FISHERIES MANAGEMENT ACT 1994

New South Wales Consolidated Acts

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FISHERIES MANAGEMENT ACT 1994

- As at 19 November 2008
- Act 38 of 1994

TABLE OF PROVISIONS

Long Title

PART 1 - PRELIMINARY

1. Name of Act
2. Commencement
3. Objects of Act
4. Definitions
5. Definition of “fish”
6. Definition of “fishery”
7. Waters to which Act applies

PART 1A - FISHERY MANAGEMENT STRATEGIES

7A. Definitions
7B. Declaration of designated fishing activities
7C. Fishery management strategy for designated activities
7D. Purpose of fishery management strategy
7E. Content of fishery management strategy
7F. Revision of draft strategy and publication of approved strategy following environmental assessment
7G. Management plan not to be made until completion of environmental assessment

PART 2 - GENERAL FISHERIES MANAGEMENT

Division 1 - Fishing closures

8. Closure of waters to fishing
9. Publication of notification of closures
10. Duration of closures
11. Amendment or revocation of closures
12. General provisions relating to closures
13. Regulations relating to closures
14. Offences relating to closures

Division 2 - Prohibited size fish, bag limits and protected fish

15. Declaration of prohibited size fish
16. Offences relating to prohibited size fish
17. Bag limits-taking of fish
18. Bag limits-possession of fish
19. Protected fish
20. Fish and waters protected from commercial fishing
21. Defences

Division 3 - Fishing gear

22. Registration of fishing gear
23. Regulations relating to fishing gear
24. Lawful use of nets or traps
25. Possession of illegal fishing gear

Division 4 - Total allowable catches

26. Establishment of TAC Committee
27. Composition and procedure of TAC Committee
28. Function of TAC Committee
29. TAC Committee not subject to Ministerial control
30. General considerations for TAC Committee
31. Public consultation by TAC Committee
32. Review of determinations by TAC Committee
33. Publication and duration of determinations
34. Implementation of determinations

Division 4A - Recreational fishing fee

34A. Definitions
34AA. Purpose of fishing fees
34B. Recreational fishing fee
34C. Recreational fishers required to pay fishing fee
34D. Periods for which fishing fee payable
34E. Amount of fishing fee
34F. Reductions in fishing fee payable
34G. Issue of receipt on payment of fishing fee
34H. Arrangements for collection of fishing fees and issue of receipts
34I. Fishing fee exemption certificates
34J. Offences

Division 4B - Acquisition of commercial fishing entitlements

34K. Purpose of Division
34L. Declaration by Minister of acquisition of entitlements
34M. Consultation on proposed acquisition declaration
34N. Termination of commercial fishing entitlements following declaration of acquisition
34O. Entitlement to compensation for acquired entitlements

Division 4C - Fishing businesses

34P. Definitions
34Q. Fishing business determinations
34R. Allocation of fishing business number
34S. Register of fishing business determinations
34T. Fishing business transfer rules

Division 5 - General

35. Possessing fish illegally taken
36. Defence for accidental etc taking of fish
37. Defence-special permits for research or other authorised purposes
37A. Defence-permits authorising sale of fish for charitable purposes
38. Right to fish in certain inland waters
39. Obstruction of recognised fishing grounds
40. Regulations relating to general management of fisheries

PART 3 - COMMERCIAL SHARE MANAGEMENT FISHERIES

Division 1 - Overview

41. Staged implementation of share management fisheries
41A. Categories of share management fishery

Division 2 - Declaration of share management fisheries

42. Declaration of share management fisheries
43. Consultation with industry
44. Omission of share management fishery
45. Redefinition of share management fishery

Division 2A - Termination and conversion of category 2 share management fisheries

45A. Termination of category 2 share management fishery
45B. Regulations relating to terminated fisheries
45C. Conversion of category 2 share management fishery to category 1
45D. Poll of shareholders
45E. General provisions relating to conversion

Division 3 - Issue of shares

46. Invitation for shares
47. Application for shares
48. Provisional issue of shares to applicants
49. Who may hold shares
50. Method of determining eligibility and entitlement to shares
51. Catch history
52. Final issue of shares
52A. Shares subject to appeal

Division 4 - Limited access to fishery after issue of shares

53. Commencement of limited access to fishery
54. Limiting access to shareholders etc before commencement of management plan
55. Fishery that is existing restricted fishery

Division 5 - Management plans

56. Preparation of draft management plan
57. Content of management plan
57A. Supporting plan
58. Public and industry consultation
59. (Repealed)
60. Making of plan by regulation
61. Commencement of management plan or supporting plan
62. Plan prevails over other regulations and closures
63. Fisheries reviews-new plan
64. Amendment of plan
65. Contravention of plan

Division 6 - Fishing and other shareholding rights

66. Who may fish in share management fisheries after commencement of management plan
67. Minimum shareholding required to fish after commencement of management plan
68. Endorsements on licences
69. Nomination of commercial fisher by holder of shares
70. Special endorsements to take fish in share management fishery
71. Transfer and other dealings in shares
71A. Issue of further classes of shares in fishery
72. Maximum shareholding permitted
73. Duration of shareholding-category 1 share management fishery
73A. Duration of shareholding-category 2 share management fishery
74. Surrender of shares
75. Forfeiture of shares for certain contraventions of Act

Division 7 - Management charges and community contributions

76. Management charges
77. Community contribution for access to category 1 share management fishery
77A. Rental charge for access to category 2 share management fishery

Division 8 - Allocation of total allowable commercial catch among shareholders

78. Allocation of total allowable catch among shareholders in fishery
79. Transfer of allocations
80. Carry over to, or borrowing from, future allocations
81. Payment for fish caught in excess of allocation or forfeiture of shares

Division 9 - Share Management Fisheries Appeal Panel

82. Establishment of Panel
83. Composition and procedure of Panel
84. Making of appeals
85. Hearing and determination of appeals
86. Procedure at appeals
87. Power to summon witnesses and take evidence
88. Power to obtain documents

Division 10 - Share Management Fisheries Register

89. Establishment and keeping of Share Register
90. Registration of shares
91. Registration of dealings in shares
92. Trusts not registrable
93. Power of holder to deal with shares
94. Surrender of shares to be noted in Share Register
95. Cancellation or forfeiture of shares to be noted in Share Register
96. Director-General not concerned as to the effect of documents lodged for registration
97. Inspection of Share Register and registered documents
98. Evidentiary provisions
99. Correction of Share Register
100. Exculpation for liability for anything done under this Division
101. Offences under the Division

PART 4 - LICENSING AND OTHER COMMERCIAL FISHERIES MANAGEMENT

Division 1 - Commercial fishing licences

102. Commercial fishers required to be licensed
103. Who may hold licence
104. Provisions relating to licensing of commercial fishers
105. Evidentiary provision
106. (Repealed)

Division 2 - Commercial fishing boats

107. Commercial fishing boat to be licensed
108. Provisions relating to licensing of boats
109. Evidentiary provision
110. Crew of fishing boats

Division 3 - Exploratory, developmental and other restricted fisheries

111. Declaration of restricted fisheries
112. Commercial fishing licence to be endorsed for restricted fishery
113. Restriction on the number of licences endorsed for restricted fishery
114. Endorsements not transferable
115. Compensation not payable
115A. Annual contribution to industry costs
116. Other regulations

Division 4 - Fish receivers

117. Fish receiver to be registered
118. Provisions relating to registration
119. Fish receiver to supply information
120. Evidentiary provision

Division 5 - Fish records

121. Records to be made by commercial fishers
122. Records to be made by employers of commercial fishers
122A. Records to be made by fish receivers
123. Records of sale and possession of fish
124. False records

Division 6 - Reviews by Administrative Decisions Tribunal

125. Definition of “relevant authority”
126. Applications to Administrative Decisions Tribunal for reviews of certain decisions
127. (Repealed)

PART 4A - CHARTER FISHING MANAGEMENT

127A. Meaning of charter fishing boat
127B. Certain charter fishing boats to be licensed
127C. Provisions relating to licensing of charter fishing boats
127D. Annual contribution to industry costs
127E. Charter fishing boat operators to make records of fishing activities
127EA. Records of recreational fishing activities-licence holders
127EB. False records
127F. Appeal rights

PART 5 - CO-OPERATION WITH COMMONWEALTH AND OTHER STATES IN FISHERIES MANAGEMENT

Division 1 - Preliminary

128. Definitions

Division 2 - Joint Authorities

129. Powers and functions of Minister
130. Judicial notice
131. Functions of Joint Authority
132. Delegation
133. Procedure of Joint Authorities
134. Report of Joint Authority

Division 3 - Arrangements with respect to the management of particular fisheries

135. Arrangement for management of certain fisheries
136. Application of this Act to fisheries in accordance with arrangements
137. Functions of Joint Authority
138. Joint Authority to exercise certain powers instead of Minister
139. Application of certain provisions relating to offences
140. Presumption relating to certain statements
141. Regulations

Division 4 - State agreements

141A. Power to enter into agreements
141B. Functions under agreements

PART 6 - AQUACULTURE MANAGEMENT

Division 1 - Preliminary

142. Definition of “aquaculture”
143. Aquaculture industry development plans

Division 2 - Aquaculture permits

144. Aquaculture prohibited except in accordance with a permit
145. Applications for permits
146. Issue or refusal of permit
147. Permit to specify area and type of aquaculture
148. Variation of permits
149. Authority to take fish
150. Inconsistency with lease
151. Duration of permits
152. Conditions of permits
153. Holder of permit to provide information to the Minister
154. Register of permits
155. Change in particulars to be notified
156. Annual contribution to cost of administration or research or to other industry costs
157. Annual contributions to be held in trust accounts
157A. Minister may appoint advisory council as committee
158. Overdue contribution
159. Power to cancel or suspend a permit without a hearing
160. Power to cancel or suspend a permit after a hearing
161. Power to declare person to be a disqualified person for the purposes of this Part
162. Permit area to be maintained in a tidy condition

Division 3 - Leases of public water land for aquaculture

163. Grant of aquaculture lease
164. Rights conferred by lease
165. Lease rentals
166. Overdue rental
167. Renewal of lease
168. Preferential rights
169. Survey of leased area
170. Lessee may fence leased area in certain cases
171. Improvements on an expired lease
172. Subletting with Minister’s consent
173. Transfer with Minister’s consent
174. Surrender of lease
175. Minister can determine access way
176. Power to withdraw land from lease
177. Power of Minister to cancel leases in certain cases
178. Areas of public water land may be excluded from leasing
179. Protection of leased areas
180. Leased area under Real Property Act 1900

Division 4 - Diseased fish and marine vegetation

181. Definitions
182. Diseases declared for the purposes of this Division
183. Minister may declare quarantine area
184. Intentional or reckless communication of declared disease to live fish or marine vegetation
185. Sale of diseased fish or marine vegetation prohibited
186. Diseased fish or marine vegetation not to be deposited in New South Wales waters
187. Regulations relating to diseased fish and marine vegetation

Division 5 - Miscellaneous provisions

188. Minister may order restoration work to be carried out in relation to illegal operations on aquaculture farm
189. When aquaculture operations can be closed
190. Special provisions relating to oysters on public water or other land
191. Regulations

PART 7 - PROTECTION OF AQUATIC HABITATS

Division 1 - Habitat protection plans

192. Preparation of habitat protection plans
193. Implementation of habitat protection plans

Division 2 - Aquatic reserves

Subdivision 1 - Declaration of aquatic reserves

194. Declaration of aquatic reserves
195. Consent required for declarations
195A. Consent of owners
195B. Meaning of “diligent inquiry”
195C. Existing interests and changes in ownership
196. Revocation or variation of declaration
197. Regulations relating to aquatic reserves
197A. Management plans for aquatic reserves

Subdivision 2 - Development and activities within aquatic reserves

197B. Mining in aquatic reserve prohibited
197C. Development within aquatic reserve-application of EPA Act
197D. Development affecting aquatic reserve-application of EPA Act

Subdivision 3 - Aquatic reserve notifications

197E. Prohibition of activities in aquatic reserves
197F. Publication of aquatic reserve notification
197G. General provisions relating to aquatic reserve notifications
197H. Amendment or revocation of notification
197I. General provisions relating to notification
197J. Regulations relating to notifications
197K. Offence provisions

Division 3 - Dredging and reclamation

198. Objects of Division
198A. Definitions
198B. Application of Division
199. Circumstances in which a public authority (other than local authority) may carry out dredging or reclamation
200. Circumstances in which a local government authority may carry out dredging or reclamation
201. Circumstances in which a person may carry out dredging or reclamation work
202. Appeal to the Land and Environment Court
203. Minister may order carrying out of certain work

Division 4 - Protection of mangroves and certain other marine vegetation

204. Application and interpretation
204A. Marine vegetation protected from any harvesting or other harm
204B. Marine vegetation protected from any commercial harvesting
205. Marine vegetation-regulation of harm
205A. Exemptions
205B. Activities harmful to marine vegetation

Division 5 - Protection of spawning of salmon, trout and certain other fish

206. Protection of spawning areas of salmon, trout and certain other fish
207. Prohibition on taking or disturbing salmon, trout and certain other fish while spawning
208. Defence for authorised activities

Division 6 - Noxious fish and noxious marine vegetation

209. Declaration of noxious fish and noxious marine vegetation
210. Sale of noxious fish or noxious marine vegetation prohibited
211. Possession of noxious fish or noxious marine vegetation prohibited
212. Use of aquaculture permit to control noxious fish or noxious marine vegetation
213. Destruction of noxious fish or noxious marine vegetation
214. Search warrant

Division 7 - Release or importation of fish

215. Purpose of Division
216. Releasing live fish into waters prohibited
217. Importation of live fish

Division 8 - Miscellaneous provisions

218. Fishways to be provided in construction of dams and weirs
219. Passage of fish not to be blocked
220. Provisions relating to permits under this Part

PART 7A - THREATENED SPECIES CONSERVATION

Division 1 - Preliminary

220A. Objects of Part
220B. Definitions
220BA. Relationship of Part to Threatened Species Conservation Act 1995

Division 2 - Listing of threatened species, populations and ecological communities and key threatening processes

Subdivision 1 - Listing

220C. Lists
220D. Amendment of lists
220E. Identification of nationally threatened species and ecological communities
220F. Eligibility for listing of species
220FA. Listing of populations
220FB. Listing of ecological communities
220FC. Threatening processes eligible for listing as key threatening processes
220FD. Regulations prescribing criteria under this Part

Subdivision 2 - Procedure for listing

220G. Fisheries Scientific Committee responsible for lists
220H. Who may initiate action for listing
220I. How nominations made
220IA. Referral of nomination to Threatened Species Scientific Committee
220J. Consideration of nomination by Fisheries Scientific Committee
220K. Notification and consultation with respect to proposed determination of Fisheries Scientific Committee
220L. Fisheries Scientific Committee’s final determination
220M. Minister’s response to proposed final determination
220MA. Publication of final determination
220N. Provisional listing
220NA. Lists to be kept under review
220O. Protection measures apart from listing

Division 3 - Critical habitat of endangered species, populations and ecological communities and critically endangered species and ecological communities

220P. Habitat eligible to be declared critical habitat
220Q. Identification of critical habitat
220R. Publication of preliminary identification and consultation with other Ministers
220S. Matters to which Minister to have regard in declaring critical habitat
220T. Declaration of critical habitat by Minister
220U. Amendment or revocation of declaration of critical habitat
220V. Public authorities to have regard to critical habitat
220W. Maps of critical habitat
220X. Minister to keep register of critical habitat
220Y. Discretion not to disclose location of critical habitat
220Z. Effect of failure to comply with procedural requirements

Division 4 - Offences

220ZA. Harming threatened species, populations or ecological communities
220ZB. Buying, selling or possessing threatened species
220ZC. Damage to critical habitat
220ZD. Damage to habitat of threatened species, population or ecological community
220ZE. Regulations may prohibit certain actions on critical habitat
220ZF. Defences
220ZFA. Further defences
220ZFB. Defences relating to joint management agreements
220ZG. Court may order offender to restore critical habitat

Division 5 - Recovery plans and threat abatement plans

220ZH. Application of Division
220ZI. Director-General to prepare recovery plans for threatened species, populations and ecological communities
220ZJ. Director-General to prepare threat abatement plans
220ZJA. Joint preparation of recovery and threat abatement plans
220ZK. Priorities for recovery or threat abatement plans
220ZL. (Repealed)
220ZM. Guidelines for recovery or threat abatement plans
220ZN. Contents of recovery or threat abatement plans
220ZO. Public and other consultation concerning draft recovery or threat abatement plan
220ZP. Approval of recovery or threat abatement plan by Minister
220ZQ. Recovery and threat abatement plans to be published
220ZR. Review of recovery and threat abatement plans
220ZS. Ministers and public authorities to implement recovery and threat abatement plans
220ZT. Public authorities to report on implementation of recovery and threat abatement plans
220ZU. Notification of, and consultation concerning, proposed departures from recovery or threat abatement plan
220ZV. Reference of matters concerning departures to Ministers and Premier for settlement

Division 5A - Threatened Species Priorities Action Statements

220ZVA. What the Statement provides for
220ZVB. Director-General to prepare and adopt Priorities Action Statement
220ZVC. Public consultation on draft statement or amendments
220ZVD. Consideration of submissions by Director-General
220ZVE. Review to include report on achievements

Division 6 - Licensing and Ministerial orders

Subdivision 1 - Grant of licences

220ZW. Licence to harm threatened species, population or ecological community or damage habitat
220ZX. Application for licence
220ZY. Payment of licence processing fee
220ZZ. Significant effect on threatened species, populations or ecological communities, or their habitats
220ZZA. Assessment guidelines
221. Publication of licence application
221A. Matters that Director-General must take into account
221B. Determination of licence application
221C. Deemed approval
221D. Conditions and restrictions to licence
221E. Proposed variation of licence to be publicly notified
221F. Notification of licence determination
221G. Cancellation of licence
221H. Director-General to keep register of licences
221I. Appeal by applicant or person commenting on licence application

Subdivision 1A - Ministerial orders

221IA. Ministerial order to permit harm to threatened species etc
221IB. Minor amendments
221IC. Species impact statement
221ID. Public consultation
221IE. Matters that Minister must take into account
221IF. Making an order
221IG. Interim orders
221IH. Director-General to keep register of orders
221II. Revocation of an order
221IJ. Breaching conditions or restrictions
221IK. (Repealed)

Subdivision 2 - Species impact statements

221J. Form of species impact statements
221K. Content of species impact statement
221L. Director-General’s requirements
221M. Regulations
221N. Director-General may accredit persons to prepare assessments of species impact statements
221NA. Regulations

Division 7 - Stop work orders

221O. Director-General may make stop work order
221P. Prior notification of making of stop work order not required
221Q. Appeal to Minister
221R. Extension of stop work order
221S. Consultation about modification of proposed detrimental action
221T. Recommendations for further protective measures
221U. Stop work order prevails over other instruments

Division 8 - Joint management agreements

221V. Joint management agreements
221W. Contents of joint management agreements
221X. Publication of draft joint management agreement
221Y. Role of Fisheries Scientific Committee
221Z. Consideration of submissions by Minister

Division 9 - Fisheries Scientific Committee

221ZA. Establishment of Fisheries Scientific Committee
221ZB. Functions of Fisheries Scientific Committee
221ZC. Members of Fisheries Scientific Committee
221ZD. Fisheries Scientific Committee not subject to Ministerial control
221ZE. Provisions relating to members and procedure of Fisheries Scientific Committee

Division 10 - Biodiversity certification of native vegetation reform package

221ZF. Native vegetation reform package
221ZG. Biodiversity certification of native vegetation reform package
221ZH. Effect of biodiversity certification
221ZI. Suspension of certification in connection with implementation of package
221ZJ. Notification of certification, variation or suspension

Division 11 - Biodiversity certification of environmental planning instruments

221ZK. Biodiversity certification
221ZL. Certification can be conditional
221ZM. Effect of biodiversity certification
221ZN. Period of certification and extension
221ZO. Reassessment of biodiversity certification
221ZP. Suspension and revocation of certification
221ZQ. Notification of certification, suspension or revocation
221ZR. Concurrence can be conditional on voluntary conservation action
221ZS. Director-General may accredit persons to prepare assessments and surveys

PART 8 - ADMINISTRATION

Division 1 - The Minister and Director-General

222A. Minister and Director-General to administer Act in accordance with its objects
222B. Fisheries Administration Ministerial Corporation
223. Minister may acquire land
224. Acquisition of land for purposes of a future lease grant
225. Minister may carry out or assist research
226. Minister may accept gifts etc
227. Delegation by Minister
228. Delegation by Director-General

Division 1A - (Repealed)
None

Division 2 - Advisory bodies

229. Ministerial advisory bodies
230. Management Advisory Committees for fisheries
231. Regulations

Division 3 - Special fisheries trust funds

232. Definitions
233. Establishment of trust funds
234. Recreational Fishing (Freshwater) Trust Fund
235. Recreational Fishing (Saltwater) Trust Fund
236. Commercial Fishing Trust Fund
236A. Charter Fishing Trust Fund
237. Fish Conservation Trust Fund
238. Aquaculture Trust Fund
238A. General provisions relating to consultation on expenditure from trust funds
238B. Use of money in trust funds for environmental assessment and related expenses
238C. Use of money in trust funds for species impact statements
239. Report to Parliament on use of trust funds
239A. Investment of money in trust funds
239B. Separate accounting for research

PART 9 - ENFORCEMENT

Division 1 - Preliminary

240. Definitions
241. Engaging in commercial fishing activities
242. Power of seizure
242A. Access to information by fisheries officers

Division 2 - Appointment of fisheries officers

243. Appointment of fisheries officers by Minister
244. Police officers to be fisheries officers
245. Fisheries officers to have instruments of authority
246. Production of instruments of authority
247. Obstructing, impersonating etc fisheries officers

Division 3 - Powers of entry, search etc of fisheries officers

248. Power to board and search boats
249. Power to require gear to be removed from water
250. Power to enter and search premises
251. Power to detain and search vehicles
252. Entry into waters, and along banks etc
253. Entry into and examination of aquaculture farms
254. Entry into residential premises
255. Power to examine fishing gear or other equipment
256. Production of records relating to commercial fishing activities and fish receivers
257. Power to require production of fishing authority
258. Power to require information
259. False information
260. Issue of search warrants
261. Hot pursuit
262. Power of arrest
263. Care to be taken

Division 4 - Seizure

264. Seizure of things (other than boats and motor vehicles) connected with fisheries offence
265. Seizure of boats and motor vehicles
266. Seizure of fishing gear and other things (other than boats, motor vehicles or fish)
267. Seizure of fish
268. Reasonable cause for seizure a bar to action
269. Forfeiture of boats and motor vehicles by order of court
270. Return of boat or motor vehicle if relevant offence proceedings not taken
271. Conviction to operate as forfeiture of things (other than boats and motor vehicles)
272. Forfeiture of things (other than boats and motor vehicles) where no relevant offence proceedings taken
273. Return of things seized
274. Disposal of perishable things
275. Forfeited things to become the property of the State

Division 4A - Compliance audits

275A. Application of Division
275B. Nature of compliance audit
275C. Accreditation and regulation of compliance auditors
275D. Minister may require compliance audits by imposition of conditions on fishing authority
275E. Provisions relating to conditions for compliance audits
275F. Certification of audit report
275G. Offences
275H. Self-incriminatory information not exempt
275I. Use of information

Division 5 - Criminal proceedings

276. Penalty notices
277. Nature of proceedings for offences
278. Time within which proceedings may be commenced
279. Offences by corporations
280. Evidence relating to fishing authorities
281. Proof of lawful or reasonable excuse

Division 6 - Civil enforcement

282. Restraint of breaches of Act
282A. Enforcement of environmental assessment and management planning requirements

Division 7 - Prohibition orders

282B. Definitions
282C. Prohibition orders may be made against repeat offenders
282D. Provisions relating to making of prohibition order
282E. Duration, variation and revocation of prohibition order
282F. Appeal
282G. Offence of contravening order

PART 10 - MISCELLANEOUS

283. Annual reporting
283A. Disclosure of information
284. Public consultation procedure
285. Notes in the text
286. Act binds Crown
287. Native title rights and interests
288. Service of instruments
288A. Service of documents on native title holders
289. Regulations
290. Review of Act
291. Savings, transitional and other provisions
292. (Repealed)
SCHEDULE 1
SCHEDULE 1A
SCHEDULE 2
SCHEDULE 3
SCHEDULE 4
SCHEDULE 4A
SCHEDULE 5
SCHEDULE 6
SCHEDULE 6A
SCHEDULE 7
Schedule 8 (Repealed)

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