Fisheries Act 1994

An Act for the management, use, development and protection of fisheries resources and fish habitats, the management of aquaculture activities and helping to prevent shark attacks, and for related purposes

Long title amd 2006 No. 28 s 4

1Short title

This Act may be cited as the Fisheries Act 1994.

2Commencement

This Act commences on a day to be fixed by proclamation.

3Particular purposes of Act

(1)The main purpose of this Act is to provide for the use, conservation and enhancement of the community’s fisheries resources and fish habitats in a way that seeks to—

(a)apply and balance the principles of ecologically sustainable development; and

(b)promote ecologically sustainable development.

(2)In balancing the principles, each principle is to be given the relative emphasis appropriate in the circumstances.

(3)Despite the main purpose of this Act, a further purpose of this Act is to reduce the possibility of shark attacks on humans in coastal waters of the State adjacent to coastal beaches used for bathing.

(4)Subsections (1) and (3) do not limit the purposes of this Act.

(5)In this section—

ecologically sustainable development means using, conserving and enhancing the community’s fisheries resources and fish habitats so that—

(a)the ecological processes on which life depends are maintained; and

(b)the total quality of life, both now and in the future, can be improved.

precautionary principle means the principle that, if there is a threat of serious or irreversible environmental damage, lack of scientific certainty should not be used as a reason to postpone measures to prevent environment degradation, or possible environmental degradation, because of the threat.

principles of ecologically sustainable development means the following principles—

(a)enhancing individual and community wellbeing through economic development that safeguards the wellbeing of future generations;

(b)providing fairness within and between generations;

(c)protecting biological diversity, ecological processes and life-support systems;

(d)in making decisions, effectively integrating fairness and short and long-term economic, environmental and social considerations;

(e)considering the global dimension of environmental impacts of actions and policies;

(f)considering the need to maintain and enhance competition, in an environmentally sound way;

(g)considering the need to develop a strong, growing and diversified economy that can enhance the capacity for environmental protection;

(h)that decisions and actions should provide for broad community involvement on issues affecting them;

(i)the precautionary principle.

s 3 amd 1996 No. 59 s 32; 2000 No. 26 s 13 sch 2

sub 2002 No. 49 s 12

amd 2006 No. 28 s 5

3AHow particular purposes are to be primarily achieved

(1)The main purpose of this Act is to be primarily achieved by—

(a)giving the chief executive appropriate powers to perform the chief executive’s functions under this Act; and

(b)providing for the following—

(i)the management and protection of fish habitats;

(ii)the management of commercial, recreational and indigenous fishing;

(iii)the management of aquaculture.

(2)The further purpose of this Act under section 3(3) is to be primarily achieved by the chief executive establishing and managing a program for particular coastal waters of the State adjacent to coastal beaches used for bathing.

(3)The program is the shark control program.

s 3A ins 2002 No. 49 s 12

amd 2006 No. 28 s 6; 2014 No. 7 s 530

sdiv hdg ins 2001 No. 23 s 3

4Definitions

The dictionary in the schedule defines particular words used in this Act.

s 4 pres s 4 amd 2001 No. 23 s 3

sdiv hdg ins 2001 No. 23 s 5

5Meaning of fish

(1)Fish means an animal (whether living or dead) of a species that throughout its life cycle usually lives—

(a)in water (whether freshwater or saltwater); or

(b)in or on foreshores; or

(c)in or on land under water.

(2)Fish includes—

(a)prawns, crayfish, rock lobsters, crabs and other crustaceans; and

(b)scallops, oysters, pearl oysters and other molluscs; and

(c)sponges, annelid worms, bêche-de-mer and other holothurians; and

(d)trochus and green snails.

(3)However, fish does not include—

(a)crocodiles; or

(b)protected animals under the Nature Conservation Act 1992; or

(c)pests under the Pest Management Act 2001; or

(d)animals prescribed under a regulation not to be fish.

(4)Fish also includes—

(a)the spat, spawn and eggs of fish; and

(b)any part of fish or of spat, spawn or eggs of fish; and

(c)treated fish, including treated spat, spawn and eggs of fish; and

(d)coral, coral limestone, shell grit or star sand; and

(e)freshwater or saltwater products declared under a regulation to be fish.

(5)A regulation under subsection (4)(e) may declare a product to be fish only—

(a)for a particular provision of this Act; or

(b)if the product is used for a particular purpose.

(6)Subsection (5) does not limit the Statutory Instruments Act 1992, section 24 or 25.

s 5 amd 2003 No. 82 s 15; 2004 No. 53 s 2 sch; 2006 No. 28 s 7

7Meaning of fishery

Fishery includes activities by way of fishing, including, for example, activities specified by reference to all or any of the following—

(a)a species of fish;

(b)a type of fish by reference to sex, size or age or another characteristic;

(c)an area;

(d)a way of fishing;

(e)a type of boat;

(f)a class of person;

(g)the purpose of an activity;

(h)the effect of the activity on a fish habitat, whether or not the activity involves fishing;

(i)anything else prescribed under a regulation.

8Meaning of marine plant

(1)Marine plant includes the following—

(a)a plant (a tidal plant) that usually grows on, or adjacent to, tidal land, whether it is living, dead, standing or fallen;

(b)material of a tidal plant, or other plant material on tidal land;

(c)a plant, or material of a plant, prescribed under a regulation or management plan to be a marine plant.

(2)Marine plant does not include a plant that is—

(a)prohibited matter or restricted matter under the Biosecurity Act 2014; or

Notes—

1See the Biosecurity Act 2014, schedule 1 or schedule 2.

2See also the note to the Biosecurity Act 2014, schedules 1 and 2.

(b)controlled biosecurity matter or regulated biosecurity matter under the Biosecurity Act 2014.

s 8 amd 2002 No. 12 s 329 sch 2; 2014 No. 7 s 531

9Meaning of quota

Quota includes a restriction on activities by way of fishing, including, for example, a restriction specified by reference to all or any of the following—

(a)a quantity of fish;

(b)a percentage of a quantity of fish;

(c)a period of time;

(d)an area;

(e)the length or another reference to the size of a boat;

(f)a quantity or type of fishing apparatus or aquaculture furniture;

(g)an activity affecting a fish habitat, whether or not the activity involves fishing;

(h)anything else prescribed under a regulation.

10Act binds all persons

This Act binds all persons, including the State.

11General application of Act

(1)This Act applies to persons, things, acts and omissions on or in—

(a)land within the limits of the State; and

(b)Queensland waters.

(2)However, this Act does not apply to—

(a)activities to which a Commonwealth law cooperative fishery applies; or

(b)the taking of fish, within the meaning of the Torres Strait Fisheries Act 1984 (Cwlth), for the purposes of a Commonwealth law Torres Strait cooperative fishery; or

(c)the landing in Queensland of fish taken under a Commonwealth fishing concession as mentioned in section 10(2)(c) of the Commonwealth Fisheries Act; or

(d)exclusive Commonwealth matters for a State law cooperative fishery; or

(e)the taking and keeping of fish under a collection authority issued under the Biodiscovery Act 2004.

(3)This Act also applies to—

(a)recreational fishing carried on in the part of the Australian fishing zone that is the adjacent area for Queensland by the use of an Australian boat; and

(b)activities in the Australian fishing zone to which a State law cooperative fishery applies.

(4)Subsection (3)(a) does not apply to recreational fishing regulated by a Commonwealth plan of management.

(5)Subsection (3)(b) does not apply to exclusive Commonwealth matters for the State law cooperative fishery.

(6)In this section—

adjacent area for Queensland has the meaning given by the Petroleum (Submerged Lands) Act 1967 (Cwlth).

Australian fishing zone has the meaning given by the Commonwealth Fisheries Act.

Commonwealth fishing concession means a fishing concession within the meaning of the Commonwealth Fisheries Act.

Commonwealth law cooperative fishery means a Commonwealth–State fishery managed under Commonwealth law.

Commonwealth law Torres Strait cooperative fishery means a fishery managed under Commonwealth law under an arrangement under the Torres Strait Fisheries Act 1984, part 3.

Commonwealth plan of management means a plan of management within the meaning of the Commonwealth Fisheries Act.

exclusive Commonwealth matter, for a State law cooperative fishery, means any of the following matters—

(a)foreign boats;

(b)operations on and from foreign boats;

(c)persons on foreign boats;

(d)for activities in the Australian fishing zone—matters that happened before the Commonwealth–State arrangement for the fishery took effect if Commonwealth law applies to the matters.

recreational fishing has the same meaning as in the Commonwealth Fisheries Act.

State law cooperative fishery means a Commonwealth–State fishery managed in accordance with State law.

s 11 amd 2004 No. 19 s 127

12When Act does not apply

This Act does not apply to—

(a)the unintentional taking of regulated fish or marine plants if the fish or plants are not intentionally or recklessly injured or damaged and are immediately put back; or

(b)the unintentional possession of regulated fish or marine plants by a person if the fish or plants are not intentionally or recklessly injured or damaged and the person can not, because of circumstances beyond the person’s control, put the fish or plants back immediately they come into the person’s possession; or

(c)the use of a hand net to lift from water fish taken by other fishing apparatus; or

(d)the use of a gaff to secure fish taken by other fishing apparatus.

13Exemptions from Act

(1)A regulation may exempt a person from this Act or a provision of this Act.

Examples—

1A regulation may exempt a person who keeps live fish, for sale, in a pet shop or restaurant from all provisions of the Act.

2A regulation may exempt a person from all provisions of the Act for the use or possession of specified fishing apparatus.

(2)The exemption may be given on conditions stated in the regulation.

(3)A person must not contravene a condition of an exemption that applies to the person.

Maximum penalty for subsection (3)—200 penalty units.

14Defence for Aborigines and Torres Strait Islanders for particular offences

(1)It is a defence in a proceeding against a person for an offence against this Act relating to the taking, using or keeping of fisheries resources, or the using of fish habitats, for the person to prove—

(a)the person is an Aborigine, who at the time of the offence was acting under Aboriginal tradition, or the person is a Torres Strait Islander, who at the time of the offence was acting under Island custom; and

(b)the taking, using or keeping of the fisheries resources, or the using of the fish habitats, was for the purpose of satisfying a personal, domestic or non-commercial communal need of the Aborigine or Torres Strait Islander; and

(c)depending on whichever of the following applies—

(i)for an offence relating to the taking or using of fisheries resources, or the using of fish habitats—the taking or using of the fisheries resources, or using of the fish habitats, was carried out using prescribed fishing apparatus in waters other than prescribed waters;

(ii)for an offence relating to the keeping of fisheries resources—

(A)the fisheries resources kept were taken using prescribed fishing apparatus in waters other than prescribed waters; and

(B)at the time of the offence, the fisheries resources were not in prescribed waters.

(2)However, subsection (1) is subject to a provision of a regulation that expressly applies to acts done under Aboriginal tradition or Island custom.

(3)In this section—

prescribed fishing apparatus means—

(a)fishing apparatus that is recreational fishing apparatus under a regulation under this Act; or

(b)fishing apparatus that is used under Aboriginal tradition or Island custom, and prescribed specifically under a regulation for the purpose of this section.

prescribed waters means waters—

(a)that are regulated waters under a regulation under this Act; and

(b)that are prescribed specifically under a regulation for the purpose of this section; and

(c)where the taking of any fish, or the possession of any fish taken, by any person is prohibited.

s 14 amd 2000 No. 26 s 13 sch 2; 2008 No. 41 s 4

pt hdg sub 1996 No. 59 s 34

15Minister may establish advisory bodies

The Minister may establish an advisory committee or other body to assist the Minister in the administration of this Act.

s 15 sub 1996 No. 59 s 34

20Chief executive’s functions

(1)The chief executive is, on behalf of the State, responsible under this Act for—

(a)the management, use, development and protection of aquaculture, marine plants, fish habitats and, coral limestone and fisheries resources generally; and

(b)fish ways.

(2)The other functions of the chief executive are—

(a)to ensure the fair division of access to fisheries resources for commercial, recreational and indigenous use; and

(b)to supervise and control the way, extent and conditions of producing, harvesting, treating, transporting and selling of fisheries resources for use in the State or elsewhere; and

(c)to ensure that economic efficiency is properly taken into account in developing management arrangements for fisheries resources; and

(d)the establishment and management of the shark control program in circumstances where the chief executive considers the program is necessary or desirable; and

(e)to conduct or support fisheries research and development; and

(f)to supply or support fisheries educational programs and codes of practice for fisheries management; and

(g)to examine, and advise the Minister on, issues affecting fisheries resources and fish habitats; and

(h)to examine, and advise the Minister on, the administration of this Act, and to make any recommendations the chief executive considers appropriate; and

(i)to ensure a function or power conferred, under this Act, on an entity is performed or exercised in a way that is consistent with the objectives of this Act; and

(j)to perform other functions given to the chief executive under an Act.

(3)The shark control program may be established or maintained despite the main purpose of this Act under section 3(1).

(4)To remove any doubt, it is declared that it is not a function of the chief executive to establish or manage the shark control program other than to the extent mentioned in subsection (2)(d).

(5)This Act does not limit the functions and powers of the chief executive under other laws.

s 20 amd 2000 No. 26 s 13 sch 2

(prev s 26(1)) reloc to s 20(1A)2000 No. 26 s 13 sch 2

amd 2003 No. 82 s 16; 2006 No. 28 s 8; 2014 No. 7 s 532

20APowers

(1)The chief executive may, for performing the chief executive’s functions—

(a)enter into contracts; and

Example—

contracts to establish or manage the shark control program

(b)acquire, deal with and dispose of property; and

(c)appoint agents and attorneys; and

(d)charge for services and facilities supplied; and

(e)join and take part in industry associations; and

(f)support financially or in another way an entity promoting or wanting to promote fisheries resources; and

(g)enter into agreements or arrangements with the Commonwealth, another State or an entity prescribed by regulation for the management, use, development or protection of fisheries resources; and

(h)formulate and operate arrangements (including funding) for adjusting the use of fisheries resources, including, for example, by adjusting the number of authorities for a fishery; and

(i)formulate fisheries restocking and enhancement programs; and

(j)perform, or arrange for the performance of, research, education and environmental programs; and

(k)do anything else necessary or convenient to be done for, or in connection with, the performance of the chief executive’s functions.

(2)Without limiting subsection (1), the chief executive has the powers given to the chief executive under an Act.

(3)The chief executive may exercise the chief executive’s powers inside and outside Queensland, including outside Australia.

s 20A (prev s 27) amd 2000 No. 26 s 13 sch 2

renum and reloc 2000 No. 26 s 13 sch 2

amd 2006 No. 28 s 9

21Chief executive may delegate

(1)The chief executive may delegate the chief executive’s functions under this Act to—

(a)a local government or an entity prescribed under a regulation (a prescribed entity); or

(b)an officer or employee of the public service; or

(c)an officer or employee of a local government or prescribed entity; or

(d)an officer or employee of the Commonwealth or another State.

(2)A delegation of a function to a local government or a prescribed entity may permit the subdelegation of the function.

(3)This section does not limit powers of delegation the chief executive has under other laws.

(4)In this section—

functions includes powers.

s 21 amd 2000 No. 26 s 13 sch 2; 2006 No. 28 s 10

22Regulation and guidelines about particular chief executive’s powers or functions

(1)A regulation may make provision about, or empower the chief executive to make guidelines about, any of the following, in relation to the chief executive’s powers or functions under this Act or the Planning Act—

(a)the policy objectives and criteria to which a person (the delegate) exercising a power delegated by the chief executive must have regard;

(b)the consequences of contravention of the regulation or guidelines.

(2)This section does not limit the Acts Interpretation Act 1954, section 27A.

s 22 amd 2004 No. 53 s 2 sch; 2003 No. 82 s 17; 2016 No. 27 s 235

pt hdg prev pt 4 hdg om 2000 No. 26 s 13 sch 2

pres pt 4 hdg ins 2016 No. 27 s 236

pt 4 div 1 hdg om 2000 No. 26 s 4

pt 4 div 2 hdg om 2000 No. 26 s 13 sch 2

pt 4 div 3 hdg om 2000 No. 26 s 13 sch 2

23Accepted development requirements for Planning Act

A regulation may, for the Planning Act, state the requirements (the accepted development requirements) that fisheries development must comply with to be categorised as accepted development under that Act.

s 23 prev s 23 om 2000 No. 26 s 4

pres s 23 ins 2016 No. 27 s 236

pt 5 div 6 hdg om 2014 No. 7 s 537

32Making management plans

(1)The chief executive may make a management plan for the following—

(a)a fishery;

(b)a fish habitat or declared fish habitat area;

(c)a fish way;

(d)fisheries resources;

(e)aquaculture.

(2)A management plan is subordinate legislation.

s 32 amd 2000 No. 26 s 13 sch 2; 2001 No. 23 s 6

34Management plan must be approved by Governor in Council

A management plan does not have effect until it has been approved by the Governor in Council.

35What management plan must deal with

A management plan must state its objectives and how they are to be achieved.

s 35 sub 2001 No. 23 s 8

36What management plan may deal with

The management plan may make provision about anything prescribed under a regulation for this section or the chief executive considers appropriate to deal with in the plan.

Examples of what the chief executive may consider appropriate to deal with—

1Fishing capacity of a fishery and its measurement.

2The way a fishery is to be managed, which may include, for example, the regulation of the following—

(a)fishing methods;

(b)taking of a species, type or quantity of fisheries resources;

(c)the use of a type, size or quantity of fishing apparatus;

(d)use of a type or number of boats;

(e)a period of fishing.

3Management of a fishery by a system of authorities and for any of the following in relation to the authorities—

(a)their issue;

(b)their conditions;

(c)whether they can or can not be amended, renewed or transferred;

(d)if they can be amended, renewed or transferred—conditions for the amendment, renewal or transfer;

(e)for their cancellation or suspension or for how the chief executive may cancel or suspend them.

4Procedures to be followed to select persons to whom authorities are to be issued.

5Obligations of holders of authorities which may include, for example, a requirement to install, maintain and use VMS equipment.

6Regulation of recreational activities in a fishery.

7Regulation of fishing for research purposes in a fishery.

8Formulation and funding of restructuring or adjustment schemes.

9Formulation and funding of fisheries restocking or enhancement programs.

10Research, education and environmental issues.

11Enforcement.

12Boundaries of, and buffer zones for, a fish habitat or declared fish habitat area.

13Regulation of development in a fish habitat or declared fish habitat area.

14How a fish way must be operated.

15How a fish habitat, declared fish habitat area or fisheries resources are to be managed or restored.

16Fish migration.

s 36 amd 1997 No. 73 s 27; 2000 No. 26 s 13 sch 2; 2001 No. 23 s 9

37Management plan may make declaration regulating particular matters

(1)Without limiting section 36, a management plan may make the declarations mentioned in this section (each a fisheries declaration).

(2)A fisheries declaration (a regulated fish declaration) may regulate the taking, purchase, sale, possession or use of particular fish.

Examples of matters that may be regulated under a regulated fish declaration—

1A limit may be placed on the size or number of a species or type of fish that may be taken, purchased, sold, used or possessed.

2The taking, possessing or selling of fish of a particular species or type may be prohibited.

3The fish may be regulated by way of fillet size or other form in which they may be possessed after they are taken.

(3)A fisheries declaration (a regulated fishing apparatus declaration) may regulate the purchase, sale, possession or use of particular fishing apparatus.

(4)A fisheries declaration (a regulated fishing method declaration) may regulate how fish may be taken.

(5)A fisheries declaration (a regulated waters declaration) may regulate all or any of the following in particular waters—

(a)the taking or possessing of fish;

(b)engaging in stated activities;

(c)using or possessing a boat, aquaculture furniture, fishing apparatus or anything else.

(6)However, a regulated waters declaration does not apply to an activity authorised by a development approval unless the declaration expressly states that it applies to the activity.

s 37 amd 2003 No. 82 s 18

sub 2006 No. 28 s 12

38Management plan may provide for quota

A management plan may prescribe, or authorise the issue of, a quota.

s 38 sub 2001 No. 23 s 10

38AManagement plan to protect things that are not fish

A management plan, including a fisheries declaration included in the management plan, may be made to protect things that are not fish.

Example—

A management plan may regulate taking or possessing fish in an area to protect dugong in the area.

s 38A ins 1997 No. 73 s 28

amd 2006 No. 28 s 13

39AEffect of repeal of management plan on authorities

If a management plan is repealed, authorities issued by the chief executive in relation to the plan end, unless the plan otherwise provides.

s 39A ins 2001 No. 23 s 10

41Management plan may provide penalty for contravention

A management plan may provide that contravention of the management plan is an offence and, if a penalty for the contravention is not otherwise provided under this Act, prescribe a maximum penalty of not more than 500 penalty units.

42Regulation may make provision about management plan matters

(1)Anything that may be declared by a management plan may also be declared by regulation.

(2)A regulation may also make provision about anything else about which provision may be made by a management plan.

(3)If there is an inconsistency between a regulation and a management plan, the regulation prevails to the extent of the inconsistency.

div hdg ins 2006 No. 28 s 16

sdiv 1 (ss 42A–42C) ins 2006 No. 28 s 16

42ARight to compensation

(1)This section applies to a person if—

(a)the person is, other than because of a temporary transfer, the holder of an authority (the eligible authority) that—

(i)is a licence or quota; and

(ii)authorises the taking of fish for trade or commerce in a fishery described under a regulation or management plan as a commercial fishery; and

(b)a regulation or management plan is amended after the commencement of this section (the relevant amendment); and

(c)because of the relevant amendment, an entitlement to take fisheries resources that the person had under the eligible authority immediately before the relevant amendment is lost or reduced.

(2)Subject to sections 42B and 42K, the person is entitled to be paid compensation by the State for the value of the loss or reduction.

(3)However, the compensation is only payable if, under subdivision 2, a claim for the compensation has been made and the chief executive has decided to grant the claim.

sdiv 1 (ss 42A–42C) ins 2006 No. 28 s 16

42BLimits to compensation payable

(1)The entitlement under section 42A arises only if the cause, or one of the causes, of the loss or reduction was—

(a)a reallocation, under the relevant amendment, of the entitlement to take fisheries resources to persons who do not hold an authority to which section 42A applies; or

(b)a restriction or prohibition, under the relevant amendment, of the exercise of the entitlement in an area, if the purpose of the restriction or prohibition was to protect a thing that is not fish.

(2)Compensation is not payable for the loss or reduction if—

(a)compensation under section 42A has already been paid for the loss or reduction to a previous or another holder of the eligible authority; or

(b)compensation is payable for a similar loss or reduction of an entitlement under another Act or law of the State, another State or the Commonwealth.

sdiv 1 (ss 42A–42C) ins 2006 No. 28 s 16

42CNo general right to compensation because of amendment

(1)To remove any doubt, it is declared that, other than as provided for under section 42A, no one has an entitlement under or in relation to this Act to claim or to be paid an amount from the State for or in connection with—

(a)the making, amendment or repeal of a regulation or management plan; or

(b)something previously permitted under a regulation or management plan becoming prohibited or regulated because of an amendment to the regulation or plan.

(2)Subsection (1) applies whether the amount is claimed as compensation, reimbursement or otherwise.

sdiv 1 (ss 42A–42C) ins 2006 No. 28 s 16

sdiv hdg ins 2006 No. 28 s 16

42DApplication of sdiv 2

This subdivision applies for a claim for compensation under section 42A.

s 42D ins 2006 No. 28 s 16

42ETime limit on making claim

The claim must be made within 6 months after the day the relevant amendment commences.

s 42E ins 2006 No. 28 s 16

42FRequirements for making claim

The claim must—

(a)be made in writing to the chief executive; and

(b)be signed by all holders of the eligible authority; and

(c)state each of the following—

(i)the entitlement to take fisheries resources the subject of the claim;

(ii)the ground under section 42B(1) on which the claim is made;

(iii)the amount of the compensation claimed;

(iv)how the claimant has worked out the amount.

s 42F ins 2006 No. 28 s 16

42GChief executive may require further information

(1)The chief executive may, by written notice to the claimant, require the claimant to give the chief executive within a stated reasonable period—

(a)additional information about, or a document relevant to, the claim; or

(b)a statutory declaration verifying any information included in the claim or any additional information required under paragraph (a).

(2)The notice may be given at any time before the claim is decided.

(3)If the claimant does not comply with the requirement within the following period the claimant is taken to have withdrawn the claim—

(a)generally—the period stated in the notice;

(b)if, within the period stated in the notice, the chief executive agrees in writing to a longer period to comply with the requirement—the longer period.

s 42G ins 2006 No. 28 s 16

42HDeciding claim

(1)Subject to sections 42I and 42J, the chief executive must, within a reasonable period after the making of the claim, decide—

(a)whether to grant or refuse the claim; and

(b)if the chief executive decides to grant the claim—the amount of the compensation payable.

(2)If the chief executive decides to refuse the claim or decides an amount of compensation that is less than the amount claimed or agreed to by the claimant, the chief executive must give the claimant an information notice for the decision.

(3)In deciding what is a reasonable period for subsection (1), regard must be had to—

(a)whether the chief executive may need to give a notice under section 42G or obtain, under section 42I, other information or evidence; and

(b)the period that may be needed to consider the information or document the subject of the notice or the information or evidence that may need to be obtained.

s 42H ins 2006 No. 28 s 16

amd 2009 No. 24 s 512

42IChief executive may obtain other information

(1)Before making the decision, the chief executive may obtain from a person other than the claimant any further information or evidence that the chief executive considers will help the making of the decision.

(2)If the chief executive obtains further information or evidence under subsection (1) and the chief executive proposes to act on the information or evidence adversely to the claimant—

(a)the chief executive must give the claimant a written notice stating—

(i)what the further information or evidence is; and

(ii)that the claimant may respond in writing to the further information or evidence within a stated reasonable period after the giving of the notice; and

(b)the chief executive must not make the decision unless the claimant has given the response or the following period has ended—

(i)generally—the period stated in the notice;

(ii)if, within the period stated in the notice, the chief executive agrees in writing to a longer period for the giving of the response—the longer period.

s 42I ins 2006 No. 28 s 16

42JAmount of compensation that may be decided

(1)The amount of the compensation decided may only be for—

(a)either—

(i)if the eligible authority continued in force after the commencement—the difference between its market value immediately before the commencement and its market value immediately after the commencement; or

(ii)if, under the relevant amendment, the eligible authority ended—its market value immediately before the commencement; and

(b)the loss, for no more than 3 years from the commencement, of probable taxable income from fishing lost or reduced because of the lost or reduced entitlement to take fisheries resources the subject of the claim.

(2)In working out the market value immediately before the commencement, any reduction in the value of the eligible authority caused by the making, or the prospect of the making, of the relevant amendment must be disregarded.

(3)In working out the lost or reduced fishing income, regard may be had only to income from fishing under the eligible authority as stated in taxation returns lodged by the claimant and relevant notices of assessment accompanying the claim or given to the chief executive by or for the claimant.

(4)If the chief executive considers—

(a)a ground on which the claim is made was not the sole cause of the loss or reduction claimed; and

(b)the other cause or causes of the loss or reduction were not causes for which compensation may be claimed under subdivision 1;

the chief executive may reduce the amount worked out under subsection (1) to reflect the other cause or causes.

(5)In this section—

commencement means when the relevant amendment commenced.

taxable income means taxable income under the Income Tax Assessment Act 1997 (Cwlth).

s 42J ins 2006 No. 28 s 16

42KRestriction on payment if someone other than the claimant has a registered interest in the eligible authority

If—

(a)the claim and an amount of compensation has been decided under this subdivision; and

(b)someone other than the claimant has a registered interest in the eligible authority;

the chief executive must not pay the claimant the amount unless the other person has agreed in writing to the making of the payment.

s 42K ins 2006 No. 28 s 16

div hdg sub 2006 No. 28 s 17

43Chief executive may make fisheries declarations

(1)Subject to section 45, the chief executive may make a fisheries declaration in an instrument other than a management plan.

(2)Subsection (1) does not limit section 37.

Note—

Section 37 provides for the types of fisheries declarations and what they may regulate.

s 43 amd 2000 No. 26 s 13 sch 2; 2003 No. 82 s 19

sub 2006 No. 28 s 18

44Declaration of quotas

(1)The chief executive may declare a quota for a fishery.

(2)A declaration (a quota declaration) may be made under subsection (1) for a fishery only if a quota has not been decided for the fishery under a management plan.

(3)Before making a quota declaration, the chief executive must take reasonable steps to engage in consultation about the declaration.

s 44 amd 2000 No. 26 s 13 sch 2

45Fisheries declaration is subordinate legislation

(1)A fisheries declaration under this division or a quota declaration is subordinate legislation.

(2)However, an emergency fisheries declaration is not subordinate legislation.

s 45 amd 2006 No. 28 s 19

45AFisheries declaration to protect things that are not fish

A fisheries declaration under this division may be made to protect things that are not fish.

Example—

A declaration may regulate taking or possessing fish in an area to protect dugong in the area.

s 45A ins 1997 No. 73 s 29

amd 2006 No. 28 s 20

46Emergency fisheries declarations

(1)A fisheries declaration under this division may be made because of an emergency (an emergency fisheries declaration).

(2)The chief executive may make an emergency fisheries declaration only if the chief executive is satisfied that urgent action is needed to meet a significant threat to fisheries resources or a fish habitat or another emergency.

(3)The declaration must state it is an emergency fisheries declaration and outline the nature of the emergency.

(4)The chief executive must publish the declaration in the gazette and may publish it in other ways the chief executive considers appropriate having regard to the emergency.

(5)The chief executive must repeal the declaration as soon as possible after the chief executive is satisfied the emergency no longer exists.

(6)Unless it is earlier repealed, the declaration expires 2 months after it is gazetted.

(7)However, if the declaration is inconsistent with a regulation or management plan, then, unless it is earlier repealed, the declaration expires 21 days after it is gazetted.

(8)The Statutory Instruments Act 1992, sections 49, 50 and 51 apply to an emergency fisheries declaration as if it were subordinate legislation.

s 46 amd 1997 No. 73 s 30; 2000 No. 26 s 13 sch 2; 2004 Act No. 53 s 2 sch; 2006 No. 28 s 21

47Compensation not payable on making, amendment or repeal

(1)Compensation is not payable if a fisheries declaration (including an emergency fisheries declaration) is made, amended or repealed, or anything previously permitted is prohibited or regulated under the declaration.

(2)However, subsection (1) does not prevent a regulation, management plan or fisheries declaration providing for payment of compensation.

48Relationship between fisheries declaration under div 2 and other subordinate legislation

(1)If there is an inconsistency between a regulation or management plan and a fisheries declaration under this division, the regulation or management plan prevails to the extent of the inconsistency.

(2)However, if there is an inconsistency between an emergency fisheries declaration, a regulation, management plan or fisheries declaration under this division that is not an emergency fisheries declaration, the emergency fisheries declaration prevails to the extent of the inconsistency.

s 48 amd 2006 No. 28 s 22

div hdg amd 2003 No. 82 s 20

49Authorities that may be issued under Act

(1)A regulation or management plan may prescribe the authorities that the chief executive may issue under this Act.

(2)A regulation or management plan may also provide that an authority may or may not be issued for a stated activity or thing.

s 49 sub 2003 No. 82 s 21

52Things authorised by authorities

(1)An authority authorises the holder of the authority to do the things permitted under a regulation or management plan or stated in the authority.

(2)A regulation or management plan, or the authority itself, may also authorise other persons to do all or any of the things authorised by it.

Example of someone else authorised by an authority—

a person who is a member of the crew of a boat owned by the holder

(3)However, an authority does not authorise the holder or anyone else (other than an inspector) to enter, or remain on, someone else’s land.

(4)Also, a resource allocation authority does not confer on the holder—

(a)any right of ownership or tenure over the land, waters or resources mentioned in the authority; or

(b)the right to carry out the development mentioned in the authority, unless the development is also authorised under the Planning Act.

Note—

See also section 76T and the Planning Act, section 163.

s 52 amd 2003 No. 82 s 22; 2009 No. 36 s 872 sch 2; 2016 No. 27 s 237

53Form, content and term of authorities

An authority—

(a)must be in the approved form; and

(b)must contain the particulars decided by the chief executive; and

(c)is issued—

(i)for the term stated in it; or

(ii)if no term is stated in the authority—until it is cancelled or surrendered or it otherwise expires under this Act.

s 53 amd 2000 No. 26 s 13 sch 2; 2002 No. 49 s 37 sch; 2006 No. 28 s 23

54Application for authority

(1)An application for the issue of an authority must—

(a)be made to the chief executive in the approved form; and

(b)be accompanied by the fees prescribed under the regulations.

(2)If asked by the chief executive, the applicant must give the further relevant information or evidence the chief executive requires to decide the application.

s 54 amd 2000 No. 26 s 13 sch 2; 2002 No. 49 s 37 sch

55Consideration of application for issue of authority

(1)The chief executive must consider an application for the issue of an authority and may issue the authority or refuse to issue it.

(2)In considering the application, the chief executive must comply with any relevant regulation or management plan.

s 55 amd 2000 No. 26 s 13 sch 2; 2005 No. 42 s 52 sch 1; 2014 No. 40 s 106

56Application for renewal of authority (other than permit)

(1)The holder of an authority (other than a permit) may apply for its renewal to the chief executive.

(2)Also, a person may apply to renew an expired former authority if—

(a)the person held the former authority immediately before its expiry; and

(b)the application is—

(i)for an authority of the same type, and on substantially the same terms, as the former authority; and

(ii)made within 3 months after the expiry.

(3)However, the chief executive may, at any time, extend the period for applying to renew an expired former authority.

(4)An application under this section must—

(a)be made in the approved form; and

(b)be accompanied by the fees prescribed under the regulations.

(5)If asked by the chief executive, the applicant must give the further relevant information or evidence the chief executive requires to decide the application.

s 56 amd 2000 No. 26 s 13 sch 2; 2001 No. 23 s 11; 2002 No. 49 s 37 sch

57Permit not renewable

(1)A permit can not be renewed.

(2)However, the holder may apply for the issue of another permit.

(3)Compensation is not payable if the chief executive refuses to issue another permit.

(4)However, subsection (3) does not prevent a regulation or management plan providing for payment of compensation.

s 57 amd 2000 No. 26 s 13 sch 2

58Consideration of application for renewal of authority (other than permit)

(1)The chief executive must consider an application for renewal of an authority (other than a permit) and may renew the authority or refuse to renew it.

(2)In considering the application, the chief executive must comply with any relevant regulation or management plan.

(3)If the application is an application under section 56(2) to renew an expired former authority and the chief executive decides to renew it—

(a)the chief executive must fix the term of the renewed authority from the day after the former authority expired; but

(b)the renewed authority takes effect only from the day the renewed authority is issued.

s 58 amd 2000 No. 26 s 13 sch 2; 2001 No. 23 s 12

59Refusal to issue or renew

(1)The chief executive may refuse to issue or renew an authority if the chief executive is satisfied the refusal is necessary or desirable for the best management, use, development or protection of fisheries resources or fish habitats.

Examples of the bases on which the chief executive may be satisfied—

1The authority was issued in error or because of a document or representation—

(a)that is false, misleading or omits a material particular; or

(b)obtained or made in another improper way.

2The applicant has been convicted of a fisheries offence.

3The applicant has had any of the following (a fisheries authority) cancelled or suspended—

•a licence, permit, concession or other authority issued under fisheries legislation

•a fisheries development approval.

4The applicant has not complied with a condition of a fishing authority.

5The applicant has not kept or given returns as required by the chief executive under this Act.

6The applicant has given a false or misleading return to the chief executive under this Act.

7The applicant has been convicted of an indictable offence.

8The applicant has not satisfied the training or competency requirements or other criteria for the authority as decided by the chief executive or prescribed under a regulation or management plan.

9The applicant has not paid fees payable under this Act.

10Another matter specified in a relevant regulation or management plan.

(2)Compensation is not payable if the chief executive refuses to issue or renew an authority.

(3)However, subsection (2) does not prevent a regulation or management plan providing for payment of compensation.

s 59 amd 2000 No. 26 s 13 sch 2; 2003 No. 82 s 23

60Notice of refusal of application for issue or renewal etc.

If the chief executive refuses to issue or renew an authority sought by an applicant, the chief executive must promptly—

(a)give the applicant an information notice for the refusal; and

(b)refund the fees paid by the applicant, other than fees for assessing the application.

s 60 amd 2000 No. 26 s 13 sch 2; 2006 No. 28 s 3 sch; 2009 No. 24 s 513

sdiv hdg ins 2003 No. 82 s 24

60AMatters chief executive must consider

In deciding an application for a resource allocation authority, the chief executive must have regard to the impact of the development mentioned in the authority on each of the following—

(a)coastal management under the Coastal Protection and Management Act 1995;

(b)the protection of Queensland waters as required under the Environmental Protection Act 1994;

Note—

See the Environmental Protection (Water) Policy 2009 for the way the environmental values of Queensland waters are to be protected.

(c)the management of marine parks under the Marine Parks Act 2004.

s 60A ins 2003 No. 82 s 24

61Conditions imposed on issue or renewal—general

(1)When the chief executive issues or renews an authority, the chief executive may impose reasonable and relevant conditions, including, for example—

(a)if the authority is not itself a quota—a condition fixing a quota for the authority; and

(b)a condition requiring payment of a bond to ensure the holder will comply with the conditions of the authority; and

(c)a condition conferring powers on inspectors; and

(d)a condition requiring the holder to install, maintain and use VMS equipment.

(2)The conditions must be stated in the authority.

(3)In fixing a quota for an authority, the chief executive must comply with any relevant regulation, management plan or quota declaration.

(4)If a power conferred on inspectors by a condition of an authority is exercised by an inspector, the power is taken to be exercised with the consent of the authority’s holder.

(5)A power conferred on inspectors by a condition of an authority is not limited by the powers given to an inspector under a provision of this Act.

(6)If an inspector may exercise a power under this Act and under a condition of an authority, the inspector may exercise the power under either or both.

(7)To remove any doubt, a condition may be imposed by the chief executive even though the effect is to stop the holder or someone else taking fisheries resources, or using a boat or fishing apparatus that could, apart from the condition, be lawfully taken or used under the authority.

(8)Compensation is not payable if conditions are imposed on an authority, or anything previously permitted is prohibited or regulated under the authority.

(9)However, subsection (8) does not prevent a regulation or management plan providing for payment of compensation.

s 61 amd 1997 No. 73 s 31; 2000 No. 26 s 13 sch 2; 2003 No. 82 s 25

62Conditions imposed under regulations and management plans

(1)An authority is also subject to the conditions prescribed under a regulation or management plan.

(2)To remove any doubt, any condition that may be imposed on an authority by the chief executive may be prescribed under a regulation or management plan.

s 62 amd 2000 No. 26 s 13 sch 2

63Amendment of authority

(1)If the chief executive considers an authority (including the conditions stated in it) should be amended, the chief executive must give the holder of the authority a written notice (the show cause notice) that—

(a)states the proposed amendment; and

(b)states the reasons for the proposed amendment; and

(c)outlines the facts and circumstances forming the basis of the reasons; and

(d)invites the holder to show, within a stated time of at least 28 days, why the authority should not be amended.

(2)The chief executive may amend the authority if, after considering all representations made within the stated time, the chief executive still considers the authority should be amended—

(a)in the way mentioned in the show cause notice; or

(b)in another way, having regard to the representations.

(3)If the chief executive decides to amend the authority, the chief executive must give the holder of the authority an information notice for the decision.

(4)Subsections (1) to (3) do not apply if the authority is amended only—

(a)by omitting a condition if the omission does not adversely affect the holder’s interests; or

(b)for a formal or clerical reason; or

(c)in another way that does not adversely affect the holder’s interests; or

(d)at the holder’s request; or

(e)by changing a quota for the authority.

(5)The chief executive may make an amendment of a type mentioned in subsection (4) by written notice given to the holder.

(6)To remove any doubt, any condition that may be imposed on an authority when it is issued may be imposed on the authority by amendment.

(7)Compensation is not payable if an authority is amended, or anything previously permitted under the authority is prohibited or regulated.

(8)However, subsection (7) does not prevent a regulation or management plan providing for payment of compensation.

s 63 amd 2000 No. 26 s 13 sch 2; 2006 No. 28 s 3 sch; 2009 No. 24 s 514

64Notice to return authority for alteration after amendment

(1)The chief executive may, by written notice, require the holder of an authority issued by the chief executive to return the authority to the chief executive within a stated time, of at least 28 days, to enable the chief executive to alter the authority to reflect an amendment made to it.

(2)The holder must comply with the notice, unless the holder has a reasonable excuse for not complying with it.

Maximum penalty—80 penalty units.

(3)After altering the authority, the chief executive must return it to the holder.

(4)The amendment of an authority by the chief executive does not depend on it being altered under this section.

s 64 amd 2000 No. 26 s 13 sch 2

65Transfer of authority (other than permit)

(1)Subject to registration under this subdivision, an authority other than a permit may be transferred unless, under a regulation or management plan, the authority is not transferable either generally or in the circumstances relating to the particular authority.

(2)On registration of the transfer, all rights and liabilities attaching to the authority vest in the transferee.

s 65 amd 2000 No. 26 s 13 sch 2; 2002 No. 49 s 13

sub 2004 No. 27 s 7

65AApplication to register transfer of authority

(1)An application to register the transfer of an authority must—

(a)be made to the chief executive in the approved form; and

(b)be made by—

(i)if the transfer is a temporary quota transfer—the transferor under the transfer; or

(ii)otherwise—each holders of the authority immediately before the transfer.

(2)Without limiting what the approved form may require, it must include—

(a)a sufficient description of the authority; and

(b)a written declaration by the applicant that—

(i)the information in or accompanying the application provided by the applicant is true; and

(ii)the applicant has complied with the requirements under this Act that relate to the authority; and

(iii)each transferee under the transfer has complied with the requirements under this Act that relate to the authority.

(3)Unless the transfer is a temporary quota transfer, the application must be accompanied by—

(a)the written approval of each person, other than the holder, who has a registered interest in the authority; and

(b)if a fee payable under this Act for, or relating to, the authority has not been paid—the chief executive’s written approval to the registration of the transfer.

(4)Also, the application must be accompanied by the fee prescribed under a regulation, unless—

(a)the application is made by the internet system mentioned in section 65BA; or

(b)the fee is waived under section 65E.

s 65A ins 2004 No. 27 s 7

sub 2006 No. 28 s 24

65BRegistration of transfer of authority

(1)An application to register the transfer of an authority is a properly made application if the application complies with section 65A and the transferor and the transferee have complied with any requirements under subsection (2).

(2)The chief executive may, by written notice, require the transferor or the transferee (the applicant) to give the chief executive further documents or information to enable the chief executive to register the transfer.

(3)The chief executive must register the transfer of an authority if the chief executive receives a properly made application in relation to the authority.

s 65B ins 2004 No. 27 s 7

65BAInternet system for transfer registration applications

(1)The chief executive may establish an internet system under which—

(a)applications may be made to register authority transfers; and

(b)the following are made or done automatically on the internet—

(i)the decision about whether an application to register a transfer, or a transfer of a particular type, is a properly made application for section 65A;

(ii)registration of the transfer.

(2)However, the use of the system may allow the decision to be made only if the information that the system requires to be given in making the application shows the application is, on its face, a properly made application for section 65A.

(3)For section 196, a decision made under the system is taken to be a decision of the chief executive under section 65B.

s 65BA ins 2006 No. 28 s 25

65CTemporary transfers

(1)A transfer of an authority may be for a stated period (a temporary transfer).

(2)The stated period—

(a)may, subject to paragraphs (b) to (d), be fixed by reference to the happening of a stated event; and

Example for paragraph (a)—

If the entitlement under the relevant authority is subject to a quota, the start or end of the period may be fixed by reference to the start or end of the restriction the subject of the quota.

(b)must not start before the day the chief executive registers the transfer; and

(c)must not be longer than the term of the authority; and

(ca)if the authority is a quota—must end at the end of the quota year stated in the application.

(3)If an authority is subject to a temporary transfer (the first transfer), a further temporary transfer of the authority may be registered for a stated period not longer than the period of the first transfer.

(4)If the chief executive registers a temporary transfer, the chief executive must, as soon as practicable, give the applicants for registration of the temporary transfer written notice stating the temporary transfer of the authority has been registered.

s 65C (prev s 65A) ins 2002 No. 49 s 14

renum 2004 No. 27 s 6

amd 2004 No. 27 s 8; 2006 No. 28 s 26

65DEffect of temporary transfer

(1)This section applies for a temporary transfer until—

(a)generally—the end of the period for which the transfer is registered; or

(b)if, during the period, the chief executive receives a signed notice from each interested party that the transfer has ended—the chief executive’s receipt of the notice.

(2)A reference in the following to the holder of the transferred authority, or to the holder of an authority, is, if the context permits, taken to include a reference to the transferee as if the transferee were the holder of the transferred authority—

(a)a provision of this Act, other than section 4, 56, 57, 63(4)(d) and (5), 72 or 73;

(b)a regulation or management plan;

(c)the conditions of the transferred authority.

(3)The things authorised by the transferred authority—

(a)may be done by the transferee as if the transferee were the person who was the holder of the authority immediately before the temporary transfer was registered (the original holder); and

(b)can not be done by the original holder.

(4)Despite the temporary transfer, the original holder continues to be the holder of the transferred authority.

(5)If a further temporary transfer is registered for the transferred authority, subsections (2) to (4) apply to the transferee under the first temporary transfer as if a reference to the original holder includes that transferee.

(6)Each of the following is an interested party under subsection (1)—

(a)the transferor under the temporary transfer;

(b)the transferee under the temporary transfer;

(c)unless the transfer is a temporary quota transfer—anyone else who has a registered interest in the authority the subject of the temporary transfer.

s 65D (prev s 65B) ins 2002 No. 49 s 14

renum 2004 No. 27 s 6

amd 2004 No. 27 s 9; 2006 No. 28 s 27

65EWaiver of fee or requirement on transfer or amendment

(1)This section applies if the chief executive is satisfied a transfer or an amendment of an authority is necessary—

(a)to give effect to—

(i)a settlement between spouses or former spouses; or

(ii)bankruptcy; or

(iii)winding up or administration under the Corporations Act; or

(iv)section 70C(3); or

(b)to administer a deceased estate; or

(c)because of the loss, at sea, of the boat being used in relation to the authority, through storm, capsize, collision or fire.

(2)On an application made under subsection (3), the chief executive must, according to the application—

(a)waive the prescribed fee for an application for amendment or registration of a transfer of the authority; or

(b)waive the requirement under a regulation or a management plan, on application to amend or register the transfer of the authority, to do any of the following before the chief executive grants the application—

(i)surrender another authority;

(ii)apply to amend another authority by removing a fishery symbol;

(iii)amend the authority in some other way that is not beneficial to the authority holder.

(3)An application for the waiver of a prescribed fee or a requirement—

(a)must be made jointly by each holder of the authority and any proposed transferee; and

(b)must be made to the chief executive in the approved form; and

(c)must be accompanied by—

(i)the application for amendment or registration of a transfer; and

(ii)sufficient documentary evidence to support the application for waiver.

Examples of documentary evidence—

insurance report, will, death certificate, court order

(4)If asked by the chief executive, the applicant must give the further relevant information or evidence the chief executive reasonably requires to decide the application.

(5)In this section—

holder, of an authority of a type prescribed under section 70C, includes the personal representative of a deceased holder.

s 65E (prev s 65C) ins 2003 No. 82 s 26

renum 2004 No. 27 s 6

amd 2004 No. 27 s 10

66Permits not transferable

A permit can not be transferred.

67Suspension or cancellation of authority by chief executive

(1)The chief executive may suspend or cancel an authority if the chief executive is satisfied the suspension or cancellation is necessary or desirable for the best management, use, development or protection of fisheries resources or fish habitats.

Example—

The examples mentioned in section 59(1) are examples of the bases on which the chief executive may be satisfied.

(2)In acting under subsection (1), the chief executive may disregard any third party interests in the authority.

(3)This section does not affect the suspension or cancellation of an authority under a regulation or management plan.

s 67 amd 2000 No. 26 s 13 sch 2; 2001 No. 23 s 14; 2002 No. 49 s 16

sub 2003 No. 82 s 27

68Procedure for cancellation or suspension by chief executive

(1)If the chief executive considers grounds exist under section 67(1) to suspend or cancel an authority (the proposed action), the chief executive must give the holder of the authority a written notice that—

(a)states the proposed action; and

(b)states the grounds for the proposed action; and

(c)outlines the facts and circumstances forming the basis for the grounds; and

(d)if the proposed action is suspension of the authority—states the proposed suspension period; and

(e)invites the holder to show, within a stated time of at least 28 days, why the proposed action should not be taken.

(2)If, after considering all written representations made within the stated time, the chief executive still considers grounds to take the proposed action exist, the chief executive may—

(a)if the proposed action was to suspend the authority for a specified period—suspend the authority for not longer than the proposed suspension period; or

(b)if the proposed action was to cancel the authority—either cancel the authority or suspend it for a period.

(3)The chief executive must inform the holder of the decision by written notice.

(4)If the chief executive decides to suspend or cancel the authority, the notice must be an information notice for the decision.

(5)The decision takes effect on the later of—

(a)the day when the notice is given to the holder; or

(b)the day of effect stated in the notice.

(6)Compensation is not payable if the chief executive suspends or cancels an authority.

(7)However, subsection (6) does not prevent a regulation or management plan providing for payment of compensation.

(8)This section does not affect the suspension or cancellation of an authority under a regulation or management plan.

s 68 amd 2000 No. 26 s 13 sch 2; 2001 No. 23 s 15; 2003 No. 82 s 28; 2006 No. 28 s 3 sch; 2009 No. 24 s 515

68ASuspension or cancellation of authority for dishonoured payment

(1)If a person’s cheque for payment of the prescribed fee relating to an authority is dishonoured—

(a)if the fee is for an application for the authority—the authority is void from the day it was issued; or

(b)if the fee is for an application to renew the authority—the authority is suspended from the renewal date until a valid payment is made; or

(c)if the fee is for an application to transfer or amend the authority—the transfer or amendment does not take effect until a valid payment is made; or

(d)if the fee is an annual fee—the authority is suspended from the day the fee was due until a valid payment is made; or

(e)if the fee is any other prescribed fee—the authority is suspended from the day the fee was due until a valid payment is made.

(2)If the State incurs expense because a person’s cheque is dishonoured—

(a)the person must reimburse the State for the expense incurred; and

(b)the amount of the expense may be recovered as a debt payable by the person to the State.

(3)In this section—

cheque includes a method of payment other than by cash.

dishonoured includes not honoured on presentation.

s 68A ins 2003 No. 82 s 29

68ABSuspension or cancellation for non-payment of fee other than because of dishonoured cheque

(1)This section applies if—

(a)a fee payable under this Act for or relating to an authority is not paid; and

(b)the authority is not suspended under section 68A; and

(c)the fee is not for an application to which section 68A(1)(c) applies.

(2)The chief executive may give the holder of the authority a notice warning the holder that, under this section—

(a)the authority will be suspended unless the fee is paid or a repayment agreement for the fee is made within 30 days after the giving of the notice; and

(b)if the authority is a commercial fisher licence—it will be cancelled unless the fee is paid or a repayment agreement for the fee is made within 90 days after the giving of the notice.

(3)If the fee is not paid or a repayment agreement for the fee is not made within 30 days after the giving of the notice the authority is suspended.

(4)The suspension ends if the fee is paid within 90 days after the giving of the notice.

(5)If—

(a)the authority is a commercial fisher licence; and

(b)the fee is not paid or a repayment agreement for the fee is not made within 90 days after the giving of the notice;

the authority is cancelled.

(6)Otherwise, the suspension continues until and unless the fee is paid or a repayment agreement for the fee is made.

(7)In this section—

commercial fisher licence means an authority that, under a regulation, is described as a commercial fisher licence.

repayment agreement, for a fee, means a written agreement between the holder of the authority and the chief executive for the payment of the fee.

s 68AB ins 2006 No. 28 s 28

68BSuspension or cancellation of authority by court

(1)This section applies if a court convicts the holder of an authority of a serious fisheries offence, whether or not a conviction is recorded.

(2)The court may, in addition to, or instead of, imposing the fine prescribed under this Act for the offence, suspend or cancel the authority and any quota relating to the authority.

(3)If an authority is suspended under subsection (2) for a period of time, any quota relating to the authority is suspended for the same period of time.

(4)In acting under subsection (2), the court—

(a)may disregard any third party interests in the authority; and

(b)must have regard to—

(i)the criteria prescribed under a regulation or a management plan for suspension or cancellation of an authority; and

(ii)the fine the court imposes for the offence.

(5)The court may, if considered appropriate in the circumstances, have regard to any previous conviction of the authority holder under this Act.

(6)The court may impose a cumulative or concurrent suspension period, as the court considers appropriate, if—

(a)the court convicts the holder of more than 1 serious fisheries offence; or

(b)during the suspension period, the holder is again convicted of a serious fisheries offence.

(7)This section does not affect the suspension or cancellation of an authority under a regulation or management plan.

s 68B ins 2003 No. 82 s 29

69Effect of suspension on renewal

If an authority has been suspended, it may be renewed but continues to be suspended until the end of the suspension period.

69AEffect of suspension on issue or transfer of another authority

(1)If an authority (the suspended authority) has been suspended, the chief executive may not accept an application—

(a)to issue another authority, or register a transfer of another authority, to the holder of the suspended authority, if the other authority would allow the holder to carry out the activities otherwise allowed under the suspended authority, during the period the suspended authority is suspended; or

(b)to register a transfer of the authority to another person during the period the suspended authority is suspended.

(2)However, subsection (1)(b) does not apply if—

(a)the suspension is under section 68AB; and

(b)the chief executive has, under section 65A(3)(b), given written approval to the registration of the transfer.

(3)To remove any doubt, it is declared that subsection (2) does not affect the suspension under section 68AB.

s 69A ins 2003 No. 82 s 30

amd 2006 No. 28 s 29

69BFurther fees continue to be payable for suspended authority

(1)This section applies if an authority is suspended.

(2)To remove any doubt, it is declared that the suspension has no effect on a liability under this Act to pay the full amount of a further fee for or relating to the suspended authority.

(3)Subsection (2) continues to apply for the amount even if the suspended authority is later cancelled.

s 69B ins 2006 No. 28 s 30

70Authority to be returned

(1)The holder of an authority suspended, or the former holder of an authority cancelled, must return the authority to the chief executive within 7 days after the suspension or cancellation takes effect, unless the person has a reasonable excuse for not returning it or not returning it within that time.

Maximum penalty—80 penalty units.

(2)If a suspended authority is returned to the chief executive, the chief executive must return it to the holder at the end of the suspension period.

s 70 amd 2000 No. 26 s 13 sch 2

sdiv hdg ins 2002 No. 49 s 17

70AApplication of sdiv 6A

This subdivision applies if an individual is a holder of an authority and the individual dies.

s 70A ins 2002 No. 49 s 17

70BGeneral effect of death

Subject to section 70C, on the individual’s death—

(a)the individual ceases to be a holder of the authority; and

(b)the individual’s entitlement as a holder of the authority ceases.

s 70B ins 2002 No. 49 s 17

70CContinuance of particular authorities

(1)This section applies only if the authority is of a type prescribed under a regulation or management plan.

(2)If, immediately before the individual’s death, the individual was the only holder of the authority—

(a)the authority continues in force, subject to this Act; and

(b)the individual’s personal representative becomes the holder of the authority.

(3)If, immediately before the death, there was more than 1 holder of the authority—

(a)the individual’s personal representative becomes a holder of the authority; and

(b)the other holders of the authority continue to be holders of the authority, unaffected by the individual’s death.

(4)A personal representative who, under this section, becomes a holder takes the entitlement the individual had under the authority immediately before the death.

s 70C ins 2002 No. 49 s 17

70DProvisions for changeover to personal representative

(1)This section applies if, under section 70C, a personal representative (the new holder) becomes a holder of the authority.

(2)The change in the holdership to the new holder is taken to be a circumstance for section 73(3).

(3)Until the change is recorded in the register, a notice under this Act from the chief executive to the new holder may be given at the deceased individual’s address last known to the chief executive.

s 70D ins 2002 No. 49 s 17

amd 2006 No. 28 s 3 sch

71Replacement of authorities

(1)The holder of a lost, damaged or destroyed authority may apply to the chief executive for a replacement authority.

(2)The application must—

(a)be made in the approved form; and

(b)be accompanied by the fees prescribed under the regulations.

(3)The chief executive may replace the authority if the chief executive is satisfied it has been lost, damaged or destroyed.

s 71 amd 2000 No. 26 s 13 sch 2; 2002 No. 49 s 37 sch

72Surrender of authorities

(1)The holder of an authority may surrender it by giving notice of surrender to the chief executive.

(2)The notice must be in an approved form and be accompanied by the authority.

s 72 amd 2000 No. 26 s 13 sch 2; 2002 No. 49 s 37 sch

73Registers of authorities and fisheries development approvals

(1)The chief executive must keep a register of—

(a)authorities issued by the chief executive; and

(b)fisheries development approvals.

(2)The register must contain the particulars prescribed under the regulations or management plan and may include other particulars decided by the chief executive.

(3)Within 21 days after a change in circumstances prescribed under a regulation or a management plan, the holder of an authority must give the chief executive written particulars of the change in the approved form.

Maximum penalty—300 penalty units.

(4)A person may, on payment of the fee prescribed under the regulations and subject to reasonable conditions imposed by the chief executive—

(a)inspect the register at the department’s head office during business hours; and

(b)take extracts from, or obtain a copy of details in, the register.

(5)The chief executive may publish details in the register at the times and in the way decided by the chief executive.

(6)The holder of an authority may apply to the chief executive in the approved form to have noted on the register an interest that a specified person has in the authority.

s 73 amd 2000 No. 26 s 13 sch 2; 2001 No. 23 s 16; 2002 No. 49 s 37 sch; 2003 No. 82 s 31

74Certificates about authorities

(1)The chief executive may issue a certificate stating—

(a)that a particular person was or was not the holder of an authority on a particular day or over a particular period; or

(b)the type or conditions of a particular authority; or

(c)the cancellation or suspension of an authority; or

(d)anything else about an authority that is in the register.

(2)The certificate is admissible in a proceeding as evidence of a matter stated in it.

(3)An application for a certificate must—

(a)be made to the chief executive in the approved form; and

(b)be accompanied by the fees prescribed under the regulations.

s 74 amd 2000 No. 26 s 13 sch 2; 2002 No. 49 s 37 sch; 2006 No. 28 s 3 sch

75False representations about authorities

A person must not intentionally or recklessly falsely represent that someone (whether the person or someone else) holds an authority or an authority of a particular type.

Maximum penalty—1000 penalty units.

76Offences about registers

A person must not intentionally or recklessly—

(a)make, cause to be made, or agree to the making of, a false or misleading entry in the register about an authority; or

(b)produce or tender in evidence a document falsely purporting to be—

(i)an instrument, or a copy of or extract from an instrument, given to or by the chief executive under this part; or

(ii)a copy of or extract from an entry in the register about an authority.

Maximum penalty—1000 penalty units.

s 76 amd 2000 No. 26 s 13 sch 2; 2004 No. 27 s 11; 2006 No. 28 s 3 sch

div hdg ins 2003 No. 82 s 32

sdiv hdg ins 2003 No. 82 s 32

76AApplication of sdiv 1

This subdivision applies to the following development—

(a)development categorised as assessable development under a regulation made under the Planning Act that is building work in a declared fish habitat area or operational work completely or partly within a declared fish habitat area, to the extent the development is carried out in Queensland waters or on land other than freehold land (prescribed declared fish habitat area development);

(b)development categorised as assessable development under a regulation made under the Planning Act that is making a material change of use of premises for aquaculture, if it is carried out completely in Queensland waters or on unallocated tidal land (prescribed aquaculture development).

s 76A ins 2003 No. 82 s 32

amd 2006 No. 28 s 3 sch; 2009 No. 36 s 872 sch 2; 2016 No. 27 s 238

76CNature of fisheries development approval for which resource allocation authority required

(1)A fisheries development approval authorises a person to carry out development under the approval only if the person also holds—

(a)for prescribed declared fish habitat area development—a resource allocation authority for interfering with a declared fish habitat area; or

(b)for prescribed aquaculture development—a resource allocation authority for interfering with fish habitat in Queensland waters or on unallocated tidal land.

Note—

See also section 88B (Carrying out particular development without resource allocation authority).

(2)Also, despite the Planning Act, section 73, the approval attaches to the area mentioned in the resource allocation authority for the development.

s 76C ins 2003 No. 82 s 32

amd 2009 No. 36 s 872 sch 2; 2012 No. 34s 11; 2016 No. 27 s 239

sdiv hdg ins 2003 No. 82 s 32

sub 2016 No. 27 s 241

76EApplication for fish movement exemption notice

(1)A person intending to make a development application for the construction or raising of a waterway barrier works in an area may apply to the chief executive for a fish movement exemption notice for the area.

(2)The application must be—

(a)made in the approved form; and

(b)accompanied by the prescribed fee; and

(c)made before the person makes the development application.

(3)If asked by the chief executive, the applicant must give, within the period stated by the chief executive, the further relevant information or evidence the chief executive requires to decide the application.

(4)The stated period must be at least 28 days after the further information is requested.

(5)If the applicant does not give the chief executive the further information within the stated period, the chief executive may decide the application without the further information.

s 76E ins 2003 No. 82 s 32

76FDeciding application for fish movement exemption notice

(1)The chief executive must consider the application for a fish movement exemption notice for an area and give or refuse to give the notice.

(2)In considering the application, the chief executive must have regard to—

(a)if the application relates to tidal waters—the Coastal Protection and Management Act 1995; or

(b)if the application relates to non-tidal waters—the Water Act 2000.

(3)The chief executive may give the notice only if the chief executive is reasonably satisfied it is not necessary or desirable, for the best management, use, development or protection of fisheries resources or fish habitats, for a proposed construction or raising of a waterway barrier works in the area to provide for the movement of fish across the barrier works.

Examples, for subsection (3), of the bases on which the chief executive may be satisfied—

1Allowing for fish movement in the area is not necessary because—

(a)there are no fish located in the area; or

(b)it is not necessary for the fish located in the area to access the fish habitat upstream of the area.

2There are other barriers in the area which prevent the movement of fish located in the area.

(4)The notice must state the period, not longer than 4 years, for which the exemption notice applies.

(5)If the chief executive refuses to give the notice, the chief executive must give the applicant an information notice for the refusal.

s 76F ins 2003 No. 82 s 32

amd 2009 No. 24 s 516

sdiv hdg ins 2003 No. 82 s 32

sub 2016 No. 27 s 243

76HRelationship between sdiv 4 and Planning Act

This subdivision applies subject to the Planning Act, chapter 3, part 3, division 3.

s 76H ins 2003 No. 82 s 32

amd 2009 No. 36 s 872 sch 2; 2016 No. 27 s 244

76IAEnvironmental offset conditions

(1)Under the Planning Act, section 65, the conditions imposed on a fisheries development approval may include environmental offset conditions.

(2)An environmental offset condition may relate to an environmental offset undertaken to counterbalance the impacts of the development on fisheries resources or fish habitat including, for example—

(a)an environmental offset to enhance or rehabilitate a fish habitat; and

(b)the exchange of another fish habitat for a fish habitat affected by the development; and

(c)a contribution to fish habitat research.

s 76IA ins 2011 No. 3 s 17

amd 2014 No. 33 s 118; 2016 No. 27 s 246

sdiv hdg ins 2003 No. 82 s 32

76SPurpose of sdiv 6

This subdivision states—

(a)the penalties that are to apply to particular offences under the Planning Act; and

(b)an additional requirement for persons carrying out, under the Planning Act, development in an emergency.

Note—

See the Planning Act, section 225(1) for the application of provisions, of an Act other than the Planning Act, about particular matters that the Planning Act also has provisions about.

s 76S ins 2003 No. 82 s 32

amd 2009 No. 36 s 872 sch 2; 2016 No. 27 s 249

76TPenalties for carrying out assessable development without permit

(1)This section applies to fisheries development if it is assessable development.

(2)For the Planning Act, section 163(1), the maximum penalty for an offence against the section is—

(a)for development categorised as assessable development under a regulation made under the Planning Act that is building work in a declared fish habitat area, operational work completely or partly within a declared fish habitat area or operational work that is the removal, destruction or damage of a marine plant—3000 penalty units; or

(b)for development categorised as assessable development under a regulation made under the Planning Act that is making a material change of use of premises for aquaculture—1665 penalty units; or

(c)for development categorised as assessable development under a regulation made under the Planning Act that is operational work that is the constructing or raising of a waterway barrier works—2000 penalty units.

s 76T ins 2003 No. 82 s 32

amd 2006 No. 28 s 3 sch; 2009 No. 36 s 872 sch 2; 2016 No. 27 s 250

76UPenalties for noncompliance with particular development approvals

(1)This section applies to a fisheries development approval for the construction or raising of a waterway barrier works if conditions about either or both of the following are imposed on the approval—

(a)the design or construction of a fish way for the waterway barrier works;

(b)monitoring or operation of a fish way.

(2)For the Planning Act, section 164, the maximum penalty for not complying with the condition is 2000 penalty units.

s 76U ins 2003 No. 82 s 32

amd 2009 No. 36 s 872 sch 2; 2016 No. 27 s 251

76VAdditional requirement for development carried out in emergency

(1)This section applies to a person carrying out an activity that is fisheries development if the Planning Act, section 166(3) or (4) applies to the activity.

(2)For the Planning Act, section 166(4)(b) and (6)(a)(ii), the person must give notice that the person has been carrying out the activity to the chief executive as soon as reasonably practicable after starting the activity.

(3)In this section—

activity see the Planning Act, section 166(1).

s 76V ins 2003 No. 82 s 32

amd 2009 No. 36 s 872 sch 2; 2016 No. 27 s 252

77Contravention of particular fisheries declarations

(1)A person to whom a regulated fishing apparatus declaration or regulated fishing method declaration applies must comply with the declaration.

Maximum penalty—300 penalty units.

(2)A person to whom a regulated waters declaration applies must comply with the declaration.

Maximum penalty—1000 penalty units.

s 77 sub 2006 No. 28 s 31

77AExemptions for contravention of regulated fishing apparatus declaration

(1)Section 77(1) does not apply to the sale, purchase, use or possession of commercial fishing apparatus regulated under a regulated fishing apparatus declaration if the apparatus is used or to be used—

(a)in sporting activities, other than fishing; or

Examples—

indoor cricket and school sports, other than fishing

(b)to protect trees or collect fruit from trees; or

(c)for display or decorative purposes; or

Examples—

for use in shopfitting or as part of a restaurant’s decor

(d)for other purposes prescribed under a regulation or management plan.

(2)Section 77(1) does not apply to the possession of fishing apparatus regulated under a regulated fishing apparatus declaration if the apparatus is stowed and secured on a boat lawfully passing through waters.

(3)Section 77(1) does not apply to the possession of commercial fishing apparatus regulated under a regulated fishing apparatus declaration if the person possessing the apparatus—

(a)is a genuine maker, dealer in or repairer of fishing apparatus; or

(b)is a person acting for a person mentioned in paragraph (a); or

(c)is transporting the fishing apparatus to or from the place where it is made, used, dealt in, repaired or stored for a person who has an authority to use or possess the apparatus.

s 77A ins 2006 No. 28 s 31

78Prohibited acts about regulated fish

(1)A person must not unlawfully take, possess, use or sell a regulated fish.

(2)A person must not mutilate or disfigure a regulated fish with intent to hide the fact that it is a regulated fish.

Maximum penalty—1000 penalty units.

s 78 amd 2006 No. 28 s 32

79Quota offences

A person must not unlawfully contravene a quota.

Maximum penalty—2000 penalty units.

79AContravening a condition of an authority

A person to whom a condition of an authority applies must comply with the condition.

Maximum penalty—100 penalty units.

s 79A ins 2006 No. 28 s 33

81Use of explosives etc. prohibited

(1)A person must not unlawfully—

(a)use an explosive, powerhead or other explosive propelled missile, firearm or noxious substance (a restricted thing) to take fish; or

(b)have a restricted thing on board a boat—

(i)with intent to take fish; or

(ii)by which fish may be injured or destroyed; or

(c)use or possess, with intent to take fish, a device that creates an electrical field in waters or on land; or

(d)possess fish taken by a thing mentioned in paragraph (b); or

(e)possess fish taken by a device mentioned in paragraph (c).

Maximum penalty—2000 penalty units.

(2)Subsection (1)(a), (b) and (d) does not apply to an activity carried out by a person if the person—

(a)is acting under a contract made by the chief executive for the establishment or management of the shark control program; and

(b)is authorised under an authority to carry out the activity.

(3)Subsection (1)(b)(ii) does not apply to a firearm on board a boat, or a powerhead attached to a spear gun or hand propelled spear, if the firearm or powerhead is used, or intended for use, only in defence against sharks.

s 81 amd 2006 No. 28 s 35

82Offence to do prescribed act

A person must not unlawfully do an act prescribed under a regulation or management plan as an act that must only be done by the holder of an authority.

Maximum penalty—1000 penalty units.

83Additional penalty based on value of fish taken in trade or commerce

(1)If, having convicted a person of an offence against this Act involving the taking or possessing of fish, the court is satisfied the person took or possessed the fish in trade or commerce, it may, under this section, impose a fine of not more than 5 times the amount calculated by it to be the wholesale value of the fish when they were taken.

(2)The court may impose the fine as well as imposing another fine or penalty prescribed under this or another Act.

(3)The court may regard fish taken or possessed in contravention of this Act to have a wholesale value equivalent to the wholesale value of fish of the same or a similar species or type taken lawfully.

87Interference etc. with aquaculture activity or fishing apparatus

(1)A person must not unlawfully interfere with an aquaculture activity or fishing apparatus.

Maximum penalty—500 penalty units.

(2)In this section—

interfere with includes—

(a)for an aquaculture activity—the removal of fisheries resources, damage and destroy; and

(b)for fishing apparatus—the removal of fisheries resources, damage, destroy, mark, remove and trample.

88Holder of authority to have it available for immediate inspection etc.

(1)The holder of an authority must have the authority available for immediate inspection while the holder is doing anything authorised by it.

(2)If anyone else is doing anything the other person is authorised to do under the authority and the holder is not present, the other person must have the authority available for immediate inspection.

(3)If a number of persons on a boat are doing anything the persons are authorised to do under the authority and the holder is not present, the person in control must have the authority available for immediate inspection.

88APossessing fish taken in contravention of other fisheries legislation

A person must not unlawfully possess fish knowing the fish have been taken in contravention of a law of the Commonwealth or another State about fishing, fisheries resources or fish habitats.

Maximum penalty—1000 penalty units.

s 88A ins 1999 No. 45 s 25

88BCarrying out particular development without resource allocation authority

(1)This section applies to—

(a)the following development categorised as assessable development under a regulation made under the Planning Act—

(i)building work in a declared fish habitat area;

(ii)making a material change of use of premises for aquaculture;

(iii)operational work completely or partly within a declared fish habitat area; and

(b)development categorised as accepted development under a regulation made under the Planning Act that is operational work that is the removal, destruction or damage of a marine plant if the removal, destruction or damage is of dead marine wood on unallocated State land for trade or commerce.

(2)A person must not carry out the development unless the person also holds a resource allocation authority for the development.

Maximum penalty—

(a)for development mentioned in paragraph (a)(i) or (iii) or (b)—3000 penalty units; or

(b)for development mentioned in paragraph (a)(ii)—1665 penalty units.

(3)Subsection (2) does not apply to a person if—

(a)the person starts development because of an emergency endangering—

(i)the life or health of a person; or

(ii)the structural safety of a building; and

(b)the person gives, as soon as practicable after starting the development, written notice of the development to the relevant person for the development; and

(c)the person is not required to stop carrying out the development by an enforcement notice or order under the Planning Act.

(4)In this section—

dead marine wood means a branch or trunk that—

(a)is a part of a dead marine plant; or

(b)was a part of a marine plant.

relevant person, for development, means—

(a)the chief executive; and

(b)if the development is assessable development—the person who would be the assessment manager if a development application were made for the development.

s 88B ins 2003 No. 82 s 33

amd 2006 No. 28 s 3 sch; 2009 No. 36 s 872 sch 2; 2016 No. 27 s 253

div hdg amd 2014 No. 7 s 533

90Non-indigenous fisheries resources not to be possessed, released etc.

(1)A person must not unlawfully—

(a)bring non-indigenous fisheries resources, or cause non-indigenous fisheries resources to be brought, into Queensland; or

(b)possess, rear, sell or buy non-indigenous fisheries resources; or

(c)release non-indigenous fisheries resources, or cause non-indigenous fisheries resources to be placed or released, into Queensland waters.

Maximum penalty—2000 penalty units.

(2)Subsections (1)(a) and (b) do not apply to non-indigenous fisheries resources prescribed under a regulation or management plan.

(3)In this section—

lake see the Water Act 2000, schedule 4.

s 90 amd 2005 No. 42 s 52 sch 1; 2006 No. 59 s 85 sch; 2014 No. 40 s 108

91Aquaculture fisheries resources not to be released

A person must not unlawfully release aquaculture fisheries resources, or cause aquaculture fisheries resources to be released, into Queensland waters.

Maximum penalty—2000 penalty units.

92Duty of person who takes or possesses non-indigenous fisheries resources

(1)A person who unlawfully takes or possesses non-indigenous fisheries resources must immediately—

(a)if the fisheries resource is a fish—kill it; or

(b)if the fisheries resource is a plant—destroy it.

Maximum penalty—2000 penalty units.

(2)Subsection (1) does not apply to non-indigenous fisheries resources prescribed under a regulation or management plan.

s 92 amd 2000 No. 26 s 13 sch 2; 2001 No. 23 s 17; 2014 No. 7 s 535

93Recovery of costs of removing particular fisheries resources

(1)If a person commits an offence against this division, the costs reasonably incurred by the chief executive in taking and removing, or destroying, the fisheries resources in relation to which the offence was committed are a debt payable by the person to the chief executive.

(2)If the person is convicted of an offence against this division, the court may, as well as imposing a penalty for the offence, order the person to pay the amount of the costs to the chief executive.

(3)Subsection (2) does not limit the court’s powers under the Penalties and Sentences Act 1992 or any other law.

s 93 amd 2000 No. 26 s 13 sch 2; 2014 No. 7 s 536

108Order for taking and removing, or destroying, non-indigenous fisheries resources or aquaculture fish

(1)The chief executive may order an inspector to take and remove, or destroy, fisheries resources (the relevant fisheries resources).

(2)The chief executive may make the order only if the chief executive is satisfied—

(a)the relevant fisheries resources are—

(i)non-indigenous fisheries resources; or

(ii)aquaculture fisheries resources; and

(b)the relevant fisheries resources are a significant threat to other fisheries resources or a fish habitat; and

(c)it is necessary or desirable for the relevant fisheries resources to be taken and removed, or destroyed.

(3)The chief executive may make the order even though other fisheries resources, plants or other property may be destroyed.

(4)The inspector must take the action necessary to comply with the order.

(5)Compensation is payable for fisheries resources, plants or property taken and removed, or destroyed, under the order only if the chief executive decides that compensation should be payable in the circumstances of the particular case.

s 108 amd 2000 No. 26 s 13 sch 2; 2014 No. 7 s 538

109Order to stop or delay escape of non-indigenous fisheries resources or aquaculture fish

(1)If the chief executive is satisfied there is no practicable way to take and remove, or destroy, non-indigenous fisheries resources or aquaculture fish, the chief executive may order an inspector to take the action necessary to stop or delay the fisheries resources from escaping.

(2)The chief executive may make the order even though other fisheries resources, plants or other property may be destroyed.

(3)The inspector must take the action necessary to comply with the order.

(4)Compensation is payable for fisheries resources, plants or property taken and removed, or destroyed, under the order only if the chief executive decides that compensation should be payable in the circumstances of the particular case.

s 109 amd 2000 No. 26 s 13 sch 2; 2014 No. 7 s 539

110Recovery of costs of complying with order

(1)If an order under this division is necessary because a person has committed an offence against this Act, the costs incurred by the chief executive in taking action reasonably necessary to comply with the order are a debt payable by the person to the chief executive.

(2)If the person is convicted of an offence against this Act relevant to the order, the court may, as well as imposing a penalty for the offence, order the person to pay the amount of the costs to the chief executive.

(3)Subsection (2) does not limit the court’s powers under the Penalties and Sentences Act 1992 or any other law.

s 110 amd 2000 No. 26 s 13 sch 2

117Fisheries Research Fund

(1)The Fisheries Research Fund (the fund) is continued in existence subject to the Financial Administration and Audit Act 1977, part 8, division 2.

(2)Accounts for the fund must be kept as part of the departmental accounts of the department.

(3)Amounts received for the fund must be deposited in a departmental financial-institution account of the department but may be deposited in an account used for depositing other amounts of the department.

(4)Amounts received for the fund include—

(a)amounts paid to the department as part of the department’s departmental vote under the Financial Accountability Act 2009 and made available by the department for the fund; and

(b)penalties, costs and fees recovered or received by the chief executive; and

(c)amounts received for payment into the fund; and

(d)other amounts recovered or received under this Act if, under a regulation, the amounts must be paid into the fund.

(5)Amounts in the fund must be spent for—

(a)scientific or other research, training of persons, dissemination of information, or publication of material, for or about fisheries activities; or

(b)fish habitat enhancement, rehabilitation or exchange; or

(c)other fisheries related activities approved by the chief executive.

(6)In this section—

departmental accounts, of a department, means the accounts of the department under the Financial Accountability Act 2009, section 69.

departmental financial-institution account, of a department, means an account of the department kept under the Financial Accountability Act 2009, section 83.

other amounts, of a department, means amounts received by the department other than amounts received for the fund.

s 117 amd 1999 No. 29 s 50 sch; 2000 No. 26 s 13 sch 2; 2009 No. 9 s 136 sch 1; 2011 No. 3 s 18; 2014 No. 33 s 119

118Information requirements

(1)A regulation or management plan, a condition of an authority, or the chief executive by written notice, may require (an information requirement) a person to—

(a)obtain and keep for stated periods, in the approved form, stated documents or information (the required information) about—

(i)fishing, a fishery or fisheries resources; or

(ii)trade or commerce related to fishing, a fishery or fisheries resources; or

(b)give the chief executive or another stated person documents or information mentioned in paragraph (a) (also the required information), in writing or in another stated way, or at stated intervals or times.

Example of another stated person—

if the person of whom the requirement is made is a buyer of fisheries resources, the person who sold them to the buyer

Examples of another stated way—

•by a telephonic automated interactive voice response system

•by VMS equipment

•by recording the required information on the department’s website on the internet

(2)However, an information requirement may apply to or be made of a person only if the required information relates to the person, or could reasonably be expected to relate to the person.

(3)To remove any doubt, it is declared that, subject to subsection (2), subsection (1) is capable of applying to a person whether or not the person performs activities by way of fishing or other activities.

(4)A person to whom an information requirement applies, or of whom an information requirement has been made, must comply with the requirement unless, in the circumstances, the person could not reasonably have been expected to have, or to be able to obtain, the required information.

Maximum penalty for subsection (4)—

(a)1000 penalty units if—

(i)the required information is a docket or other document about the buying or selling of fisheries resources in trade or commerce; or

(ii)the person carries on a business that includes the processing of abalone and the required information relates to the business or the processing; or

(b)otherwise—500 penalty units.

s 118 amd 2000 No. 26 s 13 sch 2

sub 2002 No. 49 s 18

amd 2003 No. 82 s 35

sub 2006 No. 28 s 38

119Codes of practice

(1)The chief executive may prepare a code of practice for persons to whom this Act applies.

(2)The code may, for example, include the following—

(a)the way recreational or commercial fishing is to be conducted in a fishery;

(b)guidelines to be followed by persons engaged in particular activities in fishing;

(c)processes to be followed to resolve conflicts;

(d)standards to be adopted for boats, activities or processes in fishing or aquaculture;

(e)anything else decided by the chief executive.

(3)In preparing the code, the chief executive must take reasonable steps to engage in consultation about the code.

s 119 amd 2000 No. 26 s 13 sch 2; 2003 No. 82 s 36

120Declaration of fish habitat areas

An area may be declared under a regulation to be a fish habitat area.

122Protection of fisheries resources in declared fish habitat area

A person must not unlawfully perform, or cause to be performed, works or related activity in a declared fish habitat area.

Maximum penalty—3000 penalty units.

123Protection of marine plants

A person must not unlawfully—

(a)remove, destroy or damage a marine plant; or

(b)cause a marine plant to be removed, destroyed or damaged.

Maximum penalty—3000 penalty units.

Example of removing a marine plant—

removing seagrass from a beach or foreshore

Example of destroying a marine plant—

burning saltcouch

Example of damaging a marine plant—

pruning or trimming mangroves

s 123 sub 1999 No. 45 s 26

124Chief executive may rehabilitate or restore land etc.

(1)The chief executive may take the action reasonably necessary to rehabilitate or restore land, waters, marine plants or a declared fish habitat area if—

(a)the land, waters, marine plants or fish habitat area has been removed, destroyed or damaged; and

(b)the chief executive reasonably believes the removal, destruction or damage was caused by an act or omission that constituted a failure to comply with any of the following—

(i)this Act or the Planning Act, so far as it relates to fisheries development;

(ii)a former Act;

(iii)the repealed Fisheries Act 1957;

(iv)a condition of an authority or a fisheries development approval.

(2)The costs reasonably incurred by the chief executive in rehabilitating or restoring the land, waters, marine plants or declared fish habitat area are a debt payable by the person who caused the removal, destruction or damage to the State.

(3)If the person is convicted of an offence against this Act constituted by the removal, destruction or damage, the court may, as well as imposing a penalty for the offence, order the person to pay the amount of the costs to the State.

(4)Subsection (3) does not limit the court’s powers under the Penalties and Sentences Act 1992 or any other law.

s 124 amd 2001 No. 23 s 19; 2003 No. 82 s 37

125Notice to restore fish habitat etc.

(1)This section applies if—

(a)litter, soil, a noxious substance, refuse or other matter (the polluting matter) is on land, in waters, on marine plants or in a fish habitat; and

(b)it appears to the chief executive—

(i)that the polluting matter has prevented, or may prevent, fishing activities and that it is necessary or desirable for action to be taken about the polluting matter to enable the fishing activities to be carried out; or

(ii)that the polluting matter has had, or may have, an adverse effect on the quality or productive capacity of a fishery or fish stocks and that it is necessary or desirable for action to be taken about the polluting matter to protect or restore the quality of productive capacity of the fishery or fish stocks; or

(iii)that the polluting matter has had, or may have, an adverse effect on the quality or integrity of a fish habitat and that it is necessary or desirable for action to be taken about the polluting matter to protect or restore the quality or integrity of the fish habitat; or

(iv)that circumstances prescribed under the regulations exist in relation to the polluting matter and that it is necessary or desirable for action to be taken about the polluting matter to enable fishing activities to be carried out or to protect or restore the quality, productive capacity or integrity of fisheries resources.

(2)The chief executive may, by written notice, require the person who the chief executive suspects on reasonable grounds is responsible for the presence of the polluting matter to take specified action about the polluting matter within the time and in the way (if any) specified in the notice.

(3)The person must comply with the notice, unless the person has a reasonable excuse for not complying with it.

Maximum penalty—2000 penalty units.

(4)If the person does not comply with the notice, the chief executive may take action on any land or in any waters that the chief executive considers reasonably necessary to ensure that the matters mentioned in 1 or more of the subparagraphs of subsection (1)(b) are achieved.

(5)To enable action to be taken under subsection (4), the chief executive may authorise persons, with or without vehicles, machinery, plant and equipment to enter and stay on any land or in any waters.

(6)The costs reasonably incurred by the chief executive in taking action under subsection (4) are a debt payable by the person to the State.

(7)If the person is convicted of an offence against subsection (3), the court may, as well as imposing a penalty for the offence, order the person to pay the amount of the costs to the State.

(8)Subsection (7) does not limit the court’s powers under the Penalties and Sentences Act 1992 or any other law.

126Functions and powers of Minister

(1)The Minister may perform a function and exercise a power conferred on the Minister by the Commonwealth Fisheries Act, including a function or power of the Minister as a member of a Joint Authority.

(2)If, in the exercise of the power conferred on the Minister by the Commonwealth Fisheries Act, the Minister appoints a deputy, the deputy may perform the functions and exercise the powers conferred by that Act on the deputy of the Minister as a member of a Joint Authority.

127Minister to table reports of Joint Authorities

The Minister must table in the Legislative Assembly a copy of each report of a Joint Authority prepared under the Commonwealth Fisheries Act as soon as practicable after the report is received by the Minister.

128Judicial notice

Judicial notice must be taken of the signature of a person who is or has been a member of a Joint Authority, or a deputy of a member of a Joint Authority, and of the fact that the person is, or was at the particular time, a member of a Joint Authority or a deputy of a member of a Joint Authority.

129Functions of Joint Authorities

A Joint Authority has the functions conferred on it by this Act or the Commonwealth Fisheries Act.

130Delegation

(1)A Joint Authority may delegate its powers to—

(a)the chief executive, a local government or an entity prescribed under a regulation (a prescribed entity); or

(b)an officer or employee of the public service; or

(c)an officer, employee or member of a local government or prescribed entity; or

(d)an officer or employee of the Commonwealth or another State.

(2)A delegation of a power to the chief executive, a local government, a prescribed entity, or an officer or employee of the Commonwealth or another State, may permit the subdelegation of the power.

s 130 amd 2000 No. 26 s 13 sch 2

131Proceedings of Joint Authorities

(1)A Joint Authority is to conduct its meetings and other proceedings in accordance with the Commonwealth Fisheries Act.

(2)A written record of a decision of a Joint Authority, if signed by the Commonwealth Minister, or the Commonwealth Minister’s deputy, who took part in or made the decision is evidence that the decision, as recorded, was properly made and recorded.

(3)In a legal proceeding, a document signed for a Joint Authority by a member of the Joint Authority is taken to have been properly executed by the Joint Authority and, unless the contrary is proved, is taken to accord with a decision of the Joint Authority.

132Making of Joint Authority and other Commonwealth–State arrangements

(1)The State may make an arrangement under part 5 of the Commonwealth Fisheries Act for the management of a particular fishery, whether or not a Joint Authority is to have the management of a fishery under the arrangement.

(2)To remove any doubt, the arrangement is a statutory instrument to which the Acts Interpretation Act 1954, section 17 applies under the Statutory Instruments Act 1992, section 14.

s 132 amd 2004 No. 53 s 2 sch

132AVariation of Commonwealth–State arrangements

A Commonwealth–State arrangement may be varied in the way provided for under the Commonwealth Fisheries Act.

s 132A ins 2006 No. 28 s 39

133Ending of Commonwealth–State arrangements

(1)A Commonwealth–State arrangement for a fishery may be ended under the Commonwealth Fisheries Act.

(2)On the ending of the arrangement, all authorities issued, and regulations, management plans and declarations made, for the fishery expire.

134Application of Queensland law to fisheries

(1)If, under a Commonwealth–State arrangement, a fishery is to be managed under Queensland law, Queensland law applies to the fishery.

(2)Despite subsection (1), Queensland law does not apply to foreign boats, operations on or from foreign boats, or persons on foreign boats, or to matters happening before the arrangement commenced to which Commonwealth law applies.

135Additional functions of Joint Authority for fishery under Queensland law

If, under a Joint Authority arrangement, a fishery is to be managed by a Joint Authority under Queensland law, the Joint Authority has the following additional functions—

(a)keeping constantly under consideration the fishery’s condition;

(b)formulating policies and plans for the fishery’s management;

(c)exercising for the fishery’s management powers conferred on the Joint Authority under this Act;

(d)cooperating and consulting with other entities on issues of common interest.

136Exercise of powers for Joint Authority fishery under Queensland law

(1)This section applies to a Joint Authority fishery managed under Queensland law.

(2)An authority authorises something to be done in or to the fishery only if it is issued under this section.

(3)The Joint Authority for the fishery has, to the exclusion of the chief executive, all the chief executive’s functions and powers for the fishery.

(4)This Act and other laws apply to the Joint Authority as if, for the fishery, it were the chief executive.

(5)On the fishery becoming a Joint Authority fishery, but subject to any regulation made under this part, all regulations, management plans, declarations and authorities applying to the fishery stop applying to the fishery.

(6)An authority issued by the Joint Authority must contain a condition limiting it to fisheries managed by the Joint Authority.

(7)The Joint Authority may endorse an authority (including an authority issued by the Joint Authority or another Joint Authority within the meaning of the Commonwealth Fisheries Act) to extend its operation to activities over which the Joint Authority has powers under this Act.

(8)If the endorsement mentioned in subsection (7) is made—

(a)the endorsement ends if the authority ends; and

(b)the Joint Authority may suspend or cancel the endorsement under this Act as if it were an authority issued by it.

(9)This section does not allow the Joint Authority to issue, or take other action about, an authority for a foreign boat.

s 136 amd 2002 No. 49 s 19

137Application of provisions about offences

The provisions of this Act about offences, the enforcement of offences and proceedings for offences apply—

(a)to anything done in, or about, a Commonwealth–State fishery (the cooperative fishery) managed under Queensland law; and

(b)as if—

(i)a reference in this Act to an authority were a reference to an authority, or an endorsement of an authority, issued or made under this part for the cooperative fishery; and

(ii)a reference in this Act to a fishery were a reference to the cooperative fishery.

138Presumption about certain statements in arrangements

(1)A statement in a Commonwealth–State arrangement must be presumed to be correct if it is to the effect that—

(a)for an arrangement to which the Commonwealth and Queensland are the only parties—stated waters are waters relevant to Queensland; and

(b)in any other case—stated waters are waters adjacent to the States that are parties to the arrangement or are waters relevant to a stated State or States.

(2)A word or expression used in subsection (1) and the Commonwealth Fisheries Act has the same meaning in subsection (1) as it has in the Commonwealth Fisheries Act.

139Instruments for Commonwealth–State fisheries under Queensland law

(1)If, under a Commonwealth–State arrangement, a Commonwealth–State fishery is to be managed under Queensland law, a regulation may be made about any matter—

(a)required or permitted by this Act to be prescribed for a fishery or its management; or

(b)necessary or convenient to be prescribed for carrying out or giving effect to, or enabling the carrying out or giving effect to, decisions made under the arrangement; or

(c)if the fishery is a Joint Authority fishery—necessary or convenient to be prescribed for carrying out or giving effect to, or enabling the carrying out or giving effect to, decisions of the fishery’s Joint Authority about the fishery or its management.

(2)Subsection (1) does not limit the Statutory Instruments Act 1992, section 22.

(3)If an issue is to be decided about whether a regulation, management plan or declaration makes provision about a matter for a purpose mentioned in subsection (1)(b) or (c), it must be presumed that it makes provision for the purpose in the absence of evidence to the contrary.

140Appointment

(1)The chief executive may appoint any of the following persons as inspectors—

(a)employees of the department;

(b)officers of the public service;

(c)police officers;

(d)other persons prescribed under a regulation.

(2)The chief executive may appoint a person (other than a police officer) as an inspector only if—

(a)in the chief executive’s opinion, the person has the necessary expertise or experience to be an inspector; or

(b)the person has satisfactorily finished training approved by the chief executive.

s 140 amd 2000 No. 26 s 13 sch 2

140AFunctions of inspectors

An inspector has the function of conducting investigations and inspections to monitor and enforce compliance with—

(a)this Act; and

(b)the Planning Act, so far as it relates to fisheries development.

s 140A ins 2003 No. 82 s 38

141Limitation of inspector’s powers

The powers of an inspector may be limited—

(a)under a regulation; or

(b)under a condition of appointment; or

(c)by written notice of the chief executive given to the inspector.

142Inspector’s conditions of appointment

(1)An inspector holds office on the conditions specified in the instrument of appointment.

(2)An inspector—

(a)if the appointment provides for a term of appointment—ceases holding office at the end of the term; and

(b)may resign by signed notice of resignation given to the chief executive; and

(c)if the conditions of appointment provide—ceases holding office as an inspector on ceasing to hold another office stated in the conditions of appointment.

143Inspector’s identity card

(1)The chief executive must give each inspector an identity card.

(2)The identity card must—

(a)contain a recent photograph of the inspector; and

(b)be in an approved form; and

(c)be signed by the inspector; and

(d)identify the person as an inspector under this Act.

(3)A person who ceases to be an inspector must return the person’s identity card to the chief executive within 21 days after the person ceases to be an inspector, unless the person has a reasonable excuse for not returning it.

Maximum penalty—80 penalty units.

(4)This section does not apply to an inspector who is a police officer.

s 143 amd 2002 No. 49 s 37 sch

144Production or display of inspector’s identity card

(1)This section does not apply to a police officer.

(2)An inspector may exercise a power under this Act in relation to a person only if—

(a)the inspector first produces the inspector’s identity card for inspection by the person; or

(b)the inspector has the inspector’s identity card displayed so that it is clearly visible to the person.

(3)However, if for any reason, it is not practicable to comply with subsection (2), the inspector must produce the identity card for inspection by the person at the first reasonable opportunity.

s 144 amd 1996 No. 13 s 16; 2000 No. 5 s 373 sch 2; 2002 No. 49 s 37 sch

145Entry to places

(1)An inspector may enter a place if—

(a)its occupier consents to the entry or the purpose of the entry is to get the occupier’s consent; or

(b)it is a public place and the entry is made when it is open to the public; or

(c)it is mentioned in an authority, a fisheries development approval or an accepted development requirement as a place of business, or another place, required to be open for inspection and the entry is made when the place is—

(i)open for the conduct of business or otherwise open for entry; or

(ii)required under the authority, approval or accepted development requirement to be open for inspection; or

(d)the entry is permitted by a warrant; or

(e)the entry is necessary to take action the inspector is required or authorised to take under—

(i)an order under this Act for the taking and removal, or destruction, of fisheries resources; or

Note—

This order is made under section 108 (Order for taking and removing, or destroying, non-indigenous fisheries resources or aquaculture fish).

(ii)an order under this Act for the taking of action to stop or delay fisheries resources or plants from escaping.

Note—

This order is made under section 109 (Order to stop or delay escape of non-indigenous fisheries resources or aquaculture fish).

(2)An inspector may also enter a place if—

(a)the place is not within a city or town under the Local Government Act 2009; and

(b)the place is not the site or curtilage of a building or other structure used for residential purposes; and

(c)the purpose of the entry is to gain access, by a direct reasonable route, to a body of water.

(3)In addition, an inspector may enter on, and pass along, the beds, banks or borders of a body of water.

(4)In this section—

self-assessable development code means a code applying to self-assessable development.

s 145 amd 2003 No. 82 s 39; 2009 No. 17 s 331 sch 1; 2014 No. 7 s 540; 2016 No. 27 s 254

146Boarding of boats and entry of vehicles

(1)An inspector may board a boat to find out whether this Act is being complied with.

(2)An inspector may also board a boat or enter a vehicle if the inspector has reasonable grounds for suspecting—

(a)the boat or vehicle is being, or has been, used in the commission of an offence against this Act; or

(b)the boat or vehicle, or a thing in or on the boat or vehicle, may provide evidence of the commission of an offence against this Act.

(3)Before boarding an unattended boat or entering an unattended vehicle under this section, the inspector must take reasonable steps to advise its owner, or the person in control of it, of the intention to board or enter.

(4)However, an inspector may enter a secured part of an unattended boat only if the owner or person in control of the boat consents or the entry is permitted by a warrant.

147Boarding of boat, or entry of vehicle, that is moving or about to move

(1)This section applies if an inspector intends to board a boat or enter a vehicle under this division, including a boat that is being carried or towed by a vehicle.

(2)If the boat or vehicle is moving or about to move, the inspector may signal the person in control of the boat or vehicle to stop the boat or vehicle or not to move it.

(3)To enable the boat to be boarded or vehicle to be entered, the inspector may—

(a)act with necessary and reasonable help and force; and

(b)require the person in control of the boat or vehicle to give reasonable help to the inspector.

(4)A person must obey a signal under subsection (2), unless the person has a reasonable excuse for disobeying it.

Maximum penalty—200 penalty units.

(5)A person must comply with a requirement under subsection (3)(b), unless the person has a reasonable excuse for not complying with it.

Maximum penalty—200 penalty units.

(6)It is a reasonable excuse for a person to disobey a signal under subsection (2) if—

(a)the person reasonably believes that to obey the signal immediately would have endangered the person or someone else, or the boat or vehicle; and

(b)the person obeys the signal as soon as it is practicable to obey it.

148Warrants

(1)An inspector may apply to a magistrate for a warrant for a place or boat.

(2)The application must be sworn and state the grounds on which the warrant is sought.

(3)The magistrate may refuse to consider the application until the inspector gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires.

Example—

The magistrate may require additional information supporting the application be given by statutory declaration.

(4)The magistrate may issue a warrant only if the magistrate is satisfied there are reasonable grounds for suspecting—

(a)there is a particular thing or activity (the evidence) that may provide evidence of the commission of an offence against this Act; and

(b)the evidence is, or may be within the next 7 days, at the place or on the boat.

(5)The warrant must state—

(a)the inspector may, with necessary and reasonable help and force, enter the place, or board the boat, and exercise the inspector’s powers under this Act; and

(b)the evidence for which the warrant is issued; and

(c)the hours of the day when entry may be made; and

(d)the day (within 14 days after the warrant’s issue) when the warrant ends.

148AMonitoring warrants for abalone

(1)An inspector may apply to a magistrate for a warrant under this section for a place, other than a place, or part of a place used exclusively as a person’s residence, if the inspector is reasonably satisfied—

(a)abalone are at the place; and

(b)it is necessary for the inspector to enter the place to find out if this Act is being complied with in relation to abalone.

(2)The application must be sworn and state the grounds on which the warrant is sought.

(3)The magistrate may refuse to consider the application until the inspector gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires.

Example—

The magistrate may require additional information supporting the application to be given by statutory declaration.

(4)The magistrate may issue the warrant only if the magistrate is satisfied it is reasonably necessary that the inspector should have access to the place for the purpose of finding out whether this Act is being complied with in relation to abalone.

(5)The warrant must state—

(a)that an inspector may, with necessary and reasonable help and force—

(i)enter, and from time to time re-enter, the place; and

(ii)exercise an inspector’s powers under this part; and

(b)the purpose for which the warrant is sought; and

(c)the hours of the day or night when the place may be entered; and

(d)any conditions imposed by the magistrate; and

(e)the date, within 2 months after the warrant’s issue, the warrant ends.

Examples for paragraph (d)—

1The magistrate may limit the number of times an inspector may enter the place while the warrant is in force.

2The magistrate may require an inspector to give to the magistrate information about the use of the inspector’s powers under the warrant.

s 148A ins 1999 No. 45 s 27

149Warrants—applications made other than in person

(1)An inspector may apply for a warrant by phone, fax, radio or another form of communication if the inspector considers it necessary because of—

(a)urgent circumstances; or

(b)other special circumstances, including, for example, the inspector’s remote location.

(2)Before applying for the warrant, the inspector must prepare an application stating the grounds on which the warrant is sought.

(3)The inspector may apply for the warrant before the application is sworn.

(4)After issuing a warrant, the magistrate must immediately fax a copy to the inspector if it is reasonably practicable to fax the copy.

(5)If it is not reasonably practicable to fax a copy of the warrant to the inspector—

(a)the magistrate must—

(i)tell the inspector what the terms of the warrant are; and

(ii)tell the inspector the date and time the warrant was signed; and

(iii)record on the warrant the reasons for issuing it; and

(b)the inspector must—

(i)complete a form of warrant (warrant form) in the same terms as the warrant issued by the magistrate; and

(ii)write on the warrant form the name of the magistrate and the date and time the magistrate signed the warrant.

(6)The facsimile warrant, or the warrant form properly completed by the inspector, is permission for the entry and the exercise of the other powers permitted by the warrant issued by the magistrate.

(7)The inspector must send to the magistrate—

(a)the sworn application; and

(b)if a warrant form was completed by the inspector—the completed warrant form.

(8)The sworn application and a completed warrant form must be sent to the magistrate at the earliest practicable opportunity.

(9)When the magistrate receives the application and warrant form, the magistrate must attach them to the warrant issued by the magistrate.

(10)Unless the contrary is proved, a court must presume that the exercise of a power was not permitted by a warrant under this section if an issue arises, in a proceeding before the court, whether the exercise of power was authorised by a warrant under this section and the warrant is not produced in evidence.

150Inspector’s general powers for places, boats and vehicles

(1)An inspector who enters a place, boards a boat or enters a vehicle under this part may—

(a)search any part of the place, boat or vehicle; or

(b)examine, inspect, test, photograph or film anything in or on the place, boat or vehicle; or

(c)mark or seal a container or other thing in or on the place, boat or vehicle; or

(d)open a container if the inspector considers it is necessary for exercising a power; or

(e)take samples of or from anything in or on the place, boat or vehicle; or

(f)take extracts from, or make copies of, a document in or on the place, boat or vehicle; or

(g)take into or onto the place, boat or vehicle any persons, equipment and materials the inspector reasonably requires for exercising a power in relation to the place, boat or vehicle; or

(h)require a person in or on the place, boat or vehicle, or the occupier of the place, to give the inspector reasonable help for the exercise of the powers mentioned in paragraphs (a) to (g); or

(i)if the inspector boards a boat or enters a vehicle—by written notice given to the person in control of the boat or vehicle, require the person—

(i)to take the boat or vehicle to a stated reasonable place by a stated reasonable time; and

(ii)if necessary, to remain in control of the boat or vehicle at the place for a reasonable time;

to enable the inspector to exercise the powers mentioned in paragraphs (a) to (g); or

(j)if the inspector boards a boat or enters a vehicle—require the person in control of boat or vehicle to accompany the inspector to enable the inspector to comply with subsection (8).

(2)A person must not unlawfully break, remove or change a mark or seal placed on a container or thing under subsection (1)(c).

Maximum penalty—200 penalty units.

(3)A person who is required by an inspector under subsection (1)(h) to give the inspector reasonable help for the exercise of a power must comply with the requirement, unless the person has a reasonable excuse for not complying with it.

Maximum penalty—200 penalty units.

(4)If the help is required to be given by a person by—

(a)answering a question; or

(b)producing a document (other than an authority or other document required to be kept by the person under this Act);

it is a reasonable excuse for the person to fail to answer the question, or produce the document, if complying with the requirement might tend to incriminate the person.

(5)A person who is required by an inspector under subsection (1)(i) to take action in relation to a boat or vehicle must comply with the requirement, unless the person has a reasonable excuse for not complying with it.

Maximum penalty—200 penalty units.

(6)If, for any reason, it is not practicable to make a requirement under subsection (1)(i) by written notice, the requirement may be made orally and confirmed by written notice as soon as practicable.

(7)Nothing in this section prevents an inspector making a further requirement under subsection (1)(i) of the same person or another person in relation to the same boat or vehicle, if it is necessary and reasonable to make the further requirement.

(8)The inspector must not enter a part of a boat or vehicle used only as a living area, or exercise a power under subsection (1)(a) to (g) in relation to that part, unless the inspector is accompanied by the person in control of the boat or vehicle.

(9)Subsection (8) does not apply if the person in control of the boat or vehicle is unavailable or unwilling to accompany the inspector or the inspector is unable for another reason to comply with the subsection.

151Power to seize evidence from places etc.

(1)An inspector who enters a place or boards a boat under this part under a warrant may seize the evidence for which the warrant was issued.

(2)An inspector who enters a place under this part with the occupier’s consent may seize the particular thing for which the entry was made if the inspector believes on reasonable grounds the thing is evidence of an offence against this Act.

(3)An inspector who enters a place or boards a boat under this part under a warrant, or enters a place with the occupier’s consent, may also seize another thing if the inspector believes on reasonable grounds—

(a)the thing is evidence of the commission of an offence against this Act; and

(b)the seizure is necessary to prevent—

(i)the concealment, loss, death or destruction of the thing; or

(ii)the use of the thing in committing, continuing or repeating the offence.

(4)An inspector who enters a place under this part other than under a warrant or with the occupier’s consent may seize a thing if the inspector believes on reasonable grounds—

(a)the thing is evidence of the commission of an offence against this Act; and

(b)the seizure is necessary to prevent—

(i)the concealment, loss, death or destruction of the thing; or

(ii)the use of the thing in committing, continuing or repeating the offence.

(5)This section is in addition to, and does not limit, the powers of an inspector who boards a boat without a warrant.

152Power to seize evidence after boarding a boat or entering a vehicle

An inspector who boards a boat or enters a vehicle under this part may seize—

(a)a thing in or on the boat or vehicle; or

(b)the boat or vehicle itself;

if the inspector believes, on reasonable grounds, the thing, boat or vehicle is evidence of the commission of an offence against this Act.

153Additional power to seize fisheries resources etc.

(1)This section applies if an inspector—

(a)enters a place or vehicle or boards a boat; and

(b)finds fisheries resources, a container, fishing apparatus or anything else (the thing).

(2)The inspector may seize the thing if the inspector believes, on reasonable grounds—

(a)that an offence against this Act has been committed in relation to the thing; or

(b)that the thing was used in committing an offence against this Act.

(3)If the thing is a container, the inspector may seize the container and its contents if the inspector believes, on reasonable grounds, that—

(a)it contains fisheries resources, fishing apparatus or anything else (the contents); and

(b)an offence against this Act has been committed in relation to all or some of the contents.

154Seizure of fisheries resources in heap etc.

(1)In this section—

declared fisheries resources means fisheries resources declared under a regulation or management plan to be fisheries resources to which this section applies.

forfeiture offence means an offence against this Act declared under a regulation or management plan to be an offence to which this section applies.

threshold percentage for declared fisheries resources means the percentage (which may be nil) prescribed under a regulation or management plan for the fisheries resources.

(2)This section applies if—

(a)particular declared fisheries resources (the suspect fisheries resources) are part of declared fisheries resources in a heap, collection or container; and

(b)an inspector believes, on reasonable grounds, that—

(i)a forfeiture offence has been committed in relation to the suspect fisheries resources; and

(ii)the weight or number of the suspect fisheries resources expressed as a percentage of the total weight or number of the declared fisheries resources in the heap, collection or container is more than the threshold percentage for the fisheries resources.

Examples of heap, collection or container—

1a freezer on a boat stocked with a large quantity of frozen scallops

2fish in a processing establishment where, because of the quantity of the fish, it is impracticable to count the fish of a particular species or type

Examples of the ways an inspector may form a belief on reasonable grounds—

a statistical test or random sampling of the declared fisheries resources in the heap, collection or container

(3)The inspector may seize all the fisheries resources in the heap, collection or container and, if the fisheries resources are in a container, the container.

(4)If a person is later convicted of a forfeiture offence in relation to the suspect fisheries resources, then, for the purposes of the forfeiture of the fisheries resources in the heap, collection or container, all of those fisheries resources are taken to be fisheries resources the subject of the offence.

s 154 amd 1994 No. 87 s 3 sch 2

155Power to seize explosives etc.

(1)If—

(a)an inspector finds a person on a boat, a foreshore, or a bed, bank or border of a body of water; and

(b)the person is in possession of an explosive, powerhead or other explosive propelled missile, firearm, noxious substance, or device that creates an electrical field in waters or on land, (the suspect thing); and

(c)the inspector believes, on reasonable grounds, the suspect thing has just been used, or is just about to be used, to commit an offence against this Act;

the inspector may seize the suspect thing.

(2)This section is in addition to, and does not limit, any other seizure powers of an inspector.

156Powers in support of seizure

(1)This section applies if an inspector is permitted to seize a boat, vehicle or anything else.

(2)To enable the boat, vehicle or other thing to be seized, an inspector may, by written notice given to the person in control of the boat, vehicle or thing, require the person—

(a)to take it to a specified reasonable place by a specified reasonable time; and

(b)if necessary, to remain in control of it at the place for a reasonable time.

(3)If, for any reason, it is not practicable to make the requirement by a written notice, the requirement may be made orally and confirmed by written notice as soon as practicable.

(4)A person must comply with a requirement under this section, unless the person has a reasonable excuse for not complying with it.

Maximum penalty—200 penalty units.

(5)Nothing in this section prevents an inspector making a further requirement under this section of the same person or another person in relation to the same boat, vehicle or thing, if it is necessary and reasonable to make the further requirement.

157Receipt to be given

(1)As soon as practicable after a thing (including a boat or vehicle) is seized by an inspector under this Act, the inspector must give a receipt for it to the person from whom it was seized.

(2)The receipt must describe generally the condition of the thing seized and, if more than 1 thing is seized, must include an inventory or general description of them.

(3)If, for any reason, it is not practicable to comply with subsection (1), the inspector must—

(a)leave the receipt at the place where the thing is seized; and

(b)ensure the receipt is left in a reasonably secure way in a conspicuous position.

(4)This section does not apply if—

(a)it is not practicable to comply with subsection (1) or (3); and

(b)the owner of the thing can not be decided after reasonable inquiries or, having regard to its value, it is not reasonable to make inquiries about its owner.

Example of subsection (4)—

An inspector seizes an unattended crab pot or net that the inspector finds in a creek.

158Inspector to allow inspection etc.

Until a seized thing is forfeited, returned or otherwise finally dealt with under this Act, an inspector must allow a person who would be entitled to possession of it, if it had not been seized, to inspect it and, if it is a document, make copies of it.

159Inspector may dispose of fisheries resources taken unlawfully

(1)This section applies if fisheries resources are seized under this Act and an inspector believes, on reasonable grounds, that the fisheries resources have been taken unlawfully.

(2)If the fisheries resources are alive, the inspector may immediately return them to the wild or, if appropriate, the place from which they were taken.

(3)If the fisheries resources are dead and the inspector believes, on reasonable grounds, that they are putrid, unfit for sale, of no value or of insufficient value to justify their sale, the inspector may immediately dispose of the fisheries resources in a way decided by the inspector.

s 159 amd 2014 No. 7 s 541

160When seized fisheries resources become property of State

(1)This section applies if fish are seized under this Act and are not immediately returned to the wild or otherwise disposed of by an inspector under this subdivision.

(2)However, this section stops applying if the fisheries resources are sold under section 160A.

(3)The fisheries resources become the property of the State if—

(a)their seizure is not the subject of an appeal to a Magistrates Court within 7 days after their seizure; or

(b)their seizure is the subject of an appeal to a Magistrates Court within 7 days after their seizure, but the seizure is confirmed on appeal; or

(c)the chief executive and the owner of the fisheries resources agree, in writing, that the fisheries resources should become the chief executive’s property.

(4)If fisheries resources that become the property of the State under this section have a market value and it is practicable to sell them, the chief executive must sell them in a reasonable way decided by the chief executive or in a way agreed with the owner of the fisheries resources.

(5)If the fisheries resources do not have a market value or it is not practicable to sell them, the chief executive may dispose of them in any reasonable way decided by the chief executive or in a way agreed with the owner of the fisheries resources.

(6)However, if the fisheries resources are not fish that were live when they were seized and the seizure of the fisheries resources is the subject of an appeal to a Magistrates Court, the court may give directions about how the fisheries resources are to be sold or disposed of, whether or not it confirms the seizure.

s 160 amd 2000 No. 26 s 13 sch 2; 2006 No. 28 s 40

160AChief executive’s power to sell particular live seized fish

(1)This section applies if—

(a)seized fisheries resources mentioned in section 160(1) were live fish when they were seized; and

(b)the fish have not, under section 160, become the property of the State.

(2)The chief executive may sell the fish at any time after the seizure as if the fish were the property of the State.

(3)However, the sale must be carried out in a reasonable way decided by the chief executive or in a way agreed with the owner of the fish.

(4)Also, until the end of the period under 163(2), the chief executive must hold the net proceeds of the sale on trust for whoever will, under that section, be entitled to the net proceeds.

s 160A ins 2006 No. 28 s 41

161Chief executive may return seized things etc.

(1)The chief executive may return anything seized under this Act to its owner.

(2)If fisheries resources seized under this Act are sold by the chief executive, the chief executive may return the net proceeds of sale to the owner of the fisheries resources.

(3)The chief executive may return the thing or net proceeds of sale to its owner on conditions, including conditions to ensure that the thing or net proceeds of sale are available for forfeiture.

(4)If the thing or net proceeds of sale are not ordered to be forfeited to the State, the chief executive must return any property or security taken by the chief executive under a condition imposed under subsection (3) at the end of—

(a)6 months after the seizure; or

(b)if a prosecution for an offence involving the thing or fisheries resources is started within the 6 months—the prosecution for the offence and any appeal from the prosecution.

s 161 amd 2000 No. 26 s 13 sch 2

162Obligation to return seized things (other than fisheries resources)

(1)This section applies if a thing (other than fisheries resources) is seized under this Act.

(2)The chief executive must return the seized thing to its owner at the end of—

(a)6 months; or

(b)if a prosecution for an offence involving the thing is started within the 6 months—the prosecution for the offence and any appeal from the prosecution.

(3)Despite subsection (2), the chief executive must return the seized thing to its owner immediately if the chief executive is not satisfied or stops being satisfied its retention as evidence is necessary.

(4)However, the chief executive may keep the seized thing if the chief executive believes, on reasonable grounds, the thing is liable to forfeiture under this Act.

(5)This section does not require the return of the thing if a court has ordered that the thing be forfeited to the State.

s 162 amd 2000 No. 26 s 13 sch 2

163Obligation to pay net proceeds of sale of fisheries resources

(1)This section applies if—

(a)fisheries resources are seized under this Act; and

(b)the fisheries resources—

(i)are sold after becoming property of the State; or

(ii)are fish that have been sold under section 160A.

(2)The chief executive must pay the net proceeds of sale to the owner of the fisheries resources at the end of—

(a)6 months; or

(b)if a prosecution for an offence involving the fisheries resources is started within the 6 months—the prosecution for the offence and any appeal from the prosecution.

(3)This section does not require the payment of the net proceeds of sale if a court has—

(a)confirmed the seizure; or

(b)ordered that the net proceeds of sale be forfeited to the State.

s 163 amd 2000 No. 26 s 13 sch 2; 2006 No. 28 s 42

164Chief executive may order forfeiture of particular things

(1)This section applies if—

(a)a thing is seized under this Act; and

(b)the owner of the thing can not be found after reasonable inquiries or, having regard to its value, it is not reasonable to make inquiries about its owner.

(2)This section also applies if—

(a)a thing is seized under this Act; and

(b)the thing contravenes this Act or other fisheries legislation, but a prosecution involving the thing is not started.

Example of subsection (2)—

fishing apparatus of illegal dimensions

(3)In addition, this section also applies if—

(a)a thing is seized under this Act; and

(b)the chief executive is unable, after making reasonable efforts, to return the thing to its owner.

(4)The chief executive may order the forfeiture of the thing to the State.

s 164 amd 2000 No. 26 s 13 sch 2; 2004 No. 53 s 2 sch

165Where and how to start appeal

(1)A person whose fisheries resources have been seized under this Act may appeal to the Magistrates Court nearest where the fisheries resources were seized.

(2)However, the person may not appeal, and any appeal already started by the person lapses, if the fisheries resources become the property of the State.

(3)The appeal is started by—

(a)filing a written notice of appeal with the clerk of the court of the Magistrates Court; and

(b)giving a copy of the notice to the chief executive.

(4)Without limiting subsection (3)(b), the chief executive is given a copy of the notice if a copy is given to the inspector who seized the fisheries resources.

(5)The notice of appeal must state the grounds of the appeal.

s 165 amd 2000 No. 26 s 13 sch 2

166Hearing procedures

(1)The power to make rules of court under the Magistrates Courts Act 1921 includes power to make rules of court for appeals to Magistrates Courts under this Act.

(2)The procedure for an appeal to a Magistrates Court under this Act is to be—

(a)in accordance with the rules made under the Magistrates Courts Act 1921; or

(b)in the absence of relevant rules, as directed by a magistrate.

(3)In deciding the appeal, the Magistrates Court—

(a)is not bound by the rules of evidence; and

(b)must observe natural justice; and

(c)may hear the appeal in court or chambers.

167Powers of Magistrates Court on appeal

In deciding the appeal, the Magistrates Court may—

(a)confirm the seizure of the fisheries resources; or

(b)set aside the seizure and order the return of the fisheries resources.

168Court may give directions about disposal of seized fisheries resources

If the Magistrates Court confirms the seizure, it may direct the chief executive how to sell or otherwise dispose of the fisheries resources.

s 168 amd 2000 No. 26 s 13 sch 2

169Appeal to District Court on questions of law only

A party dissatisfied by the decision of the Magistrates Court may appeal to the District Court, but only on a question of law.

s 169 amd 1999 No. 19 s 3 sch

170Power to stop persons

(1)An inspector may require a person to stop, and not to move on until permitted by the inspector, if the inspector—

(a)finds the person committing an offence against this Act; or

(b)finds the person in circumstances that lead, or has information that leads, the inspector to suspect on reasonable grounds the person has just committed an offence against this Act.

(2)The inspector may require the person not to move on only for as long as is reasonably necessary for the inspector to exercise the inspector’s powers under this Act in relation to the person.

(3)A person must comply with a requirement under subsection (1), unless the person has a reasonable excuse for not complying with it.

Maximum penalty for subsection (3)—200 penalty units.

171Power to require name and address

(1)An inspector may require a person to state the person’s name and address if the inspector—

(a)finds the person committing an offence against this Act; or

(b)finds the person in circumstances that lead, or has information that leads, the inspector to suspect on reasonable grounds the person has just committed an offence against this Act.

(2)When making the requirement, the inspector must warn the person it is an offence to fail to state the person’s name and address, unless the person has a reasonable excuse.

(3)The inspector may require the person to give evidence of the correctness of the person’s stated name or address if the inspector suspects, on reasonable grounds, the stated name or address is false.

(4)A person must comply with an inspector’s requirement under subsection (1) or (3), unless the person has a reasonable excuse for not complying with it.

Maximum penalty—200 penalty units.

(5)The person does not commit an offence against this section if—

(a)the inspector required the person to state the person’s name and address on suspicion of the person having committed an offence against this Act; and

(b)the person is not proved to have committed the offence.

s 171 amd 2000 No. 5 s 373 sch 3

172Power to require information from certain persons

(1)This section applies if an inspector suspects, on reasonable grounds, that—

(a)an offence against this Act has been committed; and

(b)a person may be able to give information about the offence.

(2)The inspector may require the person to give information about the offence.

(3)When making the requirement, the inspector must warn the person it is an offence to fail to give the information, unless the person has a reasonable excuse.

(4)The person must comply with the requirement, unless the person has a reasonable excuse for not complying with it.

Maximum penalty—200 penalty units.

(5)It is a reasonable excuse for the person to fail to give information if giving the information might tend to incriminate the person.

(6)The person does not commit an offence against this section if the information sought by the inspector is not in fact relevant to the offence.

173Power to require production of documents

(1)An inspector may require a person to produce for inspection—

(a)a document required to be kept by the person under this Act; or

(b)if the person is engaged in the business of buying or selling fisheries resources by wholesale or retail—a document about the buying or selling of fisheries resources in the person’s possession.

(2)A person required under this Act to have a document available for immediate inspection must produce it immediately for inspection by the inspector or someone else specified by the inspector, unless the person has a reasonable excuse for not producing it.

Maximum penalty—500 penalty units.

(3)In any other case, a person required under this Act to keep a document must produce it immediately, or within a reasonable time allowed by the inspector, for inspection by the inspector or someone else specified by the inspector, unless the person has a reasonable excuse for not producing it.

Maximum penalty—200 penalty units.

(4)The inspector may keep the document to make a copy of it.

(5)The inspector must return the document to the person as soon as practicable after making the copy.

174Restraining orders against persistent offenders

(1)The chief executive may apply to the District Court for an order restraining a person from—

(a)continuing or repeating a particular activity; or

(b)committing an offence against this Act.

(2)The court may make an order under subsection (1)(a) if it is satisfied—

(a)the person will commit an offence against this Act if the person continues or repeats the activity; and

(b)the activity may seriously harm fisheries resources or a fish habitat.

(3)The court may make an order under subsection (1)(b) if it is satisfied that the person has been convicted of an offence against this Act on at least 3 separate occasions.

(4)If a person contravenes an order under this section, the person commits an offence against this subsection.

Maximum penalty for subsection (4)—1000 penalty units.

s 174 amd 2000 No. 5 s 373 sch 3; 2000 No. 26 s 13 sch 2

175False or misleading information

(1)A person must not—

(a)state anything to the chief executive or an inspector the person knows is false or misleading in a material particular; or

(b)omit from a statement made to the chief executive or an inspector anything without which the statement is, to the person’s knowledge, misleading in a material particular.

Maximum penalty—500 penalty units.

(2)A complaint against a person for an offence against subsection (1)(a) or (b) is sufficient if it states the statement made was false or misleading to the person’s knowledge.

s 175 amd 2004 No. 27 s 12

176False, misleading or incomplete documents

(1)A person must not give the chief executive or an inspector a document containing information the person knows is false, misleading or incomplete in a material particular.

Maximum penalty—500 penalty units.

(2)Subsection (1) does not apply to a person who, when giving the document—

(a)informs the chief executive or inspector, to the best of the person’s ability, how it is false, misleading or incomplete; and

(b)gives the correct information to the chief executive or inspector if the person has, or can reasonably obtain, the correct information.

(3)A complaint against a person for an offence against subsection (1) is sufficient if it states the document was false, misleading or incomplete to the person’s knowledge.

s 176 amd 2000 No. 26 s 13 sch 2

177Forfeiture on conviction

(1)On the conviction of a person for an offence against this Act, the court may order the forfeiture to the State of any of the following—

(a)anything (including a boat or vehicle) used to commit the offence;

(b)fisheries resources the subject of the offence or, if the fisheries resources have been sold by the chief executive, the net proceeds of sale;

(c)anything else the subject of the offence.

(2)The court may make an order under subsection (1) in relation to a thing or fisheries resources—

(a)whether or not the thing or fisheries resources have been seized under this Act; and

(b)if the thing or fisheries resources have been seized—whether or not the thing or fisheries resources have been returned to its or their owner.

(3)The court may make any order to enforce the forfeiture that it considers appropriate.

(4)This section does not limit the court’s powers under the Penalties and Sentences Act 1992 or any other law.

s 177 amd 2000 No. 26 s 13 sch 2

178Dealing with forfeited things

(1)On the forfeiture of a thing (including fisheries resources or net proceeds of sale), the thing becomes the property of the State and may be dealt with by the chief executive as the chief executive considers appropriate.

(2)Without limiting subsection (1), the chief executive may—

(a)sell it to its previous owner or a person who had a legal or beneficial interest in it; or

(b)sell it to anyone else (by auction, tender or otherwise); or

(c)destroy it or give it away.

s 178 amd 2000 No. 26 s 13 sch 2

179Compensation

(1)A person may claim compensation from the chief executive if the person incurs loss or expense because of the exercise or purported exercise of a power under this part.

(2)Payment of compensation may be claimed and ordered in a proceeding for—

(a)compensation brought in a court of competent jurisdiction; or

(b)an offence against this Act brought against the person making the claim for compensation.

(3)A court may order the payment of compensation for the loss or expense only if it is satisfied it is just to make the order in the circumstances of the particular case.

(4)However, the court may not order payment of compensation for the lawful seizure, or lawful seizure and forfeiture, of anything under this part.

s 179 amd 2000 No. 26 s 13 sch 2

180Inspector to give notice of damage

(1)An inspector who, in the exercise or purported exercise of a power under this part, damages anything must immediately give written notice of the particulars of the damage.

(2)The notice must be given to—

(a)for damage to a boat or vehicle or a thing on a boat or vehicle—the person in control of the boat or vehicle; or

(b)for damage to anything else—the person who appears to the inspector to be the owner of the thing.

(3)If, for any reason, it is not practicable to comply with subsection (2), the inspector must—

(a)leave the notice at the place where the damage happened; and

(b)ensure the notice is left in a reasonably secure way and in a conspicuous position.

(4)This section does not apply to a police officer.

s 180 amd 2000 No. 5 s 373 sch 3

181Consent to entry

(1)This section applies if an inspector intends to seek the consent of an occupier of a place to an inspector entering the place under this part.

(2)This section also applies if an inspector intends to seek the consent of the owner or person in control of an unattended boat to an inspector entering a secured part of the boat under this part.

(3)Before seeking the consent, the inspector must inform the occupier, owner or other person (the person)—

(a)of the purpose of the search; and

(b)that anything seized during the search may be used in evidence in court; and

(c)that the person is not required to consent.

(4)If the consent is given, the inspector may ask the person to sign an acknowledgement of the consent.

(5)The acknowledgement must—

(a)state the person was informed—

(i)of the purpose of the search; and

(ii)that anything seized during the search may be used in evidence in court; and

(iii)that the person was not required to consent; and

(b)state the person gave the inspector consent under this part—

(i)to enter the place or secured part of the boat; and

(ii)to exercise powers under this Act; and

(c)state the time and date the consent was given.

(6)If the person signs an acknowledgement of consent, the inspector must immediately give a copy to the person.

182Obstruction etc. of inspector

(1)A person must not obstruct an inspector in the exercise of a power, unless the person has a reasonable excuse.

Maximum penalty—1000 penalty units.

(2)In this section—

obstruct includes assault, hinder, resist and attempt or threaten to obstruct.

s 182 amd 2004 No. 27 s 13

183Impersonation of inspector

A person must not pretend to be an inspector.

Maximum penalty—1000 penalty units.

184Evidentiary provisions

(1)This section applies to a proceeding under this Act or other fisheries legislation.

(2)The appointment or power of an inspector must be presumed unless a party, by reasonable notice, requires proof of—

(a)the appointment; or

(b)the inspector’s power to do anything under this Act.

(3)A signature purporting to be the signature of the chief executive or an inspector is evidence of the signature it purports to be.

(4)A certificate purporting to be signed by a person mentioned in subsection (3) and stating any of the following matters is evidence of the matter—

(a)a stated document is—

(i)an authority or a copy of an authority; or

(ii)an order, direction, requirement or decision, or a copy of an order direction, requirement or decision, given or made under this Act; or

(iii)a notice, or a copy of a notice, given under this Act; or

(iv)a record, or a copy of a record, kept under this Act; or

(v)a document, or a copy of a document, kept under this Act;

(b)on a stated day, or during a stated period, a stated person was or was not the holder of an authority or a stated authority;

(c)a stated authority was or was not in force on a stated day or during a stated period;

(d)on a stated day, an authority—

(i)was suspended for a stated period; or

(ii)was cancelled;

(e)on a stated day, a stated person was given a stated notice, order, requirement or direction under this Act;

(f)a stated fee or other amount is payable by a stated person to the chief executive and has not been paid;

(g)anything else prescribed by regulation.

(5)A certificate signed by a person mentioned in subsection (3) stating that the person used equipment prescribed under a regulation to retrieve data, sent from the VMS equipment for a stated boat, that recorded the VMS equipment’s position to be at a stated place at a stated time on a stated day is evidence that the boat was at the place at the time on the day.

(6)A single certificate may be issued for data sent at more than 1 time on a day or on more than 1 day.

Example for subsections (5) and (6)—

An inspector signs a certificate stating that, on 21 January 2004, the inspector, using ABC equipment, being equipment prescribed under a regulation, retrieved data sent from the VMS equipment for XYZ boat that recorded the VMS equipment’s position to be—

(a)at latitude 24º33'07" south and longitude 152º57'25" east at 9.30a.m. on 1 January 2002; and

(b)at latitude 24º28'00" south and longitude 152º55'32" east at 12.45p.m. on 5 January 2002.

The inspector’s certificate is evidence the XYZ boat was at the places stated in paragraphs (a) and (b) at the times and on the days stated.

(7)If it is relevant to establish a person took fish, evidence that the person possessed the fish at any time is evidence that the person took the fish.

(8)In this section—

VMS equipment for a stated boat means the VMS equipment required by an authority to be carried on the stated boat.

s 184 amd 1997 No. 73 s 32; 2000 No. 26 s 13 sch 2; 2003 No. 82 s 40

pt hdg sub 2009 No. 24 s 517

pt 9 div 1 hdg om 2009 No. 24 s 517

pt 9 div 2 hdg om 2009 No. 24 s 517

pt 9 div 3 hdg om 2009 No. 24 s 517

185Who may apply for review

(1)A person who is dissatisfied by an order, direction, requirement or other decision of the chief executive may apply, as provided under the QCAT Act, to QCAT for a review of the decision on 1 or more of the following grounds—

(a)the decision of the chief executive was contrary to this Act;

(b)the decision of the chief executive was manifestly unfair;

(c)the decision of the chief executive will cause severe personal hardship to the person.

(2)However, the following decisions can not be reviewed—

(a)a decision of the chief executive about policy, including, for example, a decision of the chief executive about the shark control program;

(b)a decision of the chief executive about starting or continuing a prosecution against a person for an offence against this Act;

(c)a decision of the chief executive about an officer or employee of the department in the person’s capacity as an officer or employee;

(d)a decision of the chief executive about delegating a power by the chief executive;

(e)a decision of the chief executive about making a management plan or declaration;

(f)a decision of the chief executive about appointing a person as an inspector.

(3)In this section, a reference to a decision includes a reference to a failure to make a decision within a reasonable time.

(4)The chief executive must give an information notice for a decision only if this Act so requires.

s 185 sub 2009 No. 24 s 517

amd 2016 No. 27 s 255

186Constitution of tribunal

(1)For a proceeding for a matter under this Act, the tribunal is to be constituted by—

(a)1 legally qualified member; and

(b)2 other QCAT members, at least 1 of whom must have extensive knowledge of and experience in the fishing industry and other fisheries issues.

(2)The person mentioned in subsection (1)(a) is the presiding member for the proceedings.

(3)In this section—

legally qualified member means a legally qualified member under the QCAT Act.

QCAT member means a member under the QCAT Act.

s 186 amd 1996 No. 59 s 36; 2000 No. 26 s 13 sch 2

sub 2009 No. 24 s 517

amd 2009 No. 48 s 147

215Attempts to commit offences

(1)A person who attempts to commit an offence against this Act commits an offence.

Maximum penalty—half the maximum penalty for committing the offence.

(2)Section 4 of the Criminal Code applies to subsection (1).

216Responsibility for acts or omissions of representatives

(1)In this section—

representative means—

(a)of a corporation—an executive officer, employee or agent of the corporation; or

(b)of an individual—an employee or agent of the individual.

state of mind of a person includes—

(a)the person’s knowledge, intention, opinion, belief or purpose; and

(b)the person’s reasons for the intention, opinion, belief or purpose.

(2)Subsections (3) and (4) apply in a proceeding for an offence against this Act.

(3)If it is relevant to prove a person’s state of mind about a particular act or omission, it is enough to show—

(a)the act or omission was done or omitted to be done by a representative of the person within the scope of the representative’s actual or apparent authority; and

(b)the representative had the state of mind.

(4)An act or omission done or omitted to be done for a person by a representative of the person within the scope of the representative’s actual or apparent authority is taken to have been done or omitted to be done also by the person, unless the person proves the person took all reasonable steps to prevent the act or omission.

217Protection from liability

(1)In this section—

official means—

(a)the chief executive; or

(b)an officer or employee of the department; or

(d)an inspector; or

(e)a person helping an inspector at the inspector’s direction.

(2)An official does not incur civil liability for an act done, or omission made, honestly and without negligence under this Act.

(3)If subsection (2) prevents a civil liability attaching to an official, the liability attaches instead to the State.

s 217 amd 2000 No. 26 s 13 sch 2

217AAuthority to disclose personal information

(1)The chief executive may disclose personal information about an individual to a prescribed government entity if the chief executive is satisfied on reasonable grounds that—

(a)the information would help the entity to perform its function of investigating or taking action in relation to criminal offences; and

(b)disclosure of the information is appropriate in the circumstances.

(2)Also, the chief executive may disclose personal information about an individual to a prescribed government entity if—

(a)the entity asks for the information; and

(b)the entity states that the information would help the entity to perform its function of investigating or taking action in relation to criminal offences; and

(c)the entity undertakes not to use the information for any other purpose.

(3)The chief executive may develop a policy about matters to be considered in making a decision about disclosing personal information.

Editor’s note—

See the department’s website for a copy of a policy developed under this section.

(4)The chief executive can not, under section 21, delegate a power under this section.

(5)In this section—

personal information—

1

Personal information, about an individual, means information or an opinion about the individual, held by the chief executive, if—

(a)the individual’s identity is apparent or can reasonably be found out from the information or opinion; and

(b)the information or opinion came to the chief executive in the course of the administration of this Act.

2Information or an opinion can be personal information whether or not the information or opinion is true, is recorded in a material form or forms part of a database.

prescribed government entity means—

(a)a Minister of the State, another State or the Commonwealth; or

(b)an entity of or representing the State, another State, a Territory or the Commonwealth in relation to a function the entity has under a law to investigate or take action in relation to criminal offences.

Examples of a prescribed government entity—

Australian Taxation Office, Australian Federal Police, the police service of the State or another State, a government entity responsible for the management of aquatic ecosystems in the Commonwealth or another State

s 217A ins 2004 No. 27 s 14

218Identification of boundaries

If, under this Act, a place or area is prescribed under a regulation or is specified in another way under this Act or in a document issued under this Act, the boundaries of the place or area may be described—

(a)by reference to posts, stakes, buoys, marks or natural features; or

(b)by reference to points or areas identified from satellite navigation data, latitude or longitude or map grid references; or

(c)in another way that is reasonably adequate to identify the place or area.

219Holder of authority responsible for ensuring Act complied with

(1)The holder of an authority must ensure that everyone acting under the authority complies with this Act.

(2)If another person acting under the authority commits an offence against a provision of this Act, the holder of the authority also commits an offence, namely, the offence of failing to ensure the other person complied with the provision.

Maximum penalty—the penalty prescribed for contravention of the provision.

(3)Evidence that the other person has been convicted of an offence against the provision while acting under the authority is evidence that the holder of the authority committed the offence of failing to ensure the other person complied with the provision.

(4)However, it is a defence for the holder of the authority to prove—

(a)the holder issued appropriate instructions and used all reasonable precautions to ensure compliance with this Act; and

(b)the offence was committed without the holder’s knowledge; and

(c)the holder could not by the exercise of reasonable diligence have stopped the commission of the offence.

220Start of offence proceedings

A proceeding for an offence against this Act may be started within—

(a)1 year after the offence is committed; or

(b)1 year after the offence comes to the complainant’s knowledge, but within 2 years after the offence is committed.

221Inspector not to have interest in authority

(1)An inspector must not hold or have an interest in an authority.

Maximum penalty—500 penalty units.

(2)This section does not apply to an authority prescribed under a regulation or in circumstances prescribed under a regulation.

221AApproved forms

The chief executive may approve forms for use under this Act, other than for part 9.

s 221A ins 2002 No. 49 s 20

223Regulation-making power

(1)The Governor in Council may make regulations under this Act.

(2)A regulation may—

(a)prescribe the fees payable under this Act; or

(b)state, for the Planning Act, the types of development applications, and change applications, relating to fisheries development that is building work that do not require referral to a referral agency under that Act; or

(c)create offences and prescribe penalties of not more than 100 penalty units for each offence; or

(d)prescribe circumstances in which an act or omission that is otherwise an offence under this Act is not an offence.

(3)In this section—

change application—

(a)means a change application under the Planning Act; but

(b)does not include a change application for a minor change to a development approval, as defined in that Act.

s 223 amd 2003 No. 82 s 43; 2016 No. 27 s 256

224Application of division

This division applies to references in Acts or documents.

s 224 amd 1994 No. 87 s 3 sch 2

225Fisheries Act 1976 references

A reference to the Fisheries Act 1976 is taken to be a reference to this Act.

226Fishing Industry Organisation and Marketing Act 1982 references

A reference to the Fishing Industry Organisation and Marketing Act 1982 is taken to be a reference to this Act.

div hdg prev div 2 hdg exp 10 September 1995 (see s 228(2) and 1995 SL No. 56)

pres div 2 hdg ins 2000 No. 26 s 5

227Definitions for div 2

In this division—

amending Act means the Primary Industries and Natural Resources Legislation Amendment Act 2000.

Authority means the Queensland Fisheries Management Authority in existence immediately before the commencement.

commencement means the commencement of section 5 of the amending Act.

contract employee means a person who, immediately before the commencement, was employed by the Authority under a written contract, whether or not for a fixed term.

s 227 sub 2000 No. 26 s 5

228Dissolution of Authority

On the commencement, the Authority is dissolved and its members go out of office.

s 228 prev s 228 exp 10 September 1995 (see s 228(2) and 1995 SL No. 56)

pres s 228 ins 2000 No. 26 s 5

229Vesting of assets, rights and liabilities

On the commencement—

(a)the assets, rights and liabilities of the Authority vest in the State; and

(b)the State is substituted for the Authority in all contracts to which the Authority is a party.

s 229 prev s 229 exp 10 March 1995 (see s 229(6) and 1995 SL No. 56)

pres s 229 ins 2000 No. 26 s 5

230Decisions, documents etc. of Authority

A decision or recommendation made, licence, notice or other document made or given, or other action taken, before the commencement, by the Authority is taken to have been made, given or taken by the chief executive.

s 230 prev s 230 exp 10 March 1995 (see s 230(3) and 1995 SL No. 56)

pres s 230 ins 2000 No. 26 s 5

231Legal proceedings

A legal proceeding that could have been started or continued by or against the Authority before the commencement may be started or continued by or against the State.

s 231 prev s 231 exp 10 March 1995 (see s 231(3) and 1995 SL No. 56)

pres s 231 ins 2000 No. 26 s 5

232References to Authority

A reference in an Act or document in existence immediately before the commencement to the Authority is—

(a)if the reference is to the ownership or vesting of property in the Authority—a reference to the State; and

(b)otherwise—a reference to the chief executive.

s 232 prev s 232 exp 10 March 1995 (see s 232(2) and 1995 SL No. 56)

pres s 232 ins 2000 No. 26 s 5

233Duty to register transfer of property

(1)The registrar of titles and all persons who keep registers of dealings in property must, if asked by the State, make in the register all entries necessary to record the vesting of stated properties in the State by this division.

(2)The request is not liable to fees.

s 233 prev s 233 exp 10 March 1995 (see s 233(3) and 1995 SL No. 56)

pres s 233 ins 2000 No. 26 s 5

234Employees of the Authority

(1)On the commencement, a person who, immediately before the commencement, was an employee of the Authority—

(a)becomes a public service employee; and

(b)has a right to a salary or wage rate not lower than the person’s salary or wage rate immediately before the commencement.

(2)For subsection (1)(a)—

(a)a person who, immediately before the commencement was a permanent employee of the Authority is taken to be a public service officer; and

(b)a person who, immediately before the commencement was a temporary employee of the Authority is taken to be a temporary employee; and

(c)a person who, immediately before the commencement was a casual employee of the Authority is taken to be a temporary employee on a casual basis.

(3)This section does not apply to a contract employee.

s 234 prev s 234 exp 10 March 1995 (see s 234(2) and 1995 SL No. 56)

pres s 234 ins 2000 No. 26 s 5

235Contract employees

(1)On the commencement, a contract employee becomes a public service officer.

(2)Despite anything in the Public Service Act 1996—

(a)the person continues to be engaged and employed in the department under the terms of the person’s contract with the Authority; and

(b)to remove doubt, it is declared that, if the person’s employment under the contract is terminated under the terms of the contract, the termination does not affect any rights to compensation to which the person is entitled under the terms of the contract.

(3)Subject to subsection (2), the person’s contract with the Authority is taken to be a contract under the Public Service Act 1996, and that Act applies to the contract as if it were a contract for a fixed term under that Act.

(4)The Public Service Act 1996, section 71, does not apply to the person.

(5)A reference in the contract to the Authority as the employer under the contract is taken to be a reference to the chief executive.

s 235 prev s 235 exp 10 March 1996 (see s 235(6) and 1995 SL No. 56)

pres s 235 ins 2000 No. 26 s 5

236Accrued entitlements

A person who becomes a public service employee under this division keeps all entitlements to recreation, sick, long service and other leave, superannuation and other benefits accrued by the person, immediately before the commencement, as an employee of the Authority.

s 236 prev s 236 exp 10 March 1995 (see s 236(2) and 1995 SL No. 56)

pres s 236 ins 2000 No. 26 s 5

237Industrial instruments

Industrial instruments under the Industrial Relations Act 1999 in force immediately before the commencement, and applying to an employee of the Authority, continue in force under that Act after the commencement and apply to the person as a public service employee.

s 237 prev s 237 exp 10 March 1995 (see s 237(2) and 1995 SL No. 56)

pres s 237 ins 2000 No. 26 s 5

div hdg ins 2001 No. 23 s 22

239Validation of renewals of expired former authorities

(1)This section applies if, under former section 58, a fisheries agency renewed, or purported to renew, an expired former authority (other than a permit) that expired before the relevant renewal application was made.

(2)The renewal, or purported renewal, is taken to be, and to have always been, validly made under this Act whether or not it could lawfully have been made under former section 58.

(3)In this section—

fisheries agency means the chief executive or the former Queensland Fisheries Management Authority.

former section 58 means section 58 of this Act, as in force from time to time before the Fisheries Amendment Act 2001 commenced.

s 239 prev s 239 exp 10 March 1995 (see s 239(3) and 1995 SL No. 56)

pres s 239 ins 2001 No. 23 s 22

div hdg ins 2003 No. 82 s 44

sdiv hdg ins 2003 No. 82 s 44

240Definitions for div 4

In this division—

amending Act means the Primary Industries and Other Legislation Amendment Act 2003.

currency period, for a development permit, means the relevant period mentioned in the repealed Sustainable Planning Act 2009, section 341 in relation to the permit.

def currency period ins 2016 No. 27 s 257

relevant authority means any of the following—

(a)an aquaculture licence;

(b)an approval, under section 114 of the unamended Act, to build a waterway barrier works;

(c)a permit to perform works or related activity in a declared fish habitat area;

(d)a permit to remove, destroy or damage marine plants.

unamended Act means this Act as in force before the commencement of section 241.

s 240 prev s 240 exp 10 March 1995 (see s 240(3) and 1995 SL No. 56)

pres s 240 ins 2003 No. 82 s 44

sdiv hdg ins 2003 No. 82 s 44

241Continuing effect of existing licences or permits

(1)This section applies to the following authorities in force immediately before the commencement of this section or issued under section 252—

(a)an aquaculture licence other than an aquaculture licence for harvesting wild oysters from foreshores;

(b)a permit for the performance of works in a declared fish habitat area;

(c)a permit for the removal, destruction or damage of marine plants.

(2)From the commencement, the authority has effect as if—

(a)the authority were a development permit, for which the chief executive was the assessment manager, for—

(i)if the authority is an aquaculture licence—a material change of use of premises; or

(ii)if the authority is a permit for the performance of works in a declared fish habitat area or for the removal, destruction or damage of marine plants—operational works; and

(b)the conditions of the authority, to the extent they relate to development, were conditions of the development permit; and

(c)the term of the authority were the currency period of the development permit; and

(d)if the development under a development permit would, if the development permit was applied for after the commencement, require a resource allocation authority for Queensland waters, unallocated tidal land or declared fish habitat area—

(i)the relevant resource allocation authority for the development had been issued; and

(ii)the conditions of the authority, to the extent they relate to the use of a declared fish habitat area, Queensland waters or unallocated tidal land, were conditions of the resource allocation authority; and

(iii)the term of the authority were the term of the resource allocation authority.

Editor’s note—

See section 76B for developments that require a resource allocation authority.

(3)However, subsection (2) applies only to authorise the holder of the authority to carry out activities for which an authority mentioned in subsection (1) could have been granted under the unamended Act.

(4)If the currency period does not end within 6 months after the commencement, the chief executive must, as soon as practicable, issue the holder of the authority—

(a)a development permit; and

(b)if the development under a development permit would, if the development permit was applied for after the commencement, require a resource allocation authority for Queensland waters, unallocated tidal land or declared fish habitat area—a relevant resource allocation authority for the development.

(5)A development permit or resource allocation authority issued under subsection (4) must state—

(a)for the permit—the currency period for, and conditions of, the permit; or

(b)for the authority—the term and conditions of the authority.

s 241 prev s 241 exp 10 March 1995 (see s 241(2) and 1995 SL No. 56)

pres s 241 ins 2003 No. 82 s 44

242Continuing effect of existing approvals for waterway barrier works

(1)This section applies to an approval to build or raise a waterway barrier works—

(a)given under the unamended Act before the commencement of this section; and

(b)in force immediately before the commencement.

(2)From the commencement, the approval has effect as if—

(a)the approval were a development permit for operational works, for which the chief executive was the assessment manager; and

(b)any direction given, under section 116 of the unamended Act, in relation to the approval were a condition of the development permit; and

(c)the currency period for the development permit started on the day the approval was given and ends on the day 2 years after the approval was given.

s 242 prev s 242 exp 27 January 1995 (see s 242(2))

pres s 242 ins 2003 No. 82 s 44

amd 2009 No. 36 s 872 sch 2; 2016 No. 27 s 258

243Continuing effect of existing aquaculture licences for wild oyster harvesting

(1)This section applies to an aquaculture licence for harvesting wild oysters from foreshores, in force immediately before the commencement of this section or issued under section 252.

(2)From the commencement, the licence, and any conditions of the licence, have effect as if the licence were an authority to take fish for trade or commerce in a commercial fishery.

(3)Subsection (2) has effect only for the term of the licence.

s 243 ins 2003 No. 82 s 44

sdiv hdg ins 2003 No. 82 s 44

244Applications in progress for particular relevant authorities

(1)This section applies to an application for a relevant authority, other than an aquaculture licence for harvesting wild oysters from foreshores, if the application is not finally decided before the commencement of this section.

(2)From the commencement, the application is taken to be a development application for which the chief executive is the assessment manager.

(3)Also—

(a)for an application for development that must be supported by evidence of the existence of a resource allocation authority for the development—the following applies—

(i)the application is taken to also be an application for the relevant resource allocation authority for the development;

(ii)the part of the application for the resource allocation authority must be decided first;

(iii)if the part of the application for the resource allocation authority is refused—the whole application is taken to have been withdrawn;

(iv)if the part of the application for the resource allocation is granted—the day the part of the application is granted is taken to be—

(A)if the chief executive has received, for the application, further relevant information under section 54(2)—the day the decision stage for the development application starts under the repealed Planning Act; or

(B)otherwise—the day the information and referral stage for the development application starts under the repealed Planning Act; or

(b)for another application—the day this section commences is taken to be—

(i)if the chief executive has received, for the application, further relevant information under section 54(2)—the day the decision stage for the development application starts under the repealed Planning Act; or

(ii)otherwise—the day the information and referral stage for the development application starts under the repealed Planning Act.

(4)In this section—

repealed Planning Act means the repealed Sustainable Planning Act 2009.

s 244 ins 2003 No. 82 s 44

amd 2009 No. 36 s 872 sch 2; 2016 No. 27 s 259

245Applications in progress for aquaculture licences for wild oyster harvesting

(1)This section applies to an application for an aquaculture licence for harvesting wild oysters from foreshores if the application is not finally decided before the commencement of this section.

(2)From the commencement, the application is taken to be an application for an authority to take fish for trade or commerce in the commercial fishery.

s 245 ins 2003 No. 82 s 44