Living Marine Resources Management Amendment Act 1997

Living Marine Resources Management Amendment Act 1997

An Act to amend the Living Marine Resources Management Act 1995

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

1.   Short title

This Act may be cited as the Living Marine Resources Management Amendment Act 1997 .

2.   Commencement

(1)  Section 14 commences on a day to be proclaimed.

(2)  The remaining provisions of this Act commence on the day on which this Act receives the Royal Assent.

3.   Principal Act

In this Act, the Living Marine Resources Management Act 1995 is referred to as the Principal Act.

4.    Section 3 amended (Interpretation)

Section 3 of the Principal Act is amended as follows:

(a) by inserting the following definition after the definition of conviction :

corresponding law means –

(a) the Commonwealth Act; and

(b) the Export Control Act 1982 of the Commonwealth; and

(c) a law of another State or a Territory of the Commonwealth that relates to the management or protection of living marine resources;

(b) by inserting the following definition after the definition of examine :

export means to transport beyond State waters;

(c) by omitting the definition of fishing body and substituting the following definition:

fishing body means a body corporate or an association certified as a fishing body under section 25 ;

(d) by inserting the following definition after the definition of handling licence :

import means to transport from beyond State waters to within State waters;

5.    Section 4 amended (Meaning of fish)

Section 4(2) of the Principal Act is amended as follows:

(a) by omitting from paragraph (e) "sea-cumbers" and substituting "sea-cucumbers";

(b) by omitting from paragraph (i) "centophores" and substituting "ctenophores".

6.   Section 7 amended (Purpose and objectives)

Section 7(1) of the Principal Act is amended by inserting the following paragraph after paragraph (b):

(ba) take account of a corresponding law; and

7.    Section 20 amended (Delegation)

Section 20(2)(b) of the Principal Act is amended by omitting " sections 22 and 164 " and substituting " section 164 ".

8.   Section 25 substituted and section 26 repealed

Sections 25 and 26 of the Principal Act are repealed and the following section is substituted:

25.   Fishing bodies

(1)  The Minister may issue a certificate certifying that a body corporate is a fishing body if satisfied that it represents the interests of participants in –

(a) the fishing industry or part of the fishing industry; or

(b) a fishery; or

(c) the marine farming industry or part of the marine farming industry; or

(d) any combination of these.

(2)  The Minister may issue a certificate certifying that an association is a fishing body if satisfied that it represents the interests of participants in –

(a) the fishing industry or part of the fishing industry; or

(b) a fishery; or

(c) the marine farming industry or part of the marine farming industry; or

(d) any combination of these.

(3)  The Minister may revoke a certificate if no longer satisfied as to the matters referred to in this section.

9.   Section 40 amended (Miscellaneous matters)

Section 40(1) of the Principal Act is amended by inserting the following paragraph after paragraph (b):

(ba) giving effect to any agreement under section 162 ;

10.    Section 40A amended (Rules relating to fish processing)

Section 40A of the Principal Act is amended as follows:

(a) by inserting the following paragraphs after paragraph (c) :

(ca) the notification of the receipt, dispatch, import or export of fish;

(cb) the notification of the time and manner of –

(i) taking possession of fish at any place; and

(ii) the arrival or departure of fish from a place where the fish are processed or stored; and

(iii) the transport of fish to or from a place; and

(iv) the transfer of possession of fish to any person at any place;

(b) by inserting in paragraph (d) "transported, exported," before "received".

11.    Section 40B amended (Rules relating to handling)

Section 40B of the Principal Act is amended as follows:

(a) by inserting the following paragraphs after paragraph (c) :

(ca) the notification of the receipt, dispatch, import or export of fish;

(cb) the notification of the time and manner of –

(i) taking possession of fish at any place; and

(ii) the arrival or departure of fish from a place where the fish are processed or stored; and

(iii) the transport of fish to or from a place; and

(iv) the transfer of possession of fish to any person at any place;

(b) by inserting in paragraph (e) "transported, exported," before "received".

12.    Section 60 amended (Fishing licence)

Section 60(2) of the Principal Act is amended by omitting paragraph (b) and substituting the following paragraphs:

(b) a person who carries out an activity authorised by a licence that has been leased, sub-leased or lent under section 87 ; or

(ba) a person who carries out any activity specified in subsection (1) , other than taking fish by spear or diving, under the supervision of the holder of a fishing licence or a supervisor; or

13.    Section 64 amended (Marine farming licence)

Section 64 of the Principal Act is amended as follows:

(a) by inserting the following subsection after subsection (1) :

(1A)  Subsection (1) does not apply to –

(a) a person who carries out any activity specified in that subsection under the supervision of the holder of a marine farming licence or a supervisor at a place specified on that licence; or

(b) a person who is authorised to use a marine farming licence by means of a sub-lease under section 74 of the Marine Farming Planning Act 1995 at a place specified on that licence; or

(c) a person who is under the supervision of a person referred to in paragraph (b) .

(b) by inserting the following subsection after subsection (4) :

(4A)  Subsection (4)(a) does not apply to a person who is the owner of the area to which the application for the marine farming licence relates.

14.    Section 67 amended (Fish processing licence)

Section 67 of the Principal Act is amended as follows:

(a) by omitting from subsection (1) "fish for commercial purposes" and substituting ", for commercial purposes, a prescribed amount of fish of a prescribed species in a prescribed period";

(b) by omitting subsection (2) and substituting the following subsection:

(2)  Subsection (1) does not apply to the processing of fish –

(a) on any vessel used to take the fish by a person authorised to take the fish with that vessel; or

(b) for sale by retail to the public or served as meals to the public in, or from, a place; or

(c) by the holder of a marine farming licence if the fish are produced by the holder under the lease specified in that licence; or

(d) by the holder of a fishing licence if the fish are caught by the holder under that licence; or

(e) by a person under the supervision of the holder of a fish processing licence at the place at which the fish may be processed under the licence.

15.    Section 68 amended (Processing fish)

Section 68(3) of the Principal Act is amended by omitting the penalty and substituting the following penalty:

Penalty:  Fine not exceeding 500 penalty units or imprisonment for a term not exceeding 2 years, or both.

16.    Section 69 amended (Storing fish)

Section 69 of the Principal Act is amended by omitting "store fish of a prescribed class that are to be" and substituting "hold or store live or dead fish of a prescribed class that have been, are being or are to be".

17.   Section 71 amended (Handling licence)

Section 71 of the Principal Act is amended by inserting the following subsection after subsection (1):

(1A)  Subsection (1) does not apply to a person who carries out any activity specified in that subsection under the supervision of the holder of a handling licence.

18.    Section 77 amended (Applications)

Section 77 of the Principal Act is amended as follows:

(a) by omitting from subsection (2) "or a corporation" and substituting ", a corporation or a trustee";

(b) by inserting the following subsection after subsection (2) :

(2A)  Subsection (2) does not apply in respect of a marine farming licence held by a partnership, corporation or trustee.

19.    Section 78 amended (Grant of licence)

Section 78(1) of the Principal Act is amended as follows:

(a) by inserting ", subject to any condition the Minister determines," after "licence";

(b) by omitting from paragraph (b) "or any other Act" and substituting "Act, any other Act or a corresponding law".

20.    Section 81 amended (Renewal of licence)

Section 81(2)(b) of the Principal Act is amended by omitting "or any other Act" and substituting "Act, any other Act or a corresponding law".

21.    Section 82 amended (Transfer of licence)

Section 82 of the Principal Act is amended by omitting subsection (2) and substituting the following subsections:

(2)  The Minister may grant an application for the transfer of a licence to another person if satisfied that –

(a) the other person has complied with this Act; and

(b) the other person, within 5 years before the date of the application, has not been convicted of any offence under this Act, any other Act or a corresponding law which the Minister considers relevant to the holding of the licence; and

(c) the other person is not disqualified from holding the licence; and

(d) granting the application is not likely to contravene a management plan; and

(e) there are no environmental or resource constraints in granting the application; and

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

(g) the applicant has paid the appropriate fees and charges.

(3)  The Minister may refuse to grant the transfer of a licence if not satisfied as required under subsection (2) .

(4)  The Minister may defer a decision in respect of an application for the transfer of a licence to another person if –

(a) the applicant or the other person has been charged with an offence under this Act, a corresponding law or any other Act which the Minister considers relevant; and

(b) the charge has not been determined at the time the application was made –

until the charge is determined.

22.   Section 83 amended (Variation of licence)

Section 83 of the Principal Act is amended by omitting subsection (1) and inserting the following subsections:

(1)  The Minister may vary a licence –

(a) on application and payment of a prescribed fee; or

(b) if the Minister considers it necessary or desirable to do so.

(1A)  The Minister may only vary a licence under subsection (1)(a) if satisfied that –

(a) the holder of the licence has complied with this Act; and

(b) the holder of the licence, within 5 years before the date of the application, has not been convicted of any offence under this Act, any other Act or a corresponding law which the Minister considers relevant to the holding of the licence; and

(c) varying the licence is not likely to contravene a management plan; and

(d) varying the licence is not likely to contravene a management development plan under the Marine Farming Planning Act 1995 ; and

(e) there are no environmental or resource constraints in varying the licence; and

(f) the holder of the licence has paid the appropriate fees and charges.

(1B)  The Minister may refuse to vary a licence if not satisfied as required under subsection (1A) .

(1C)  The Minister may defer a decision in respect of an application to vary a licence if –

(a) the holder of the licence has been charged with an offence under this Act, a corresponding law or any other Act the Minister considers relevant; and

(b) the charge has not been determined at the time the application was made –

until the charge is determined.

23.    Section 86 amended (Conditions on renewal, variation or transfer of licence)

Section 86 of the Principal Act is amended by omitting subsection (4) .

24.   Section 86A inserted

After section 86 of the Principal Act, the following section is inserted:

86A.   Compliance with conditions

A person must not contravene or fail to comply with a condition of a licence.

Penalty:  Fine not exceeding 500 penalty units or imprisonment for a term not exceeding 2 years, or both, and a daily fine not exceeding 50 penalty units.

25.    Section 89 amended (Supervision of activities)

Section 89 of the Principal Act is amended as follows:

(a) by omitting subsection (1) and substituting the following subsection:

(1)  The holder of a licence must ensure that any activity carried out under the authority of the licence is supervised by a supervisor, a person designated under subsection (7) or under a form of supervision approved under subsection (5) .

Penalty:  Fine not exceeding 500 penalty units or imprisonment for a term not exceeding 2 years, or both, and a daily fine not exceeding 50 penalty units.

(b) by inserting in subsection (2) the following paragraph after paragraph (b):

(ba) a person approved to use a licence under section 87 ; or

(c) by omitting subsection (4) and substituting the following subsection:

(4)  A supervisor must ensure that any activity carried out under a licence complies with this Act.

Penalty:  Fine not exceeding 500 penalty units or imprisonment for a term not exceeding 2 years, or both, and a daily fine not exceeding 50 penalty units.

(d) by inserting the following subsections after subsection (5) :

(6)  Subsection (2)(b) does not apply to the holder of a marine farming licence that is a partnership, corporation or trustee.

(7)  If the holder of a marine farming licence is a partnership, corporation or trustee the holder must –

(a) designate a person to supervise any activity for which the licence is required; and

(b) if required by a fisheries officer to do so, identify that person.

Penalty:  Fine not exceeding 500 penalty units or imprisonment for a term not exceeding 2 years, or both, and a daily fine not exceeding 50 penalty units.

26.    Section 90 amended (Suspension of licence)

Section 90(1) of the Principal Act is amended as follows:

(a) by inserting "or cancel" after "suspend";

(b) by inserting in paragraph (a) "or the Fisheries Act 1959 " after "Act";

(c) by omitting from paragraph (b) "in another State or Territory of the Commonwealth or" and substituting "under a corresponding law or under legislation of".

27.   Section 91 amended (Cancellation of licence)

Section 91 of the Principal Act is repealed.

28.    Section 138 amended (Activities causing detrimental effect)

Section 138 of the Principal Act is amended by omitting "in a marine resources protected area".

29.    Section 152 amended (Management of fishery by Joint Authority)

Section 152 of the Principal Act is amended as follows:

(a) by inserting in subsection (2)(b) ", rules, orders or notices" after "regulations";

(b) by omitting from subsection (3) "or regulations" and substituting ", regulations, rules, orders or notices";

(c) by omitting from subsection (4) "If" and substituting "Subject to sections 153(6) and 292(2) , if".

30.   Section 153 amended (General functions and powers of Joint Authority)

Section 153 of the Principal Act is amended by inserting the following subsection after subsection (5):

(6)  Any rules made by a Joint Authority in the exercise of a power under subsection (5) may provide that any rules made under Part 3 apply to a fishery managed by the Joint Authority.

31.   Part 7, Division 3 heading amended

The heading to Division 3 of Part 7 of the Principal Act is amended by inserting "Commonwealth and" after "with".

32.    Section 162 amended (Agreements with Commonwealth and other States)

Section 162(1) of the Principal Act is amended as follows:

(a) by omitting "another State" and substituting "the Commonwealth, another State or a Territory of the Commonwealth";

(b) by omitting from paragraph (b) "one State" and substituting "a State or Territory of the Commonwealth";

(c) by omitting from paragraph (c) "for under legislation of that other State" and substituting "under a corresponding law";

(d) by inserting the following paragraphs after paragraph (c) :

(ca) the obtaining of any document or record required to be kept under a corresponding law relating to the possession, transportation, import, export, processing or handling of fish;

(cb) the inspection within any other State or Territory of the Commonwealth of any fish taken, processed, handled, transported, possessed or otherwise dealt with in State waters;

(e) by inserting in paragraph (d) "or a corresponding law" after "Act".

33.    Section 174 amended (Entry and inspection of land and premises)

Section 174 of the Principal Act is amended as follows:

(a) by inserting in subsection (1)(e) "under this Act or a corresponding law" after "kept";

(b) by inserting in subsection (2)(a) "or a corresponding law" after "Act";

(c) by inserting in subsection (2)(b) "or a corresponding law" after "Act".

34.   Section 177 amended (Entry and search of train and aircraft)

Section 177 of the Principal Act is amended as follows:

(a) by inserting in subsection (1)(b) "or a corresponding law" after "Act";

(b) by inserting in subsection (2)(b) "or a corresponding law" after "Act".

35.    Section 181 amended (Stopping vessel or vehicle)

Section 181 of the Principal Act is amended by omitting subsection (2) .

36.    Section 183 amended (Detaining vessel)

Section 183(1) of the Principal Act is amended by inserting "or a corresponding law" after "Act".

37.   Section 189 amended (Opening and unlocking vessel, door or container)

Section 189 of the Principal Act is amended by inserting in subsection (2)(b) "or a corresponding law" after "Act".

38.    Section 190 amended (Production of things)

Section 190 of the Principal Act is amended by inserting "or a corresponding law" after "Act".

39.    Section 191 amended (Production of records and documents)

Section 191(1) of the Principal Act is amended as follows:

(a) by inserting ", within a specified period" after "produce";

(b) by inserting in paragraph (a) "or a corresponding law" after "Act".

40.    Section 192 amended (Production of authorisation)

Section 192 of the Principal Act is amended as follows:

(a) by inserting in paragraph (a) "within a specified period" after "hold";

(b) by inserting in paragraph (b) "within a specified period" after "vessel", secondly occurring.

41.   Section 194 amended (Examination and inquiry)

Section 194 of the Principal Act is amended by inserting "or a corresponding law" after "Act", twice occurring.

42.    Section 196 amended (Information requirements)

Section 196 of the Principal Act is amended as follows:

(a) by inserting in subsection (1)(b)(ii) "or a corresponding law" after "Act";

(b) by inserting in subsection (2) "or a corresponding law" after "Act".

43.    Section 200 amended (Seizure of fish, vessels and other things)

Section 200 of the Principal Act is amended as follows:

(a) by inserting in paragraph (a) "or a corresponding law" after "Act";

(b) by inserting in paragraph (f) "or a corresponding law" after "Act".

44.   Section 232 amended (Return of seized things)

Section 232 of the Principal Act is amended as follows:

(a) by omitting subsections (1), (2), (3) and (4) and substituting the following subsections:

(1)  A person may apply to the Secretary for the return of any thing seized from the person.

(2)  An application is to be –

(a) in writing; and

(b) made within –

(i) 3 months after the seizure; or

(ii) 6 weeks after proceedings are discontinued or the person is acquitted.

(3)  The Secretary may –

(a) approve an application if satisfied that –

(i) proceedings for an alleged offence in respect of which any thing was seized were not instituted and are not to be instituted; and

(ii) the circumstances warrant the approval; or

(b) refuse to approve the application if not so satisfied.

(4)  The Secretary must approve an application by a person if proceedings are discontinued or the person is acquitted.

(b) by omitting from subsection (5) "the Secretary is to pay the applicant" and substituting "the applicant is to be paid".

45.   Section 233 amended (Live fish returned to water)

Section 233(4) of the Principal Act is amended by inserting "(1)(b) and (c)" after "section 227".

46.    Section 258 amended (Use of foreign boat)

Section 258(2) of the Principal Act is amended by inserting "or that the person was using the foreign boat for recreational fishing" after "waters".

47.   Section 259 amended (Foreign boat equipped with apparatus)

Section 259(2) of the Principal Act is amended by inserting the following paragraph after paragraph (a):

(ab) the apparatus was for recreational fishing use only; or

48.    Section 262 amended (Possession, purchase or sale of illegally taken fish)

Section 262 of the Principal Act is amended as follows:

(a) by omitting from subsection (1) "or sell any fish taken, possessed, offered for sale or sold in contravention of this Act" and substituting ", sell or have possession of any fish taken or possessed in contravention of this Act or a corresponding law";

(b) by inserting in subsection (2) "or a corresponding law" after "Act".

49.    Section 267 amended (Illegally taking or possessing fish)

Section 267(2) of the Principal Act is amended by inserting "or suspend" after "reduce".

50.    Section 268 amended (Illegal use of apparatus)

Section 268 of the Principal Act is amended as follows:

(a) by omitting from subsection (1)(a) "crayfish pot" and substituting "rock lobster pot";

(b) by omitting from subsection (1) paragraph (b) and substituting the following paragraph:

(b) 2 penalty units for –

(i) each 50 metres of net used; and

(ii) each prescribed apparatus used.

(c) by inserting in subsection (2) "or suspend" after "reduce".

51.    Section 276 amended (Recovery of unpaid fees, charges and royalties)

Section 276(1) of the Principal Act is amended by inserting "or a penalty referred to in subsection (2) " after "royalty".

52.    Section 279 amended (Industry levy)

Section 279 of the Principal Act is amended as follows:

(a) by omitting from subsection (1) "in a fishery";

(b) by inserting the following subsection after subsection (1) :

(1A)  The Minister, after consultation with the relevant fishing body, may determine –

(a) that a levy is payable by persons undertaking any activity under an authorisation for the purpose of –

(i) research; or

(ii) any approved services provided by an approved organisation; and

(b) that a levy under paragraph (a) is no longer payable.

(c) by omitting from subsection (9) "a fishery" and substituting "that fishing body".

[Second reading presentation speech made in:

House of Assembly on 22 OCTOBER 1997

Legislative Council on 30 OCTOBER 1997]