 [5].
34T   Fishing business transfer rules
(1)  The regulations or the management plan for a fishery (or both) may make provision for or with respect to the transfer of a fishing business (or components of a fishing business) and provide for the recognition, or restriction, of fishing rights following any such transfer. Such provisions are referred to as fishing business transfer rules.
(2)  In particular, the fishing business transfer rules may provide that a person to whom a component of a fishing business is transferred does not, as a consequence of that transfer, acquire any right to be issued with or given a NSW fishing authority unless all components of the fishing business are either transferred to the person or surrendered to the Minister for cancellation.
Note—
Some components of a fishing business, for example, endorsements in a restricted fishery, may not be transferable (see section 114). The fishing business transfer rules may require such endorsements to be surrendered to the Minister for cancellation if other components of the fishing business are transferred to another person.
(3)  The fishing business transfer rules may authorise the Minister to cancel a NSW fishing authority that is a component of a fishing business if any other component of the fishing business is transferred in contravention of the fishing business transfer rules.
(4)  No compensation is payable by or on behalf of the State for the cancellation of a NSW fishing authority in accordance with the fishing business transfer rules.
ss 34R–34T: Ins 2004 No 26, Sch 1 [5].
Division 5 General
35   Possessing fish illegally taken
(1)  A person who is in possession of fish which were illegally taken is guilty of an offence.
Maximum penalty—
(a)  in the case of an individual—
(i)  200 penalty units or imprisonment for 6 months (or both) for a first offence, or
(ii)  400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence, or
(b)  in the case of a corporation—
(i)  1,000 penalty units for a first offence, or
(ii)  2,000 penalty units for a second or subsequent offence.
(2)  It is a defence to a prosecution for an offence under this section if the person charged satisfies the court that the person could not reasonably have known that the fish had been illegally taken.
(3)  In this section—
illegally taken means taken in contravention of a provision of or made under—
(a)  this Act, or
(b)  a law of another State or Territory, or of the Commonwealth, relating to fisheries.
s 35: Am 1997 No 153, Sch 5 [11] [12]; 2009 No 114, Sch 1 [37].
36   Defence for accidental etc taking of fish
(1)  It is a defence to a prosecution for an offence against this Act or the regulations relating to the taking of fish if the person charged satisfies the court 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.
(2)  The defence provided under subsection (1) extends to fish taken and immediately released in the course of a sport fishing activity (being an activity conducted in accordance with any requirements of the regulations).
(3)  The defence provided under subsection (1) is not available in proceedings for an offence under Part 7A.
Note—
See Division 4 of Part 7A for defences to offences under that Part.
s 36: Am 2009 No 114, Sch 1 [38].
37   Defence—special approval for research or other authorised purposes
(1)  The Minister may approve the taking and possession of fish or marine vegetation of any kind or of a specified kind for any or all of the following purposes—
(a)  research,
(b)  aquaculture,
(c)  aquarium collection,
(d)  Aboriginal cultural fishing,
(e)  any purpose prescribed by the regulations,
(f)  any other purpose approved by the Minister that is consistent with the objects of this Act.
(2)  An approval may authorise the taking of fish or marine vegetation by any method or by any specified method, from any waters or any specified waters or in any other specified way, despite any provision of or made under this Act to the contrary.
(3)  The Minister may grant an approval under this section—
(a)  by issuing a permit to a person that authorises the taking and possession of fish or marine vegetation, or
(b)  by making an order that authorises the taking and possession of fish or marine vegetation.
(4)  The Minister is to cause notice of any order made under this section, or the amendment or revocation of such an order, to be published on the Department’s website or in the Gazette (or both).
(5)  It is a defence to a prosecution for an offence against this Act or the regulations if the person charged satisfies the court that the act or omission of the person constituting the offence was authorised by an approval in force under this section.
(6)  An approval under this section—
(a)  is subject to such conditions as are prescribed by the regulations or specified in the permit or order by which the approval is granted, and
(b)  remains in force for the period of one year or such other period as is specified in the permit or order by which the approval is granted.
(7)  Without limiting subsection (6), an approval that authorises any fishing activity that involves the use of a boat may specify that the activity is an activity for which a fishing boat licence is required. In such a case, the fishing activity the subject of the approval is taken to be a declared commercial fishing boat activity under Division 2 of Part 4.
(8)  The power to grant an approval under this section is limited by section 220ZW (Licence to harm threatened species, population or ecological community or damage habitat).
(9)  The Minister is not to grant an approval for Aboriginal cultural fishing if to authorise the fishing activities and practices concerned would be inconsistent with native title rights and interests under an approved determination of native title (within the meaning of the Native Title Act 1993 of the Commonwealth) or with the terms of an indigenous land use agreement (within the meaning of that Act).
(10)  The regulations may make further provision for approvals under this section.
s 37: Am 1997 No 153, Sch 1 [3] [4]; 2009 No 114, Sch 1 [39]–[44]. Subst 2015 No 59, Sch 1 [20].
37AA   Provisions relating to permits
(1)  A person may apply to the Minister, in a form approved by the Minister, for a permit under section 37 (a section 37 permit).
(2)  The regulations may make provision for the fees to be paid for an application for a section 37 permit or the issue of a section 37 permit.
(3)  In addition to any application fee or issue fee, the regulations may make provision for the payment by a permit holder of a contribution towards one or more of the following costs—
(a)  the costs of managing the activities authorised by the permit,
(b)  the costs of monitoring the activities authorised by the permit,
(c)  the costs of ensuring compliance with permit conditions and any other fishing regulatory controls relevant to the activity authorised by the permit,
(d)  the costs of carrying out research into the activity authorised by the permit, or the fishery, species or method associated with that activity.
(4)  A section 37 permit may authorise a specified person or a specified class of persons, in addition to the permit holder, to take and possess fish or marine vegetation as authorised by the permit.
(5)  The Minister may from time to time vary the conditions of a section 37 permit by notice given to the permit holder.
(6)  The Minister may at any time cancel or suspend a section 37 permit by notice given to the permit holder.
s 37AA: Ins 2015 No 59, Sch 1 [20].
37A   Defence—permits authorising sale of fish for charitable purposes
(1)  The Minister may issue to a person or body a permit that authorises the sale of fish, by auction, for a charitable purpose.
(2)  Any such permit may also authorise a person, or any class of persons specified in the permit, to take and possess fish, in connection with the sale of the fish by auction, by any method or by any specified method, from any waters or any specified waters or in any other specified way, despite any provision of or made under this Act to the contrary.
(3)  A person who takes fish, or is in possession of fish, in connection with a sale authorised by a permit issued under this Part, and in accordance with the authority granted by the permit, is not considered to be taking that fish, or in possession of that fish, for sale.
(4)  It is a defence to a prosecution for an offence against this Act or the regulations if the person charged satisfies the court that the act or omission constituting the offence was authorised by a permit issued under this section.
(5)  A permit under this section—
(a)  is subject to such conditions as are prescribed by the regulations or specified in the permit, and
(b)  remains in force for the period specified in the permit, and
(c)  may be cancelled or suspended by the Minister at any time by notice given to the permit holder.
(6)  The Minister may from time to time, by notice given to the permit holder, vary the conditions of a permit under this section.
(7)  The regulations may make provision for or with respect to permits under this section. In particular, the regulations may prescribe the fee payable for the issue of a permit.
(8)  The power to issue permits under this section is limited by section 220ZW (Licence to harm threatened species, population or ecological community or damage habitat).
(9)  In this section—
charitable purpose includes any benevolent, philanthropic or patriotic purpose.
s 37A: Ins 2006 No 18, Sch 1 [5].
38   Right to fish in certain inland waters
(1)  A person may take fish from waters in a river or creek that are not subject to tidal influence despite the fact that the bed of those waters is not Crown land if, for the purpose of taking those fish, the person is in a boat on those waters or is on the bed of the river or creek.
(2)  The right conferred by this section is subject to the other provisions of this Act.
(3)  In this section, bed of a river or creek includes any part of the bed of the river or creek which is alternatively covered and left bare with an increase or decrease in the supply of water (other than during floods).
39   Obstruction of recognised fishing grounds
(1)  A commercial fisher may request a person to remove anything which has been placed or left by the person, without lawful excuse, on a recognised fishing ground and which is obstructing the lawful net fishing activities of the commercial fisher.
(2)  A person who fails to remove any such obstruction after being directed by a fisheries officer to do so is guilty of an offence.
Maximum penalty—In the case of a corporation, 100 penalty units or, in any other case, 50 penalty units.
(3)  A court that convicts a person of an offence against this section may order the person to remove the obstruction. If the obstruction is not removed in accordance with the order, the Minister may cause it to be removed and recover the cost of the removal from the person as a debt in a court of competent jurisdiction.
(4)  In this section, recognised fishing ground means any area of the sea or of other public water land used regularly or intermittently for net fishing by commercial fishers, being an area identified by or in accordance with the regulations as a recognised fishing ground.
40   Regulations relating to general management of fisheries
(1)  The regulations may make provision for or with respect to any matter relating to the management of fishery resources.
(2)  In particular, the regulations may make provision for or with respect to the following—
(a)  the development of plans for the management of fishery resources and the establishment of planning committees for that purpose,
(b)  preventing interference with the fishing activities of fishers,
(c)  preventing interference with set fishing gear,
(d)  determining the priority between fishers engaged in fishing activities in the same area,
(d1)  regulating recreational fishing competitions (including requiring a permit for any such competition and prescribing a fee for the issue of a permit),
(d2)  prohibiting the possession or receipt of fish illegally taken, processed or dealt with in any place outside the State,
(e)  prohibiting the use of explosives, electrical devices or other dangerous substances for the purpose of taking fish and regulating the use of explosives, electrical devices and other dangerous substances in any waters,
(f)  the identification of fishing boats,
(g)  the tagging or other identification of fish taken from any waters,
(h)  the identification of containers of fish consigned for sale,
(i)  the shucking, cutting or other processing of fish before they are landed or sold,
(j)  the taking and use of bait for fishing,
(k)  the measurement of fishing gear,
(l)  the period and manner of any consultation required to be undertaken under this Act so that the persons concerned are fully consulted,
(m)  the fees payable in respect of an application for, or the issue of, a permit under this Act.
s 40: Am 2000 No 86, Sch 7 [2]; 2009 No 114, Sch 1 [45].
Part 2A Fishing determinations and quotas
pt 2A: Ins 2015 No 59, Sch 1 [21].
Division 1 Fishing determinations generally
pt 2A, divs 1–3 (ss 40A–40O): Ins 2015 No 59, Sch 1 [21].
40A   Fishing determinations
(1)  The following determinations may be made under this Part (each of which is a fishing determination)—
(a)  a determination of total allowable catch of fish (a TAC determination),
(b)  a determination of total allowable fishing effort (a TAE determination).
(2)  A TAC determination—
(a)  may be made in relation to one or more species of fish, and
(b)  may relate to any specified fishery, class of shares in a share management fishery, class of persons, fishing method, area or time period.
(3)  A TAE determination—
(a)  may be made in relation to one or more methods of fishing, and
(b)  may relate to one or more specified species of fish, or any specified fishery, class of shares in a share management fishery, class of persons, area or time period.
pt 2A, divs 1–3 (ss 40A–40O): Ins 2015 No 59, Sch 1 [21].
40B   When fishing determinations are required to be made
(1)  A fishing determination must be made if the regulations require a fishing determination to be made.
(2)  A fishing determination must also be made if the Minister requires a fishing determination to be made.
pt 2A, divs 1–3 (ss 40A–40O): Ins 2015 No 59, Sch 1 [21].
40C   Who makes fishing determinations
(1)  A fishing determination may be made by either the TAF Committee or the Secretary.
(2)  If the regulations require a fishing determination to be made, they may also specify whether the TAF Committee or the Secretary is to make the fishing determination.
(3)  If the regulations do not specify who is to make a fishing determination required by the regulations, the Minister may direct either the TAF Committee or the Secretary to make the fishing determination, subject to this section.
(4)  The Minister is to direct the Secretary to make a fishing determination that is required by the regulations only if the Minister considers it expedient for the Secretary to make the fishing determination because—
(a)  there is in existence a scientific assessment of the species of fish, fishery or fishing method concerned that, in the opinion of the Minister, is relevant, robust and sufficiently recent to allow a determination to be made, and
(b)  to require the TAF Committee to make the fishing determination would involve an unnecessary duplication of that assessment.
(5)  For any fishing determination that is not required by the regulations, the Minister may direct the fishing determination to be made by either the TAF Committee or the Secretary.
pt 2A, divs 1–3 (ss 40A–40O): Ins 2015 No 59, Sch 1 [21].
Division 2 Fishing determinations by TAF Committee
pt 2A, divs 1–3 (ss 40A–40O): Ins 2015 No 59, Sch 1 [21].
40D   TAF Committee to make fishing determinations
(1)  The TAF Committee is to make a fishing determination when required to do so by or under this Act.
(2)  The fishing determination is to be made in accordance with this Division.
pt 2A, divs 1–3 (ss 40A–40O): Ins 2015 No 59, Sch 1 [21].
40E   General considerations for TAF Committee
(1)  In making a fishing determination, the TAF Committee is to give effect to the objects of this Act and is to have regard to all relevant scientific, industry, community, social and economic factors.
(2)  The TAF Committee is also to have regard to—
(a)  the need to ensure that the exploitation of fisheries resources is conducted in a manner that will conserve fish stocks in the long term, and
(b)  the impact of fishing activities on all species of fish and the aquatic environment, and
(c)  the precautionary principle, namely, that if there are threats of serious or irreversible damage to fish stocks, lack of full scientific certainty should not be used as a reason for postponing measures to prevent that damage.
pt 2A, divs 1–3 (ss 40A–40O): Ins 2015 No 59, Sch 1 [21].
40F   Public consultation by TAF Committee
(1)  Before the TAF Committee makes a fishing determination (or reviews any such determination), the TAF Committee is required to call for public submissions on the determination.
(2)  When the TAF Committee makes a fishing determination under this Division it is to have regard to any public submissions it receives within the time fixed by it for the making of those submissions.
pt 2A, divs 1–3 (ss 40A–40O): Ins 2015 No 59, Sch 1 [21].
40G   Review of determinations by TAF Committee
(1)  The TAF Committee is to keep its fishing determinations under review.
(2)  Following a review, the TAF Committee may decide not to alter its existing fishing determination, to revoke its fishing determination or to make a new fishing determination.
(3)  A review of a fishing determination made by the TAF Committee (an initial determination) may be carried out without calling for public submissions on the determination if—
(a)  the review is conducted, and any new or different fishing determination made as a result of the review is made, within 6 months after the initial determination was made, and
(b)  before making the initial determination, the TAF Committee called for public submissions in relation to the initial determination.
(4)  However, the TAF Committee must call for public submissions if the Minister directs the TAF Committee to call for public submissions in relation to a review.
(5)  If the TAF Committee conducts a review of an initial determination without calling for public submissions, the TAF Committee must, in making any decision in relation to the review, have regard to any public submissions to which it was required to have regard when it made the initial determination.
pt 2A, divs 1–3 (ss 40A–40O): Ins 2015 No 59, Sch 1 [21].
40H   Publication and duration of determinations
(1)  A fishing determination made by the TAF Committee is to be notified by the Minister by publication in the Gazette.
(2)  The determination takes effect on the date (on or after that publication) that is specified in the determination.
(3)  The determination has effect for the period specified in the determination or, if no such period is specified, until it is revoked by another determination.
(4)  However, if the regulations require a fishing determination to be made for a period and no fishing determination has been made by the start of that period, a fishing determination for the immediately preceding period is taken to continue to have effect until a new fishing determination is made.
pt 2A, divs 1–3 (ss 40A–40O): Ins 2015 No 59, Sch 1 [21].
40I   Interim fishing determinations by Secretary
(1)  The Secretary may make an interim fishing determination for a period—
(a)  if the regulations require the TAF Committee to make a fishing determination for that period, and
(b)  the TAF Committee has not made a fishing determination for that period 30 days before the start of that period.
(2)  The total allowable catch or total allowable fishing effort permitted by an interim fishing determination must not exceed the total allowable catch or total allowable fishing effort permitted by the fishing determination for the immediately preceding period.
(3)  An interim fishing determination—
(a)  is a fishing determination and has effect under this Act in the same way as a fishing determination made by the TAF Committee, and
(b)  is to be notified in the same way as a fishing determination made by the TAF Committee.
(4)  The Secretary may amend or revoke an interim fishing determination made by the Secretary by making a further interim fishing determination.
(5)  Division 3 does not apply to an interim fishing determination.
pt 2A, divs 1–3 (ss 40A–40O): Ins 2015 No 59, Sch 1 [21].
40J   Revocation of fishing determinations
(1)  The TAF Committee must not revoke a fishing determination that it is required to make unless it makes a new fishing determination.
(2)  The TAF Committee may revoke a fishing determination made by the Secretary if—
(a)  the TAF Committee makes a fishing determination that it is required to make by the regulations or is directed to make by the Minister, and
(b)  the TAF Committee’s determination replaces or supersedes a fishing determination made by the Secretary (including any interim fishing determination).
pt 2A, divs 1–3 (ss 40A–40O): Ins 2015 No 59, Sch 1 [21].
40K   TAF Committee not subject to Ministerial control
(1)  The TAF Committee is not subject to the control or direction of the Minister as to any fishing determination to be made by it.
(2)  However, the Minister may direct the TAF Committee on the procedure to be followed and, subject to this Division, the matters to be taken into account in making a fishing determination.
(3)  The Minister may require the TAF Committee to reconsider a fishing determination.
pt 2A, divs 1–3 (ss 40A–40O): Ins 2015 No 59, Sch 1 [21].
Division 3 Fishing determinations by Secretary
pt 2A, divs 1–3 (ss 40A–40O): Ins 2015 No 59, Sch 1 [21].
40L   Secretary to make fishing determinations
(1)  The Secretary is to make a fishing determination when required to do so by or under this Act.
(2)  The fishing determination is to be made in accordance with this Division.
pt 2A, divs 1–3 (ss 40A–40O): Ins 2015 No 59, Sch 1 [21].
40M   Making of fishing determination by Secretary
(1)  In making a fishing determination, the Secretary is to have regard to at least one scientific assessment for that species, fishery or method.
(2)  To avoid doubt, the scientific assessment may be an assessment carried out anywhere in Australia.
(3)  The Secretary may—
(a)  seek advice from the TAF Committee about a fishing determination, and
(b)  take into account that advice when making a fishing determination.
(4)  The Secretary may—
(a)  conduct public consultation in relation to a fishing determination (in any way the Secretary considers appropriate), and
(b)  take into account the results of that public consultation when making a fishing determination.
(5)  The Secretary may also have regard to any other relevant matters.
pt 2A, divs 1–3 (ss 40A–40O): Ins 2015 No 59, Sch 1 [21].
40N   Publication and duration of determinations
(1)  A fishing determination made by the Secretary is to be notified by publication in the Gazette.
(2)  The determination takes effect on the date (on or after that publication) that is specified in the determination.
(3)  The determination has effect for the period specified in the determination or, if no such period is specified, until it is revoked by another fishing determination.
(4)  However, if the regulations require a fishing determination to be made for a period and no fishing determination has been made by the start of that period, the fishing determination for the immediately preceding period is taken to continue to have effect until a new fishing determination is made.
pt 2A, divs 1–3 (ss 40A–40O): Ins 2015 No 59, Sch 1 [21].
40O   Amendment or revocation of fishing determination
(1)  The Secretary may amend or revoke a fishing determination made by the Secretary.
(2)  This Division applies to any such amendment or revocation in the same way as it applies to the original determination.
(3)  The Secretary must not revoke a determination that is required to be made unless the Secretary makes a new fishing determination.
(4)  The Secretary may revoke a fishing determination made by the TAF Committee if the Secretary makes a fishing determination that—
(a)  the Secretary is required to make by the regulations or directed to make by the Minister, and
(b)  the Secretary’s determination replaces or supersedes a fishing determination made by the TAF Committee.
pt 2A, divs 1–3 (ss 40A–40O): Ins 2015 No 59, Sch 1 [21].
Division 4 Allocation of commercial fishing determinations (quotas)
pt 2A, div 4: Ins 2015 No 59, Sch 1 [21].
40P   Definitions
In this Division—
commercial fishing authority holder means—
(a)  a shareholder in a share management fishery, or
(b)  an owner of a fishing business the components of which include an endorsement in a restricted fishery, or
(c)  any other person, or class of persons, declared by the regulations to be a commercial fishing authority holder.
commercial fishing determination means a fishing determination that relates to—
(a)  commercial fishing authority holders, or
(b)  the taking of fish for sale, or
(c)  a share management fishery or restricted fishery, or
(d)  a method that is used to take fish for sale, or
(e)  any other commercial fishing activity for which a licence or authority is required under this Act.
ss 40P–40T: Ins 2015 No 59, Sch 1 [21].
40Q   Allocation of fishing determination to commercial fishing authority holders
(1)  The Secretary may allocate a commercial fishing determination among commercial fishing authority holders.
(2)  A commercial fishing determination is to be allocated only if—
(a)  the regulations require the fishing determination to be allocated, or
(b)  the Minister directs that the fishing determination be allocated.
(3)  The regulations may provide for and, subject to the regulations, the Minister may direct—
(a)  the extent to which a commercial fishing determination is to be allocated amongst commercial fishing authority holders (that is, whether the whole or part of a commercial fishing determination is to be allocated), and
(b)  the commercial fishing authority holders, or class of commercial fishing authority holders, to whom an allocation is to be made, and
(c)  the manner in which the commercial fishing determination (or any part of the fishing determination) is to be allocated.
Note—
A power to make regulations includes a power to include provisions in a management plan for a share management fishery with respect to that matter. See section 57.
ss 40P–40T: Ins 2015 No 59, Sch 1 [21].
40R   Notice of allocation—quota
(1)  The Secretary is to notify a commercial fishing authority holder of any allocation of a commercial fishing determination that is made to that commercial fishing authority holder.
(2)  The allocation is referred to in this Part as the commercial fishing authority holder’s quota.
(3)  The notice of allocation is to specify particulars of the quota, including (to the extent relevant)—
(a)  the species of fish to which the quota applies, and
(b)  the fishing method to which the quota applies, and
(c)  the area to which the quota applies, and
(d)  the period to which the quota applies (referred to in this Division as the fishing period).
(4)  Notice of the allocation is to be given in writing.
ss 40P–40T: Ins 2015 No 59, Sch 1 [21].
40S   Authority holder not to contravene quota
(1)  A commercial fishing authority holder must not—
(a)  take fish, or use a fishing method, in contravention of the commercial fishing authority holder’s quota, or
(b)  cause or permit any agent of the commercial fishing authority holder to take fish, or use a fishing method, in contravention of the commercial fishing authority holder’s quota.
Maximum penalty—1,000 penalty units (in the case of a corporation) or 500 penalty units (in any other case).
(2)  An agent of a commercial fishing authority holder must not, while acting or purporting to act as agent for the commercial fishing authority holder—
(a)  take fish, or cause or permit fish to be taken, in contravention of the commercial fishing authority holder’s quota, or
(b)  use a fishing method, or cause or permit a fishing method to be used, in contravention of the commercial fishing authority holder’s quota.
Maximum penalty—500 penalty units.
(3)  To avoid doubt, a contravention of a quota includes the taking of fish, or the use of a fishing method, in excess of the quota for the relevant fishing period.
(4)  In this section, an agent of a commercial fishing authority holder means—
(a)  a nominated fisher of the commercial fishing authority holder, or
(b)  any employee of the commercial fishing authority holder.
ss 40P–40T: Ins 2015 No 59, Sch 1 [21].
40T   Transfer of quota
(1)  The regulations may provide for the transfer of quota between commercial fishing authority holders.
(2)  A commercial fishing authority holder may transfer to any other commercial fishing authority holder the whole or any part of the authority holder’s quota in accordance with the regulations.
(3)  Subject to the regulations, a quota for a fishing period is not transferable after the end of the fishing period.
(4)  The regulations may authorise a commercial fishing authority holder—
(a)  to transfer to the next fishing period any part of the quota for the current fishing period that is not taken during the current period, or
(b)  to transfer to the current fishing period part of the quota for the next fishing period.
ss 40P–40T: Ins 2015 No 59, Sch 1 [21].
40U   Method for transferring quota
(1)  A transfer of quota authorised by or under this Division must be effected—
(a)  by electronic transfer (that is, by using the online transfer system), or
(b)  by manual transfer (that is, by giving the Secretary notice in writing of the transfer).
(2)  The regulations may prescribe fees for the use of the online transfer system.
(3)  For a manual transfer, the notice given to the Secretary must be in a form approved by the Secretary and must be accompanied by the prescribed fee (if any) for manual transfers of quota.
(4)  A transfer of quota does not take effect until the transfer is confirmed.
(5)  An electronic transfer is confirmed if the online transfer system generates a message to the effect that the transfer is confirmed.
(6)  A manual transfer is confirmed if the Secretary gives notice in writing to the person lodging the transfer that the transfer has been approved.
(7)  In this section—
online transfer system means a facility approved by the Secretary that enables the transfer of quota by electronic communication.
s 40U: Ins 2015 No 59, Sch 1 [21]. Am 2018 No 25, Sch 1.11 [1]
40V   Forfeiture of quota—failure to pay fisheries management charge
(1)  The Minister may, by order in writing, direct that the quota, or a part of the quota, of a commercial fishing authority holder is forfeited. Quota that is the subject of such an order is forfeited quota.
(2)  An order may be made under this section only if the commercial fishing authority holder has failed to pay (in full) a fisheries management charge that is payable by the commercial fishing authority holder.
(3)  An order may be made under this section in respect of quota that has not yet been allocated to the commercial fishing authority holder.
(4)  The Minister is to give a commercial fishing authority holder notice in writing of his or her intention to make an order under this section. The notice is to be given at least 14 days before the order is made.
(5)  Before making an order under this section, the Minister is to estimate the amount of quota that it would be necessary to sell by public tender in order to recover—
(a)  any outstanding fisheries management charge payable by the commercial fishing authority holder, and
(b)  the reasonable costs that would be incurred by or on behalf of the Minister in respect of such a sale.
(6)  The amount of quota forfeited under the order must not exceed that estimate.
ss 40V–40X: Ins 2015 No 59, Sch 1 [21].
40W   How forfeited quota is to be dealt with
(1)  The Minister may retain, re-allocate or sell forfeited quota.
(2)  Forfeited quota may be re-allocated in any way the Minister considers appropriate.
(3)  Forfeited quota must not be re-allocated to the commercial fishing authority holder by whom it was forfeited unless the outstanding fishing management charges payable by the commercial fishing authority holder have been paid in full.
(4)  Any forfeited quota that is sold by the Minister is to be sold by public tender.
(5)  The purchase price for forfeited quota that is sold is to be applied as follows—
(a)  if any fisheries management charge payable by the commercial fishing authority holder would, on payment, be paid to the credit of the Consolidated Fund, the outstanding amount of the charge is to be deducted from the purchase price and paid to the credit of the Consolidated Fund,
(b)  if any fisheries management charge payable by the commercial fishing authority holder would, on payment, be paid into a trust fund, the outstanding amount of the charge is to be deducted from the purchase price and paid to the credit of the trust fund,
(c)  any reasonable costs incurred by or on behalf of the Minister in connection with the sale of the forfeited quota is to be deducted from the purchase price and paid to the credit of the Consolidated Fund,
(d)  the balance (if any) remaining after payment of the amounts referred to in paragraphs (a)–(c) is to be paid to the commercial fishing authority holder.
(6)  The Minister may recover from a commercial fishing authority holder, as a debt in any court of competent jurisdiction, any reasonable costs incurred by or on behalf of the Minister in selling forfeited quota, being costs not otherwise recovered as provided by this section.
(7)  If the Minister decides not to sell forfeited quota, or to re-allocate it to the commercial fishing authority holder by whom it was forfeited, the Minister must deduct the sale value of the forfeited quota from the amount owed by the commercial fishing authority holder.
(8)  The sale value of forfeited quota is the purchase price that the Minister considers would be obtained if the forfeited quota were sold by public tender, minus the reasonable costs that would be incurred in connection with the sale.
ss 40V–40X: Ins 2015 No 59, Sch 1 [21].
40X   Implementation of determinations
(1)  The Minister is required to review the regulations and other instruments under this Act in light of any commercial fishing determination and any allocation of that commercial fishing determination.
(2)  If the determination is required under the management plan for a share management fishery, the determination is to be implemented in accordance with this Act and the management plan.
ss 40V–40X: Ins 2015 No 59, Sch 1 [21].
Division 5 Allocation of non-commercial fishing determinations
pt 2A, div 5 (ss 40Y–40ZA): Ins 2015 No 59, Sch 1 [21].
40Y   Definition
In this Division—
non-commercial fishing determination means a fishing determination that relates to—
(a)  the taking of fish by recreational fishers, or
(b)  the taking of fish by recreational fishing methods, or
(c)  the taking of fish during charter fishing activities, or
(d)  the taking of fish for recreational fishing purposes, Aboriginal cultural fishing or any other purpose other than for sale.
pt 2A, div 5 (ss 40Y–40ZA): Ins 2015 No 59, Sch 1 [21].
40Z   Allocation of non-commercial fishing determination
(1)  The Secretary may allocate a non-commercial fishing determination amongst fishers or classes of fishers.
(2)  A non-commercial fishing determination is to be allocated only if—
(a)  the regulations require the fishing determination to be allocated, or
(b)  the Minister directs that the fishing determination be allocated.
(3)  The regulations may provide for and, subject to the regulations, the Minister may direct—
(a)  the manner and extent to which a non-commercial fishing determination is to be allocated, and
(b)  the fishers or classes of fishers amongst whom the non-commercial fishing determination is to be allocated.
(4)  Notice of an allocation is to be published on the website of the Department.
pt 2A, div 5 (ss 40Y–40ZA): Ins 2015 No 59, Sch 1 [21].
40ZA   Implementation of non-commercial fishing determinations
(1)  The Minister is required to review the regulations and other instruments under this Act in light of any non-commercial fishing determination and any allocation of that non-commercial fishing determination.
(2)  In particular, the Minister is required to consider whether any restrictions on non-commercial fishing set by the regulations and other instruments (such as bag limits, fishing method restrictions and fishing closures) remain appropriate, in light of the non-commercial fishing determination and allocation, to give effect to the policy objective of the determination and allocation.
pt 2A, div 5 (ss 40Y–40ZA): Ins 2015 No 59, Sch 1 [21].
Part 3 Commercial share management fisheries
Division 1 Overview
pt 3, div 1, hdg: Subst 2000 No 86, Sch 3 [3].
41   Staged implementation of share management fisheries
This Part provides for the implementation of share management fisheries in the following stages—
(a)  Stage 1 (Consultation)
the first stage when the Minister consults relevant industry bodies about which fisheries should become share management fisheries.
(b)  Stage 2 (Identification of fishery and shareholders)
the second stage when a fishery is identified as a share management fishery by the inclusion of a description of the fishery in Schedule 1. During the second stage, an advisory group may be established, the criteria for the allocation of shares in the fishery are determined, eligible persons are invited to apply for shares and shares are issued provisionally.
(c)  Stage 3 (Access to fishery limited to shareholders)
the third stage when access to the fishery is limited to provisional shareholders (and also to any person claiming to be eligible to receive shares). During the third stage, appeals against the provisional issue of shares are determined and a draft management plan for the fishery is prepared.
(d)  Stage 4 (Full implementation)
the fourth and final stage when the management plan for the fishery commences and the fishing, share transfer and other rights of shareholders are fully identified and exercisable and subject to review.
s 41: Am 1996 No 141, Sch 1 [3] [4]; 2015 No 59, Sch 1 [22].
41A   (Repealed)
s 41A: Ins 2000 No 86, Sch 3 [4]. Rep 2015 No 59, Sch 1 [23].
Division 2 Declaration of share management fisheries
42   Declaration of share management fisheries
(1)  Schedule 1 specifies share management fisheries for the purposes of this Act.
(2)  The Governor may, by proclamation published on the NSW legislation website on the recommendation of the Minister, amend Schedule 1 by inserting or omitting the description of any fishery.
(3)  The Minister is required to recommend to the Governor that the description of a fishery be omitted from Schedule 1 if the management plan for the fishery has not commenced within 5 years after the description was inserted in Schedule 1.
Note—
The first management plan for a fishery cannot be made until the completion of environmental assessment—see section 7G.
s 42: Am 2000 No 86, Sch 2 [3]; 2009 No 56, Sch 4.21 [1].
43   Consultation with industry
(1)  The Minister is required to consult relevant commercial fishing industry bodies about which fisheries should become share management fisheries.
(2)  The Minister is also required to consult relevant commercial fishing industry bodies before a fishery ceases to be a share management fishery.
s 43: Am 1996 No 141, Sch 1 [5].
44   Omission of share management fishery
(1)  This section has effect if the description of a share management fishery is omitted from Schedule 1, including an omission for the purpose of redefining an existing share management fishery.
(2)  When the description of the fishery is omitted, all shares in the fishery are cancelled.
(3)  If the description of the fishery is omitted after the commencement of the management plan for the fishery, the holders of the cancelled shares are entitled to compensation from the State for the market value before the cancellation of the shares they held.
(4)  The amount of compensation payable is to be determined by agreement between the Minister and the person entitled to compensation. If the amount of compensation is not agreed, it is to be determined by the Valuer-General.
(5)  A person entitled to compensation may agree to accept instead shares in another share management fishery which replaces the omitted fishery wholly or partly.
(6)  A person who is dissatisfied with the amount of compensation offered to the person under this section or with any delay in the payment of compensation may appeal to the Land and Environment Court.
(7)  The regulations may make provision for or with respect to the payment of compensation in accordance with this section.
(8)    (Repealed)
Note—
Division 4A permits a fishery to be redefined, without payment of compensation, if the redefinition proposal has majority support.
s 44: Am 2000 No 86, Sch 3 [5]; 2015 No 59, Sch 1 [24].
45   Redefinition of share management fishery
(1)  This Part applies to the redefinition of an existing share management fishery by the replacement, wholly or partly, of the description of that fishery in Schedule 1, subject to any modifications of this Part prescribed by the regulations.
(2)  The regulations may, in particular, combine any of the stages of implementation of the new share management fishery.
Division 2A
45A–45E   (Repealed)
pt 3, div 2A (ss 45A–45E): Ins 2000 No 86, Sch 3 [6]. Rep 2015 No 59, Sch 1 [23].
Division 3 Issue of shares
46   Invitation for shares
(1) Giving public notice As soon as practicable after a fishery becomes a share management fishery, the Minister must give public notice of that fact and invite applications for shares by eligible persons.
(2) How given For the purposes of this section, public notice is notice—
(a)  published in the Gazette and in such other manner as the Minister is satisfied is likely to bring the notice to the attention of eligible persons and members of the public generally, and
(b)  given to each holder of a commercial fishing licence or, in the case of a restricted fishery, to each person authorised to take fish in the fishery.
(3) Content The public notice must—
(a)  describe the share management fishery, and
(b)  state that after the issue of shares in the fishery access to the fishery will be restricted to shareholders, and
(c)  set out the criteria for the allocation of shares in the fishery (giving full particulars of the method of determining the persons eligible to apply for those shares and their entitlement to shares under this Division), and
(d)  provide information on the rights and obligations relating to dealings in the shares before the commencement of the management plan for the fishery, and
(e)  invite applications for shares by eligible persons (and specify the manner and time within which applications are to be made and any application fee), and
(f)  contain such other information as is prescribed by the regulations or as the Minister considers appropriate.
(4) Amendment A public notice may be varied by a further public notice under this section.
s 46: Am 2018 No 25, Sch 2.9 [1].
47   Application for shares
(1)  An eligible person may apply to the Minister for the issue of shares in a share management fishery if an invitation for applications has been given by public notice under this Division.
(2)  The application is to be in writing in the form approved by the Minister and lodged with the Minister within the time specified in the public notice.
(3)  The application is to be accompanied by the application fee specified in the public notice. Any such fee is not to exceed any maximum fee prescribed by the regulations.
(4)  The Minister may require the applicant to supply additional information to support the application. The Minister may reject the application if the additional information is not supplied within the time required by the Minister.
(5)  The Minister may also obtain information from other sources in relation to the application.
48   Provisional issue of shares to applicants
(1)  The Minister is to consider each application for shares that has been duly made and issue shares to eligible applicants in accordance with their entitlement to shares under this Division. If the applicant is not eligible to apply for shares, the Minister is to refuse the application.
(2)  The shares are to be issued on a provisional basis pending the commencement of the management plan for the fishery.
(3)  The Minister must, as soon as practicable—
(a)  notify each applicant of the result of the application, and
(b)  give to each applicant a statement in writing of the names of the applicants who were provisionally issued with shares and of the number of shares issued to each such applicant, together with a statement of any rights of appeal by the applicant to the Share Appeal Panel.
(4)  Any shares issued as a result of a decision of the Share Appeal Panel are also to be issued on a provisional basis under this section.
(5)  The Minister may set aside shares available for issue to an eligible person who does not apply for the issue of the shares. The Minister may issue any such shares as the Minister sees fit, including by their issue to other applicants or by their sale by auction, tender or ballot.
49   Who may hold shares
(1)  The persons eligible to hold shares are not limited to the holders of commercial fishing licences or natural persons.
(2)  However, the regulations may prohibit a class of persons from holding shares. For example, the regulations may prohibit persons from holding shares if they have a record of offences against this Act or if they are individuals not resident in Australia or they are companies in which any such individuals have a controlling interest.
(3)  Two or more persons may jointly hold the same share.
(4)  This section does not affect any disqualification from holding shares under this Act.
50   Method of determining eligibility and entitlement to shares
(1)  The determination of the persons eligible to apply for shares in a share management fishery and their entitlement to shares is to be made in accordance with this Division and the criteria specified in the public notice inviting applications for shares.
(2)  Shares in a fishery are (subject to this section) to be allocated to persons who are the holders of current commercial fishing licences or fishing boat licences and who lawfully took fish for sale in the fishery before it became a share management fishery. If the fish were taken as an employee of some other person, the allocation is to be made to that other person.
(3)  Shares are (subject to this section) to be allocated to eligible persons in proportion to their catch history in the fishery. If more than one class of fish was caught in the fishery, the allocation is to take into account the value of each class of fish that was part of the catch history.
(4)  If a restricted fishery becomes a share management fishery, the persons entitled to shares in the fishery are the persons who, immediately before it ceased to be a restricted fishery, were entitled to take fish for sale in the restricted fishery or, if a person is entitled to take fish for sale in the restricted fishery as the employee or nominee of some other person, that other person. The allocation of shares to any such persons may be made having regard to existing entitlements in the restricted fishery.
(5)  However, if a restricted fishery is described as an exploratory or developmental fishery, the entitlement to shares in the fishery is to be determined in accordance with the regulations.
(6)  If a share management fishery is redefined, the entitlement to shares is to be determined in such manner as the Minister considers equitable having regard to the proportion of shares held in an existing fishery being redefined, the proportion of the redefined fishery to which the old shares applied, the catch history of shareholders and any other factor the Minister considers relevant.
(7)    (Repealed)
(8)  For the purpose of allocating shares in a share management fishery, if the catch history of a person is a component of a fishing business, the catch history of the person is taken to be the catch history of the person (or persons) who own that fishing business when shares are allocated.
s 50: Am 2000 No 86, Sch 3 [7]; 2002 No 112, Sch 1.9 [4] [5]; 2004 No 26, Sch 1 [6] [7]; 2015 No 59, Sch 1 [23].
51   Catch history
(1)  The catch history of a person is (subject to the regulations) to be determined under and in accordance with the criteria specified by the Minister in the public notice inviting eligible persons to apply for shares.
(2)  The criteria are to specify the period before the fishery becomes a share management fishery during which the catch history of a person is to be determined. The criteria may allow persons to choose their best catch history for a specified part of the relevant period.
(3)    (Repealed)
(4)  The catch history of a person is, subject to any appeal under this Part, to be determined by the Minister having regard to the records, kept by the Secretary, of fish taken by the person or such other documents as are prescribed by the regulations.
(5)  The Minister may increase the catch history of a person for any period during which the person was unable to engage in the person’s usual fishing activities because of the person’s duties as a representative of the commercial fishing industry.
s 51: Am 2004 No 26, Sch 1 [8].
52   Final issue of shares
(1)  After all appeals to the Share Management Fisheries Appeal Panel have been disposed of in connection with a share management fishery, the Minister is to make the final issue of shares to eligible persons with effect from the commencement of the management plan for the fishery.
(2)  For that purpose, the Minister may redetermine the provisional issue of shares and cancel shares so issued or issue new shares.
(3)  The Minister must, as soon as practicable—
(a)  notify each applicant for shares of the final result of the application, and
(b)  give to each applicant a statement in writing of the names of the persons who were finally issued with shares and of the number of shares issued to each such person.
(4)  The Minister must also, as soon as practicable, publish in the Gazette the names of all the persons who were finally issued with shares and the number of shares issued to each such person.
(5)  A person who was the holder of provisional shares in a fishery is not entitled to compensation because of a redetermination of the provisional issue of shares (whether under this section or as a result of any legal proceedings).
(6)  Shares are to be in such form as the Minister approves.
52A   Shares subject to appeal
(1)  Despite section 52, the Minister may cancel provisional shares or issue final shares in a share management fishery, and the management plan for that fishery may be made, even if any appeal relating to the issue of provisional shares is still outstanding.
(2)  If the Minister considers that a person’s entitlement to shares may be affected by any such appeal, the Minister may issue shares in the fishery as shares subject to appeal.
(3)  Shares subject to appeal are subject to the following special conditions—
(a)  the transfer of, or any other registrable dealing in, the shares is only permitted with the consent of the Minister,
(b)  no compensation is payable by or on behalf of the State for cancellation of the shares for any reason, including—
(i)  cancellation by the Minister resulting from a determination in relation to the appeal, or
(ii)  cancellation due to the termination of the fishery as a share management fishery,
(c)  any other conditions prescribed by the regulations.
(4)  On completion of the relevant appeal—
(a)  the Minister must cancel the shares subject to appeal, and
(b)  the Minister may, if appropriate, issue a person with shares in accordance with this Act.
s 52A: Ins 2001 No 104, Sch 1 [7].
Division 4 Limited access to fishery after issue of shares
53   Commencement of limited access to fishery
(1)  Shares issued provisionally in a share management fishery do not take effect until a day appointed by the Minister by order published in the Gazette for the commencement of shareholding in the fishery and for limited access to the fishery.
(2)  The day so appointed is to be at least 6 months after the fishery became a share management fishery, except in the circumstances prescribed by the regulations.
54   Limiting access to shareholders etc before commencement of management plan
(1)  After the day appointed for the commencement of limited access to a share management fishery and until the commencement of the management plan for the fishery, the fishery is a limited access fishery.
(2)  A commercial fishing licence does not authorise a person to take fish in a limited access fishery unless—
(a)  the licensee is the holder of shares in the fishery (irrespective of the number of shares held) or is an applicant for shares who has duly lodged an appeal to the Share Management Fisheries Appeal Panel and whose appeal is pending, or
(b)  the licensee is duly nominated in the Share Register by that holder or applicant to take fish on behalf of that holder or applicant,
and the licence is duly endorsed under this Part for the taking of fish in the fishery.
(3)  A holder of shares is not entitled to have his or her licence endorsed to take fish in a limited access fishery (or to nominate another person to do so) if all the shares held by the person were acquired by dealings after the initial issue of shares in the fishery, unless the acquisition is declared by the regulations to be an authorised acquisition for the purposes of this section.
Note—
An example of an acquisition that may be authorised by the regulations is an acquisition in a fishery that was previously a restricted fishery to which access could previously have been obtained by other fishers.
55   Fishery that is existing restricted fishery
(1)  A share management fishery that is also a restricted fishery ceases to be a restricted fishery when it becomes a limited access fishery.
(2)  The endorsement of a commercial fishing licence to take fish in such a restricted fishery becomes, on the fishery so ceasing to be a restricted fishery, an endorsement under this Part to take fish in the share management fishery. This subsection applies only if the person concerned is entitled under this Part to have the licence so endorsed.
(3)  Any provisions of the regulations that apply to such a restricted fishery apply (with any necessary modifications) as provisions of the regulations that apply to the limited access fishery, until those provisions are repealed.
s 55: Am 2000 No 86, Sch 3 [8].
Division 4A Redefinition proposals
pt 3, div 4A (ss 55A–55G): Ins 2015 No 59, Sch 1 [25].
55A   Minister may put forward redefinition proposal
(1)  The Minister may put a redefinition proposal to shareholders in one or more share management fisheries.
(2)  In this Division, a redefinition proposal is a proposal to do any or all of the following—
(a)  to change the description of one or more share management fisheries in Schedule 1,
(b)  to amalgamate 2 or more classes of shares in one or more share management fisheries,
(c)  to replace one or more classes of shares in one or more share management fisheries with one or more new or existing classes of shares.
(3)  A redefinition proposal may involve the cancellation of shares, the issue of new shares or the reissue of shares.
pt 3, div 4A (ss 55A–55G): Ins 2015 No 59, Sch 1 [25].
55B   Notice of redefinition proposal
(1)  If the Minister decides to put a redefinition proposal to shareholders, the Minister is to give public notice of the redefinition proposal.
(2)  For the purposes of this section, public notice is notice—
(a)  published in the Gazette, and
(b)  published in any other way the Minister considers appropriate, and
(c)  given to each shareholder affected by the redefinition proposal.
(3)  The public notice must—
(a)  describe the redefinition proposal, and
(b)  specify the redefinition arrangements for the redefinition proposal, and
(c)  invite shareholders affected by the redefinition proposal to vote on the redefinition proposal, and
(d)  set out the arrangements for voting on the redefinition proposal, and
(e)  contain such other information as the Minister considers appropriate.
(4)  A public notice may be varied by further public notice under this section.
(5)  In this Division, redefinition arrangements are the proposed arrangements for the implementation of a redefinition proposal, including arrangements relating to the issue, cancellation or reissue of shares if the redefinition proposal is proceeded with.
pt 3, div 4A (ss 55A–55G): Ins 2015 No 59, Sch 1 [25].
55C   Shareholders who are affected by a redefinition proposal
For the purposes of this Division, a shareholder is affected by a redefinition proposal if—
(a)  in the case of a redefinition proposal that involves a change to a description of one or more share management fisheries in Schedule 1—the shareholder is a shareholder in a fishery the description of which will be changed under the proposal, and
(b)  in the case of a redefinition proposal that involves the amalgamation of classes of shares or replacing classes of shares—the shareholder holds a class of shares concerned.
pt 3, div 4A (ss 55A–55G): Ins 2015 No 59, Sch 1 [25].
55D   Poll on redefinition proposal
(1)  The Secretary may arrange for the conduct of a poll of shareholders affected by a redefinition proposal for the purposes of determining whether there is majority support for the redefinition proposal.
(2)  For the purposes of a poll under this section, each shareholder is entitled to no more than one vote regardless of the number of shares held.
(3)  A corporation that is a shareholder is required to nominate a single individual to vote in the poll on behalf of the corporation. The individual so nominated is taken, for the purposes of the poll, to be the shareholder of the shares held by the corporation.
(4)  Two or more persons who hold a share jointly are required to nominate a single individual to vote in the poll on behalf of the joint shareholders. The individual so nominated is taken, for the purposes of the poll, to be the shareholder of the shares held jointly.
(5)  The regulations may make further provision for or with respect to polls under this Division.
pt 3, div 4A (ss 55A–55G): Ins 2015 No 59, Sch 1 [25].
55E   Outcome of poll
(1)  Following the conduct of a poll, the Secretary is to determine whether, on the basis of the poll, the redefinition proposal has majority support.
(2)  The question of whether a redefinition proposal has majority support is to be determined in accordance with the regulations.
(3)  The regulations may provide that shareholders who fail to vote in a poll are to be disregarded when determining whether a redefinition proposal has majority support.
(4)  The regulations may provide for the weighting of votes on the basis of the number of shares held by a shareholder affected by a redefinition proposal.
(5)  Following the conduct of a poll, the Secretary may issue a certificate that specifies—
(a)  the date on which the poll was conducted, and
(b)  the results of the poll, and
(c)  whether, on the basis of those results, the redefinition proposal has majority support.
(6)  A certificate issued under this section is admissible in evidence in any proceedings and is prima facie evidence of the matters certified in the certificate.
(7)  The Minister is to publicise the results of the poll by giving notice of the results to shareholders affected by the redefinition proposal and in such other manner (if any) as the Minister considers appropriate.
pt 3, div 4A (ss 55A–55G): Ins 2015 No 59, Sch 1 [25].
55F   Power to implement redefinition proposal that has majority support
(1)  If a redefinition proposal has majority support, the Minister may implement the redefinition proposal, including by cancelling shares and issuing or re-issuing shares as contemplated by the redefinition arrangements for the redefinition proposal.
(2)  The regulations may make further provision for the implementation of redefinition proposals.
(3)  Section 45 does not apply to the redefinition of an existing share management fishery under a redefinition proposal that has majority support.
(4)  No compensation (including damages or any other form of compensation) is payable because of the cancellation of shares under this section or anything else that is done to implement a redefinition proposal that has majority support.
(5)  Subsection (4) does not apply to compensation (if any) that is expressly offered to shareholders under a redefinition proposal.
pt 3, div 4A (ss 55A–55G): Ins 2015 No 59, Sch 1 [25].
55G   Power to redefine fishery with shareholder support
(1)  The Governor may, by proclamation made on the recommendation of the Minister and published on the NSW legislation website, amend Schedule 1 by inserting or omitting the description of a fishery.
(2)  The Minister is to recommend the making of a proclamation under this section only if the Minister has issued a certificate that certifies that the purpose of the proclamation is to give effect to a redefinition proposal that has majority support.
(3)  Any defect in the certificate does not affect the validity of a proclamation made under this section.
(4)  Section 44 does not apply if a description of a share management fishery is omitted from Schedule 1 under this section.
pt 3, div 4A (ss 55A–55G): Ins 2015 No 59, Sch 1 [25].
Division 5 Management plans
56   Preparation of draft management plan
(1)  The Minister is to arrange for the preparation of a draft management plan for a share management fishery as soon as practicable after the fishery becomes a limited access fishery.
(2)  The Minister may arrange for the preparation of a new draft management plan for the fishery following a fishery review in accordance with this Part.
57   Content of management plan
(1)  The management plan for a share management fishery may make provision for or with respect to the following—
(a)  the objectives of the plan,
(b)  the classes of shares in the fishery and the provisions of the plan applicable to each such class,
(c)  the rights of shareholders to take fish or nominate others to take fish in the fishery,
(d)  the fish that may be taken in the fishery,
(e)  the area for taking fish in the fishery,
(f)  the times or periods for taking fish in the fishery,
(g)  the use of boats and fishing gear in the fishery,
(h)  the conduct of fishery reviews for the purposes of the preparation of a new plan,
(i)  the species or group of species of fish taken in the fishery that are to be subject to a total allowable catch for the commercial fishing sector,
(j)  the protection of the habitats of the species of fish that may be taken in the fishery (including habitats at all stages of the life history of any such species),
(k)  the taking of bait for use in the fishery,
(l)  the matters expressly authorised by this Act to be included in the plan,
(m)  any other matters relating to the management of the fishery that are consistent with this Act and its objects.
(1A)  To avoid doubt, a provision of this Act that confers power to make regulations for or with respect to a matter also confers power to include provisions in a management plan for a share management fishery for or with respect to that matter.
(1B)  Accordingly, a reference in this Act (however expressed) to anything provided for, prescribed by or required by the regulations includes, in relation to a share management fishery, a reference to anything provided for, prescribed by or required by the management plan for the fishery.
(2)  A management plan must—
(a)  include performance indicators to monitor whether the objectives of the plan and ecologically sustainable development are being attained, and
(b)  specify at what point a review of the management plan is required when a performance indicator is not being satisfied.
s 57: Am 2015 No 59, Sch 1 [26].
57A   Supporting plan
(1)  The Minister may arrange for the preparation of a draft plan relating to management of all or any specified class of share management fisheries (a supporting plan).
(2)  A supporting plan may make provision for or with respect to any matter for which a fishery management plan may make provision, but cannot contain any provision that could not be contained in a management plan.
(3)  A management plan for a fishery may adopt by reference any of the provisions of a supporting plan as in force at a particular time or as in force from time to time and with or without modification.
(4)  Any provisions so adopted are taken to form part of the management plan for the fishery.
(5)  A provision of a supporting plan has no effect in relation to a share management fishery except to the extent that the provision is adopted by the management plan for the fishery under this section.
(6)  The Minister may arrange for the preparation of a new supporting plan following a fishery review under this Part or at such other times as the Minister considers appropriate.
s 57A: Ins 2004 No 26, Sch 1 [9].
58   Public and industry consultation
(1)  The Minister is required to give the public an opportunity to make submissions on any proposed management plan or supporting plan (or proposed new plan) and to take any submission that is duly made into account.
(2)  The Minister is to consult on the proposed plan with any advisory councils or advisory groups representing commercial or recreational fishing interests, indigenous interests or conservation interests that the Minister considers to have a sufficient interest in the plan.
(3)  This section does not apply to an amendment of a management plan for a fishery or of a supporting plan.
s 58: Am 1996 No 141, Sch 1 [6]. Subst 2004 No 26, Sch 1 [10]. Am 2015 No 59, Sch 1 [27] [28].
59   (Repealed)
s 59: Rep 1996 No 141, Sch 1 [7].
60   Making of plan by regulation
(1)  A management plan for a fishery, or a supporting plan, including any amendment or new plan, is to be made by a regulation.
(2)  Any such regulation is not repealed by the operation of Part 3 of the Subordinate Legislation Act 1989.
s 60: Am 2004 No 26, Sch 1 [11].
61   Commencement of management plan or supporting plan
(1)  A management plan for a fishery commences when the regulation making the plan commences.
(2)  A supporting plan commences when the regulation making the plan commences.
s 61: Am 2004 No 26, Sch 1 [12].
62   Plan prevails over other regulations
(1)  If a provision of the management plan for a fishery (or a provision of a supporting plan adopted by the management plan) is inconsistent with any other regulation under this Act, the management plan prevails.
(2)  However, the management plan does not prevail over a provision of a regulation which is expressed to have effect despite the management plan.
(3), (4)    (Repealed)
s 62: Am 2004 No 26, Sch 1 [13]; 2015 No 59, Sch 1 [29]–[31].
63   Fisheries reviews—new plan
(1)  A management plan for a fishery is not to be replaced by a new plan until at least 5 years after the existing plan was made, unless the existing plan otherwise provides.
(2)  The Secretary is to arrange a review into each share management fishery at such times as the management plan for the fishery provides and, subject to that plan, at such other times as the Minister determines. A review must be held before the term of the shares in the fishery is due to expire.
(3)  The Secretary is to constitute a representative group of persons to assist in the conduct of the review. The group is to include representatives of any relevant advisory group and any other relevant commercial or recreational fishing industry bodies, as appropriate.
(4)  The Secretary is to report to the Minister on the review.
(5)  The Minister is to consider the report of the review and take such action (including the preparation of a new management plan) under this Act with respect to the fishery the subject of the review as the Minister considers appropriate.
s 63: Am 1996 No 141, Sch 1 [8]; 2015 No 59, Sch 1 [32].
64   Amendment of plan
A management plan for a fishery or supporting plan may not be directly amended unless the amendment is of a kind authorised by the plan.
s 64: Am 2004 No 26, Sch 1 [14].
65   Contravention of plan
(1)  A shareholder in a share management fishery is guilty of an offence if the shareholder (or a person nominated by the shareholder to take fish in the fishery) contravenes a provision of a management plan for the fishery, being a contravention that is a designated contravention.
Maximum penalty—In the case of a corporation, 1,000 penalty units or, in any other case, 500 penalty units.
(2)  A designated contravention is a contravention of a provision of a management plan that is designated as an offence by—
(a)  the management plan, or
(b)  a supporting plan (if adopted by the management plan).
(3)  A management plan or supporting plan may also designate whether any such offence is an offence for which the shares of the shareholder are liable to forfeiture under this Act.
s 65: Subst 2004 No 26, Sch 1 [15].
Division 6 Fishing and other shareholding rights
66   Who may fish in share management fisheries
After the commencement of the management plan for a share management fishery, a commercial fishing licence does not authorise a person to take fish in the fishery unless—
(a)  the licensee is the holder of shares in the fishery or is duly nominated by that holder to take fish on behalf of that holder, and
(b)  if the management plan fixes a minimum shareholding to take fish in the fishery that applies to the holder—the holder has not less than the minimum shareholding required, and
(c)  the licence is duly endorsed, in accordance with this Division, for the taking of fish in the fishery.
s 66: Am 2006 No 18, Sch 1 [6]; 2015 No 59, Sch 1 [33].
67   Minimum shareholding required to fish
(1)  The management plan for a share management fishery may fix a minimum shareholding required to take fish in the fishery.
(1A)  A person who holds shares in the fishery is not entitled to take fish in the fishery or to nominate another person to do so on his or her behalf unless the person has the minimum shareholding required to take fish in the fishery.
(2)  A separate minimum shareholding may be fixed in respect of a person who acquires shares after the initial issue of shares or a different minimum shareholding may be fixed for any such shareholding. Different minimum shareholdings may also be set for different classes of shares.
(3)  Minimum shareholdings may be fixed so that the minimum is increased during subsequent periods.
(4)  A management plan may provide that the requirement for a minimum shareholding may be satisfied by taking into account the shareholder’s shares in other share management fisheries or shareholder’s entitlements or catch history in other fisheries.
s 67: Am 2015 No 59, Sch 1 [34].
68   Endorsements on licences
(1)  The Minister may endorse a commercial fishing licence for the taking of fish in a share management fishery.
(2)    (Repealed)
(3)  A licence may be so endorsed only if—
(a)  the licensee is the holder of shares in the share management fishery or is duly nominated by that holder to take fish on behalf of that holder, and
(b)  the shareholder has not less than the minimum shareholding in the share management fishery, or the minimum such shareholding for the class of shares concerned (if the management plan for the fishery fixes such minimums), and
(c)  any community contribution, management charge or other amount due and payable by the holder under this Part has been paid.
(4)  The licence of the holder of shares may not be endorsed if the holder has duly nominated some other commercial fisher to take fish on behalf of that holder. This subsection is subject to the management plan for the fishery.
(4A)  The licence of the holder of shares (or of a person nominated by the holder) may not be endorsed if the holder is not eligible for an endorsement as a consequence of a contravention of the fishing business transfer rules.
(4B)  The licence of a shareholder may not be endorsed if the shareholder is already authorised, by endorsement, to take fish in another share management fishery, unless the further endorsement is authorised by the management plan for each fishery in which the shareholder is, or will (as a consequence of the further endorsement), be authorised to take fish.
(4C)  Subsection (4B) does not prevent a shareholder from nominating another person to take fish on behalf of the shareholder in any fishery in which the shareholder is prevented from holding an endorsement, subject to compliance with any requirements under section 69.
(5)  An application for an endorsement is to be made in the form and manner approved by the Minister and accompanied by the fee prescribed by the regulations.
(6)  An endorsement—
(a)  remains in force for the period specified in the endorsement, and
(b)  may be renewed by the grant of an endorsement for a further period.
(6A)  The authority conferred by such an endorsement is subject to such conditions as are prescribed by the regulations or specified in the endorsement.
(6B)  The Minister may, at any time by notice in writing to the holder of a licence who is authorised by an endorsement to take fish in a share management fishery, revoke or vary the conditions of the endorsement or add new conditions. This subsection does not apply to conditions prescribed by the regulations.
(6C)  The holder of a commercial fishing licence who contravenes any condition of an endorsement on the licence under this section is guilty of an offence.
Maximum penalty—
(a)  200 penalty units or imprisonment for 6 months (or both) for a first offence, or
(b)  400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence.
(7)  An endorsement may be suspended or cancelled by the Minister—
(a)  if the holder of the licence ceases to be eligible to have the licence endorsed, or
(b)  if the shareholder fails to pay any community contribution, management charge or other amount due under this Part, or
(c)  for any other reason authorised by the management plan for the fishery or the fishing business transfer rules.
(8)  If an endorsement of a shareholder is suspended or cancelled, the shareholder is not entitled to nominate another person to take fish on the shareholder’s behalf.
(8A)  An endorsement of the licence of a shareholder, or of the licence of a nominated fisher of a shareholder, may also be revoked by the Minister on a request made by the shareholder in accordance with the requirements (if any) of the management plan for the fishery.
(8B)  The Secretary is to record particulars of any endorsement under this section, and any suspension, cancellation or revocation of an endorsement, in the Share Register.
(8C)  The Minister may approve arrangements under which a person who is eligible for an endorsement is given such an endorsement in the form of a separate document from the commercial fishing licence of the person. Any such document is taken to be an endorsement on the commercial fishing licence of the person authorised by the endorsement to take fish in the fishery, and references in this Act or the regulations to an endorsement extend to an endorsement in that form.
(9)  Until the commencement of the management plan for a fishery, the Minister may determine the matters required by this section to be determined by the plan. During that period, this section has effect subject to any other necessary modification.
s 68: Am 2004 No 26, Sch 1 [16]–[19]; 2006 No 18, Sch 1 [7]–[12]; 2009 No 114, Sch 1 [46]–[48]; 2015 No 59, Sch 1 [35]–[37].
69   Nomination of commercial fisher by holder of shares
(1)  The holder of shares in a share management fishery may nominate a commercial fisher to take fish in the fishery on behalf of that holder.
(2)    (Repealed)
(3)  The nomination is to be made in a form and manner prescribed by the regulations or (subject to the regulations) approved by the Secretary.
(4)  The holder may nominate 2 or more commercial fishers in respect of the same shareholding if authorised to do so under the management plan for the fishery.
(5)  The holder may nominate a commercial fisher who is a shareholder in the same fishery. In that case, the shares of the nominated fisher do not, while the fisher is so nominated and unless the management plan for the fishery otherwise provides, confer any entitlement to take fish in the fishery.
(6)  However, the holder (the nominating shareholder) may not—
(a)  nominate a commercial fisher who is nominated by another shareholder in the same fishery, unless authorised to do so by the management plan for the fishery, or
(b)  nominate a commercial fisher who is nominated by another shareholder in another fishery, unless authorised to do so by the management plan for each fishery in which the commercial fisher will be authorised to take fish as a consequence of the nominations.
(7)  The management plan for a fishery may make further provision for nominations under this section, and for the revocation of nominations, including by requiring a shareholder to keep a record of a nomination or revocation of a nomination.
(8)  The Secretary is to record any nomination under this section, and any revocation of the nomination, in the Share Register.
(9)  Until the commencement of the management plan for a fishery, the Minister may determine the matters that, under this section, may be provided for by the plan.
s 69: Am 2004 No 26, Sch 1 [20] [21]; 2006 No 18, Sch 1 [13]; 2015 No 59, Sch 1 [38] (subst 2016 No 27, Sch 1.11) [39].
70   Special endorsements to take fish in share management fishery
(1)  The Minister may endorse a commercial fishing licence for taking fish for sale in a share management fishery even though the commercial fisher is not entitled under this Part to have the licence so endorsed.
(2)  The Minister may do so only if the Minister is satisfied, after consultation with any relevant advisory council or advisory group, that an available fisheries resource would not otherwise be utilised.
(2A)  The Minister is to issue endorsements under this section in accordance with the criteria (if any) specified in the management plan for the fishery.
(3)  A commercial fishing licence endorsed under this section authorises the holder to take fish in accordance with the authority conferred by the endorsement.
(4)  An endorsement under this section—
(a)  is subject to such conditions as are prescribed by the regulations or specified in the endorsement, and
(b)  remains in force for the period specified in the endorsement, and
(c)  may be cancelled or suspended by the Minister at any time.
(4A)  The Minister may, at any time by notice in writing to the holder of a licence who is authorised by an endorsement under this section to take fish in a share management fishery, revoke or vary the conditions of the endorsement or add new conditions. This subsection does not apply to conditions prescribed by the regulations.
(4B)  The holder of a commercial fishing licence who contravenes any condition of an endorsement on the licence under this section is guilty of an offence.
Maximum penalty—100 penalty units.
(5)  The regulations may make provision for or with respect to endorsements under this section. In particular, the regulations may prescribe the fee payable for such an endorsement.
(6)  The Minister may approve arrangements under which a person who is proposed to be given an endorsement under this section is given the endorsement in the form of a separate document from the commercial fishing licence of the person. Any such document is taken to be an endorsement on the commercial fishing licence of the person authorised by the endorsement to take fish in the fishery, and references in this Act or the regulations to an endorsement extend to an endorsement in that form.
s 70: Am 1996 No 141, Sch 1 [9]; 2006 No 18, Sch 1 [14] [15]; 2015 No 59, Sch 1 [40]–[42].
71   Transfer and other dealings in shares
(1)  A share in a share management fishery may be transferred, assigned, transmitted or mortgaged and any other interest of a kind prescribed by the regulations may be created in the share.
(2)  Without limiting subsection (1), shares may be transferred for the purpose of enabling 2 or more shareholders to hold their shares jointly.
(3)  A transaction that transfers, assigns, transmits, mortgages or otherwise creates an interest in a share in a share management fishery is required to be registered in the Share Register under Division 10.
(4)  This section is subject to any restriction imposed by the management plan for the fishery.
(5)  Before the commencement of the management plan for the fishery, this section applies only to the extent authorised by the regulations.
71A   Issue of further classes of shares in fishery
(1)  A management plan for a share management fishery may provide for the creation and issue of further classes of shares in the share management fishery.
(2)  Any such further classes of shares in the fishery are to be allocated to shareholders on the basis of criteria provided for by the management plan.
(3), (4)    (Repealed)
(5)  If a management plan provides for the issue of further classes of shares in a share management fishery, it is to include provision for the making of appeals to the Share Appeal Panel against decisions made under the plan in relation to the allocation of the shares.
(6)  To avoid doubt, Division 3 does not apply to the issue of further classes of shares under a management plan.
s 71A: Ins 2004 No 26, Sch 1 [22]. Am 2015 No 59, Sch 1 [43] [44].
72   Maximum shareholding permitted
(1)  The management plan for a share management fishery may fix a maximum shareholding for the fishery.
(2)  Different maximum shareholdings may be fixed for different classes of shares.
(3)    (Repealed)
(4)  If the maximum shareholding is decreased at any time after it is fixed, the decrease in that maximum does not affect an existing shareholder. While any such existing shareholder continues to hold those shares, the maximum shareholding in respect of that shareholder is the previous maximum shareholding.
(5)  Shares in a share management fishery in excess of the maximum shareholding may not be issued to a person by the Minister or recorded in the Share Register.
(6)  Any excess shares are to be cancelled by the Minister. However, the Minister may allow a person who has acquired excess shares to dispose of those shares in accordance with this Part.
(7)  For the purposes of this section, the shareholding of a person is taken to include the shareholding of any other person who has an interest in the shares of the first-mentioned person (within the meaning of the Banks (Shareholdings) Act 1972 of the Commonwealth).
s 72: Am 2009 No 114, Sch 1 [49] [50]; 2015 No 59, Sch 1 [45].
73   Duration of shareholding
(1)  Shares in a share management fishery are to be issued initially for a period of 10 years (calculated from the commencement of the management plan for the fishery).
(2)  If during that 10-year period (or any subsequent period for which the shares are renewed) a fishery review is conducted and a new management plan is made under this Part, the shares are taken to be renewed (from the date the new plan commences) for a further period of 10 years and the balance of the current period is terminated.
(3)  If a new management plan is not made by the end of that 10-year period (or any subsequent period for which the shares are renewed), the shares are taken to be renewed, at the end of their current period, for a further period of 10 years.
s 73: Am 2000 No 86, Sch 3 [9]; 2009 No 114, Sch 1 [51]; 2015 No 59, Sch 1 [46].
73A   (Repealed)
s 73A: Ins 2000 No 86, Sch 3 [10]. Rep 2015 No 59, Sch 1 [23].
74   Surrender of shares
(1)  The holder of shares in a share management fishery may surrender those shares to the Minister.
(2)  The Minister may retain, cancel, reissue or sell shares that are surrendered.
(3)  If the Minister cancels the shares, new shares are not to be issued in their place.
(4)  If the Minister sells surrendered shares, the Minister may pay up to 85% of the purchase price to the holder of the shares. The balance of the purchase price, after deduction of sale expenses and shareholder dues, is to be credited to the Consolidated Fund.
(5)  During any period in which surrendered shares are retained by the Minister, the Minister is not liable for any fisheries management charge in respect of those shares.
(6)  In this section—
sale expenses means expenses reasonably incurred in connection with a sale of shares.
shareholder dues means any amount owed by a shareholder in connection with shares that would, on payment, be paid into the Commercial Fishing Trust Fund.
s 74: Am 2015 No 59, Sch 1 [47].
75   Forfeiture of shares for certain contraventions of Act
(1)  For the purposes of this section, an offence against this Act or the regulations is a share forfeiture offence for a fishery if it is designated in the management plan for the fishery as such an offence.
(2)  A court which convicts a shareholder in a share management fishery, or a commercial fisher taking fish in the fishery on behalf of the shareholder, of a share forfeiture offence may order that the shares (or any of the shares) of the shareholder be forfeited.
(3)  A court which orders the forfeiture of any such shares may also order that the holder of the shares is not eligible to hold shares in the fishery for the period specified by the court.
(4)  The regulations may also provide for the forfeiture of shares by order of the Minister—
(a)  for any record of convictions of a shareholder in a share management fishery, or a commercial fisher taking fish in the fishery on behalf of the shareholder, for share forfeiture offences, or
(b)  for any failure by the shareholder to pay a community contribution or other amount due under this Part (but only to the extent of the amount due).
(5)–(10)    (Repealed)
(11)  The Minister is not liable to pay any community contribution or other amount under this Act that becomes payable in respect of forfeited shares following the forfeiture.
s 75: Am 2006 No 18, Sch 1 [16]; 2009 No 114, Sch 1 [52] [53]; 2015 No 59, Sch 1 [48] [49].
75A   Payment for fish taken in contravention of quota or forfeiture of shares
(1)  A shareholder who, during any period, takes fish in contravention of the shareholder’s quota (whether personally or by means of a nominated fisher) is required to pay to the Secretary the value of the fish so taken. The amount paid is to be credited to the Consolidated Fund.
(2)  If the amount required to be paid by the shareholder is not paid within the time specified by the Minister in a written notice to the shareholder, the Minister may direct that the requisite number of shares of the shareholder are forfeited.
(3)  The requisite number of shares is the number of shares that, if sold by public tender, would in the Minister’s opinion raise an amount equivalent to the amount required to be paid by the shareholder.
(4)  If the shareholder does not have sufficient shares, the balance of the amount required to be paid by the shareholder may be recovered by the Minister as a debt in a court of competent jurisdiction.
(5)  The value of fish for the purposes of this section is the value that the Minister considers to be the market value of the fish. If the Minister is satisfied that the shareholder did not intend to contravene the shareholder’s quota, the Minister is to reduce the value by the amount the Minister considers appropriate for the costs incurred by the shareholder in taking the fish.
(6)  For the purposes of this section, fish taken by a shareholder include fish taken on behalf of the shareholder by a commercial fisher duly nominated by the shareholder under this Part.
(7)  Nothing in this section precludes proceedings being taken for an offence against this Act or the regulations.
(8)  The management plan for a fishery may provide that this section does not apply in specified circumstances to the taking of fish in the fishery.
s 75A: Ins 2015 No 59, Sch 1 [50].
75B   How forfeited shares are to be dealt with
(1)  The Minister may retain, cancel, reissue or sell shares that are forfeited.
(2)  Any forfeited shares that are sold by the Minister are to be sold by public tender.
(3)  The purchase price for forfeited shares that are sold is to be paid to the credit of the Consolidated Fund, subject to this section.
(4)  If any amount is due under this Part in respect of the forfeited shares that would, on payment, be paid into the Commercial Fishing Trust Fund, that amount is to be deducted from the purchase price and paid to the credit of the Commercial Fishing Trust Fund and the balance after payment is to be paid to the credit of the Consolidated Fund.
(5)  If shares forfeited for a failure by the shareholder to pay a community contribution or other amount due under this Part are sold, the following provisions apply—
(a)  any community contribution due under this Part is to be deducted from the purchase price and paid to the credit of the Consolidated Fund,
(b)  any other amount due under this Part that would, on payment, be paid into the Commercial Fishing Trust Fund is to be deducted from the purchase price and paid to the credit of the Commercial Fishing Trust Fund,
(c)  any reasonable costs incurred by or on behalf of the Minister in connection with the sale of the shares are to be deducted from the purchase price and paid to the credit of the Consolidated Fund,
(d)  the balance (if any) remaining after payment of the amounts referred to in paragraphs (a)–(c) is to be paid to the shareholder.
(6)  The regulations may authorise or require the payment of any part of the purchase price to a person (other than the shareholder) who had an interest in the shares. Any such payment may be made only after payment of the amounts referred to in subsection (5)(a)–(c).
(7)  The Minister may recover from a person, as a debt in any court of competent jurisdiction, any reasonable costs incurred by or on behalf of the Minister in selling shares forfeited by the person, being costs not otherwise recovered as provided by this section.
(8)  If shares forfeited for a failure by the shareholder to pay a community contribution or other amount due under this Part are not sold, the Minister is to deduct the sale value of the shares from the amount owed by the shareholder.
(9)  The sale value of shares is the purchase price that the Minister considers would be obtained if the shares were sold by public tender, minus the reasonable costs that would be incurred in connection with the sale.
(10)  During any period in which forfeited shares are retained by the Minister, the Minister is not liable for any fisheries management charge in respect of those shares.
s 75B: Ins 2015 No 59, Sch 1 [50].
Division 7 Management charges and community contributions
76   Management charges
(1)  The Minister may, subject to this section, determine the management charge payable by holders of shares in a share management fishery. The charge is payable annually, or as otherwise determined by the Minister.
(2)  The management charge is to be such amount as the Minister considers necessary to meet the costs of management for that fishery, being costs of management that are attributed to industry by the management plan for the fishery.
(3)  The management charge is not to exceed the amount prescribed by the management plan for the fishery.
(4)  The management charge is payable by shareholders in proportion to their shareholding or as otherwise provided by the management plan.
(4A)  The management charge may be fixed to provide for, and the provisions of a management plan relating to the management charge may facilitate, either or both of the following—
(a)  the calculation of a single management charge for more than one share management fishery (that is, so that holders of shares in more than one share management fishery are not liable to pay a separate management charge in respect of each fishery),
(b)  the calculation of a single management charge for a single fishing business (even if the fishing business is comprised of, or includes, shares in more than one share management fishery).
(5)  The management plan may authorise the payment of management charges by instalments.
(6)  If a management charge, or an instalment of a management charge, is unpaid after the due date for its payment, the Minister may charge interest on the overdue amount at the rate payable from time to time in respect of judgments of the Supreme Court or, if some other rate is prescribed by the management plan for the fishery, that rate.
(7)  Interest may be charged under subsection (6) for each day that has elapsed between the date on which payment is due and the date of payment.
(7A)  Interest charged on an overdue management charge, or an instalment of a management charge, under subsection (6) is taken to be part of the management charge.
(8)  Until the commencement of the management plan for a fishery, the Minister may (after consultation with any relevant advisory group for the fishery) determine the matters that may be provided for by the plan.
s 76: Am 2004 No 26, Sch 1 [23]; 2006 No 18, Sch 1 [17]–[19]; 2015 No 59, Sch 1 [51].
77   Community contribution for access to share management fishery
(1)  Shareholders in a share management fishery are required to make a periodic contribution for their right of access to the fishery (a community contribution).
(2)  The community contribution is payable after the commencement of, and in accordance with, the management plan for the fishery.
(3)  The community contribution is to be credited to the Consolidated Fund.
(4)  The community contribution is to be based on the size of the shareholding in the fishery, or as otherwise provided by the management plan for the fishery.
(5)  The rate of the community contribution, method of its payment and other matters concerning its payment are to be prescribed by the management plan, and not otherwise.
(6)  The management plan for the fishery may exempt a shareholder from making the community contribution (or reduce any such contribution) if the full rights to take fish in the fishery in accordance with the shareholding have not been exercised during the relevant period.
(7)  The Treasurer’s concurrence is required before any provisions relating to community contributions are inserted in a management plan.
s 77: Am 2000 No 86, Sch 3 [11]; 2004 No 26, Sch 1 [24]; 2015 No 59, Sch 1 [52].
77A   (Repealed)
s 77A: Ins 2000 No 86, Sch 3 [12]. Am 2002 No 112, Sch 1.9 [6]. Rep 2015 No 59, Sch 1 [23].
Division 8
78–81  (Repealed)
pt 3, div 8: Rep 2015 No 59, Sch 1 [53].
s 78: Am 2000 No 86, Sch 3 [13]. Rep 2015 No 59, Sch 1 [53].
ss 79–81: Rep 2015 No 59, Sch 1 [53].
Division 9 Share Management Fisheries Appeal Panel
82   Establishment of Panel
A Share Management Fisheries Appeal Panel (the Share Appeal Panel) is established.
83   Composition and procedure of Panel
(1)  The Share Appeal Panel is to consist of 3 members, as follows—
(a)  a person appointed by the Minister as the Chairperson of that Panel, being a person who is neither engaged in the administration of this Act nor in commercial fishing,
(b)  the Secretary or a nominee of the Secretary,
(c)  a person appointed by the Minister on the nomination of such relevant commercial fishing industry bodies as the Minister determines, being a person with extensive practical experience in the commercial fishing industry.
(2)  The Minister may constitute that Panel with different members for different share management fisheries.
(3)  A person who has a financial interest in a commercial fishery to which an appeal relates is not eligible to be appointed under subsection (1)(c) to that Panel for the purpose of hearing that appeal.
(4)  Schedule 3 has effect with respect to the members of the Panel.
s 83: Am 1996 No 141, Sch 1 [10].
84   Making of appeals
(1)  An applicant for shares in a share management fishery may appeal to the Share Appeal Panel against a decision under this Part relating to the provisional issue of shares in the fishery under section 48.
(1A)  An appeal cannot be made to that Panel under subsection (1) after the making of a share management plan for the fishery to which the appeal relates. However, the making of a share management plan does not affect any appeal that was made, but not finally determined, before the making of the plan.
(2)  The regulations may provide for other appeals to that Panel against decisions under this Part relating to a share management fishery.
(3)  An appeal is to be made within the time and in the manner prescribed by the regulations.
(4)  An appeal is to be accompanied by such fee or deposit as is prescribed by the regulations.
s 84: Am 2001 No 104, Sch 1 [8]; 2004 No 26, Sch 1 [25].
85   Hearing and determination of appeals
(1)  The Share Appeal Panel is to hear each appeal duly made to it.
(2)  The Panel may, for the purpose of the appeal, exercise the functions of the person who made the decision concerned.
(3)  That Panel may—
(a)  uphold the decision, or
(b)  vary the decision, or
(c)  set the decision aside and substitute a new decision.
(4)  A decision as varied or substituted is to be given effect to under this Part.
Note—
See sections 48 and 52.
(5)  That Panel is to give to each party to an appeal a written statement of its determination and of the reasons for its determination.
86   Procedure at appeals
(1)  In proceedings before the Share Appeal Panel—
(a)  the procedure of that Panel is, subject to this Act and the regulations, to be determined by the Panel, and
(b)  the proceedings are to be conducted with as little formality and technicality, and as quickly, as the requirements of this Act and the proper consideration of the matter permit, and
(c)  that Panel is not bound by the rules of evidence but may inform itself on any matter in any way it thinks appropriate.
(2)  The time, date and place for the hearing of an appeal is to be fixed by the Chairperson of that Panel and notified in writing by the Chairperson to each party to the appeal.
(3)  The Chairperson of that Panel is to preside at any hearing of an appeal.
(4)  At the hearing of an appeal, a party to the appeal may appear in person or be represented by an Australian legal practitioner or any other person.
(5)  Hearings may be conducted in public or in private.
(6)  The Panel may, with the approval of the appellants, hear 2 or more appeals together.
(7)  An appeal may be heard and determined despite the absence or vacancy in the office of one of its members (other than the Chairperson). This subsection applies only if the appellant consents to the continuation of the hearing.
(8)  An appeal may continue to be heard and determined despite a change in the membership of the Panel (other than the Chairperson).
(9)  An appeal and any question concerning the appeal are to be determined according to the opinion of the majority of the members of the Panel hearing the appeal. If there are only 2 members, they are to be determined according to the opinion of the Chairperson.
s 86: Am 2005 No 98, Sch 3.26.
87   Power to summon witnesses and take evidence
(1)  The Chairperson of the Share Appeal Panel may summon a person to appear at a hearing of an appeal to give evidence and to produce such documents (if any) as are referred to in the summons.
(2)  The Chairperson of that Panel may require a person appearing at the hearing of an appeal to produce a document.
(3)  That Panel may, at a hearing, take evidence on oath or affirmation and, for that purpose—
(a)  the Chairperson of that Panel may require a person appearing at the hearing to give evidence either to take an oath or to make an affirmation in a form approved by the Chairperson, and
(b)  the Chairperson may administer an oath or affirmation to a person so appearing at the hearing.
(4)  A person served with a summons to appear at a hearing to give evidence must not, without reasonable excuse—
(a)  fail to attend as required by the summons, or
(b)  fail to attend from day to day unless excused, or released from further attendance, by the Chairperson of that Panel.
Maximum penalty—20 penalty units.
(5)  A person appearing at a hearing to give evidence must not, without reasonable excuse—
(a)  when required to take an oath or make an affirmation—refuse or fail to comply with the requirement, or
(b)  refuse or fail to answer a question that the person is required to answer by the Chairperson of that Panel, or
(c)  refuse or fail to produce a document that the person is required to produce by a summons served under this section.
Maximum penalty (subsection (5)): 20 penalty units.
88   Power to obtain documents
(1)  The Chairperson of the Share Appeal Panel may, by notice in writing served on a person, require the person—
(a)  to attend, at a time and place specified in the notice, before a person specified in the notice, being the Chairperson or a person authorised by the Chairperson in that behalf, and
(b)  to produce, at that time and place, to the person so specified a document specified in the notice.
(2)  A person must not, without reasonable excuse, refuse or fail to comply with a notice served on the person under this section.
Maximum penalty—20 penalty units.
Division 10 Share Management Fisheries Register
88A   Definitions
In this Division—
dealing in a share means any transaction that purports to have the effect of transferring, assigning, transmitting, mortgaging or otherwise creating any interest in a share in a share management fishery.
prohibited dealing in a share means any dealing that would result in a shareholder acquiring more shares in a fishery than is permitted by this Act or that would otherwise contravene this Act.
s 88A: Ins 2015 No 59, Sch 1 [54].
89   Establishment and keeping of Share Register
(1)  The Secretary is required to establish and keep a Share Management Fisheries Register (the Share Register).
(2)  The Share Register may be kept wholly or partly by means of a computer.
(3)  If the Share Register is kept wholly or partly by means of a computer—
(a)  references in this Act to an entry in the Share Register are to be read as including references to a record of particulars kept by means of the computer and comprising the Share Register or part of the Share Register, and
(b)  references in this Act to particulars being registered, or entered in the Share Register, are to be read as including references to the keeping of a record of those particulars as part of the Share Register by means of the computer, and
(c)  references in this Act to the rectification of the Share Register are to be read as including references to the rectification of the record of particulars kept by means of the computer and comprising the Share Register or part of the Share Register.
90   Registration of shares
(1)  The Secretary must register any shares in a share management fishery issued by the Minister by entering in the Share Register the following particulars—
(a)  the name of the person to whom the shares are issued,
(a1)  if the shares are a component of a fishing business, the number allocated to the fishing business by the Secretary under this Act,
(b)  the number of shares issued,
(c)  the share management fishery for which the shares are issued,
(d)  the period for which the shares are issued,
(e)  such other particulars (if any) as are prescribed by the regulations.
(2)  The Secretary must register any renewal of shares in a share management fishery by entering in the Share Register the following particulars—
(a)  the fact that the shares have been renewed,
(b)  the period for which the shares are renewed,
(c)  such other particulars (if any) as are prescribed by the regulations.
s 90: Am 2004 No 26, Sch 1 [26].
91   Registration of dealings in shares
A dealing in a share does not have effect until it is registered in the Share Register.
s 91: Am 2009 No 114, Sch 1 [54]. Subst 2015 No 59, Sch 1 [55].
91A   Online registration of dealings
(1)  A party to a dealing may register the dealing by means of the online registration system.
(2)  A person must not use the online registration system for the purpose of registering a prohibited dealing.
Maximum penalty—50 penalty units.
(3)  The regulations may prescribe the fees payable for use of the online registration system.
(4)  In this section—
online registration system means a system or facility for electronic communication approved by the Secretary that enables the registration of dealings in the Share Register.
s 91A: Ins 2015 No 59, Sch 1 [55]. Am 2016 No 55, Sch 1.9 [1].
91B   Paper-based registration of dealings
(1)  A party to a dealing in a share may make an application to the Secretary for the dealing to be registered.
(2)  Such an application must be in a form approved by the Secretary and must be accompanied by—
(a)  the document that embodies the dealing, and
(b)  a document setting out such particulars (if any) as are prescribed by the regulations for the purposes of this paragraph, and
(c)  duplicates of the documents referred to in paragraphs (a) and (b), and
(d)  such fee (if any) as is prescribed by the regulations.
(3)  If such an application is approved by the Secretary, the Secretary must—
(a)  register the dealing by entering in the Share Register particulars of the name of the person acquiring the interest and a description of the dealing, and
(b)  endorse on the document relating to the dealing and the duplicate of that document the fact of the entry having been made, together with the date and time of the making of the entry.
(4)  When those entries in the Share Register have been made—
(a)  the duplicate of the document relating to the dealing is to be retained by the Secretary and made available for inspection in accordance with this Division, and
(b)  the original document is to be returned to the person who made the application for registration.
(5)  The Secretary is not to register a dealing in a share in any share management fishery if the dealing is a prohibited dealing.
s 91B: Ins 2015 No 59, Sch 1 [55].
92   Trusts not registrable
(1)  The Secretary is taken not to have notice of any kind of trust relating to shares in a share management fishery.
(2)  Notice of any such trust must not be registered by the Secretary.
93   Power of holder to deal with shares
(1)  The holder of any share in a share management fishery may, subject to this Part, deal with the share as its absolute owner and give good discharges for any consideration for any such dealing.
(2)  Subsection (1)—
(a)  is subject to any rights appearing in the Share Register to belong to another person, and
(b)  only protects a person who deals with the holder of the share as a purchaser in good faith for value and without notice of any fraud on the part of the holder.
(3)  Equities in relation to a share in a share management fishery may be enforced against the holder of the right except to the prejudice of a person protected by subsection (2).
94   Surrender of shares to be noted in Share Register
If a share in a share management fishery is surrendered, the Secretary must make an entry in the Share Register to that effect.
95   Cancellation or forfeiture of shares to be noted in Share Register
(1)  If a share in a share management fishery is cancelled, forfeited or otherwise ceases to have effect, the Secretary must make an entry in the Share Register to that effect.
(2)  If, because of a decision made by the Minister or a court, an entry made by the Secretary under subsection (1) is no longer correct, the Secretary must rectify the Share Register.
(3)  If—
(a)  the Secretary makes an entry in the Share Register under subsection (1), or rectifies the Share Register under subsection (2), concerning a share, and
(b)  a person other than the holder of the share has an interest in the share, and
(c)  the interest is one in relation to which a transaction has been registered under section 91 (Registration of dealings in shares),
the Secretary must give the person written notice of the entry or rectification.
s 95: Am 2009 No 114, Sch 1 [55].
96   Secretary not concerned as to the effect of documents lodged for registration
The Secretary is not concerned with the effect in law of any document lodged in connection with an application for registration of a dealing and the registration of the transaction concerned does not give to the document any effect that it would not have if this Division had not been enacted.
s 96: Am 2015 No 59, Sch 1 [56].
97   Inspection of Share Register and registered documents
(1)  On payment by a person of the prescribed fee (if any), the Secretary must, during the ordinary business hours of the Secretary’s office, make available for inspection the Share Register and all copies of registered documents retained by the Secretary in accordance with section 91B (Paper-based registration of dealings).
(2)  If the Share Register is kept wholly or partly by means of a computer, this section is taken to be complied with by making the contents of the Share Register available for inspection on the website of the Department.
(3)  The Secretary is not required to make information available for inspection under this section if the information is of a type specified by the regulations to be excluded from this section.
s 97: Am 2004 No 26, Sch 1 [27]; 2015 No 59, Sch 1 [57] [58].
98   Evidentiary provisions
(1)  The Share Register is evidence of any particulars registered in it.
(2)  If the Share Register is wholly or partly kept by means of a computer, a document issued by the Secretary producing in writing particulars included in the Share Register, or the part kept by means of a computer, is admissible in legal proceedings as evidence of those particulars.
(3)  A copy of the Share Register or an entry in the Share Register is, if purporting to be signed by the Secretary, admissible in evidence in legal proceedings as if the copy were the original.
(4)  A copy of a document, or part of a document, retained by the Secretary under section 91B (Paper-based registration of dealings) is, if purporting to be signed by the Secretary, admissible in evidence in legal proceedings as if the copy were the original.
(5)  The Secretary must, on application made by a person in a form approved by the Secretary, provide the person with a document or copy that is admissible in legal proceedings because of this section.
s 98: Am 2015 No 59, Sch 1 [59].
99   Correction of Share Register
(1)  The Secretary may correct any error or mistake in the Share Register.
(2)  If a prohibited dealing in a share is registered in the Register, the Secretary may take any steps necessary to rectify the Register and restore the integrity of the Register.
(3)  The actions that the Secretary is authorised to take under this section include the following—
(a)  cancelling or amending the registration of a dealing,
(b)  making a new recording in the Register.
(4)  The Secretary may pay compensation to any person who, in the opinion of the Secretary, is unfairly disadvantaged by action taken by the Secretary under this section.
s 99: Am 2015 No 59, Sch 1 [60].
100   Exculpation for liability for anything done under this Division
The Minister, the Secretary and other persons employed in the administration of this Division are not liable in any civil proceedings for anything done or omitted to be done in good faith in the exercise or purported exercise of any function imposed or conferred by this Division.
101   Offences under the Division
A person must not—
(a)  make, or cause to be made or concur in making, an entry in the Share Register knowing it to be false or misleading in a material respect, or
(b)  produce or tender in legal proceedings a document knowing that it falsely purports to be an instrument (or copy of an instrument) lodged with the Secretary under this Division or a copy of the Share Register or of an entry in the Share Register.
Maximum penalty—50 penalty units.
Part 4 Licensing and other commercial fisheries management
Division 1 Commercial fishing licences
102   Commercial fishers required to be licensed
(1)  A person must not take fish for sale from waters to which this Act applies unless the person is authorised to do so by a commercial fishing licence.
Maximum penalty—
(a)  in the case of an individual—
(i)  1,000 penalty units for a first offence, or
(ii)  2,000 penalty units for a second or subsequent offence, or
(b)  in the case of a corporation—
(i)  2,000 penalty units for a first offence, or
(ii)  4,000 penalty units for a second or subsequent offence.
(2)  This section does not apply to a member of the crew of a boat licensed under Division 2 who takes fish as an employee or agent of the master of the boat.
Note—
A commercial fishing licence will, under other provisions of this Act, require an endorsement if the holder is to take fish in a share management fishery or in a restricted fishery.
s 102: Am 2004 No 26, Sch 1 [28]; 2009 No 114, Sch 1 [56].
103   Who may hold licence
(1)  A corporation may not hold a commercial fishing licence.
(2)  An individual may hold a commercial fishing licence only if—
(a)  the individual is a shareholder in a share management fishery or is duly nominated by the shareholder under Part 3 to take fish on behalf of the shareholder, or
(b)  the individual held a fisherman’s licence under section 25 of the Fisheries and Oyster Farms Act 1935 immediately before the repeal of that section by this Act, or
(c)  the individual is otherwise authorised by the regulations to hold a commercial fishing licence.
(3)  If an individual is only entitled to a licence under subsection (2)(a), the licence must be restricted to the taking of fish in the share management fishery concerned.
104   Provisions relating to licensing of commercial fishers
(1)  Any eligible person may apply to the Minister for a commercial fishing licence.
(2)  An application is to be in the form approved by the Minister.
(3)  The Minister is required to issue a licence to an eligible applicant unless the Minister is authorised by the regulations to refuse the application.
(4)  A commercial fishing licence—
(a)  is subject to such conditions as are prescribed by the regulations or specified in the licence, and
(b)  remains in force for such period as is specified in the licence, and
(c)  may be renewed from time to time in accordance with the regulations, and
(d)  is not transferable, and
(e)  may be cancelled or suspended by the Minister in the circumstances authorised by the regulations.
(5)  The regulations may prescribe different classes of licences.
(6)  The Minister may, at any time by notice in writing to the holder of a commercial fishing licence, revoke or vary the conditions of or endorsements on the licence or add new conditions or endorsements. This subsection does not apply to conditions prescribed by the regulations.
(7)  The holder of a commercial fishing licence who contravenes any condition of the licence is guilty of an offence.
Maximum penalty—100 penalty units.
(8)  The regulations may make provision for or with respect to commercial fishing licences. In particular, the regulations may prescribe the qualifications relating to fishing activities required for the issue of a licence and the fee or fees payable in respect of an application for the issue or renewal of a licence.
s 104: Am 2004 No 26, Sch 1 [29]–[31].
105   Evidentiary provision
The fact that a person holds a commercial fishing licence is evidence that fish taken by the person or in the person’s possession were fish taken or in possession for sale.
106   Use of crew members
The holder of a commercial fishing licence must not take fish for sale with the assistance of any other person (a crew member) unless the use of the crew member to assist in the taking of fish for sale is authorised by the holder’s commercial fishing licence.
Maximum penalty—50 penalty units.
s 106: Am 2004 No 26, Sch 1 [32]. Rep 2006 No 18, Sch 1 [20]. Ins 2015 No 59, Sch 1 [61].
Division 2 Fishing boat licences
pt 4, div 2: Subst 2015 No 59, Sch 1 [62].
107   Licence required to use boat for declared commercial fishing boat activities
(1)  A boat may be used for the purpose of a declared commercial fishing boat activity only if a fishing boat licence authorises the use of the boat for declared commercial fishing boat activities.
(2)  For the purposes of this Division, a declared commercial fishing boat activity is any commercial fishing boat activity declared by the regulations to be a commercial fishing boat activity for which a fishing boat licence is required.
(3)  A commercial fishing boat activity is any activity involving the use of a boat—
(a)  to take fish for sale from waters to which this Act applies, or
(b)  to land fish in New South Wales that were taken from other waters (after the boat departed from a port in New South Wales).
(4)  The regulations may provide that a boat licensed under a law of the Commonwealth or of another State or a Territory is taken to be authorised to be used for the purposes of declared commercial fishing boat activities.
s 107: Subst 2015 No 59, Sch 1 [62].
107A   Offence of engaging in unlicensed activity
(1)  The master of a boat must not use the boat, or permit the boat to be used, for a declared commercial fishing boat activity unless authorised to do so by a fishing boat licence.
Maximum penalty—100 penalty units.
(2)  The use of a boat for a declared commercial fishing boat activity is authorised by a fishing boat licence only if—
(a)  the master of the boat is the holder of a fishing boat licence or acting with the consent of the holder of a fishing boat licence, and
(b)  the boat is being used in accordance with that fishing boat licence.
s 107A: Ins 2015 No 59, Sch 1 [62].
107B   Fishing boat licences
(1)  The Minister may issue to a person a licence (a fishing boat licence) that authorises a boat to be used for declared commercial fishing boat activities.
(2)  A fishing boat licence authorises the use of a single boat for all declared commercial fishing boat activities.
(3)  A fishing boat licence may be issued whether or not the applicant for the licence is able to provide identification details for the boat to be used under the authority of the licence.
(4)  The holder of a fishing boat licence must not use a boat, or permit a boat to be used, for a declared commercial fishing boat activity under the authority or purported authority of the licence unless the holder has given the Secretary notice of the identification details for the boat to be used.
Maximum penalty—10 penalty units.
(5)  The notice must be given in a form approved by the Secretary.
(6)  In this section, the identification details for a boat means such details as the Secretary requires to identify a boat.
s 107B: Ins 2015 No 59, Sch 1 [62].
108   Provisions relating to fishing boat licences
(1)  A person may apply to the Minister for the issue of a fishing boat licence.
(2)  An application is to be in the form approved by the Minister.
(3)  The Minister is required to issue a fishing boat licence if application for the licence is duly made unless the Minister is authorised by the regulations to refuse the application.
(4)  A fishing boat licence—
(a)  is subject to such conditions as are prescribed by the regulations or specified in the licence, and
(b)  remains in force for such period as is specified in the licence, and
(c)  may be renewed from time to time in accordance with the regulations, and
(d)  may be cancelled or suspended by the Minister in the circumstances authorised by the regulations.
(5)  The regulations may prescribe different classes of fishing boat licences.
(6)  The Minister may, at any time by notice in writing to the holder of a fishing boat licence, revoke or vary the conditions of the licence or add new conditions. This subsection does not apply to conditions prescribed by the regulations.
(7)  The holder of a fishing boat licence who contravenes any condition of the licence is guilty of an offence.
Maximum penalty—100 penalty units.
(8)  The regulations may make provision for or with respect to fishing boat licences. In particular, the regulations may prescribe the fee or fees payable in respect of an application for the issue or renewal of a licence.
s 108: Am 2004 No 26, Sch 1 [33]–[35]. Subst 2015 No 59, Sch 1 [62].
109   Boat marking requirements for fishing boats (including boats exempt from licensing)
(1)  This section applies to a boat used for a commercial fishing boat activity that has been declared (or that could be but has not been declared) under section 107 as a commercial fishing boat activity for which a fishing boat licence is required.
(2)  The master of a boat to which this section applies, must not use the boat, or permit the boat to be used for a commercial fishing boat activity unless the boat is identified, in the manner required by the regulations, as a commercial fishing boat.
Maximum penalty—100 penalty units.
s 109: Subst 2015 No 59, Sch 1 [62].
110   Evidentiary provision
In any proceedings under this Act, evidence that a boat was being used or purportedly being used under the authority of a fishing boat licence, is evidence that fish taken by the use of the boat, or landed from the boat, were fish taken for sale.
s 110: Subst 2015 No 59, Sch 1 [62].
Division 3 Exploratory, developmental and other restricted fisheries
111   Declaration of restricted fisheries
(1)  The regulations may declare that a fishery (not being a share management fishery in respect of which shares issued in the fishery have taken effect) is a restricted fishery for the purposes of this Act.
(2)  The fishery may be described in the declaration as an exploratory, developmental or other class of restricted fishery.
(3)  Before a fishery is declared to be a restricted fishery, the Minister is required to consult relevant commercial or recreational fishing industry bodies about the proposed declaration and to notify the proposal publicly.
(4)  A fishery that is declared to be a restricted fishery ceases to be a restricted fishery if the declaration is revoked by the regulations or if the period (if any) specified by the regulations as the period during which the fishery is a restricted fishery expires.
Note—
A fishery also ceases to be a restricted fishery if it becomes a limited access share management fishery—see section 55.
s 111: Am 1996 No 141, Sch 1 [11]; 2004 No 26, Sch 1 [36]; 2009 No 114, Sch 1 [57] [58].
112   Commercial fishing licence to be endorsed for restricted fishery
(1)  A commercial fishing licence does not authorise a person to take fish for sale in a restricted fishery unless the holder is authorised by the Minister, by an endorsement on the licence, to do so.
(2)  The authority conferred by such an endorsement is subject to such conditions as are prescribed by the regulations or specified in the endorsement.
(3)  The Minister may, at any time by notice in writing to the holder of a licence who is authorised by an endorsement to take fish in a restricted fishery, revoke or vary the conditions of the endorsement or add new conditions. This subsection does not apply to conditions prescribed by the regulations.
(4)  The holder of a commercial fishing licence who contravenes any condition of an endorsement on the licence under this section is guilty of an offence.
Maximum penalty—
(a)  200 penalty units or imprisonment for 6 months (or both) for a first offence, or
(b)  400 penalty units or imprisonment for 12 months (or both) for a second or subsequent offence.
(5)  The Minister may approve arrangements under which a person who is eligible for an endorsement in a restricted fishery is given an endorsement in the form of a separate document from the commercial fishing licence of the person. Any such document is taken to be an endorsement on the commercial fishing licence of the person authorised by the endorsement to take fish in the fishery, and references in this Act or the regulations to an endorsement extend to an endorsement in that form.
s 112: Am 2006 No 18, Sch 1 [21]; 2009 No 114, Sch 1 [59].
113   Restriction on the number of licences endorsed for restricted fishery
(1)  The regulations may fix the maximum number of commercial fishing licences that may be endorsed in respect of a specified restricted fishery.
(2)  Eligibility for endorsement of commercial fishing licences is to be determined in accordance with the regulations.
114   Endorsements not transferable
An endorsement of a commercial fishing licence under this Division is not transferable, unless authorised by the regulations.
115   Compensation not payable
Compensation is not payable by or on behalf of the State because a fishery ceases to be a restricted fishery at the end of the period for which it was declared to be a restricted fishery or at any time during that period.
115A   Payment of contribution to industry costs
(1)  A participant in a restricted fishery must pay to the Minister a contribution towards one or more of the following—
(a)  the costs of taking measures to enhance, maintain or protect the effective management of commercial fishing,
(b)  the costs of carrying out research into commercial fishing,
(c)  the costs of management and administration of commercial fishing,
(d)  the costs of ensuring compliance with commercial fishing regulatory controls,
(e)  the costs of consultative arrangements with commercial fishers.
(2)  For the purposes of this section, a participant in a restricted fishery means—
(a)  a person who has an endorsement on his or her commercial fishing licence that authorises the person to take fish for sale in the restricted fishery, or
(b)  the owner of a fishing business of which the endorsement is a component.
(3)  The Minister may, subject to this section, determine the contribution payable by participants in a restricted fishery under this section.
(4)  The contribution is to be such amount as the Minister considers necessary to meet the costs referred to in subsection (1).
(4A)  The contribution is not to exceed the amount prescribed by the regulations.
(4B)  The contribution is payable annually or as otherwise determined by the Minister.
(4C)  The Minister may authorise the payment of a contribution under this section by instalments.
(5)  If a contribution, or an instalment of a contribution, is unpaid after the due date for its payment, the Minister may charge interest on the overdue amount at the rate payable from time to time in respect of judgments of the Supreme Court or, if some other rate is prescribed by the regulations, that rate.
(6)  Interest may be charged for each day that has elapsed between the date on which payment is due and the date of payment.
(7)  Interest charged on an overdue contribution, or instalment of a contribution, under subsection (5) is taken to be part of the contribution.
s 115A: Ins 2006 No 18, Sch 1 [22]. Am 2009 No 114, Sch 1 [60]; 2015 No 59, Sch 1 [63]–[65].
116   Other regulations
The regulations may make provision for or with respect to—
(a)  the endorsement of commercial fishing licences and the cancellation, suspension or transfer of those endorsements, and
(b)  imposing restrictions on the quantity of fish taken in a restricted fishery or on the method or times for taking those fish, and
(c)  otherwise giving effect to this Division.
Division 4 Fish receivers
117   Fish receiver to be registered
(1)  A person who receives fish, for resale or other commercial use, from a person whom he or she knows or reasonably suspects to be a commercial fisher (or a person acting on behalf of such a commercial fisher) is guilty of an offence unless the fish receiver is registered under this Division.
Maximum penalty—In the case of a corporation, 500 penalty units or, in any other case, 100 penalty units or imprisonment for 3 months, or both.
(2)  The person is not required to be registered under this Division if—
(a)    (Repealed)
(b)  the person has received from all commercial fishers (or persons acting on their behalf) less than the minimum quantity of fish prescribed by the regulations during the period so prescribed, or
(c)  the fish are received in the person’s capacity as an employee or agent of another fish receiver, or
(d)  the fish are received for the purpose only of transporting them on behalf of the owner of the fish, or
(e)  the regulations otherwise provide.
s 117: Am 2009 No 114, Sch 1 [61].
118   Provisions relating to registration
(1)  Any person may apply to the Minister to be registered under this Division as a fish receiver.
(2)  An application is to be in the form approved by the Minister and is to be accompanied by such fee (if any) as is prescribed by the regulations.
(3)  The Minister is required to register an applicant as a fish receiver unless the Minister is authorised by the regulations to refuse the application.
(4)  The regulations may prescribe different classes of registered fish receivers.
(5)  The registration of a fish receiver—
(a)  is subject to such conditions as are prescribed by the regulations or specified in the certificate of registration, and
(b)  remains in force for the period of 1 year or such other period as is specified in the certificate of registration, and
(c)  may be renewed from time to time in accordance with the regulations, and
(d)  may be cancelled or suspended by the Minister in the circumstances authorised by the regulations.
(6)  The Minister may, at any time by notice in writing to a registered fish receiver, revoke or vary the conditions of the registration or add new conditions. This subsection does not apply to conditions prescribed by the regulations.
(7)  A registered fish receiver who contravenes any condition of the registration is guilty of an offence.
Maximum penalty—100 penalty units.
(8)  The regulations may make provision for or with respect to the registration of fish receivers.
119   Fish receiver to supply information
(1)  A fisheries officer may, by written notice to a registered fish receiver, require the fish receiver—
(a)  to give the fisheries officer, within such reasonable time as is specified in the notice, such information relating to fish received by the fish receiver as is specified in the notice, and
(b)  to verify that information by statutory declaration.
(2)  The regulations may make provision for or with respect to the information to be given by registered fish receivers.
(3)  A registered fish receiver must not, without reasonable excuse, refuse or fail to give information required by or under this section.
Maximum penalty—In the case of a corporation, 500 penalty units or, in any other case, 100 penalty units or imprisonment for 3 months, or both.
s 119: Am 2006 No 18, Sch 1 [23] [24].
120   Evidentiary provision
The fact that a person is a registered fish receiver is evidence that fish in the person’s possession were fish taken or in possession for sale.
Division 5 Fish records
121   Records to be made by commercial fishers
(1)  A commercial fisher must make such records as the regulations require in respect of fishing activities engaged in by the commercial fisher for commercial purposes.
(2)  In particular, the regulations may require a record to be made of the following—
(a)  particulars of all fishing activities engaged in by a commercial fisher for commercial purposes (including those where no fish were taken),
(b)  particulars of all fish taken during those fishing activities,
(c)  the location in which the fishing activities were carried out,
(d)  the fishing gear used in connection with the fishing activities,
(e)  any period in which the commercial fisher did not engage in any fishing activities for commercial purposes.
(3)  The record must be made in such form and manner as is prescribed by the regulations or (subject to the regulations) as is approved by the Minister.
(4)  A commercial fisher who fails to make a record as required by this section is guilty of an offence.
Maximum penalty—200 penalty units.
(5)  A commercial fisher who is required to make a record under this section must, if the regulations so require, ensure that a copy of the record is sent to the Secretary—
(a)  in a form and manner prescribed by the regulations or (subject to the regulations) approved by the Secretary, and
(b)  within such period as the regulations prescribe.
Maximum penalty—10 penalty units.
s 121: Subst 2006 No 18, Sch 1 [25]. Am 2015 No 59, Sch 1 [66].
122   Records to be made by employers of commercial fishers
(1)  A fishing employer must make such records as the regulations require in respect of fishing activities engaged in by a nominated fisher on behalf of the fishing employer.
(2)  In particular, the regulations may require a record to be made of the following—
(a)  particulars of all fishing activities engaged in by a nominated fisher on behalf of the fishing employer (including those where no fish were taken),
(b)  particulars of all fish taken during those fishing activities,
(c)  the location in which the fishing activities were carried out,
(d)  the fishing gear used in connection with the fishing activities,
(e)  any period in which the nominated fisher did not engage in any fishing activities on behalf of the fishing employer.
(3)  The record must be made in such form and manner as is prescribed by the regulations or (subject to the regulations) as is approved by the Minister.
(4)  A fishing employer who fails to make a record as required by this section is guilty of an offence.
Maximum penalty—In the case of a corporation, 500 penalty units or, in any other case, 200 penalty units.
(5)  A nominated fisher who engages in any fishing activity on behalf of a fishing employer must not fail to provide the fishing employer with such information concerning those activities as the fishing employer may reasonably require to comply with this section.
Maximum penalty—200 penalty units.
(6)  A fishing employer who is required to make a record under this section must, if the regulations so require, ensure that a copy of the record is sent to the Secretary—
(a)  in a form and manner prescribed by the regulations or (subject to the regulations) approved by the Secretary, and
(b)  within such period as the regulations prescribe.
Maximum penalty—10 penalty units.
(7)  In this section—
fishing employer means a shareholder in a share management fishery, an owner of a fishing business, or any other person, who nominates a commercial fisher to take fish in a fishery on behalf of the shareholder, owner or other person.
nominated fisher of a fishing employer means a commercial fisher who is for the time being nominated by the fishing employer under this Act or the regulations to take fish in a fishery on behalf of the fishing employer.
s 122: Subst 2006 No 18, Sch 1 [25]. Am 2015 No 59, Sch 1 [67].
122A   Records to be made by fish receivers
(1)  A registered fish receiver must make such records as the regulations require relating to fish received by the fish receiver.
(2)  The record must be made in such form and manner as are prescribed by the regulations or (subject to the regulations) as are approved by the Minister.
(3)  A registered fish receiver who fails to make a record as required by this section is guilty of an offence.
Maximum penalty—In the case of a corporation, 500 penalty units or, in any other case, 200 penalty units.
(4)  A registered fish receiver who is required to make a record under this section must, if the regulations so require, ensure that a copy of the record is sent to the Secretary—
(a)  in a form and manner prescribed by the regulations or (subject to the regulations) approved by the Secretary, and
(b)  within such period as the regulations prescribe.
Maximum penalty—10 penalty units.
s 122A: Ins 2006 No 18, Sch 1 [25]. Am 2015 No 59, Sch 1 [68].
123   Records to be made by sellers
(1)  A person who sells any fish must make and deliver to the purchaser, on or before the sale, a record concerning the sale by the person of the fish in accordance with the regulations.
Maximum penalty—
(a)  in the case of an individual—
(i)  200 penalty units for a first offence, or
(ii)  400 penalty units for a second or subsequent offence, or
(b)  in the case of a corporation—
(i)  1,000 penalty units for a first offence, or
(ii)  2,000 penalty units for a second or subsequent offence.
(2)  A person who sells any fish (the seller) must—
(a)  make, before the sale, or
(b)  obtain, on or before the sale, from any other person from whom the person acquired the fish,
a record concerning the seller’s acquisition of the fish in accordance with the regulations.
Maximum penalty—
(a)  in the case of an individual—
(i)  200 penalty units for a first offence, or
(ii)  400 penalty units for a second or subsequent offence, or
(b)  in the case of a corporation—
(i)  1,000 penalty units for a first offence, or
(ii)  2,000 penalty units for a second or subsequent offence.
(3)  A person who is required to make or obtain a record under this section must—
(a)  retain a copy of the record for not less than 5 years after the fish are sold by the person, and
(b)  during that 5-year period, produce the copy of the record when requested to do so by a fisheries officer.
Maximum penalty—
(a)  in the case of an individual—
(i)  200 penalty units for a first offence, or
(ii)  400 penalty units for a second or subsequent offence, or
(b)  in the case of a corporation—
(i)  1,000 penalty units for a first offence, or
(ii)  2,000 penalty units for a second or subsequent offence.
(4)  An offence under this section applies whether or not the fish were sold to a purchaser within the State.
(5)  This section does not apply in respect of oysters.
(6)  The regulations may provide that this section does not apply in respect of the sale of fish—
(a)  if the fish are sold in circumstances specified in the regulations, or
(b)  if the quantity of fish sold does not exceed a quantity specified by the regulations in respect of the fish or class of fish concerned, or
(c)  in any other circumstances prescribed by the regulations.
(7)  A record required to be made under this section is to be made in such form and manner as is prescribed by the regulations or (subject to the regulations) approved by the Minister.
(8)  A requirement to deliver, obtain or retain a record under this section is satisfied if the record is delivered, obtained or retained in accordance with the regulations or (subject to the regulations) the approval of the Minister.
s 123: Am 1997 No 153, Sch 5 [13]–[19]. Subst 2009 No 114, Sch 1 [62]. Am 2015 No 59, Sch 1 [69].
123A   Records of possession of fish
(1)  A person in possession of fish must produce a prescribed record concerning the possession of the fish when requested to do so by a fisheries officer if—
(a)  the person is a fishing industry participant, or
(b)  the quantity of fish in the person’s possession is equal to, or more than, a commercial quantity of fish.
Maximum penalty—
(a)  in the case of an individual—
(i)  200 penalty units for a first offence, or
(ii)  400 penalty units for a second or subsequent offence, or
(b)  in the case of a corporation—
(i)  1,000 penalty units for a first offence, or
(ii)  2,000 penalty units for a second or subsequent offence.
(2)  It is a defence to a prosecution for an offence under this section in respect of a defendant who is not a fishing industry participant if the defendant proves that the fish were in the defendant’s possession otherwise than for the purpose of sale, transportation for reward or storage for reward.
(3)  It is a defence to a prosecution for an offence under this section in respect of a defendant who is a fishing industry participant if—
(a)  the defendant was in possession of less than a commercial quantity of fish, and
(b)  the defendant proves that the fish were in the defendant’s possession otherwise than for the purpose of sale, transportation for reward or storage for reward.
(4)  An offence under this section applies whether or not the fish were taken from waters to which this Act applies.
(5)  This section does not apply—
(a)  to the possession of fish on any premises, or part of premises, occupied solely for residential purposes, or
(b)  to the possession of oysters.
(6)  The regulations may provide that this section does not apply in respect of the possession of fish—
(a)  if the fish are in possession in circumstances specified in the regulations, or
(b)  if the quantity of fish in possession does not exceed a quantity specified by the regulations in respect of the fish or class of fish concerned, or
(c)  in any other circumstances prescribed by the regulations.
(6A)  A record required to be produced under this section is to be produced in such form and manner as is prescribed by the regulations or (subject to the regulations) approved by the Minister.
(7)  In this section—
commercial quantity of fish means the quantity prescribed by the regulations as the commercial quantity for the species of fish, or class of fish, concerned.
fishing industry participant means—
(a)  the holder of a fishing authority (within the meaning of Part 9), or
(b)  a person who carries on the business of selling or processing fish or fish products.
s 123A: Ins 2009 No 114, Sch 1 [62]. Am 2015 No 59, Sch 1 [70].
124   False records
A person who makes an entry in a record, or copy, kept for the purposes of this Division knowing that the entry is false or misleading in a material particular is guilty of an offence.
Maximum penalty—200 penalty units or imprisonment for 3 months, or both.
Division 5A Fishing reports
pt 4, div 5A (ss 124A, 124B): Ins 2015 No 59, Sch 1 [71].
124A   Real time reporting
(1)  The regulations may require commercial fishers, or any specified class of commercial fishers, to report to the Secretary about any commercial fishing activities or proposed commercial fishing activities.
(2)  In particular, the regulations may require a report to be made of the following—
(a)  particulars of when and where a commercial fisher proposes to take fish,
(b)  particulars of when and where a commercial fisher proposes to land the catch and the estimated composition and amount of the catch,
(c)  particulars of when and where the commercial fisher lands the catch and the composition and amount of the landed catch.
(3)  The report must be made using the real time reporting system—
(a)  within such period as the regulations prescribe, and
(b)  in a form and manner approved by the Minister.
(4)  The regulations may provide for an alternative method of making the report in the event that the real time reporting system malfunctions or is not available for any reason.
(5)  A commercial fisher who fails to make a report as required by or under this section is guilty of an offence.
Maximum penalty—
(a)  200 penalty units or imprisonment for 3 months (or both) for a first offence, or
(b)  400 penalty units or imprisonment for 6 months (or both) for a second or subsequent offence.
(6)  In this section—
real time reporting system means a system or facility, approved by the Secretary for the purposes of this section, that enables the making of reports under this section by oral communication or electronic transmission.
pt 4, div 5A (ss 124A, 124B): Ins 2015 No 59, Sch 1 [71].
124B   False reports
A person who, in any report provided under this Division, knowingly provides any information that is false or misleading in a material particular is guilty of an offence.
Maximum penalty—200 penalty units or imprisonment for 3 months, or both.
pt 4, div 5A (ss 124A, 124B): Ins 2015 No 59, Sch 1 [71].
Division 6 Administrative reviews by Civil and Administrative Tribunal
pt 4, div 6, hdg: Subst 1997 No 77, Sch 5.14 [1]; 2013 No 95, Sch 2.62 [1].
125   Definition of “relevant authority”
In this Division, relevant authority means—
(a)  a commercial fishing licence, or
(b)  an endorsement on a commercial fishing licence, or
(c)  a fishing boat licence, or
(d)  the registration of a member of the crew of a boat, or
(e)  a fish receiver’s registration.
126   Applications to Civil and Administrative Tribunal for administrative reviews of certain decisions
(1)  A person who is dissatisfied with any of the following decisions under this Part may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision concerned—
(a)  the refusal to issue a relevant authority to the person or to renew the person’s relevant authority,
(b)  the imposition of conditions on the person’s relevant authority (otherwise than by regulation),
(c)  the suspension or cancellation of the person’s relevant authority.
(2)  For the purposes of this section, an application for the issue or renewal of a relevant authority is taken to have been refused if the authority is not issued or renewed within 60 days after the application was duly made.
s 126: Subst 1997 No 77, Sch 5.14 [2]. Am 2013 No 95, Sch 2.62 [2].
127   (Repealed)
s 127: Rep 1997 No 77, Sch 5.14 [2].
Part 4A Charter fishing management
pt 4A: Ins 1997 No 153, Sch 4 [2].
127A   Meaning of charter fishing boat
(1)  For the purposes of this Part, a boat is a charter fishing boat if—
(a)  the boat is used for recreational fishing activities under an arrangement made with or on behalf of the persons using the boat, and
(b)  the boat is used for recreational fishing activities on a commercial basis, and
(c)  the boat is used for recreational fishing activities in any waters (whether or not within the limits of the State).
(2)  A boat is used for recreational fishing activities on a commercial basis if—
(a)  a payment or other consideration is required to be made or given by or on behalf of all or any of the persons using the boat for the right to fish from the boat or for any other activity or service (such as accommodation) provided in connection with the arrangement under which the boat is used, or
(b)  the boat is made available for recreational fishing activities by a commercial organisation and all or any of the persons using the boat for the recreational fishing activities are members of that commercial organisation, or
(c)  the boat is made available for recreational fishing activities under any other arrangement of a kind specified by the regulations to be a commercial charter fishing arrangement.
(3)  In this section, a commercial organisation means a club or other organisation that provides services (whether or not for profit) and that charges a fee for membership.
s 127A: Ins 1997 No 153, Sch 4 [2]. Am 2000 No 86, Sch 7 [3]; 2009 No 114, Sch 1 [63] [64].
127B   Certain charter fishing boats to be licensed
(1)  The regulations may declare that all or any specified class of charter fishing boats are required to be licensed under this Part.
(2)  The master of a boat must not use the boat as a charter fishing boat if—
(a)  it is required by such a regulation to be licensed, and
(b)  the boat is not licensed under this Part.
Maximum penalty—100 penalty units.
(3)  The owner of a boat must not permit the boat to be used as a charter fishing boat if—
(a)  it is required by such a regulation to be licensed, and
(b)  the boat is not licensed under this Part.
Maximum penalty—100 penalty units.
(4)  The regulations may provide that a boat licensed under a law of the Commonwealth or of another State or a Territory as a charter fishing boat is taken to be licensed under this Part.
s 127B: Ins 1997 No 153, Sch 4 [2].
127C   Provisions relating to licensing of charter fishing boats
(1)  The owner of a boat (or a person authorised by the owner) may apply to the Minister for the issue of a licence for the boat under this Part.
(2)  An application is to be in the form approved by the Minister.
(3)  The Minister is required to issue a charter fishing boat licence if an application for the licence is duly made, unless the Minister is authorised by the regulations to refuse the application. Without limiting this subsection, the Minister may refuse the application because of any applicable restriction on charter fishing boats under a management plan prescribed by the regulations for the charter fishing industry.
(4)  A charter fishing boat licence—
(a)  is subject to such conditions as are prescribed by the regulations or specified in the licence, and
(b)  remains in force for such period as is specified in the licence, and
(c)  may be renewed from time to time in accordance with the regulations, and
(d)  may be cancelled or suspended by the Minister in the circumstances authorised by the regulations.
(5)  The regulations may prescribe different classes of charter fishing boat licences.
(6)  The Minister may, at any time, by notice in writing to the holder of a charter fishing boat licence, revoke or vary the conditions of the licence or add new conditions. This subsection does not apply to conditions prescribed by the regulations.
(7)  The holder of a charter fishing boat licence who contravenes any condition of the licence is guilty of an offence.
Maximum penalty—100 penalty units.
(8)  The regulations may make provision for or with respect to charter fishing boat licences. In particular, the regulations—
(a)  may make provision for or with respect to permitting, prohibiting or restricting the use of a boat as both a charter fishing boat and a commercial fishing boat licensed under Division 2 of Part 4, and
(b)  may prescribe the fee or fees payable in respect of an application for the issue of a licence or the renewal of a licence.
s 127C: Ins 1997 No 153, Sch 4 [2]. Am 2000 No 86, Sch 7 [4]; 2004 No 26, Sch 1 [37]–[39].
127D   Annual contribution to industry costs
(1)  The holder of a charter fishing boat licence must, if the regulations so require, pay to the Minister an annual contribution towards one or more of the following—
(a)  the costs of taking measures to enhance, maintain or protect charter fishing,
(b)  the costs of carrying out research into charter boat fishing,
(c)  the costs of management and administration of charter fishing boat operations,
(d)  the costs of ensuring compliance with charter fishing boat regulatory controls,
(e)  the costs of consultative arrangements with owners and operators of charter fishing boats.
(2)  The amount of the contribution is to be specified in or determined under the regulations.
(3)  The regulations may provide for payment of the annual contribution by instalments.
(4)  If a contribution, or instalment of a contribution, is unpaid after the due date for its payment, the Minister may charge interest on the overdue amount at the rate payable from time to time in respect of judgments of the Supreme Court or, if some other rate is prescribed by the regulations, that rate.
(5)  Interest may be charged for each day that has elapsed between the date on which payment is due and the date of payment.
(6)  Interest charged on an overdue annual contribution, or instalment of a contribution, under subsection (4) is taken to be part of the contribution.
(7)  The payment required under this section is taken to be a condition of every charter fishing boat licence.
s 127D: Ins 1997 No 153, Sch 4 [2]. Rep 2000 No 86, Sch 7 [5]. Ins 2006 No 18, Sch 1 [26]. Am 2009 No 114, Sch 1 [60].
127E   Charter fishing boat operators to make records of fishing activities
(1)  The master of a charter fishing boat must make such records as the regulations require in respect of the use of the boat for recreational fishing activities (regardless of whether those fishing activities are activities for which it is required to be licensed).
(2)  In particular, the regulations may require the master of a charter fishing boat to make a record of the following—
(a)  particulars of all recreational fishing activities engaged in (including those where no fish were taken),
(b)  particulars of all fish taken during the fishing activities,
(c)  the location in which the fishing activities were carried out,
(d)  the fishing gear used in connection with the fishing activities,
(e)  any period in which the charter fishing boat was not used for recreational fishing activities for which it is required to be licensed.
(3)  A record required under this section must be made in such form and manner as is prescribed by the regulations or (subject to the regulations) as is approved by the Minister.
(4)  A master of a charter fishing boat who fails to make a record as required by this section is guilty of an offence.
Maximum penalty—200 penalty units.
(5)  A master of a charter fishing boat who is required to make a record under this section must, if the regulations so require, ensure that a copy of the record is sent to the Secretary within such period as the regulations prescribe.
Maximum penalty—10 penalty units.
s 127E: Ins 1997 No 153, Sch 4 [2]. Subst 2006 No 18, Sch 1 [27].
127EA   Records of recreational fishing activities—licence holders
(1)  The holder of a charter fishing boat licence must make such records as the regulations require in respect of the use of the licensed charter fishing boat for recreational fishing activities (whether or not those activities are activities for which it is required to be licensed).
(2)  In particular, the regulations may require the licence holder to make a record of the following—
(a)  particulars of all recreational fishing activities engaged in (including those where no fish were taken),
(b)  particulars of all fish taken during the fishing activities,
(c)  the location in which the fishing activities were carried out,
(d)  the fishing gear used in connection with the fishing activities,
(e)  any period in which the charter fishing boat was not used for recreational fishing activities for which it is required to be licensed.
(3)  The record must be made in such form and manner as are prescribed by the regulations or (subject to the regulations) as are approved by the Minister.
(4)  The holder of a charter fishing boat licence who fails to make a record as required by this section is guilty of an offence.
Maximum penalty—In the case of a corporation, 500 penalty units or, in any other case, 200 penalty units.
(5)  The master of a boat that is a licensed charter fishing boat must not fail to provide the holder of the licence for the boat with such information concerning the use of the boat for recreational fishing activities as the licence holder may reasonably require to comply with this section.
Maximum penalty—200 penalty units.
(6)  The holder of a charter fishing boat licence who is required to make a record under this section must, if the regulations so require, ensure that a copy of the record is sent to the Secretary within such period as the regulations prescribe.
Maximum penalty—10 penalty units.
(7)  If the holder of a charter fishing boat licence is also master of the boat, the holder of the licence is taken to have complied with this section if the holder complies with his or her obligations under section 127E.
s 127EA: Ins 2006 No 18, Sch 1 [27].
127EB   False records
A person who makes an entry in a record, or copy, for the purposes of this Part knowing that the entry is false or misleading in a material particular is guilty of an offence.
Maximum penalty—200 penalty units or imprisonment for 3 months, or both.
s 127EB: Ins 2006 No 18, Sch 1 [27].
127F   Appeal rights
Division 6 of Part 4 applies to a charter fishing boat licence as if the licence were a relevant authority for the purposes of that Division.
s 127F: Ins 1997 No 153, Sch 4 [2].
Part 5 Co-operation with Commonwealth and other States in fisheries management
Division 1 Preliminary
128   Definitions
In this Part—
arrangement means an arrangement made by the State with the Commonwealth under Division 3, whether or not it is also made with another State or other States and, if the arrangement is varied, means the arrangement as varied.
coastal waters, in relation to the State, has the same meaning as it has in the Commonwealth Act.
Commonwealth Minister means the Minister for the time being administering the Commonwealth Act and any other Minister performing and exercising functions and powers under section 60 of the Commonwealth Act.
fishery, in relation to an arrangement under this Part, means a class of fishing activities identified in the arrangement as a fishery to which the arrangement applies.
Joint Authority means a Joint Authority established under section 61 of 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 Division 3 under which the fishery is to be under the management of a Joint Authority.
s 128: Am 2000 No 86, Sch 2 [4]; 2009 No 114, Sch 1 [65]; 2019 No 14, Sch 2.8[1].
Division 2 Joint Authorities
129   Powers and functions of Minister
(1)  The Minister may exercise and perform any power or function conferred on the Minister by Part 5 of the Commonwealth Act, including any power or function of the Minister as a member of a Joint Authority.
(2)  If, in the exercise of the power conferred by Part 5 of the Commonwealth Act, the Minister appoints a deputy, the deputy may exercise and perform the powers and functions conferred by that Act on the deputy of a member of a Joint Authority other than the Commonwealth Minister.
130   Judicial notice
All courts and persons acting judicially are to 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.
131   Functions of Joint Authority
A Joint Authority has such functions in relation to a fishery in respect of which an arrangement is in force under Division 3 as are conferred on it by the law in accordance with which, under the arrangement, the fishery is to be managed.
132   Delegation
(1)  A Joint Authority may, by instrument in writing, either generally or as otherwise provided by the instrument, delegate to a person 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 is, for the purposes of this Act, 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, or
(b)  in the service of an authority of, or
(c)  under the law of,
the Commonwealth, another State or a Territory of the Commonwealth.
(4)  A delegate of a Joint Authority is, in the exercise of the 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), and
(b)  does not prevent the exercise of the power by the Joint Authority, and
(c)  continues in force despite any change in the membership of the Joint Authority.
(6)  A certificate signed by a member of a Joint Authority stating any matters 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) is, unless the contrary is established, taken to be such a certificate and to have been duly given.
(8)  Nothing in this Part 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.
133   Procedure of Joint Authorities
(1)  The provisions of sections 66–68 (inclusive) of the Commonwealth Act apply to and in relation to the performance by a Joint Authority of its functions under this Act.
(2)  A written record of a decision of a Joint Authority, if signed by the Commonwealth Minister, or that Minister’s deputy, who took part in or made the decision is evidence that the decision, as recorded, was duly made.
(3)  In proceedings in any court, an instrument or other document signed, on behalf of a Joint Authority, by a member of the Joint Authority is taken to have been duly executed by the Joint Authority and, unless the contrary is proved, is taken to be in accordance with a decision of the Joint Authority.
134   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 report is prepared.
Division 3 Arrangements with respect to the management of particular fisheries
135   Arrangement for management of certain fisheries
(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 varied or terminated as provided by the Commonwealth Act.
(3)  After an arrangement has been made or varied, but before the arrangement or variation takes effect, licences, endorsements and other instruments may be granted, issued, renewed, made or executed, and regulations may be made, for the purposes of the operation of this Act as affected by the arrangement or variation, as if the arrangement or variation had taken effect, but such a licence, endorsement, instrument or regulation does not have effect before the arrangement or variation takes effect.
(3A)  On the variation of an arrangement, licences, endorsements and other instruments granted, issued, renewed, made or executed, and regulations made, for the purpose of the operation of this Act as affected by the variation cease to have effect to the extent (if any) that they are inconsistent with the arrangement as varied.
(4)  On the termination of an arrangement, licences, endorsements and other instruments granted, issued, renewed, made or executed, and regulations made, for the purpose of the operation of this Act as affected by the arrangement cease to have effect.
(5)  After action for the purpose of the termination of an arrangement has been taken, but before the termination takes effect, licences, endorsements and other instruments may be granted, issued, renewed, made or executed, and regulations may be made, for the purposes of the operation of this Act as affected by the termination of the arrangement, as if the arrangement had been terminated, but such a licence, endorsement, instrument or regulation does not have effect before the termination of the arrangement takes effect.
s 135: Am 2009 No 114, Sch 1 [66] [67].
136   Application of this Act to fisheries in accordance with arrangements
If there is in force an arrangement that provides that a particular fishery, or a part of 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, or the part of the fishery, except that those provisions do not apply to or in relation to that fishery, or that part of the fishery, in respect of—
(a)  foreign boats or operations on or from foreign boats or persons on foreign boats, or
(b)  matters that occurred before the arrangement took effect.
s 136: Am 2009 No 114, Sch 1 [68]–[70].
137   Functions of Joint Authority
(1)  If, in respect of a fishery, there is in force an arrangement under which a Joint Authority has the management of the fishery and the fishery, or part of the fishery, is to be managed in accordance with the law of the State, the Joint Authority has the functions of keeping constantly under consideration—
(a)  the condition of the fishery, and
(b)  formulating policies and plans for the good management of the fishery, and
(c)  for the purposes of the management of the fishery, exercising the powers conferred on it by this Act and 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 has the following objectives in the performance of its functions under subsection (1)—
(a)  ensuring, through proper conservation, preservation and fisheries management measures, that the living resources of the waters to which this Act applies are not endangered or overexploited, and
(b)  achieving the optimum utilisation and equitable distribution of those resources.
s 137: Am 2009 No 114, Sch 1 [71].
138   Joint Authority to exercise certain powers instead of Minister
(1)  Subject to this section, a licence or endorsement granted, issued, renewed or made 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)  In respect of a Joint Authority fishery that is to be managed in accordance with the law of the State, or part of which is to be managed in accordance with the law of the State, the powers conferred on the Minister or the Minister’s delegate by or under this Act (this Part excepted) or the regulations (including powers with respect to the issue, renewal, cancellation and suspension of licences) are exercisable by the Joint Authority to the exclusion of the Minister and the Minister’s delegate.
(3)  A licence granted under this Act by a Joint Authority is required to contain conditions and limitations that it does not apply in relation to a Joint Authority fishery, or Joint Authority fisheries, not managed by that Joint Authority.
(4)  A Joint Authority may endorse a licence under this Act (including such a licence granted by that Joint Authority or another Joint Authority) so as to extend the operation of the licence to matters to which the licensing powers of the Joint Authority under this Act are applicable and, if such an endorsement is made—
(a)  the endorsement ceases to have effect if the licence ceases to have effect, and
(b)  the Joint Authority may suspend or cancel the endorsement as if it were a licence granted by the Joint Authority.
(5)  Subject to section 141(1)(b) and (c), if, at a time a fishery becomes a Joint Authority fishery, a regulation, notification or order under this Act would, but for this subsection, apply to the fishery, the regulation, notification or order, as the case may be, ceases so to apply.
(6)  This section does not empower a Joint Authority to grant, or to take other action in respect of, a licence in respect of a foreign boat or to endorse such a licence.
s 138: Am 2009 No 114, Sch 1 [72].
139   Application of certain provisions relating to offences
For the purposes of the prosecution of a person for an offence under this Act 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, a reference to an authority of a particular kind is to be read as a reference to such an authority granted, issued or renewed by the relevant Joint Authority.
140   Presumption relating to certain statements
A statement in an arrangement 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,
is, for the purposes of this Act, to be conclusively presumed to be correct.
141   Regulations
(1)  If a Joint Authority is to manage a fishery, or a part of 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 or the part of the fishery, or
(b)  make a regulation applying to the fishery or the part of the fishery a regulation made otherwise than pursuant to this section, or
(c)  amend a regulation made otherwise than pursuant to this section so that it is expressed to apply to the fishery or the part of the fishery, whether or not it also applies to any other fishery.
(2)  The power conferred 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).
(3)  If a regulation affecting a fishery that is to be managed by a Joint Authority is expressed to be made under this section, it is to be conclusively presumed that it was made for the purpose of giving effect to a decision of the Joint Authority.
s 141: Am 2009 No 114, Sch 1 [73] [74].
Division 4 State agreements
pt 5, div 4 (ss 141A, 141B): Ins 1997 No 153, Sch 5 [20].
141A   Power to enter into agreements
(1)  The Minister may enter into an agreement with a Minister administering an Act of another State relating to fisheries, or with an authority of another State concerned in the administration of that Act, for the purpose of co-operation in carrying out the objects of this Act (whether in this State or in that other State).
(2)  In this section—
State includes a Territory.
pt 5, div 4 (ss 141A, 141B): Ins 1997 No 153, Sch 5 [20].
141B   Functions under agreements
(1)  For the purposes of this Division, the Minister may exercise any function conferred on the Minister under the other Divisions of this Part as if the Commonwealth Act applied under this Division.
(2)  The other Divisions of this Part apply in respect of agreements under this Division, with such modifications as are prescribed by the regulations or as are necessary.
pt 5, div 4 (ss 141A, 141B): Ins 1997 No 153, Sch 5 [20].
Part 6 Aquaculture management
Division 1 Preliminary
142   Definitions
In this Act—
aquaculture means—
(a)  cultivating fish or marine vegetation for the purposes of harvesting the fish or marine vegetation or their progeny with a view to sale, or
(b)  keeping fish or marine vegetation in a confined area for a commercial purpose (such as a fish-out pond),
but does not include—
(c)  keeping anything in a pet shop for sale or in an aquarium for exhibition (including an aquarium operated commercially), or
(d)  anything done for the purposes of maintaining a collection of fish or marine vegetation otherwise than for a commercial purpose, or
(e)  any other thing prescribed by the regulations.
development plan has the meaning given by section 143.
s 142: Am 2009 No 114, Sch 1 [75].
143   Aquaculture industry development plans
(1)  The Minister may, in accordance with this section, determine plans for the development of the commercial aquaculture industry (development plans).
(2)  A development plan may relate to any aspect of the commercial aquaculture industry, including aquaculture of a particular species of fish or marine vegetation or aquaculture in a particular area.
(3)  The Minister is to have regard to any relevant development plan in the exercise of the Minister’s functions under this Part.
(4)  A development plan may contain the following—
(a)  the objectives of the Minister in the administration of this Part or any provision of this Part,
(b)  the description of areas suitable for aquaculture and the type of aquaculture for which any such area is suitable,
(c)  suitable methods for undertaking aquaculture or any type of aquaculture,
(d)  suitable species of fish or marine vegetation for aquaculture in a particular area,
(e)  any other matter concerning aquaculture that the Minister considers appropriate.
(5)  A development plan must—
(a)  include performance indicators to monitor whether the objectives set out in the plan and ecologically sustainable development are being attained, and
(b)  specify at what point a review of the development plan is required when a performance indicator is not being satisfied.
(6)  The Minister may amend or replace a development plan.
(7)  A development plan (including any amendment or new plan) is to be published in the Gazette.
(8)  Before the Minister determines a development plan (including any amendment or new plan), the Minister is required to give the commercial aquaculture industry and the public an opportunity to make submissions on the proposed plan (or proposed amendment or new plan) and to take any submission that is duly made into account.
(9)  The exercise of a function under this Part is not invalid merely because it is inconsistent with a development plan.
Division 2 Aquaculture permits
144   Aquaculture prohibited except in accordance with a permit
(1)  A person must not undertake aquaculture except under the authority of an aquaculture permit.
Maximum penalty—In the case of a corporation, 200 penalty units or, in any other case, 100 penalty units.
(2)  Aquaculture permits may be of such different classes as are prescribed by the regulations.
(3)  This section applies to aquaculture undertaken in a leased area or in any other area.
(4)  However, this section does not apply—
(a)  to aquaculture undertaken by the Minister under a development plan or under Part 8, or otherwise for the purposes of the administration of this Act, or
(b)  to persons of a class excluded by the regulations from the operation of this section.
s 144: Am 2009 No 114, Sch 1 [76].
145   Applications for permits
(1)  Any person may apply to the Minister for an aquaculture permit.
(2)  An application for a permit must—
(a)  be in a form approved by the Minister, and
(b)  be accompanied by a commercial farm development plan describing the manner in which the applicant proposes to undertake the aquaculture, and
(c)  be accompanied by the fee prescribed by the regulations.
(3)  If different classes of aquaculture permits have been prescribed, the application must specify the class or classes of permits for which application is made.
(4)  The Minister may require an applicant to provide such further information in relation to the application as the Minister thinks necessary and may decline to deal further with the application if such a requirement is not complied with.
146   Issue or refusal of permit
(1)  The Minister may issue or refuse to issue an aquaculture permit to an applicant for the permit.
(1A)  The issue of an aquaculture permit in relation to integrated development within the meaning of section 4.46 of the Environmental Planning and Assessment Act 1979 is subject to Division 4.8 of that Act.
(2)  The Minister may only refuse to issue the permit if—
(a)  the application was not duly made, or
(b)  in the case of an individual—the applicant is disqualified under section 161 from holding an aquaculture permit, or
(c)  in the case of a corporation—the applicant or any of the directors or other persons concerned in the management of the corporation is disqualified under section 161 from holding an aquaculture permit, or
(d)  the Minister is not satisfied that the applicant has prepared an appropriate commercial farm development plan, or
(e)  the Minister is not satisfied that the applicant has the expertise necessary to undertake the aquaculture successfully, or
(f)  the area where the applicant proposes to undertake aquaculture is not available or suitable for that purpose, or
(g)  the application is inconsistent with any relevant aquaculture industry development plan, or
(h)  the Minister is otherwise authorised or required by the regulations, or by this or any other Act, to refuse to issue the permit.
(3)  Before refusing to issue a permit under this section, the Minister is required to give the applicant an opportunity to be heard on the matter or to make written submissions on the matter.
(4)  An applicant may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a refusal of the Minister to issue a permit under this section.
s 146: Am 1997 No 77, Sch 5.14 [3]; 1997 No 152, Sch 4.10 [1]; 1998 No 54, Sch 2.17 [1]; 2013 No 95, Sch 2.62 [3]; 2019 No 14, Sch 2.8[2].
147   Permit to specify area and type of aquaculture
(1)  An aquaculture permit must specify the area or areas within which the holder is authorised to undertake aquaculture and the type of aquaculture authorised to be undertaken within any such area.
(2)  The aquaculture permit may specify separate leased or other areas, whether or not they are adjoining.
(3)  The aquaculture permit may specify the type of aquaculture authorised by the permit by specifying all or any of the following—
(a)  the species of fish or marine vegetation that may be cultivated or kept (including any hybrid or polyploid form of species),
(b)  the things that may be cultivated from fish or marine vegetation kept under the permit,
(c)  the part of the life cycle of a species during which the species may be cultivated or kept.
s 147: Am 2009 No 114, Sch 1 [77] [78].
148   Variation of permits
(1)  The Minister may, at any time by notice in writing to the holder of an aquaculture permit—
(a)  vary the area or areas within which the holder is authorised to undertake aquaculture, or
(b)  vary the type of aquaculture that may be undertaken within any such area.
This subsection applies whether or not the variation has been requested by the permit holder.
(1A)  A request by the holder of an aquaculture permit for a variation referred to in subsection (1) must be accompanied by the fee prescribed by the regulations.
(2)  The Minister must not, at the request of a permit holder, vary the area or areas within which the holder is authorised to undertake aquaculture if the Minister would have refused under section 146(2) an application for an aquaculture permit in relation to the area or areas (as proposed to be varied).
Note—
This section will enable a single permit to be issued in respect of all the leased areas held by the permit holder.
s 148: Am 2009 No 114, Sch 1 [79]; 2014 No 33, Sch 1.7.
149   Authority to take fish
(1)  The holder of an aquaculture permit is not required to hold a commercial fishing licence or any other licence or permit under this Act for the purpose of taking fish or marine vegetation cultivated or kept under the authority of the aquaculture permit.
(2)  The holder of the aquaculture permit may use any fishing gear for the purpose of taking any fish or marine vegetation cultivated or kept under the authority of the aquaculture permit, whether or not the fishing gear may lawfully be used for that purpose.
(3)  This section is subject to the other provisions of this Part and the conditions of the aquaculture permit.
s 149: Am 2009 No 114, Sch 1 [80].
150   Inconsistency with lease
An aquaculture lease or a provision of an aquaculture lease does not authorise anything to be done which is contrary to this Division or the terms or conditions of an aquaculture permit relating to the leased area.
151   Duration of permits
(1)  An aquaculture permit remains in force, unless otherwise provided in the permit, until it is cancelled or replaced with another permit under this Part.
(2)  The permit does not have effect while it is suspended under this Part.
152   Conditions of permits
(1)  An aquaculture permit is subject to—
(a)  such conditions as are prescribed by the regulations, and
(b)  such conditions as are specified in the permit or as the Minister notifies to the permit holder while the permit is in force.
(2)  Without limiting subsection (1), conditions may include—
(a)  conditions regulating the type of aquaculture that may be undertaken under the authority of the permit, and
(b)  conditions relating to the erection of structures on the area to which the permit relates, and
(c)  conditions relating to the escape of fish, effluent or any other thing from the area to which the permit relates, and
(d)  conditions requiring the permit holder to enter into a bond or guarantee or other financial arrangement for the due performance of the holder’s obligations under this Act (including for the destruction of noxious fish and the restoration of, or removal of material from, the area in which the aquaculture has been undertaken), and
(e)  conditions requiring the permit holder to maintain public liability insurance and to indemnify the State and its agents in connection with the undertaking of the aquaculture, and
(f)  conditions relating to the review of the commercial farm development plan of the permit holder, and
(g)  conditions requiring the destruction or control of pests (within the meaning of the Biosecurity Act 2015).
(3)  The holder of an aquaculture permit is guilty of an offence if, without lawful excuse, a condition of the permit is contravened.
Maximum penalty—In the case of a corporation, 100 penalty units or, in any other case, 50 penalty units.
(4)  The Minister may, at any time by notice in writing to the holder of the permit, revoke or vary the conditions of an aquaculture permit (other than conditions prescribed by the regulations).
(5)  The regulations may make provision for or with respect to bonds, guarantees and other financial arrangements entered into under a condition of an aquaculture permit.
s 152: Am 2009 No 114, Sch 1 [81]; 2015 No 24, Sch 8.17 [1].
153   Holder of permit to provide information to the Minister
(1)  The Minister may, by notice in writing served on the holder of an aquaculture permit, require the holder to give to the Minister any specified written information in connection with aquaculture under the permit.
(2)  The regulations and the conditions of an aquaculture permit may also require the holder of an aquaculture permit to give the Minister periodic or other information in connection with aquaculture under the permit.
(3)  It is a condition of every aquaculture permit that the holder complies with a requirement in a notice or regulation under this section.
154   Register of permits
(1)  The Minister is required to keep a register of aquaculture permits for the purposes of this Part.
(2)  The Minister is required to enter in the register, in relation to each permit—
(a)  the name and business address of the permit holder, and
(b)  the date on which the permit was issued, and
(c)  the class or classes (if any) of the permit, and
(d)  the address or description of the area to which the permit applies, and
(e)  the type of aquaculture authorised by the permit within any such area, and
(f)  the conditions of the permit imposed by the Minister, and
(g)  particulars of any suspension or cancellation of the permit, and
(h)  any other matters prescribed by the regulations or determined by the Minister.
(3)  Particulars may be entered in the register by including in the register a copy of an aquaculture permit and any document that imposes conditions on the permit, or revokes or varies conditions of the permit, after the permit is issued.
(4)  The register may be kept wholly or partly by means of a computer.
(5)  Any person who attends the place where the register is kept during ordinary business hours is entitled to inspect the register.
(6)  If the register is kept wholly or partly by means of a computer, this section is taken to be complied with by providing a computer print-out or providing access to a computer terminal that can be used to view the register.
s 154: Am 2009 No 114, Sch 1 [82].
155   Change in particulars to be notified
The holder of an aquaculture permit must, within 28 days after there is a change in the business address of the permit holder, any director of the body corporate (if the holder is a body corporate) or any other matter prescribed by the regulations, give the Minister particulars in writing of that change.
Maximum penalty—20 penalty units.
156   Annual contribution to cost of administration or research or to other industry costs
(1)  A permit holder must, if the regulations so require, pay to the Minister an annual contribution towards any of the following costs—
(a)  the cost of administration of this Part, being a cost that is identified in the regulations as a cost directly attributable to industry,
(b)  the cost of monitoring the quality of the environment in which aquaculture is undertaken and of testing the quality of the fish or marine vegetation cultivated or kept,
(c)  the cost of carrying out research into aquaculture,
(d)  any other costs relating to the aquaculture industry.
(2)  The amount of the contribution is to be specified in or determined by the regulations. The regulations may provide for the contribution to be based on the size of the area available for aquaculture or on any other basis and for the payment of the contribution by instalments or otherwise.
(3)  The payment required by this section is taken to be a condition of every aquaculture permit.
(4)  A contribution payable under this section is in addition to any rental payable by the permit holder for an aquaculture lease.
(5)  A contribution is payable under this section even if the aquaculture permit is suspended.
(6)  The Minister is to appoint a committee of persons to advise the Minister about the level of services provided to the aquaculture industry for the purposes referred to in subsection (1)(a) and about the amount of contributions for the costs of administration directly attributable to the aquaculture industry. The Minister is to ensure that a majority of the members of such a committee are relevant representatives of the aquaculture industry.
s 156: Am 2009 No 114, Sch 1 [80].
157   Annual contributions to be held in trust accounts
(1)  The Minister is to establish and operate trust accounts for annual contributions made by permit holders (except those referred to in section 156(1)(a)).
(2)  The Minister may establish separate trust accounts for the different purposes for which the contributions are made.
(3)  Money in a trust account is, subject to the regulations, to be used only for the purpose for which the relevant contributions were made.
(4)  The Minister is to appoint a committee of persons to advise the Minister on the amount of contributions payable into any trust account and the expenditure of money in the trust account.
(5)  The Minister must not approve of any expenditure from a trust account without the concurrence of the committee appointed in respect of the account.
(6)  A single committee may be appointed in respect of 2 or more trust accounts.
(7)  The Minister is to ensure that a majority of the members of each committee are representatives of the aquaculture industry.
(8)  A committee is not subject to the control and direction of the Minister. However, the Minister may require a committee to reconsider any decision made by it.
(9)  The Minister may remove any member or all members of a committee from office.
(10)  The regulations may make provision for or with respect to—
(a)  the establishment and operation of trust accounts under this section, and
(b)  the establishment, membership and procedure of committees under this section.
157A   Minister may appoint advisory council as committee
(1)  The Minister may, if the Minister considers it appropriate to do so, appoint any advisory council established under section 229 for the aquaculture sector of the fishing industry as either or both of the following—
(a)  the committee required to be appointed under section 156(6),
(b)  the committee required to be appointed under section 157(4).
(2)  An advisory council may be so appointed only if its membership meets the requirement of section 156(6) or 157(7), as the case may be, with respect to the majority of members of the committee.
s 157A: Ins 2001 No 56, Sch 1.5 [5].
158   Overdue contribution
(1)  If an annual contribution by a permit holder is unpaid after the due date for its payment, the Minister may charge interest on the overdue amount at the rate payable from time to time in respect of judgments of the Supreme Court or, if some other rate is prescribed by the regulations, at that rate.
(2)  Interest may be charged for each day that has elapsed between the date on which payment is due and the date of payment.
(3)  Interest charged on an overdue annual contribution under this section is taken to be part of the contribution.
s 158: Subst 2004 No 26, Sch 1 [40].
159   Power to cancel or suspend a permit without a hearing
The Minister may cancel or suspend an aquaculture permit if the holder of the permit—
(a)  dies or otherwise ceases to exist, or
(b)  asks the Minister to cancel or suspend the permit.
160   Power to cancel or suspend a permit after a hearing
(1)  The Minister may, by notice in writing to the holder of an aquaculture permit, cancel or suspend the permit if—
(a)  the application for the permit was false or misleading in a material particular, or
(b)  the permit holder has contravened this Part or the regulations under this Part, or
(c)  the permit holder has contravened Division 6 of Part 7 (Noxious fish) in the area to which the permit relates, or
(d)  the permit holder has contravened a condition of the permit, or
(e)  the permit holder has been convicted of stealing fish or marine vegetation, or
(f)  the permit holder is not undertaking aquaculture in accordance with the holder’s current commercial farm development plan, or
(g)  the area to which the permit relates has been varied since the issue of the permit and the Minister is satisfied that an application for an aquaculture permit would have been refused under section 146(2) if made in relation to the area (as varied), or
(h)  in the case of a permit for an area subject to an aquaculture lease—the area is not being used for the purposes for which the lease was granted, or
(i)  in the case of a permit for an area subject to an aquaculture lease—the area is being so mismanaged that the production of fish or marine vegetation in that area or any surrounding area has been prejudicially affected or that the suitability of that area or any surrounding area for aquaculture is threatened, or
(j)  the Minister is otherwise authorised by the regulations to cancel the permit.
(2)  Before cancelling or suspending a permit under this section, the Minister is required to give the permit holder an opportunity to be heard on the matter or to make written submissions on the matter.
(3)  The Minister may at any time, by notice in writing to the holder of the permit, revoke a suspension under this section.
(4)  Nothing in this section affects any powers of the Minister to cancel an aquaculture lease.
(5)  A permit holder may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the cancellation or suspension of the holder’s permit under this section.
s 160: Am 1997 No 77, Sch 5.14 [4]; 2013 No 95, Sch 2.62 [4].
161   Power to declare person to be a disqualified person for the purposes of this Part
(1)  If an aquaculture permit issued to a person who is not a corporation is cancelled otherwise than at the request of the permit holder or is suspended, the Minister may, by notice in writing, declare the person to be a disqualified person for the purposes of this Part.
(2)  If an aquaculture permit issued to a corporation is cancelled otherwise than at the request of the permit holder or is suspended, the Minister may, by notice in writing, also declare the corporation or any director or other person concerned in the management of the corporation to be a disqualified person for the purposes of this Part.
(3)  A notice under this section may declare a person to be a permanently disqualified person or to be a disqualified person for a specified period or until the happening of a specified contingency.
(4)  The Minister may, either on the application of the person concerned or on the Minister’s own initiative, vary or revoke a declaration under this section.
(5)  A notice under this section takes effect when it is served on the person to whom it relates.
(6)  Before making a declaration under this section, the Minister is required to give the person concerned an opportunity to be heard on the matter or to make written submissions on the matter.
(7)  The person concerned may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 for a review of a declaration under this section.
s 161: Am 1997 No 77, Sch 5.14 [5]; 2013 No 95, Sch 2.62 [5].
162   Permit area to be maintained in tidy condition
(1)  It is a condition of an aquaculture permit that the area to which the permit applies is, if it is subject to an aquaculture lease, to be maintained in a tidy condition.
(2)  The Minister may, by notice in writing served on the holder of such a permit, require the holder, within the period specified in the notice—
(a)  to carry out such work (including the removal of posts or any other thing from the area concerned) as the Minister considers to be necessary to achieve compliance with the condition referred to in subsection (1), or
(b)  to remove from land (other than the area concerned) anything that has been left by the holder on that land or that has come from the area and become deposited on that land.
(2A)  The Minister may, either on the application of the permit holder concerned or on the Minister’s own initiative, vary or revoke a notice under subsection (2) by serving the variation or revocation, in writing, on the permit holder concerned.
(3)  A permit holder who fails to comply with a notice under this section is taken to have contravened a condition of the permit.
(4)  If a notice under this section is not complied with, the Minister or an agent of the Minister may—
(a)  enter the area concerned and, with the owner’s consent, the land concerned, and
(b)  carry out such work as is necessary to achieve compliance with the requirements of the notice.
(5)  The Minister may sell or otherwise dispose of anything removed from the area concerned or the land concerned in accordance with subsection (4).
(6)  The proceeds of such a sale are to be applied towards the costs and expenses of—
(a)  the sale, and
(b)  the disposal of anything removed but not sold, and
(c)  the carrying out of the work.
If the proceeds of sale (and of any forfeited bond or other security) are insufficient to enable those costs and expenses to be recouped, the balance can be recovered as a debt by the Minister by proceedings brought in a court of competent jurisdiction.
(7)  Compensation is not payable to a permit holder in respect of anything done under this section.
s 162: Am 2017 No 22, Sch 1.8 [1] [2].
Division 3 Leases of public water land for aquaculture
163   Grant of aquaculture lease
(1)  Subject to this Part, the Minister may, on application or by auction, public tender or ballot, lease an area of public water land for use for aquaculture.
(2)  A lease of an area may be of the whole area or may be limited to a stratum of the area.
(3)  A lease must specify the type of aquaculture authorised to be undertaken within the leased area. This subsection does not authorise the use of a lease without an aquaculture permit.
(4)  The regulations may prescribe or provide for the form of an aquaculture lease granted or renewed under this Part and may provide in the form for the inclusion of such additional covenants and conditions as the Minister may determine.
(5)  The term of any lease granted under this section must not exceed 15 years.
(6)  The Minister may lease land under this section by auction, public tender or ballot even though an application has been made for a lease of the land.
(7)  The Minister must not grant a lease on an application unless satisfied that—
(a)  the land to which the application relates is available for lease, and
(b)  the application is consistent with any relevant development plan.
(7A)  Before granting a lease on an application, the Minister must—
(a)  cause to be published in the Gazette and on the website of the Department a notice of receipt of the application, specifying in the notice that written objections to the granting of the lease may be lodged with the Secretary before the expiration of a period specified in the notice, and
(b)  consider any objections to the granting of the lease that are lodged within the period specified in the notice for the making of written objections.
(7B)  The Minister is not required to comply with subsection (7A) if—
(a)  the area to which the application relates is the subject of a development plan and the type of aquaculture proposed is a type that the development plan provides is suitable in that area, or
(b)  the person to whom the lease is to be granted has obtained a development consent under Part 4 of the Environmental Planning and Assessment Act 1979, or approval under Part 3A or Division 5.2 of that Act, to carry out development on the proposed leased area for the purposes of the aquaculture concerned.
(8)  The regulations may make provision for or with respect to applications for aquaculture leases or to auctions, public tenders and ballots for aquaculture leases.
s 163: Am 2009 No 114, Sch 1 [83] [84]; 2011 No 22, Sch 2.6 [1]; 2012 No 42, Sch 1.11 [1]; 2019 No 14, Sch 2.8[3].
164   Rights conferred by lease
(1)  An aquaculture lease vests in the lessee, the lessee’s executors, administrators, and assigns—
(a)  the exclusive right during the currency of the lease to undertake the type of aquaculture specified in the lease, subject to the provisions of or made under this Act and the provisions of the lease, and
(b)  the ownership of all fish or marine vegetation specified in the lease that are within the leased area.
(2)  An aquaculture lease does not confer the right of exclusive possession of the leased area.
(3)  An aquaculture lease is subject to the public right of fishing and to any right recognised by the regulations, except as provided by subsection (1) and the other provisions of or made under this Act.
(4)  Nothing in this section authorises a person to interfere with or damage anything on the leased area.
s 164: Am 2009 No 114, Sch 1 [85].
165   Lease rentals
(1)  The Minister is required to determine the rental of an aquaculture lease granted or renewed under this Division on the basis of the area of the lease.
(2)  The Minister may redetermine the rental of an aquaculture lease at such periods, being not less than 1 year, as the Minister thinks fit.
(3)  The amount paid in connection with an auction or a public tender for an aquaculture lease does not constitute the rental payable for the lease.
(4)  The regulations may make provisions for or with respect to the rental for aquaculture leases.
(5)  In particular, the regulations may prescribe a minimum rental for an aquaculture lease, either in respect of leases generally or leases of a particular class.
166   Overdue rental
(1)  If the rental of an aquaculture lease is unpaid after the date on which payment was due, the Minister may charge interest on the overdue amount at the rate payable from time to time in respect of judgments of the Supreme Court or, if some other rate is prescribed by the regulations, at that rate.
(2)  Interest may be charged for each day that has elapsed between the date on which payment is due and the date of payment.
(3)  Interest charged on the overdue rental of an aquaculture lease under this section is taken to be part of the rental.
s 166: Subst 2004 No 26, Sch 1 [41]. Am 2009 No 114, Sch 1 [86].
167   Renewal of lease
(1)  The Minister may, on application by the lessee, renew an aquaculture lease for a term not exceeding 15 years.
(2)  The Minister may renew the lease if satisfied the area should continue to be available for aquaculture.
(3)  However, a lessee is entitled to the renewal of the lease if it is the first renewal of the lease (under this Act or its predecessor) after the grant of the lease.
(4)  Subject to this Part, the covenants and conditions on which a renewal of an aquaculture lease may be granted under this section are the same as the covenants and conditions on which the Minister could, at the time of the renewal, grant such a lease.
(5)  The Minister is to notify a lessee, at least 90 days before the lease is due to expire, of the date of expiry. The Minister may accept an application for the renewal of a lease that is made after the date of expiry.
(6)  If an application is made for the renewal of an aquaculture lease and the renewal is not granted before the end of the lease—
(a)  the lease continues in force until the renewal is granted or refused, and
(b)  the renewal may be granted even though the lease would, but for this subsection, have come to an end.
(7)  The regulations may make provision for or with respect to applications for the renewal of aquaculture leases.
168   Preferential rights
(1)  If a lessee duly applies for a renewal of an aquaculture lease of an area, the lessee has a preferential right to a lease of the area, as against any applicant or other person.
(2)  Even though a former lessee has not duly applied for a renewal of an aquaculture lease of an area, the former lessee has a preferential right to such a lease of the area, as against any applicant or other person, if that lessee applies for an aquaculture lease of the area within 30 days after the end of the expired lease.
(3)  A preferential right does not arise under this section unless the Minister is satisfied the lessee or former lessee has substantially observed and performed the covenants and conditions of the lease and is satisfied the area should continue to be available for aquaculture.
(4)  Nothing in this section requires the Minister to grant or renew an aquaculture lease.
169   Survey of leased area
(1)  The Minister may require as a condition of granting or renewing a lease, or of granting consent to the surrender of a part of a lease, that the lessee have a survey of the area carried out to a standard approved by the Minister.
(2)  The Minister—
(a)  may, by notice in writing served on the lessee of a leased area, require the lessee to have a survey of the area carried out to a standard approved by the Minister within such period as may be specified in the notice, or
(b)  may, if the lessee fails to comply with the notice, arrange for a survey of the area to be carried out to such a standard at the lessee’s expense.
(3)  The lessee of a leased area or any other person must not obstruct a survey carried out for the purposes of subsection (2)(b).
Maximum penalty—50 penalty units.
(4)  A failure to comply with a notice served under subsection (2)(a), or a contravention of subsection (3), is a breach of a condition of the aquaculture lease concerned.
(5)  The cost of carrying out a survey under subsection (2)(b) is to be regarded as an additional amount of rental payable by the lessee on demand by the Minister.
(6)  The Minister may enter into arrangements with representatives of the commercial aquaculture industry for the payment of the cost of carrying out surveys under this section by lessees or on their behalf.
s 169: Am 1997 No 153, Sch 5 [21].
170   Lessee may fence leased area in certain cases
(1)  The Minister may, on the application of the lessee of a leased area, authorise the lessee to erect a fence on the area subject to such conditions as may be specified in the authority.
(2)  The Minister must not authorise the erection of a fence unless the Minister has had regard to any interference to navigation that could be caused by the erection of the fence.
(3)  If a fence is erected on a leased area otherwise than in accordance with an authority granted under this section or a condition to which such an authority is subject is contravened, the lessee—
(a)  is taken to have contravened a condition of the lease, and
(b)  is guilty of an offence.
Maximum penalty—50 penalty units.
(4)  If a fence is erected on a leased area otherwise than in accordance with an authority granted under this section or a condition to which such an authority is subject is contravened, the Minister or an agent of the Minister may—
(a)  enter the area, and
(b)  carry out such work as is necessary to remove the fence or to achieve compliance with the condition.
(5)  The Minister may sell or otherwise dispose of anything removed in accordance with subsection (4). The proceeds of such a sale are to be applied towards the costs and expenses of—
(a)  the sale, and
(b)  the disposal of anything removed but not sold, and
(c)  the carrying out of the work concerned.
If the proceeds of sale (and of any forfeited bond or other security) are insufficient to enable those costs and expenses to be recouped, the balance can be recovered as a debt by the Minister by proceedings brought in a court of competent jurisdiction.
(5A)  A reference in this section to a fence on a leased area includes (but is not limited to) a reference to a barrier or other structure located in or on the area to prevent, or dissipate the force of, waves entering the area.
(6)  Compensation is not payable to a lessee in respect of anything done under this section.
s 170: Am 2012 No 42, Sch 1.11 [2].
171   Improvements on an expired lease
(1)  All improvements on leased areas vest in the State when the term of the lease expires or is otherwise terminated under this Part.
(2)  The Minister may allow the former lessee to remove any such improvements.
(3)  The Minister may, within 1 year after the termination of a lease, require the former lessee to remove any such improvements within the period notified in writing to the former lessee.
(3A)  The Minister may, either on the application of the former lessee or on the Minister’s own initiative, vary or revoke a notice under subsection (3) by serving the variation or revocation, in writing, on the former lessee.
(3B)  A former lessee who, without reasonable excuse, fails to comply with a notice under this section is guilty of an offence.
Maximum penalty—100 penalty units.
(4)  If the former lessee fails to remove improvements in accordance with a notice under this section, the Minister or an agent of the Minister may—
(a)  enter the area, and
(b)  carry out such work as is necessary to remove the improvements.
(5)  The Minister may sell or otherwise dispose of anything removed in accordance with subsection (4). The proceeds of such a sale are to be applied towards the costs and expenses of—
(a)  the sale, and
(b)  the disposal of anything removed but not sold, and
(c)  the carrying out of the work concerned.
If the proceeds of sale (and of any forfeited bond or other security) are insufficient to enable those costs and expenses to be recouped, the balance can be recovered as a debt by the Minister by proceedings brought in a court of competent jurisdiction.
(6)  A lessee who has applied for a renewal of the lease of a leased area cannot be required, as a condition of the granting of the renewal, to pay for any improvements to the area.
s 171: Am 2017 No 22, Sch 1.8 [3] [4].
172   Subletting with Minister’s consent
(1)  The lessee of a leased area may sublet the area or a part of the area, but only with the consent in writing of the Minister.
(2)  The giving of such a consent may be made subject to the payment of such fee as may be prescribed by the regulations.
173   Transfer with Minister’s consent
(1)  The lessee of a leased area may transfer the lease, but only with the consent in writing of the Minister.
(2)  The giving of such a consent may be subject to conditions and to the payment of such fee as may be prescribed by the regulations.
174   Surrender of lease
(1)  The lessee of a leased area may, with the consent in writing of the Minister, surrender the lease or a part of the leased area to the Minister.
(2)  The giving of such a consent may be made subject to conditions and to the payment of such fee as may be prescribed by the regulations.
(3)  A surrender under this section does not operate to extinguish any debt to the Crown or Minister relating to the lease concerned, except to the extent the Minister directs.
(4)  On surrender of part of the leased area, the Minister may, with the agreement of the lessee, redetermine the rental of the lease.
175   Minister can determine access way
(1)  The lessee of a leased area, or the owner or occupier of any land adjoining the area, may apply in writing to the Minister for the determination of an access way over the area.
(2)  On receiving such an application, the Minister must either—
(a)  determine an access way over the area concerned, or
(b)  refuse the application.
Before determining an access way, the Minister must, in the case of an application made by the owner or occupier of adjoining land, serve on the lessee notice of the application.
(3)  In determining an access way, the Minister may—
(a)  specify what notice of the access way is to be given, and
(b)  impose such conditions on the lessee, and direct the lessee to carry out such work for facilitating access by such way, as the Minister considers reasonable.
(4)  The Minister may refuse an application by the owner or occupier of adjoining land unless satisfactory arrangements are made for the payment by the owner or occupier of the cost of the work required to be carried out for the access way, and of the cost of compensation for the withdrawal from the lease of land for the access way.
(5)  The Minister may determine an access way without an application, but only after giving notice to the lessee concerned.
(6)  The Minister may vary or rescind a determination, condition or direction made, imposed or given under this section.
(7)  A failure to comply with a condition imposed on, or a direction given to, a lessee under this section is taken to be a breach of a condition of the lease of the area to which the condition or direction relates.
(8)  The Minister may under section 176 withdraw from an aquaculture lease any part of the leased area determined under this section to be an access way.
(9)  An access way determined under this section affects land brought under the provisions of the Real Property Act 1900 only when the Registrar-General has made an appropriate recording in the folio for the land.
(10)  A public authority or trustees in which a leased area is vested may exercise the functions of the Minister under this section.
(11)  An access way determined under this section is not affected by any renewal or transfer of the lease.
176   Power to withdraw land from lease
(1)  The Minister may, by notice published in the Gazette, withdraw from an aquaculture lease any land (whether the whole or any part of the leased area) required for a public purpose.
(2)  A public purpose is any public purpose for which land may, under section 7.8 of the Crown Land Management Act 2016, be withdrawn from a lease under that Act.
(3)  On publication of the notice, the lessee becomes entitled to compensation. The provisions of the Land Acquisition (Just Terms Compensation) Act 1991 relating to the payment of compensation for land acquired by compulsory process apply (with such modifications as are prescribed by the regulations) to the payment of compensation under this section.
(4)  Compensation under this section—
(a)  is payable from money to be provided by Parliament, or
(b)  if the area concerned is withdrawn at the request of a public authority—is payable by that public authority.
(5)  The Minister may, by notice published in the Gazette, revoke or modify a withdrawal under this section.
(6)  A withdrawal under this section does not operate to extinguish any debt to the Crown or Minister relating to the land withdrawn, except to the extent the Minister directs.
(7)  On withdrawal of land from a lease under this section, the Minister is to redetermine the rental of the lease in accordance with this Part.
(8)  A provision of this section does not apply to an aquaculture lease to the extent that it is inconsistent with a special condition of the lease relating to the withdrawal of land from the lease for a public purpose.
s 176: Am 2017 No 17, Sch 4.32 [2].
177   Power of Minister to cancel leases in certain cases
(1)  The Minister may, by notice served on the lessee under an aquaculture lease, call on the lessee to show cause why the lease should not be cancelled on any one or more of the following grounds—
(a)  the leased area is not being used for the purposes for which the lease was granted or no aquaculture is being undertaken in the area,
(b)  the leased area is so polluted that fish or marine vegetation on the area are unfit for human consumption and the pollution is likely to continue indefinitely,
(c)  the lessee has not paid any rental or other amount due under the lease,
(d)  the lessee is in breach of any other condition of the lease for which the lease authorises its cancellation under this section.
(2)  After 1 month from the date of service of the notice the Minister may, by notice published in the Gazette, cancel the lease.
(3)  Before cancelling a lease, the Minister must consider any representations made by the lessee.
(4)  A lessee may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the cancellation of the lease.
s 177: Am 1997 No 77, Sch 5.14 [6]; 2009 No 114, Sch 1 [87]; 2012 No 42, Sch 1.11 [3]; 2013 No 95, Sch 2.62 [6].
178   Areas of public water land may be excluded from leasing
(1)  The Minister may exclude any public water land from being leased under this Part.
(2)  The Minister is to publish details of any such excluded area in such manner as the Minister thinks fit.
179   Protection of leased areas
(1)  A person, other than the lessee or the lessee’s agents or employees, must not—
(a)  remove, or in any way injure or interfere with, any fish or marine vegetation cultivated or kept within the leased area or any thing used for the purpose of aquaculture on a leased area, without the consent of the lessee, or
(b)  deposit anything on a leased area or dredge or dig within a leased area, except in accordance with Division 3 of Part 7 or, if that Division does not apply, by direction or authority of the lessee or the Minister.
Maximum penalty—In the case of a corporation, 100 penalty units or, in any other case, 50 penalty units.
(2)  This section does not apply to the placing of any thing on a leased area for the purpose of navigation.
(3)  A person who is found guilty of an offence against this section is liable to compensate the lessee for all damage that the lessee has sustained as a result of the person’s unlawful act. The lessee may, by proceedings brought in a court of competent jurisdiction, recover as a debt the amount of that compensation.
(4)  If the Minister fails to authorise an act referred to in subsection (1)(b) at the request of a public authority or trustees in whom the land concerned is vested, the matter may be referred to the Premier for resolution by the Minister responsible for the authority or trustees.
s 179: Am 2009 No 114, Sch 1 [80].
180   Leased area under Real Property Act 1900
When the land comprised in an aquaculture lease has been brought under the provisions of the Real Property Act 1900, any dealing with the lease must be effected in accordance with that Act.
Division 4
181–187C  (Repealed)
pt 6, div 4: Rep 2015 No 24, Sch 8.17 [2].
s 181: Am 2009 No 114, Sch 1 [88] [89]; 2012 No 31, Sch 2 [1]. Rep 2015 No 24, Sch 8.17 [2].
s 182: Am 1997 No 153, Sch 5 [22]; 2001 No 104, Sch 1 [9]. Subst 2009 No 114, Sch 1 [90]. Rep 2015 No 24, Sch 8.17 [2].
s 182A: Ins 2009 No 114, Sch 1 [90]. Rep 2015 No 24, Sch 8.17 [2].
s 183: Am 2000 No 86, Sch 7 [6]; 2009 No 114, Sch 1 [91]–[96]; 2010 No 59, Sch 1.14 [2]; 2012 No 31, Sch 2 [1]–[6]. Rep 2015 No 24, Sch 8.17 [2].
s 184: Rep 2015 No 24, Sch 8.17 [2].
s 185: Am 2009 No 106, Sch 1.8 [1]. Rep 2015 No 24, Sch 8.17 [2].
s 186: Am 2009 No 106, Sch 1.8 [1]. Rep 2015 No 24, Sch 8.17 [2].
s 187: Am 2009 No 106, Sch 1.8 [2] [3]; 2012 No 31, Sch 2 [7]. Rep 2015 No 24, Sch 8.17 [2].
s 187A: Ins 2009 No 114, Sch 1 [97]. Rep 2015 No 24, Sch 8.17 [2].
s 187B: Ins 2015 No 59, Sch 1 [92]. Rep 2015 No 24, Sch 8.17 [2].
s 187C: Ins 2015 No 59, Sch 1 [92]. Rep 2015 No 24, Sch 8.17 [2].
Division 5 Miscellaneous provisions
188   Minister may order restoration work to be carried out in relation to illegal operations on aquaculture farm
(1)  If a person, not being the holder of an aquaculture permit, erects structures or carries out other works on public water land for the purpose of aquaculture, the Minister may, by order in writing given to the person, require the person to remove the structures or carry out other remedial works within such period as is specified in the order.
(2)  If a person, being the holder of an aquaculture permit, erects structures or carries out other works in contravention of the conditions of the permit, the Minister may, by order in writing given to the person, require the person, within such period as is specified in the order—
(a)  to remove the structures from the area concerned, or
(b)  to relocate them within that area, or
(c)  to carry out other remedial works.
(3)  If a person fails to comply with an order given under this section, the Minister—
(a)  may cause the work specified in the order to be carried out, and
(b)  may, by proceedings brought in a court of competent jurisdiction, recover from the person as a debt the cost of carrying out the work.
(4)  The Minister may give an order under this section whether or not any person has been charged with or convicted of an offence in respect of the matter.
189   When aquaculture operations can be closed
(1)  The Minister may, by a fishing closure under Part 2, prohibit during a specified period the taking of fish or marine vegetation cultivated or kept under an aquaculture permit from the area to which the permit applies if satisfied—
(a)  that the area is in such a condition that the taking of fish or marine vegetation from the area ought to be suspended, or
(b)  that the fish or marine vegetation are, or are likely to be, unfit for human consumption.
(2)  Any such fishing closure does not prevent the taking of fish or marine vegetation for any purpose authorised by the regulations or the fishing closure.
(3)  This section does not limit the application of a fishing closure under Part 2 to the taking of fish or marine vegetation from an area subject to an aquaculture permit and to which the permit does not apply.
s 189: Am 2009 No 114, Sch 1 [80].
190   Special provisions relating to oysters on public water or other land
(1)  All oysters on public water land, or on any area from which the taking of oysters is prohibited under this Act, and all oysters taken from any such land or area without lawful authority, are the property of the Crown.
(2)  A person who, without lawful authority, takes oysters from any public water land is guilty of an offence.
Maximum penalty—50 penalty units.
(3)  A person has lawful authority to take oysters from public water land for personal consumption. However, this subsection is subject to any other prohibition or restriction imposed by or under this Act on the taking of oysters.
191   Regulations
The regulations may make provision for or with respect to the following—
(a)  the cultivation of fish or marine vegetation or the keeping of fish or marine vegetation in a confined area (whether or not it constitutes aquaculture within the meaning of this Part),
(b)  the taking of oysters and other shellfish from public water land and the protection of any such oysters and other shellfish,
(c)  the gathering or collection of marine vegetation, including the prohibition of the gathering or collection of marine vegetation for commercial purposes except under the authority of a permit,
(d)  the tagging or other identification of fish or marine vegetation cultivated or kept under the authority of an aquaculture permit,
(e)  the marking of boundaries of areas used for aquaculture,
(f)  preventing holders of aquaculture leases from obstructing access to areas adjoining their leased area,
(g)  mortgages, charges and other interests with respect to aquaculture leases,
(h)  the consolidation of leased areas,
(i)  the protection of the interests of holders of aquaculture permits,
(j)  the method of determining priority among applications for aquaculture leases in cases not specifically provided for by this Part,
(k)  the fixing, levying and collection of rents, charges and fees for the purposes of this Part,
(l)  the contents and review of commercial farm development plans,
(m)  the method of determining whether or not aquaculture is undertaken or able to be undertaken on a commercial basis, for example by reference to production levels or the size of the area available for aquaculture,
(m1)  applications and eligibility for, and subdivisions, transfers or other dealings involving, aquaculture leases,
(n)  any other matter relating to the management or development of aquaculture.
s 191: Am 2009 No 114, Sch 1 [80]; 2012 No 42, Sch 1.11 [4].
Part 7 Protection of aquatic habitats
Division 1 Habitat protection plans
192   Preparation of habitat protection plans
(1)  The Minister may, in accordance with this section, determine plans for the protection of any habitat of fish (habitat protection plans), whether the habitat is essential for the survival of the species or required to maintain harvestable populations of the species.
(1A)  Without limiting subsection (1), a habitat protection plan may be determined for the protection of critical habitat declared under Part 7A.
(2)  A habitat protection plan—
(a)  may relate to habitat that is essential for spawning, shelter or other reason, and
(b)  may apply generally or to particular areas or fish, and
(c)  is to describe the importance of particular habitat features to which it applies, and
(d)  may set out practical methods for the protection of any such habitat features, and
(e)  may contain any other matter concerning the protection of the habitat of fish that the Minister considers appropriate.
(3)  The Minister may amend or replace a habitat protection plan.
(4)  A habitat protection plan (including any amendment or new plan) is to be published in the Gazette.
(5)  Before the Minister determines a habitat protection plan (including any amendment or new plan), the Minister is required to give the public an opportunity to make submissions on the proposed plan (or proposed amendment or new plan) and to take any submission that is duly made into account.
s 192: Am 1997 No 153, Sch 1 [5] [6].
193   Implementation of habitat protection plans
(1)  The Minister is to have regard to any relevant habitat protection plan in the exercise of the Minister’s functions under this Part.
(2)  Public authorities are to have regard to any habitat protection plan that is relevant to the exercise of their functions.
(3)  A public authority is to notify the Minister of any function it proposes to exercise that is inconsistent with a habitat protection plan. The Minister may refer any dispute to the Minister responsible for the public authority. If the dispute cannot be resolved by those Ministers, it is to be referred to the Premier for resolution.
(4)  Any such resolution of a dispute is to be given effect to despite anything to the contrary in this section.
(5)  The exercise of a function is not invalid merely because it is inconsistent with a habitat protection plan.
(6)  This section—
(a)  does not render the exercise of a function invalid merely because it is inconsistent with a habitat protection plan, and
(b)  does not require or authorise action that is inconsistent with any statutory or other legal obligation of a Minister or a public authority.
Division 2
194–197K  (Repealed)
pt 7, div 2: Rep 2014 No 72, Sch 3, cl 2 (a).
pt 7, div 2, sdiv 1, hdg: Ins 2001 No 104, Sch 1 [10]. Rep 2014 No 72, Sch 3, cl 2 (a).
s 194: Am 2000 No 86, Sch 6.2 [2]. Rep 2014 No 72, Sch 3, cl 2 (a).
s 195: Am 2000 No 86, Sch 6.2 [3]; 2010 No 127, Sch 4.5 [1]. Rep 2014 No 72, Sch 3, cl 2 (a).
ss 195A–195C: Ins 2000 No 86, Sch 6.2 [4]. Rep 2014 No 72, Sch 3, cl 2 (a).
s 196: Am 2000 No 86, Sch 6.2 [5]. Rep 2014 No 72, Sch 3, cl 2 (a).
s 197: Rep 2014 No 72, Sch 3, cl 2 (a).
s 197A: Ins 2000 No 86, Sch 6.2 [6]. Rep 2014 No 72, Sch 3, cl 2 (a).
pt 7, div 2, sdiv 2: Ins 2001 No 104, Sch 1 [11]. Rep 2014 No 72, Sch 3, cl 2 (a).
s 197B: Ins 2001 No 104, Sch 1 [11]. Am 2007 No 27, Sch 1.17 [1]. Rep 2014 No 72, Sch 3, cl 2 (a).
s 197C: Ins 2001 No 104, Sch 1 [11]. Rep 2014 No 72, Sch 3, cl 2 (a).
s 197D: Ins 2001 No 104, Sch 1 [11]. Rep 2014 No 72, Sch 3, cl 2 (a).
pt 7, div 2, sdiv 3 (ss 197E–197K): Ins 2001 No 104, Sch 1 [11]. Rep 2014 No 72, Sch 3, cl 2 (a).
Division 3 Dredging and reclamation
198   Objects of Division
The objects of this Division are to conserve the biodiversity of fish and aquatic vegetation and to protect fish habitat by providing for the management of dredging work and reclamation work, consistent with the objectives of ecologically sustainable development.
s 198: Am 1995 No 13, Sch 4.8; 2000 No 53, Sch 2.6. Subst 2000 No 86, Sch 6.2 [7]. Am 2018 No 25, Sch 1.11 [2].
198A   Definitions
In this Division—
dredging work means—
(a)  any work that involves excavating water land, or
(b)  any work that involves moving material on water land or removing material from water land that is prescribed by the regulations as being dredging work to which this Division applies.
farm dam means the backed up waters of any dam, or impoundment, located on land that is not public water land.
reclamation work means any work that involves—
(a)  using any material (such as sand, soil, silt, gravel, concrete, oyster shells, tyres, timber or rocks) to fill in or reclaim water land, or
(b)  depositing any such material on water land for the purpose of constructing anything over water land (such as a bridge), or
(c)  draining water from water land for the purpose of its reclamation.
water land means land submerged by water—
(a)  whether permanently or intermittently, or
(b)  whether forming an artificial or natural body of water,
and includes wetlands and any other land prescribed by the regulations as water land to which this Division applies.
wetlands includes marshes, mangroves, swamps, or other areas that form a shallow body of water when inundated intermittently or permanently with fresh, brackish or salt water, and where the inundation determines the type and productivity of the soils and the plant and animal communities.
s 198A: Ins 2000 No 86, Sch 6.2 [7]. Am 2018 No 25, Sch 1.11 [3].
198B   Application of Division
This Division applies to any dredging work or any reclamation work, except the following—
(a)  any dredging work or reclamation work carried out in respect of an artificial body of water, unless the body of water is permanently or intermittently connected to a natural body of water or unless the regulations otherwise provide,
(b)  any dredging work or reclamation work carried out in respect of a farm dam, unless the regulations otherwise provide,
(c)  anything permitted by or under this Act (such as digging for bait),
(d)  anything exempted from this Division by the regulations.
s 198B: Ins 2000 No 86, Sch 6.2 [7].
199   Circumstances in which a public authority (other than local authority) may carry out dredging or reclamation
(1)  A public authority (other than a local government authority) must, before it carries out or authorises the carrying out of dredging work or reclamation work—
(a)  give the Minister written notice of the proposed work, and
(b)  consider any matters concerning the proposed work that are raised by the Minister within 21 days after the giving of the notice (or such other period as is agreed between the Minister and the public authority).
(2)  Any such public authority is to notify the Minister of any dredging work or reclamation work that it proposes to carry out or authorise despite any matter raised by the Minister. The Minister may, within 14 days after being so notified, refer any dispute to the Minister responsible for the public authority. If the dispute cannot be resolved by those Ministers, it is to be referred to the Premier for resolution.
(3)  In this section, public authority includes the Minister administering the Crown Land Management Act 2016.
s 199: Am 2000 No 86, Sch 6.2 [8]; 2015 No 59, Sch 1 [93]; 2017 No 17, Sch 4.32 [3]; 2018 No 25, Sch 1.11 [2].
200   Circumstances in which a local government authority may carry out dredging or reclamation
(1)  A local government authority must not carry out dredging work or reclamation work except under the authority of a permit issued by the Minister.
Maximum penalty—2,000 penalty units.
(2)  This section does not apply to—
(a)  work authorised under the Crown Land Management Act 2016, or
(b)  work authorised by a relevant public authority (other than a local government authority).
(3)  This section has effect irrespective of any other Act to the contrary.
s 200: Am 2000 No 86, Sch 6.2 [8]; 2001 No 104, Sch 1 [12]; 2017 No 17, Sch 4.32 [4]; 2018 No 25, Sch 1.11 [2] [3].
201   Circumstances in which a person (other than a public or local government authority) may carry out dredging or reclamation
(1)  A person must not carry out dredging work or reclamation work except under the authority of a permit issued by the Minister.
Maximum penalty—In the case of a corporation, 2,000 penalty units or, in any other case, 1,000 penalty units.
(2)  This section does not apply to—
(a)  work authorised under the Crown Land Management Act 2016, or
(b)  work carried out, or authorised, by a relevant public authority (including a local government authority), or
(c)  work excluded from the operation of this section by the regulations.
s 201: Am 2000 No 86, Sch 6.2 [8]; 2001 No 104, Sch 1 [13] [14]; 2005 No 43, Sch 7.4 [1]; 2015 No 59, Sch 1 [94]; 2017 No 17, Sch 4.32 [5]; 2018 No 25, Sch 1.11 [4].
202   Appeal to the Land and Environment Court
(1)  A person (including a local government authority) who is dissatisfied with a decision of the Minister concerning dredging work or reclamation work may appeal against the decision to the Land and Environment Court within 30 days of receiving notice of the decision.
(2)  The lodging of an appeal does not, except to the extent that the Land and Environment Court otherwise directs in relation to the appeal, operate to stay the decision appealed against.
s 202: Subst 2009 No 114, Sch 1 [98]. Am 2018 No 25, Sch 1.11 [2].
203   Minister may order carrying out of certain work
(1)  If dredging work or reclamation work is carried out in contravention of section 200 or 201, the Minister may, by order in writing given to the local government authority or person concerned, require that authority or person to carry out, within a period specified in the order, such remedial work as the Minister considers necessary to rectify the damage caused by the dredging work or reclamation work to fisheries and fish habitats.
(2)  A court that convicts a local government authority or person of an offence against section 200 or 201 may also make an order of the kind referred to in subsection (1).
(2A)  A local government authority or person who, without reasonable excuse, fails to comply with an order under this section is guilty of an offence.
Maximum penalty—In the case of a corporation, 2,000 penalty units or, in any other case, 1,000 penalty units.
(3)  If the requirements of an order under this section are not complied with within the period specified in it, the Minister—
(a)  may cause the work specified in the order to be carried out, and
(b)  may, by proceedings brought in a court of competent jurisdiction, recover as a debt from the local government authority or person to whom the order was given the cost of complying with those requirements.
(4)  Action may be taken against a local government authority or person in respect of a dredging work or reclamation work under this section regardless of whether the local government authority or person has been charged with having committed an offence against this Division in relation to the same work.
(5)  This section extends to a contravention of Division 4 or 5 and to damage caused by any such contravention. Accordingly, a reference to section 200 or 201 includes a reference to that Division and a reference to dredging work or reclamation work includes a reference to work to which that Division applies.
(6)  For the purposes of this section, a conviction includes the making of an order under section 10 of the Crimes (Sentencing Procedure) Act 1999.
s 203: Am 1997 No 153, Sch 5 [23]; 2015 No 59, Sch 1 [95]–[97]; 2018 No 25, Sch 1.11 [2].
Division 4 Protection of mangroves and certain other marine vegetation
pt 7, div 4: Subst 1997 No 153, Sch 1 [7].
204   Application and interpretation
(1)  This Division does not apply to a threatened species, population or ecological community of marine vegetation within the meaning of Part 7A.
(2)  In this Division—
foreshore means any land adjacent to public water land, or adjacent to an area that is the subject of an aquaculture lease, that is below the highest astronomical tide level of the waters by which the land or area is submerged.
harm, in relation to marine vegetation, means gather, cut, pull up, destroy, poison, dig up, remove, injure, prevent light from reaching or otherwise harm the marine vegetation, or any part of it.
marine vegetation means marine vegetation, whether living or dead.
protected area means any public water land, or any area that is the subject of an aquaculture lease, and includes the foreshore.
s 204: Subst 1997 No 153, Sch 1 [7]. Am 2000 No 86, Sch 6.2 [9] [10]; 2004 No 26, Sch 1 [42]; 2015 No 59, Sch 1 [98].
204A   Marine vegetation protected from any harvesting or other harm
(1)  This section applies to any marine vegetation declared by the regulations to be protected marine vegetation.
(2)  A person must not harm any such protected marine vegetation in a protected area.
Maximum penalty—In the case of a corporation, 2,000 penalty units or, in any other case, 1,000 penalty units.
s 204A: Ins 1997 No 153, Sch 1 [7]. Am 2001 No 104, Sch 1 [15] [16].
204B   Marine vegetation protected from any commercial harvesting
(1)  This section applies to any marine vegetation declared by the regulations to be protected from commercial harvesting.
(2)  A person must not gather or collect for commercial purposes any such protected marine vegetation in a protected area.
Maximum penalty—In the case of a corporation, 2,000 penalty units or, in any other case, 1,000 penalty units.
Note—
Permits for the commercial harvesting of other marine vegetation may be required by regulations under section 191.
s 204B: Ins 1997 No 153, Sch 1 [7]. Am 2001 No 104, Sch 1 [17] [18].
205   Marine vegetation—regulation of harm
(1)  This section applies to—
(a)  mangroves, or
(b)  seagrasses, or
(c)  any other marine vegetation declared by the regulations to be marine vegetation to which this section applies,
but does not apply to protected marine vegetation under section 204A.
(2)  A person must not harm any such marine vegetation in a protected area, except under the authority of a permit issued by the Minister under this Part.
Maximum penalty—In the case of a corporation, 2,000 penalty units or, in any other case, 1,000 penalty units.
s 205: Subst 1997 No 153, Sch 1 [7]. Am 2001 No 104, Sch 1 [19] [20].
205A   Exemptions
(1)  This Division does not apply to any marine vegetation that is being cultivated or kept in accordance with the authority conferred by an aquaculture permit.
(2)  The regulations may exempt any activity, class of activities, or area from the operation of this Division or from specified provisions of this Division.
s 205A: Ins 1997 No 153, Sch 1 [7]. Subst 2000 No 86, Sch 6.2 [11].
205B   Activities harmful to marine vegetation
(1)  For the purposes of this Division, a person is presumed to have harmed marine vegetation if the person carries out an activity prescribed for the purposes of this section by the regulations, unless the person establishes that the particular activity caused no actual harm to marine vegetation.
(2)  The regulations may prescribe an activity in relation to one or more of the following—
(a)  all protected areas,
(b)  a specific protected area,
(c)  part of a protected area.
s 205B: Ins 2001 No 104, Sch 1 [21].
Division 5 Protection of spawning of salmon, trout and certain other fish
206   Protection of spawning areas of salmon, trout and certain other fish
(1)  A person who damages gravel beds in any waters knowing that it is a place where salmon or trout spawn or are likely to spawn is guilty of an offence.
Maximum penalty—1,000 penalty units.
(1A)  In proceedings for an offence under this section in respect of an act or an omission of a person that causes damage to gravel beds in any waters where salmon or trout spawn or are likely to spawn, it is to be conclusively presumed that the person knew that the waters were waters of that kind if it is established that—
(a)  the act or omission occurred in the course of the carrying out of development or an activity for which development consent under Part 4 of the Environmental Planning and Assessment Act 1979, or an approval to which Part 5 of that Act applies, was required but not obtained, or
(b)  the act or omission constituted a failure to comply with any such development consent or approval.
(1B)  A person is not guilty of an offence against this section if the act or omission that constitutes the offence was done or omitted under the authority of a permit issued under this Part.
(2)  The regulations may make other provision for or with respect to preventing damage to any place where fish of any species spawn or are likely to spawn.
s 206: Am 2009 No 114, Sch 1 [99] [100].
207   Prohibition on taking or disturbing salmon, trout and certain other fish while spawning
(1)  This section applies to salmon and trout and to any other fish of a species prescribed by the regulations.
(2)  A person who wilfully takes or disturbs fish to which this section applies knowing that they are spawning or are on or near their spawning beds is guilty of an offence.
Maximum penalty—50 penalty units.
208   Defence for authorised activities
A defence to a prosecution for an offence of damaging critical habitat under Part 7A is also available as a defence to a prosecution for an offence against this Division.
s 208: Subst 1997 No 153, Sch 1 [8].
Division 6
209–214B  (Repealed)
pt 7, div 6, hdg: Subst 1997 No 153, Sch 5 [24]. Rep 2015 No 24, Sch 8.17 [3].
pt 7, div 6: Rep 2015 No 24, Sch 8.17 [3].
s 209: Am 1997 No 153, Sch 5 [25]–[28]; 2000 No 86, Sch 7 [7]. Subst 2009 No 114, Sch 1 [101]. Rep 2015 No 24, Sch 8.17 [3].
s 209A: Ins 2009 No 114, Sch 1 [101]. Rep 2015 No 24, Sch 8.17 [3].
s 209B: Ins 2009 No 114, Sch 1 [101]. Rep 2015 No 24, Sch 8.17 [3].
s 209C: Ins 2012 No 31, Sch 2 [8]. Rep 2015 No 24, Sch 8.17 [3].
s 209D: Ins 2012 No 31, Sch 2 [8]. Rep 2015 No 24, Sch 8.17 [3].
s 210: Am 1997 No 153, Sch 5 [27] [29]; 2012 No 31, Sch 2 [9]. Rep 2015 No 24, Sch 8.17 [3].
s 211: Am 1997 No 153, Sch 5 [27] [30] [31]. Rep 2015 No 24, Sch 8.17 [3].
s 212: Am 1997 No 153, Sch 5 [27]. Rep 2015 No 24, Sch 8.17 [3].
s 213: Am 1997 No 153, Sch 5 [27] [32]–[36]; 2015 No 59, Sch 1 [99]–[103]. Rep 2015 No 24, Sch 8.17 [3].
s 214: Am 1997 No 153, Sch 5 [27] [37]; 2002 No 103, Sch 4.37 [1]–[3]. Rep 2015 No 24, Sch 8.17 [3].
s 214A: Ins 2009 No 114, Sch 1 [102]. Rep 2015 No 24, Sch 8.17 [3].
s 214B: Ins 2012 No 31, Sch 2 [10]. Rep 2015 No 24, Sch 8.17 [3].
Division 7 Protection of fish and marine vegetation from disease
pt 7, div 7, hdg: Subst 2009 No 114, Sch 1 [103].
215   Purposes of Division
The purposes of this Division are—
(a)  to prevent the spread of diseases in fish and marine vegetation, and
(b)  to prevent any adverse effect on existing fish and marine vegetation and their habitats by introduced species of fish and marine vegetation.
s 215: Am 2007 No 27, Sch 1.17 [2]. Subst 2009 No 114, Sch 1 [104].
216   Releasing live fish into waters prohibited
(1)  A person must not release into any waters any live fish except under the authority of a permit issued by the Minister or an aquaculture permit.
Maximum penalty—In the case of a corporation, 100 penalty units or, in any other case, 50 penalty units.
(2)  This section does not apply to the immediate return of fish to waters from which they were taken.
(3)  This section applies only to the release of fish into the sea, into a river, creek or other flowing stream of water or into a lake.
(4)  In this section, release a fish, includes depositing them or permitting them to escape.
s 216: Am 2009 No 114, Sch 1 [105].
217   Importation of live exotic fish
(1)  A person must not bring into New South Wales any live fish of a species or class prescribed by the regulations except under the authority of a permit issued by the Minister.
Maximum penalty—In the case of a corporation, 100 penalty units or, in any other case, 50 penalty units.
(2)  A person who sells, buys or has possession of fish knowing that the fish has been brought into New South Wales in contravention of this section is guilty of an offence.
Maximum penalty—In the case of a corporation, 100 penalty units or, in any other case, 50 penalty units.
(3)  This section does not apply in respect of any species of fish that was established in the waters of the State, or in the waters of the sea adjacent to the State within the Australian fishing zone, before European settlement.
s 217: Am 2000 No 86, Sch 6.2 [12] [13]; 2003 No 40, Sch 1.15 [1]–[3]. Subst 2009 No 114, Sch 1 [106].
217A   Importation of live exotic marine vegetation
(1)  A person must not bring into New South Wales any live marine vegetation of a species or class prescribed by the regulations except under the authority of a permit issued by the Minister.
Maximum penalty—In the case of a corporation, 100 penalty units or, in any other case, 50 penalty units.
(2)  A person who sells, buys or has possession of marine vegetation knowing that it has been brought into New South Wales in contravention of this section is guilty of an offence.
Maximum penalty—In the case of a corporation, 100 penalty units or, in any other case, 50 penalty units.
(3)  This section does not apply in respect of any species of marine vegetation that existed in the State before European settlement.
s 217A: Ins 2009 No 114, Sch 1 [106].
Division 8 Miscellaneous provisions
218   Fishways to be provided in construction of dams and weirs
(1)  The Minister may, by order in writing, require a person (other than a public authority) who constructs, alters or modifies a dam, weir or reservoir on a waterway to carry out, within the period specified in the order, such works as may be so specified to enable fish to pass through or over the dam, weir or reservoir.
(2)  The Minister may also, by order in writing, require a person responsible for the management or control of a dam, weir or reservoir to carry out repairs to a fishway or fish by-pass.
(3)  A person who fails to comply with an order under this section is guilty of an offence.
Maximum penalty—In the case of a corporation, 2,000 penalty units or, in any other case, 1,000 penalty units.
(4)  If a person fails to carry out the work specified in an order under this section within the period so specified, the Minister—
(a)  may cause the work to be carried out, and
(b)  may, by proceedings brought in a court of competent jurisdiction, recover from the person as a debt the cost of carrying out the work.
(5)  A public authority that proposes to construct, alter or modify a dam, weir or reservoir on a waterway (or to approve of any such construction, alteration or modification)—
(a)  must notify the Minister of the proposal, and
(b)  must, if the Minister so requests, include as part of the works for the dam, weir or reservoir, or for its alteration or modification, a suitable fishway or fish by-pass.
(5A)  This section does not apply to or in respect of any work or waters of a kind exempted from the operation of this section by the regulations.
(5B)  A person (other than a public authority) must not construct, alter or modify a dam, weir or reservoir on a waterway unless the person ensures that the Minister is given notice in writing of the proposed works at least 28 days before the commencement of the works.
Maximum penalty—In the case of a corporation, 200 penalty units or in any other case, 100 penalty units.
(5C)  Subsection (5B) does not apply in respect of any works approved by a public authority or approved by the Minister administering the Environmental Planning and Assessment Act 1979 under Part 3A or Division 5.2 of that Act.
(6)  In this section—
dam, weir or reservoir includes a floodgate.
waterway means a river, creek or other flowing stream of water, whether flowing regularly or intermittently, and includes any lagoon or other body of water that is intermittently subject to tidal influence or that intermittently flows into a river, creek or stream.
s 218: Am 1997 No 153, Sch 5 [38]; 2000 No 86, Sch 6.2 [14]–[16]; 2001 No 104, Sch 1 [22]; 2009 No 114, Sch 1 [107] [108]; 2011 No 22, Sch 2.6 [2]; 2019 No 14, Sch 2.8[4].
219   Passage of fish not to be blocked
(1)  A person who—
(a)  sets a net, netting or other material, or
(b)  constructs or alters a dam, floodgate, causeway or weir, or
(c)  otherwise creates an obstruction,
across or within a bay, inlet, river or creek, or across or around a flat, so that—
(d)  fish will or could be blocked or left stranded, or
(e)  immature fish will or could be destroyed, or
(f)  the free passage of fish will or could be obstructed,
is guilty of an offence.
Maximum penalty—In the case of a corporation, 2,000 penalty units or, in any other case, 1,000 penalty units.
(2)  A court convicting a person of an offence under this section may order the person to remove, within a specified period, the obstruction involved in the commission of the offence.
(3)  If such an order is not complied with within the specified period, the Minister—
(a)  may cause the obstruction concerned to be removed, and
(b)  may, by proceedings brought in a court of competent jurisdiction, recover the cost of removal as a debt from the person against whom the order was made.
(4)  An order made by a court under section 10 of the Crimes (Sentencing Procedure) Act 1999 in any proceedings for an offence under this section is taken, for the purposes of this section, to be a conviction for the offence.
(5)  This section does not apply to or in respect of the following—
(a)  any activity that is otherwise permitted by or under this Act or any other Act,
(b)  any activity that is done in accordance with a permit issued by the Minister under this Part,
(c)  any activity or waters of a kind exempted from the operation of this section by the regulations.
s 219: Am 1997 No 107, Sch 2.2 [1]; 1999 No 94, Sch 4.25; 2000 No 86, Sch 6.2 [17] [18]; 2001 No 104, Sch 1 [23].
220   Provisions relating to permits under this Part
(1)  A permit under this Part—
(a)  is subject to such conditions as are prescribed by the regulations or specified in the permit, and
(b)  remains in force for such period as is specified in the permit, and
(c)  may be cancelled or suspended by the Minister at any time by notice given to the permit holder.
(1A)  The issue of a permit referred to in section 201, 205 or 219 in relation to integrated development within the meaning of section 4.46 of the Environmental Planning and Assessment Act 1979 is subject to Division 4.8 of that Act.
(1B)  Without limiting subsection (1), conditions of a permit may include conditions requiring the permit holder to enter into a bond or guarantee or other financial arrangement for the due performance of the holder’s obligations under this Act.
(2)  The Minister may from time to time, by notice given to the permit holder, vary the conditions of a permit.
(3)  The regulations may make provision for or with respect to permits under this Part.
s 220: Am 1997 No 152, Sch 4.10 [2]; 1997 No 153, Sch 5 [39]; 1998 No 54, Sch 2.17 [2]; 1998 No 120, Sch 2.17 [1]; 2000 No 86, Sch 6.2 [19]; 2009 No 114, Sch 1 [109]; 2019 No 14, Sch 2.8[5].
220AA   Secretary may make stop work order
(1)  If the Secretary is of the opinion that any action is being, or is about to be, carried out in contravention of Division 3 or 4, or section 219, and that the action is likely to cause damage to fish habitat or obstruct the free passage of fish, the Secretary may order that such action is to cease and that no further action, other than such action as may be specified in the order, is to be carried out in or in the vicinity of the waters concerned within a period of 40 days after the date of the order.
(2)  An order takes effect on and from the date on which—
(a)  a copy of the order is affixed in a conspicuous place in the vicinity of the waters the subject of the order, or
(b)  the person carrying out or about to carry out the action is notified that the order has been made,
whichever is the sooner.
(3)  A person who does not comply with an order in force under this section is guilty of an offence.
Maximum penalty—
(a)  in the case of an individual, 1,000 penalty units and an additional 500 penalty units for each day the offence continues, or
(b)  in the case of a corporation, 2,000 penalty units and an additional 1,000 penalty units for each day the offence continues.
(4)  The Secretary may, by making a further order under this section, extend an order for such further period or periods of 40 days as the Secretary thinks fit.
(5)  The Secretary is not required, before making an order under this section, to notify any person who may be affected by the order.
(6)  An order of the Secretary under this section has effect despite any consent, approval, notice, order or other instrument made or issued by or under any other Act or law that requires or permits the action prohibited by the order.
(7)  This section does not apply to the following—
(a)  any thing authorised by or under the State Emergency and Rescue Management Act 1989 that is reasonably necessary to avoid a threat to life or property,
(b)  any thing authorised to be done by or under the Rural Fires Act 1997 in relation to any emergency fire fighting act within the meaning of that Act.
(8)  A person who is dissatisfied with a decision of the Secretary to take action under this section may appeal against the decision to the Land and Environment Court within 30 days of receiving notice of the decision.
(9)  The lodging of an appeal does not, except to the extent that the Land and Environment Court otherwise directs in relation to the appeal, operate to stay the decision appealed against.
s 220AA: Ins 2009 No 114, Sch 1 [110].
Part 7A Threatened species conservation
pt 7A: Ins 1997 No 153, Sch 1 [9].
Division 1 Preliminary
pt 7A, div 1: Ins 1997 No 153, Sch 1 [9].
220A   Objects of Part
The objects of this Part are as follows—
(a)  to conserve biological diversity of fish and marine vegetation and promote ecologically sustainable development and activities,
(b)  to prevent the extinction and promote the recovery of threatened species, populations and ecological communities of fish and marine vegetation,
(c)  to protect the critical habitat of those threatened species, populations and ecological communities that are endangered,
(d)  to eliminate or manage certain processes that threaten the survival or evolutionary development of threatened species, populations and ecological communities of fish and marine vegetation,
(e)  to ensure that the impact of any action affecting threatened species, populations and ecological communities of fish and marine vegetation is properly assessed,
(f)  to encourage the conservation of threatened species, populations and ecological communities of fish and marine vegetation by the adoption of measures involving co-operative management.
s 220A: Ins 1997 No 153, Sch 1 [9]. Am 2001 No 104, Sch 1 [24]; 2016 No 63, Sch 11.2 [2].
220B   Definitions
(1)  In this Part—
critical habitat means habitat declared to be critical habitat under Division 3.
critically endangered ecological community means an ecological community specified in Part 2 of Schedule 4A.
critically endangered species means a species specified in Part 1 of Schedule 4A.
critically endangered species and ecological communities means species and ecological communities specified in Schedule 4A and critically endangered species or ecological community means a species or ecological community respectively specified in that Schedule.
ecological community means an assemblage of species of fish or marine vegetation (or both) occupying a particular area.
endangered ecological community means an ecological community specified in Part 3 of Schedule 4.
endangered population means a population specified in Part 2 of Schedule 4.
endangered species means a species specified in Part 1 of Schedule 4.
endangered species, populations and ecological communities means species, populations and ecological communities specified in Schedule 4 and endangered species, population or ecological community means a species, population or ecological community respectively specified in that Schedule.
environmental planning instrument or EPI means an environmental planning instrument under the Environmental Planning and Assessment Act 1979.
fish means any fish indigenous to New South Wales.
Fisheries Scientific Committee means the Fisheries Scientific Committee constituted under Division 9.
harm means—
(a)  in the case of fish—take, injure or otherwise harm the fish, or
(b)  in the case of marine vegetation—gather, cut, pull up, destroy, poison, dig up, remove, injure or otherwise harm the marine vegetation, or any part of it,
but in any such case does not include harm by changing the habitat of the fish or marine vegetation.
joint management agreement means an agreement entered into under Division 8.
key threatening process means a threatening process specified in Schedule 6.
land includes—
(a)  land covered with water, whether regularly or intermittently, and
(b)  the sea or an arm of the sea, and
(c)  a bay, inlet, lagoon, lake or body of water, whether inland or not and whether tidal or not, and
(d)  a river, stream or watercourse, whether tidal or not.
landholder of land means a person who owns land or who, whether by reason of ownership or otherwise, is in lawful occupation or possession, or has lawful management or control, of land.
list means a list set out in Schedules 4–6, and includes a list in one or more of those Schedules that does not contain any entries.
local strategic plan means a local strategic plan approved under Part 4 of the Local Land Services Act 2013.
marine vegetation means any marine vegetation indigenous to New South Wales.
NRC means the Natural Resources Commission established under the Natural Resources Commission Act 2003.
population means a group of organisms, all of the same species of fish or marine vegetation, occupying a particular area.
Priorities Action Statement means a Threatened Species Priorities Action Statement under Division 5A.
public authority means a public authority (as defined in section 4), and includes a person exercising any function on behalf of the authority and any person prescribed by the regulations to be a public authority.
recovery plan means a recovery plan prepared and approved under Division 5.
species means a species of fish or marine vegetation, and includes any defined sub-species and taxon below a sub-species and any recognisable variant of a sub-species or taxon.
species impact statement means a statement referred to in Subdivision 2 of Division 6 and includes an environmental impact statement, prepared under the Environmental Planning and Assessment Act 1979, that contains a species impact statement.
species presumed extinct means a species specified in Part 4 of Schedule 4.
threat abatement plan means a threat abatement plan prepared and approved under Division 5.
threatened ecological community means an ecological community specified in Part 3 of Schedule 4, Part 2 of Schedule 4A or Part 2 of Schedule 5.
threatened species means a species specified in Part 1 (Endangered species) or 4 (Species presumed extinct) of Schedule 4, Part 1 (Critically endangered species) of Schedule 4A or Part 1 (Vulnerable species) of Schedule 5.
threatened species, populations and ecological communities means species, populations and ecological communities specified in Schedules 4, 4A and 5 and threatened species, population or ecological community means a species, population or ecological community respectively specified in any of those Schedules.
Threatened Species Scientific Committee means the Scientific Committee constituted under the Biodiversity Conservation Act 2016.
threatening process means a process that threatens, or that may threaten, the survival or evolutionary development of species, populations or ecological communities of fish or marine vegetation.
vulnerable ecological community means an ecological community specified in Part 2 of Schedule 5.
vulnerable species means a species specified in Part 1 of Schedule 5.
(2)  A reference in this Part to fish or marine vegetation indigenous to New South Wales is a reference to fish or marine vegetation of a species that was established in New South Wales before European settlement.
(3)  A reference in this Part to New South Wales includes a reference to the coastal waters of the State.
Note—
Coastal waters of the State is defined in section 58 of the Interpretation Act 1987. Generally speaking, coastal waters extend to the waters of the sea within 3 nautical miles of the coast.
s 220B: Ins 1997 No 153, Sch 1 [9]. Am 2002 No 78, Sch 2.2 [1]; 2004 No 88, Sch 2 [1]–[5]; 2010 No 59, Sch 2.33 [3]; 2013 No 51, Sch 7.17 [1]; 2016 No 63, Sch 11.2 [3]–[5].
220BA   (Repealed)
s 220BA: Ins 2002 No 78, Sch 2.2 [2]. Rep 2016 No 63, Sch 11.2 [6].
Division 2 Listing of threatened species, populations and ecological communities and key threatening processes
pt 7A, div 2: Ins 1997 No 153, Sch 1 [9].
Subdivision 1 Listing
220C   Lists
(1) Endangered species Part 1 of Schedule 4 contains a list of endangered species for the purposes of this Part.
(2) Endangered populations Part 2 of Schedule 4 contains a list of endangered populations for the purposes of this Part.
(3) Endangered ecological communities Part 3 of Schedule 4 contains a list of endangered ecological communities for the purposes of this Part.
(4) Species presumed extinct Part 4 of Schedule 4 contains a list of species presumed extinct for the purposes of this Part.
(4A) Critically endangered species Part 1 of Schedule 4A contains a list of critically endangered species for the purposes of this Part.
(4B) Critically endangered ecological communities Part 2 of Schedule 4A contains a list of critically endangered ecological communities for the purposes of this Part.
(5) Vulnerable species Part 1 of Schedule 5 contains a list of vulnerable species for the purposes of this Part.
(5A) Vulnerable ecological communities Part 2 of Schedule 5 contains a list of vulnerable ecological communities for the purposes of this Part.
(6) Key threatening processes Schedule 6 contains a list of key threatening processes for the purposes of this Part.
s 220C: Ins 1997 No 153, Sch 1 [9]. Am 2004 No 88, Sch 2 [6].
220D   Amendment of lists
(1)  The Fisheries Scientific Committee may, by order published on the NSW legislation website, amend Schedule 4, 4A, 5 or 6—
(a)  by inserting the name or description of a species, population, ecological community or threatening process, or
(b)  by omitting the name or description of a species, population, ecological community or threatening process, or
(c)  by amending the name or description of a species, population, ecological community or threatening process.
(2)  The Fisheries Scientific Committee may, by order published on the NSW legislation website, amend this Act by omitting Schedule 4, 4A, 5 or 6 and by inserting instead a Schedule containing the names or descriptions of species, populations, ecological communities or threatening processes.
(3)  A new species, population, ecological community or threatening process may not be listed, nor any such listing changed or omitted, unless the requirements of Subdivision 2 have been complied with.
(4)  An order under this section is not invalid because of a contravention of the requirements of Subdivision 2 relating to the order.
s 220D: Ins 1997 No 153, Sch 1 [9]. Am 1999 No 85, Sch 1.14 [1]; 2004 No 88, Sch 2 [7]–[9]; 2009 No 56, Sch 4.21 [2].
220E   Identification of nationally threatened species and ecological communities
(1)  A species or ecological community listed in Schedule 4, 4A or 5 that is also a listed threatened species or listed threatened ecological community under the Environment Protection and Biodiversity Conservation Act 1999 of the Commonwealth is shown in Schedule 4, 4A or 5 to this Act marked with an asterisk to show its national status.
(2)  As soon as practicable after a species or ecological community that is or was indigenous to New South Wales becomes a listed threatened species or listed threatened ecological community under the Environment Protection and Biodiversity Conservation Act 1999 of the Commonwealth, the Fisheries Scientific Committee is to consider whether, in accordance with this Division, the species or ecological community should be listed in Schedule 4, 4A or 5 to this Act.
(3)  If a species or ecological community ceases to be a listed threatened species or a listed threatened ecological community under the Environment Protection and Biodiversity Conservation Act 1999 of the Commonwealth—
(a)  Schedule 4, 4A or 5 to this Act may be amended to omit the asterisk showing its national status, and
(b)  the Fisheries Scientific Committee is to consider, in accordance with this Division, whether the species or ecological community should be omitted from Schedule 4, 4A or 5 to this Act.
s 220E: Ins 1997 No 153, Sch 1 [9]. Subst 2004 No 88, Sch 2 [10].
220F   Eligibility for listing of species
(1)  A species is eligible to be listed as a species presumed extinct at a particular time if, in the opinion of the Fisheries Scientific Committee, it has not been recorded in its known or expected habitat in New South Wales, despite targeted surveys, over a time frame appropriate, in the opinion of the Fisheries Scientific Committee, to its life cycle and form.
(2)  A species is eligible to be listed as a critically endangered species if, in the opinion of the Fisheries Scientific Committee, it is facing an extremely high risk of extinction in New South Wales in the immediate future, as determined in accordance with criteria prescribed by the regulations.
(3)  A species is eligible to be listed as an endangered species if, in the opinion of the Fisheries Scientific Committee—
(a)  it is facing a very high risk of extinction in New South Wales in the near future, as determined in accordance with criteria prescribed by the regulations, and
(b)  it is not eligible to be listed as a critically endangered species.
(4)  A species is eligible to be listed as a vulnerable species if, in the opinion of the Fisheries Scientific Committee—
(a)  it is facing a high risk of extinction in New South Wales in the medium-term future, as determined in accordance with criteria prescribed by the regulations, and
(b)  it is not eligible to be listed as an endangered or critically endangered species.
s 220F: Ins 1997 No 153, Sch 1 [9]. Subst 2004 No 88, Sch 2 [11].
220FA   Listing of populations
(1)  A population is eligible to be listed as an endangered population if, in the opinion of the Fisheries Scientific Committee, it is facing a very high risk of extinction in New South Wales in the near future, as determined in accordance with criteria prescribed by the regulations.
(2)  A population is not eligible to be listed as an endangered population if it is a population of a species already listed in Schedule 4 or 4A.
ss 220FA–220FD: Ins 2004 No 88, Sch 2 [11].
220FB   Listing of ecological communities
(1)  An ecological community is eligible to be listed as a critically endangered ecological community if, in the opinion of the Fisheries Scientific Committee, it is facing an extremely high risk of extinction in New South Wales in the immediate future, as determined in accordance with criteria prescribed by the regulations.
(2)  An ecological community is eligible to be listed as an endangered ecological community if, in the opinion of the Fisheries Scientific Committee—
(a)  it is facing a very high risk of extinction in New South Wales in the near future, as determined in accordance with criteria prescribed by the regulations, and
(b)  it is not eligible to be listed as a critically endangered ecological community.
(3)  An ecological community is eligible to be listed as a vulnerable ecological community if, in the opinion of the Fisheries Scientific Committee—
(a)  it is facing a high risk of extinction in New South Wales in the medium-term future, as determined in accordance with criteria prescribed by the regulations, and
(b)  it is not eligible to be listed as an endangered or critically endangered ecological community.
ss 220FA–220FD: Ins 2004 No 88, Sch 2 [11].
220FC   Threatening processes eligible for listing as key threatening processes
(1)  A threatening process is eligible to be listed as a key threatening process if, in the opinion of the Fisheries Scientific Committee—
(a)  it adversely affects threatened species, populations or ecological communities, or
(b)  it could cause species, populations or ecological communities that are not threatened to become threatened.
(2)  The regulations may prescribe criteria for the determination of matters under this section.
ss 220FA–220FD: Ins 2004 No 88, Sch 2 [11].
220FD   Regulations prescribing criteria under this Part
A regulation that prescribes criteria for the purposes of section 220F, 220FA, 220FB or 220FC is not to be made unless the Minister certifies in writing that—
(a)  the criteria are based on scientific principles only, and
(b)  any criteria for listing under the Environment Protection and Biodiversity Conservation Act 1999 of the Commonwealth were given due consideration before the regulation was made.
ss 220FA–220FD: Ins 2004 No 88, Sch 2 [11].
Subdivision 2 Procedure for listing
220G   Fisheries Scientific Committee responsible for lists
The Fisheries Scientific Committee is responsible for determining whether any species, populations, ecological communities or threatening processes should be listed in Schedule 4, 4A, 5 or 6.
s 220G: Ins 1997 No 153, Sch 1 [9]. Subst 2004 No 88, Sch 2 [12].
220H   Who may initiate action for listing
(1)  The Fisheries Scientific Committee may make a determination for the purposes of this Subdivision on its own initiative.
(2)  The Fisheries Scientific Committee may also make a determination—
(a)  following a request by the Minister or the NRC, or
(b)  on a nomination, made in accordance with this Division, of any other person.
(3)  A proposal that involves the alteration of the listing status of a species or ecological community (by moving the description of the species or ecological community from one Schedule to another or from one Part of a Schedule to another Part of the Schedule) may be dealt with under this Subdivision as a composite proposal, whereby all aspects of the proposal are dealt with together.
s 220H: Ins 1997 No 153, Sch 1 [9]. Subst 2004 No 88, Sch 2 [13].
220I   How nominations made
(1)  Any person may nominate an amendment of Schedule 4, 4A, 5 or 6.
(2)  A nomination must be in writing addressed to the Chairperson of the Fisheries Scientific Committee and must include any information prescribed by the regulations.
(3)  The Fisheries Scientific Committee may request a person who makes a nomination to provide additional information about the subject-matter of the nomination within a specified period.
(4)  A person must not deliberately and wilfully make a vexatious nomination.
Maximum penalty (subsection (4)): 20 penalty units.
(5)  The Fisheries Scientific Committee is to give notice of a nomination to the Minister and the NRC within 14 days after the nomination is made.
s 220I: Ins 1997 No 153, Sch 1 [9]. Am 2004 No 88, Sch 2 [14] [15].
220IA   Referral of nomination to Threatened Species Scientific Committee
(1)  If, in the opinion of the Chairperson of the Fisheries Scientific Committee, a nomination of a key threatening process relates to a threatening process that is likely to have an impact on both terrestrial and aquatic environments, the Chairperson may consult with the Chairperson of the Threatened Species Scientific Committee for the purpose of determining whether the nomination should also be considered by that Committee under the Biodiversity Conservation Act 2016.
(2)  If the Chairpersons agree that the nomination should also be considered by the Threatened Species Scientific Committee under the Biodiversity Conservation Act 2016, the nomination is to be referred to the Threatened Species Scientific Committee for consideration.
(3)  In such a case—
(a)  the nomination is taken also to be a nomination for the amendment of Schedule 1 to that Act, made to the Threatened Species Scientific Committee in accordance with Part 4 of that Act on the date the Chairpersons agree that the nomination should be referred to that Committee for consideration, and
(b)  Part 4 of that Act applies in relation to the nomination (in addition to this Part).
(4)  For the purposes of this section, a nomination of a key threatening process means a nomination of an amendment to Schedule 6.
Note—
There is a reciprocal process in the Biodiversity Conservation Act 2016 for the referral of nominations made under that Act to the Fisheries Scientific Committee in appropriate cases.
s 220IA: Ins 2002 No 78, Sch 2.2 [3]. Am 2016 No 63, Sch 11.2 [5] [7].
220J   Consideration of nomination by Fisheries Scientific Committee
(1)  The Fisheries Scientific Committee is to determine priorities for its consideration of nominations every 12 months and in determining those priorities is to have regard to—
(a)  the degree of threat, immediacy of threat, taxonomic distinctiveness and such other matters as the Fisheries Scientific Committee considers relevant, and
(b)  any advice or recommendations of the Minister or the NRC concerning those priorities.
(1A)  The NRC and the Minister may give advice or make recommendations to the Fisheries Scientific Committee concerning priorities for the consideration of nominations by the Fisheries Scientific Committee, and in giving that advice or making those recommendations the NRC and the Minister may consider State-wide issues of concern in biodiversity conservation.
(2)  The Fisheries Scientific Committee may consider different nominations about the same subject together, and may consider different matters in the same nomination separately.
(3)  The Fisheries Scientific Committee may reject a nomination if—
(a)  the Committee determines not to make the amendment nominated having regard to the eligibility requirements of this Part for listing, or
(b)  the subject of the nomination has already been dealt with, or
(c)  the nomination is vexatious, or
(d)  the nomination is not accompanied by the information prescribed by the regulations, or
(e)  any additional information requested by the Committee is not provided within the period specified for its provision or any such additional information provided is inadequate.
(4)  If the Fisheries Scientific Committee rejects a nomination, it is to notify the Minister, the NRC and the person who made the nomination and is to give reasons for the rejection.
Note—
Section 220O enables the Committee to recommend other measures to protect the fish or marine vegetation even if it rejects a nomination.
s 220J: Ins 1997 No 153, Sch 1 [9]. Am 2004 No 88, Sch 2 [16]–[18].
220K   Notification and consultation with respect to proposed determination of Fisheries Scientific Committee
Before it makes a determination for the amendment of Schedule 4, 4A, 5 or 6, the Fisheries Scientific Committee must—
(a)  notify the Minister of the proposed determination and, if it was made in response to a nomination, also notify the person who made the nomination, and
(b)  give the public an opportunity to make submissions on the proposed determination and the reasons for it, and
(c)  have regard to any written submissions received by the Committee on or before the date specified for the receipt of public submissions about the proposed determination.
Note—
Section 284 regulates the public consultation procedure. It requires copies of the proposed determination and reasons to be publicly exhibited and a period of at least 30 days for public comment.
Section 220N provides for provisional listings of endangered species without the need for compliance with this section.
s 220K: Ins 1997 No 153, Sch 1 [9]. Am 2004 No 88, Sch 2 [19] [20].
220L   Fisheries Scientific Committee’s final determination
(1)  The Fisheries Scientific Committee must either accept or reject a proposal for the amendment of Schedule 4, 4A, 5 or 6, and must give reasons for the determination.
(2)  The reasons for a determination are to include reference to such of the criteria prescribed by the regulations under sections 220F–220FC as may be relevant to the determination.
(3)  In a case involving a nomination, the Fisheries Scientific Committee must make a final determination within 6 months after the end of the period allowed for public comment on the proposed determination of the nomination under section 220K (as provided under section 284).
(4)  Before making a final determination the Fisheries Scientific Committee must give the Minister notice in writing of the proposed final determination. The Minister then has 2 months to decide whether to refer the proposed final determination back to the Fisheries Scientific Committee for further consideration under section 220M.
(5)  The Fisheries Scientific Committee is not to proceed to make the proposed final determination unless—
(a)  the Minister has notified the Fisheries Scientific Committee that the Minister has decided not to refer the proposed determination back to the Fisheries Scientific Committee for further consideration, or
(b)  the Minister has not referred the proposed final determination back to the Fisheries Scientific Committee for further consideration under section 220M within 2 months after the Minister was given notice of the proposed final determination, or
(c)  if the Minister has referred the proposed final determination back to the Fisheries Scientific Committee for further consideration under section 220M within that 2 months, the Fisheries Scientific Committee has decided to proceed with the final determination following that further consideration.
(6)  The Minister may at the request of the Fisheries Scientific Committee extend and further extend the period of 6 months under subsection (3), to a maximum period of 2 years.
(7)  Failure to make a final determination within the period required by this section or to give notice to the Minister of a proposed final determination within the period required by this section does not affect the validity of the determination.
s 220L: Ins 1997 No 153, Sch 1 [9]. Subst 2004 No 88, Sch 2 [21].
220M   Minister’s response to proposed final determination
(1)  Within 2 months after receiving notice from the Fisheries Scientific Committee of a proposed final determination, the Minister may—
(a)  notify the Fisheries Scientific Committee that the Minister has decided not to refer the proposed determination back to the Fisheries Scientific Committee for further consideration, or
(b)  refer the proposed final determination back to the Fisheries Scientific Committee for further consideration.
(2)  The Minister may only refer a matter back to the Fisheries Scientific Committee for reasons of a scientific nature provided to the Fisheries Scientific Committee. In the case of a nomination, the Fisheries Scientific Committee is to notify the person who made the nomination that the matter has been referred back to the Fisheries Scientific Committee and of the Minister’s reasons for doing so.
(3)  If a proposed final determination is referred back to the Fisheries Scientific Committee for further consideration—
(a)  the Fisheries Scientific Committee may, after further considering it, decide to proceed with the final determination, to change the final determination or not to proceed with the final determination, and
(b)  the Fisheries Scientific Committee is to make that decision within 3 months, and
(c)  the Minister cannot refer the matter back to the Fisheries Scientific Committee again after it has made that decision.
(4)  Failure to make a decision within the period required by this section does not affect the validity of the decision.
s 220M: Ins 1997 No 153, Sch 1 [9]. Subst 2004 No 88, Sch 2 [21].
220MA   Publication of final determination
(1)  On making a final determination, the Fisheries Scientific Committee must, as soon as practicable—
(a)  make an order under section 220D giving effect to the determination, and
(b)  in a case involving a nomination, notify the person who made the nomination of the determination, and
(c)  notify the Minister, the NRC and the Secretary of the determination, and
(d)  publish notice of the determination in a newspaper circulating generally throughout the State and, if the determination is likely to affect a particular area or areas (other than the State as a whole), in a newspaper circulating generally in that area or areas, and
(e)  publish notice of the making of the determination in the Gazette.
(2)  The notice must specify the manner in which members of the public may obtain a copy of the determination and the reasons for it.
(3)  The reasons for a final determination are to include reference to such of the criteria prescribed by the regulations under sections 220F–220FC as may be relevant to the determination.
(4)  Copies of the final determination and the reasons for it are to be made available to members of the public (free of charge) as follows—
(a)  by publication on the internet site of the Department,
(b)  in response to a request made by contacting an office of the Department in a manner specified in the notice of the determination,
(c)  in response to a request made in person at an office of the Department at an address specified in the notice of the determination.
(5)  The validity of a final determination cannot be questioned in any legal proceedings except those commenced in a court by any person within 3 months of the date of publication in the Gazette of notice of the making of the final determination.
s 220MA: Ins 2004 No 88, Sch 2 [21].
220N   Provisional listing
(1)  This section applies to the provisional listing, on an emergency basis, of a species in Part 1 of Schedule 4 as an endangered species, being a species that—
(a)  although not previously known to have existed in New South Wales, is believed on current knowledge to be indigenous to New South Wales, or
(b)  was presumed to be extinct in New South Wales but has been rediscovered.
(2)  The Fisheries Scientific Committee may make a determination for the provisional listing of any such endangered species without complying with sections 220K, 220L (3)–(6) and 220M. The other provisions of this Subdivision apply to and in respect of any such determination.
(2A)  The Fisheries Scientific Committee must make a determination about a nomination within 6 months after it is made or, if additional information has been requested, after that information has been provided or the period specified for its provision has expired. Failure to make a determination within that period does not affect the validity of the determination.
(3)  An order made for the purpose of provisionally listing the endangered species must provide, in the matter inserted in Schedule 4, that the listing has effect for a specified period (not exceeding 12 months).
(4)  The Fisheries Scientific Committee must review the status of any such endangered species in accordance with this Subdivision (including section 220K) as soon as practicable after the species is provisionally listed.
s 220N: Ins 1997 No 153, Sch 1 [9]. Am 2004 No 88, Sch 2 [22].
220NA   Lists to be kept under review
(1)  The Fisheries Scientific Committee must keep the lists in Schedules 4, 4A, 5 and 6 under review and must, at least every 2 years, determine whether any changes to the lists are necessary.
(2)  The NRC or the Minister may give advice or make recommendations to the Fisheries Scientific Committee concerning priorities for the review of the lists in Schedules 4, 4A, 5 and 6 under this section, and the Fisheries Scientific Committee is to have regard to any such advice or recommendations.
(3)  The NRC or the Minister may give directions to the Fisheries Scientific Committee requiring the Fisheries Scientific Committee to undertake investigations for the purpose of identifying species, populations and communities that are potentially threatened species, populations and communities.
s 220NA: Ins 2004 No 88, Sch 2 [23].
220O   Protection measures apart from listing
(1)  The Fisheries Scientific Committee may, if of the opinion that a species, population or ecological community should be protected but does not satisfy the criteria for listing, recommend to the Minister that other measures should be taken under this Act to protect the species, population or ecological community.
(2)  The Minister is to give the Committee the reasons for any rejection of such a recommendation of the Committee.
Note—
The measures that could be taken to protect an unlisted species, population or ecological community include fishing closures (s 8), prohibitions on the taking of specified species of fish (s 19—protected fish), prohibitions on the taking of specified species of fish for sale or taking fish from specified waters (s 20—fish and waters protected from commercial fishing), prohibitions on recreational fishing (s 20A—fish and waters protected from recreational fishing), bag limits (s 17), declaration of prohibited size of fish (s 15), restrictions on the lawful use of fishing gear (s 24), fishing determinations and quotas (Part 2A), declaration of share management fishery (ss 41–101), declaration of restricted fishery (ss 111–116), habitat protection plans (s 192) and protection of marine vegetation (ss 204–205A).
s 220O: Ins 1997 No 153, Sch 1 [9]. Am 2001 No 104, Sch 1 [25]; 2015 No 15, Sch 2.23; 2015 No 59, Sch 1 [104] [105].
Division 3 Critical habitat of endangered species, populations and ecological communities and critically endangered species and ecological communities
pt 7A, div 3, hdg: Ins 1997 No 153, Sch 1 [9]. Subst 2004 No 88, Sch 2 [24].
pt 7A, div 3: Ins 1997 No 153, Sch 1 [9].
220P   Habitat eligible to be declared critical habitat
(1)  The whole or any part of the habitat of an endangered species, population or ecological community or critically endangered species or ecological community that is critical to the survival of the species, population or ecological community is eligible to be declared under this Division to be the critical habitat of the species, population or ecological community.
(2)  The regulations may provide that a specified habitat, or habitat of a specified kind, may, or may not, be declared to be critical habitat for the purposes of this Division.
Note—
For the purposes of this section, habitat means any area occupied, or periodically or occasionally occupied, by fish or marine vegetation (or both), and includes any biotic or abiotic component—see section 4.
s 220P: Ins 1997 No 153, Sch 1 [9]. Am 2004 No 88, Sch 2 [25].
220Q   Identification of critical habitat
(1)  The Minister is to identify (where this is possible) the critical habitat of each endangered species, population and ecological community and each critically endangered species and ecological community.
(2)  The Minister must consult the Fisheries Scientific Committee about the identification of any such critical habitat and must not make a preliminary identification until the Minister has considered the advice of the Committee on the matter.
s 220Q: Ins 1997 No 153, Sch 1 [9]. Am 2004 No 88, Sch 2 [26].
220R   Publication of preliminary identification and consultation with other Ministers
(1)  After making a preliminary identification of critical habitat, the Minister must—
(a)  give details of the preliminary identification to the Fisheries Scientific Committee, and
(b)  give a copy of the notice of the preliminary identification that is required to be published under section 284 to all affected persons, and
(c)  give the public an opportunity to make submissions about the preliminary identification.
Note—
Section 284 regulates the public consultation procedure. It requires copies of the preliminary identification to be publicly exhibited and a period of at least 30 days provided for public comment.
(2)  If a submission from a public authority indicates that the declaration of the area concerned as critical habitat is likely to affect the exercise of functions by the public authority, the Minister is to consult with the responsible Minister for the public authority before making a decision on the matter.
(3)  For the purposes of this Division, an affected person is any of the following persons who (to the knowledge of the Minister after the making of reasonable searches and inquiries) would be affected by the declaration of critical habitat—
(a)  landholders (including public authorities who are landholders) of the land concerned,
(b)  other public authorities known to the Minister to exercise relevant functions in relation to the land concerned,
(c)  if the land concerned is subject to a mortgage, charge or positive covenant—the mortgagee, chargee or person entitled to the benefit of the covenant,
(d)  holders of leases and other interests granted by the Crown over the land concerned.
s 220R: Ins 1997 No 153, Sch 1 [9].
220S   Matters to which Minister to have regard in declaring critical habitat
(1)  Before deciding whether an area identified by the Minister should be declared critical habitat, the Minister must have regard to the following—
(a)  the likely social and economic consequences of a declaration of the area as critical habitat,
(b)  without limiting paragraph (a), the likely consequences of a declaration of the area as critical habitat for landholders of, or other persons having an interest in, or in lawful uses of, the land concerned,
(c)  the advice of the Fisheries Scientific Committee on the matter,
(d)  any written submissions received by the Minister on or before the date specified for the receipt of public submissions about the preliminary identification of the area and, in particular, any submissions received from public authorities exercising relevant functions in relation to the area.
(2)  In so doing, the Minister must also consider whether, consistent with the principles of ecologically sustainable development, the area identified might be amended to avoid or lessen any adverse consequences of its declaration as critical habitat.
s 220S: Ins 1997 No 153, Sch 1 [9].
220T   Declaration of critical habitat by Minister
(1)  The Minister may, by notification published in the Gazette, declare an area described in the notification to be the critical habitat of a specified endangered species, population or ecological community or critically endangered species or ecological community.
Editorial note—
For notification of critical habitat see Gazette No 237 of 29.11.2002, p 10137.
(2)  The Minister must not do so until the Minister has made a preliminary identification of the area as critical habitat and complied with the other requirements of this Division with respect to the declaration of that area as critical habitat.
(3)  The Minister may declare the area the subject of the preliminary identification to be critical habitat without amendment or with any amendments that the Minister considers appropriate.
(4)  The Minister may refuse to declare the area the subject of the preliminary identification to be critical habitat (on the basis of one or more of the factors referred to in section 220S or otherwise).
(5)  The Minister must make a decision on whether to declare a particular area as critical habitat within 6 months after the date specified for the receipt of public submissions about the preliminary identification of the area.
(6)  As soon as practicable after the declaration of critical habitat, the Minister must—
(a)  give notice of the declaration to all affected persons, and
(b)  publish notice of the declaration in a newspaper circulating generally throughout the State and in a newspaper circulating generally in the area declared to be critical habitat.
Note—
See section 220W for requirements with respect to the publication of a map of the critical habitat.
s 220T: Ins 1997 No 153, Sch 1 [9]. Am 2004 No 88, Sch 2 [25].
220U   Amendment or revocation of declaration of critical habitat
(1)  The Minister may amend or revoke a declaration of critical habitat by a further notification published in the Gazette.
(2)  However, the Minister must not amend or revoke a declaration unless the Minister—
(a)  has consulted the Fisheries Scientific Committee about the matter, and
(b)  has given notice of the proposed amendment or revocation to affected persons and given the public an opportunity to make submissions as if it were a preliminary identification of critical habitat, and
(c)  has had regard to the matters the Minister would be required to have regard to if it were a decision to declare critical habitat.
(3)  The Minister must give notice of the amendment or revocation to all affected persons as if it were a declaration of critical habitat.
(4)  The Minister must, in a notification amending or revoking a declaration of critical habitat and in a notice under subsection (3), give the reasons for the amendment or revocation of the declaration.
s 220U: Ins 1997 No 153, Sch 1 [9].
220V   Public authorities to have regard to critical habitat
A public authority must have regard to the existence of critical habitat declared under this Division—
(a)  in relation to the use of any of the land concerned of which it is a landholder, or
(b)  in exercising its functions in relation to any of the land concerned.
s 220V: Ins 1997 No 153, Sch 1 [9]. Am 2016 No 63, Sch 11.2 [8].
220W   Maps of critical habitat
(1)  Before any critical habitat is declared or any declaration of critical habitat is amended, the Minister must arrange for the preparation of a map that shows the location of the critical habitat proposed to be declared or amended.
(2)  A copy of the map is to be published in the Gazette and the description in a notification of the area declared to be critical habitat, or any amendment of that area, is to be provided by or by reference to that map.
(3)  The Minister must serve a copy of a map of critical habitat on the following—
(a)  the Secretary of the Department of Planning and Environment,
(b)    (Repealed)
(c)  each local council within whose area the whole or part of the critical habitat is located,
(d)  any other affected persons as the Minister considers appropriate.
s 220W: Ins 1997 No 153, Sch 1 [9]. Am 2015 No 59, Sch 1 [106].
220X   Minister to keep register of critical habitat
(1)  The Minister must keep a register containing copies of declarations of critical habitat as in force from time to time, and maps of the critical habitat that are published in the Gazette.
(2)  The register is to be made available to public authorities.
(3)  The register is to be open for public inspection, without charge, during ordinary business hours, and copies of or extracts from the register are to be made available to the public on request, on payment of the fee fixed by the Minister.
s 220X: Ins 1997 No 153, Sch 1 [9].
220Y   Discretion not to disclose location of critical habitat
(1)  Despite the other provisions of this Division, the Minister may decline to disclose the precise location of critical habitat (or proposed critical habitat) in accordance with this Division to the public or to any class of affected persons. This subsection extends to the notification of a preliminary identification of critical habitat, the declaration of critical habitat, any public or other notice of any such declaration, the service of a copy of any map or the keeping of any register under this Division.
(2)  The Minister may decline to disclose the precise location of critical habitat (or proposed critical habitat) only if the Minister is satisfied that—
(a)  the disclosure would be likely to expose the habitat and the endangered species, population or ecological community or critically endangered species or ecological community that occupies it to a significant threat, and
(b)  each landholder of land concerned agrees that the precise location should not be disclosed, and
(c)  it is in the public interest that the precise location should not be disclosed.
(3)  This section does not prevent the Minister from disclosing the precise location of critical habitat (or proposed critical habitat) to particular persons, including—
(a)  landholders or other persons having an interest in, or in lawful uses of, the land, or
(b)  public authorities exercising functions in relation to the land, or
(c)  persons entitled by law to notice of the existence of interests in or proposals affecting the land.
s 220Y: Ins 1997 No 153, Sch 1 [9]. Am 2004 No 88, Sch 2 [25].
220Z   Effect of failure to comply with procedural requirements
A declaration of critical habitat (or any amendment or revocation of the declaration) is not open to challenge, because of a failure to comply with the procedural requirements of this Division, after notification of the declaration (or of the amendment or revocation) has been published in the Gazette.
s 220Z: Ins 1997 No 153, Sch 1 [9].
Division 4 Offences
pt 7A, div 4: Ins 1997 No 153, Sch 1 [9].
220ZA   Harming threatened species, populations or ecological communities
A person must not harm any fish or marine vegetation of a threatened species, population or ecological community.
Maximum penalty—
(a)  in the case of any endangered species, population or ecological community—2,000 penalty units or imprisonment for 2 years, or both, or
(b)  in the case of any vulnerable species—500 penalty units or imprisonment for 1 year, or both.
ss 220ZA–220ZC: Ins 1997 No 153, Sch 1 [9].
220ZB   Buying, selling or possessing threatened species
(1)  A person must not buy, sell or have in possession any fish or marine vegetation of a threatened species.
Maximum penalty—
(a)  in the case of any endangered species—2,000 penalty units or imprisonment for 2 years, or both, or
(b)  in the case of any vulnerable species—500 penalty units or imprisonment for 1 year, or both.
(2)  The following are exempt from this section—
(a)  fish or marine vegetation that has been cultivated or kept under the authority of an aquaculture permit,
(b)  any class of fish or marine vegetation exempted by the regulations, subject to such conditions as may be specified in the regulations.
ss 220ZA–220ZC: Ins 1997 No 153, Sch 1 [9].
220ZC   Damage to critical habitat
(1)  A person must not, by an act or omission, do anything that causes damage to any critical habitat.
Maximum penalty—2,000 penalty units or imprisonment for 2 years, or both.
(2)  If a map of the critical habitat has been duly published in the Gazette, it is not necessary for the prosecution to prove that the person knew that the habitat was declared as critical habitat or that the accused knew that it was the habitat of an endangered species, population or ecological community.
(3)  It is a defence to a prosecution for an offence against this section in relation to an area of critical habitat that the Minister has declined to disclose its precise location under section 220Y and that the accused did not know and could not reasonably be expected to have known that the area was critical habitat.
ss 220ZA–220ZC: Ins 1997 No 153, Sch 1 [9].
220ZD   Damage to habitat of threatened species, population or ecological community
(1)  A person must not, by an act or omission, do anything that causes damage to any habitat (other than critical habitat) of a threatened species, population or ecological community if the person knows that the area concerned is habitat of that kind.
Maximum penalty—1,000 penalty units or imprisonment for 1 year, or both.
(2)  In proceedings for an offence under this section in respect of an act or an omission of a person that causes damage to any habitat (other than critical habitat) of a threatened species, population or ecological community, it is to be conclusively presumed that the person knew that the land concerned was habitat of that kind if it is established that—
(a)  the act or omission occurred in the course of the carrying out of development or an activity for which development consent under Part 4 of the Environmental Planning and Assessment Act 1979, or an approval to which Part 5 of that Act applies, was required but not obtained, or
(b)  the act or omission constituted a failure to comply with any such development consent or approval.
s 220ZD: Ins 1997 No 153, Sch 1 [9]. Am 2004 No 88, Sch 2 [27].
220ZE   Regulations may prohibit certain actions
(1)  The regulations may prohibit or regulate, for the purposes of this Part, the carrying out of specified actions, or actions of a specified class or description—
(a)  in specified waters, or
(b)  within a prescribed distance of any fish or marine vegetation of a threatened species, or
(c)  within a prescribed distance of the habitat of any fish or marine vegetation of a threatened species, or
(d)  on specified critical habitat.
(2)  Any such regulation may create an offence punishable by a penalty not exceeding 100 penalty units.
s 220ZE: Ins 1997 No 153, Sch 1 [9]. Am 2009 No 114, Sch 1 [111].
220ZF   Defences
(1)  It is defence to a prosecution for an offence against this Division if the accused proves that the act or omission constituting the offence—
(a)  was authorised by, and was done or omitted in accordance with—
(i)  a licence granted under this Part, or
(ii)  a Ministerial order or interim order made under Subdivision 1A of Division 6, or
(iii)  an approval under section 37, or
(iv)  an aquaculture permit, or
(b)  was essential for the carrying out of—
(i)  development in accordance with a development consent within the meaning of the Environmental Planning and Assessment Act 1979, or
(ii)  an activity, whether by a determining authority or pursuant to an approval of a determining authority within the meaning of Part 5 of that Act, if the determining authority has complied with that Part, or
(iii)  a project approved under Part 3A of the Environmental Planning and Assessment Act 1979, or
(iv)  State significant infrastructure approved under Part 5.1 of the Environmental Planning and Assessment Act 1979, or
(b1)    (Repealed)
(b2)  was essential for the clearing of native vegetation in accordance with the authority conferred by Part 5A of, and Schedule 5A to, the Local Land Services Act 2013, or
(b3)  was the carrying out of a forestry operation in a State forest or other Crown-timber land to which an integrated forestry operations approval under Part 5B of the Forestry Act 2012 applies, being a forestry operation that was carried out in accordance with the approval, or
(b4)  was the carrying out of a forestry operation that was authorised by a private native forestry plan and that was carried out in accordance with the plan and the applicable private native forestry code of practice, or
(c)  was authorised by or under the State Emergency and Rescue Management Act 1989 and was reasonably necessary in order to avoid a threat to life or property, or
(d)  was a routine fishing activity (unless it was an activity of a kind that the regulations declare is not a routine fishing activity for the purposes of this paragraph), or
(e)  was a routine aquacultural activity (unless it was an activity of a kind that the regulations declare is not a routine activity for the purposes of this paragraph), or
(f)    (Repealed)
(g)  was an act or omission in relation to which the Secretary issued to the accused a certificate, under section 220ZZ(4), to the effect that a licence was not required for the act or omission concerned.
(2)  If the provisions of any other Act or law or of any instrument made under any other Act or law authorise or require anything to be done that would constitute an offence under this Part—
(a)  this Part prevails (except in relation to a matter referred to in subsection (1)(b) or (c)), and
(b)  a person is not to be convicted of an offence against the other Act, law or instrument because of the person’s failure to comply with the other Act, law or instrument if compliance with the other Act, law or instrument would constitute an offence under this Part.
(3)    (Repealed)
(4)  The Secretary may, for the purposes of subsection (1)(f), approve of a property management plan for land prepared by a landholder. Any such plan may identify an activity even if it is declared not to be a routine fishing activity or routine aquacultural activity for the purposes of subsection (1)(d) or (e).
(5)  This section does not apply in relation to any thing authorised to be done by or under the Rural Fires Act 1997 in relation to any emergency fire fighting act within the meaning of that Act.
(6)  In this section, a routine fishing activity means a routine activity carried out in connection with the lawful taking of fish or marine vegetation other than a threatened species, population or ecological community.
(7)  A defence that the act or omission constituting the offence was a routine fishing activity or routine aquaculture activity is available in proceedings for an offence against this Division only if the person charged satisfies the court that, on becoming aware of taking any fish of a threatened species, population or ecological community, the person took immediate steps to return the fish to its natural environment with the least possible injury.
s 220ZF: Ins 1997 No 153, Sch 1 [9]. Am 2001 No 104, Sch 1 [26]; 2002 No 67, Sch 5.2 [1] [2]; 2004 No 88, Sch 2 [28] [29]; 2005 No 43, Sch 7.4 [2]; 2009 No 114, Sch 1 [112]–[114]; 2010 No 59, Sch 2.33 [3]; 2011 No 22, Sch 2.6 [3]; 2015 No 59, Sch 1 [107] [108]; 2016 No 63, Sch 11.2 [9] [10]; 2018 No 40, Sch 3.4.
220ZFA   Further defences
(1)  It is a defence to a prosecution for an offence against this Division if the accused proves that the act constituting the alleged offence was any of the following activities—
(a)  clearing of native vegetation that constitutes a routine agricultural management activity,
(b)  a routine farming practice activity (other than clearing of native vegetation),
Note—
Both (a) and (b) must be read subject to subsection (3).
(c)  an activity that is permitted under any of the following provisions of the Native Vegetation Act 2003
(i)  section 19 (Clearing of non-protected regrowth permitted),
(ii)  section 23 (Continuation of existing farming activities),
(iii)  section 24 (Sustainable grazing),
(d)  any other activity prescribed by the regulations for the purposes of this section.
(2)  Each of the following is a routine agricultural management activity for the purposes of this section—
(a)  the construction, operation and maintenance of rural infrastructure—
(i)  including (subject to the regulations) dams, permanent fences, buildings, windmills, bores, air strips (in the Western Division), stockyards, and farm roads, but
(ii)  not including rural infrastructure in areas zoned as rural-residential under environmental planning instruments or on small holdings (as defined in the regulations),
(b)  anything done to prevent, eliminate, minimise or manage a biosecurity risk posed or likely to be posed by a pest (within the meaning of the Biosecurity Act 2015) and which is authorised or required by any of the following—
(i)  the mandatory measures under that Act,
(ii)  an emergency order under that Act,
(iii)  a control order under that Act,
(iv)  a biosecurity zone regulation under that Act,
(v)  a biosecurity direction under that Act.
(c)    (Repealed)
(d)  the collection of firewood (except for commercial purposes),
(e)  the harvesting or other clearing of native vegetation planted for commercial purposes,
(f)  the lopping of native vegetation for stock fodder (including uprooting mulga in the Western Division in areas officially declared to be drought affected),
(g)  traditional Aboriginal cultural activities (except commercial activities),
(h)  the maintenance of public utilities (such as those associated with the transmission of electricity, the supply of water, the supply of gas and electronic communication),
(i)  any activity reasonably considered necessary to remove or reduce an imminent risk of serious personal injury or damage to property.
(3)  This section does not authorise the doing of an act—
(a)  if it exceeds the minimum extent reasonably necessary for carrying out the routine agricultural management activity or routine farming practice activity, or
(b)  if it is done for a work, building or structure before the grant of any statutory approval or other authority required for the work, building or structure.
(4)  This section does not apply to land described or referred to in Part 3 (Urban areas) of Schedule 1 to the Native Vegetation Act 2003.
(5)  The regulations may make provision for or with respect to—
(a)  extending, limiting or varying the activities referred to in subsection (1) (and that subsection is to be construed accordingly), or
(b)  excluding any specified land or class of land from the operation of subsection (1), or
(c)  including any specified land or class of land in the operation of subsection (1) that would otherwise be excluded from its operation by subsection (4).
(6)  Until regulations under subsection (5) otherwise provide, any regulations in force under section 11(2) of the Native Vegetation Act 2003 apply for the purposes of extending, limiting or varying the activities referred to in subsection (2) in the same way as those regulations apply for the purposes of extending, limiting or varying the activities referred to in section 11(1) of that Act.
s 220ZFA: Ins 2004 No 88, Sch 2 [30]. Am 2013 No 51, Sch 7.17 [2]; 2015 No 24, Sch 8.17 [4].
220ZFB   Defences relating to joint management agreements
It is a defence to a prosecution for an offence against—
(a)  this Division or the regulations under this Division, or
(b)  Part 2 or 7 or the regulations under those Parts,
if the accused proves that the act or omission constituting the alleged offence was authorised by, and done in accordance with, a joint management agreement.
s 220ZFB: Ins 2008 No 86, Sch 1 [2].
220ZG   Court may order offender to mitigate damage or restore habitat
(1)  If a court convicts a person of an offence against this Part and is satisfied the offence has caused damage to any threatened species, population or ecological community or to the habitat of any threatened species, population or ecological community, the court may, in addition to or in substitution for any pecuniary penalty for the offence, direct the person to take any action to mitigate the damage or to restore the habitat.
(2)  The court may specify the actions to be taken to mitigate the damage or restore the habitat and may order the person to maintain the habitat until those actions have been fully performed.
(3)  The court may order the person to provide security for the performance of any obligation imposed under this section.
(3A)  If the requirements of an order under this section are not complied with within the period specified in it, the Minister—
(a)  may cause the actions specified in the order to be carried out, and
(b)  may claim or realise any security provided under this section by the person against whom the order was made to meet the reasonable costs of carrying out the actions specified in the order, and
(c)  may, by proceedings brought in a court of competent jurisdiction, recover as a debt from the person against whom the order was made the reasonable costs of carrying out the actions specified in the order (or the balance of those costs after claiming or realising any security provided by the person).
(4)  For the purposes of this section, a conviction includes the making of an order under section 10 of the Crimes (Sentencing Procedure) Act 1999.
s 220ZG: Ins 1997 No 153, Sch 1 [9]. Am 1999 No 94, Sch 4.25; 2009 No 114, Sch 1 [115] [116].
220ZGA   Community service work
(1)  If a court makes an intensive correction order or community correction order respectively subject to a community service work condition in respect of a person convicted of an offence against this Part, the court may recommend that the community service work to be performed by the person include work the purpose of which is to restore damage to habitat (whether or not caused by the person) or to otherwise assist in achieving the objects of this Part.
(2)  This section does not limit the powers of a court under the Crimes (Sentencing Procedure) Act 1999.
(3)  In this section—
community service work has the same meaning as it has in the Crimes (Sentencing Procedure) Act 1999.
intensive correction order and community correction order have the same meanings as they have in the Crimes (Sentencing Procedure) Act 1999.
s 220ZGA: Ins 2009 No 114, Sch 1 [117]. Am 2017 No 53, Sch 4.20 [1]–[3].
Division 4A Interfering with fish of threatened species
pt 7A, div 4A: Ins 2009 No 114, Sch 1 [118].
220ZGB   Interfering with fish of threatened species
(1)  A person must not interfere with any fish of a threatened species.
Maximum penalty—1,000 penalty units or imprisonment for 2 years, or both.
(2)  In this section, interfere with includes harass, chase, tag or mark the fish or engage in any activity for the purposes of attracting or repelling the fish or any other activity prescribed by the regulations.
(3)  A reference in section 220ZW, 221IA or 221O to harming any threatened species includes interfering with the threatened species.
(4)  A person is not guilty of an offence under this section if the act or omission constituting the offence was authorised by, and was done or omitted in accordance with—
(a)  a licence granted under this Part, or
(b)  a Ministerial order or interim order made under Subdivision 1A of Division 6, or
(c)  a permit under this Act, or
(d)  a biodiversity conservation licence under the Biodiversity Conservation Act 2016.
(5)  A person is not guilty of an offence under this section if the act or omission constituting the offence was—
(a)  an action taken or omitted by the person that was reasonably necessary to prevent a risk to human health or to deal with a serious threat to human life or property, or
(b)  done in accordance with a direction given to the person by a fisheries officer.
(6)  The regulations may provide for exceptions to this Division or for defences to the prosecution of an offence against this Division.
s 220ZGB: Ins 2009 No 114, Sch 1 [118]. Am 2016 No 63, Sch 11.2 [11].
Division 5 Recovery plans and threat abatement plans
pt 7A, div 5: Ins 1997 No 153, Sch 1 [9].
220ZH   Application of Division
(1)  This Division applies to the preparation, approval and implementation of—
(a)  recovery plans for threatened species, populations and ecological communities, and
(b)  threat abatement plans to manage key threatening processes.
(2)  In this Division, plan means any such recovery plan or threat abatement plan.
s 220ZH: Ins 1997 No 153, Sch 1 [9].
220ZI   Secretary to prepare recovery plans for threatened species, populations and ecological communities
(1)  The Secretary may prepare a recovery plan—
(a)  for each endangered or critically endangered species (other than a species presumed extinct), and
(b)  for each endangered population, and
(b1)  for each endangered or critically endangered ecological community, and
(c)  for each vulnerable species,
to promote the recovery of the species, population or ecological community to a position of viability in nature.
(2)  A recovery plan may contain provisions relevant to more than one species, population or ecological community and may be made for part of a range of a species, population or ecological community, and more than one recovery plan may be prepared for a species, population or ecological community.
s 220ZI: Ins 1997 No 153, Sch 1 [9]. Am 2004 No 88, Sch 2 [31]–[34]; 2015 No 59, Sch 1 [109].
220ZJ   Secretary to prepare threat abatement plans
(1)  The Secretary may prepare a threat abatement plan for each key threatening process to manage the threatening process so as to abate, ameliorate or eliminate its adverse effects on threatened species, populations or ecological communities.
(2)  A threat abatement plan may contain provisions dealing with more than one key threatening process and more than one threat abatement plan may be prepared for a key threatening process.
s 220ZJ: Ins 1997 No 153, Sch 1 [9]. Am 2004 No 88, Sch 2 [35].
220ZJA   (Repealed)
s 220ZJA: Ins 2002 No 78, Sch 2.2 [4]. Am 2015 No 59, Sch 1 [110]. Rep 2016 No 63, Sch 11.2 [12].
220ZK   Priorities for recovery or threat abatement plans
Priorities in the preparation of recovery plans or threat abatement plans are to be in accordance with the priorities for recovery or threat abatement established by the relevant Priorities Action Statement.
s 220ZK: Ins 1997 No 153, Sch 1 [9]. Subst 2004 No 88, Sch 2 [36].
220ZL   (Repealed)
s 220ZL: Ins 1997 No 153, Sch 1 [9]. Rep 2004 No 88, Sch 2 [37].
220ZM   Guidelines for recovery or threat abatement plans
(1)  The Secretary must, in preparing a plan and in deciding which measures to include in it, have regard to the following—
(a)  the objects of this Part,
(b)  the likely social and economic consequences of the making of the plan,
(c)  the most efficient and effective use of available resources for the conservation of threatened species, populations and ecological communities,
(d)  the desirability of minimising any significant adverse social and economic consequences.
(2)  The Secretary is to consider, when preparing a plan, any measures by which the public may co-operate—
(a)  in the conservation of the threatened species, population or ecological community, or
(b)  in the abatement, amelioration or elimination of the adverse effects of the key threatening process on threatened species, populations or ecological communities.
s 220ZM: Ins 1997 No 153, Sch 1 [9].
220ZN   Contents of recovery or threat abatement plans
(1) Recovery plans A recovery plan must—
(a)  identify the threatened species, population or ecological community to which it applies, and
(b)  identify any critical habitat declared in relation to the threatened species, population or ecological community, and
(c)  identify any threatening process or processes threatening the threatened species, population or ecological community, and
(d)  identify methods by which adverse social and economic consequences of the making of the plan can be minimised, and
(e)  state what must be done to ensure the recovery of the threatened species, population or ecological community, and
(f)  state what must be done to protect the critical habitat (if any) identified in the plan, and
(g)  state, with reference to the objects of this Part—
(i)  the way in which those objects are to be implemented or promoted for the benefit of the threatened species, population or ecological community, and
(ii)  the method by which progress towards achieving those objects is to be assessed, and
(h)  identify the persons or public authorities who are responsible for the implementation of the measures included in the plan, and
(i)  state the date by which the recovery plan should be subject to review by the Secretary.
(2) Threat abatement plans A threat abatement plan must—
(a)  state the criteria for assessing the achievement of the objective, and
(b)  identify the actions needed to abate, ameliorate or eliminate the effects of the key threatening process, and
(c)  identify the persons or public authorities who are responsible for the implementation of the measures included in the plan, and
(d)  where practicable, provide a proposed timetable for the implementation of the plan, and
(e)  state the estimated cost of the measures included in the plan, and
(f)  state the date by which the plan should be subject to review by the Secretary, and
(g)  include any other matter relating to the impact of the plan as the Secretary considers appropriate.
s 220ZN: Ins 1997 No 153, Sch 1 [9].
220ZO   Public and other consultation concerning draft recovery or threat abatement plan
(1) Publication of draft plans As soon as practicable after preparing a draft plan, the Secretary must—
(a)  give a copy of the draft plan to the Fisheries Scientific Committee, and
(b)  give a copy of the draft plan to any public authority that the Secretary knows is likely to be affected by the plan, and
(c)  give the public an opportunity to make submissions on the draft plan.
Note—
Section 284 regulates the public consultation procedure. It requires copies of the draft plan to be publicly exhibited and a period of at least 30 days for public comment.
(2) Consideration of submissions by Secretary The Secretary must consider all written submissions received by the Secretary on or before the date specified for the receipt of public submissions about the draft plan. The Secretary may amend the draft plan to take account of those submissions or any advice given by the Fisheries Scientific Committee.
(3)  If the Secretary considers that a public authority should be responsible for the implementation of a measure to be included in a plan—
(a)  the Secretary must consult with the chief executive officer of the public authority before completing the preparation of the plan, and
(b)  a measure must not be included in a plan for implementation by a public authority unless the chief executive officer of the public authority approves of the inclusion of the measure.
s 220ZO: Ins 1997 No 153, Sch 1 [9]. Am 2004 No 88, Sch 2 [38].
220ZP   Approval of recovery or threat abatement plan by Minister
(1)  After considering the submissions and making amendments (if any) to the draft plan, the Secretary must—
(a)  forward the draft plan to the Minister, and
(b)  provide the Minister with a summary of any advice given by the Fisheries Scientific Committee and of all submissions received about the draft plan, and details of any amendments made to the draft plan by the Secretary to take account of that advice or those submissions.
(2)  In considering whether to approve or to refuse to approve a draft plan, the Minister must have regard to the likely social and economic consequences of the approval of the plan.
(3)  The Minister may—
(a)  approve a draft plan without amendment or with any amendments that the Minister considers appropriate, or
(b)  refuse to approve the plan (on the basis of the likely social or economic consequences of the plan or otherwise), or
(c)  refer the plan back to the Secretary for further consideration (whether with or without a request for the amendment of the plan).
ss 220ZP–220ZT: Ins 1997 No 153, Sch 1 [9].
220ZQ   Recovery and threat abatement plans to be published
(1)  As soon as practicable after the Minister approves a draft plan, the Secretary must—
(a)  give a copy of the plan to the Fisheries Scientific Committee, and
(b)  publish notice of the approval of the plan in a newspaper circulating generally throughout the State and in such local newspapers (if any) as the Secretary considers appropriate, and
(c)  notify any public authority that the Secretary knows is likely to be affected by the plan, and
(d)  publish notice of the approval of the plan in the Gazette.
(2)  The Secretary must also make a copy of the plan available for public inspection, without charge, during ordinary business hours and copies of or extracts from the plan are to be made available to the public on request, on payment of the fee fixed by the Secretary.
ss 220ZP–220ZT: Ins 1997 No 153, Sch 1 [9].
220ZR   Review of recovery and threat abatement plans
(1)  The Secretary is required to keep each plan under review and, if a date by which a plan is to be reviewed is stated in it, is to review the plan by that date.
(2)  The Secretary is also to consider any submissions about plans received from public authorities or the public.
(3)  If the Secretary considers that any change (other than a minor change) should be made to a plan, the Secretary is to prepare a new plan in accordance with this Division.
ss 220ZP–220ZT: Ins 1997 No 153, Sch 1 [9].
220ZS   Ministers and public authorities to implement recovery and threat abatement plans
(1)  Ministers and public authorities are to take any appropriate action available to them to implement those measures included in a plan for which they are responsible and must not make decisions that are inconsistent with the provisions of a plan.
(2)  If the implementation of a plan affects a statutory discretion of a Minister or public authority, this section does not operate to exclude the discretion, but the Minister or public authority must take the plan into account.
(3)  This section does not operate to require or authorise any action by a Minister or public authority that is inconsistent with any statutory or other legal obligation of the Minister or public authority.
ss 220ZP–220ZT: Ins 1997 No 153, Sch 1 [9].
220ZT   Public authorities to report on implementation of recovery and threat abatement plans
(1)  A public authority (other than a local council) identified in a plan as responsible for the implementation of measures included in the plan must report on action taken by it to implement those measures in its annual report to Parliament.
(2)  A local council identified in a plan as responsible for the implementation of measures included in the plan must report on action taken by it to implement those measures in its annual report as to the state of the environment of its area.
ss 220ZP–220ZT: Ins 1997 No 153, Sch 1 [9].
220ZU   Notification of, and consultation concerning, proposed departures from recovery or threat abatement plan
(1)  A public authority must not exercise a function in a manner that is inconsistent with the implementation of measures included in a plan unless the public authority has given notice of the proposed exercise of the function to the Secretary.
(2)  The Secretary must, on receiving notice of a proposed departure from a plan from a public authority, advise the Minister whether the exercise of the function in the manner proposed is acceptable or whether it is likely to jeopardise the effective implementation of the plan.
(3)  If the Minister (having regard to that advice) considers that the departure is acceptable, the Secretary must notify the public authority accordingly.
(4)  If the Minister (having regard to that advice) considers that the departure is likely to jeopardise the effective implementation of the plan, the Secretary must consult with the public authority in an endeavour to resolve the matter by modification of the action proposed or by other mutually acceptable means.
(5)  This section does not apply in relation to anything authorised to be done by or under the State Emergency and Rescue Management Act 1989 that is reasonably necessary in order to avoid a threat to life or property.
(6)  This section does not apply in relation to any thing authorised to be done by or under the Rural Fires Act 1997 in relation to any emergency fire fighting act within the meaning of that Act.
s 220ZU: Ins 1997 No 153, Sch 1 [9]. Am 2002 No 67, Sch 5.2 [3] [4].
220ZV   Reference of matters concerning departures to Ministers and Premier for settlement
(1)  A matter that has not been resolved after consultation between the Secretary and the public authority concerned must be referred by the parties to their respective Ministers.
(2)  In the case of a local council, the reference is to be made to the Minister administering the Local Government Act 1993 unless the matter relates, in whole or in part, to the exercise of functions under the Environmental Planning and Assessment Act 1979. In that event, the reference is to be made to the Minister administering the Environmental Planning and Assessment Act 1979.
(3)  The Ministers, on receiving a reference, are to consult in an endeavour to resolve the matter by means that the Ministers consider to be appropriate.
(4)  If the Ministers are unable to resolve the matter after consultation, it is to be referred to the Premier for resolution.
(5)  A public authority must give effect to any decision of, or directions made or given by, the Premier on the matter and is, despite the requirements of any other Act or law, empowered to comply with any such decision or directions.
s 220ZV: Ins 1997 No 153, Sch 1 [9].
Division 5A Threatened Species Priorities Action Statements
pt 7A, div 5A (ss 220ZVA–220ZVE): Ins 2004 No 88, Sch 2 [39].
220ZVA   What the Statement provides for
A Threatened Species Priorities Action Statement (also called a Priorities Action Statement) is a statement that—
(a)  sets out the strategies (recovery and threat abatement strategies) to be adopted for promoting the recovery of each threatened species, population and ecological community to a position of viability in nature and for managing each key threatening process as provided by section 220ZJ(1), and
(b)  establishes relative priorities for the implementation of recovery and threat abatement strategies, and
(c)  establishes performance indicators to facilitate reporting on achievements in implementing recovery and threat abatement strategies and their effectiveness, and
(d)  contains a status report on each threatened species, where information is available, and
(e)  sets out clear timetables for recovery and threat abatement planning and achievement.
pt 7A, div 5A (ss 220ZVA–220ZVE): Ins 2004 No 88, Sch 2 [39].
220ZVB   Secretary to prepare and adopt Priorities Action Statement
(1)  The Secretary is to prepare and adopt a Priorities Action Statement for the purposes of this Part.
(2)  The Priorities Action Statement must be completed as soon as practicable and no later than 12 months after the date of assent to the Threatened Species Legislation Amendment Act 2004.
(3)  The Secretary is to review the Priorities Action Statement every 3 years and may make changes to the Priorities Action Statement pursuant to any such review by adopting amendments to the Statement.
(4)  In preparing or reviewing a Priorities Action Statement, the Secretary is to seek advice from the NRC, the Fisheries Scientific Committee, BDAC, SEAC and such other State government agencies as the Secretary considers appropriate.
pt 7A, div 5A (ss 220ZVA–220ZVE): Ins 2004 No 88, Sch 2 [39].
220ZVC   Public consultation on draft statement or amendments
Before adopting a Priorities Action Statement or any amendment to the statement, the Secretary must first prepare a draft of the statement or amendment and give the public an opportunity to make submissions on the draft statement or amendment.
Note—
Section 284 regulates the public consultation procedure. It requires copies of the draft statement to be publicly exhibited and a period of at least 30 days for public comment.
pt 7A, div 5A (ss 220ZVA–220ZVE): Ins 2004 No 88, Sch 2 [39].
220ZVD   Consideration of submissions by Secretary
(1)  The Secretary must consider all written submissions received by the Secretary on or before the date specified in the notice.
(2)  The Secretary may alter the draft statement or amendment to take account of those submissions.
(3)  The Secretary must adopt the Priorities Action Statement or amendment (with or without alterations) within 4 months after the end of the period allowed for the public comment on the draft statement or amendment.
pt 7A, div 5A (ss 220ZVA–220ZVE): Ins 2004 No 88, Sch 2 [39].
220ZVE   Review to include report on achievements
As part of each review of the Priorities Action Statement, the Secretary is to include in the Priorities Action Statement a report on achievements in implementing the strategies established by the Priorities Action Statement during the period to which the review applies.
pt 7A, div 5A (ss 220ZVA–220ZVE): Ins 2004 No 88, Sch 2 [39].
Division 6 Licensing and Ministerial orders
pt 7A, div 6, hdg: Ins 1997 No 153, Sch 1 [9]. Am 2001 No 104, Sch 1 [27].
pt 7A, div 6: Ins 1997 No 153, Sch 1 [9].
Subdivision 1 Grant of licences
pt 7A, div 6, sdiv 1: Ins 1997 No 153, Sch 1 [9].
220ZW   Licence to harm threatened species, population or ecological community or damage habitat
(1)  The Secretary may grant a licence authorising a person to take action that is likely to result in one or more of the following—
(a)  harm to a threatened species, population or ecological community,
(b)  damage to a critical habitat,
(c)  damage to a habitat of a threatened species, population or ecological community.
(2)  An approval under section 37 may only be issued for a purpose referred to in subsection (1)—
(a)  for scientific purposes, or
(b)  for the welfare of fish or marine vegetation, or
(c)  if there is a threat to life or property.
Note—
Section 220ZF provides a defence for offences under Division 4 if the accused proves that the action constituting the alleged offence was a routine fishing, agricultural or aquacultural activity or was authorised by a property management plan approved by the Secretary or by the Chief Executive of the Office of Environment and Heritage.
(3)  A permit under section 37A may not be issued for a purpose referred to in subsection (1).
s 220ZW: Ins 1997 No 153, Sch 1 [9]. Am 2006 No 18, Sch 1 [28]; 2015 No 59, Sch 1 [111] [112].
220ZX   Application for licence
(1)  An application for a licence must be in a form approved by the Secretary and be accompanied by any processing fee payable under this Division.
(2)  If the action proposed to be taken under the authority of the licence is on land that is critical habitat, the application must be accompanied by a species impact statement prepared in accordance with Subdivision 2.
(3)  If the action proposed is not on land that is critical habitat, the application must include the following—
(a)  details of the types, and condition, of habitats in and adjacent to the land to be affected by the action,
(b)  particulars of any known records of a threatened species in the same or similar known habitats in the locality,
(c)  details of any known or potential habitat for a threatened species on the land to be affected by the action,
(d)  details of the amount of such habitat to be affected by the action proposed in relation to the known distribution of the species and its habitat in the locality and region,
(e)  an assessment of the likely nature and intensity of the effect of the action on the life cycle and habitat of the species,
(f)  details of possible measures to avoid or ameliorate the effect of the action.
(4)  An applicant may lodge a species impact statement with an application even if the action proposed is not on land that is critical habitat. In that event, the application need not include the information referred to in subsection (3).
(5)  The Secretary may request the applicant to provide additional information in support of an application for a licence.
s 220ZX: Ins 1997 No 153, Sch 1 [9].
220ZY   Payment of licence processing fee
(1)  The Secretary is to levy a processing fee, being not more than the costs (including on-costs) incurred by the Department in the assessment and processing of a licence application (whether or not the application is successful).
(2)  The fee is recoverable by the Secretary as a debt due to the Crown in a court of competent jurisdiction.
(3)  The Secretary may, before dealing with an application, require the applicant to pay an amount not exceeding one-half of the estimated processing fee.
(4)  The Secretary may reduce the amount of a processing fee levied for any licence application having regard to the following—
(a)  the extent of scientific examination necessary for the processing of the application,
(b)  the adequacy of any species impact statement or environmental impact statement that includes a species impact component supplied by the applicant,
(c)  the capacity of the applicant or persons with whom the applicant is associated to meet the fee levied,
(d)  whether and to what extent the activity sought to be licensed may confer a commercial benefit on the applicant if the licence is granted.
(5)  Before a prospective applicant for a licence lodges an application, the Secretary must advise the applicant of the maximum fee payable in respect of the application.
s 220ZY: Ins 1997 No 153, Sch 1 [9].
220ZZ   Significant effect on threatened species, populations or ecological communities, or their habitats
(1)  If the action proposed to be taken by the applicant is not on land that is critical habitat and the application is not accompanied by a species impact statement, the Secretary must determine whether the action proposed is likely to significantly affect threatened species, populations or ecological communities, or their habitats.
(2)  For that purpose, the Secretary must take into account the following—
(a)  each of the factors listed in subsection (2A),
(b)  any assessment guidelines issued and in force under section 220ZZA.
(2A)  The following factors must be taken into account in making a determination under this section—
(a)  in the case of a threatened species, whether the action proposed is likely to have an adverse effect on the life cycle of the species such that a viable local population of the species is likely to be placed at risk of extinction,
(b)  in the case of an endangered population, whether the action proposed is likely to have an adverse effect on the life cycle of the species that constitutes the endangered population such that a viable local population of the species is likely to be placed at risk of extinction,
(c)  in the case of an endangered ecological community or critically endangered ecological community, whether the action proposed—
(i)  is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction, or
(ii)  is likely to substantially and adversely modify the composition of the ecological community such that its local occurrence is likely to be placed at risk of extinction,
(d)  in relation to the habitat of a threatened species, population or ecological community—
(i)  the extent to which habitat is likely to be removed or modified as a result of the action proposed, and
(ii)  whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed action, and
(iii)  the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species, population or ecological community in the locality,
(e)  whether the action proposed is likely to have an adverse effect on critical habitat (either directly or indirectly),
(f)  whether the action proposed is consistent with the objectives or actions of a recovery plan or threat abatement plan,
(g)  whether the action proposed constitutes or is part of a key threatening process or is likely to result in the operation of, or increase the impact of, a key threatening process.
(3)  If the Secretary determines that an action proposed by an applicant for a licence is likely to significantly affect threatened species, populations or ecological communities, or their habitats, the Secretary must notify the applicant that, if the application is to proceed, a species impact statement prepared in accordance with Subdivision 2 must be provided.
(4)  If the Secretary determines that an action proposed is not likely to significantly affect threatened species, populations or ecological communities, or their habitats, a licence under this Part is not required and the Secretary must, as soon as practicable after making the determination, issue to the applicant a certificate to that effect.
Note—
An action that is not required to be licensed under this Part may however be required to be authorised by other provisions of this Act or may otherwise constitute an offence under this Act.
s 220ZZ: Ins 1997 No 153, Sch 1 [9]. Am 2002 No 78, Sch 2.2 [5] (am 2005 No 64, Sch 1.43 [2]); 2015 No 59, Sch 1 [113].
220ZZA   Assessment guidelines
(1)  The Minister may, by order published in the Gazette, issue guidelines (assessment guidelines) relating to the determination of whether an action is likely to significantly affect threatened species, populations or ecological communities, or their habitats.
(2)  An order under this section (including any order that amends, revokes or replaces such an order) may be made only with the concurrence of the Minister for Planning.
s 220ZZA: Ins 2002 No 78, Sch 2.2 [6].
221   Publication of licence application
On the receipt of a licence application accompanied by a species impact statement or a species impact statement provided in response to a notification from the Secretary that a statement is required, the Secretary must cause to be placed in a newspaper circulating throughout the State a notice—
(a)  outlining the nature of the application, and
(b)  specifying the address of the place at which copies of the species impact statement may be inspected or purchased, and
(c)  inviting written submissions within a period of not less than 30 days after the date of the notice.
ss 221–221I: Ins 1997 No 153, Sch 1 [9].
221A   Matters that Secretary must take into account
(1)  In considering whether to grant or to refuse to grant a licence application, the Secretary must take into account the following—
(a)  any species impact statement,
(b)  any written submissions received concerning the application within the period, and at the address for submissions, specified in the notice,
(c)  the factors specified in section 220F (Eligibility for listing),
(d)  any relevant recovery plan or threat abatement plan,
(e)  the principles of ecologically sustainable development,
(f)  whether the action proposed is likely to irretrievably reduce the long-term viability of the species, population or ecological community in the region,
(g)  whether the action proposed is likely to accelerate the extinction of the species or ecological community or place it at risk of extinction.
(2)  The Secretary must also consider the likely social and economic consequences of granting or refusing to grant a licence application.
ss 221–221I: Ins 1997 No 153, Sch 1 [9].
221B   Determination of licence application
(1)  After considering an application for a licence and accompanying material, the Secretary may—
(a)  grant the application, unconditionally or subject to conditions or restrictions, or
(b)  refuse the application.
(2)  The Secretary must, subject to subsection (3), make a decision about an application within 120 days after the Secretary receives a species impact statement or within such further period as may be agreed with the applicant for the licence.
(3)  The Secretary must not grant an application until the processing fee levied in respect of it has been paid.
(4)  A licence may authorise specified persons in addition to the person to whom the licence is granted to do the things authorised by the licence. In any such case, the specified persons are taken to be the holders of the licence for the purposes of this Part.
(5)  For the avoidance of doubt, it is declared that the Secretary is not a determining authority for the purposes of Part 5 of the Environmental Planning and Assessment Act 1979 when granting a licence.
ss 221–221I: Ins 1997 No 153, Sch 1 [9].
221C   Deemed approval
If the Secretary fails to grant, but does not refuse, a licence application by the time the Secretary is required by this Division to make a decision on the application, the application is taken to have been granted.
ss 221–221I: Ins 1997 No 153, Sch 1 [9].
221D   Conditions and restrictions to licence
(1)  Without limiting section 221B(1)(a), the Secretary may grant an application for a licence subject to a condition that the applicant—
(a)  make specified modifications to the action proposed, whether in relation to the area of land proposed to be affected or otherwise, or
(b)  make a monetary contribution towards the cost of preparation of a recovery plan for any threatened species, population or ecological community, or any of their habitats, likely to be affected by the action proposed.
(2)  The Secretary may, by notice in writing served on the holder of a licence—
(a)  attach any conditions or restrictions to the licence after its issue, or
(b)  vary or remove any conditions or restrictions attached to any licence, or
(c)  otherwise vary the licence.
(3)  The holder of a licence must not contravene or fail to comply with a condition or restriction attached to the licence.
Maximum penalty—40 penalty units.
ss 221–221I: Ins 1997 No 153, Sch 1 [9].
221E   Proposed variation of licence to be publicly notified
(1)  The Secretary must, before removing or varying any condition or restriction attached to a licence—
(a)  cause to be placed in a newspaper circulating throughout the State a notice—
(i)  outlining the nature of the proposed variation to the licence, and
(ii)  specifying the address of the place at which copies of any species impact statement relating to the licence may be inspected or purchased, and
(iii)  inviting written submissions within a period of not less than 30 days after the date of the notice, and
(b)  take into account the matters required by this Division to be taken into account by the Secretary when considering whether to grant or refuse to grant a licence.
(2)  This section does not apply if the proposed variation to the licence constitutes a minor amendment only of that licence.
ss 221–221I: Ins 1997 No 153, Sch 1 [9].
221F   Notification of licence determination
The Secretary is to notify an applicant and any person who has made submissions of the Secretary’s determination of a licence application.
ss 221–221I: Ins 1997 No 153, Sch 1 [9].
221G   Cancellation of licence
(1)  A licence granted under this Division may be cancelled by the Secretary.
(2)  The Secretary is to notify the holder of a licence of its cancellation and is to include the reasons for the cancellation in that notification.
ss 221–221I: Ins 1997 No 153, Sch 1 [9].
221H   Secretary to keep register of licences
(1)  The Secretary must keep a register containing copies of licences issued under this Subdivision as in force from time to time.
(2)  The register is to be open for public inspection, without charge, during ordinary business hours, and copies of or extracts from the register are to be made available to the public on request, on payment of the fee fixed by the Secretary.
ss 221–221I: Ins 1997 No 153, Sch 1 [9].
221I   Appeal by applicant or person commenting on licence application
(1)  An applicant for a licence or a person who has made written submissions (within the period specified in this Subdivision) about an application for a licence, or a person to whose licence conditions or restrictions have been attached or whose licence has been varied or cancelled may, if dissatisfied with the Secretary’s decision, appeal to the Land and Environment Court.
(2)  In determining an appeal about an application for a licence, the Court must take into account the matters required by this Division to be taken into account by the Secretary when considering whether to grant or refuse to grant a licence, but this requirement does not limit the operation of section 39 of the Land and Environment Court Act 1979.
(3)  An appeal is to be made by a person within 28 days after the Secretary notifies the person of the matter concerned or, if the appellant is dissatisfied with any condition or restriction attached to a licence when it is granted, within 28 days after the licence is granted.
(4)  If an appeal relates to the grant of a licence, the licence has no operation until the expiration of the period within which a person entitled to lodge an appeal may do so or, if an appeal has been lodged, until the appeal is finally determined.
(5)  If no written submissions about an application of a licence are received at the specified place and by the specified date and the applicant informs the Secretary in writing that the applicant does not wish to lodge an appeal but that the applicant wishes the licence to commence, the licence is to operate from a date stipulated by the Secretary.
ss 221–221I: Ins 1997 No 153, Sch 1 [9].
Subdivision 1A Ministerial orders
pt 7A, div 6, sdiv 1A: Ins 2001 No 104, Sch 1 [28].
221IA   Ministerial order to permit harm to threatened species etc
(1)  The Minister may make an order authorising a class of persons to carry out an activity that may result in one or more of the following—
(a)  harm to a threatened species, population or ecological community,
(b)  damage to a habitat of a threatened species, population or ecological community.
(2)  Such an order may be made only if the Minister complies with the requirements of this Subdivision.
(3)  An order may be made subject to conditions or restrictions.
(4)  Before making an order, the Minister must provide—
(a)  the Fisheries Scientific Committee, and
(b)  any advisory council established under section 229 that, in the opinion of the Minister, has an interest in the proposed order,
with a copy of the proposed order, and must invite the Committee and any such council to provide advice, within such period as the Minister may specify (being a period of not less than 30 days), on the proposed order.
ss 221IA–221IJ: Ins 2001 No 104, Sch 1 [28].
221IB   Minor amendments
(1)  For the purposes of this Subdivision, making an order includes varying an existing order but does not include making a minor amendment to an existing order.
(2)  An amendment to an existing order that the Minister considers to be a minor amendment may be made by publishing the amended order in the Gazette.
(3)  The Minister is not obliged to comply with any other requirements of this Subdivision in relation to a minor amendment.
ss 221IA–221IJ: Ins 2001 No 104, Sch 1 [28].
221IC   Species impact statement
Before the Minister makes an order, a person appointed by the Minister must prepare a species impact statement in relation to the activity the subject of the proposed order in accordance with Subdivision 2.
ss 221IA–221IJ: Ins 2001 No 104, Sch 1 [28].
221ID   Public consultation
(1)  After the species impact statement is prepared and before making an order, the Minister must give the public an opportunity to make written submissions on the proposed order.
(2)  For the purposes of that public consultation procedure, a copy of the species impact statement and a copy of any advice received by the Minister under section 221IA is to be exhibited with the proposed order as provided by section 284.
Note—
Section 284 regulates the public consultation procedure.
ss 221IA–221IJ: Ins 2001 No 104, Sch 1 [28].
221IE   Matters that Minister must take into account
(1)  In determining whether to make an order, the Minister must take into account the following—
(a)  the species impact statement,
(b)  any advice of the Fisheries Scientific Committee, and any advice of any advisory council established under section 229 that, in the opinion of the Minister, has an interest in the proposed order, received under section 221IA.
(c)  any written submissions concerning the order received within the period allowed for public comment,
(d)  the factors specified in section 220F (Eligibility for listing),
(e)  any relevant recovery plan or threat abatement plan,
(f)  the principles of ecologically sustainable development,
(g)  whether the action proposed is likely to irretrievably reduce the long-term viability of the species, population or ecological community in the region,
(h)  whether the action proposed is likely to accelerate the extinction of the species or ecological community or place it at risk of extinction.
(2)  The Minister must also consider the likely social and economic consequences of making or not making an order.
ss 221IA–221IJ: Ins 2001 No 104, Sch 1 [28].
221IF   Making an order
(1)  The Minister makes an order by publication of the order in the Gazette.
(2)  For the avoidance of doubt, it is declared that the Minister is not a determining authority for the purposes of Part 5 of the Environmental Planning and Assessment Act 1979 when making an order or an interim order.
ss 221IA–221IJ: Ins 2001 No 104, Sch 1 [28].
221IG   Interim orders
(1)  The Minister may make an interim order to permit the continuation of an existing activity if the Minister considers that the making of the interim order is reasonably necessary to reduce social or economic impacts during the assessment of a proposed order under this Subdivision.
(2)  The Minister makes an interim order by publishing the order in the Gazette.
(3)  An interim order remains in force for such period, not exceeding 6 months, as the Minister specifies in the order, but the order may be remade.
(4)  The Minister is not obliged to comply with any other requirements of this Subdivision in relation to an interim order.
(5)  An interim order may be made subject to conditions or restrictions.
ss 221IA–221IJ: Ins 2001 No 104, Sch 1 [28].
221IH   Secretary to keep register of orders
(1)  The Secretary must keep a register containing copies of all orders and interim orders in force under this Subdivision.
(2)  The register is to be open for public inspection, without charge, during ordinary business hours, and copies of or extracts from the register are to be made available to the public on request, on payment of the fee fixed by the Secretary.
ss 221IA–221IJ: Ins 2001 No 104, Sch 1 [28].
221II   Revocation of an order
An order or interim order made under this Subdivision may be revoked by the Minister at any time by notification in the Gazette.
ss 221IA–221IJ: Ins 2001 No 104, Sch 1 [28].
221IJ   Breaching conditions or restrictions
A person must not contravene or fail to comply with a condition or restriction attached to an order or interim order.
Maximum penalty—In the case of a corporation, 1,000 penalty units or, in any other case, 200 penalty units or imprisonment for 6 months, or both.
ss 221IA–221IJ: Ins 2001 No 104, Sch 1 [28].
221IK   (Repealed)
s 221IK: Ins 2001 No 104, Sch 1 [28]. Rep 2004 No 91, Sch 1.16 [2].
Subdivision 2 Species impact statements
pt 7A, div 6, sdiv 2: Ins 1997 No 153, Sch 1 [9].
221J   Form of species impact statements
(1)  A species impact statement must be in writing.
(2)  A species impact statement must be signed by the principal author of the statement and by the sponsor who, for the purposes of this Subdivision, is one of the following—
(a)  if the species impact statement is prepared for the purposes of a licence application under Subdivision 1—the applicant for the licence,
(b)  if the species impact statement is prepared for the purposes of an order under Subdivision 1A—the person appointed by the Minister in accordance with section 221IC,
(c)  if the species impact statement is prepared for the purposes of the Environmental Planning and Assessment Act 1979—the applicant for development consent or the proponent of the activity to be carried out (as the case requires),
(d)  if the species impact statement is prepared for the purposes of the Plantations and Reafforestation Act 1999, the applicant for authorisation under that Act.
s 221J: Ins 1997 No 153, Sch 1 [9]. Am 1999 No 97, Sch 2.2 [1]; 2001 No 104, Sch 1 [29]; 2002 No 53, Sch 2.15 [2] [3].
221K   Content of species impact statement
(1)  A species impact statement must include a full description of the action proposed, including its nature, extent, location, timing and layout and, to the fullest extent reasonably practicable, the information referred to in this section.
(2)  A species impact statement must include the following information as to threatened species and populations—
(a)  a general description of the threatened species or populations known or likely to be present in the area that is the subject of the action and in any area that is likely to be affected by the action,
(b)  an assessment of which threatened species or populations known or likely to be present in the area are likely to be affected by the action,
(c)  for each species or population likely to be affected, details of its local, regional and State-wide conservation status, the key threatening processes generally affecting it, its habitat requirements and any recovery plan or threat abatement plan applying to it,
(d)  an estimate of the local and regional abundance of those species or populations,
(e)  a full description of the type, location, size and condition of the habitat (including critical habitat) of those species and populations and details of the distribution and condition of similar habitats in the region,
(f)  a full assessment of the likely effect of the action on those species and populations, including, if possible, the quantitative effect of local populations in the cumulative effect in the region,
(g)  a description of any feasible alternatives to the action that are likely to be of lesser effect and the reasons justifying the carrying out of the action in the manner proposed, having regard to the biophysical, economic and social considerations and the principles of ecologically sustainable development,
(h)  a full description and justification of the measures proposed to mitigate any adverse effect of the action on the species and populations, including a compilation (in a single section of the statement) of those measures,
(i)  a list of any approvals that must be obtained under any other Act or law before the action may be lawfully carried out, including details of the conditions of any existing approvals that are relevant to the species or population.
(3)  A species impact statement must include the following information as to ecological communities—
(a)  a general description of the ecological community present in the area that is the subject of the action and in any area that is likely to be affected by the action,
(b)  for each ecological community present, details of its local, regional and State-wide conservation status, the key threatening processes generally affecting it, its habitat requirements and any recovery plan or any threat abatement plan applying to it,
(c)  a full description of the type, location, size and condition of the habitat of the ecological community and details of the distribution and condition of similar habitats in the region,
(d)  a full assessment of the likely effect of the action on the ecological community, including, if possible, the quantitative effect of local communities in the cumulative effect in the region,
(e)  a description of any feasible alternatives to the action that are likely to be of lesser effect and the reasons justifying the carrying out of the action in the manner proposed, having regard to the biophysical, economic and social considerations and the principles of ecologically sustainable development,
(f)  a full description and justification of the measures proposed to mitigate any adverse effect of the action on the ecological community, including a compilation (in a single section of the statement) of those measures,
(g)  a list of any approvals that must be obtained under any other Act or law before the action may be lawfully carried out, including details of the conditions of any existing approvals that are relevant to the ecological community.
(4)  A species impact statement must include details of the qualifications and experience in threatened species conservation of the person preparing the statement and of any other person who has conducted research or investigations relied on in preparing the statement.
(5)  The requirements of subsections (2) and (3) in relation to information concerning the State-wide conservation status of any species or population, or any ecological community, are taken to be satisfied by the information in that regard supplied to the principal author of the species impact statement by the Department, which information the Department is by this subsection authorised and required to provide.
s 221K: Ins 1997 No 153, Sch 1 [9]. Rep 2004 No 55, Sch 3. Reinstated 2004 No 91, Sch 1.16 [1].
221L   Secretary’s requirements
(1)  The sponsor must request from the Secretary and must, in preparing the species impact statement, comply with any requirements notified to the person by the Secretary concerning the form and content of the statement.
(2)  The Secretary must notify any requirements under this section within 28 days after having been requested to provide them.
(3)  Despite the other provisions of this Subdivision, the Secretary may, having regard to the circumstances of a particular case, limit or modify (or limit and modify) the matters to be included in a species impact statement in such manner as may be specified by the Secretary in the particular case.
(4)  Despite anything in this Part or the Environmental Planning and Assessment Act 1979 or the Plantations and Reafforestation Act 1999, the Secretary may, having regard to the circumstances of a particular case, dispense with the requirement for a species impact statement in the particular case if the Secretary is satisfied that the impact of the activity concerned will be trivial or negligible.
s 221L: Ins 1997 No 153, Sch 1 [9]. Am 1999 No 97, Sch 2.2 [3]; 2001 No 104, Sch 1 [30].
221M   Regulations
The regulations may make further provision for or with respect to the form and content of species impact statements.
s 221M: Ins 1997 No 153, Sch 1 [9].
221N   Secretary may accredit persons to prepare assessments of species impact statements
(1)  The Secretary is to institute arrangements for the accreditation of suitably qualified and experienced persons to prepare assessment reports on species impact statements for the purposes of this Part.
(2)  An applicant for accreditation must furnish the Secretary with such information as the Secretary requires to effectively determine the application and must be accompanied by the fee fixed by the Secretary for the consideration of the application.
(3)  An accreditation is to be for the period specified by the Secretary in the instrument of accreditation, and the accreditation (or any renewal of it) may be given subject to the conditions and restrictions (if any) specified in the instrument of accreditation.
(4)  The Secretary may vary conditions or restrictions (if any) attaching to an accreditation and may suspend or cancel an accreditation.
s 221N: Ins 1997 No 153, Sch 1 [9].
221NA   Regulations
(1)  The regulations may provide that development or an activity of a specified type constitutes, or does not constitute, development that is likely to significantly affect threatened species, populations or ecological communities, or their habitats.
(2)  Any such regulation has effect (despite the provisions of this Act or any other Act) for the purposes of the operation of—
(a)  Division 6 (Licensing and Ministerial orders) of Part 7A of this Act, and
(b)  Parts 4 and 5 of the Environmental Planning and Assessment Act 1979 (including the operation of those Parts as applying under any other Act).
Note—
Exceptions for the carrying out of routine agricultural management activities are provided for in section 220ZFA.
(3)  A regulation that provides that development or an activity of a specified type does not constitute development that is likely to significantly affect threatened species, populations or ecological communities, or their habitats, is not to be made unless the Minister has certified in writing that the development or activity is of minimal environmental impact on threatened species, populations and ecological communities, and their habitats.
s 221NA: Ins 2004 No 88, Sch 2 [40].
Division 7 Stop work orders
pt 7A, div 7: Ins 1997 No 153, Sch 1 [9].
221O   Secretary may make stop work order
(1)  If the Secretary is of the opinion that any action is being, or is about to be, carried out that is likely to result in one or more of the following—
(a)  harm to a threatened species, population or ecological community,
(b)  damage to critical habitat,
(c)  damage to habitats of threatened species, populations or ecological communities,
the Secretary may order that the action is to cease and that no action, other than such action as may be specified in the order, is to be carried out in or in the vicinity of the critical habitat or the habitat of the threatened species, population or ecological community within a period of 40 days after the date of the order.
(2)  An order takes effect on and from the date on which—
(a)  a copy of the order is affixed in a conspicuous place in the critical habitat or other habitat the subject of the order, or
(b)  the person performing or about to perform the action is notified that the order has been made,
whichever is the sooner.
(3)  This section does not apply in relation to anything that (under section 220ZF) constitutes a defence to an offence under Division 4.
(4)  In this Division, a reference to action being, or about to be, carried out includes a reference to action that should be, but is not being, carried out and the Secretary may make an order, in accordance with this Division, that any such action is to be carried out.
(5)  A person who does not comply with an order in force under this section is guilty of an offence and is liable, on conviction—
(a)  in the case of a corporation, to a penalty not exceeding 2,000 penalty units and, in the case of a continuing offence, to a further penalty not exceeding 1,000 penalty units for each day the offence continues, or
(b)  in the case of an individual, to a penalty not exceeding 1,000 penalty units and, in the case of a continuing offence, to a further penalty not exceeding 500 penalty units for each day the offence continues.
s 221O: Ins 1997 No 153, Sch 1 [9]. Am 2001 No 104, Sch 1 [31].
221P   Prior notification of making of stop work order not required
The Secretary is not required, before making an order under this Division, to notify any person who may be affected by the order.
ss 221P–221U: Ins 1997 No 153, Sch 1 [9].
221Q   Appeal to Minister
(1)  A person against whom an order is made under this Division may appeal to the Minister against the making of the order.
(2)  After hearing an appeal, the Minister may—
(a)  confirm the order, or
(b)  modify or rescind the order, but only if this is consistent with the principles of ecologically sustainable development.
ss 221P–221U: Ins 1997 No 153, Sch 1 [9].
221R   Extension of stop work order
The Secretary may extend an order under this Division for such further period or periods of 40 days as the Secretary thinks fit.
ss 221P–221U: Ins 1997 No 153, Sch 1 [9].
221S   Consultation about modification of proposed detrimental action
(1)  After making an order under this Division, the Secretary must immediately consult with the person proposing to perform the action to determine whether any modification of the action may be sufficient to protect the threatened species, populations or ecological communities, critical habitat or other habitat concerned.
(2)  The Secretary may, for the purposes of making any such determination and considering whether the adoption of any other steps (such as the grant of a licence under Division 6) may be appropriate, request the person proposing to perform the action to provide the information referred to in section 220ZX(3).
(3)  After considering any information provided under subsection (2) in accordance with the requirements of section 220ZZ, the Secretary may, if appropriate and if the person concerned wishes to apply for a licence under Division 6, request the person to provide an application for a licence and a species impact statement for determination under that Division.
ss 221P–221U: Ins 1997 No 153, Sch 1 [9].
221T   Recommendations for further protective measures
The Secretary is to recommend to the Minister the taking of other protective measures under this Act if, after consulting the person proposing to perform the action, the Secretary is of the opinion that satisfactory arrangements cannot be made to protect the threatened species, population or ecological community, critical habitat or other habitat that is the subject of the order under this Division.
Note—
See note to section 220O for examples of other protective measures.
ss 221P–221U: Ins 1997 No 153, Sch 1 [9].
221U   Stop work order prevails over other instruments
(1)  An approval, notice, order or other instrument made or issued by or under any other Act or law that requires or permits critical habitat, the subject of an order in force under this Division, to be significantly affected is inoperative to the extent of any inconsistency with the order under this Division.
(2)  This section has effect whether the approval, notice, order or other instrument concerned was made or issued before or after the making of the order under this Division.
ss 221P–221U: Ins 1997 No 153, Sch 1 [9].
Division 8 Joint management agreements
pt 7A, div 8: Ins 1997 No 153, Sch 1 [9].
221V   Joint management agreements
(1)  The Minister may enter into a joint management agreement with one or more public authorities for the management, control, regulation or restriction of an action that is jeopardising the survival of a threatened species, population or ecological community.
(1A)  Other persons may also be parties to a joint management agreement.
(2)  The parties may amend a joint management agreement, but only by a further joint management agreement.
s 221V: Ins 1997 No 153, Sch 1 [9]. Am 2016 No 63, Sch 11.2 [13].
221W   Contents of joint management agreements
(1)  A joint management agreement is to contain terms, binding on all parties, that—
(a)  identify the threatened species, population or ecological community to which the agreement applies, and
(b)  identify the action that it manages, controls, regulates or restricts, and
(c)  state its objective (for example, maintenance of a habitat in a state that will contribute to the long-term survival of the species, population or ecological community), and
(d)  state the way in which the objective is to be achieved, and
(e)  specify the measures by which progress towards achieving the objective is to be assessed, and
(f)  identify the parties who are responsible for the implementation of those measures.
(2)  A joint management agreement entered into with a local council or a consent authority (within the meaning of the Environmental Planning and Assessment Act 1979) is void to the extent to which it fetters any discretion of the local council or consent authority in the granting or refusal of a consent or approval under the Environmental Planning and Assessment Act 1979 or the Local Government Act 1993.
(3)  A joint management agreement under this Act and a joint management agreement within the meaning of the Biodiversity Conservation Act 2016 may be combined into a single document if both agreements deal with the same subject-matter.
s 221W: Ins 1997 No 153, Sch 1 [9]. Am 2008 No 86, Sch 1 [3]; 2016 No 63, Sch 11.2 [5].
221X   Publication of draft joint management agreement
The Minister must, before entering into a joint management agreement—
(a)  give a copy of the draft agreement to the Fisheries Scientific Committee for review, and
(b)  give the public an opportunity to make submissions on the draft agreement.
Note—
Section 284 regulates the public consultation procedure. It requires copies of the draft agreement to be publicly exhibited and a period of at least 30 days for public comment.
ss 221X–221Z: Ins 1997 No 153, Sch 1 [9].
221Y   Role of Fisheries Scientific Committee
(1)  Before a joint management agreement is entered into, the Fisheries Scientific Committee must review the draft joint management agreement and provide the Minister with comments on the review by the date specified for the making of public submissions on the draft agreement.
(2)  The Fisheries Scientific Committee must also—
(a)  conduct an annual review of the performance of all parties to a joint management agreement, and
(b)  advise the Minister of any deficiencies in implementation of any joint management agreement by any party to it.
(3)  The Fisheries Scientific Committee’s advice on the annual review of joint management agreements is to be set out in the annual report to Parliament of the Department or is to be available for public inspection at a place specified in that annual report.
ss 221X–221Z: Ins 1997 No 153, Sch 1 [9].
221Z   Consideration of submissions by Minister
(1)  The Minister must consider all written submissions received by the Minister on or before the date specified for the making of public submissions about the draft agreement.
(2)  The Minister may, with the consent of the other parties to the agreement, amend the draft joint management agreement to take into account any of those submissions and any comments made by the Fisheries Scientific Committee about the draft agreement.
ss 221X–221Z: Ins 1997 No 153, Sch 1 [9].
Division 9 Fisheries Scientific Committee
pt 7A, div 9: Ins 1997 No 153, Sch 1 [9].
221ZA   Establishment of Fisheries Scientific Committee
There is established by this Act a body corporate with the corporate name of the Fisheries Scientific Committee.
s 221ZA: Ins 1997 No 153, Sch 1 [9].
221ZB   Functions of Fisheries Scientific Committee
(1)  The Fisheries Scientific Committee has the functions conferred or imposed on it by or under this or any other Act or law.
(2)  The principal functions of the Fisheries Scientific Committee are as follows—
(a)  the functions relating to the listing of species, populations, ecological communities of fish and marine vegetation and key threatening processes as are conferred on it by this Act,
(b)  to advise the Minister on the identification of critical habitat of endangered or critically endangered species, populations or ecological communities,
(c)  to review draft joint management agreements and the performance of parties under executed joint management agreements,
(d)  to advise the Secretary on the exercise of the Secretary’s functions under this Part,
(e)  to advise the Minister and the NRC on any matter relating to the conservation of threatened species, populations or ecological communities that is referred to the Committee by the Minister or that the Committee considers appropriate.
(3)  The Fisheries Scientific Committee may, in the exercise of its functions, make use of consultants or obtain assistance or advice from other persons.
(4)  The Fisheries Scientific Committee and the Scientific Committee under the Biodiversity Conservation Act 2016 are required to consult each other on matters that affect the exercise of their respective functions.
s 221ZB: Ins 1997 No 153, Sch 1 [9]. Am 2004 No 88, Sch 2 [41] [42]; 2016 No 63, Sch 11.2 [5].
221ZC   Members of Fisheries Scientific Committee
(1)  The Fisheries Scientific Committee is to consist of 7 members appointed by the Minister.
(2)  Of the members of the Fisheries Scientific Committee—
(a)  two are to be scientists employed in the Department nominated by the Secretary,
(b)  one is to be a scientist nominated by the Australian Society for Fish Biology,
(c)  one is to be a scientist employed and nominated by the Australian Museum Trust,
(d)  one is to be a scientist employed and nominated by the Royal Botanic Gardens and Domain Trust,
(e)  one is to be a scientist who is employed by a tertiary educational institution and who is selected by the Minister,
(f)  one is to be a scientist with expertise in fisheries science and natural resource management who is selected by the Minister.
(3)  A person appointed as a member of the Fisheries Scientific Committee is to have expertise in one or more of the following areas of study—
(a)  fish biology,
(b)  aquatic invertebrate biology,
(c)  marine vegetation biology,
(d)  population dynamics,
(e)  aquatic ecology,
(f)  genetics of small populations.
ss 221ZC–221ZE: Ins 1997 No 153, Sch 1 [9].
221ZD   Fisheries Scientific Committee not subject to Ministerial control
The Fisheries Scientific Committee is not subject to the control or direction of the Minister.
ss 221ZC–221ZE: Ins 1997 No 153, Sch 1 [9].
221ZE   Provisions relating to members and procedure of Fisheries Scientific Committee
Schedule 6A has effect.
ss 221ZC–221ZE: Ins 1997 No 153, Sch 1 [9].
Divisions 10, 11
221ZF–221ZS  (Repealed)
pt 7A, div 10: Ins 2004 No 88, Sch 2 [43]. Rep 2016 No 63, Sch 11.2 [14].
s 221ZF: Ins 2004 No 88, Sch 2 [43]. Am 2013 No 51, Sch 7.17 [3] [4]. Rep 2016 No 63, Sch 11.2 [14].
s 221ZG: Ins 2004 No 88, Sch 2 [43]. Am 2013 No 51, Sch 7.17 [5]. Rep 2016 No 63, Sch 11.2 [14].
s 221ZH: Ins 2004 No 88, Sch 2 [43]. Am 2013 No 51, Sch 7.17 [6]. Rep 2016 No 63, Sch 11.2 [14].
s 221ZI: Ins 2004 No 88, Sch 2 [43]. Am 2013 No 51, Sch 7.17 [7]–[9]. Rep 2016 No 63, Sch 11.2 [14].
s 221ZJ: Ins 2004 No 88, Sch 2 [43]. Am 2010 No 59, Sch 2.33 [4]; 2015 No 59, Sch 1 [114]. Rep 2016 No 63, Sch 11.2 [14].
pt 7A, div 11: Ins 2004 No 88, Sch 2 [43]. Rep 2016 No 63, Sch 11.2 [14].
s 221ZK: Ins 2004 No 88, Sch 2 [43]. Am 2008 No 36, Sch 1.3. Rep 2016 No 63, Sch 11.2 [14].
ss 221ZL–221ZP: Ins 2004 No 88, Sch 2 [43]. Rep 2016 No 63, Sch 11.2 [14].
s 221ZQ: Ins 2004 No 88, Sch 2 [43]. Am 2010 No 59, Sch 2.33 [4]; 2015 No 59, Sch 1 [114]. Rep 2016 No 63, Sch 11.2 [14].
s 221ZR: Ins 2004 No 88, Sch 2 [43]. Rep 2016 No 63, Sch 11.2 [14].
s 221ZS: Ins 2004 No 88, Sch 2 [43]. Rep 2016 No 63, Sch 11.2 [14].
Division 12 Application of Planning Act
pt 7A, div 12 (ss 221ZT–221ZZA): Ins 2016 No 63, Sch 11.2 [15].
221ZT   Application of Division
This Division applies to the following—
(a)  the grant or refusal of a development consent under Part 4 of the Planning Act (other than a complying development certificate),
(b)  environmental assessment under Part 5 of the Planning Act.
pt 7A, div 12 (ss 221ZT–221ZZA): Ins 2016 No 63, Sch 11.2 [15].
221ZU   Definitions
(1)  In this Division—
activity means an activity within the meaning of Part 5 of the Planning Act.
development means development within the meaning of the Planning Act.
Fisheries Agency Head means the Secretary of the Department of Industry, Skills and Regional Development.
threatened ecological communities do not include vulnerable ecological communities (except so much of any such community as comprises a threatened species).
(2)  For the purposes of this Division, development or an activity is likely to significantly affect threatened species if—
(a)  it is likely to significantly affect threatened species, populations or ecological communities, or their habitats, or
(b)  it is carried out in critical habitat.
pt 7A, div 12 (ss 221ZT–221ZZA): Ins 2016 No 63, Sch 11.2 [15].
221ZV   Determination of whether proposed development or activity likely to significantly affect threatened species, population or ecological community
The following is to be taken into account for the purposes of determining under this Division whether a proposed development or activity is likely to significantly affect threatened species, populations or ecological communities (unless it is carried out in critical habitat)—
(a)  in the case of a threatened species, whether the proposed development or activity is likely to have an adverse effect on the life cycle of the species such that a viable local population of the species is likely to be placed at risk of extinction,
(b)  in the case of an endangered population, whether the proposed development or activity is likely to have an adverse effect on the life cycle of the species that constitutes the endangered population such that a viable local population of the species is likely to be placed at risk of extinction,
(c)  in the case of an endangered ecological community or critically endangered ecological community, whether the proposed development or activity—
(i)  is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction, or
(ii)  is likely to substantially and adversely modify the composition of the ecological community such that its local occurrence is likely to be placed at risk of extinction,
(d)  in relation to the habitat of a threatened species, population or ecological community—
(i)  the extent to which habitat is likely to be removed or modified as a result of the proposed development or activity, and
(ii)  whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed development or activity, and
(iii)  the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the threatened species, population or ecological community in the locality,
(e)  whether the proposed development or activity is likely to have an adverse effect on any critical habitat (either directly or indirectly),
(f)  whether the proposed development or activity is consistent with a Priorities Action Statement,
(g)  whether the proposed development constitutes or is part of a key threatening process or is likely to result in the operation of, or increase the impact of, a key threatening process.
The assessment guidelines under section 220ZZA apply to the determination of whether any such proposed development or activity is likely to significantly affect threatened species.
pt 7A, div 12 (ss 221ZT–221ZZA): Ins 2016 No 63, Sch 11.2 [15].
221ZW   When species impact statement required for development consent under Part 4 of Planning Act
(1)  If proposed development is likely to significantly affect threatened species, populations or ecological communities, an application for development consent under Part 4 of the Planning Act is to be accompanied by a species impact statement.
(2)  This section does not apply to State significant development.
Note—
Section 78A(8) (formerly section 78A(8A)) of the Planning Act requires an application for State significant development to be accompanied by an environmental impact statement.
pt 7A, div 12 (ss 221ZT–221ZZA): Ins 2016 No 63, Sch 11.2 [15].
221ZX   Significant effect on environment requiring EIS includes significant effect on threatened species, populations and ecological communities for purposes of Part 5 of Planning Act
(1)  For the purposes of Part 5 of the Planning Act, an activity is to be regarded as an activity likely to significantly affect the environment if it is likely to significantly affect threatened species, populations or ecological communities.
(2)  In that case, an environmental impact statement prepared under Part 5 of the Planning Act is to include or be accompanied by a species impact statement.
(3)  If the likely significant effect on threatened species, populations or ecological communities is the only likely significant effect on the environment, a species impact statement may be obtained under Part 5 of the Planning Act instead of an environmental impact statement and that Part applies as if references to an environmental impact statement were references to a species impact statement.
pt 7A, div 12 (ss 221ZT–221ZZA): Ins 2016 No 63, Sch 11.2 [15].
221ZY   Consultation with Minister for Primary Industries if a Minister is consent authority under Part 4 or determining authority under Part 5 of Planning Act
(1)  This section applies to the following—
(a)  development (not being State significant development or complying development) that requires development consent under Part 4 of the Planning Act when a Minister is the consent authority,
(b)  an activity that requires environmental impact assessment under Part 5 of the Planning Act when a Minister is the determining authority.
(2)  For the purposes of determining the application for that development consent or of that environmental impact assessment, the Minister concerned is to consult the Minister for Primary Industries if the development or activity is likely to significantly affect threatened species, populations or ecological communities.
(3)  In so consulting, the Minister for Primary Industries is to provide the Minister who is the consent authority or the determining authority with any recommendations made by the Fisheries Agency Head.
pt 7A, div 12 (ss 221ZT–221ZZA): Ins 2016 No 63, Sch 11.2 [15].
221ZZ   Concurrence of or consultation with Fisheries Agency Head if a Minister is not consent authority under Part 4 or determining authority under Part 5 of Planning Act
(1)  This section applies to the following—
(a)  development (not being State significant development or complying development) that requires development consent under Part 4 of the Planning Act when a Minister is not the consent authority,
(b)  an activity that requires environmental impact assessment under Part 5 of the Planning Act when a Minister is not the determining authority.
(2)  The consent authority is not to grant development consent if the development is likely to significantly affect threatened species, populations or ecological communities, unless the consent authority has obtained the concurrence of the Fisheries Agency Head.
(3)  The determining authority is not to carry out the activity, or grant an approval to carry out the activity, if the activity is likely to significantly affect threatened species, populations or ecological communities, unless the determining authority has obtained the concurrence of the Fisheries Agency Head.
(4)  However, if the Minister for Primary Industries considers that it is appropriate, that Minister may elect to act in the place of the Fisheries Agency Head. The Minister for Primary Industries is required, in giving any concurrence, to consult that Agency Head, to provide the consent authority or the determining authority with any recommendations made by that Agency Head and to give public notice of any such recommendation that the Minister for Primary Industries has not accepted.
(5)  In determining whether to give a concurrence under this section, the Fisheries Agency Head or Minister for Primary Industries (as the case requires) is to have regard to the following—
(a)  any species impact statement prepared for the development or activity and submissions made in response to it,
(b)  any assessment report prepared by or on behalf of the proponent,
(c)  any Priorities Action Statement,
(d)  whether the development or activity is likely to reduce the long-term viability of the threatened species, populations or ecological communities in the bioregion,
(e)  the facilitation of ecologically sustainable development.
(6)  A concurrence under this section may be conditional on the taking of action that the Fisheries Agency Head or Minister for Primary Industries (as the case requires) considers will significantly benefit threatened species, populations or ecological communities and to which the person required to take the action has agreed. Any such action may (without limitation) include the provision of biodiversity offsets.
(7)  The terms of a concurrence under this section may be varied by the person who gave the concurrence at the request of the consent authority or determining authority concerned.
(8)  A consent authority that grants consent, or a determining authority that grants approval, to the carrying out of development or an activity for which a concurrence under this section has been granted must grant the consent or approval subject to any conditions of the concurrence. This does not affect the right of the consent authority or determining authority to impose other conditions not inconsistent with the conditions of the concurrence or to refuse consent or approval.
pt 7A, div 12 (ss 221ZT–221ZZA): Ins 2016 No 63, Sch 11.2 [15].
221ZZA   Regulations relating to amendments of threatened species etc lists
The regulations may make provision for or with respect to the effect of amendments to the lists of threatened species, populations and ecological communities during an environmental assessment to which this Division applies.
pt 7A, div 12 (ss 221ZT–221ZZA): Ins 2016 No 63, Sch 11.2 [15].
Part 8 Administration
Division 1 The Minister and Secretary
222A   Minister and Secretary to administer Act in accordance with its objects
In the administration of this Act, the Minister and the Secretary are to give effect to the objects of this Act.
s 222A (previously s 221): Renumbered 1997 No 153, Sch 1 [10].
222B   Fisheries Administration Ministerial Corporation
(1)  There is constituted by this section a corporation with the corporate name of the Fisheries Administration Ministerial Corporation for the purpose of the Minister exercising the functions conferred under the following sections—
(a)  section 223 (Minister may acquire land),
(b)  section 224 (Acquisition of land for purposes of a future lease grant),
(c)  section 225 (Minister may carry out or assist research),
(d)  section 226 (Minister may accept gifts etc),
(e)  section 237B(4)(b) and (c) and (9) (power of Minister to acquire and deal with fishing assets, and enter into contracts or other arrangements, in connection with Aboriginal fishing assistance programs).
(2)  The Fisheries Administration Ministerial Corporation has such other functions as are conferred by or under this or any other Act.
(3)  The affairs of the Fisheries Administration Ministerial Corporation are to be managed by the Minister.
(4)  Any act, matter or thing done in the name of, or on behalf of, the Fisheries Administration Ministerial Corporation by the Minister, or with the authority of the Minister, is taken to have been done by that Corporation.
s 222B (previously s 222): Renumbered 1997 No 153, Sch 1 [11]. Am 2017 No 56, Sch 1 [2].
223   Minister may acquire land
(1)  The Minister may, for the purposes of this Act, acquire land (including an interest in land) by agreement or compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991.
(2)  The Minister may not give a proposed acquisition notice under the Land Acquisition (Just Terms Compensation) Act 1991 in respect of public water land without the appropriate consent.
(3)  For the purposes of subsection (2), the appropriate consent is—
(a)  in relation to public water land that is within a dam or reservoir used primarily for domestic water supply or within an area designated by or under an Act as a catchment area in respect of such a dam or reservoir—the consent of—
(i)  the authority controlling the dam or reservoir, and
(ii)  the Ministers respectively administering the Public Health Act 2010 and the Public Works Act 1912, and
(b)  in relation to public water land that is Crown land—the consent of the Minister administering the Crown Land Management Act 2016, and
(c)  in relation to public water land (other than that referred to in paragraph (a)) that is vested in a public authority or in trustees for a public purpose—the consent of that authority or those trustees.
(4)  For the purposes of the Public Works Act 1912, any such acquisition of land is taken to be for an authorised work, and the Minister is, in relation to that authorised work, taken to be the Constructing Authority.
(5)  Sections 34, 35, 36 and 37 of the Public Works Act 1912 do not apply in respect of works constructed under this Act.
s 223: Am 2010 No 127, Sch 4.5 [2]; 2017 No 17, Sch 4.32 [6].
224   Acquisition of land for purposes of a future lease grant
(1)  The Minister may also, on behalf of the Crown, acquire land (including an interest in land) for the purposes of a future lease grant by agreement or compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991.
(2)  An acquisition for a future lease grant is an acquisition to enable the grant of an aquaculture lease.
(3)  In the case of an acquisition of public water land that is not vested in the Minister, the Minister must first obtain the appropriate consent referred to in section 223.
(4)  On the publication in the Gazette of an acquisition notice for a purpose that is described as an acquisition for a future lease grant, the land described in the notice—
(a)  if Crown land, remains Crown land, or
(b)  if held by trustees for public recreation or for any other public purpose, vests in the Minister but subject to the trusts on which it was held immediately before that publication.
(5)  Nothing in this section is to be taken to mean that the Minister cannot exercise functions in relation to land under this Act unless the Minister first compulsorily acquires the land concerned.
(6)  Section 223(4) and (5) apply to an acquisition under this section.
225   Minister may carry out or assist research
The Minister may undertake research for the purposes of this Act and, in particular, may—
(a)  establish and maintain, or assist in establishing or maintaining, scientific stations at which the research may be undertaken, and
(b)  carry out, or assist in the carrying out of, investigations into any biological or other problem associated with fisheries, and
(c)  carry out, or assist in the carrying out of, investigations into aquaculture.
226   Minister may accept gifts etc
(1)  The Minister has power to acquire by gift, devise or bequest, any property for the purposes of this Act.
(2)  The Minister may agree to the condition to which any such gift, devise or bequest is subject.
(3)  The rule of law relating to perpetuities does not apply to any condition to which the Minister has agreed under this section.
(4)  Any property acquired under this section is, to the extent to which it has not been applied in conformity with any such gift, devise or bequest, to pass to and devolve on the successors in office of the Minister.
(5)  If the Minister has agreed to the condition of any such gift, devise or bequest, that condition binds the property in the hands of any successor in office of the Minister in whom the property may be vested.
227   Delegation by Minister
(1)  The Minister may delegate to the Secretary any function of the Minister under this Act, other than this power of delegation.
(2)  The Minister may also delegate to the Secretary any function of the Minister under Schedule 1AA (other than the function of making a determination under that Schedule with respect to a designated fishing activity).
s 227: Am 2000 No 86, Sch 2 [5]; 2019 No 14, Sch 2.8[6].
228   Delegation by Secretary
(1)  The Secretary may delegate to any authorised person any function of the Secretary under this Act, other than this power of delegation.
(2)  The Secretary may subdelegate to any authorised person any function delegated to the Secretary by the Minister if the Secretary is authorised to do so by the Minister.
(3)  In this section, authorised person means a public servant, or any person authorised by the regulations.
Division 1A
228A–228C  (Repealed)
pt 8, div 1A (ss 228A–228C): Ins 2000 No 86, Sch 2 [6]. Rep 2003 No 102, Sch 2.2 [4].
Division 2 Advisory bodies
pt 8, div 2: Subst 1996 No 141, Sch 1 [12].
229   Ministerial advisory bodies
(1)  The Minister may, subject to and in accordance with the regulations, establish advisory councils, including advisory councils for the commercial, recreational, research, Aboriginal and aquacultural sectors of the fishing industry.
(2)  The members of any such advisory council are to be appointed by the Minister in accordance with the regulations.
(3)  The functions of any such advisory council are—
(a)  to advise the Minister on any matter that is referred to it by the Minister, and
(b)  to advise the Minister on any other matter it considers relevant to the fishing industry sector for which it is established.
s 229: Subst 1996 No 141, Sch 1 [12]. Am 2009 No 114, Sch 1 [119].
230   Advisory groups
(1)  The Secretary may establish advisory groups under this Act.
(2)  The Secretary may—
(a)  determine the number of members to be appointed to an advisory group, and
(b)  appoint the members of an advisory group, and
(c)  determine the functions of an advisory group.
(3)  A person may be appointed as a member of an advisory group only if the Secretary is satisfied that the person has skills and experience that are relevant to the functions of the group.
(4)  The Secretary may, subject to the regulations, determine the term of office and procedure of an advisory group.
s 230: Subst 1996 No 141, Sch 1 [12]. Am 2000 No 86, Sch 3 [14] [15]; 2001 No 104, Sch 1 [32]–[34]. Subst 2015 No 59, Sch 1 [115].
231   Regulations
(1)  The regulations may make provision for or with respect to the establishment, composition, functions and procedure of any advisory council or group under this Division.
(2)  The regulations may abolish or provide for the abolition of any advisory council or advisory group established under this Division, including by providing that no remuneration or compensation is payable to a person because of a loss of office arising from that abolition.
s 231: Subst 1996 No 141, Sch 1 [12]. Am 2015 No 59, Sch 1 [116] [117].
Division 3 Special fisheries trust funds
pt 8, div 3: Rep 1996 No 141, Sch 1 [12]. Ins 1997 No 153, Sch 3.
232   Definitions
In this Division—
recreational fishing fees means the fishing fees paid under Division 4A of Part 2 and any other fees or payments received in connection with the administration of that Division.
trust fund means an account in the Special Deposits Account established by section 233.
s 232: Rep 1996 No 141, Sch 1 [12]. Ins 1997 No 153, Sch 3. Am 2000 No 86, Sch 4 [3].
233   Establishment of trust funds
(1)  The following accounts are established in the Special Deposits Account—
(a)  a Recreational Fishing (Freshwater) Trust Fund,
(b)  a Recreational Fishing (Saltwater) Trust Fund,
(c)  a Commercial Fishing Trust Fund,
(c1)  a Charter Fishing Trust Fund,
(d)  a Fish Conservation Trust Fund,
(d1)  an Aboriginal Fishing Trust Fund,
(e)  an Aquaculture Trust Fund.
(2)  Money in a trust fund is under the control of the Minister and can be expended by the Minister only for the purposes authorised by this Division.
s 233: Rep 1996 No 141, Sch 1 [12]. Ins 1997 No 153, Sch 3. Am 2000 No 86, Sch 4 [4] [5]; 2015 No 59, Sch 1 [118].
234   Recreational Fishing (Freshwater) Trust Fund
(1)  There is to be paid into the Recreational Fishing (Freshwater) Trust Fund—
(a)  any amount or proportion of the recreational fishing fees that is allocated to that Fund by the Minister under this section, and
(a1)  all other payments received in connection with the administration of Part 2 (including fees and charges paid under Part 2 or the regulations made under that Part) that are not required to be paid into any other trust fund, and
(b)  the proceeds of the sale of tags, or other identification, to be used on fish taken by recreational freshwater fishers, and
(c)  any gift or bequest of money for the purposes of that Fund, and
(d)  any other money appropriated by Parliament for the purposes of that Fund or required by law to be paid into that Fund.
(2)  There may be paid out of that Fund—
(a)  the costs of stocking freshwater with fish, or taking other measures, to enhance, maintain or protect recreational fishing, and
(b)  the costs of carrying out research into freshwater fish and their ecosystems, and
(c)  the costs of management and administration of recreational freshwater fishing (including commission for authorised agents collecting recreational freshwater fishing fees), and
(d)  the costs of ensuring compliance with recreational freshwater fishing regulatory controls, and
(e)  the costs of providing third-party insurance coverage for landowners where recreational fishers use private land (or water over private land) for freshwater fishing, and
(f)  the costs of consultative arrangements with freshwater recreational fishers.
(3)  The Minister may, from time to time, determine the amount or proportion of the recreational fishing fees to be allocated to that Fund.
(4)  The Minister is to consult a relevant advisory council on recreational fishing established under section 229 about—
(a)  the allocation of recreational fishing fees to that Fund, and
(b)  policies and priorities for expenditure from that Fund.
s 234: Rep 1996 No 141, Sch 1 [12]. Ins 1997 No 153, Sch 3. Am 2000 No 86, Sch 4 [6] [7]; 2009 No 114, Sch 1 [60].
235   Recreational Fishing (Saltwater) Trust Fund
(1)  There is to be paid into the Recreational Fishing (Saltwater) Trust Fund—
(a)  all fees paid for the registration of fishing gear used for recreational estuarine and marine fishing, and
(b)  the proceeds of the sale of tags, or other identification, to be used on fish taken by recreational estuarine and marine fishers, and
(c)  all recreational fishing fees, other than any amount or proportion of those fees allocated to the Recreational Fishing (Freshwater) Trust Fund, and
(d)  any gift or bequest of money for the purposes of that Fund, and
(e)  any other money appropriated by Parliament for the purposes of that Fund or required by law to be paid into that Fund.
(2)  There may be paid out of that Fund—
(a)  the costs of taking measures to enhance, maintain or protect recreational estuarine and marine fishing, and
(b)  the costs of carrying out research into estuarine and marine fish and their ecosystems, and
(c)  the costs of management and administration of recreational estuarine and marine fishing, and
(d)  the costs of ensuring compliance with recreational estuarine and marine fishing regulatory controls, and
(e)  the costs of consultative arrangements with recreational estuarine and marine fishers.
(3)  The Minister is to consult any relevant advisory council on recreational fishing established under section 229 about policies and priorities for expenditure from that Fund.
s 235: Rep 1996 No 141, Sch 1 [12]. Ins 1997 No 153, Sch 3 (am 1998 No 54, Sch 2.18 [2]). Am 2000 No 86, Sch 4 [8] [9]; 2009 No 114, Sch 1 [60].
236   Commercial Fishing Trust Fund
(1)  There is to be paid into the Commercial Fishing Trust Fund—
(a)  all fees paid for commercial fishing licences, fishing boat licences and the registration of fishing gear used by commercial fishers, and
(b)  all fees and charges paid under Parts 3 and 4 and the regulations made under those Parts (other than community contributions by shareholders under section 77), and
(c)  the proceeds of the sale of tags, or other identification, to be used on fish taken by commercial fishers, and
(d)  fees for services provided by the Department to commercial fishers, and
(e)  any gift or bequest of money for the purposes of that Fund, and
(f)  any other money appropriated by Parliament for the purposes of that Fund or required by law to be paid into that Fund.
(2)  There may be paid out of that Fund—
(a)  the costs of taking measures to enhance, maintain or protect the effective management of commercial fishing, and
(b)  the costs of carrying out research into commercial fishing, and
(c)  the costs of management and administration of commercial fishing, and
(d)  the costs of ensuring compliance with commercial fishing regulatory controls, and
(e)  the costs of consultative arrangements with commercial fishers.
(3)  The Minister is to consult any relevant advisory council about policies and priorities for expenditure from that Fund.
s 236: Rep 1996 No 141, Sch 1 [12]. Ins 1997 No 153, Sch 3 (am 1998 No 54, Sch 2.18 [3]). Am 2009 No 114, Sch 1 [60]; 2015 No 59, Sch 1 [119].
236A   Charter Fishing Trust Fund
(1)  There is to be paid into the Charter Fishing Trust Fund—
(a)  all fees and charges paid under Part 4A and the regulations under that Part, and
(b)  any gift or bequest of money for the purposes of that Fund, and
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