Compilation #32 | Effective 2024-10-14
FRBR Work URI: /akn/au/act/1984/23
This Act may be cited as the Fisheries Act 1984.
This Act shall come into operation on a day to be fixed by Proclamation.
In this Act, unless the contrary intention appears:
AFMA means the Australian Fisheries Management Authority.
AFMA staff member has the same meaning as in the Fisheries Administration Act 1991.
area of Australian jurisdiction means:
any area of waters in the Protected Zone (other than an area within the Protected Zone coastal waters of Queensland) to the south of the line described in Annex 8 to the Torres Strait Treaty;
if there is in force a Proclamation under subsection 15(1) or (2) in relation to an area of waters—so much of that area of waters as is not within the Protected Zone coastal waters of Queensland; and
if there is in force an arrangement under Part V that provides that a particular fishery, being a fishery that is so defined that it is or may be carried on wholly or partly within the Protected Zone coastal waters of Queensland, is to be managed in accordance with the law of the Commonwealth—that part of the Protected Zone coastal waters of Queensland to which the arrangement relates;
but does not, except to the extent necessary for the purposes of giving effect to an arrangement of the kind referred to in paragraph (c), include, in relation to any act or thing done for the purposes of fishing for sedentary organisms, any part of the Protected Zone to the north of the line described in Annex 5 to the Torres Strait Treaty.
area of Papua New Guinea jurisdiction means any area of waters in the Protected Zone (other than an area within the Protected Zone coastal waters of Queensland) to the north of the line described in Annex 5 to the Torres Strait Treaty, but does not include, in relation to any act or thing done for the purpose of fishing for fish other than sedentary organisms, any area to the south of the line described in Annex 8 to the Torres Strait Treaty.
Australian boat means a boat that is not a Papua New Guinea boat and the operations of which are based on a place in Australia and which is wholly owned by a natural person who is a resident of, or by a company incorporated in, Australia, being a boat that: was built in ; has been lawfully imported into , otherwise than for a limited period; or has been sold, or otherwise disposed of, in after having been forfeited or distrained under a law of the Commonwealth or of a State or Territory.
was built in ;
has been lawfully imported into , otherwise than for a limited period; or
has been sold, or otherwise disposed of, in after having been forfeited or distrained under a law of the Commonwealth or of a State or Territory.
Australian resident means:
(a) a person who holds a permanent visa (as defined in the Migration Act 1958) that is in effect; or
(b) a New Zealand citizen who is usually resident in Australia or a Territory and who holds a special category visa (as defined in the Migration Act 1958) that is in effect; or
any other person who is usually resident in or a Territory and whose continued presence in or a Territory is not subject to a limitation as to time imposed by law.
boat means any kind of vessel used in navigation by water, however propelled or moved, and includes: a barge, lighter or other floating vessel; and an air-cushion vehicle, or other similar craft, used wholly or primarily in navigation by water.
a barge, lighter or other floating vessel; and
an air-cushion vehicle, or other similar craft, used wholly or primarily in navigation by water.
carrying includes preserving for the purpose of carriage or storing for that purpose.
CEO has the same meaning as in the Fisheries Administration Act 1991.
commercial fisher means the holder of a commercial fishing licence.
commercial fishing means fishing for commercial purposes, but does not include traditional fishing.
commercial fishing licence means a licence that is in force under subsection 19(2) or (4).
community fishing means commercial fishing carried on by: a person who is, or 2 or more persons each of whom is, both a traditional inhabitant and an Australian citizen (not being a person who is, in the course of that fishing, under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of another person who is not both an Australian citizen and a traditional inhabitant); or a person or persons of the kind referred to in paragraph (a) and another person or other persons employed by: the first-mentioned person or persons; or the Commonwealth, , an authority of the Commonwealth or an authority of ; to provide the first-mentioned person or persons with training or advice in relation to fishing techniques.
a person who is, or 2 or more persons each of whom is, both a traditional inhabitant and an Australian citizen (not being a person who is, in the course of that fishing, under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of another person who is not both an Australian citizen and a traditional inhabitant); or
a person or persons of the kind referred to in paragraph (a) and another person or other persons employed by:
the first-mentioned person or persons; or
the Commonwealth, , an authority of the Commonwealth or an authority of ;
to provide the first-mentioned person or persons with training or advice in relation to fishing techniques.
evidential material means a thing relevant to an indictable offence, or a thing relevant to a summary offence, against this Act or the regulations, including such a thing in electronic form.
executing officer, in relation to a warrant, means:
the officer named in the warrant by the magistrate who issued the warrant as being responsible for executing the warrant; or
if the officer so named does not intend to be present at the execution of the warrant—another officer whose name has been written in the warrant by the officer so named; or
another officer whose name has been written in the warrant by the officer last named in the warrant.
fish means all the natural resources of the sea and seabed, including all swimming species and all sedentary organisms, but does not include cetaceans or minerals.
fishing means:
searching for, or taking, fish; or
attempting to search for, or take, fish; or
engaging in any other activities that can reasonably be expected to result in the locating, or taking, of fish; or
placing, searching for or recovering fish aggregating devices or associated electronic equipment such as radio beacons; or
any operations at sea directly in support of, or in preparation for, any activity described in this definition; or
aircraft use relating to any activity described in this definition except flights in emergencies involving the health or safety of crew members or the safety of a boat; or
the processing, carrying or transhipping of fish that have been taken.
fish receiver licence means a licence that is in force under subsection 19(4B).
foreign boat means a boat other than an Australian boat or a boat.
master means the person in charge or command of the boat.
master fisherman’s licence means a licence granted under subsection 19(1).
offence against this Act includes an offence against section 136.1, 137.1, 137.2, 148.1, 148.2, 147.1 or 149.1 of the Criminal Code that relates to this Act.
officer means:
a person, or a person included in a class of persons, authorised under subsection (4) to perform duties under this Act;
a member of the Defence Force; or
a member or special member of the Australian Federal Police or a member of the Police Force of Queensland; or
(d) an officer of Customs (as defined in the Customs Act 1901).
boat means:
a boat in respect of which a licence is in force; or
a boat that is being used by a traditional inhabitant who is a citizen of in the course of traditional fishing.
Papua New Guinea licence means a licence in force under the laws of Papua New Guinea in respect of a boat, being a licence granted pursuant to the Torres Strait Treaty that authorises the use of the boat for commercial fishing in an area of Papua New Guinea jurisdiction (whether or not the licence also authorises the use of the boat for fishing in any other area).
Papua New Guinea Minister means the Minister of the Government of Papua New Guinea for the time being administering the laws of relating to fishing in and in the vicinity of the Protected Zone, and includes a delegate of that Minister.
PPSA security interest (short for Personal Property Securities Act security interest) means a security interest within the meaning of the Personal Property Securities Act 2009 and to which that Act applies, other than a transitional security interest within the meaning of that Act.
Note 1: The Personal Property Securities Act 2009 applies to certain security interests in personal property. See the following provisions of that Act:
section 8 (interests to which the Act does not apply);
(b) security interest);section 12 (meaning of
Chapter 9 (transitional provisions).
Note 2: For the meaning of transitional security interest, see section 308 of the Personal Property Securities Act 2009.
premises includes any land, place, vehicle, vessel or aircraft.
private purposes means purposes other than commercial purposes or scientific purposes.
processing includes the cutting up, dismembering, cleaning, sorting or packing of the fish.
Protected Zone means the area the boundaries of which are described in Annex 9 to the Torres Strait Treaty, and includes: in relation to any act or thing done for the purposes of commercial fishing—any area adjacent to the first-mentioned area and to the north of the line described in Annex 5 to the Torres Strait Treaty, being an area that is, under the laws of Papua New Guinea, declared to be an area that is outside but near the Protected Zone for the purposes of commercial fishing; and in relation to any act or thing done for the purposes of traditional fishing—any area adjacent to the first-mentioned area and to the north of the line described in Annex 5 to the Torres Strait Treaty, being an area that is, under the laws of Papua New Guinea, declared to be an area that is in the vicinity of the Protected Zone for the purposes of traditional fishing.
in relation to any act or thing done for the purposes of commercial fishing—any area adjacent to the first-mentioned area and to the north of the line described in Annex 5 to the Torres Strait Treaty, being an area that is, under the laws of Papua New Guinea, declared to be an area that is outside but near the Protected Zone for the purposes of commercial fishing; and
in relation to any act or thing done for the purposes of traditional fishing—any area adjacent to the first-mentioned area and to the north of the line described in Annex 5 to the Torres Strait Treaty, being an area that is, under the laws of Papua New Guinea, declared to be an area that is in the vicinity of the Protected Zone for the purposes of traditional fishing.
sedentary organism means any species of marine organism that, at the harvestable stage, is: immobile on or under the seabed; or unable to move except in constant physical contact with the seabed or the subsoil.
immobile on or under the seabed; or
unable to move except in constant physical contact with the seabed or the subsoil.
take includes catch or capture.
territorial sea, in relation to , has the same meaning as in Division 1 of Part II of the Seas and Submerged Lands Act 1973.
Torres Strait Treaty means the Treaty between Australia and the Independent State of Papua New Guinea concerning sovereignty and maritime boundaries in the area between the two countries, including the area known as the Torres Strait, and related matters that was signed at Sydney on 18 December 1978, being the treaty a copy of which, apart from Annexes 2, 4, 6 and 7 to that treaty, is set out in the Schedule.
traditional fishing has the same meaning as in the Torres Strait Treaty, but does not include fishing by a method, or with the use of equipment or a boat, of a kind specified in an instrument in force under subsection (2).
traditional inhabitant means:
(a) a person covered by the definition of traditional inhabitants in Article 1 of the Torres Strait Treaty (as affected by subsection (3)); or
a person prescribed by the regulations.
Treaty endorsement means an endorsement of a licence made under subsection 20(1).
warrant premises means premises in relation to which a warrant is in force.
The Minister may, by legislative instrument, declare that the taking by traditional inhabitants of fish by a method, or with the use of equipment or a boat, of a kind specified in the instrument is not traditional fishing.
For the purposes of this Act:
(a) the reference in the definition of traditional inhabitants in Article 1 of the Torres Strait Treaty to the adjacent coastal area of Australia shall be read as a reference to any area adjacent to the Protected Zone and to the south of the line described in Annex 5 to the Torres Strait Treaty that is declared by the Minister, by legislative instrument, to be part of the adjacent coastal area of Australia; and
the reference in that definition in that Article to the adjacent coastal area of Papua New Guinea shall be read as a reference to any area adjacent to the Protected Zone and to the north of the line described in Annex 5 to the Torres Strait Treaty that is declared by the Minister, by legislative instrument, to be part of the adjacent coastal area of Papua New Guinea.
The Minister may, by writing under his or her hand:
authorise a person, or a person included in a specified class of persons, being a person who is:
an officer or employee of the Commonwealth or an officer or employee of an authority of the Commonwealth or of a Territory; or
an officer or employee of or of an authority of ;
to perform duties under this Act; or
authorise a person nominated by the Minister to perform duties under this Act.
References in this Act to activities carried on for private purposes or to fishing for private purposes shall be read as not including references to activities carried on in the course of traditional fishing.
References in this Act to the holder of a Treaty endorsement shall be read as references to the holder of the licence in respect of which the Treaty endorsement was made.
For the purposes of this Act, the Protected Zone coastal waters of are:
the parts of the territorial sea of that are adjacent to and are:
in the Protected Zone; or
in an area in respect of which a Proclamation is in force under subsection 15(1) or (2);
other than any part referred to in subsection (2) of this section; and
any marine or tidal waters that are on the landward side of any part of the territorial sea of referred to in paragraph (a) but are not within the limits of .
If at any time the breadth of the territorial sea of Australia is determined or declared to be greater than 3 nautical miles, the Protected Zone coastal waters of Queensland do not include, for the purposes of this Act, any part of the territorial sea of Australia that would not be within the limits of that territorial sea if the breadth of that territorial sea had continued to be 3 nautical miles.
Chapter 2 (other than Criminal Code applies to all offences against this Act.Part 2.5) of the
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Subject to subsection (2), nothing in this Act affects any activities by way of fishing within the Protected Zone coastal waters of .
Where there is in force an arrangement under Part V that provides that a particular fishery, being a fishery that is so defined that it is or may be carried on wholly or partly within the Protected Zone coastal waters of Queensland, is to be managed in accordance with the law of the Commonwealth, this Act applies to and in relation to those waters to the extent necessary for the purposes of the management of that fishery.
(3) Where there is in force a Proclamation under subsection 15(1) in relation to an area (in this subsection referred to as the relevant area) in relation to a class of activities by way of commercial fishing, this Act does not apply in relation to any activities carried on in the relevant area other than:
activities included in the class of activities specified in the Proclamation; or
if there is in force a Proclamation under subsection 15(2) in relation to an area, being an area that is the same as, or that is part of or includes part of, the relevant area—activities to which this Act applies by virtue of the last-mentioned Proclamation.
(4) Where there is in force a Proclamation under subsection 15(2) in relation to an area (in this subsection referred to as the relevant area), this Act does not apply in relation to any activities carried on in the relevant area other than:
activities by way of traditional fishing; or
if there is in force a Proclamation under subsection 15(1) in relation to an area, being an area that is the same as, or that is part of or includes part of, the relevant area—activities to which this Act applies by virtue of the last-mentioned Proclamation.
This Act has extra-territorial operation according to its tenor.
Nothing in this Act applies in relation to activities carried on for private purposes with the use of an Australian boat.
In the administration of this Act, regard shall be had to the rights and obligations conferred on by the Torres Strait Treaty and in particular to the following management priorities:
to acknowledge and protect the traditional way of life and livelihood of traditional inhabitants, including their rights in relation to traditional fishing;
to protect and preserve the marine environment and indigenous fauna and flora in and in the vicinity of the Protected Zone;
to adopt conservation measures necessary for the conservation of a species in such a way as to minimise any restrictive effects of the measures on traditional fishing;
to administer the provisions of Part 5 of the Torres Strait Treaty (relating to commercial fisheries) so as not to prejudice the achievement of the purposes of Part 4 of the Torres Strait Treaty in regard to traditional fishing;
to manage commercial fisheries for optimum utilisation;
to share the allowable catch of relevant Protected Zone commercial fisheries with Papua New Guinea in accordance with the Torres Strait Treaty;
to have regard, in developing and implementing licensing policy, to the desirability of promoting economic development in the area and employment opportunities for traditional inhabitants.
The Minister may, by writing signed by him or her, delegate any or all of his or her functions or powers under this Act, other than his or her powers under subsection 3(3) or section 14, 15A, 16 or 17, to:
an APS employee in the Department; or
an AFMA staff member; or
a person from time to time holding, or performing the duties of, a specified office in the service of Queensland or an authority of Queensland or under the law of Queensland; or
an APS employee in the TSRA.
Note: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.
In performing functions and exercising powers under the delegation, the delegate must comply with any directions of the Minister.
Note: See sections 34AA to 34A of the Acts Interpretation Act 1901.
The Minister shall cause to be kept registers at such place or places as the Minister thinks fit.
The registers must show particulars of:
licences and Treaty endorsements in force from time to time under this Act; and
the allocation of units of fishing capacity (within the meaning or paragraph 15A(6)(a)) from time to time under this Act.
The Minister may cause the contents of part or all of the Register to be made available to the public by electronic or other means.
The Minister may cause operations to be carried out:
for ascertaining whether fishing in an area of Australian jurisdiction can be engaged in on a commercial basis; or
for the development of any class of activities by way of fishing in areas of Australian jurisdiction.
The Minister may cause investigations to be made:
into economic matters relating to any class of activities by way of fishing in an area of Australian jurisdiction; or
into the stocks of fish in an area of Australian jurisdiction.
The Minister may, in his or her discretion, grant a permit to a person authorising that person to engage, for scientific or developmental purposes, in such activities by way of fishing in an area of Australian jurisdiction as are specified in the permit.
The holder of a permit in force under subsection (1) or a person acting on behalf of the holder of such a permit does not commit an offence against this Act by reason of anything done by him or her that is authorised by the permit to be done by the holder of the permit.
A permit granted under subsection (1) is subject to such conditions as are specified in the permit.
The Minister may, in his or her discretion, by notice in writing given to the holder of a permit in force under this section:
revoke the permit; or
vary or revoke the conditions to which the permit is subject or specify further conditions to which the permit is to be subject.
Without limiting subsection (1), the activities authorised by a permit granted under that subsection for developmental purposes may include the following:
assessing the commercial viability of a fishery;
assessing the commercial viability of kinds of fishing activities, boats or equipment specified in the permit.
The Minister shall, when he or she considers it appropriate to do so, seek the views of the members of the Joint Advisory Council established under Article 19 of the Torres Strait Treaty who are traditional inhabitants and Australian citizens on any matter relating to the administration of this Act that may affect the interests of traditional inhabitants who are Australian citizens.
The Minister may, by legislative instrument, require the master of any boat that is being used to take fish included in a class of fish specified in the instrument in the course of commercial fishing (other than community fishing), in any area of Australian jurisdiction or in an area of Australian jurisdiction specified in the instrument, to furnish to the Minister, at such times as are and in such manner as is specified in the instrument, information relating to the taking, in the course of that fishing, of fish of that kind with the use of the boat.
The Minister may, by legislative instrument, require the holder of a licence in force under subsection 19(4A) that authorises the taking of fish included in a class of fish specified in the instrument in the course of commercial fishing (other than community fishing) without the use of a boat, in any area of Australian jurisdiction or in an area of Australian jurisdiction specified in the instrument, to furnish to the Minister, at such times as are and in such manner as is specified in the instrument, information relating to the taking, in the course of that fishing, of fish of that kind.
The Minister may, by legislative instrument, require the master of:
any Australian boat; or
any foreign boat in respect of which a licence is in force under section 19;
that is being used to take fish included in a class of fish specified in the instrument in the course of commercial fishing (other than community fishing), in any area of Papua New Guinea jurisdiction or in an area of Papua New Guinea jurisdiction specified in the instrument, to furnish to the Minister, at such times as are and in such manner as is specified in the instrument, information relating to the taking, in the course of that fishing, of fish of that kind with the use of the boat.
The Minister may, by legislative instrument, require, at such time and in such manner as is specified in the instrument:
the person who is the master of any boat in respect of which a licence is in force under the Minister of:section 19, or of any such boat that is included in a class of boats specified in the instrument, to notify
where the boat is in an area of Australian jurisdiction at the time at which the instrument comes into force—the fact that the person is the master of the boat and that the boat is in the area of Australian jurisdiction; and
where the boat enters or leaves an area of Australian jurisdiction (regardless of its location at the time at which the instrument comes into force)—the fact that the person is the master of the boat and that the boat has entered or left the area of Australian jurisdiction; and
a person who becomes or ceases to be the master of a boat to which the instrument relates at a time when the boat is in an area of Australian jurisdiction to notify the Minister of the fact that the person has become or ceased to be the master of the boat.
The Minister may, by legislative instrument, require a relevant person who:
takes delivery of fish included in a class of fish specified in the instrument from another person; and
knows, or has reasonable grounds to believe, that the other person is both a traditional inhabitant and an Australian citizen;
to furnish to the Minister, at such time and in such manner as is specified in the instrument, information relating to the quantity of fish so delivered.
In subsection (3):
Protected Zone includes any area referred to in paragraph (a) of the definition of Protected Zone in subsection 3(1).
relevant person means a person:
who is not both a traditional inhabitant and an Australian citizen; and
who is:
the master of, or a person on board, a boat;
the pilot of, or a person on board, an aircraft; or
the operator of a fish processing facility that is in .
Where there is in force an instrument under subsection (1) in relation to any fish, the Minister may, by legislative instrument, prohibit the taking, in the course of commercial fishing (other than community fishing), from the area in relation to which the first-mentioned instrument has effect, of fish of that kind with the use of a boat of any one or more of the following kinds, namely, an Australian boat, a Papua New Guinea boat or a foreign boat.
Where there is in force an instrument under subsection (1A) in relation to any fish, the Minister may, by legislative instrument, prohibit the taking, in the course of commercial fishing (other than community fishing) without the use of a boat, from the area in relation to which the first-mentioned instrument has effect, of fish of that kind.
Where there is in force an instrument under subsection (2) in relation to any fish, the Minister may, by legislative instrument, prohibit the taking, in the course of commercial fishing (other than community fishing), from the area in relation to which the first-mentioned instrument has effect, of fish of that kind with the use of an Australian boat or with the use of a foreign boat in respect of which a licence is in force under section 19.
Where there is in force an instrument under subsection (3) in relation to any fish, the Minister may, by legislative instrument, prohibit the taking, in the course of community fishing, from the area in relation to which the first-mentioned instrument has effect, of fish of that kind.
An instrument under subsection (1), (1A), (2), (2A) or (3) comes into force on the day specified for the purpose in the instrument, being a day not earlier than one month after the making of the instrument.
An instrument under subsection (6), (6A), (7) or (8) comes into force on the day specified for the purpose in the instrument, being a day not earlier than 7 days after the making of the instrument and continues to be in force until the instrument is revoked or until the next anniversary of the day on which the instrument under subsection (1), (2) or (3) to which the first-mentioned instrument relates came into force, whichever first occurs.
The Minister shall cause the contents of an instrument under this section to be published or broadcast in such manner as is prescribed.
A person who refuses or fails to provide information required by an instrument under subsection (1), (1A), (2), (2A) or (3) to be provided by that person in the manner that the information is required by the instrument to be provided commits an offence punishable, on conviction, by a fine not exceeding 50 penalty units.
An offence under subsection (12) is an offence of strict liability.
Note: For strict liability, see Criminal Code.section 6.1 of the
A person who, in purported compliance with an instrument under subsection (1), (1A), (2), (2A) or (3), provides information that is, to his or her knowledge, false or misleading in a material particular, commits an offence punishable, on conviction, by a fine not exceeding 50 penalty units or imprisonment for 2 years, or both.
A person who takes fish in contravention of an instrument in force under subsection (6), (6A), (7) or (8) commits an offence punishable, on conviction, by a fine not exceeding:
if the person is a natural person—50 penalty units; or
if the person is a body corporate—250 penalty units.
(14AA) An offence under subsection (14) is an offence of strict liability.
Note: For strict liability, see Criminal Code.section 6.1 of the
A person who purchases fish that the person knows have been taken in contravention of an instrument in force under subsection (6), (6A) or (7) commits an offence punishable, on conviction, by a fine not exceeding:
if the person is a natural person—50 penalty units; or
if the person is a body corporate—250 penalty units.
The Governor-General may, by Proclamation, declare an area of waters specified in the Proclamation that is adjacent to the Protected Zone and to the south of the line described in Annex 5 to the Torres Strait Treaty to be an area outside but near the Protected Zone for the purposes of the performance, in the course of commercial fishing, of any activity that is included in a class of activities by way of commercial fishing specified in the Proclamation.
The Governor-General may, if he or she is satisfied that traditional inhabitants who are citizens of Papua New Guinea had, before the entry into force of the Torres Strait Treaty, customarily engaged in traditional fishing in an area of waters adjacent to the Protected Zone and to the south of the line described in Annex 5 to the Torres Strait Treaty, by Proclamation, declare that area to be an area in the vicinity of the Protected Zone for the purposes of this Act.
The Governor-General shall not make a Proclamation under subsection (1) or (2) in relation to an area that is wholly or partly within the coastal waters of Queensland unless the Governor-General is satisfied that the Minister and the Queensland Minister have agreed that the Proclamation be made in relation to that area.
In subsection (3):
coastal waters of means:
the parts of the territorial sea of Australia that are adjacent to Queensland, other than any part referred to in subsection 4(2); and
any marine or tidal waters that are on the landward side of any part of the territorial sea of referred to in paragraph (a) but are not within the limits of .
Queensland Minister has the same meaning as in Part V.
The Minister may, by legislative instrument, determine a plan of management for a fishery in an area of Australian jurisdiction.
A plan of management for a fishery must set out:
the objectives of the plan of management; and
measures by which the objectives are to be attained; and
performance criteria against which, and time frames within which, the measures taken under the plan of management may be assessed.
The objectives to be set out under paragraph (2)(a) must be consistent with, but are not limited to, the objectives set out in section 8.
Subsections (4), (5) and (6) do not limit, by implication, the matters required by subsection (2) to be set out in a plan of management for a fishery.
The Minister may, in a plan of management for a fishery:
determine the manner in which the fishing capacity of the fishery is to be measured; and
provide for the periodic determination of the fishing capacity, measured in that manner, permitted for the fishery.
A plan of management for a fishery may make provision for and in relation to the following in respect of the fishery:
the granting of permits under section 12;
the conditions to which permits granted under section 12 are to be subject;
the duration, renewal, variation and revocation of permits granted under section 12;
the making of instruments under section 14;
the making of instruments under section 16;
the making of declarations under section 17;
the granting of licences under section 19;
the conditions to which licences granted under section 19 are to be subject;
the duration, transfer, renewal and variation of licences granted under section 19;
the making of Treaty endorsements under section 20;
the conditions to which Treaty endorsements made under section 20 are to be subject;
the duration, transfer, renewal, variation and revocation of Treaty endorsements made under section 20;
the making of entries under section 21 in licences or Treaty endorsements;
the suspension, variation and revocation of entries made under section 21 in licences or Treaty endorsements.
If a plan of management for a fishery provides for the determination of the fishing capacity permitted for the fishery, the plan of management may make provision for and in relation to the following:
(a) the division of the fishing capacity, or a part of the fishing capacity, permitted for the fishery into units (the units of fishing capacity);
the allocation to holders of licences under section 19 or other persons of units of fishing capacity in the fishery;
the assignment of units of fishing capacity to boats, and the holding, and cessation of holding, of units of fishing capacity in relation to boats;
requiring units of fishing capacity to be held in relation to boats;
the determination of the number of units of fishing capacity to be held in relation to boats;
the holding of units of fishing capacity that are not assigned to a boat, including the number of such units of fishing capacity that may be held by a person and the period during which such units of fishing capacity may be held;
the duration, variation, re-assignment, transfer, surrender, replacement, renewal of allocation, suspension and cancellation of units of fishing capacity;
the translation of units of fishing capacity into catch or use entitlements, and the transfer of these entitlements;
the recording on a register kept under section 10 of the allocation, assignment, holding, cessation of holding, variation, re-assignment, transfer, surrender, replacement, renewal of allocation, suspension and cancellation of units of fishing capacity and the manner in which such recording is to be evidenced, including the issue, recall and replacement of certificates and other documents evidencing such recording;
the recording on a register kept under section 10 of the catch or use entitlements applying to particular units of fishing capacity;
the reconsideration of decisions made under the plan of management.
The prescribed fees (if any) are payable in respect of the allocation, assignment, variation, re-assignment, transfer, replacement, and renewal of allocation, of units of fishing capacity and the issue and replacement of certificates and other documents evidencing the recording of the allocation, assignment, holding, cessation of holding, variation, re-assignment, transfer, replacement, and renewal of allocation, of units of fishing capacity.
Regulations made for the purposes of subsection (7) may state different fees, or prescribe different methods of calculating fees, in respect of units of fishing capacity included in different classes of units of fishing capacity.
While a plan of management is in force for a fishery, the performance of functions and the exercise of powers under this Act in relation to the fishery must be in accordance with the plan of management, and not otherwise.
In the performance of functions and the exercise of powers generally under this Act, regard must be had to the effects, either direct or indirect, that the performance of the functions and exercise of the powers may have in relation to any plan or plans of management.
Without limiting the matters by reference to which a fishery may be identified in a plan of management, those matters include all or any of the following:
a species of fish;
a description of fish by reference to sex or any other characteristic;
an area of waters or of seabed;
a method of fishing;
a class of boats;
a class of persons;
a purpose of activities.
In this section:
decision has the same meaning as in the Administrative Review Tribunal Act 2024.
fishery means a class of activities by way of fishing, being a class of such activities that is identified in a plan of management as a fishery to which the plan of management applies.
Subject to this section, the Minister may, by legislative instrument:
prohibit the taking, processing or carrying of fish, or fish included in a class of fish specified in the instrument; or
prohibit the taking, processing or carrying of fish included in a class of fish specified in the instrument that:
are less than a size or weight specified in the instrument; or
have a dimension less than a dimension specified in the instrument; or
have a part with a dimension or weight less than a dimension or weight specified in the instrument in relation to that part; or
are greater than a size or weight specified in the instrument; or
have a dimension greater than a dimension specified in the instrument; or
have a part with a dimension or weight greater than a dimension or weight specified in the instrument in relation to that part; or
prohibit the taking, processing or carrying of fish, or fish included in a class of fish specified in the instrument, by a method, or with the use of equipment or a boat, of a kind specified in the instrument; or
prohibit the taking, processing, carrying or storage, in the course of community fishing, of fish, or fish included in a class of fish specified in the instrument, with the use of equipment, a boat or land facilities owned by, or under the control of, persons other than persons who are included in a class of persons specified in the instrument; or
prohibit the taking, processing or carrying, in the course of commercial fishing, of fish, or fish included in a class of fish specified in the instrument, with the use of an Australian boat, a Papua New Guinea boat or foreign boat; or
prohibit a person from using or having in his or her possession or under his or her control, on a boat, a quantity of equipment, in the course of commercial fishing, of a specified kind that is in excess of a quantity specified in, or ascertainable as provided by, the instrument; or
prohibit a person from using, or having in his or her possession or under his or her control on a boat, in the course of commercial fishing, equipment of a kind specified in an instrument in force under paragraph (f) unless that equipment is registered, or there is a licence in force in respect of that equipment, under the law of Queensland or of Papua New Guinea; or
prohibit the taking, processing or carrying of fish, or fish included in a class of fish specified in the instrument, in the course of commercial fishing without the use of a boat; or
prohibit a person from using, or having in his or her possession or under his or her control, in the course of commercial fishing without the use of a boat, a quantity of equipment of a specified kind that is in excess of a quantity specified in, or ascertainable as provided by, the instrument; or
prohibit a person from using, or having in his or her possession or under his or her control, in the course of commercial fishing without the use of a boat, equipment of a kind specified in an instrument in force under paragraph (gb) unless that equipment is registered, or there is a licence in force in respect of that equipment, under the law of Queensland or of Papua New Guinea; or
prohibit the taking of eggs of reptiles included in a class of reptiles specified in the instrument; or
prohibit the carrying away, from an area specified in the instrument, of sedentary organisms included in a class of sedentary organisms specified in the instrument unless those organisms are dead; or
prohibit the master of a boat that is included in a class of boats specified in the instrument from having on board the boat a number of persons greater than a number specified in, or ascertainable as provided by, the instrument for the purpose of engaging in specified activities by way of commercial fishing; or
prohibit the taking of fish, or fish included in a class of fish specified in the instrument, otherwise than in the course of community fishing or traditional fishing; or
where there is an instrument in force under paragraph (m) in relation to fish of a certain kind, prohibit the processing of fish of that kind in an area of Australian jurisdiction or in an area declared under subsection 3(3) to be part of the adjacent coastal area of Australia otherwise than in the course of community fishing or traditional fishing; or
prohibit a person from having in his or her possession or under his or her control on a boat, equipment of a kind specified in the instrument for taking, processing or carrying fish unless that equipment is stowed and secured, or carried, in a manner specified in the instrument; or
prohibit a person from using or having in the possession or under the control of the person, on a boat, equipment of a kind specified in the instrument for taking fish unless that equipment is marked or otherwise identified in a manner specified in the instrument.
An instrument under subsection (1) may do all or any of the following:
contain prohibitions under 2 or more paragraphs of that subsection;
specify the day on which the prohibition or a particular prohibition contained in the instrument is to come into force (whether the same as, or different from, a day specified under this paragraph in relation to any other prohibition that may be contained in the instrument);
specify the period during which the prohibition or a particular prohibition contained in the instrument is to have effect (whether the same as, or different from, a period specified under this paragraph in relation to any other prohibition that may be contained in the instrument);
provide for exemptions from the prohibition or prohibitions contained in the instrument.
A prohibition contained in an instrument under subsection (1) (other than paragraph (1)(d) or (n)) has effect:
if an area of Australian jurisdiction is specified in the instrument as being the area in respect of which the prohibition is to have effect—in that area; and
in any other case—in any area of Australian jurisdiction.
A prohibition contained in an instrument under paragraph (1)(d) or (n) has effect:
if an area of Australian jurisdiction is specified in the instrument as being the area in respect of which the prohibition is to have effect—in that area; and
if any area of land in Australia is specified in the instrument as being an area in respect of which the prohibition is to have effect—in that area.
A prohibition contained in an instrument under subsection (1) comes into force on the day on which the instrument is published under subsection (9) or on such later day as is specified in the instrument.
A prohibition contained in an instrument under subsection (1) has effect:
if a period is specified in the instrument as being the period during which the prohibition is to have effect—during that period; or
in any other case—at all times.
An instrument under subsection (1) may provide that the activities to which a prohibition contained in the instrument relates are activities in respect of which an entry may be made under subsection 21(1) or (1A).
Where:
(a) an instrument (the subsequent instrument) under subsection (1) revokes a previous instrument under that subsection; and
the subsequent instrument provides that the activities to which a prohibition contained in the subsequent instrument relates are activities in respect of which an entry may be made under subsection 21(1);
the subsequent instrument may also provide that entries made under subsection 21(1) that would, but for the revocation of the previous instrument, have had effect in relation to a specified prohibition contained in the previous instrument during any period or periods after the revocation are to have effect during that period or those periods in relation to the prohibition contained in the subsequent instrument.
Where:
an instrument under subsection (1) provides that the activities to which a prohibition contained in the instrument relates are activities in respect of which an entry may be made under subsection 21(1); and
an entry is made pursuant to subsection 21(1) in a licence granted under subsection 19(2) or (3) or in a Treaty endorsement in force in respect of a boat;
the prohibition does not apply in relation to the use of the boat during any period during which the entry has effect.
(8AA) Where:
an instrument under subsection (1) provides that the activities to which a prohibition contained in the instrument relates are activities in respect of which an entry may be made under subsection 21(1A); and
an entry is made pursuant to subsection 21(1A) in a licence granted under subsection 19(4A) authorising activities in the course of commercial fishing without the use of a boat;
the prohibition does not apply in relation to authorised activities engaged in under the licence during any period in which the entry has effect.
Where an instrument makes provision as mentioned in subsection (7A), the entries referred to in the instrument have effect in accordance with the instrument.
The Minister shall cause the contents of an instrument under subsection (1) to be published or broadcast in such manner as is prescribed.
(1AA) The Minister may, by legislative instrument, declare that a person must hold a master fisherman’s licence if:
the person is in charge of a boat, or of a boat included in a class of boats specified in the instrument; and
the boat is being used for the purpose of the taking, in the course of community fishing, of fish, or fish included in a class of fish specified in the instrument, from any area of Australian jurisdiction or from an area of Australian jurisdiction specified in the instrument.
The Minister may, by legislative instrument, declare that a licence under subsection 19(2) is required for the purpose of the taking, in the course of community fishing, of fish, or fish included in a class of fish specified in the instrument, with the use of any boat or with the use of a boat included in a class of boats specified in the instrument, from any area of Australian jurisdiction or from an area of Australian jurisdiction specified in the instrument.
The Minister may, by legislative instrument, declare that a licence under subsection 19(4A) is required for the purpose of the taking, in the course of community fishing without the use of a boat, of fish, or fish included in a class of fish specified in the instrument, from any area of Australian jurisdiction or from an area of Australian jurisdiction specified in the instrument.
An instrument made under this section comes into force on the day specified for the purpose in the instrument, being a day not earlier than one month after the making of the instrument.
The Minister shall cause the contents of an instrument made under this section to be published or broadcast in such manner as is prescribed.
An application for a licence under the Minister from time to time as the appropriate form for the making of the application.section 19 or for the renewal, transfer or the making of an entry in, such a licence shall be in accordance with the form approved by
A licence under the Minister from time to time.section 19, a renewal or transfer of such a licence, an entry in such a licence, a Treaty endorsement and an entry in a Treaty endorsement shall be in accordance with a form approved by
Subject to subsection (5), the Minister may, in his or her discretion, upon application being made in accordance with the appropriate form, grant to a person a master fisherman’s licence authorising the person to be in charge of a boat that is being used for commercial fishing in areas of Australian jurisdiction.
Subject to subsections (4) and (5), the Minister may, in his or her discretion, upon application being made in accordance with the appropriate form, grant to a person a licence in respect of a boat authorising the use of the boat for taking fish in the course of commercial fishing in areas of Australian jurisdiction and for carrying, or for processing and carrying, in areas of Australian jurisdiction, fish that have been taken with the use of the licensed boat.
Subject to subsections (4) and (5), the Minister may, in his or her discretion, upon application being made in accordance with the appropriate form, grant to a person a licence in respect of a boat authorising the use of that boat for carrying, or for processing and carrying, in areas of Australian jurisdiction, fish that have been taken with the use of another boat.
Without otherwise limiting the generality of subsections (2) and (3), the Minister may refuse to grant a licence under either of those subsections in respect of a boat if the Minister has reason to believe that a requirement of a law of the Commonwealth, or of a State or Territory, has not been complied with in relation to the boat.
The Minister shall not grant a licence under subsection (2) or (3) in respect of a foreign boat or in respect of a boat in respect of which such a licence should not, in the opinion of the Minister, be granted without consultation with Papua New Guinea in accordance with Article 27 of the Torres Strait Treaty, unless:
the Minister has notified the Papua New Guinea Minister that a licence is proposed to be granted under that subsection in respect of that boat; and
the Minister has agreed to the granting of the licence.
Subject to subsection (5), the Minister may, upon application being made in accordance with the appropriate form, grant to a person a licence authorising the taking of fish in the course of commercial fishing without the use of a boat in areas of Australian jurisdiction and for carrying, or for processing and carrying, in areas of Australian jurisdiction, fish so taken.
Subject to subsection (5), the Minister may, upon application being made in accordance with the appropriate form, grant a person a licence to receive fish, the taking of which required a licence under subsection 19(2) or (4A) or a Treaty endorsement.
Where:
a fee is payable under this Act in respect of the grant to a person of a licence under subsection (1), (2), (3) or (4A); or
(b) levy is payable under the Fisheries Levy Act 1984 on the grant to a person of a licence under subsection (2), (3) or (4A);
the Minister shall not grant the licence unless the person tenders the amount of the fee or levy, as the case may be.
Where, pursuant to Article 26 of the Torres Strait Treaty, the Papua New Guinea Minister nominates a boat in respect of which a Papua New Guinea licence is in force as being a boat in respect of which an endorsement should be made under this subsection, the Minister may, in his or her discretion, endorse the licence so as to authorise the use of the boat for:
taking fish in the course of commercial fishing in areas of Australian jurisdiction and carrying, or processing and carrying, in areas of Australian jurisdiction, fish that have been taken with the use of the licensed boat; or
carrying, or processing and carrying, in areas of Australian jurisdiction, fish that have been taken with the use of another boat.
An endorsement of a licence made under this section comes into force on the day on which the endorsement is made and remains in force until the endorsement is revoked or until the licence ceases to be in force, whichever first occurs.
The Minister may, in his or her discretion, by notice in writing served on the holder of a licence in respect of which a Treaty endorsement is in force, revoke the endorsement.
The Minister may, in his or her discretion, upon application being made in accordance with the appropriate form by the holder of a licence in force under section 19 in respect of a boat, nominate, by writing given to the Papua New Guinea Minister, the boat as being a boat in respect of which an endorsement should be made pursuant to Article 26 of the Torres Strait Treaty.
Subject to subsection (3A), the Minister may, in his or her discretion, upon application being made in accordance with the appropriate form, make an entry in a licence granted under subsection 19(2) or (3) or in a Treaty endorsement so as to extend the licence or endorsement, as the case may be, to authorise the use of the boat in respect of which the licence or endorsement, as the case may be, is in force for engaging, at any time or during a period specified in the entry, in activities in the course of commercial fishing that are prohibited by a prohibition contained in an instrument in force under subsection 16(1) to which subsection 16(7) relates, being an instrument identified in the entry.
Subject to subsection (3A), the Minister may, upon application being made in accordance with the appropriate form, make an entry in a licence granted under subsection 19(4A) so as to extend the licence to authorise, at any time or during a period specified in the entry, activities in the course of commercial fishing without the use of a boat that are prohibited by a prohibition contained in an instrument in force under subsection 16(1) to which subsection 16(7) relates, being an instrument identified in the entry.
Subject to subsection (3A), the Minister may, in his or her discretion, upon application being made in accordance with the appropriate form, make an entry in a licence granted under subsection 19(2) or (3) in respect of a foreign boat or in a Treaty endorsement so as to extend the licence or endorsement, as the case may be, to authorise the boat in respect of which the licence or endorsement, as the case may be, is in force:
to be brought, at any time or at a time specified in the entry, into a place specified in the entry, being a place in Australia that is within the Protected Zone; or
to be brought, at any time or at a time specified in the entry, into a place in specified in the entry and to authorise the landing at that place of fish carried on board the boat at the time when the boat is brought into that place.
An entry in a licence or in a Treaty endorsement may be made at the time when the licence is granted or the endorsement is made, as the case may be, or at any later time.
Where:
a fee is payable under this Act in respect of the making under subsection (1), (1A) or (2) of an entry in a licence granted under subsection 19(2), (3) or (4A); or
(b) levy is payable under the Fisheries Levy Act 1984 on the making under subsection (1) or (1A) of this section of an entry in a licence granted under subsection 19(2), (3) or (4A);
the Minister shall not make the entry unless the holder of the licence tenders the amount of the fee or levy, as the case may be.
An entry made in a licence or in a Treaty endorsement under this section comes into force on the day on which the entry is made and, subject to subsections (5) and (6), remains in force until the licence or endorsement, as the case may be, ceases to be in force.
The Minister may, in his or her discretion, by notice in writing given to the holder of a licence or Treaty endorsement in which an entry has been made under this section, suspend the entry for a period specified in the notice or revoke the entry.
The Minister may, by notice in writing given to the holder of a licence or Treaty endorsement in which an entry has been made under this section, vary the entry.
An entry made in a licence or in a Treaty endorsement under this section ceases to be in force if the holder of the licence or endorsement, as the case may be, by notice in writing given to the Minister, surrenders the entry.
A licence granted under section 19 or a Treaty endorsement is subject to such conditions as are specified in the licence or endorsement, as the case may be.
The Minister may, by notice in writing given to the holder of a licence under section 19 or of a Treaty endorsement, vary or revoke a condition of the licence or endorsement, as the case may be, or specify further conditions to which the licence or endorsement, as the case may be, is to be subject.
A variation or revocation of a condition of a licence or of a Treaty endorsement under subsection (2) or an imposition of a further condition under that subsection takes effect on the day on which the notice relating to that condition is given.
A licence granted under section 19 (other than a licence that has been renewed under section 24) comes into force on the day specified for the purpose in the licence or, if no day is specified, on the day on which the licence is granted and, subject to subsection (3) and to section 26, remains in force until the day specified for the purpose in the licence, being a day in the period of 12 months commencing on the day on which the licence comes into force or, if regulations for the purposes of this subsection specify a different period in relation to all licences to which this subsection applies, or in relation to a class of those licences that includes the licence, a day in the period so specified.
Where a licence is renewed under section 24 (whether or not the licence has previously been renewed), the licence remains in force, subject to subsection (3) and to section 26, until the day specified for the purpose in the renewal, being a day in the period of 12 months commencing on the day on which the licence, the renewal of the licence or the last renewal of the licence, as the case requires, ceased to be in force or, if regulations for the purposes of this subsection specify a different period in relation to all licences to which this subsection applies, or in relation to a class of those licences that includes the licence, a day in the period so specified.
A licence granted under the Minister, surrenders the licence.section 19 ceases to be in force if the holder of the licence, by notice in writing given to
Subject to subsection (2), the Minister may, in his or her discretion, upon application being made in accordance with the appropriate form by the holder of a licence granted under section 19 not earlier than 2 months before or later than 3 months after the expiration of the period for which the licence was granted, renewed or last renewed, as the case requires, renew the licence with effect from the expiration of the last-mentioned period.
Where:
a fee is payable under this Act in respect of the renewal under subsection (1) of a licence granted under section 19; or
(b) levy is payable under the Fisheries Levy Act 1984 on the renewal under subsection (1) of this section of a licence granted under subsection 19(2), (3) or (4A);
the Minister shall not renew the licence unless the holder of the licence tenders the amount of the fee or levy, as the case may be.
Subject to subsection (2) and to any condition of a licence relating to the transfer of the licence, the Minister may, in his or her discretion, upon application being made in accordance with the appropriate form by the holder of a licence granted under subsection 19(2), (3), (4A) or (4B) and by another person as proposed transferee, transfer the licence to the other person.
The Minister may, under subsection (1), make a temporary transfer of a licence.
Where a fee is payable under this Act in respect of the transfer under subsection (1) of a licence granted under the Minister shall not transfer the licence unless the holder of the licence tenders the amount of the fee.section 19,
Subject to subsection (2) and to any condition of a licence relating to the variation of the licence, the Minister may, in the Minister’s discretion, upon application being made in accordance with the appropriate form by the holder of a licence granted under section 19 in respect of a boat, vary the licence by omitting the name of the boat and substituting the name of another boat.
Where:
a fee is payable under this Act in respect of the variation under subsection (1) of a licence granted under section 19; or
(b) levy is payable under the Fisheries Levy Act 1984 on the variation under subsection (1) of this section of a licence granted under subsection 19(2) or (3);
the Minister shall not vary the licence unless the holder of the licence tenders the amount of the fee or levy, as the case may be.
The Minister may, in his or her discretion, by notice in writing given to the holder of a licence granted under section 19, suspend the licence if he or she has reasonable grounds to believe that:
there has been a contravention of, or a failure to comply with, a condition to which the licence is subject;
(aa) a person, being the holder of the licence or a person acting on behalf of the holder of the licence, has, after the commencement of subsection 32(1) of the Fishing Legislation Amendment Act 1987:
refused or failed to provide information required by an instrument under subsection 14(1), (1A), (2), (2A) or (3) to be provided by that person in the manner in which the information was required by the instrument to be provided; or
in purported compliance with an instrument under subsection 14(1), (1A), (2), (2A) or (3), provided information that was, to the knowledge of the person, false or misleading in a material particular;
a person, being the holder of the licence or a person acting on behalf of the holder of the licence, has done an act that the person was prohibited from doing by an instrument in force under subsection 14(6), (6A), (7) or (8) or 16(1); or
in an application under this Act relating to the licence, the holder of the licence made a statement or furnished information that was, to his or her knowledge, false or misleading in a material particular;
not being an act or omission in relation to which he or she has previously exercised his or her powers under this subsection.
Where a licence is suspended under subsection (1), the suspension, unless it is revoked, ceases:
if proceedings for an offence against this Act in relation to the alleged act or omission referred to in paragraph (1)(a), (aa), (b) or (c), as the case may be, are instituted against the holder of the licence or a person acting on behalf of the holder of the licence within one month after the suspension—on completion of the proceedings; or
in any other case—on the expiration of one month after the suspension.
The Minister may, at any time, by notice in writing given to the holder of a licence suspended under subsection (1), revoke the suspension.
The Minister may, in his or her discretion, by notice in writing given to the holder of a licence under section 19, cancel the licence if:
the holder of the licence is convicted of an offence against this Act, the regulations or any other law of the Commonwealth relating to fishing or against a law of Papua New Guinea or of a State or Territory relating to fishing; and
in the case of a licence in respect of a boat—during any period during which the holder held the licence in respect of the boat another person is convicted of an offence of a kind referred to in paragraph (a) in relation to the use of the boat.
The Minister may, in his or her discretion, by notice in writing given to the holder of a licence granted under section 19, cancel or suspend the licence if, within such period as is specified in the notice:
payment of a fee, levy or other money relating to the licence is not made; or
the holder of the licence does not enter into an arrangement satisfactory to the Minister in relation to payment of a fee, levy or other money.
If a cheque is tendered to the Minister as payment of all or part of a fee, levy or other money relating to a licence, payment is taken not to have been made unless the cheque is honoured on presentation.
Note: Licences may also be suspended or revoked if the licensee accrues a prescribed number of demerit points under a demerits points system established under section 54C.
Such fees (if any) as are prescribed are payable in respect of the following:
the grant of a licence under section 19;
the making of an entry in a licence of that kind;
the transfer of a licence of that kind;
the variation of a licence of that kind;
the renewal of a licence of that kind.
Where:
a person has, in accordance with subsection 23(3), surrendered a licence granted under this Act in respect of a boat; and
the person had, at the time when he or she surrendered the licence, notified the Minister that he or she intended to apply for another licence under this Act in respect of another boat;
the Minister may direct that the fee that would be payable in respect of the grant of that other licence is to be reduced by an amount that, in the opinion of the Minister, is appropriate, and where the Minister gives such a direction, that fee shall be reduced by that amount.
Regulations made for the purpose of subsection (1) may prescribe different fees, or prescribe different methods of calculating fees, in respect of:
licences included in different classes of licences; and
entries in licences included in different classes of entries in licences.
Nothing in this Act prevents the exercise of any of the powers of a person under this Part (other than powers of the Minister) by another person having authority as agent, trustee or otherwise to exercise that power or powers that include that power.
In this Part, unless the contrary intention appears:
Chairperson of the TSRA means:
(a) subject to paragraph (b), the person for the time being holding office as Chairperson of the TSRA pursuant to an election held under Aboriginal and Torres Strait Islander Act 2005; orsection 143L of the
if a person is acting as Chairperson of the TSRA—the person so acting.
Commonwealth Minister means the Minister for the time being administering this Act.
fishery means a class of activities by way of fishing, being a class of activities that is identified in an arrangement under this Part as a fishery to which the arrangement applies.
Protected Zone Joint Authority means the Authority established by section 30.
Protected Zone Joint Authority fishery means a fishery in respect of which there is in force an arrangement under this Part under which the fishery is to be under the management of the Protected Zone Joint Authority.
Queensland Minister means:
in a case to which paragraph (b) does not apply—the Minister of the Crown of Queensland for the time being administering the laws of Queensland relating to marine fishing in the Protected Zone; and
in a case where there is in force an appointment made for the purposes of this Act by the Governor in Council of Queensland of another Minister of the Crown of Queensland—that other Minister.
TSRA means the Torres Strait Regional Authority established by section 142 of the Aboriginal and Islander Act 2005.
References in this Part to waters adjacent to shall be read as references to:
the Protected Zone coastal waters of ;
waters (not being waters to the north of the line described in Annex 8 to the Torres Strait Treaty) within the Protected Zone that are adjacent to the Protected Zone coastal waters of ; and
waters (other than the Protected Zone coastal waters of ) within an area in respect of which a Proclamation under subsection 15(1) or (2) is in force.
Without limiting the matters by reference to which a fishery may be identified in an arrangement under this Part, those matters include all or any of the following:
a species of fish;
a description of fish by reference to sex or any other characteristic;
an area of waters or of seabed;
a method of fishing;
a kind or class of vessels;
a class of persons;
a purpose for which activities are carried on.
A power or function conferred by this Part on the Governor of Queensland shall be taken to be conferred on the Governor of Queensland acting by and with the advice of the Executive Council of Queensland.
The functions and powers of the Commonwealth Minister under this Part, including his or her functions and powers as a member of the Protected Zone Joint Authority, may be performed and exercised by another Minister of the Commonwealth acting for and on behalf of the Commonwealth Minister, and references in this Part to the Commonwealth Minister shall be read as including references to a Minister so acting.
The functions and powers of the Queensland Minister under this Part as a member of the Protected Zone Joint Authority may be performed and exercised by a Minister of the Crown of Queensland acting for and on behalf of the Queensland Minister, and references in this Part to the Queensland Minister shall be read as including references to a Minister so acting.
For the purposes of this Act there is established an Authority to be known as the Protected Zone Joint Authority.
The Protected Zone Joint Authority consists of:
the Commonwealth Minister; and
the Queensland Minister; and
the Chairperson of the TSRA.
The Protected Zone Joint Authority has such functions in relation to fisheries in respect of which arrangements are made under section 31 as are conferred on it by this Part and by the law of .
The Commonwealth Minister may, by writing under his or her hand, appoint a person or persons to be his or her deputy or deputies.
The Minister of the Crown of Queensland for the time being administering the laws of relating to marine fishing in the Protected Zone may, by writing under his or her hand, appoint a person or persons to be the deputy or deputies of the Queensland Minister.
The Chairperson of the TSRA may, by writing signed by him or her, appoint a person or persons to be his or her deputy or deputies.
(5B) An appointment made under subsection (5A) by the person referred to in paragraph (a) of the definition of Chairperson of the TSRA in subsection 28(1) does not have any effect while a person is acting as Chairperson of the TSRA.
An appointment made under subsection (5A) by a person who is acting as Chairperson of the TSRA only has effect when the person is so acting.
If, under subsection (4), (5) or (5A), an instrument appoints 2 or more persons to be the deputies of a member of the Protected Zone Joint Authority, the instrument may specify conditions as to when a particular person or particular persons appointed are to perform the duties and functions and exercise the powers of the deputy of the member, including a condition that another person or other persons specified in the instrument are not available to perform those functions and duties and exercise those powers.
A deputy of a member of the Protected Zone Joint Authority is entitled, in the absence from a meeting of the Protected Zone Joint Authority of the member and of the other deputy or deputies (if any) of the member, to attend that meeting and, when so attending, shall be deemed to be a member.
All courts and persons acting judicially shall take judicial notice of the signature of a person who is or has been a member of the Protected Zone Joint Authority or a deputy of such a member and of the fact that he or she is, or was at a particular time, such a member or deputy.
Subject to this section, the Commonwealth may make an arrangement with that the Protected Zone Joint Authority is to have the management of a particular fishery in waters adjacent to .
An arrangement under subsection (1) shall provide either that:
the fishery (being a fishery wholly or partly in the Protected Zone coastal waters of ) is to be managed in accordance with the law of the Commonwealth; or
the fishery (being a fishery wholly or partly in waters on the seaward side of the Protected Zone coastal waters of ) is to be managed in accordance with the law of .
Subject to this section, the Commonwealth may make an arrangement with with respect to a particular fishery in waters adjacent to , not being a fishery to which an arrangement under subsection (1) applies:
that the fishery (being a fishery wholly or partly in the Protected Zone coastal waters of ) is to be managed by the Commonwealth in accordance with the law of the Commonwealth; or
that the fishery (being a fishery wholly or partly in waters on the seaward side of the Protected Zone coastal waters of Queensland) is to be managed by Queensland in accordance with the law of Queensland.
An arrangement made under this section in relation to fishing for sedentary organisms has no effect in waters (other than the Protected Zone coastal waters of ) that are to the north of the line described in Annex 5 of the Torres Strait Treaty.
An arrangement under this Part shall be made by instrument in writing approved by the Governor-General and the Governor of Queensland.
An arrangement under this Part may be terminated by instrument in writing approved by the Governor-General and the Governor of Queensland.
(3) The Commonwealth Minister shall cause a copy of every instrument approved in accordance with subsection (1) or (2) to be published in the Gazette, and such an instrument takes effect on the date of publication or, if a later date is specified in the instrument, on that later date.
A party to an arrangement under this Part may:
in the case of the Commonwealth—with the approval of the Governor-General; or
in the case of —with the approval of the Governor of Queensland;
give notice in writing to the other party that the party giving the notice desires the arrangement to terminate upon a date specified in the notice, not being earlier than 6 months after the day on which the notice is given.
(5) Where a party has duly given a notice in accordance with subsection (4), the Commonwealth Minister shall, not less than 3 months before the date specified in the notice, cause to be published in the Gazette a notice stating that, by reason of notice of termination given by that party, the arrangement concerned will cease to have effect on that date and, where the Commonwealth Minister has caused a notice to be so published, the arrangement ceases to have effect on that date.
An arrangement under this Part may provide that, for the purposes of the application of subsection (4) in respect of the arrangement, a longer or shorter period is to be substituted for the period of 6 months referred to in that subsection and may further provide that, for the purposes of the application of subsection (5) in respect of the arrangement, a longer or shorter period is to be substituted for the period of 3 months referred to in that subsection.
After an arrangement under this Part has been made but before the arrangement takes effect, licences, entries, permits or other instruments may be made, granted, executed or published for the purposes of the operation of this Act as affected by the arrangement, as if the arrangement had taken effect, but such an instrument does not have effect before the arrangement takes effect.
Upon the termination of an arrangement under this Part, licences, entries, permits and other instruments made, granted, executed or published for the purposes of the operation of this Act as affected by the arrangement cease to have effect.
After action for the purpose of the termination of an arrangement under this Part has been taken, but before the termination takes effect, licences, entries, permits or other instruments may be made, granted, executed or published 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 an instrument does not have effect before the termination of the arrangement takes effect.
Where there is in force an arrangement under this Part that provides that a particular fishery is to be managed in accordance with the law of Queensland, the provisions of this Act (other than this Part) do not apply to or in relation to that fishery except:
in the case of a fishery that is to be managed by the Protected Zone Joint Authority—in relation to foreign boats in relevant waters, operations on and from foreign boats in relevant waters and matters that occurred before the arrangement took effect; and
in the case of a fishery that is to be managed by Queensland—in relation to boats (other than Australian boats) in relevant waters, operations on and from boats of that kind in relevant waters and matters that occurred before the arrangement took effect.
(2) In subsection (1), relevant waters means waters in the Protected Zone or in an area in respect of which a Proclamation is in force under subsection 15(1) or (2) that are beyond the outer limits of the Protected Zone coastal waters of .
Where there is in force an arrangement under this Part under which the Protected Zone Joint Authority has the management of a fishery and the fishery is to be managed in accordance with the law of the Commonwealth, the Protected Zone Joint Authority has the functions of:
keeping constantly under consideration the condition of the fishery;
formulating policies and plans for the good management of the fishery; and
for the purposes of the management of the fishery:
exercising the powers conferred on it by this Part; and
(ii) co-operating and consulting with other authorities (including Joint Authorities established under the Fisheries Act 1952 or the Fisheries Management Act 1991) in matters of common concern.
In respect of a Protected Zone Joint Authority fishery:
the powers of the Minister under subsection 3(2); and
the powers of the Minister under sections 14, 15A, 16 and 17; and
the powers of the Minister under section 12 in respect of Australian boats or boats;
are exercisable under those provisions by the Protected Zone Joint Authority.
Where a fishery becomes a Protected Zone Joint Authority fishery:
instruments made by the Minister under subsection 3(2) cease to apply in relation to that fishery; and
instruments made by the Minister under sections 14, 15A, 16 and 17 cease to apply in relation to that fishery; and
permits granted by the Minister under section 12 in respect of Australian boats or boats have no application in relation to that fishery.
Subject to this section, a licence, Treaty endorsement or entry granted 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 Protected Zone Joint Authority fishery.
In relation to a Protected Zone Joint Authority fishery that is to be managed in accordance with the law of the Commonwealth, the powers of the Minister under the provisions of Part IV are exercisable under those provisions by the Protected Zone Joint Authority as if references to the Minister in those provisions were references to the Protected Zone Joint Authority.
A licence or Treaty endorsement granted under this Act by the Protected Zone Joint Authority shall contain such conditions or limitations as will ensure that it applies only in relation to a Protected Zone Joint Authority fishery or Protected Zone Joint Authority fisheries.
Subject to subsection (5A), the Protected Zone Joint Authority may make an entry in a licence or Treaty endorsement granted under this Act otherwise than by virtue of this section so as to extend the operation of the licence or endorsement, as the case may be, to matters to which the licensing powers of the Protected Zone Joint Authority under this Act are applicable and, where such an entry is made:
the entry ceases to have effect if the licence or endorsement, as the case may be, ceases to have effect; and
the Protected Zone Joint Authority may vary, suspend or revoke the entry as if it were an entry made by the Protected Zone Joint Authority under section 21.
Such fee (if any) as is prescribed is payable in respect of the making of an entry in a licence under subsection (4).
Where:
a fee is payable under this Act in respect of the making under subsection (4) of an entry in a licence granted under this Act; or
(b) levy is payable under the Fisheries Levy Act 1984 on the making under subsection (4) of an entry in a licence granted under subsection 19(2), (3) or (4A);
the Protected Zone Joint Authority shall not make the entry unless the holder of the licence tenders the amount of the fee or levy, as the case may be.
This section does not:
empower the Protected Zone Joint Authority to grant, to make, or to take other action in respect of, a licence or entry in respect of a foreign boat; or
affect the operation of a licence or entry granted or made by the Minister in respect of a foreign boat or the power of the Minister to grant, or to take other action in respect of, such a licence or entry, as the case may be.
For the purposes of the prosecution of a person for an offence against a provision of this Act in respect of anything done in relation to fish to which a Protected Zone Joint Authority fishery relates or otherwise in relation to a Protected Zone Joint Authority fishery:
any reference in that provision to a licence, to a Treaty endorsement or to an entry made in a licence or in a Treaty endorsement shall be read as a reference to a licence or Treaty endorsement granted, or to an entry made, as the case may be, by the Protected Zone Joint Authority;
any reference in that provision to an instrument shall be read as a reference to an instrument made by the Protected Zone Joint Authority; and
any reference in that provision to fish shall be read as a reference to fish to which the Protected Zone Joint Authority fishery relates.
The Protected Zone Joint Authority may, in writing, delegate any or all of its functions or powers under this Act, other than the powers mentioned in subsection 35(1), to:
an APS employee in the Department; or
an AFMA staff member; or
a person from time to time holding, or performing the duties of, a specified office in the service of Queensland or an authority of Queensland or under the law of Queensland; or
an APS employee in the TSRA.
Note: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.
In performing functions and exercising powers under the delegation, the delegate must comply with any directions of the Protected Zone Joint Authority.
Note: See sections 34AA to 34A of the Acts Interpretation Act 1901.
(7) A certificate signed by a member of the Protected Zone Joint Authority stating any matter with respect to a delegation of a power under this section by the Protected Zone Joint Authority is prima facie evidence of that matter.
A document purporting to be a certificate mentioned in subsection (7) shall, unless the contrary is established, be deemed to be such a certificate and to have been duly given.
Nothing in this Part is intended to prevent the delegation by the Protected Zone Joint Authority, in accordance with the law of , of powers conferred on the Protected Zone Joint Authority by the law of .
The Protected Zone Joint Authority shall, where it considers it appropriate to do so, seek the views of members of the Joint Advisory Council established under Article 19 of the Torres Strait Treaty who are traditional inhabitants and Australian citizens on any matter relating to a Protected Zone Joint Authority fishery where that matter may affect the interests of traditional inhabitants who are Australian citizens.
At a meeting of the Protected Zone Joint Authority:
if the Commonwealth Minister is present—he or she is to preside; or
if the Commonwealth Minister is not present but the Queensland Minister is present—the Queensland Minister is to preside; or
if neither the Commonwealth Minister nor the Queensland Minister is present but the Chairperson of the TSRA is present—the Chairperson of the TSRA is to preside; or
if none of the preceding paragraphs is applicable—the deputy of the Commonwealth Minister is to preside.
Meetings of the Protected Zone Joint Authority shall be convened by the Commonwealth Minister, and he or she shall convene such a meeting if requested to do so by either of the other members.
The quorum for a meeting of the Protected Zone Joint Authority is 2 members (including the Commonwealth Minister or his or her deputy).
If, at a meeting of the Protected Zone Joint Authority, the members are not agreed as to the decision to be made on a matter, the Commonwealth Minister may, subject to subsection (5), decide that matter and his or her decision shall have effect as the decision of the Protected Zone Joint Authority.
Where:
the Commonwealth Minister proposes to decide a matter in accordance with subsection (4); and
either of the other members requests the Commonwealth Minister to delay the making of the decision to permit consultations to take place in relation to the proposed decision;
the Commonwealth Minister shall delay the making of the decision for such period as he or she considers reasonable to permit those consultations to take place.
A member of the Protected Zone Joint Authority may, by written or other communication, submit a matter within the functions of the Protected Zone Joint Authority for consideration by the other members of the Protected Zone Joint Authority and, if the members of the Protected Zone Joint Authority are agreed as to the decision to be made on the matter, the Protected Zone Joint Authority shall be taken to have made a decision accordingly and the Commonwealth Minister shall, upon being satisfied that the members are so agreed, record the decision as a decision of the Protected Zone Joint Authority.
The Protected Zone Joint Authority may establish advisory committees, consisting of such persons as it thinks fit, to provide information and advice to the Protected Zone Joint Authority on scientific, economic and technical matters related to any fishery.
Subject to this section, the Protected Zone Joint Authority may adopt its own rules of procedure.
(9) The Commonwealth Minister shall cause written records to be kept of the decisions of the Protected Zone Joint Authority and such a record, if signed by the Commonwealth Minister, or a deputy of the Commonwealth Minister, who took part in or made the decision, is prima facie evidence that the decision, as recorded, was duly made.
In proceedings in any court, an instrument or other document signed on behalf of the Protected Zone Joint Authority by a member of the Protected Zone Joint Authority, shall be deemed to be duly executed by the Protected Zone Joint Authority and, unless the contrary is proved, shall be deemed to be in accordance with a decision of the Protected Zone Joint Authority.
The Protected Zone Joint Authority shall, as soon as practicable after 30 June in each year, prepare a report on the activities of the Protected Zone Joint Authority in the year ending on that date and on the condition during that year of the fisheries to which the functions of the Protected Zone Joint Authority applied in that year.
The Commonwealth Minister shall cause a copy of every report under subsection (1) to be laid before each House of the Parliament as soon as practicable after the preparation of the report.
(3) If the day on which this Act comes into operation (in this subsection referred to as the relevant day) is a day between any 1 July and the next 1 January, the first report of the Protected Zone Joint Authority shall relate to the period commencing on the relevant day and ending on the 30 June next succeeding the relevant day.
(4) If the day on which this Act comes into operation (in this subsection referred to as the relevant day) is a day between any 31 December and the next 1 July:
the Protected Zone Joint Authority is not required to make a report on its activities in the period commencing on the relevant day and ending on the next 30 June; and
the Protected Zone Joint Authority shall, in its report on its activities in the year ending on the 30 June next succeeding the 30 June referred to in paragraph (a), include a report on its activities in the period referred to in paragraph (a).
Subject to this section, an officer may:
where he or she has reasonable grounds to believe that there is on any premises any document, equipment or thing that may afford evidence as to the commission of an offence against this Act, with the consent of the owner or occupier of the premises or in pursuance of a warrant granted under section 43C:
enter the premises using such force as is necessary for the purpose;
search the premises and break open and search any cupboard, drawer, chest, trunk, box, package or other receptacle, whether a fixture or not, in which he or she has reasonable grounds to believe there is a document, equipment or thing of that kind; and
examine and take possession of, or secure against interference, any document, equipment or thing that he or she has reasonable grounds to believe may afford evidence as to the commission of an offence against this Act; and
where the officer has reasonable grounds to believe that there is in any vehicle or aircraft anything that may afford evidence as to the commission of an offence against this Act, and subject to subsections (3) and (4):
stop and detain the vehicle or detain the aircraft, as the case may be; and
enter and search the vehicle or aircraft; and
break open and search any compartment, container or other receptacle in which the officer has reasonable grounds to believe there is any such thing; and
examine and take possession of, or secure against interference, any such thing that the officer has reasonable grounds to believe may afford evidence as to the commission of an offence against this Act; and
seize, detain, remove or secure:
any fish that the officer has reasonable grounds to believe have been taken, processed, carried or landed in contravention of this Act;
any boat (other than a Papua New Guinea boat) or equipment that the officer has reasonable grounds to believe has been used, is being used or is intended to be used in contravention of this Act; or
any document or other thing that he or she has reasonable grounds to believe may afford evidence as to the commission of an offence against this Act; and
if premises are specified in a licence under subsection 19(4B) as premises on which fish are to be kept—enter the premises for the purpose of finding out whether a condition of the licence is being, or has been, complied with or whether a person is contravening or has contravened a provision of this Act and, in furtherance of that purpose:
search the premises for, and examine, fish; and
search the premises for, inspect, take extracts from, and make copies of, any documents relating to the receiving of fish; and
if the officer finds, during the course of the search, any thing that he or she believes, on reasonable grounds, may provide evidence of a contravention of a provision of this Act, secure the thing pending the obtaining of a warrant to seize it; and
with the consent of the holder of a licence under subsection 19(4B) or under a warrant issued under section 43C, seize any thing found during the course of a search that the officer believes, on reasonable grounds, may provide evidence of a contravention of this Act; and
seize all or any of the following that are forfeited to the Commonwealth under section 52A or that the officer has reasonable grounds to believe are forfeited under that section:
a boat;
a net, trap or other equipment;
fish; and
seize all or any of the following that are forfeited to the Commonwealth under section 52AA or that the officer has reasonable grounds to believe are forfeited under that section:
a net, trap or other equipment;
fish; and
seize any fish that are the property of the Commonwealth because of the operation of section 52AC or that the officer has reasonable grounds to believe are the property of the Commonwealth because of the operation of that section; and
seize anything:
that is on, in or attached to a boat and that forms part of the boat; and
that is the property of the Commonwealth because of the operation of section 52AD or that the officer has reasonable grounds to believe is the property of the Commonwealth because of the operation of that section; and
arrest, without warrant, a person if the officer has reasonable grounds to believe that:
the person is committing or has committed an offence against this Act; and
proceedings against the person by summons would not be effective; and
require the master of a boat in respect of which a licence under section 19 or a Treaty endorsement is required to be in force under this Act to give information concerning the boat, the crew or any person on board the boat; and
require a person who is on board a boat in respect of which a licence under section 19 or a Treaty endorsement is required to be in force under this Act to state his or her full name and usual place of residence; and
require a person found any premises entered in pursuance of paragraph (b) or in any vehicle or aircraft detained or searched under paragraph (ba):
to state the full name and usual place of residence of the person;
to produce any documents in the possession, or under the control, of the person relating to any fish found on the premises or in the vehicle or aircraft; or
to give information concerning any such fish; and
require the master of a boat to state whether he or she is the holder of a master fisherman’s licence and, if so, to produce the licence and permit the officer to make copies of, or take extracts from, the licence; and
require the master of a boat in respect of which a licence under section 19 or a Treaty endorsement is required to be in force under this Act to produce the licence or endorsement, as the case may be, and permit the officer to make copies of, or take extracts from, the licence or endorsement, as the case may be; and
where, for the purpose of ascertaining whether equipment that is on, or that is being used by or from, a boat is equipment of a kind specified in an instrument that is in force under subsection 16(1), it is necessary to ascertain the dimensions of the equipment—require the master of the boat to provide such reasonable assistance as is requested by the officer in order to ascertain the dimensions of the equipment (including, if the officer so requests, causing the equipment to be placed in the sea or on land, or to be removed from the sea and placed on the boat or on land); and
require a person engaged in commercial fishing without the use of a boat, being fishing in respect of which a licence under section 19 is required to be in force under this Act, to give information concerning the fishing, or to state his or her full name and usual place of residence; and
require a person in charge of commercial fishing without the use of a boat, being fishing in respect of which a licence under section 19 is required to be in force under this Act, to produce the licence and permit the officer to make copies of, or take extracts from, the licence; and
sell any fish seized by him or her under this Act.
Note: Schedule 2 gives officers powers relating to detention of suspected illegal foreign fishers.
(2) The powers of an officer under subsection (1) may be exercised in Australia, in an external Territory, in an area of Australian jurisdiction or in an area of waters in relation to which the Fisheries Management Act 1991 applies.
(2AAA) If there is a restraint on the liberty of a person on a boat resulting from an officer’s exercise of a power under paragraph (1)(d) in relation to a boat:
the restraint is not unlawful; and
civil or criminal proceedings in respect of the restraint may not be instituted or continued in any court against:
the officer; or
any person assisting the officer in the exercise of the power; or
AFMA; or
the Commonwealth.
This subsection is not intended to affect the jurisdiction of the High Court under section 75 of the Constitution.
Where an officer (other than a prescribed person who is in uniform) boards or enters upon a boat, the officer shall:
in the case of a prescribed person—produce, for inspection by the master of the boat, written evidence of the fact that the officer is a prescribed person; or
in any other case—produce, for inspection by the master of the boat, the officer’s identity card;
and, if the officer fails to do so, the officer is not authorised to remain on board the boat.
(2AA) Where an officer (other than a prescribed person who is in uniform) proposes to enter and search, or to detain, a vehicle, the officer shall, if there is a person in charge of the vehicle:
where the officer is a prescribed person—produce, for inspection by the person in charge of the vehicle, written evidence of the fact that the officer is a prescribed person; or
in any other case—produce, for inspection by the person in charge of the vehicle, the officer’s identity card;
and, if the officer fails to do so, the officer is not authorised to enter and search, or to detain, the vehicle.
(2B) Where an officer (other than a prescribed person who is in uniform) makes a requirement of a person (in this subsection referred to as the relevant person) under subsection (1), the officer shall:
in the case of a prescribed person—produce, for inspection by the relevant person, written evidence of the fact that the officer is a prescribed person; or
in any other case—produce, for inspection by the relevant person, the officer’s identity card;
and, if the officer fails to do so, the relevant person is not obliged to comply with the requirement.
(3) Subject to subsection (4), the powers of an officer under paragraph (1)(ba) in respect of any vehicle or aircraft must not be exercised without either:
(a) the consent of the owner or person in charge of the vehicle or aircraft to the exercise of those powers; or
the obtaining of a warrant under section 43C or 43P authorising the exercise of those powers.
If:
(a) the owner or person in charge of a vehicle or aircraft referred to in subsection (3) refuses to consent to the exercise by an officer of powers under paragraph (1)(ba); and
an officer seeking to exercise those powers believes, on reasonable grounds:
that there is in the vehicle or aircraft anything that may afford evidence of an offence against this Act or the regulations; and
that the delay that would occur if an application for a warrant were made (either in person or under section 43P) would frustrate the effective execution of the warrant;
those powers may be exercised without a warrant but, if that is done, the officer must:
if it is practicable to do so, notify the owner or person in charge of a vehicle or aircraft that the officer will be exercising powers under paragraph (1)(ba) without a warrant and that the reasons for the exercise of those powers may be requested; and
as soon as reasonably practicable, record the reasons for the exercise of those powers without a warrant; and
upon request by the owner or person in charge of the vehicle or aircraft—provide the record of those reasons to the person affected by the exercise of those powers.
A reference in this section to an offence against, or a contravention of, this Act includes a reference to an offence against, or a contravention of:
(a) Crimes Act 1914; orsection 6 of the
(b) Criminal Code;section 11.1, 11.4 or 11.5 of the
that relates to this Act.
In this section:
examine includes count, measure, weigh, grade or gauge.
prescribed person means:
a member or special member of the Australian Federal Police or a member of the Police Force of Queensland; or
a member of the Defence Force; or
(c) an officer of Customs (as defined in the Customs Act 1901); or
(d) an inspector appointed under the Fisheries Act 1994 of .
this Act includes the regulations.
The Minister must cause an identity card to be issued to an officer other than a prescribed person (within the meaning of subsection 42(7)).
An identity card must:
contain a recent photograph of the officer to whom it is issued; and
be in the form approved by the Minister.
A person commits an offence if:
the person has been issued with an identity card under section 42AA; and
the person ceases to be an officer; and
the person does not, as soon as is practicable after so ceasing, return the identity card to the Minister.
Penalty: 2 penalty units.
An offence under subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
A person:
shall not refuse to allow a search to be made that is authorised by or under this Act; and
shall not refuse or neglect to comply with a requirement made by an officer under section 42; and
shall not use abusive or threatening language to an officer or other person exercising a power or performing a function under this Act; and
must not assault, resist or obstruct an officer or other person exercising a power or performing a function under this Act in the exercise of the power or performance of the function.
Penalty: 20 penalty units or imprisonment for 12 months, or both.
Paragraphs (1)(b) and (c) do not apply if the person has a reasonable excuse.
Note: The defendant bears an evidential burden in relation to the matter in subsection (1A). See subsection 13.3(3) of the Criminal Code.
Force to be used only in limited circumstances
An officer must not use force in the exercise of the officer’s powers under a provision of section 42 unless it is necessary to do so:
to ensure the safety of an officer; or
to overcome obstruction of an officer in the exercise of that officer’s powers.
Force used must be reasonable
The force used must not be more than is reasonably required for the relevant purpose described in paragraph (1)(a) or (b).
An officer or a person assisting an officer in the exercise of powers under this Act or the regulations, is not liable to an action, suit or proceeding for, or in respect of, anything done in good faith or omitted to be done in good faith in the exercise or purported exercise of any power conferred by this Act or the regulations.
A magistrate may, upon application by an officer, issue a warrant to search premises if the magistrate is satisfied by information on oath or affirmation that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material at the premises.
If a magistrate issues a warrant, the magistrate is to set out in the warrant:
the offence to which the warrant relates; and
a description of the premises to which the warrant relates; and
the kinds of evidential material that are to be searched for under the warrant; and
the name of the officer who, unless he or she inserts the name of another officer in the warrant, is to be responsible for executing the warrant; and
the period for which the warrant remains in force, which must not be more than 7 days; and
whether the warrant may be executed at any time or only during particular hours.
The magistrate is also to state that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (2)(c)) found at the premises in the course of the search that the executing officer or a person helping believes on reasonable grounds to be:
evidential material in relation to an offence to which the warrant relates; or
a thing relevant to another offence against this Act or the regulations that is an indictable offence;
if the executing officer or a person helping believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence against this Act or the regulations.
Paragraph (2)(e) does not prevent the issue of successive warrants in relation to the same premises.
If the application for the warrant is made under section 43P, this section applies as if:
subsection (1) referred to 48 hours rather than 72 hours; and
paragraph (2)(e) referred to 48 hours rather than 7 days.
A warrant authorises the executing officer or a person helping:
to enter the warrant premises and, if the premises are a vehicle or an aircraft, to enter the vehicle or aircraft, wherever it is; and
to search for and record fingerprints found at the premises and to take samples of things found at the premises for forensic purposes; and
to search the premises for the kinds of evidential material specified in the warrant, and to seize things of that kind found at the premises; and
to seize other things found at the premises in the course of the search that the executing officer or a person helping believes on reasonable grounds to be:
evidential material in relation to an offence to which the warrant relates; or
evidential material in relation to another offence against this Act or the regulations that is an indictable offence;
if the executing officer or a person helping believes on reasonable grounds that seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing an offence against this Act or the regulations.
If the warrant states that it may be executed only during particular hours, the warrant must not be executed outside those hours.
If things are seized under a warrant, the warrant authorises the executing officer to make the things available to officers of other agencies if it is necessary to do so for the purpose of investigating or prosecuting an offence to which the things relate.
In executing a warrant:
the executing officer may obtain such help; and
the executing officer, or a person who is an officer and is helping in executing the warrant may use such force against persons and things; and
a person who is not an officer and has been authorised to help in executing the warrant may use such force against things;
as is necessary and reasonable in the circumstances.
If a warrant is being executed and the occupier of the premises or another person who apparently represents the occupier is present at the premises, the executing officer or a person helping must make available to that person a copy of the warrant.
The executing officer must produce his or her identity card to the person at the premises.
The copy of the warrant referred to in subsection (1) need not include the signature of the magistrate or the seal of the relevant court.
In executing a warrant, the executing officer or a person helping may:
for a purpose incidental to the execution of the warrant; or
if the occupier of the premises consents in writing;
take photographs (including video recordings) of the premises or of things at the premises.
If a warrant is being executed, the executing officer or a person helping may, if the warrant is still in force, complete the execution of the warrant after the officer and all persons helping temporarily cease its execution and leave the premises:
for not more than one hour; or
for a longer period if the occupier of the premises consents in writing.
If:
the execution of a warrant is stopped by an order of a court; and
the order is later revoked or reversed on appeal; and
the warrant is still in force;
the execution of the warrant may be completed.
The executing officer or a person helping may bring to the warrant premises any equipment reasonably necessary for the examination or processing of things found at the premises in order to determine whether they are things that may be seized under the warrant.
If:
it is not practicable to examine or process the things at the warrant premises; or
the occupier of the premises consents in writing;
the things may be moved to another place so that the examination or processing can be carried out in order to determine whether they are things that may be seized under the warrant.
If things are moved to another place for the purpose of examination or processing under subsection (2), the executing officer must, if it is practicable to do so:
inform the occupier of the address of the place, and the time, at which the examination or processing will be carried out; and
allow the occupier or his or her representative to be present during the examination or processing.
The executing officer or a person helping may operate equipment already at the warrant premises to carry out the examination or processing of a thing found at the premises in order to determine whether it is a thing that may be seized under the warrant if the executing officer or person believes on reasonable grounds that:
the equipment is suitable for the examination or processing; and
the examination or processing can be carried out without damage to the equipment or the thing.
The executing officer or a person helping may operate electronic equipment at the premises to see whether evidential material is accessible by doing so if he or she believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.
If the executing officer or a person helping, after operating the equipment, finds that evidential material is accessible by doing so, he or she may:
seize the equipment and any disk, tape or other associated device; or
if the material can, by using facilities at the premises, be put in documentary form—operate the facilities to put the material in that form and seize the documentation so produced; or
if the material can be transferred to a disk, tape or other storage device that:
is brought to the premises; or
is at the premises and the use of which for the purpose has been agreed to in writing by the occupier of the premises;
operate the equipment or other facilities to copy the material to the storage device and take the storage device from the premises.
A person may seize equipment under paragraph (2)(a) only if:
it is not practicable to put the material in documentary form as mentioned in paragraph (2)(b) or to copy the material as mentioned in paragraph (2)(c); or
possession by the occupier of the equipment could constitute an offence against this Act or the regulations.
If the executing officer or a person helping believes on reasonable grounds that:
evidential material may be accessible by operating electronic equipment at the premises; and
expert assistance is required to operate the equipment; and
if he or she does not take action under this subsection, the material may be destroyed, altered or otherwise interfered with;
he or she may do whatever is necessary to secure the equipment, whether by locking it up, placing a guard or otherwise.
The executing officer or a person helping must give notice to the occupier of the premises of his or her intention to secure equipment and of the fact that the equipment may be secured for up to 24 hours.
The equipment may be secured until:
the end of a period of not more than 24 hours; or
the equipment has been operated by the expert;
whichever happens first.
If the executing officer or a person helping believes on reasonable grounds that the expert assistance will not be available within 24 hours, he or she may apply to the magistrate for an extension of that period.
The executing officer or a person helping must give notice to the occupier of the premises of his or her intention to apply for an extension, and the occupier is entitled to be heard in relation to the application.
The provisions of this Division relating to the issue of warrants apply, with any modifications that are necessary, to the issuing of an extension.
This section applies if:
(a) as a result of equipment being operated as mentioned in sections 43H and 43J:
damage is caused to the equipment; or
the data recorded on the equipment is damaged; or
programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and
the damage or corruption occurs because:
insufficient care was exercised in selecting the person who was to operate the equipment; or
insufficient care was exercised by the person operating the equipment.
The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.
However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in the Federal Court of Australia for such reasonable amount of compensation as the Court determines.
In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier’s employees or agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.
Compensation is payable out of money appropriated by the Parliament.
For the purposes of subsection (1):
damage, in relation to data, includes damage by erasure of data or addition of other data.
Subject to subsection (2), if a person seizes, under a warrant:
a document, film, computer file or other thing that can be readily copied; or
a storage device the information in which can be readily copied;
the person must, if requested to do so by the occupier of the premises or by another person who apparently represents the occupier and is present when the warrant is executed, give a copy of the thing or the information to the person who made the request as soon as practicable after the seizure.
Subsection (1) does not apply if:
the thing that has been seized was seized under paragraph 43J(2)(b) or (c); or
possession by the occupier of the document, film, computer file, thing or information could constitute an offence.
(1) If a warrant is being executed and the occupier of the premises or another person who apparently represents the occupier is present at the premises, the person is, subject to Crimes Act 1914, entitled to observe the search being conducted.Part IC of the
The right to observe the search being conducted ceases if the person impedes the search.
This section does not prevent 2 or more areas of the premises being searched at the same time.
If a thing is seized under a warrant or moved under subsection 43H(2), the executing officer or a person helping must provide a receipt for the thing.
If 2 or more things are seized or moved, they may be covered in the one receipt.
An officer may make an application to a magistrate for a warrant by telephone, telex, fax or other electronic means:
in an urgent case; or
if the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.
The magistrate may require communication by voice to the extent that is practicable in the circumstances.
An application under this section must include all information required to be provided in an ordinary application for a warrant, but the application may, if necessary, be made before the information is sworn.
If an application is made to a magistrate under this section and the magistrate, after considering the information and having received and considered such further information (if any) as the magistrate required, is satisfied that:
a warrant in the terms of the application should be issued urgently; or
the delay that would occur if an application were made in person would frustrate the effective execution of the warrant;
the magistrate may complete and sign the same form of warrant as would be issued under section 43C.
If the magistrate decides to issue the warrant, the magistrate is to tell the applicant, by telephone, telex, fax or other electronic means, of the terms of the warrant and the day on which and the time at which it was signed.
The applicant must then complete a form of warrant in terms substantially corresponding to those given to the magistrate, stating on the form the magistrate’s name and the day on which and the time at which the warrant was signed.
The applicant must, not later than the day after the day of expiry of the warrant or the day after the day on which the warrant was executed, whichever is the earlier, give or send to the magistrate the form of warrant completed by the applicant and, if the information referred to in subsection (3) was not sworn, that information duly sworn.
The magistrate is to attach to the documents provided under subsection (7) the form of warrant completed by the magistrate.
If:
it is material, in any proceedings, for a court to be satisfied that the exercise of a power under a warrant issued under this section was duly authorised; and
the form of warrant signed by the magistrate is not produced in evidence;
the court is to assume, unless the contrary is proved, that the exercise of the power was not duly authorised.
A person shall not:
do an act in an area of Australian jurisdiction that the person is prohibited from doing by an instrument in force under section 16;
have in his or her possession, or under his or her control, fish of a kind the taking of which by the person is prohibited by an instrument in force under section 16; or
search for fish in an area of Australian jurisdiction with the intention of engaging in commercial fishing, being fish the taking of which by the person from that area is prohibited by an instrument in force under section 16.
A person who contravenes subsection (1) in circumstances in which he or she does not commit an offence against subsection (3) commits an offence punishable, on conviction, by a fine not exceeding:
if the person is a natural person—50 penalty units; or
if the person is a body corporate—250 penalty units.
A person who contravenes subsection (1) with the use of a foreign boat commits an offence punishable:
on summary conviction—by a fine not exceeding:
if the person is a natural person—50 penalty units; or
if the person is a body corporate—250 penalty units; and
on conviction on indictment—by a fine not exceeding:
if the person is a natural person—500 penalty units; or
if the person is a body corporate—2,500 penalty units.
(3AA) An offence under subsection (2) or (3) consisting of a contravention of paragraph (1)(a) or (b) is an offence of strict liability.
(3AB) In the case of an offence under subsection (2) or (3) consisting of a contravention of paragraph (1)(c), strict liability applies to the physical elements of circumstance, that:
Note: For strict liability, see Criminal Code.section 6.1 of the
the relevant conduct occurs in an area of Australian jurisdiction; and
the relevant instrument is in force under section 16.
Note: For strict liability, see Criminal Code.section 6.1 of the
Where:
a person is convicted of an offence against subsection (2) or (3) arising out of a contravention of paragraph (1)(a);
the court before which the person is convicted is satisfied that:
the person contravened paragraph (1)(a) in an area of Australian jurisdiction at a particular time by using a boat (other than a Papua New Guinea boat) for a particular purpose; and
either of the following sub-subparagraphs apply:
(A) a licence under this Act was not in force in respect of the boat at that time;
(B) a licence under this Act was in force in respect of the boat at that time, but the licence did not authorise the use of the boat in that area for that purpose; and
the court is also satisfied that:
in a case to which sub-subparagraph (b)(ii)(A) applies—if a licence under this Act had been in force at that time authorising the use of the boat in that area for that purpose, the licence would have been a leviable licence; or
in a case to which sub-subparagraph (b)(ii)(B) applies—if the licence under this Act in force in respect of the boat had not been in force at that time, but another licence under this Act had been in force authorising the use of the boat in that area for that purpose, the other licence would have been a leviable licence;
the court may, in addition to imposing a penalty on the person, order the person to pay to the Commonwealth an amount not exceeding the amount that is the relevant levy amount in relation to the licence referred to in subparagraph (c)(i) or the other licence referred to in subparagraph (c)(ii), as the case may be.
(3BA) Where:
a person is convicted of an offence against subsection (2) because the person engaged in activities in contravention of paragraph (1)(a) at a particular time; and
the court before which the person is convicted is satisfied that if a licence under subsection 19(4A) authorising the activities had been in force at that time, the licence would have been a leviable licence;
the court may, in addition to imposing a penalty on the person, order the person to pay to the Commonwealth an amount not exceeding the amount that is the relevant levy amount in relation to the licence.
Where:
a person is convicted of an offence against subsection (2) or (3) arising out of a contravention of paragraph (1)(c);
the court before which the person is convicted is satisfied that:
the person contravened paragraph (1)(c) in an area of Australian jurisdiction at a particular time by using a boat (other than a boat) to search for fish; and
either of the following sub-subparagraphs apply:
(A) a licence under this Act was not in force in respect of the boat at that time;
(B) a licence under this Act was in force in respect of the boat at that time, but the licence did not authorise the use of the boat for taking fish of that kind in that area in the course of commercial fishing; and
the court is also satisfied that:
in a case to which sub-subparagraph (b)(ii)(A) applies—if a licence under this Act had been in force at that time authorising the use of the boat for taking fish of that kind in that area in the course of commercial fishing, the licence would have been a leviable licence; or
in a case to which sub-subparagraph (b)(ii)(B) applies—if the licence under this Act in force in respect of the boat had not been in force at that time, but another licence under this Act had been in force authorising the use of the boat for taking fish of that kind in that area in the course of commercial fishing, the other licence would have been a leviable licence;
the court may, in addition to imposing a penalty on the person, order the person to pay to the Commonwealth an amount not exceeding the amount that is the relevant levy amount in relation to the licence referred to in subparagraph (c)(i) or the other licence referred to in subparagraph (c)(ii), as the case may be.
For the purposes of paragraph (1)(a), an act done by an employee or agent of a person shall be deemed to have also been done by the person.
It is a defence to a prosecution for an offence arising out of a contravention of paragraph (1)(b) in relation to an instrument under section 16 if the person charged satisfies the court that:
the taking of the fish was not in contravention of that instrument; or
the fish were taken in an area that is not an area of Australian jurisdiction.
(6) Where levy is payable under the Fisheries Levy Act 1984 on the grant of, the renewal of, the variation of or the making under this Act of an entry in a licence under this Act:
the licence shall be taken, for the purposes of this section, to be a leviable licence; and
the amount of the levy or the sum of the amounts of the levy, as the case requires, payable with respect to the licence shall be taken, for the purposes of this section, to be the relevant levy amount in relation to the licence.
A person shall not:
engage in commercial fishing (other than community fishing) on a boat in an area of Australian jurisdiction unless there is in force in respect of the boat a licence under subsection 19(2) or a Treaty endorsement; or
engage in commercial fishing (other than community fishing) without the use of a boat in an area of Australian jurisdiction unless the person does so under a licence in force under subsection 19(4A); or
being a traditional inhabitant, engage in activities by way of community fishing on a boat in an area of Australian jurisdiction, being activities in respect of which there is in force a declaration under subsection 17(1), unless there is in force in respect of the boat a licence under subsection 19(2); or
being a traditional inhabitant, engage in activities by way of community fishing without the use of a boat in an area of Australian jurisdiction, being activities in respect of which there is in force a declaration under subsection 17(1A), unless the person does so under a licence in force under subsection 19(4A); or
be in charge of a boat (other than a boat in respect of which a Treaty endorsement is in force) that is being used for commercial fishing (other than community fishing) in an area of Australian jurisdiction unless the person is the holder of a master fisherman’s licence that is in force; or
be in charge of a boat (other than a boat in respect of which a Treaty endorsement is in force) that is being used for community fishing:
in an area of Australian jurisdiction; and
in respect of which there is in force a declaration under subsection 17(1AA);
unless the person is the holder of a master fisherman’s licence that is in force; or
being the holder of a licence in force under section 19, in an area of Australian jurisdiction contravene or fail to comply with a condition of the licence; or
being the holder of a licence (other than a master fisherman’s licence) in force under section 19, cause or permit a person acting on his or her behalf in an area of Australian jurisdiction to contravene or fail to comply with a condition of the licence; or
being a person acting on behalf of the holder of a licence (other than a master fisherman’s licence) in force under section 19, in an area of Australian jurisdiction contravene or fail to comply with a condition of the licence; or
being the holder of a Treaty endorsement in force in respect of a boat, in an area of Australian jurisdiction contravene or fail to comply with a condition of the endorsement; or
being the holder of a Treaty endorsement in force in respect of a boat, in an area of Australian jurisdiction cause or permit a person acting on his or her behalf to contravene or fail to comply with a condition of the endorsement; or
being a person acting on behalf of the holder of a Treaty endorsement in force in respect of a boat, in an area of Australian jurisdiction contravene or fail to comply with a condition of the endorsement; or
use a boat in an area of Australian jurisdiction for processing or carrying, in the course of commercial fishing, fish taken with the use of another boat unless there is in force in respect of the first-mentioned boat a licence under subsection 19(3) or a Treaty endorsement that authorises that processing or carrying; or
in an area of Australian jurisdiction, trans-ship fish to a boat other than:
a boat in respect of which there is in force a licence under subsection 19(3); or
a boat in respect of which there is in force a Treaty endorsement that authorises the carrying, or the processing and carrying, of fish taken with the use of another boat.
A person who contravenes paragraph (1)(a) with the use of a foreign boat commits an offence punishable:
where the person was, at the time when the offence was committed, the master of the boat:
on summary conviction—by a fine not exceeding 50 penalty units; and
on conviction on indictment—by a fine not exceeding 2,500 penalty units; and
in any other case:
on summary conviction—by a fine not exceeding 50 penalty units; and
on conviction on indictment—by a fine not exceeding 500 penalty units.
A person who contravenes paragraph (1)(c), (d), (e) or (f) with the use of, or in relation to, a foreign boat or who contravenes paragraph (1)(k) or (m) with the use of a foreign boat commits an offence punishable:
on summary conviction—by a fine not exceeding:
if the person is a natural person—50 penalty units; or
if the person is a body corporate—250 penalty units; and
on conviction on indictment—by a fine not exceeding:
if the person is a natural person—500 penalty units; or
if the person is a body corporate—2,500 penalty units.
A person who contravenes subsection (1) in circumstances in which he or she does not commit an offence against subsection (2) or (3) commits an offence punishable, on conviction, by a fine not exceeding:
if the person is a natural person—50 penalty units; or
if the person is a body corporate—250 penalty units.
(4AA) An offence under subsection (2), (3) or (4) is an offence of strict liability.
Note: For strict liability, see Criminal Code.section 6.1 of the
Where:
a person is convicted of an offence against subsection (2) or (4) arising out of a contravention of paragraph (1)(a), (b) or (k);
the court before which the person is convicted is satisfied that:
the person contravened paragraph (1)(a), (b) or (k), as the case may be, in an area of Australian jurisdiction at a particular time by using a boat (other than a Papua New Guinea boat) for a particular purpose; and
either of the following sub-subparagraphs apply:
(A) a licence under this Act was not in force in respect of the boat at that time;
(B) a licence under this Act was in force in respect of the boat at that time, but the licence did not authorise the use of the boat in that area for that purpose; and
the court is also satisfied that:
in a case to which sub-subparagraph (b)(ii)(A) applies—if a licence under this Act had been in force at that time authorising the use of the boat in that area for that purpose, the licence would have been a leviable licence; or
in a case to which sub-subparagraph (b)(ii)(B) applies—if the licence under this Act in force in respect of the boat had not been in force at that time, but another licence under this Act had been in force authorising the use of the boat in that area for that purpose, the other licence would have been a leviable licence;
the court may, in addition to imposing a penalty on the person, order the person to pay to the Commonwealth an amount not exceeding the amount that is the relevant levy amount in relation to the licence referred to in subparagraph (c)(i) or the other licence referred to in subparagraph (c)(ii), as the case may be.
Where:
a person is convicted of an offence against subsection (4) because the person engaged in activities in contravention of paragraph (1)(aa) or (ba) at a particular time; and
the court before which the person is convicted is satisfied that if a licence under subsection 19(4A) authorising the activities had been in force at that time, the licence would have been a leviable licence;
the court may, in addition to imposing a penalty on the person, order the person to pay to the Commonwealth an amount not exceeding the amount that is the relevant levy amount in relation to the licence.
(5) Where levy is payable under the Fisheries Levy Act 1984 on the grant of, the renewal of, the variation of or the making under this Act of an entry in a licence under this Act:
the licence shall be taken, for the purposes of this section, to be a leviable licence; and
the amount of the levy or the sum of the amounts of the levy, as the case requires, payable with respect to the licence shall be taken, for the purposes of this section;
to be the relevant levy amount in relation to the licence.
Where a court convicts a person of an offence:
arising out of a contravention of paragraph 45(1)(d), (e) or (f); or
arising out of a contravention of paragraph 44(1)(a) (not being an offence to which section 56 applies);
the court may, in addition to imposing a penalty in respect of the offence, order that the person shall not, during such period as the court determines, be on a boat in an area of Australian jurisdiction with the intention of engaging in commercial fishing.
A person who contravenes an order of a court made pursuant to subsection (1) commits an offence punishable, on conviction, by a fine not exceeding 20 penalty units or imprisonment for a period not exceeding 12 months, or both.
In subsection (2), strict liability applies to the physical element of circumstance, that the relevant boat is in an area of Australian jurisdiction.
Note: For strict liability, see Criminal Code.section 6.1 of the
This section relates to fish taken from:
the Protected Zone; or
an area of waters that is declared under subsection 15(1).
A person commits an offence if:
the person receives fish directly from another person; and
the fish were taken by the other person in circumstances that required the person to hold a commercial fishing licence, or a Treaty endorsement; and
the person intends:
to process the fish, other than for personal consumption or use; or
to sell the fish; and
the person does not hold a licence that allows the person to receive fish under this Act.
Penalty: 50 penalty units.
A person receives fish directly from another person if the person receives the fish from:
the other person; or
someone else who has been engaged by the other person to transport the fish to the person.
A person commits an offence if:
the person holds a fish receiver licence; and
the person receives fish from someone who is not a commercial fisher; and
the person intends:
to process the fish, other than for personal consumption or use; or
to sell the fish.
Penalty: 50 penalty units.
A person commits an offence if:
the person engages in taking fish on a boat; and
the boat is a foreign boat; and
the fish are taken in the course of commercial fishing; and
the boat is at a place that is, at the time the person engages in taking the fish, in a part of the territorial sea of that is in an area of Australian jurisdiction.
Penalty:
if the offender was the master of the boat at the time the offence was committed—2,500 penalty units or 3 years imprisonment, or both; or
in any other case—500 penalty units or 2 years imprisonment, or both.
Strict liability applies to paragraph (1)(d).
Note: For strict liability, see section 6.1 of the Criminal Code.
The reference to an area of Australian jurisdiction in paragraph (1)(d) does not include a reference to Protected Zone coastal waters of .
Note: For what are Protected Zone coastal waters of , see section 4.
Subsection (1) does not apply if:
the fishing is community fishing; or
a licence under subsection 19(2) is in force authorising the use of the boat; or
a Treaty endorsement is in force authorising the use of the boat for taking fish.
Note: The defendant bears an evidential burden in relation to the matters in subsection (3). See subsection 13.3(3) of the Criminal Code.
A person commits an offence if:
the person is in charge of a boat; and
the boat is a foreign boat; and
the boat is a boat that is being used for commercial fishing; and
the boat is at a place that is, at the time of the use, in a part of the territorial sea of that is in an area of Australian jurisdiction.
Penalty: 2,500 penalty units or 3 years imprisonment, or both.
Strict liability applies to paragraph (1)(d).
Note: For strict liability, see section 6.1 of the Criminal Code.
The reference to an area of Australian jurisdiction in paragraph (1)(d) does not include a reference to Protected Zone coastal waters of .
Note: For what are Protected Zone coastal waters of , see section 4.
Subsection (1) does not apply if:
a master fisherman’s licence is in force authorising the person to be in charge of the boat; or
a Treaty endorsement is in force authorising the use of the boat; or
the use of the boat is for community fishing.
Note: The defendant bears an evidential burden in relation to the matters in subsection (3). See subsection 13.3(3) of the Criminal Code.
A person commits an offence if:
the person uses a boat; and
the boat is a foreign boat; and
the use of the boat is for processing or carrying fish that are taken with the use of another boat; and
the fish are processed or carried in the course of commercial fishing; and
the boat used for processing or carrying fish is at a place that is, at the time of the use, in a part of the territorial sea of that is in an area of Australian jurisdiction.
Penalty:
if the offender was the master of the boat at the time the offence was committed—2,500 penalty units or 3 years imprisonment, or both; or
in any other case—500 penalty units or 2 years imprisonment, or both.
Strict liability applies to paragraph (1)(e).
Note: For strict liability, see section 6.1 of the Criminal Code.
The reference to an area of Australian jurisdiction in paragraph (1)(e) does not include a reference to Protected Zone coastal waters of .
Note: For what are Protected Zone coastal waters of , see section 4.
Subsection (1) does not apply if:
a licence under subsection 19(3) is in force authorising the use of the boat for processing or carrying fish (as the case may be) that are taken with the use of another boat; or
a Treaty endorsement is in force authorising the use of the boat for processing or carrying fish (as the case may be) that are taken with the use of another boat.
Note: The defendant bears an evidential burden in relation to the matters in subsection (3). See subsection 13.3(3) of the Criminal Code.
A person commits an offence if:
the person uses a boat; and
the boat is a foreign boat; and
the use of the boat is for trans-shipping fish to another boat; and
the boat used for trans-shipping fish is at a place that is, at the time of the use, in a part of the territorial sea of that is in an area of Australian jurisdiction.
Penalty:
if the offender was the master of the boat at the time the offence was committed—2,500 penalty units or 3 years imprisonment, or both; or
in any other case—500 penalty units or 2 years imprisonment, or both.
Strict liability applies to paragraph (1)(d).
Note: For strict liability, see section 6.1 of the Criminal Code.
The reference to an area of Australian jurisdiction in paragraph (1)(d) does not include a reference to Protected Zone coastal waters of .
Note: For what are Protected Zone coastal waters of , see section 4.
Subsection (1) does not apply if:
a licence under subsection 19(3) is in force authorising the use of the other boat; or
a Treaty endorsement is in force authorising the use of the other boat for carrying, or for processing or carrying, fish that are taken with the use of another boat.
Note: The defendant bears an evidential burden in relation to the matters in subsection (3). See subsection 13.3(3) of the Criminal Code.
A person shall not, in an area of Australian jurisdiction, remove fish from a net, trap or other equipment for the taking of fish.
Penalty: 50 penalty units or imprisonment for 2 years, or both.
Subsection (1) does not apply if the person is the owner of the net, trap or other equipment or is acting with the authority of the owner.
Note: The defendant bears an evidential burden in relation to the matter in subsection (2). See subsection 13.3(3) of the Criminal Code.
In subsection (1), strict liability applies to the physical element of circumstance, that the removal occurs in an area of Australian jurisdiction.
Note: For strict liability, see Criminal Code.section 6.1 of the
A person shall not, in an area of Australian jurisdiction:
use a foreign boat for taking, catching or capturing, fish for private purposes; or
use a foreign boat for processing or carrying fish that have been taken, caught or captured for private purposes with the use of that boat or another boat.
Penalty: 50 penalty units.
An offence under subsection (1) is an offence of strict liability.
Note: For strict liability, see Criminal Code.section 6.1 of the
The master of a foreign fishing boat, not being a boat that is being used in the course of traditional fishing, who, otherwise than in accordance with an entry made in a licence or in a Treaty endorsement under paragraph 21(2)(a) or (b), causes the boat to be brought into a place in Australia that is within the Protected Zone, commits an offence punishable:
on summary conviction—by a fine not exceeding 50 penalty units; and
on conviction on indictment—by a fine not exceeding 500 penalty units.
It is a defence to a prosecution for an offence against subsection (1) if the person charged proves that an unforeseen emergency rendered it necessary to bring the boat into that place in order to secure the safety of human life or of the boat.
Note: The defendant bears a legal burden in relation to the matter in subsection (2). See Criminal Code.section 13.4 of the
An offence under subsection (1) is an offence of strict liability.
Note: For strict liability, see Criminal Code.section 6.1 of the
(3) In subsection (1), foreign fishing boat means a foreign boat or a boat that is designed and equipped for:
catching or capturing fish;
processing fish;
carrying fish;
2 or more of the purposes mentioned in paragraphs (a), (b) and (c); or
supporting the operations of a boat that is, or boats that are, designed and equipped for any one or more of the purposes mentioned in paragraphs (a), (b) and (c).
A person commits an offence if:
the person is the master of a boat; and
the boat is a foreign boat; and
the boat is a fishing boat; and
the person causes the boat to be brought into a place; and
the place is, at the time boat is brought into it, in a part of the territorial sea of that is in an area of Australian jurisdiction.
Penalty: 500 penalty units or 2 years imprisonment, or both.
Strict liability applies to paragraph (1)(e).
Note: For strict liability, see section 6.1 of the Criminal Code.
The reference to an area of Australian jurisdiction in paragraph (1)(e) does not include a reference to Protected Zone coastal waters of .
Note: For what are Protected Zone coastal waters of , see section 4.
It is a defence to a prosecution for an offence against subsection (1) if the person charged proves that an unforeseen emergency rendered it necessary to bring the boat into that place in order to secure the safety of human life or of the boat.
Note: The defendant bears a legal burden in relation to the matter in subsection (3). See Criminal Code.section 13.4 of the
Subsection (1) does not apply if:
an entry under subsection 21(2) in a licence granted under subsection 19(2) or (3) is in force authorising the boat to be brought into the place; or
an entry under subsection 21(2) in a Treaty endorsement is in force authorising the boat to be brought into the place; or
at the time the boat is brought into the place, the boat is being used for traditional fishing.
Note: The defendant bears an evidential burden in relation to the matters in subsection (4). See subsection 13.3(3) of the Criminal Code.
In this section:
fishing boat means a boat that is designed and equipped for:
catching or capturing fish; or
processing fish; or
carrying fish; or
2 or more of the purposes mentioned in paragraphs (a), (b) and (c); or
supporting the operations of a boat that is, or boats that are, designed and equipped for any one or more of the purposes mentioned in paragraphs (a), (b) and (c).
(1) The master of a foreign boat or of a Papua New Guinea boat who, otherwise than in accordance with an entry made in a licence or in a Treaty endorsement under paragraph 21(2)(b) or in accordance with an endorsement under subsection 9(3A) of the Fisheries Act 1952 or a foreign fishing licence granted under the Fisheries Management Act 1991, causes to be landed at a place in Australia any fish, not being fish that were taken in the course of traditional fishing and landed at that place for the purpose of the performance of traditional activities, that were brought to the place by the boat commits an offence punishable:
on summary conviction—by a fine not exceeding 50 penalty units; and
on conviction on indictment—by a fine not exceeding 500 penalty units.
It is a defence to a prosecution for an offence against subsection (1) if the person charged satisfies the court that:
(a) the fish were imported into and were so imported in accordance with permission in writing granted for the purposes of regulations made under the Customs Act 1901;
by reason of the operation of section 131A of that Act, the fish were not subject to customs control;
the fish had previously been landed in another place in , in an external Territory or in a country other than ; or
the fish were landed in pursuance of an order of a court.
An offence under subsection (1) is an offence of strict liability.
Note: For strict liability, see Criminal Code.section 6.1 of the
A person shall not, in an area of Australian jurisdiction, have in his or her possession or under his or her control, an unlicensed boat equipped for taking fish.
A person who contravenes subsection (1) with the use of an unlicensed boat that is a foreign boat commits an offence punishable:
on summary conviction—by a fine not exceeding:
if the person is a natural person—50 penalty units; or
if the person is a body corporate—250 penalty units; and
on conviction on indictment—by a fine not exceeding 2,500 penalty units.
A person who contravenes subsection (1) with the use of an unlicensed boat that is an Australian boat or a boat commits an offence punishable, on conviction, by a fine not exceeding:
if the person is a natural person—50 penalty units; or
if the person is a body corporate—250 penalty units.
It is a defence to a prosecution for an offence against subsection (2) or (3) if the person charged proves that, at the time of the alleged offence:
the boat’s equipment for taking fish was stowed; and
the boat was travelling through an area of Australian jurisdiction from a point outside an area of Australian jurisdiction to another point outside an area of Australian jurisdiction by the shortest practicable route.
Note: The defendant bears a legal burden in relation to the matter in subsection (4). See Criminal Code.section 13.4 of the
(4AA) For the purposes of paragraph (4)(a), a boat’s equipment for taking fish is not stowed unless all of the boat’s:
nets, traps and other fishing equipment; and
associated equipment, including buoys and beacons;
are disengaged and secured, and where practicable stored inside the boat, in such a manner as not to be readily available for fishing.
An offence under subsection (2) or (3) is an offence of strict liability.
Note: For strict liability, see Criminal Code.section 6.1 of the
(5) In this section, unlicensed boat means a boat:
that is being used otherwise than in the course of traditional fishing or community fishing; and
in respect of which there is not in force a licence under section 19 or a Treaty endorsement.
A person commits an offence if:
the person has a boat in his or her possession, or under his or her control; and
the boat is a foreign boat; and
the boat is equipped for taking fish; and
the boat is at a place that is in a part of the territorial sea of that is in an area of Australian jurisdiction.
Penalty:
if the offender was the master of the boat at the time the offence was committed—2,500 penalty units or 3 years imprisonment, or both; or
in any other case—500 penalty units or 2 years imprisonment, or both.
Strict liability applies to paragraph (1)(d).
Note: For strict liability, see section 6.1 of the Criminal Code.
It is a defence to a prosecution for an offence against subsection (1) if the person charged proves that, at the time of the alleged offence:
the boat’s equipment for taking fish was stowed; and
the boat was travelling through an area of Australian jurisdiction from a point outside an area of Australian jurisdiction to another point outside an area of Australian jurisdiction by the shortest practicable route.
Note: The defendant bears a legal burden in relation to the matters in subsection (2). See Criminal Code.section 13.4 of the
For the purposes of paragraph (2)(a), a boat’s equipment for taking fish is not stowed unless all of the boat’s:
nets, traps and other fishing equipment; and
associated equipment, including buoys and beacons;
are disengaged and secured, and where practicable stored inside the boat, in such a manner as not to be readily available for fishing.
Subsection (1) does not apply if:
a licence under section 19 is in force in respect of the boat; or
a Treaty endorsement is in force in respect of the boat; or
the boat is being used for traditional fishing or community fishing.
Note: The defendant bears an evidential burden in relation to the matters in subsection (3). See subsection 13.3(3) of the Criminal Code.
A reference to an area of Australian jurisdiction in this section does not include a reference to Protected Zone coastal waters of .
Note: For what are Protected Zone coastal waters of , see section 4.
Subdivision A—Forfeiture by court order
Subject to subsection (2), where a court convicts a person of an offence against subsection 14(14) or against section 44, 45, 46A, 46B, 46C, 46D, 48, 49, 49A, 50, 51 or 51A, the court may, in addition to imposing a penalty in respect of the offence, order the forfeiture of:
if a boat was used in the commission of the offence—that boat;
a net, trap or equipment that was on board that boat at the time of the commission of the offence, or that was used in the commission of the offence;
fish on board that boat at that time, or in relation to which the offence was committed; or
the proceeds of the sale of fish of the kind referred to in paragraph (c).
Where a court convicts a person of an offence referred to in subsection (1), the court shall not order the forfeiture of:
a boat in respect of which a licence under section 19 or a Treaty endorsement was, at the time of the commission of the offence, in force; or
a boat that was, at the time of the commission of the offence, being used in the course of traditional fishing or community fishing.
This section applies if:
(a) a court orders a boat to be forfeited under relevant offence); andsection 52 because it was used in the commission of an offence (the
(b) at the time the court makes the order, there are nets, traps, equipment or fish (the additional things) on the boat that the court cannot order to be forfeited under section 52.
Forfeiture within 2 years
If the order for the boat to be forfeited is made within 2 years after the commission of the relevant offence, the court may order the forfeiture of the additional things.
Things owned by the person who owned the boat
If the additional things are owned by the person who owned the boat immediately before the relevant offence was committed, the court may order the forfeiture of the additional things.
For the purposes of subsection (3), the additional things are taken, unless the contrary is proved, to be owned by the person who owned the boat immediately before the relevant offence was committed.
Things owned by persons who commit offences
If the additional things are owned:
by the person who committed the relevant offence; or
by a person who committed an offence against:
(i) Crimes Act 1914; orsection 6 of the
(ii) an ancillary offence (within the meaning of the Criminal Code);
that relates to the relevant offence;
the court may order the forfeiture of the additional things.
For the purposes of subsection (5), the additional things are taken, unless the contrary is proved, to be owned:
for the purposes of paragraph (5)(a)—by the person who committed the relevant offence; and
for the purposes of paragraph (5)(b)—by a person who committed an offence against:
(i) Crimes Act 1914; orsection 6 of the
(ii) an ancillary offence (within the meaning of the Criminal Code);
that relates to the relevant offence.
To avoid doubt, nothing in subsection (2), (3) or (5) limits the operation of another subsection of this section.
Any boat or other property (including fish) ordered by a court to be forfeited under this Subdivision becomes the property of the Commonwealth and must be dealt with or disposed of in accordance with the directions of the Minister.
To avoid doubt, a provision of this Subdivision giving the Commonwealth rights or interests in relation to property does not limit any other right or interest the Commonwealth has or acquires otherwise than under this Subdivision.
Subdivision B—Automatic forfeiture of things
The following things are forfeited to the Commonwealth:
a foreign boat used in an offence against:
subsection 45(2); or
section 46A; or
section 48; or
section 49; or
section 49A; or
section 51; or
section 51A;
a net or trap, or equipment, that:
was on a boat described in paragraph (a) at the time of the offence mentioned in that paragraph; or
was used in the commission of an offence against subsection 45(2) or section 46A, 48, 49, 49A, 51 or 51A;
fish:
on a boat described in paragraph (a) at the time of the offence mentioned in that paragraph; or
involved in the commission of an offence against subsection 45(2) or section 46A, 48, 49, 49A, 51 or 51A.
Note: Paragraph 42(1)(ea) allows an officer to seize a thing that is forfeited under this section or that the officer has reasonable grounds to believe is forfeited.
If:
a boat is forfeited to the Commonwealth under subsection (1) because it was used in the commission of an offence; and
(b) the boat is seized under paragraph 42(1)(ea) or Maritime Powers Act 2013;section 67 of the
any nets, traps or equipment on the boat at the time it is seized are taken, unless the contrary is proved:
for the purposes of subparagraph (1)(b)(i)—to have been on the boat at the time of the offence; and
for the purposes of subparagraph (1)(b)(ii)—to have been used in the commission of an offence against subsection 45(2) or section 46A, 48, 49, 49A, 51 or 51A.
If:
a boat is forfeited to the Commonwealth under subsection (1) because it was used in the commission of an offence; and
(b) the boat is seized under paragraph 42(1)(ea) or Maritime Powers Act 2013;section 67 of the
any fish on the boat at the time it is seized are taken, unless the contrary is proved:
for the purposes of subparagraph (1)(c)(i)—to have been on the boat at the time of the offence; and
for the purposes of subparagraph (1)(c)(ii)—to have been involved in the commission of an offence against subsection 45(2) or section 46A, 48, 49, 49A, 51 or 51A.
This section applies if:
(a) a boat is forfeited to the Commonwealth under relevant offence); andsection 52A because it was used in the commission of an offence (the
(b) the boat is seized under paragraph 42(1)(ea) or Maritime Powers Act 2013; andsection 67 of the
(c) at the time the boat is seized, there are nets, traps, equipment or fish (the additional things) on the boat that have not been forfeited under section 52A.
Seizure within 2 years
If the boat is seized within 2 years after it is forfeited, the additional things are forfeited to the Commonwealth at the time the boat is seized.
Things owned by the person who owned the boat
If the additional things are owned by the person who owned the boat immediately before the relevant offence was committed, the additional things are forfeited to the Commonwealth at the time the boat is seized.
For the purposes of subsection (3), the additional things are taken, unless the contrary is proved, to be owned by the person who owned the boat immediately before the relevant offence was committed.
Things owned by persons who commit offences
If the additional things are owned:
by the person who committed the relevant offence; or
by a person who committed an offence against:
(i) Crimes Act 1914; orsection 6 of the
(ii) an ancillary offence (within the meaning of the Criminal Code);
that relates to the relevant offence;
the additional things are forfeited to the Commonwealth at the time the boat is seized.
For the purposes of subsection (5), the additional things are taken, unless the contrary is proved, to be owned:
for the purposes of paragraph (5)(a)—by the person who committed the relevant offence; and
for the purposes of paragraph (5)(b)—by a person who committed an offence against:
(i) Crimes Act 1914; orsection 6 of the
(ii) an ancillary offence (within the meaning of the Criminal Code);
that relates to the relevant offence.
To avoid doubt, nothing in subsection (2), (3) or (5) limits the operation of another subsection of this section.
To avoid doubt, a provision of this Subdivision giving the Commonwealth rights or interests in relation to property does not limit any other right or interest the Commonwealth has or acquires otherwise than under this Subdivision.
Subdivision BA—Automatic ownership of things
If:
a thing is forfeited to the Commonwealth under section 52 or 52A; and
the thing is used for, or in the taking of, fish:
after it is forfeited; and
without the written permission of the Minister for such use;
the fish are the property of the Commonwealth.
At any time during which a boat is the property of the Commonwealth because:
the court has ordered the forfeiture of the boat under section 52; or
the boat is forfeited under section 52A;
anything on, in or attached to the boat that forms part of the boat is also the property of the Commonwealth.
To avoid doubt, a provision of this Subdivision giving the Commonwealth rights or interests in relation to property does not limit any other right or interest the Commonwealth has or acquires otherwise than under this Subdivision.
Subdivision C—Dealing with things seized
This Subdivision sets out rules about the following:
a thing that an officer seizes under paragraph 42(1)(ea) or (eb):
because the thing is forfeited under Subdivision B; or
because the officer has reasonable grounds to believe the thing is forfeited under Subdivision B;
a thing that an officer seizes under paragraph 42(1)(ec) or (ed):
because the thing is the property of the Commonwealth because of the operation of Subdivision BA; or
because the officer has reasonable grounds to believe the thing is the property of the Commonwealth because of the operation of Subdivision BA.
Giving notice
The officer must give written notice of the seizure of the thing:
if the thing is, or was on, a boat, or was used in connection with a boat:
to the person who was the master of the boat immediately before the seizure; or
to the person whom the officer has reasonable grounds to believe was the master of the boat immediately before the seizure; or
in a case not covered by paragraph (a):
to the owner of the thing; or
to the person who had possession, custody or control of the thing immediately before it was seized.
However, if the officer cannot conveniently give the notice to the person in person, the officer may give written notice of the seizure of the thing by fixing the notice to a prominent part of the thing, unless the thing is a fish.
Content of notice
The notice must:
identify the thing; and
state that the thing has been seized; and
state that the thing will be condemned as forfeited unless the owner of the thing or the person who had possession, custody or control of the thing immediately before it was seized gives the CEO within 30 days a written claim in English for the thing; and
specify the address of the CEO.
Note: Section 52E condemns the thing if it is not claimed within 30 days. Section 52G condemns the thing if it is claimed but the claimant does not get a court order supporting the claim.
Status of notice
A notice under subsection (1) is not a legislative instrument.
On behalf of the Commonwealth, AFMA may cause the thing to be disposed of or destroyed if it is a boat and AFMA is satisfied that:
the boat is unseaworthy; or
the boat poses a serious risk to safety or public health; or
(ba) the boat poses an unacceptable level of biosecurity risk (within the meaning of the Biosecurity Act 2015); or
the boat poses a serious risk of damage to other property or the environment; or
the expenses of custody and maintenance of the boat between its seizure and condemnation are likely to be greater than its value.
If AFMA causes the boat to be disposed of, it may cause the disposal to be made subject to specified conditions.
The table lists some other provisions relevant to dealing with things before they are condemned as forfeited to the Commonwealth:
By force of this subsection, the thing is condemned as forfeited to the Commonwealth 30 days after notice of seizure of the thing has been given under section 52C, unless:
within the 30 days the owner of the thing or the person who had possession, custody or control of it immediately before it was seized gives the CEO a written claim for the thing; and
the claim is in English; and
the claim sets out an address for service on the person making the claim.
Note: Section 52H requires things condemned as forfeited to be dealt with in accordance with the Minister’s directions.
A person may claim the thing even if it is disposed of or destroyed before or after the claim.
If the thing is claimed as described in section 52E:
an officer may retain possession of the thing without starting any proceedings for the condemnation of the goods; and
the CEO may give the claimant a written notice stating that the thing will be condemned if the claimant does not institute proceedings against the Commonwealth within 2 months:
to recover the thing; or
for a declaration that the thing is not forfeited.
Note 1: An officer may retain possession even if the CEO does not give notice. If so, the claimant will be able to recover the thing only if it is released under section 52I or a court orders its release to the claimant.
Note 2: If the CEO does give the notice and the claimant institutes proceedings, whether the claimant recovers the thing will depend on the outcome of the proceedings.
(2) The CEO may give the notice to the claimant by posting it prepaid as a letter to the last address of the claimant that is known to the CEO. If the CEO does so, the letter is taken to be properly addressed for the purposes of Acts Interpretation Act 1901.section 29 of the
Subsection (2) does not limit the ways in which the notice may be given.
Note: Sections 28A and 29 of the Acts Interpretation Act 1901 explain how a notice can be given, and when it is taken to be given.
To avoid doubt, the CEO may give the notice even if the thing has been released under section 52I.
A notice under paragraph (1)(b) is not a legislative instrument.
Application
This section applies if the CEO gives the claimant a notice under section 52F about instituting proceedings:
to recover the thing; or
for a declaration that the thing is not forfeited.
Condemnation if proceedings not started within 2 months
By force of this subsection, the thing is condemned as forfeited to the Commonwealth 2 months after the notice is given if the claimant does not institute the proceedings within that period.
Condemnation at end of proceedings started within 2 months
By force of this subsection, the thing is condemned as forfeited to the Commonwealth at the end of the proceedings that are instituted by the claimant against the Commonwealth within 2 months of the claimant being given the notice if, at the end of the proceedings, there is not:
an order for the claimant to recover the thing; or
an order for the Commonwealth to pay the claimant the proceeds of the sale of the thing if it has been sold before the end of the proceedings; or
an order for the Commonwealth to pay the claimant the market value of the thing at the time it was disposed of (except by sale) or destroyed, if it has been disposed of (except by sale) or destroyed before the end of the proceedings; or
a declaration that the thing is not forfeited.
End of proceedings that go to judgment
For the purposes of subsection (3), if the proceedings go to judgment, they end:
at the end of the period for lodging an appeal against the judgment, if no appeal is lodged within that period; or
when the appeal lapses or is finally determined, if an appeal is lodged against the judgment within that period.
Proceedings relating to thing that has been disposed of
Proceedings relating to the thing may be instituted or continued even if it is disposed of or destroyed.
Order for payment if thing has been disposed of or destroyed
If the court hearing the proceedings decides that it would have ordered that the thing be delivered to a person apart from the fact that the thing had been disposed of or destroyed, the court must order the Commonwealth to pay the person an amount equal to:
the proceeds of the sale of the thing, if it has been sold before the end of the proceedings; or
the market value of the thing at the time it was disposed of (except by sale) or destroyed, if it has been disposed of (except by sale) or destroyed before the end of the proceedings.
If the thing is condemned as forfeited to the Commonwealth, the thing must be dealt with or disposed of in accordance with the directions of the Minister.
For the purposes of proceedings taken:
to recover a thing forfeited under Subdivision B; or
for a declaration that a thing seized under paragraph 42(1)(ea) or (eb) is not forfeited under Subdivision B;
if a person has been convicted of an offence mentioned in paragraph 52A(1)(a), the person is taken, unless the contrary is proved, to have committed the offence.
Subsection (1) does not apply in relation to a conviction:
in respect of which a review or appeal (however described) has been instituted but not finally determined; or
that has been quashed or set aside; or
in respect of which a pardon has been given.
If any property is under the control of an officer because of the exercise by an officer of powers under section 42, AFMA may direct that the property be released:
in the case of a boat—to the owner or the master of the boat; and
in any other case—to the owner of the property or to the person from whose possession the property was seized, or from whose control the property was removed;
on such conditions (if any) as AFMA thinks fit, including conditions as to the giving of security:
for payment of the value of the property if it is forfeited; and
for the payment of any fines that may be imposed under this Act in respect of offences that AFMA has reason to believe have been committed with the use of, or in relation to, that property.
If:
any property referred to in subsection (1):
is also property referred to in section 52; and
was under the control of an officer because an offence referred to in that section is alleged to have been committed in respect of the property; and
were the person to be convicted of the offence an order could be made by the court directing the person to pay the costs of the prosecution;
the conditions on which the property may be released under subsection (1) include a condition as to the giving of security for payment of those costs if the person is convicted of the offence.
For the purposes of this section:
a reference to property includes a reference to fish; and
property is taken to be under the control of an officer if any person is, in relation to that property, subject to the directions of the officer.
The seizure, detention or forfeiture of a boat or any other property (including fish) under this Act has effect despite:
(a) any or all of the following events (each of which is an admiralty event):
(i) the arrest of the boat under the Admiralty Act 1988;
(ii) the making of an order for the sale of the boat by a court in proceedings brought under the Admiralty Act 1988;
(iii) the sale of the boat under an order made by a court in proceedings brought under the Admiralty Act 1988; or
(b) any action (a PPSA event) taken in relation to the enforcement under Part 4.3 of the Personal Property Securities Act 2009 of a PPSA security interest in the boat or other property.
Subsection (1) has effect regardless of whether the seizure, detention or forfeiture, or the event that was the basis for the seizure, detention or forfeiture, occurred before or after the admiralty event or the PPSA event.
(1) The master of a boat on which, or by the use of which, an offence against this Act (in this section referred to as the primary offence) is committed commits an offence against this section and is punishable, on conviction, as if it were the primary offence.
A person may be convicted of an offence against this section whether or not the identity of the person who committed the primary offence appears, or has appeared, from the evidence in the proceedings in respect of the offence against this section or in any other proceedings, but a person shall not be convicted both of an offence against this section and of the primary offence.
The provisions of section 52 apply where a person is convicted of an offence against this section in like manner as they would apply if that person had been convicted of the primary offence.
Where, in proceedings for an offence against this Act or the regulations in respect of conduct engaged in by a body corporate, it is necessary to establish the state of mind of the body corporate, it is sufficient to show that a director, employee or agent of the body corporate, being a director, employee or agent by whom the conduct was engaged in within the scope of his or her actual or apparent authority, had that state of mind.
Any conduct engaged in on behalf of a body corporate:
by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; or
by any other person at the direction or with the consent or agreement (whether express or implied) of a director, employee or agent of the body corporate, where the giving of such direction, consent or agreement is within the scope of the actual or apparent authority of the director, employee or agent;
shall be deemed, for the purposes of this Act and the regulations, to have been engaged in also by the body corporate.
A reference in subsection (1) to the state of mind of a person includes a reference to the knowledge, intention, opinion, belief or purpose of the person and the person’s reasons for the intention, opinion, belief or purpose.
(4) Criminal Code does not apply to an offence against this Act or the regulations.Part 2.5 of the
Note: Criminal Code deals with corporate criminal responsibility.Part 2.5 of the
(1) In this section law means any written law relating to fishing in force in and having effect in any part of the Protected Zone.
A person, being:
an Australian citizen;
a person (other than an Australian citizen) on an Australian boat; or
a person on a foreign boat in respect of which a licence is in force under section 19;
who, in an area of jurisdiction, contravenes any law commits an offence punishable, on conviction, by a fine not exceeding 50 penalty units.
It is a defence to a prosecution for an offence against subsection (2) in relation to a contravention of a law if the person charged satisfies the court that he or she has, in , been prosecuted for an offence against law in relation to that contravention.
In determining whether or not a person is guilty of an offence against subsection (2), the court shall have regard to so much of the laws of Papua New Guinea, whether written or unwritten, as, in the opinion of the court, is necessary to give effect to Article 28 of the Torres Strait Treaty.
An offence under subsection (2) is an offence of strict liability.
Note: For strict liability, see Criminal Code.section 6.1 of the
Schedule 2 has effect.
The regulations may make provision enabling a person who is alleged to have committed an offence against section 14 or Division 2 of Part VI to pay a penalty to the Commonwealth as an alternative to prosecution.
The penalty must not exceed one-fifth of the maximum fine that a court could impose on the person as a penalty for that offence.
(1) The regulations may establish a demerit points system under which a licence granted under section 19 may be suspended or revoked if the licensee accrues a prescribed number of demerit points.
Demerit points may be accrued only if the licensee:
is convicted or found guilty of an offence against section 14 or Division 2 of Part VI; or
under a scheme established under regulations made under section 54B, pays a penalty to the Commonwealth as an alternative to prosecution.
Without limiting subsection (1), the scheme may provide that different provisions apply to different kinds of licensees or to different classes of licensees within a kind of licensee.
An offence against section 44, 45 or 51 committed with the use of a foreign boat or an offence against section 47, 49 or 50 is an indictable offence.
Notwithstanding that an offence referred to in subsection (1) is an indictable offence, a court of summary jurisdiction may hear and determine proceedings in respect of such an offence if the court is satisfied that it is proper to do so and the defendant and the prosecutor consent.
An offence against this Act, other than an offence referred to in subsection (1) or an offence against section 46A, 46B, 46C, 46D, 49A or 51A, is punishable summarily.
Note: Offences against the sections 46A, 46B, 46C, 46D, 49A and 51A are indictable offences because they are punishable by imprisonment for a period exceeding 12 months: see Crimes Act 1914.section 4G of the
Where:
upon the conviction of a person for an offence against subsection 44(2) or (3) or 45(2) or (4), the court before which the person is convicted, in addition to imposing a penalty on the person, orders the person to pay an amount to the Commonwealth; and
the court has civil jurisdiction to the extent of the amount;
the order is enforceable in all respects as a final judgment of the court in favour of the Commonwealth.
Where:
upon conviction of a person for an offence against subsection 44(2) or (3) or 45(2) or (4), the court before which the person is convicted, in addition to imposing a penalty on the person, orders the person to pay an amount to the Commonwealth; and
the court:
does not have civil jurisdiction; or
has civil jurisdiction, but:
(A) does not have civil jurisdiction to the extent of the amount; or
(B) it is more appropriate for the order to be enforceable as a final judgment of another court;
the proper officer of the court shall issue a certificate in the prescribed form containing the prescribed particulars.
The certificate may, in the prescribed manner and subject to the prescribed conditions (if any), be registered in a court having civil jurisdiction to the extent of the amount ordered to be paid to the Commonwealth.
Upon registration under subsection (3), the certificate is enforceable in all respects as a final judgment of the court in favour of the Commonwealth.
The costs of registration of the certificate and other proceedings under this section shall, subject to the prescribed conditions (if any), be deemed to be payable under the certificate.
This section applies to an offence against this Act (other than an offence against section 43):
that is alleged to have been committed with the use of, or in relation to, a boat in respect of which a licence is in force;
that is alleged to have been committed by a person who is licensed under the laws of Papua New Guinea to engage in commercial fishing in areas of Papua New Guinea jurisdiction; or
that is alleged to have been committed by a person who is a traditional inhabitant and a citizen of and that, in the opinion of the Minister, was committed in the course of traditional fishing.
Proceedings for an offence to which this section applies shall not be heard or determined except with the consent in writing of:
in a case to which paragraph (b) does not apply—the Minister; and
in the case of an offence relating to a Protected Zone Joint Authority fishery—the Protected Zone Joint Authority.
A person shall not be charged with an offence to which this section applies later than 14 days after the act or omission alleged to constitute the offence occurred.
Notwithstanding that a decision under subsection (2) has not been made in relation to an offence to which this section applies:
a person may be arrested for the offence, and a warrant for the arrest of a person for the offence may be issued and executed;
a person may, subject to subsection (3), be charged with the offence; and
a person so charged may be remanded in custody or on bail.
In determining whether or not to consent to the hearing or determination of proceedings for an offence to which this section applies, the Minister or the Protected Zone Joint Authority, as the case requires, shall have regard to the provisions of Article 28 of the Torres Strait Treaty.
(6) In this section, Protected Zone Joint Authority fishery has the same meaning as in Part V.
Where:
but for this section, a person would, by reason of the taking, capturing or catching of fish (whether or not by reason also of any other act or any failure to act), commit an offence against this Act; and
the fish was or were returned to the water as soon as was reasonably practicable after being taken, captured or caught;
the person does not commit the offence.
Where, in proceedings for an offence against this Act or the regulations:
an officer gives evidence that he or she suspects that:
fish to which the charge relates were taken in a particular part of the Protected Zone or in an area in respect of which a Proclamation is in force under subsection 15(1) or (2);
fish to which the charge relates were taken for private purposes; or
fish to which the charge relates were taken in the course of traditional fishing, community fishing or commercial fishing (other than community fishing);
together with evidence of the grounds on which he or she so suspects; and
the court considers that, having regard to that evidence, the suspicion is reasonable;
the fish shall, in the absence of evidence to the contrary, be deemed to have been taken in that area, for those purposes or in the course of traditional fishing, community fishing or commercial fishing (other than community fishing), as the case may be.
The Minister or a person authorised in writing by him or her to give certificates under this section may give a certificate, for the purposes of proceedings for an offence against this Act or the regulations stating:
that, at a time or during a period specified in the certificate, a boat identified in the certificate was, or was not, an Australian boat, a boat or a foreign boat; or
that, at a time or during a period specified in the certificate, a person specified in the certificate was, or was not, the holder of a licence in force under subsection 19(1); or
that, at a time or during a period specified in the certificate, there was, or was not, in force in respect of a boat identified in the certificate, a licence under section 19 or a Treaty endorsement; or
that, at a time or during a period specified in the certificate, a person specified in the certificate was, or was not, the holder of a licence in force under subsection 19(4A) or (4B) that authorised activities specified in the certificate; or
that, at a time or during a period specified in the certificate, there was in force in respect of a boat identified in the certificate a licence under section 19 or a Treaty endorsement, being a licence or endorsement, as the case may be, specified in the certificate to be one:
that authorised or that did not authorise the use of the boat for activities specified in the certificate in an area specified in the certificate; or
in respect of which an entry under section 21 was or was not in force that authorised or that did not authorise the use of the boat for activities specified in the certificate; or
that, at a time or during a period specified in the certificate, a person specified in the certificate was a person in relation to whom an authorisation under subsection 3(4) was in force; or
that, at a time or during a period specified in the certificate, a person specified in the certificate was or was not the holder of a permit under section 12 authorising the person to engage in activities specified in the certificate; or
that, at a time or during a period specified in the certificate, an area of waters specified in the certificate:
was a part of the territorial sea of that was, at the time or during the period, in an area of Australian jurisdiction; and
was not part of the Protected Zone coastal waters of .
Note: For what are Protected Zone coastal waters of , see section 4.
Without limiting the operation of subsection (2), the Minister or a person authorised in writing by him or her to give certificates under this section may give a certificate certifying as to any matter relating to the making of decisions by the Protected Zone Joint Authority established under Part V relating to instruments executed by the Protected Zone Joint Authority.
A person giving a certificate under subsection (2) in relation to a licence under section 19 or in relation to a Treaty endorsement may, in the certificate, certify that conditions specified in the certificate were the conditions to which the licence or endorsement, as the case may be, was, at a time or during a period specified in the certificate, subject.
(5) In proceedings for an offence against this Act or the regulations, a certificate given under subsection (2) is prima facie evidence of the matters specified in the certificate.
In proceedings for an offence against this Act or the regulations, a document purporting to be a certificate given under this section shall, unless the contrary is proved, be deemed to be such a certificate and to have been duly given.
In proceedings for an offence against section 54, evidence of any statute, code, regulation, proclamation or other written law of may be given by the production of:
a book or pamphlet purporting to be published by the authority of the government of Papua New Guinea containing the statute, code, regulation, proclamation or other written law, as the case may be; or
a photographic reproduction of such a book or pamphlet.
In proceedings for an offence against section 54, evidence of the unwritten or common law of Papua New Guinea may be given by the production of a book of reports of cases adjudged in the courts of Papua New Guinea or of a photographic reproduction of such a book or reports of cases purporting, or proved to the satisfaction of the court, to be authorised reports.
In proceedings for an offence against section 54, evidence of:
a judgment, decree, rule, conviction, acquittal, sentence or other order, process, act or decision of any court of Papua New Guinea; or
an affidavit, indictment or other legal document filed, deposited or presented in such a court;
may be given by the production of a document purporting to be a copy thereof and purporting:
to be sealed with the seal of that court; or
to be signed by a judge of that court with a statement in writing attached by the judge to his or her signature that that court has no seal.
In proceedings for an offence against section 54, an averment of the prosecutor, contained in the information or complaint, that:
the conduct alleged to constitute the offence took place in an area of waters specified in the averment;
at a time or during a period specified in the averment, a person specified in the averment was, or was not, the holder of a licence granted under this Act in respect of a boat, being a licence in respect of which an endorsement granted under the law of Papua New Guinea pursuant to Article 26 of the Torres Strait Treaty was in force; or
at a time or during a period specified in the averment, conditions specified in the averment were the conditions to which an endorsement of a kind referred to in paragraph (b) was subject under the law of Papua New Guinea;
is prima facie evidence of the matter averred.
Subject to subsection (6), a court may, at any time in proceedings for an offence against section 54, order that facts:
that are within the knowledge of a person who is a resident of ; and
direct oral evidence of which would be admissible in the proceedings;
may be proved by affidavit, including an affidavit sworn before a person authorised under the law of to administer affidavits.
A court shall not, in proceedings for an offence against section 54, make an order under subsection (5) if a party to the proceedings desires in good faith that the maker of an affidavit that is proposed to be used in the proceedings be cross-examined with respect to the matters contained in the affidavit.
A notice that is required by this Act to be given to a person may be given to the person:
in the case of a natural person—by delivering it to the person personally, or by leaving it at, or by sending it by post to, the last known address of the place of residence or business of the person; and
in the case of a body corporate—by leaving it at, or by sending it by post to, the registered office of the body corporate.
The Governor-General may make regulations, not inconsistent with this Act:
prescribing matters required or permitted by this Act to be prescribed; or
prescribing matters necessary or convenient to be prescribed for carrying out or giving effect to this Act;
and in particular:
prescribing penalties, not exceeding 20 penalty units in the case of a natural person and 100 penalty units in the case of a body corporate, for offences against the regulations; and
(ca) providing for the remission or refund of levy under the Fisheries Levy Act 1984, or fees under this Act, in specified circumstances; and
prescribing conditions or classes of conditions to which licences or Treaty endorsements may be subject; and
providing for the replacement of licences and other instruments granted or executed under this Act or the regulations and prescribing fees for such replacement; and
prescribing signals and rules of navigation to be observed by fishermen in areas of Australian jurisdiction; and
for providing for the marking of boats licensed under this Act and of nets, traps, containers and other equipment used for taking or storing fish; and
for regulating the rights of priority as between fishermen or boats in areas of Australian jurisdiction and prescribing the rules of fishing in those areas; and
prescribing rules to be observed in trans-shipping fish in areas of Australian jurisdiction; and
for facilitating the exercise by officers of their powers under section 42; and
for providing for the reporting of the positions of foreign boats licensed under this Act at times when those boats are in areas of Australian jurisdiction; and
for requiring the master of a boat that is being used for commercial fishing in an area of Australian jurisdiction to permit a prescribed person or a person included in a prescribed class of persons to go on board the boat and for requiring the master to provide accommodation and facilities for that person while the person remains on board the boat; and
for providing for the furnishing of returns containing information in relation to:
the taking of fish in areas of Australian jurisdiction and the sale or disposal of those fish;
the processing of fish taken in areas of Australian jurisdiction and the sale or disposal of fish so processed;
the carrying and transhipping of fish taken in areas of Australian jurisdiction;
the taking of fish with the use of Australian boats in areas of jurisdiction and the sale or disposal of those fish;
the processing of fish taken with the use of Australian boats in areas of Papua New Guinea jurisdiction and the sale or disposal of fish so processed; or
the carrying and transhipping of fish taken with the use of Australian boats in areas of Papua New Guinea jurisdiction; and
prescribing short methods of reference to areas of Australian jurisdiction specified in the regulations or to classes of activities by way of fishing specified in the regulations and the purposes for which those methods of reference may be used; and
for providing for the furnishing of information relating to the persons on board a boat licensed under this Act that is in the Protected Zone; and
providing (in addition to the collection of information in the exercise or performance of other powers and functions under this Act) for the collection, by a person exercising powers or performing functions under this Act, of information relating to:
possible breaches of the laws of or of a foreign country; or
the control and protection of ’s borders; or
the administration and management of fisheries or marine environments; or
research or monitoring conducted, or proposed to be conducted, into fisheries or marine environments; and
providing for the disclosure, by a person exercising powers or performing functions under this Act, of information, including personal information, relating to:
possible breaches of the laws of or of a foreign country; or
the control and protection of ’s borders; or
the administration and management of fisheries or marine environments; or
research or monitoring conducted, or proposed to be conducted, into fisheries or marine environments.
The Minister shall cause to be compiled from the returns furnished under regulations made under subsection (1) and from any other source, statistics in relation to matters referred to in paragraph (1)(n) and shall publish or make available, in such manner as he or she thinks fit, so many of those statistics as he or she thinks fit.
Subject to subsection (4), information derived from returns furnished under regulations made under paragraph (1)(n) is not to be used for purposes other than statistical purposes and purposes set out in subparagraphs (1)(q)(i) to (iv).
A person is not excused from furnishing a return required by regulations made under this section, or including information in such a return, on the ground that the return or information might tend to incriminate him or her, but his or her return is not admissible in evidence against him or her in any proceedings, other than proceedings in respect of false information contained in the return or in respect of a refusal or failure to include information in the return.