Part 1 Preliminary
1 Name of Regulation
This Regulation is the Fisheries Management (Aquaculture) Regulation 2017.
2 Commencement
This Regulation commences on 1 September 2017 and is required to be published on the NSW legislation website.Note—This Regulation replaces the Fisheries Management (Aquaculture) Regulation 2012 which is repealed on 1 September 2017 by section 10 (2) of the Subordinate Legislation Act 1989.
3 Definitions
(1) In this Regulation—extensive aquaculture means aquaculture undertaken without providing supplementary food for the fish or marine vegetation that are being cultivated.food includes any form of nutrient.intensive aquaculture means aquaculture undertaken by providing supplementary food for the fish or marine vegetation that are being cultivated (whether or not naturally occurring food is consumed or available for consumption by the fish or marine vegetation).the Act means the Fisheries Management Act 1994.Note—The Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Regulation.(2) In this Regulation, a reference to a permit of a particular class is a reference to a permit of that class as referred to in clause 4.(3) Notes included in this Regulation (except in Schedule 2) do not form part of this Regulation.cl 3: Am 2018 No 25, Sch 5.16.
Part 2 Aquaculture permits—the Act, Part 6, Div 2
pt 2, hdg: Am 2021 (482), Sch 2[1].
Division 1 General
4 Classes of aquaculture permits that can be issued
(1) The following classes of aquaculture permits are prescribed for the purposes of section 144 (2) of the Act—(a) a class A permit authorising extensive aquaculture on public water land or land that is the subject of an aquaculture lease,(b) a class B permit authorising intensive aquaculture on public water land or land that is the subject of an aquaculture lease,(c) a class C permit authorising extensive aquaculture to be undertaken otherwise than on public water land or land that is the subject of an aquaculture lease,(d) a class D permit authorising intensive aquaculture to be undertaken otherwise than on public water land or land that is the subject of an aquaculture lease,(e) a class E permit authorising extensive freshwater aquaculture to be undertaken at 2 or more privately owned locations otherwise than on public water land or land that is the subject of an aquaculture lease,(f) a class F permit authorising a person to operate a fish pond, tank or other structure with a view to charging members of the public for the right to fish in the pond, tank or structure,(g) a class G permit authorising experimental aquaculture to be undertaken,(h) a class H permit authorising a fish hatchery to be operated.(2) In this clause, fish hatchery means a place where the progeny of fish are produced for the purpose of selling them.
4A Activities that are not aquaculture
For the Act, section 142, definition of aquaculture, paragraph (e), the storing or penning of fish in waters prior to sale by a commercial fisher is prescribed.cl 4A: Ins 2022 (319), Sch 1[1].
5 Certain persons do not require aquaculture permits
(1) A person who carries out an exempt activity is excluded from the operation of section 144 of the Act in respect of that exempt activity.(2) For the purposes of this clause, the following are exempt activities—(a) the cultivation of ornamental fish by a person in a pond, tank or other structure, if the total capacity of all structures in which the person cultivates ornamental fish is less than 10,000 litres,(b) the keeping of fish by a person in a confined area, for the purposes of selling the fish alive, if the person does not cultivate the fish concerned.(3) In this clause, ornamental fish means any fish cultivated for the purposes of exhibition or sale in the aquarium industry but does not include—(a) any fish cultivated for the purposes of human consumption, or(b) any fish cultivated for the purposes of stocking a farm dam (within the meaning of section 198A of the Act) or stocking public water land.
Division 2 Applications for, and issue and variation of, permits
6 Fee payable when applying for aquaculture permit
(1) An application for an aquaculture permit must be accompanied by the fee specified in Schedule 3.(2) If a person makes more than one application for an aquaculture permit at the same time, the total fee required to be paid for those applications is the sum of the highest application fee that applies to any one of those applications and the amount specified in Schedule 3 for each other application.
7 Fee payable when requesting variation of aquaculture permit
(1) A request by the holder of an aquaculture permit to vary the aquaculture permit under section 148 (1) of the Act must be accompanied by the fee specified in Schedule 3.(2) If a permit holder makes more than one request to vary an aquaculture permit at the same time, the total fee required to be paid for those requests is—(a) if the request is to make the same variation to each aquaculture permit and the aquaculture permits are of the same class—a single fee, being the fee that applies to a permit of that class, or(b) if the request is to make the same variation to each aquaculture permit and the aquaculture permits are of different classes—a single fee, being the highest fee that applies to any one of those requests, or(c) in all other cases—the sum of the highest fee that applies to any one of those requests and the amount specified in Item 4 of Schedule 3 for each other request.
8 Additional grounds for refusing an aquaculture permit
The Minister is authorised to refuse to issue an aquaculture permit if—(a) the applicant has been convicted or found guilty of an offence under the Act or regulations made under the Act, or(b) the Minister believes on reasonable grounds that there is a risk that if the activity to which the permit relates were authorised—(i) fish (whether cultivated or naturally occurring) could become infected with a particular disease, or(ii) the environment of the area where it is proposed to carry on the activity would be damaged, or(c) the applicant has previously held an aquaculture permit that has been suspended or cancelled.cl 8: Am 2021 (482), Sch 2[2].
Division 3 Permit conditions relating to movement of oysters and material between estuaries
Note—
Division 3 of Part 3 of the Biosecurity Regulation 2017 imposes additional obligations on aquaculture permit holders who deal with oysters.
9 Definitions
In this Division—bulk oysters means oysters removed from cultivation material and placed in any container, receptacle, bin, bag or other thing used for containing oysters for shipment.catching material means equipment and materials placed in an estuary on which oyster larvae from natural spawning events can settle and includes sticks or slats (whether or not they are used to on-grow oysters).clean cultivation material means cultivation material from which all overcatch has been removed or killed.culled oyster means an oyster that has been subject to the process of culling.culling means the process of separating clumps of oysters to on-grow or grade, which may (but need not) include either or both of the following—(a) the removal of overcatch from oysters,(b) the removal of oysters from catching materials or cultivation materials.cultivation material means equipment and materials used for the purpose of cultivating oysters within an estuary and includes trays, baskets and cylinders but does not include catching material.high-risk oyster-producing estuary means any of the following estuaries and, in each case, includes all the waters of that estuary, including all its lakes, lagoons, inlets, channels, creeks and tributaries—(a) Botany Bay/Georges River,(b) Hawkesbury River (including Patonga Creek),(c) Hunter River,(d) Port Stephens.identifiable Pacific Oyster means Pacific Oyster overcatch that has a shell height of greater than 25 mm.low-risk oyster-producing estuary means any of the following estuaries and, in each case, includes all the waters of that estuary, including all its lakes, lagoons, inlets, channels, creeks and tributaries—(a) Bega River,(b) Bermagui River,(c) Brisbane Water,(d) Burrill Lake,(e) Camden Haven River,(f) Clyde River,(g) Crookhaven River/Shoalhaven River,(h) Hastings River,(i) Lake Conjola,(j) Manning River,(k) Merimbula Lake,(l) Moruya River,(m) Nelson Lagoon,(n) Pambula River,(o) Tomaga River,(p) Towamba River (Kiah),(q) Tuross Lake,(r) Wagonga Inlet,(s) Wallaga Lake,(t) Wallis Lake,(u) Wapengo Lagoon,(v) Wonboyn River.no-risk oyster-producing estuary means any of the following estuaries and, in each case, includes all the waters of that estuary, including all its lakes, lagoons, inlets, channels, creeks and tributaries—(a) Bellinger River/Kalang River,(b) Brunswick River,(c) Clarence River,(d) Macleay River,(e) Nambucca River,(f) Richmond River,(g) Sandon River,(h) Tweed River,(i) Wooli River.overcatch means wild oysters (including wild Pacific Oysters) and other aquatic fouling organisms (such as barnacles) that have settled on cultivation material or directly on oysters under cultivation.oyster includes the Akoya Pearl Oyster being the species Pinctada imbricata (Pteriidae family).Oyster Shipment Log Book means a logbook in a form approved by the Secretary, including an electronic form, for purposes that include the purpose of complying with conditions imposed by this Division or of complying with the Act.Pacific Oyster means the species Crassostrea gigas (Ostreidae family).shell height means the distance from the hinge of the oyster shell to the most distant shell edge.unclean cultivation material means cultivation material that has not had all overcatch removed or killed.unculled oyster means an oyster that has not been subject to the process of culling.cl 9: Am 2023 (13), Sch 2[1] [2].
10 Certain movement of unculled oysters is prohibited
(1) It is a condition of every aquaculture permit that authorises aquaculture with respect to oysters that the permit holder must ensure that unculled oysters are not moved from a high-risk oyster-producing estuary to a low-risk oyster-producing estuary.(2) It is a condition of every aquaculture permit that authorises aquaculture with respect to oysters that the permit holder must ensure that unculled oysters are not moved from a high-risk oyster-producing estuary or low-risk oyster-producing estuary to a no-risk oyster-producing estuary.(3) This clause does not apply to—(a) unculled Pacific Oysters cultivated in accordance with an aquaculture permit, all of which have a shell height of no more than 50 mm, or(b) unculled oysters of any other species cultivated in accordance with an aquaculture permit, all of which have a shell height of no more than 25 mm.
11 Certain movement of catching material or unclean cultivation material is prohibited
(1) It is a condition of every aquaculture permit that authorises aquaculture with respect to oysters that the permit holder must ensure that catching material or unclean cultivation material is not moved from a high-risk oyster-producing estuary to a low-risk oyster-producing estuary.(2) It is a condition of every aquaculture permit that authorises aquaculture with respect to oysters that the permit holder must ensure that catching material or unclean cultivation material is not moved from a high-risk oyster-producing estuary or low-risk oyster-producing estuary to a no-risk oyster-producing estuary.
12 Certain movement of culled oysters is prohibited
(1) It is a condition of every aquaculture permit that authorises aquaculture with respect to oysters that the permit holder must ensure that culled oysters are not moved from a high-risk oyster-producing estuary to a low-risk oyster-producing estuary if there are more than 5 identifiable Pacific Oysters per—(a) 10 trays, or(b) 20 baskets, or(c) 20 cylinders, or(d) 10 trays worth of bulk oysters.(2) It is a condition of every aquaculture permit that authorises aquaculture with respect to oysters that the permit holder must ensure that culled oysters are not moved from a high-risk oyster-producing estuary or low-risk oyster-producing estuary to a no-risk oyster-producing estuary if there are more than 2 identifiable Pacific Oysters per—(a) 10 trays, or(b) 20 baskets, or(c) 20 cylinders, or(d) 10 trays worth of bulk oysters.(3) This clause does not apply to—(a) culled Pacific Oysters cultivated in accordance with an aquaculture permit, all of which have a shell height of no more than 50 mm, or(b) culled oysters of any other species cultivated in accordance with an aquaculture permit, all of which have a shell height of no more than 25 mm.
13 Prior notification and record keeping required if oysters, catching material or cultivation material are moved from oyster-producing estuaries
(1) It is a condition of every aquaculture permit that authorises aquaculture with respect to oysters that the permit holder must—(a) notify the Department in accordance with this clause if oysters, catching material or cultivation material are to be moved from an oyster-producing estuary to another estuary, and(b) keep and maintain a record in accordance with this clause of any occasion when oysters, catching material or cultivation material is moved from an oyster-producing estuary to another estuary.(2) All such movements of oysters, catching material and cultivation material must be notified to the local office of the Department for the estuary from which the oysters, catching material or cultivation material are moved, by telephone, electronically or in person—(a) in the case of culled oysters, catching material or clean cultivation material moved from—(i) a high-risk oyster-producing estuary to a low-risk oyster-producing estuary, ornot less than 48 hours and not more than 2 weeks prior to movement, or(ii) a high-risk oyster-producing estuary, or a low-risk oyster-producing estuary, to a no-risk oyster-producing estuary,(b) in all other cases—not less than 2 hours and not more than 2 weeks prior to movement.(3) That notification must include details of the following—(a) the name of the shipping permit holder,(b) the size of the oysters (that is, whether they are Pacific Oysters with a shell height greater than 50 mm or another species with a shell height greater than 25 mm),(c) the species of oyster,(d) the type of cultivation material or catching material,(e) the estimated date and time of shipment,(f) the estuary from which the oysters, catching material or cultivation material will be moved,(g) the estuary to which the oysters, catching material or cultivation material will be moved,(h) the permit number.(4) The record referred to in subclause (1) (b) of any occasion when oysters, catching material or cultivation material are moved from an estuary to another estuary must be made in the Oyster Shipment Log Book before the oysters, catching material or cultivation material leave the relevant estuary.(Repealed)(6) It is a condition of the aquaculture permit in respect of the area to which oysters, catching material or cultivation material are moved that, if the holder made the record referred to in subclause (1)(b) in hard copy, the holder must keep a copy of the record for at least 2 years.(7) The notification and record keeping obligations imposed by this clause do not apply to—(a) movements of oysters, catching material or cultivation material within an estuary, or(b) movements of packaged, purified or market grade oysters from an estuary in circumstances when those oysters are consigned directly to a market, a wholesaler or a retailer.cl 13: Am 2023 (13), Sch 2[3]–[6].
Division 4 Contributions by permit holders to pay for costs of administration
14 Aquaculture permit holders liable to pay contributions towards cost of administration
(1) Each holder of an aquaculture permit must pay to the Minister the annual contribution specified in Schedule 3 for the period of 12 months beginning on 1 July in each year towards the costs of administration of Part 6 of the Act that are directly attributable to industry.(2) The annual contribution is payable, at the permit holder’s option, either—(a) annually, on or before a date determined by the Minister and notified to the permit holder, or(b) by instalments.(3) If the permit holder elects to pay the annual contribution by instalments, the Minister is required—(a) to determine the amounts of the instalments that are payable, or the manner in which they are to be calculated, and(b) to determine the dates on which the instalments are payable, and(c) to notify the amounts (or the manner of the calculation) of the instalments, and the dates on which they are payable, to the permit holder.(4) If there is a failure to pay an instalment in accordance with such a notice, the Minister may treat the total unpaid balance of the annual contribution as an overdue amount of contribution.(5) A person must pay the annual contribution under this clause in respect of a period of 12 months if the person holds an aquaculture permit at any time during the period concerned.(6) A person who holds 2 or more aquaculture permits is required to pay the annual contribution in relation to 1 permit only.cl 14: Am 2021 (482), Sch 2[3].
15 Costs of administration that are directly attributable to industry
For the purposes of section 156 (1) (a) of the Act, the following costs of administration of Part 6 of the Act are directly attributable to industry—(a) the cost of developing, implementing, and ensuring compliance with, strategies, policies and regulations under Part 6 of the Act for the orderly management and development of sustainable and viable aquaculture industries,(b) the cost of providing administrative services in connection with aquaculture permit and aquaculture lease transactions, in particular the costs associated with the following—(i) the collection of fees and contributions,(ii) the assessment of permits,(iii) the granting of leases.
Division 5 Contributions by permit holders to pay for research
16 Aquaculture permit holders liable to pay contributions for research
(1) Each holder of an aquaculture permit must pay to the Minister the annual contribution specified in Schedule 3 for the period of 12 months beginning on 1 July in each year for the purposes of meeting—(a) the cost of carrying out research that will benefit the New South Wales aquaculture industry (including research by the Fisheries Research and Development Corporation established under the Primary Industries Research and Development Act 1989 of the Commonwealth), and(b) the costs incurred in maintaining any committee appointed by the Minister in respect of a research trust account under section 157 of the Act.(2) This clause does not apply to the holder of a class G permit.(3) A contribution under this clause must be paid, at the permit holder’s option, either—(a) annually, on or before a date determined by the Minister and notified to the permit holder, or(b) by instalments.(4) If the permit holder elects to pay the annual contribution by instalments, the Minister is required—(a) to determine the amounts of the instalments that are payable, or the manner in which they are to be calculated, and(b) to determine the dates on which the instalments are payable, and(c) to notify the amounts (or the manner of the calculation) of the instalments, and the dates on which they are payable, to the permit holder.(5) If there is a failure to make a payment in accordance with such a notice, the Minister may treat the total unpaid balance as an overdue amount of contribution even if payment by instalments has begun.(6) If the total area to which an aquaculture permit relates is less than 1 hectare, the contribution payable by the holder of the permit under this clause is that payable for 1 hectare.(7) If a person holds 2 or more aquaculture permits, the prescribed annual contribution for that person is the highest annual contribution that applies to any one of that person’s permits.(8) A person must pay the annual contribution under this clause in respect of a period of 12 months if the person holds an aquaculture permit at any time during the period concerned.
17 Research trust accounts to be maintained
(1) The Minister is required to maintain a separate research trust account for the purposes of this Division.(2) The trust account is to consist of—(a) all contributions paid or recovered under this Division by or from permit holders, and(b) the interest or other income accruing from investing the money in the trust account.(3) The money held in the trust account is vested in the Minister as trustee and is to be applied in accordance with this Division.(4) Money held in a research trust account may be applied only for—(a) meeting the costs incurred in carrying out the purpose for which the trust account was established, and(b) meeting the expenses incurred by the Minister in administering the trust account.(5) Schedule 1 applies to committees appointed by the Minister in respect of research trust accounts under section 157 of the Act.
18 Operation of trust account
(1) The Minister must keep at an authorised deposit-taking institution located in New South Wales a research trust account for the purposes specified in clause 16 (1). The name of the account must include the relevant purpose and the words “Aquaculture Research Trust Account”.(2) The Minister must ensure that all money referred to in clause 17 (2) is paid to the credit of the relevant trust account.(3) Subject to this Division, the Minister is responsible for determining the manner in which the trust account is to be operated.(4) The Minister may invest money held in a research trust account that is not immediately required for the purposes of this Division—(a) in accordance with Division 2 of Part 2 of the Trustee Act 1925 as if the money were trust funds, or(b) on deposit with the Treasurer.
Part 3 Security arrangements for aquaculture permit holders
Division 1 Preliminary
19 Payment obligation
In this Part, payment obligation, in relation to a permit holder, means—(a) an obligation of the permit holder to pay a debt to the Minister in consequence of the Minister or an agent of the Minister having undertaken work under section 162 (4), 170 (4) or 171 (4) of the Act, or(b) an obligation of the permit holder to pay a debt to the Minister arising in consequence of a fisheries officer having taken action under section 183 (6) of the Act.(c) (Repealed)cl 19: Am 2022 No 59, Sch 1.15[1] [2].
Division 2 Security to be provided by class A and class B permit holders
20 Persons to whom this Division applies
This Division applies to and in respect of class A and class B permit holders.
21 Class A and B permit holders to enter into financial arrangement to provide security
(1) It is a condition of every class A and class B permit that the permit holder must enter into, and maintain, one of the following arrangements (each of which is a requisite financial arrangement)—(a) the depositing with the Minister by the permit holder of the required amount of cash to secure the due performance of the permit holder’s payment obligations under the Act,(b) a guarantee issued by an authorised deposit-taking institution, or by a corporation authorised to carry on insurance business in Australia, indemnifying the Crown to the extent of the required amount to secure that performance.(2) However, a class A permit holder of a class 1 lease may decide not to enter into, or to cease, a requisite financial arrangement. In that case, the permit holder is taken to have entered into a financial arrangement for the payment of annual contributions as provided by Division 3 and that arrangement is taken to be a condition of the permit.(3) A permit holder may choose which kind of requisite financial arrangement to enter into, and may, with the concurrence of the Minister, change the chosen arrangement to another arrangement at any time while the permit is in force.(4) For the purposes of this clause, the required amount is the amount specified in Schedule 3.(5) The Minister is required to keep a separate account in respect of cash deposited under this clause and to invest the cash—(a) in accordance with Division 2 of Part 2 of the Trustee Act 1925 as if the cash were trust funds, or(b) on deposit with the Treasurer.
22 When secured amounts are liable to be forfeited
(1) If it appears to the Minister that a permit holder who has entered into a requisite financial arrangement has incurred a payment obligation under the Act, the Minister may serve on the permit holder a notice requiring the permit holder to perform the obligation within a period specified in the notice (being not less than 14 days).(2) If the permit holder fails to perform the payment obligation within the period specified in the notice, the Minister may forfeit the amount deposited or secured under the arrangement to the Crown to the extent of that obligation.(3) If the amount forfeited is an amount secured under an arrangement of a kind referred to in clause 21 (1) (b), the guarantor or the party to the financial arrangement concerned must, within 7 days after being served by the Minister with a notice declaring the amount to be forfeited, pay the amount to the Minister. The amount is recoverable by proceedings brought in a court of competent jurisdiction as a debt due to the Crown.(4) An amount may be forfeited under this clause even though the person who entered into the arrangement concerned is no longer a permit holder.
23 What happens to an arrangement when a person stops being a permit holder
(1) Any requisite financial arrangement ceases at the time at which the person ceases to be the holder of the permit, but only if the Minister is satisfied that the person has no payment obligations outstanding.(2) If the arrangement is a deposit of cash with the Minister, the person (or the person’s legal personal representative) is entitled to—(a) a refund of the cash, andless any amount that the Minister certifies to be attributable to administration costs.(b) payment of the interest accruing on the investment of the deposit,
Division 3 Financial arrangements by way of contributions taken to be entered into by certain class A permit holders
24 Application of Division
(1) This Division applies to a class A permit holder of a class 1 lease who is taken to have entered into a financial arrangement for the payment of annual contributions (a default financial arrangement).(2) This Division sets out the terms of the default financial arrangement.
25 Contributions to be made by certain class A permit holders
(1) A class A permit holder must pay to the Minister, to secure the due performance of the permit holder’s payment obligations under the Act, an annual contribution (a class A annual contribution) of the amount specified in Schedule 3 in respect of each period of 12 months beginning on 1 July in any year.(1A) The class A annual contribution is—(a) if the Secretary is satisfied that all leases held under the permit meet the requirements for materials and construction method use on oyster aquaculture areas specified in the Aquaculture Strategy—the amount specified in Schedule 3, item 8(a), or(b) otherwise—the amount specified in Schedule 3, item 8(b).(2) If the total area of the leased area or areas to which the permit relates is less than 1 hectare, the class A annual contribution is that payable for 1 hectare.(3) A class A annual contribution must be paid, at the permit holder’s option, either—(a) annually, on or before a date determined by the Minister and notified to the permit holder, or(b) by instalments.(4) For the purpose of allowing the payment of a contribution by instalments, the Minister is required—(a) to determine the amounts of the instalments that are payable, or the manner in which they are to be calculated, and(b) to determine the dates on which the instalments are payable, and(c) to notify the amounts (or the manner of the calculation) of the instalments, and the dates on which they are payable, to the permit holder concerned.(5) If there is a failure to make a payment in accordance with such a notice, the Minister may treat the total unpaid balance as an overdue amount of contribution even if payment by instalments has begun.(6) A class A permit holder may at any time elect to enter into a requisite financial arrangement. However, that election does not affect the liability of the permit holder to pay the contribution for the period of 12 months in which the election is made or any previous 12 month period.(7) In this clause—Aquaculture Strategy means the NSW Oyster Industry Sustainable Aquaculture Strategy 2021, August 2021, fourth edition, published by the Department.cl 25: Am 2022 (319), Sch 1[2] [3].
26 Additional contributions to be made by certain class A permit holders
(1) A class A permit holder must pay to the Minister a contribution in respect of each previous annual contribution period in which the permit was in force (even if the permit was in force for only part of the previous annual contribution period).(2) A previous annual contribution period is a period of 12 months commencing on 1 July in any year before the permit holder entered into the default financial arrangement, excluding any period before 1 July 2001.(3) The contribution under this clause (the additional contribution) is payable in addition to the class A annual contribution.(4) The additional contribution is calculated in the same manner as the class A annual contribution is calculated at the time that the person enters into the default financial arrangement. For that purpose, a reference in clause 25 (1) to each period of 12 months beginning on 1 July in any year is to be read as a reference to each previous annual contribution period.(5) The additional contribution must be paid, at the permit holder’s option, either—(a) on or before the date that is 30 days after the date that the permit holder enters into the financial arrangement, or(b) by instalments.(6) If the permit holder elects to pay the contribution by instalments, the Minister is required—(a) to determine the amounts of the instalments that are payable, or the manner in which they are to be calculated, and(b) to determine the dates on which the instalments are payable, and(c) to notify the amounts (or the manner of the calculation) of the instalments, and the dates on which they are payable, to the permit holder.(7) If there is a failure to make a payment in accordance with such a notice, the Minister may treat the total unpaid balance as an overdue amount of contribution even if payment by instalments has begun.
27 Minister to enforce permit holder’s obligations
(1) If it appears to the Minister that a class A permit holder the subject of a default financial arrangement has incurred a payment obligation under the Act, the Minister may, by notice in writing served on the permit holder, require the permit holder to perform the obligation within a period specified in the notice (being not less than 14 days).(2) If—(a) the permit holder has failed to perform the payment obligation within the period specified in the notice, andthe Minister may then (and only then) withdraw from the trust account an amount equal to that debt.(b) the Minister certifies in writing that all reasonable practicable steps have been taken to recover the debt arising from the permit holder’s failure to perform that obligation or the permit holder’s whereabouts are unknown,(3) In order to reduce the amounts withdrawn from the trust account, the Minister is to arrange for any lease area or areas held by a relevant class A permit holder to be inspected every 3 years for matters that may give rise to payment obligations by the lessees.(4) Subclause (2) applies even if proceedings brought under the Act to recover the debt have been unsuccessful and even if the person who has failed to perform the obligation concerned has ceased to be a permit holder.
28 Trust account to be maintained
(1) The Minister is required to maintain a trust account for the purposes of this Division.(2) The trust account is to consist of—(a) all contributions and additional contributions paid or recovered under this Division by or from class A permit holders, and(b) all money required to be paid to the trust account in accordance with this Division, and(c) the interest or other income accruing from investing the money in the trust account.(3) The money held in the trust account is vested in the Minister as trustee and is to be applied in accordance with this Division.(4) Money held in the trust account may be applied only for the following purposes—(a) meeting the expenses incurred by the Minister in carrying out a payment obligation of a class A permit holder the subject of a default financial arrangement,(b) meeting the expenses incurred by the Minister in administering the trust account and of any committee appointed by the Minister in respect of that trust account.
29 Operation of trust account
(1) The Minister must maintain the trust account at an authorised deposit-taking institution located in New South Wales. The name of the account must include the words “Aquaculture Lease Security Trust Account”.(2) The Minister must ensure that all amounts referred to in clause 28 (2) are paid to the credit of the trust account.(3) Subject to this Division, the Minister is responsible for determining the manner in which the trust account is to be operated.(4) The Minister may invest money held in the trust account that is not immediately required for the purposes of this Division—(a) in accordance with Division 2 of Part 2 of the Trustee Act 1925 as if the money were trust funds, or(b) on deposit with the Treasurer.
Part 4 Aquaculture leases—the Act, Part 6, Div 3
pt 4, hdg: Am 2021 (482), Sch 2[4].
Division 1 Classification of leases
30 Classes of aquaculture leases
(1) The classes of aquaculture leases that may be granted under Part 6 of the Act are as follows—(a) a class 1 lease for a leased area—(i) where extensive aquaculture is undertaken and a majority of the area under cultivation is in water the depth of which is less than 6 metres, or(ii) where the leased area comprises or includes a bed from which oysters are dredged (whether the bed is at a depth of less than 6 metres or not),(b) a class 2 lease for a leased area where—(i) extensive aquaculture is undertaken and a majority of the area under cultivation is in water the depth of which is 6 metres or more, and(ii) the area does not comprise or include a bed of the kind referred to in paragraph (a) (ii),(c) a class 3 lease for a leased area where intensive aquaculture is undertaken,(d) a class 4 lease for a leased area where fish ranching is undertaken.(2) For the purposes of this clause, fish ranching is the artificial stocking of an area with juvenile fish of a species that is able to roam freely and feed on naturally available food.(3) The depths referred to in this clause are to be measured at lowest astronomical tide.
Division 2 Applications for, and grant and renewal of, aquaculture leases
31 Application for, and refusal of, aquaculture lease
(1) An application for an aquaculture lease is to be made to the Minister and must—(a) be in accordance with a form provided or approved by the Secretary, and(b) be accompanied by the processing fee specified in Schedule 3.(2) The Minister may refuse an application for an aquaculture lease if—(a) the application does not comply with subclause (1), or(b) in the case of an applicant who is not a corporation—the applicant is disqualified under section 161 of the Act from holding an aquaculture permit, or(c) in the case of an applicant that is a corporation—the applicant, or any of the directors or other persons concerned in the management of the applicant, is disqualified under section 161 of the Act from holding an aquaculture permit, or(d) the applicant has rent, contributions or other amounts payable to the Minister that are outstanding in respect of other aquaculture leases, or(e) the applicant has, in the Minister’s opinion, a poor record of managing one or more other leased areas, or(f) in the Minister’s opinion, it would otherwise not be in the public interest to grant the lease to the applicant.
32 Applicant’s obligations to mark area applied for
(1) The Secretary may give to an applicant for an aquaculture lease directions for marking out the boundaries of the area applied for.(2) Within 30 days after the Secretary has given to an applicant for an aquaculture lease such directions (or within such extended period as the Secretary may allow), the applicant is to mark out in accordance with those directions the boundaries of the area concerned.(3) The Minister may refuse to consider an application for an aquaculture lease unless the applicant has marked out the boundaries of the area concerned, and is maintaining the markings, in accordance with the directions given under this clause.(4) The applicant must remove the markings—(a) within 30 days after the application for the aquaculture lease is granted, refused or withdrawn, or(b) within such further period as the Secretary may allow.Maximum penalty—10 penalty units.
33 Offer of aquaculture lease by auction, public tender or ballot
(1) If the Minister decides that an area should be offered for lease by auction, public tender or ballot, the Minister must publish a notice—(a) describing the area to be leased sufficiently to identify it, and(b) specifying the method by which the lease is to be offered, and(c) specifying a deadline for persons to lodge with the Minister objections to the leasing of the area, and(d) specifying any covenants or conditions to which the disposal of the lease will be subject.The deadline must be not less than 30 days after the date of publication of the notice.(2) The Minister must also send a copy of the notice to any association representing holders of aquaculture permits that has notified the Minister of its interest in being notified of the area being considered for leasing.(3) The Minister may decide that an area should be offered for lease by auction, public tender or public ballot even though the Minister has received an application to lease the area.(4) If the Minister, after considering objections to the leasing of an area, decides to proceed with the leasing of the area by auction, public tender or ballot, the Minister must publish a notice containing the following information—(a) the persons or class of persons who are eligible to participate in the auction, public tender or ballot,(b) a description sufficient to identify the area to be leased,(c) the term for which the area is to be leased,(d) how details of the proposed covenants and conditions can be obtained,(e) the proposed annual rent,(f) the value of any improvements to the area,(g) the time and place of the auction, or the time and place for receipt of tenders or ballot applications,(h) if the lease is to be offered by public ballot—the amount of any premium that is required to be paid by the successful applicant,(i) any special particulars that are to be provided by bidders, tenderers or applicants for the lease.(5) A notice under this clause is to be published in the Gazette and on the website of the Department.
34 Offer of aquaculture lease by auction
(1) If an aquaculture lease is offered at an auction, the bid of the person who offers the highest premium is to be accepted, subject to the bidder being approved by the Minister.(2) Immediately after the auction has taken place, the successful bidder must pay to the auctioneer the premium offered for the lease at the auction. If that premium is not paid at that time, the auctioneer must offer the lease again until a successful bidder pays the premium offered or the offer of the lease is withdrawn from the auction.(3) Immediately after the auction has taken place, the successful bidder must lodge with the Minister an application for the lease in accordance with this Division.(4) If the Minister does not approve the highest bidder, the Minister may approve the person who has made the next highest bid and so on.(5) The Minister may refuse to approve a bidder if—(a) the bidder is not eligible to participate in the auction, or(b) the bidder has not complied with subclause (3), or(c) in the case of a bidder who is not a corporation—the bidder is disqualified under section 161 of the Act from holding an aquaculture permit, or(d) in the case of a bidder that is a corporation—the bidder, or any of the directors or other persons concerned in the management of the bidder, is disqualified under section 161 of the Act from holding an aquaculture permit, or(e) the bidder has rent, contributions or other amounts payable to the Minister that are outstanding in respect of other aquaculture leases, or(f) the bidder has, in the Minister’s opinion, a poor record of managing one or more other leased areas, or(g) in the Minister’s opinion, it would otherwise not be in the public interest to grant the lease to the bidder.(6) The term of an aquaculture lease offered at an auction is to begin on and from the date decided by the Minister and specified in the lease. That date must not be earlier than the date of approval of the successful bidder by the Minister.
35 Offer of aquaculture lease for public tender
(1) A person who wishes to tender for an aquaculture lease that is being offered for public tender must lodge with the Minister a tender containing the following—(a) an application for the lease in accordance with this Division,(b) a statement of the amount of the premium tendered.(2) The tender of the person who offers the highest premium is to be accepted, subject to the tenderer being approved by the Minister.(3) If the Minister does not approve the tenderer who offers the highest premium, the Minister may approve the tenderer who has offered the next highest premium and so on.(4) The Minister may refuse to approve a tenderer if—(a) the tenderer is not eligible to participate in the public tender, or(b) the tenderer’s tender does not comply with subclause (1), or(c) in the case of a tenderer who is not a corporation—the tenderer is disqualified under section 161 of the Act from holding an aquaculture permit, or(d) in the case of a tenderer that is a corporation—the tenderer, or any of the directors or other persons concerned in the management of the tenderer, is disqualified under section 161 of the Act from holding an aquaculture permit, or(e) the tenderer has rent, contributions or other amounts payable to the Minister that are outstanding in respect of other aquaculture leases, or(f) the tenderer has, in the Minister’s opinion, a poor record of managing one or more other leased areas, or(g) the tenderer’s tender contains conditions that are unacceptable to the Minister, or(h) in the Minister’s opinion, it would otherwise not be in the public interest to grant the lease to the tenderer.(5) The successful tenderer must pay the amount of the premium tendered to the Minister within 14 days, or a further period allowed by the Minister, after being notified in writing of the Minister’s approval under this clause.(6) If the premium tendered is not paid within that period or the successful tenderer withdraws the tender, the Minister may offer the lease to the next highest tenderer and so on until the Minister approves a tenderer who pays the premium tendered.(7) The term of an aquaculture lease offered for tender is to begin on the date decided by the Minister and specified in the lease. That date must not be earlier than the date on which the successful tenderer is approved by the Minister.cl 35: Am 2021 (482), Sch 2[5].
36 Offer of aquaculture lease by ballot
(1) A person who wishes to apply for an aquaculture lease that is being offered by ballot must lodge with the Minister an application for the lease in accordance with this Division.(2) The ballot application that is drawn first is to be accepted, subject to the successful applicant being approved by the Minister.(3) If the Minister does not approve the successful applicant, the Minister may approve—(a) the applicant whose name was next drawn at the ballot in case the previously successful applicant’s application should not be approved under this clause or is withdrawn, or(b) a successful applicant at a later ballot.(4) The Minister may refuse to approve an application if—(a) the applicant is not eligible to participate in the ballot, or(b) the application does not comply with subclause (1), or(c) in the case of an applicant who is not a corporation—the applicant is disqualified under section 161 of the Act from holding an aquaculture permit, or(d) in the case of an applicant that is a corporation—the applicant, or any of the directors or other persons concerned in the management of the applicant, is disqualified under section 161 of the Act from holding an aquaculture permit, or(e) the applicant has rent, contributions or other amounts payable to the Minister that are outstanding in respect of other aquaculture leases, or(f) the applicant has, in the Minister’s opinion, a poor record of managing one or more other leased areas, or(g) in the Minister’s opinion, it would otherwise not be in the public interest to grant the lease to the applicant.(5) The successful applicant must pay to the Minister within 14 days after being notified of the Minister’s approval of the applicant’s application the premium (if any) specified in the notice published under clause 33 (4).(6) If the premium is not paid within that period, the Minister may offer the lease either—(a) to the applicant whose name was next drawn at the ballot in case the successful applicant should default in complying with subclause (5) or withdraw the application, orand so on until the Minister approves a successful applicant who pays the requisite premium.(b) to the successful applicant at a later ballot,(7) The term of an aquaculture lease offered by ballot is to begin on the date decided by the Minister and specified in the lease. That date must not be earlier than the date on which the successful applicant was approved by the Minister.
37 Minister’s obligations when granting an aquaculture lease
(1) If the Minister decides to grant an aquaculture lease, the Minister must provide the proposed lessee with the following documents—(a) a copy of the plan of the area,(b) a draft lease document that is in accordance with Form 1 in Schedule 2.(2) The Minister must not grant an aquaculture lease unless the proposed lessee, within 60 days (or such further period as the Minister may allow) of being provided by the Minister with the documents under subclause (1), lodges with the Minister the draft lease document (signed by the proposed lessee).(3) After granting an aquaculture lease, the Minister must—(a) provide the lessee with a statement of the fees, rents or other amounts payable by the lessee in connection with the grant of the lease and the date by which those amounts must be paid, and(b) publish in the Gazette notice of the granting of the lease and the person to whom it is granted.(4) The lessee must pay all amounts referred to in subclause (3) (a) in full by the date notified by the Minister in the statement referred to in the subclause.cl 37: Am 2021 (482), Sch 2[6].
38 Application for renewal of aquaculture lease
(1) An application for renewal of an aquaculture lease is to be made to the Minister and must—(a) be in accordance with a form provided or approved by the Minister, and(b) be accompanied by the processing fee specified in Schedule 3.(2) The Minister may refuse to accept an application under this clause that is made earlier than 12 months before the term of the lease is due to expire.cl 38: Am 2022 (319), Sch 1[4].
39 Process for renewing an aquaculture lease
(1) If the Minister decides to renew an aquaculture lease, the Minister must provide the applicant with the following documents—(a) a copy of the plan of the area,(b) a draft lease document that is in accordance with Form 1 in Schedule 2.(2) The Minister must not renew an aquaculture lease unless the applicant for renewal, within 60 days (or such further period as the Minister may allow) of being provided by the Minister with the documents under subclause (1), lodges with the Minister the draft lease document (signed by the applicant).(3) Subject to section 167 of the Act, the Minister may refuse an application for the renewal of an aquaculture lease if—(a) in the case of an applicant who is an individual—the applicant is disqualified under section 161 of the Act from holding an aquaculture permit, or(b) in the case of an applicant that is a corporation—the applicant, or any of the directors or other persons concerned in the management of the applicant, is disqualified under section 161 of the Act from holding an aquaculture permit, or(c) the applicant has rent, contributions or other amounts payable to the Minister that are outstanding in respect of that or other leases, or(d) the applicant has, in the Minister’s opinion, a poor record of managing one or more other leased areas, or(e) in the Minister’s opinion, it would otherwise not be in the public interest to renew the lease.(4) After renewing an aquaculture lease, the Minister must—(a) provide the lessee with a statement of the fees, rents or other amounts payable by the lessee in connection with the renewal of the lease and the date by which those amounts must be paid, and(b) publish in the Gazette notice of the renewal of the lease.(5) The lessee must pay all amounts referred to in subclause (4) (a) in full by the date notified by the Minister in the statement referred to in the subclause.cl 39: Am 2021 (482), Sch 2[6].
Division 3 Rent for aquaculture leases
40 Minimum rent for leased area
(1) The minimum rent payable per year for a lease (of any class) is the amount specified in Schedule 3.(2) When 2 or more leases of the same class are held by the same lessee, the leases are to be treated as if they were a single lease for the purpose of determining the minimum rent applicable to those leases.(3) For the purpose of this Division, a year is a period of 12 months beginning on 1 July in any year.
41 How rent for an aquaculture lease is to be calculated
(1) The lessee under an aquaculture lease must pay the rent payable under the lease to the Minister.(2) The first payment of rent for an aquaculture lease that is granted or renewed is to be calculated as follows—%20AND%20(No%3D0443)%20AND%20(Year%3D2017)%20AND%20(%22Historical%20Document%22%3D0))/g1.gif)
where—AP represents the amount to be paid.DR represents the number of days during the period beginning on the date when the lease begins and ending with 30 June next following.AR represents the amount of rent payable under the lease for a full year.(3) In the year in which an aquaculture lease expires, the amount of rent payable is to be calculated as follows—%20AND%20(No%3D0443)%20AND%20(Year%3D2017)%20AND%20(%22Historical%20Document%22%3D0))/g2.gif)
where—AP represents the amount to be paid.DR represents the number of days during the period beginning on the previous 1 July and ending with the date on which the lease ends.AR represents the amount of rent payable under the lease for a full year.(4) If the rent payable under an aquaculture lease is redetermined by the Minister or otherwise altered, the Minister must make an appropriate adjustment to the rent payments.
42 When rent payable
(1) The first payment of rent under an aquaculture lease is payable by the date notified by the Minister in the statement referred to in clause 37 (3) (a) or clause 39 (4) (a).(2) After the first payment, the rent under an aquaculture lease must be paid in advance, either (at the lessee’s option)—(a) annually, on or before a date determined by the Minister and notified to the permit holder, or(b) by instalments.(3) If the lessee elects to pay the rent by instalments, the Minister is required—(a) to determine the amounts of the instalments that are payable, or the manner in which they are to be calculated, and(b) to determine the dates on which the instalments are payable, and(c) to notify the amounts (or the manner of the calculation) of the instalments, and the dates on which they are payable, to the lessee.(4) If there is a failure to make a payment in accordance with such a notice, the Minister may treat the total unpaid balance as an overdue amount of rent even if payment by instalments has begun.
43 (Repealed)
cl 43: Rep 2021 (482), Sch 2[7].
Division 4 Sublease, transfer and transmission of aquaculture leases
44 Obtaining Minister’s consent to subletting of leased area
(1) An application for the Minister’s consent under section 172 of the Act to the subletting of a leased area must be—(a) in a form approved by the Minister, and(b) accompanied by the processing fee specified in Schedule 3.(2) The Minister may refuse an application if—(a) in the case of a sublessee who is an individual—the sublessee is disqualified under section 161 of the Act from holding an aquaculture permit, or(b) in the case of a sublessee that is a corporation—the sublessee, or any of the directors or other persons concerned in the management of the sublessee, is disqualified under section 161 of the Act from holding an aquaculture permit, or(c) the lessee or the sublessee has rent, contributions or other amounts payable to the Minister that are outstanding in respect of that or another aquaculture lease, or(d) the lessee or the sublessee has, in the Minister’s opinion, a poor record of managing one or more other leased areas, or(e) in the Minister’s opinion, it would otherwise not be in the public interest to grant the application.cl 44: Am 2022 (319), Sch 1[5].
45 Obtaining Minister’s consent to transfer of aquaculture lease
(1) An application for the Minister’s consent under section 173 of the Act to the transfer of an aquaculture lease must be in a form approved by the Minister.(2) An application must be accompanied by—(a) (Repealed)(b) the lease document, and(c) the processing fee specified in Schedule 3.(3) The Minister may refuse an application if—(a) the application does not comply with this clause, or(b) in the case of a transferee who is an individual—the transferee is disqualified under section 161 of the Act from holding an aquaculture permit, or(c) in the case of a transferee that is a corporation—the transferee, or any of the directors or other persons concerned in the management of the transferee, is disqualified under section 161 of the Act from holding an aquaculture permit, or(d) the transferor or the transferee has rent, contributions or other amounts payable to the Minister that are outstanding in respect of that or another aquaculture lease, or(e) the transferor or the transferee has, in the Minister’s opinion, a poor record of managing one or more other leased areas, or(f) in the Minister’s opinion, it would otherwise not be in the public interest to grant the application.cl 45: Am 2021 (482), Sch 2[7].
46 Transmission of aquaculture lease on lessee’s death
An aquaculture lease is transmissible by operation of law on the death of the lessee, subject to there being lodged with the Minister—(a) such evidence of the death and the entitlement of the person claiming the lease as the Minister requires, and(a1) the lease document, and(b) the processing fee specified in Schedule 3.cl 46: Am 2021 (482), Sch 2[8].
Division 5 Surrender, consolidation and subdivision of aquaculture leases
47 Aquaculture lease may be surrendered
(1) An application to surrender an aquaculture lease must be—(a) in a form approved by the Minister, and(b) lodged with the Minister, and(c) accompanied by the processing fee specified in Schedule 3.(2) An application to surrender part of a leased area must be in writing, be lodged with the Minister and be accompanied by—(a) a description of the part that is affected sufficient to identify it, and(b) a survey diagram or plan depicting that part, and(c) the lease document, and(d) the processing fee specified in Schedule 3.(3) The surrender of a lease or of part of a leased area does not have effect unless the Minister has consented to it and the lessee has complied with any conditions that the Minister has imposed in giving the consent.(4) The Minister may refuse the surrender of a lease or part of a leased area if—(a) the application does not comply with this clause, or(b) in the case of a lessee who is an individual—the lessee is disqualified under section 161 of the Act from holding an aquaculture permit, or(c) in the case of a lessee that is a corporation—the lessee, or any of the directors or other persons concerned in the management of the lessee, is disqualified under section 161 of the Act from holding an aquaculture permit, or(d) the lessor or the lessee has rent, contributions or other amounts payable to the Minister that are outstanding in respect of that or another aquaculture lease, or(e) the lessor or the lessee has, in the Minister’s opinion, a poor record of managing one or more other leased areas, or(f) in the Minister’s opinion, it would otherwise not be in the public interest to grant the application.(5) If the Minister consents to the surrender of part of a leased area, the Minister must provide the lessee with the following documents—(a) a copy of the plan of the leased area comprised in the new lease,(b) a draft lease document for the leased area that is in accordance with Schedule 2, Form 1.(5A) The surrender of part of a leased area does not have effect unless the lessee, within 60 days, or a further period allowed by the Minister, of being provided by the Minister with the documents under subclause (5), lodges with the Minister the draft lease document signed by the lessee.(6) The fee for the surrender of an aquaculture lease is not payable if the surrender is for the purpose of consolidating leases into a single lease.cl 47: Am 2021 (482), Sch 2[9]; 2022 (319), Sch 1[6].
48 Aquaculture leases may be consolidated
(1) A lessee of 2 or more adjoining leased areas may apply for the consolidation of the leases into a single lease.(2) An application must—(a) be in a form approved by the Minister, and(b) be lodged with the Minister, and(c) be accompanied by the processing fee specified in Schedule 3.(3) The Minister may grant, or refuse to grant, an application.(4) If an application is granted, the Minister may decide any matters relating to—(a) the term of the consolidated lease, and(b) the covenants and conditions of the lease, and(c) the rent payable for the lease, and(d) any other matters necessary for the preparation of the lease document.(5) A lessee is entitled to a consolidated lease only if the lease document for each of the leases that is to be consolidated is first lodged with the Minister for replacement.(6) The consolidation of 2 or more leases under this clause does not operate to extinguish any debt to the Crown or Minister relating to the leases concerned, except to the extent the Minister directs.(7) If the Minister grants an application for the consolidation of leases, the Minister must provide the lessee with the following documents—(a) a copy of the plan of the leased area comprised in the consolidated lease,(b) a draft lease document for the consolidated leased area that is in accordance with Schedule 2, Form 1.(7A) The consolidation of leases does not have effect unless the lessee, within 60 days, or a further period allowed by the Minister, of being provided by the Minister with the documents under subclause (7), lodges with the Minister the draft lease document signed by the lessee.(8) The Minister must publish in the Gazette notice of the consolidation of the lease.cl 48: Am 2021 (482), Sch 2[10]; 2022 (319), Sch 1[7].
49 Aquaculture lease may be subdivided
(1) A lessee may apply for the subdivision of a lease (the original lease) into 2 or more leases.(2) An application for subdivision must—(a) be in a form approved by the Minister, and(b) be lodged with the Minister, and(c) be accompanied by the processing fee specified in Schedule 3.(3) The Minister may grant, or refuse to grant, an application.(4) If an application is granted, the terms of the leases that result from the subdivision are to be the same as the remainder of the term of the original lease.(5) The Minister may decide any matters relating to—(a) the covenants and conditions of the leases that result from the subdivision, and(b) the rent payable for the leases, and(c) any other matters necessary for the preparation of the lease documents.(6) A lessee is entitled to the leases that result from a subdivision only if the lease document for the original lease is first lodged with the Minister for replacement.(7) The subdivision of 2 or more leases under this clause does not operate to extinguish any debt to the Crown or Minister relating to the leases concerned, except to the extent the Minister directs.(8) If the Minister grants an application for the subdivision of a lease, the Minister must provide the lessee with the following documents—(a) a copy of the plan of the leased area comprised in each lease,(b) draft lease documents for each leased area that are in accordance with Schedule 2, Form 1.(8A) The subdivision of the lease does not have effect unless the lessee, within 60 days, or a further period allowed by the Minister, of being provided by the Minister with the documents under subclause (8), lodges with the Minister the draft lease documents signed by the lessee.(9) The Minister must publish notice of the subdivision of the lease in the Gazette.(10) The subdivision of an original lease into 2 or more leases does not affect the application of section 167 (3) of the Act to the first renewal of those leases after the grant of the original lease.cl 49: Am 2021 (482), Sch 2[11]; 2022 (319), Sch 1[8].
Division 6 Aquaculture lease plans and documents
49A Definition
In this Division—online system means a facility approved by the Secretary that—(a) enables transactions about aquaculture permits and leases to be carried out electronically, and(b) allows information and documents relating to aquaculture permits and leases to be provided electronically.cl 49A: Ins 2022 (319), Sch 1[9].
50 Certified copy of lease or plan
(1) If an aquaculture lease document or a plan annexed to an aquaculture lease document is lost or destroyed, the Minister may issue to the lessee a certified copy of the document or plan subject to—(a) payment of the fee specified in Schedule 3, and(b) supplying a notice, in the form approved by the Minister, setting out the circumstances in which the original document or plan was lost or destroyed.(2) A certified copy of an aquaculture lease document may be lodged with the Minister instead of the original if at any time the document is required to be lodged with the Minister under this Regulation or with any other person for any other lawful purpose.(3) The Minister may—(a) provide any person with a copy of a survey plan or map relating to an aquaculture lease, and(b) certify the copy as being a true copy of the original, and(c) charge a fee for the copy not exceeding the amount specified in Schedule 3.(4) Without limiting the form of notice that may be approved under subclause (1) (b), the form may be an electronic form accessible on a publicly available website.(5) A person who provides the Minister with a statutory declaration setting out the circumstances in which the original document or plan was lost or destroyed is taken to have done so in the approved form.
51 Minister’s duties in relation to endorsing lease documents
(1) The Minister must make an endorsement on a document attached to an aquaculture lease document to record a transfer, transmission, withdrawal or access way affecting the lease.(2) The Minister may make any endorsement necessary on a document attached to the aquaculture lease document to record a consent or other matter affecting an aquaculture lease.(3) The Minister must, at the request of the lessee and the other party to the dealing, endorse the particulars of any mortgage, charge or other interest to which an aquaculture lease document is subject on a document attached to the aquaculture lease document.(4) If a mortgage, charge or other interest affecting an aquaculture lease is discharged, the Minister must, at the request of the lessee and the other party to the dealing, endorse particulars of the discharge on a document attached to the aquaculture lease document.(5) The Minister may refuse to consent to a dealing relating to an aquaculture lease, and the Minister may refuse to make an endorsement in relation to an aquaculture lease document, if—(a) an undischarged mortgage, charge or other interest is endorsed on a document attached to the aquaculture lease document, and(b) the mortgagee, chargee or holder of the interest has not consented to the dealing.(6) A request made by a lessee for the Minister’s endorsement under this clause must be accompanied by the processing fee specified in Schedule 3.(7) If a lessee makes more than 1 request for the Minister’s endorsement under this clause at the same time and the request is to make the same endorsement on each of the aquaculture lease documents, a single fee, specified in Schedule 3, must be paid.(8) An endorsement under this clause may be made using the online system if the endorsement is in relation to an application or document that may be made, provided or lodged using the online system under clause 54A.cl 51: Am 2021 (482), Sch 2[12] [13]. Subst 2022 (319), Sch 1[10].
52 When Minister can require aquaculture lessee to lodge lease document
(1) The Minister may, by notice in writing, direct a lessee or other person in possession of an aquaculture lease document to lodge the lease document with the Minister, within the period specified in the notice, in order to enable the Minister to make an endorsement in relation to the lease document or for any other lawful purpose.(2) The Minister must return an aquaculture lease document lodged under this clause as soon as practicable after the endorsement has been made or the purpose for which the document was lodged has been achieved.(3) A person who fails, without reasonable excuse, to comply with a direction under this clause is guilty of an offence.Maximum penalty—10 penalty units.cl 52: Am 2021 (482), Sch 2[14]; 2022 (319), Sch 1[11] [12].
53 Minister can correct errors in aquaculture leases and other documents
The Minister may correct an error in an aquaculture lease document or in any map, plan or other document relating to an aquaculture lease.
54 Applications under Part 4—lost, destroyed or stolen lease documents
(1) If an application made under this Part is required to be accompanied by the relevant aquaculture lease document and the lease document or a plan annexed to the lease document is lost, destroyed or stolen, the applicant may lodge with the Minister, instead of the original lease document or plan, a notice, in the form approved by the Minister, setting out the circumstances in which the original lease document or plan was lost, destroyed or stolen.(2) Without limiting the form of notice that may be approved under subclause (1), the form may be an electronic form accessible on a publicly available website.(3) A person who provides the Minister with a statutory declaration setting out the circumstances in which the original lease document or plan was lost, destroyed or stolen is taken to have done so in the approved form.
54A Use of online system—the Act, ss 163(8), 167(7) and 191(h) and (m1)
(1) An application made under clause 31, 38, 44, 45 or 47–49 or a transmission lodged under clause 46 may be made or lodged using an online system.(2) The following may be provided using an online system—(a) a document specified in clause 50, subject to requirements for the certifying of copies of aquaculture lease documents,(b) a request made by a lessee under clause 51(3) or (4),(c) a document specified in clause 52,(d) a notice specified in clause 54.cl 54A: Ins 2022 (319), Sch 1[13].
Division 7 Marking of leased areas, boat channels and access ways
55 Obligations of aquaculture lessee to mark out leased area
(1) A lessee must mark out in accordance with this clause the boundaries of the area leased—(a) within 30 days after the beginning of the lease, or(b) within such further period as the Minister may allow.Maximum penalty—10 penalty units.(2) The boundaries of the leased area must be marked out in accordance with any relevant aquaculture industry development plan.(3) If the Minister or a fisheries officer directs the lessee by notice in writing that he or she is satisfied that the method of marking out prescribed by subclause (2) is impracticable or unsuitable in a particular case and directs the lessee to mark out the boundaries of the area in some other way, those boundaries must be marked out in that way.(4) A lessee must ensure that the boundaries of the leased area continue to be marked as required by this clause for the duration of the lease.Maximum penalty—10 penalty units.(5) A person must not mark out an area of public water land as a leased area held by the permit holder, or in a way that is likely to lead persons to believe that the area is so leased, unless the person is the lessee of the area or is authorised by the lessee to mark out the area.Maximum penalty—10 penalty units.(6) This clause applies to—(a) a lease that consolidates 2 or more leases, and(b) a lease part of the area of which has been surrendered, and(c) a lease that has been subdivided into 2 or more leases, andin the same way as it applies to a new lease.(d) a renewed lease,
56 Obligations of aquaculture lessee to mark out boat channel
(1) A lessee of an area that adjoins a boat channel must, before the deadline, mark out the boat channel in accordance with this clause. The deadline is the end of 30 days after the date of service on the lessee of a direction in writing by the Minister or a fisheries officer directing the lessee to comply with this clause.(2) A boat channel must be marked out in accordance with any relevant aquaculture industry development plan.(3) If the Minister or a fisheries officer directs the lessee by notice in writing that he or she is satisfied that the method of marking out prescribed by subclause (2) is impracticable or unsuitable in a particular case and directs the lessee to mark out the area in some other way, the boat channel must be marked out in that way.(4) A lessee must ensure that the markings required by this clause are maintained for the duration of the aquaculture lease concerned, unless the Minister or a fisheries officer directs otherwise.Maximum penalty—10 penalty units.
57 Obligations of aquaculture lessee to mark out an access way
(1) An application under section 175 (1) of the Act must be accompanied by a certified copy of the map of the leased area marked with the proposed access way.(2) If the Minister has determined an access way under section 175 (2) of the Act, the lessee must, before the deadline, mark out the access way in accordance with this clause. The deadline is the end of 30 days after the date of service on the lessee of a direction given in writing by the Minister or a fisheries officer requiring the access way to be marked out or such further period as the Minister may allow.(3) An access way must be marked out in accordance with any relevant aquaculture industry development plan, or if the Minister so requires, be marked out in accordance with the Minister’s directions under section 175 of the Act. Each of the posts, or such of the posts as may be specified in the direction, must have fixed to it at or near the top a white sign or a batten that complies with subclause (4).(4) A sign or batten complies with this subclause if—(a) it has the words “ACCESS WAY” depicted on it, and(b) those words are in black letters that are not less than 75 mm high.(5) In the case of an access way determined in respect of a class 2 lease or a class 3 lease, the lessee must mark out the access way in the manner prescribed by the determination.(6) A lessee must ensure that the markings required by this clause are maintained for the duration of the term of the aquaculture lease concerned, unless the access way is terminated before that lease is terminated.Maximum penalty—10 penalty units.
58 Notice to maintain markings
(1) If at any time during the term of an aquaculture lease it appears to the Minister that the markings required by this Division are not being properly maintained, the Minister may, by notice in writing served on the lessee, require the lessee, within a period specified in the notice, to ensure that the markings comply with this Division. The period specified must be not less than 7 days after the service of the notice.(2) If, on being served with such a notice, the lessee fails to comply with the notice within the specified period, any fisheries officer may, with or without assistants, enter the lessee’s area and undertake such work (including the installation of posts, signs and other structures) as may be necessary to ensure that the markings comply with this Division.(3) The Minister may, by proceedings brought in a court of competent jurisdiction, recover as a debt due to the Crown the cost of carrying out work under this clause.
59 Minister may modify boundaries of leased area
(1) The Minister may, at any time, modify the boundaries of a leased area for the purpose of rectifying errors of measurement.(2) If such a modification increases or reduces the area of a leased area, the Minister may make a proportionate increase or reduction, as appropriate, to the rent, contributions and other amounts that the lessee is required to pay for the area.
Division 8 Public rights
60 Additional public right to which aquaculture lease is subject
(1) The right of the owner or the lawful occupier of any land adjoining a leased area to drain the surface water off the land on to the area is a recognised right for the purposes of section 164 (3) of the Act.(2) A lessee is not entitled to compensation for any damage to the leased area or to the stock on the area caused by the reasonable exercise of such a right.(3) To avoid doubt, this clause does not apply to water accumulated by an act of the owner or lawful occupier of land adjoining a leased area, or an agent of either of them, or as a result of works on the land carried out by or with the approval of that owner or occupier.
Part 5 Miscellaneous
61 Information to be specified on containers of shellfish and other aquaculture products for sale
(1) The purpose of this clause is to prevent the spread of fish diseases.(2) A person must not consign or convey unopened shellfish for sale in a container that does not have marked, in a legible and durable manner, on the outside—(a) the name of the consignor or packer, and(b) the name in full of the estuary, bay or other area where the shellfish were grown, and(c) the species of shellfish that it contains.Maximum penalty—50 penalty units.(3) A person must not consign or convey aquaculture products (other than shellfish) for sale in a container that does not have marked, in a legible and durable manner, on the outside—(a) the name of the supplier, and(b) the supplier’s Aquaculture Permit Number, and(c) the batch identification details, and(d) the species and type (for example, live fish, whole or gilled and gutted) of aquaculture product that it contains.Maximum penalty—50 penalty units.(4) A person must not, without reasonable excuse, consign or convey for sale in the same container unopened shellfish of different species.Maximum penalty—50 penalty units.(5) This clause does not apply to the consignment or conveyance of shellfish from one area to another area for further growth.(6) This clause does not apply to the consignment or conveyance of live aquaculture products (other than shellfish) if bulk live fish transport containers (for example, drums, vats or tanks) are used in the consignment or conveyance and records of the consignment or conveyance are maintained in the transport vehicle.(7) In this clause—batch identification details, in relation to aquaculture products, means—(a) the date that the aquaculture product was processed or packed, or(b) an identifier used in relation to the aquaculture product in accordance with a quality assurance program.shellfish means aquatic molluscs, crustaceans or echinoderms.cl 61: Am 2022 No 59, Sch 1.15[3].
62 Obligations of authorised deposit-taking institutions concerning trust accounts
(1) An authorised deposit-taking institution does not, in relation to a transaction on a trust account kept under this Regulation—(a) incur any obligation to make inquiries, or any liability, other than an obligation or liability to which it would be subject apart from this Regulation, orthat it would not incur, or have imputed to it, if the account were kept by the authorised deposit-taking institution for a person absolutely entitled to the money credited to it.(b) have imputed to it any knowledge of the right of a person to money credited to the account,(2) An authorised deposit-taking institution at which the Minister keeps a trust account under this Regulation has no recourse against money at credit in the account in respect of a liability of the Minister to the authorised deposit-taking institution other than a liability in respect of the account.(3) In subclause (2), recourse includes any right by way of set off, counter-claim or charge or otherwise.
63 (Repealed)
cl 63: Rep 2020 No 30, Sch 1.18[1].
64 Fee for permit under section 37 of Act
An application for a permit under section 37 of the Act, being a permit that authorises a person to take and possess fish or marine vegetation for aquaculture purposes, must be accompanied by the fee specified in Schedule 3.
65 Saving
Any act, matter or thing that, immediately before the repeal of the Fisheries Management (Aquaculture) Regulation 2012, had effect under that Regulation continues to have effect under this Regulation.
66 Transitional provision for class A annual contributions
The class A annual contribution payable by all permit holders under clause 25 for the period beginning on 1 July 2022 or 1 July 2023 is the amount specified in Schedule 3, item 8(a).cl 66: Ins 2022 (319), Sch 1[14].
Schedule 1 Provisions relating to members and procedure of committees
(Clause 17 (5))
1 Definitions
In this Schedule—committee means a committee appointed by the Minister in respect of a trust account under section 157 (4) of the Act.member means a member of a committee.
2 Appointment of members
(1) The Minister may convene a selection committee (including representatives of the aquaculture industry) for the purpose of recommending persons for appointment as members of a committee.(2) The chairperson of a committee is to be the member of the committee for the time being appointed by the Minister as chairperson.
3 Deputy members
(1) The Minister may, from time to time, appoint a person to be the deputy of a member, and may at any time revoke any such appointment.(2) In the absence of a member, the member’s deputy—(a) may, if available, act in the place of the member, and(b) while so acting, has all the functions of the member and is to be taken to be the member.(3) A person while acting in the place of a member is entitled to be paid such allowances as the Minister may from time to time determine in respect of the person.
4 Terms of office of member
Subject to this Schedule, a member holds office for the term (not exceeding 3 years) specified in the instrument of appointment, but is eligible (if otherwise qualified) for re-appointment.
5 Allowances for member
A member is entitled to be paid such allowances as the Minister from time to time determines in respect of the member.
6 Vacancy in office of member
The office of a member becomes vacant if the member—(a) dies, or(b) completes a term of office and is not re-appointed, or(c) resigns the office by instrument in writing addressed to the Minister, or(d) is removed from office by the Minister under section 157 (9) of the Act, or(e) is absent from 3 consecutive meetings of the committee of which reasonable notice has been given to the member personally or in the ordinary course of post, except on leave granted by the committee or unless, before the expiration of 4 weeks after the last of those meetings, the member is excused by the committee for having been absent from those meetings, or(f) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or(g) becomes a mentally incapacitated person, or(h) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable.
7 Filling of vacancy in office of member
If the office of a member becomes vacant, a person is, subject to the Act, required to be appointed to fill the vacancy.
8 Disclosure of pecuniary interests
(1) A member of a committee—(a) who has a direct or indirect pecuniary interest in a matter being considered or about to be considered at a meeting of the committee, andmust, as soon as possible after the relevant facts have come to the member’s knowledge, disclose the nature of the interest at a meeting of the committee.(b) whose interest appears to raise a conflict with the proper performance of the member’s duties in relation to the consideration of the matter,(2) A disclosure by a member of a committee at a meeting of the committee that the member—(a) is a member, or is in the employment, of a specified company or other body, or(b) is a partner, or is in the employment, of a specified person, oris a sufficient disclosure of the nature of the interest in any matter relating to that company or other body or to that person which may arise after the date of the disclosure and which is required to be disclosed under this clause.(c) has some other specified interest relating to a specified company or other body or to a specified person,(3) Particulars of any disclosure made under this clause must be recorded by the members of the committee in a book kept for the purpose and that book must be open at all reasonable hours to inspection by any person on payment of the fee determined by the members of the committee.(4) After a member of the committee has disclosed the nature of an interest in any matter, the member must not, unless the Minister or the other members of the committee otherwise determine—(a) be present during any deliberation of the committee with respect to the matter, or(b) take part in any decision of the committee with respect to the matter.(5) For the purposes of the making of a determination by the members of the committee under subclause (4), a member of the committee who has a direct or indirect pecuniary interest in a matter to which the disclosure relates must not—(a) be present during any deliberation of the other members of the committee for the purpose of making the determination, or(b) take part in the making by the other members of the committee of the determination.(6) A contravention of this clause does not invalidate any decision of the committee.(7) A member is taken not to have an interest in a matter for the purposes of this clause merely because the member is the holder of an aquaculture permit or aquaculture lease.
9 General procedure for calling and holding meetings of a committee
The procedure for the calling and holding of meetings of a committee is, subject to any direction by the Minister, to be determined by the committee.
10 Quorum
The quorum for a meeting of a committee is a majority of its members for the time being.
11 Presiding member and voting rights
(1) The chairperson of a committee or, in the absence of the chairperson, another member elected to chair the meeting by the members present is to preside at a meeting of the committee.(2) The person presiding at a meeting of a committee has a deliberative vote and, in the event of an equality of votes, has a second or casting vote.
12 Voting
A decision supported by a majority of the votes cast at a meeting of a committee at which a quorum is present is the decision of the committee.
Schedule 2 Forms
Form 1
clauses 37(1)(b), 39(1)(b), 47(5)(b), 48(7)(b) and 49(8)(b)
AQUACULTURE LEASE/RENEWAL OF AQUACULTURE LEASE
I, the Minister for .............................., lease on behalf of the Crown the area described below to you, the lessee, for the term, at the rent and on the conditions (if any) specified below.
Your name | |
Your residential address | |
The area of your lease permit | |
The description of the leased area | |
The date when the lease starts | |
The rent payable for the lease (per year) | |
Special conditions applicable to the lease | 1. 2. 3. 4. 5. 6. |
Note—
The rent is subject to periodic redetermination as provided by section 165 (2) of the Fisheries Management Act 1994.
Lessee’s covenants
You, the lessee, agree that you will—
(a) comply with the provisions of the Fisheries Management Act 1994 (“the Act”) and the Fisheries Management (Aquaculture) Regulation 2017 (“the Regulation”), and
(b) pay rent for your leased area yearly in advance or by instalments as required by the Act and the Regulation, and
(c) ensure that your leased area is used only for aquaculture and that the cultivation of fish or marine vegetation on the leased area is carried out in accordance with any relevant aquaculture industry development plan notified from time to time by the Secretary of the Department, and
(d) ensure that your leased area is kept in a neat and tidy condition to the satisfaction of the Secretary of the Department.
You also agree to adjust the areas of cultivation on your leased area so as to allow safe navigation if existing channels change or something else happens that requires those channels to be altered.
Conditions of the lease
It is a condition of this lease that I may cancel it if you fail to comply with a notice served on you in accordance with section 162 (2) of the Act (in your capacity as the holder of an aquaculture permit) within the period specified in the notice.
Note—
This is a condition of the lease referred to in section 177 (1) (d) of the Act. Section 177 specifies other grounds on which the lease may be cancelled, including non-payment of rent.
Dated this .......... day of ............... 20.....
.............................. My or my delegate’s signature | .............................. Witness to my or my delegate’s signature |
.............................. Your signature | .............................. Witness to your signature |
sch 2: Am 2021 (482), Sch 2[15].
Schedule 3 Fees, charges and contributions
Column 1 | Column 2 | Column 3 |
Item | Matter for which fee, charge or contribution is payable | Amount |
1 | Application for aquaculture permit (clause 6 (1)) | |
(a) class A permit | $320 | |
(b) class B permit | $320 | |
(c) class C permit | $483 | |
(d) class D permit | $803 | |
(e) class E permit | $642 | |
(f) class F permit | $483 | |
(g) class G permit | $803 | |
(h) class H permit | $803 | |
2 | Additional application for aquaculture permit (clause 6 (2)) | $160 |
3 | Request for variation of aquaculture permit (clause 7 (1)) | |
(a) class A permit | $160 | |
(b) class B permit | $160 | |
(c) class C permit | $241 | |
(d) class D permit | $401 | |
(e) class E permit | $321 | |
(f) class F permit | $241 | |
(g) class G permit | $401 | |
(h) class H permit | $401 | |
4 | Additional request for variation of aquaculture permit (clause 7 (2) (c)) | $80 |
5 | Annual contribution for industry administration costs (clause 14 (1)) | $561 |
6 | Annual contribution for research (clause 16 (1))— | |
(a) class A permit—for each hectare (or part of a hectare) of area to which permit relates | $46 | |
(b) class B permit—for each hectare (or part of a hectare) of area to which permit relates | $46 | |
(c) class C permit | $160 | |
(d) class D permit—the greater of— | ||
| $160 | |
| $34 | |
(e) class E permit | $160 | |
(f) class F permit | $160 | |
(g) class H permit—the greater of— | ||
| $160 | |
| $34 | |
7 | Required amount for financial arrangements to provide security (clause 21 (4))—for each hectare (or part of a hectare) of leased area or areas to which permit relates | $1,000 |
8 | Class A annual contribution— | |
(a) for a permit holder referred to in clause 25(1A)(a)—for each hectare, or part of a hectare, of leased area or areas to which permit relates | $30 | |
(b) for a permit holder referred to in clause 25(1A)(b)—for each hectare, or part of a hectare, of leased area or areas to which permit relates | $50 | |
9 | Application for aquaculture lease (clause 31 (1) (b))— | |
(a) class 1 lease | $803 | |
(b) class 2 lease | $803 | |
(c) class 3 lease | $803 | |
(d) class 4 lease | $1,283 | |
10 | Application for renewal of aquaculture lease (clause 38 (1) (b))— | |
(a) class 1 lease | $642 | |
(b) class 2 lease | $483 | |
(c) class 3 lease | $803 | |
(d) class 4 lease | $483 | |
11 | Minimum rent payable per year for aquaculture lease (clause 40 (1))—the greater of— | |
(a) minimum amount, or | $160 | |
(b) for each hectare (or part of a hectare) of leased area or areas | $60 | |
12 | Application for consent to sublet (clause 44(1)(b)) | $561 |
13 | Additional application for consent to sublet lodged on same day (clause 44(1)(b)) | $82 |
14 | Application for consent to transfer aquaculture lease (clause 45(2)(c)) | $882 |
15 | Additional application for consent to transfer aquaculture lease lodged on same day (clause 45 (2) (c)) | $82 |
16 | Transmission of aquaculture lease on lessee’s death (clause 46 (b)) | $561 |
17 | Additional application for transmission of aquaculture lease lodged on same day (clause 46 (b)) | $82 |
18 | Application to surrender aquaculture lease (clause 47 (1) (c)) | $401 |
19 | Additional application to surrender aquaculture lease lodged on same day (clause 47 (1) (c)) | $82 |
20 | Application to surrender part of leased area (clause 47 (2) (d)) | $561 |
21 | Application for consolidation of aquaculture leases (clause 48 (2) (c)) | $642 |
22 | Application for subdivision of aquaculture lease (clause 49 (2) (c)) | $642 |
23 | Certified copy of lease or plan (clause 50 (1) (a)) | $82 |
24 | Copy of survey plan or map (clause 50 (3) (c)) | $82 |
25 | Request for endorsement (clause 51 (6)) | $160 |
26 | (Repealed) | |
27 | Application for permit under section 37 of the Act for aquaculture (clause 64) | $240 |
sch 3: Subst 2018 (322), Sch 1.2; 2019 (331), Sch 1.2. Am 2020 No 30, Sch 1.18[2]; 2022 (319), Sch 1[15]–[17].