Fish Resources Management Amendment Act 2011

Crest Western Australia

No. 43 of 2011

An Act to amend the Fish Resources Management Act 1994.

[Assented to 12 October 2011]

The Parliament of Western Australia enacts as follows:

1. Short title

This is the Fish Resources Management Amendment Act 2011.

2. Commencement

This Act comes into operation as follows —

(a) sections 1 and 2 — on the day on which this Act receives the Royal Assent;

(b) the rest of the Act — on a day fixed by proclamation, and different days may be fixed for different provisions.

3. Act amended

This Act amends the Fish Resources Management Act 1994.

4. Long title replaced

Delete the long title and insert:

An Act relating to the management of fish resources, including the development and management of fisheries and aquaculture and the conservation of fish and other aquatic resources and their habitats, and for related purposes.

5. Section 3 replaced

Delete section 3 and insert:

3. Objects

(1) The objects of this Act are —

(a) to develop and manage fisheries and aquaculture in a sustainable way; and

(b) to share and conserve the State’s fish and other aquatic resources and their habitats for the benefit of present and future generations.

(2) Those objects will be achieved by these means in particular —

(a) conserving fish and protecting their environment;

(b) ensuring that the impact of fishing and aquaculture on aquatic fauna and their habitats is ecologically sustainable and that the use of all aquatic resources is carried out in a sustainable manner;

(c) enabling the management of fishing, aquaculture, tourism that is reliant on fishing, aquatic eco‑tourism and associated non‑extractive activities that are reliant on fish and the aquatic environment;

(d) fostering the sustainable development of commercial and recreational fishing and aquaculture, including the establishment and management of aquaculture facilities for community or commercial purposes;

(e) achieving the optimum economic, social and other benefits from the use of fish resources;

(f) enabling the allocation of fish resources between users of those resources, their reallocation between users from time to time and the management of users in relation to their respective allocations;

(g) providing for the control of foreign interests in fishing, aquaculture and associated industries;

(h) enabling the management of fish habitat protection areas and the Abrolhos Islands reserve.

4A. Application of precautionary principle

In the performance or exercise of a function or power under this Act, lack of full scientific certainty must not be used as a reason for postponing cost‑effective measures to ensure the sustainability of fish stocks or the aquatic environment.

6. Section 4 amended

(1) In section 4(1) delete the definitions of:

AFMA

Aquaculture Development Council

Fisheries Research and Development Corporation

interim managed fishery permit

managed fishery licence

protected fish

purchase

recreational fishing

Recreational Fishing Advisory Committee

recreational fishing licence

Rock Lobster Industry Advisory Committee

sell

(2) In section 4(1) insert in alphabetical order:

Aboriginal body corporate means —

(a) a corporation registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Commonwealth); or

(b) an incorporated association under the Associations Incorporation Act 1987 the membership of which is wholly or principally composed of Aboriginal persons;

aquaculture gear means any equipment, implement, device, apparatus or other thing used or designed for use for, or in connection with, aquaculture —

(a) whether the gear contains fish or not; and

(b) whether the gear is used for aquaculture or for navigational lighting or marking as a part of aquaculture safety,

and includes gear used to delineate the area of an aquaculture licence, temporary aquaculture permit or aquaculture lease;

aquatic resources includes biochemicals, genetic resources, organisms, populations and other biotic components of an aquatic ecosystem that are of actual or potential use, or of actual or potential value, to humanity;

broodstock means fish taken or kept for breeding;

bycatch reduction device means fishing gear designed or intended to reduce the capture of bycatch;

customary fishing means fishing by an Aboriginal person that —

(a) is in accordance with the Aboriginal customary law and tradition of the area being fished; and

(b) is for the purpose of satisfying personal, domestic, ceremonial, educational or non‑commercial communal needs;

exotic fish means fish of a species that is not native to WA waters;

export, from the State, means to export from the State —

(a) whether interstate or overseas; and

(b) whether for a commercial or other purpose;

fish aggregating device includes an artificial reef or other man‑made structure that is used or intended to be used for, or is made or adapted for use for, attracting fish or increasing fish production;

interim managed fishery permit, in relation to an interim managed fishery, means —

(a) a permit granted under section 66 in respect of that fishery; or

(b) a permit that is taken under section 78A(3) to have been granted under section 66 in respect of that fishery;

managed fishery licence, in relation to a managed fishery, means —

(a) a licence granted under section 66 in respect of that fishery; or

(b) a licence that is taken under section 78A(3) to have been granted under section 66 in respect of that fishery;

MEMP, for an aquaculture licence, means a management and environmental monitoring plan prepared under section 92A in relation to the activity authorised under the licence;

precautionary principle means the principle set out in section 4A;

protected fish means —

(a) totally protected fish; or

(b) commercially protected fish; or

purchase includes each of the following —

(a) to take in exchange;

(b) to agree or offer to take in exchange;

(d) to attempt to purchase,

but does not include to conduct a prescribed transaction, or a transaction in a prescribed class of transactions, if the transaction is conducted by an Aboriginal person;

record includes any document, whether or not it has been completed;

recreational fishing means fishing other than commercial fishing or customary fishing;

recreational fishing licence means a licence granted under the regulations authorising an individual to engage in recreational fishing;

recreationally protected fish means any fish of a class prescribed under section 45 to be recreationally protected fish;

return means a return that is required under this Act to be submitted to or lodged with the CEO;

sell includes each of the following —

(a) to auction;

(b) to put out to tender;

(d) to supply for profit;

(e) to offer for sale;

(f) to receive or possess for sale;

(g) to expose for sale;

(h) to consign or deliver for sale;

(i) to dispose of by way of raffle, lottery or other game of chance,

but does not include to conduct a prescribed transaction, or a transaction in a prescribed class of transactions, if the transaction is conducted by an Aboriginal person;

temporary aquaculture permit means a temporary aquaculture permit granted under section 97B(1);

(3) In section 4(1) in the definition of aquaculture delete “hatching or culturing” and insert:

hatching, culturing or harvesting

(4) In section 4(1) in the definition of commercial fishing licence delete “a person” and insert:

an individual

(5) In section 4(1) in the definition of fish:

(a) in paragraph (b) delete “tail),” and insert:

tail); and

(b) after paragraph (b) insert:

(6) In section 4(1) in the definition of fishing or fishing activity:

(a) delete “means —” and insert:

means any of the following —

(b) in paragraph (c) delete “fish; or” and insert:

fish;

(7) In section 4(1) in the definition of licence:

(a) delete “means —” and insert:

means any of the following —

(b) in paragraph (f) delete “licence; or” and insert:

licence;

(8) In section 4(1) in the definition of noxious fish delete “any fish” and insert:

any live fish

7. Section 7 amended

(1) Delete section 7(1), (2) and (3) and insert:

(1) The Minister may, by instrument in writing, exempt a specified person or specified class of persons from all or any of the provisions of this Act.

(2) The Minister may only grant an exemption under subsection (1) for one or more of these purposes —

(a) research;

(b) environmental protection;

(d) public health;

(e) commercial purposes;

(f) community education about and compliance with this Act;

(g) enforcement of this Act.

(2) Delete section 7(4)(a) and insert:

(a) may be made to the Minister; and

(3) In section 7(5) and (6) delete “Minister or the CEO (as the case may be)” and insert:

Minister

8. Section 12 amended

In section 12(1)(b) delete “7, 43,”.

9. Section 15 amended

(1) In section 15 delete the definition of fishery.

(2) In section 15 insert in alphabetical order:

fishery means a class of fishing activities identified in an arrangement as a fishery to which the arrangement applies;

fishing activities includes aquaculture;

State includes a Territory.

(3) In section 15 in the definition of corresponding law delete “or Territory of the Commonwealth”.

(4) In section 15 in the definition of Joint Authority fishery delete “Authority.” and insert:

Authority;

Note: The heading to amended section 15 is to read:

Terms used

10. Section 19 amended

In section 19(3) delete “the Commonwealth, another State or a Territory.” and insert:

the Commonwealth or another State.

11. Section 45 amended

In section 45(1):

(a) in paragraph (b) delete “fish,” and insert:

fish; or

(b) after paragraph (b) insert:

12. Section 48A inserted

After section 47 insert:

48A. Recreationally protected fish

(1) A person must not take any recreationally protected fish while engaging in recreational fishing.

Penalty: as provided in sections 52 and 222.

(2) A person must not —

(a) have in the person’s possession; or

(b) sell or purchase; or

(d) bring into the State or into WA waters,

any recreationally protected fish.

Penalty for an offence under subsection (2): as provided in sections 52 and 222.

13. Section 48 amended

(1) In section 48:

(a) delete “It is a defence” and insert:

(1) It is a defence

(b) in paragraph (a) delete “protected”;

(ba) that the fish were collected for broodstock or other aquaculture purposes in accordance with an authorisation; or

(d) in paragraph (b) delete “cultured or hatched” and insert:

hatched, cultured or harvested

(e) after paragraph (a) insert:

(2) At the end of section 48 insert:

(2) It is a defence in proceedings for an offence against section 48A for the person charged to prove —

(a) in the case of an offence relating to the taking of fish, that, on becoming aware of the taking of the fish, the person took immediate steps to return the fish to its natural environment with the least possible injury; or

(b) that the fish were taken for a commercial purpose in accordance with an authorisation; or

(d) that the fish were kept, bred, hatched, cultured or harvested in accordance with an aquaculture licence; or

(e) that the person has any other defence prescribed in the regulations.

14. Section 50 amended

(1) In section 50(4):

(a) in paragraph (a) delete “by a person”;

(b) in paragraph (b) delete “hatched or cultured by the person” and insert:

hatched, cultured or harvested

(2) Delete section 50(5) and insert:

(5) The regulations may specify different bag limits in relation to —

(a) different areas of the State; or

(b) different classes of persons; or

15. Section 51 amended

(1) In section 51(4):

(a) in paragraph (a) delete “by a person”;

(b) in paragraph (b) delete “hatched or cultured by the person” and insert:

hatched, cultured or harvested

(2) Delete section 51(5) and insert:

(5) The regulations may specify different possession limits in relation to —

(a) different areas of the State; or

(b) different classes of persons; or

16. Section 52 amended

In section 52(1) after “47,” insert:

48A,

17. Section 56 amended

Delete section 56(3) and insert:

(3) A management plan may include any provision that, in the Minister’s opinion, is necessary for —

(a) the protection or management of the fishery or any part of the fishery; or

(b) the protection of aquatic mammals, aquatic reptiles, aquatic birds, amphibians or pearl oysters from fishing activity in the fishery.

18. Section 58 amended

In section 58(2)(k) after “transfer” insert:

under section 140

19. Section 60 amended

In section 60(2):

(a) after paragraph (a) insert:

(ba) provide for minimum entitlements;

(b) after paragraph (g) insert:

(ha) provide for the expiation of an offence under section 74(2) of contravening a provision of a management plan that prohibits a person from taking fish in excess of an entitlement by the payment within a specified time of an amount equal to the value of the excess fish determined in accordance with the method described in section 222(4)(a) or (b) and for the crediting of any amount so paid to the Fisheries Research and Development Account;

(hb) provide that the authority conferred by an authorisation is of no effect if the entitlement under the authorisation is below a specified minimum entitlement;

20. Section 62 amended

In section 62:

(a) delete paragraph (a) and insert:

(a) prohibit or regulate fishing in the fishery;

(ba) prohibit or regulate the possession of fish taken in the fishery;

(b) in paragraph (b) delete “use” and insert:

possession or use

aircraft used

(d) in paragraph (e) delete “fishery;” and insert:

fishery, including equipment used for the purposes of research, monitoring or compliance programmes;

(e) delete paragraphs (k) to (n) and insert:

(k) regulate the handling, release, disposal or possession of any bycatch in the fishery, including by requiring the use of bycatch reduction devices;

(f) delete paragraph (p) and insert:

(p) impose obligations on —

(i) the holders of authorisations or persons acting on their behalf; or

(ii) masters of boats;

(g) in paragraph (q) after “submitted” insert:

or lodged

(h) delete paragraph (q)(i) and insert:

(i) the holders of authorisations or persons acting on their behalf; or

(i) in paragraph (q)(ii) delete “other”;

(j) in paragraph (r) after “submitted” insert:

or lodged

(k) delete paragraph (u) and insert:

(u) prohibit or regulate the handling, transfer, landing, unloading, storage, possession, packaging, labelling, transport, delivery, consigning, receival, processing, sale or purchase of fish (whether taken in the fishery or otherwise);

(v) prohibit or regulate the disposal of fish (whether taken in the fishery or otherwise);

(w) require a person who is proposing to engage in any activities referred to in paragraphs (a) to (k), (u) or (v) or any other activities connected with the fishery to make a nomination in respect of any matter relating to that proposed engagement, including any of these matters —

(i) the area or place where the activities will be engaged in;

(ii) the period within which or during which the activities will be engaged in;

(iii) the specific activities that will be engaged in;

(iv) the specific types of gear or equipment that will be used;

(x) prohibit a person from contravening a nomination.

21. Sections 74 and 75 replaced

Delete sections 74 and 75 and insert:

74. Contravention of management plan

(1) A person must not intentionally or recklessly contravene a provision of a management plan the contravention of which is specified in the plan to be an offence.

Penalty:

(a) for an individual —

(i) for a first offence, a fine of $40 000;

(ii) for a second or subsequent offence, a fine of $80 000 and imprisonment for 3 years;

(b) for a body corporate —

(i) for a first offence, a fine of $80 000;

(ii) for a second or subsequent offence, a fine of $150 000.

(2) A person must not contravene a provision of a management plan the contravention of which is specified in the plan to be an offence.

Penalty:

(a) for an individual, a fine of $15 000;

(b) for a body corporate, a fine of $30 000.

(3) A person charged with an offence under subsection (1) may be convicted of an offence under subsection (2) if that offence is established by the evidence.

22. Section 76 amended

In section 76(2) delete “an offence against section 74” and insert:

an offence under section 74(1) or 77(1)

23. Section 77 replaced

Delete section 77 and insert:

77. Contravention of condition of managed fishery licence or managed fishery permit

(1) A person must not intentionally or recklessly contravene a condition of —

(a) a managed fishery licence; or

(b) a managed fishery permit.

Penalty:

(a) for an individual —

(i) for a first offence, a fine of $40 000;

(ii) for a second or subsequent offence, a fine of $80 000 and imprisonment for 3 years;

(b) for a body corporate —

(i) for a first offence, a fine of $80 000;

(ii) for a second or subsequent offence, a fine of $150 000.

(2) A person must not contravene a condition of —

(a) a managed fishery licence; or

(b) a managed fishery permit.

Penalty:

(a) for an individual, a fine of $15 000;

(b) for a body corporate, a fine of $30 000.

(3) A person charged with an offence under subsection (1) may be convicted of an offence under subsection (2) if that offence is established by the evidence.

24. Section 78A amended

After section 78A(2) insert:

(3) For the purposes of this Act, a replacement authorisation is taken to be an authorisation granted under section 66.

25. Section 78 deleted

Delete section 78.

26. Section 79 amended

In section 79(2)(b) delete “hatched or cultured” and insert:

hatched, cultured or harvested

27. Section 82 amended

In section 82(2)(c) delete “hatched or cultured” and insert:

hatched, cultured or harvested

28. Section 89 amended

In section 89(1)(c)(ii) after “submit” insert:

or lodge

29. Part 8 Division 1 heading inserted

At the beginning of Part 8 insert:

Division 1 — Aquaculture licences

30. Section 91 amended

In section 91(a) delete “culturing” and insert:

culturing, harvesting

31. Section 92A inserted

After section 91 insert:

92A. Management and environmental monitoring plans (MEMPs)

(1) Unless the applicant is exempt under subsection (4), an application for an aquaculture licence must be accompanied by a management and environmental monitoring plan (a MEMP) identifying how the applicant will manage any risks to the environment and public safety in relation to the proposed activity for which the licence is sought.

(2) The CEO may require a MEMP to be prepared with reference to the matters that the CEO considers relevant, which may include all or any of these matters —

(a) the species of fish to be farmed;

(b) the quantity of fish to be farmed;

(d) the class of land or waters on or in which the fish are to be farmed;

(e) the method of farming the fish;

(f) the aquaculture gear to be used;

(g) proposed stocking densities;

(h) the carrying capacity of the area to be used for farming the fish;

(i) water quality (including discharged water quality) and relevant response protocols;

(j) sediment quality and relevant response protocols;

(k) disease testing and relevant response protocols;

(l) maximum nutrient loads and response thresholds;

(m) environmental monitoring and relevant response protocols;

(n) translocation;

(o) biosecurity and quarantine;

(p) the impact on protected species and other aquatic fauna;

(q) the impact on benthic communities;

(r) the audit mechanisms for the MEMP.

(3) Unless the licence holder is exempt under subsection (4), an aquaculture licence that was in force immediately before the day on which the Fish Resources Management Amendment Act 2011 section 31 commenced is subject to the condition that the licence holder must, within 2 years after that day, prepare a MEMP for the licence and lodge it with the CEO.

(4) The CEO may exempt —

(a) a particular applicant from the requirements of subsection (1); or

(b) a particular licence holder from the requirements of subsection (3),

if the application or licence relates to the aquaculture of prescribed fish on private land.

32. Section 92 amended

In section 92(1):

(a) delete “satisfied that —” and insert:

satisfied of all of the following —

(b) after paragraph (a) insert:

(ba) the person has, or will have, appropriate tenure over the land or waters on or in which the activities under the licence are to be conducted;

State and the community

(d) in paragraph (c) delete “environment; and” and insert:

environment;

(e) in paragraph (d) delete “authorities,” and insert:

authorities;

(f) after paragraph (d) insert:

(e) any other matters prescribed for the purposes of this subsection,

33. Section 95 amended

After section 95(1)(a) insert:

(ba) the provisions of any MEMP for the licence; and

34. Sections 97A and 97B, Part 8 Division 2 heading and section 97C inserted

After section 96 insert:

97A. Offence for contravention of MEMP

A person must not contravene a requirement of a MEMP for an aquaculture licence.

Penalty:

(a) for an individual —

(i) for a first offence, a fine of $5 000;

(ii) for a second or subsequent offence, a fine of $10 000;

(b) for a body corporate —

(i) for a first offence, a fine of $10 000;

(ii) for a second or subsequent offence, a fine of $20 000.

97B. Temporary aquaculture permits

(1) The CEO may grant a temporary aquaculture permit to the holder of an aquaculture licence authorising the licence holder to carry on, for the period specified, the activities authorised under the licence in an area (an alternative area) other than the area (the original area) in respect of which the licence is in force.

(2) A temporary aquaculture permit can be granted only in circumstances prescribed for the purposes of this section.

(3) A temporary aquaculture permit cannot be granted for more than 12 months.

(4) A temporary aquaculture permit has the effect, for the period specified, of —

(a) suspending the licence holder’s authority to carry on the activities authorised under the licence in the original area; and

(b) authorising the licence holder to carry on those activities in accordance with the permit in the alternative area.

Division 2 — Aquaculture leases

97C. Methods by which Minister may offer areas for lease

The Minister may offer areas of land or WA waters for aquaculture leases by means of public auction, public tender, ballot or private treaty.

35. Section 97 amended

(1) In section 97(3):

(a) delete “Act and the lease, a lease vests in the lessee —” and insert:

Act, an aquaculture licence in respect of the leased area vests in the licence holder —

(b) in paragraph (a) delete “lease to keep, breed, hatch and culture” and insert:

licence to keep, breed, hatch, culture and harvest

hatched, cultured or harvested under the licence.

(2) After section 97(4) insert:

(5A) Before granting or renewing a lease, the Minister must be satisfied of all of the following —

(a) the person is a fit and proper person to hold the lease;

(b) it is in the better interests of the State and the community to grant or renew the lease;

(c) the applicant will make, or has made, effective use of the area of land or water the subject of the lease for aquaculture purposes;

(d) the activities to be, or that are being, conducted under the lease are unlikely to adversely affect other fish or the aquatic environment;

(e) any other matters prescribed for the purposes of this subsection.

(3) Delete section 97(7) and insert:

(7A) Without limiting subsection (5) or (6), the lease may be subject to a condition requiring payment of an amount to secure payment of any amount that becomes due under section 101(2)(b).

(7) A lease may be varied —

(a) in the manner provided in the lease; or

(b) by the Minister in the manner prescribed under section 102(c).

36. Section 100A inserted

After section 99 insert:

100A. Offences for contravention of lease

(1) The holder of an aquaculture lease commits an offence if the lease holder contravenes a condition of the lease.

(2) The holder of an aquaculture licence in respect of the leased area under an aquaculture lease commits an offence if the licence holder does an act or makes an omission that would have constituted a contravention of a condition of the lease if the act or omission had been done or made by the lease holder.

(3) If an aquaculture licence is held by 2 or more persons and any of those persons commits an offence under subsection (2), each of those persons is taken to have committed the offence.

(4) If the holder of an aquaculture licence in respect of the leased area under an aquaculture lease commits or is taken to have committed an offence under subsection (2) or (3), the lease holder is taken to have also committed the offence.

(5) If —

(a) an aquaculture lease is held by 2 or more persons; and

(b) an offence is committed or is taken to have been committed under subsection (1), (2), (3) or (4) in respect of the lease,

each of the persons referred to in paragraph (a) is taken to have committed the offence.

(6) The penalty for an offence committed under subsection (1) or (2) or arising under subsection (3), (4) or (5) is —

(a) if the offender is an individual —

(i) for a first offence, a fine of $5 000; and

(ii) for a second or subsequent offence, a fine of $10 000;

(b) if the offender is a body corporate —

(i) for a first offence, a fine of $10 000; and

(ii) for a second or subsequent offence, a fine of $20 000.

(7) If a person is charged with an offence arising under subsection (3), (4) or (5), it is a defence to prove that —

(a) the act or omission that was or would have been a contravention of a condition of the aquaculture lease was done or made without the consent or connivance of the person; and

(b) the person took all reasonable measures to prevent the act or omission being done or made.

(8) A person may be charged with and convicted of an offence arising under subsection (3), (4) or (5) whether or not another person has been charged with or convicted of an offence under subsection (1) or (2) or arising under subsection (3), (4) or (5).

37. Section 101 inserted

After section 100 insert:

101. Clean‑up and rehabilitation of former leased area

(1) If an aquaculture lease is terminated or expires, the CEO may direct the former lease holder to clean up and rehabilitate the former leased area.

(2) If the former lease holder contravenes the direction —

(a) the CEO may clean up and rehabilitate the area; and

(b) the reasonable cost of any action taken under paragraph (a) is recoverable as a debt due to the State from the former lease holder.

38. Part 8 Division 3 heading inserted

Before section 101A insert:

Division 3 — Miscellaneous matters

39. Section 101A amended

(1) After section 101A(1) insert:

(2A) Subject to subsection (2B), the Minister may declare an area of WA waters (other than inland waters) to be an aquaculture development zone.

(2B) The Minister can only make a declaration under subsection (2A) in respect of waters within the limits of the State or coastal waters —

(a) with the concurrence of the Minister to whom the administration of the Land Administration Act 1997 is committed; and

(b) after consulting with the Minister to whom the administration of the Conservation and Land Management Act 1984 is committed.

(2) In section 101A(2) delete “subsection (1)” and insert:

subsections (1) and (2A)

(3) In section 101A(4) in the definition of aquaculture delete “hatching or culturing” and insert:

hatching, culturing or harvesting

40. Section 102 amended

In section 102:

(a) delete paragraph (c) and insert:

(ca) prohibit or regulate the collection of fish for broodstock and other aquaculture purposes;

(cb) provide for matters relating to temporary aquaculture permits, including any of these matters —

(i) the imposition and variation by the CEO of conditions to which permits are subject;

(ii) the suspension and cancellation by the CEO of permits;

(iii) review by the State Administrative Tribunal of decisions of the CEO in relation to permits;

(c) provide for matters relating to aquaculture leases, including the subdivision, subletting, amalgamation and transfer of leases by the Minister;

(b) in paragraph (d)(ii) after “submit” insert:

or lodge

41. Part 9A inserted

After section 102 insert:

Part 9A — Exotic fish

103A. Accidental introduction of exotic fish into WA waters

(1) In this section —

intervene, in relation to fish, includes to inspect, seize and destroy fish.

(2) This section applies in relation to any fish that are being kept for aquaculture purposes in respect of which an aquaculture licence is not required because of section 91(a).

(3) The CEO may direct a fisheries officer to intervene in relation to that fish if, in the circumstances, intervention will or could minimise the risk of the accidental introduction of exotic fish into WA waters.

42. Section 120 amended

In section 120(2):

(a) delete “may prohibit or regulate —” and insert:

may —

(b) in paragraph (a) before “entry” insert:

prohibit or regulate

(d) delete paragraph (c) and insert:

(ca) prohibit or regulate fishing in a fish habitat protection area;

(d) prescribe fees or charges for admission to a fish habitat protection area or any part of a fish habitat protection area and for the use of any land or facilities in a fish habitat protection area, and provide for the payment and method of collection of the fees or charges.

43. Section 125 amended

In section 125(1) after “authorisations,” insert:

temporary aquaculture permits,

44. Section 126 amended

In section 126:

(a) after “authorisation,” (first occurrence) insert:

temporary aquaculture permit,

(b) in paragraphs (a) and (b) after “authorisation,” insert:

temporary aquaculture permit,

45. Section 130 amended

In section 130(b) delete “any part” and insert:

the whole or part

46. Section 135 amended

In section 135(1) delete “part” and insert:

the whole or part

47. Section 139 amended

In section 139(3) delete “an authorisation is renewed as provided” and insert:

an application is made or authorisation renewed

48. Section 140 amended

Delete section 140(1) and insert:

(1) This section applies if —

(a) the holder of an authorisation (other than a commercial or recreational fishing licence) applies to the CEO for the transfer of the authorisation to another person; or

(b) the holder of an authorisation applies to the CEO for the transfer of part of the entitlement under the authorisation to another authorisation.

(2A) Subject to subsection (2), the CEO must transfer the authorisation or the part of the entitlement.

49. Section 141 amended

(1) In section 141(1):

(a) in paragraph (a) delete “part” and insert:

the whole or part

(b) delete “the part” and insert:

the whole or part

(2) In section 141(2) delete “part” and insert:

the whole or part

50. Section 143 amended

In section 143(1):

(a) in paragraph (a)(ii) delete “fishing” and insert:

fishing, aquaculture, fishing tour or aquatic eco‑tourism

(b) in paragraph (b) after “has been” insert:

or is being

(ca) if the authorisation is an aquaculture licence and, in the CEO’s opinion —

(i) a requirement of any MEMP for the authorisation has been or is being contravened; and

(ii) as a consequence of the contravention —

(I) pollution or environmental harm, as those terms are defined in the Environmental Protection Act 1986 section 3A, has been or is being caused; or

(II) there is a risk that such pollution or environmental harm will be caused;

(cb) if the authorisation is an aquaculture licence and the holder no longer has appropriate tenure over the area of the licence; or

(cc) if the CEO is satisfied that the holder is no longer a fit and proper person to hold the authorisation; or

(d) in paragraph (e)(i) delete “submit” and insert:

to submit or lodge

(e) in paragraph (e)(i) after “submitted” insert:

or lodged

(f) in paragraph (g) delete “authorisation” and insert:

authorisation, or any other amount payable under this Act by the holder,

(g) after each of paragraphs (a), (b) and (c) to (f) insert:

51. Section 146A inserted

At the end of Part 13 insert:

146A. Death of individual who holds authorisation

(1) This section applies in relation to an authorisation other than a commercial or recreational fishing licence.

(2) On the death of an individual who, immediately before death, held an authorisation exclusively or as a tenant in common, the authorisation or the deceased’s share in the authorisation (as the case requires) is taken to be held by the deceased’s personal representative.

(3) On the death of an individual who, immediately before death, held an authorisation as a joint tenant, the authorisation is taken to be held by the surviving joint tenants.

(4) A transfer made or purportedly made under section 140 in respect of an authorisation, or a share in an authorisation, held by an individual who died before the commencement of the Fish Resources Management Amendment Act 2011 section 51 is, and is taken always to have been, as valid as it would have been if the amendments effected by that section had been in effect at the time of the individual’s death.

52. Section 147 amended

In section 147(1)(e) delete “part” and insert:

the whole or part

53. Section 150 amended

In section 150 delete “determined.” and insert:

determined unless the State Administrative Tribunal orders otherwise.

54. Part 15A inserted

After section 152 insert:

Part 15A — Fish trafficking

153. Terms used

In this Part —

commercial quantity, of fish, means —

(a) a quantity of fish that exceeds the quantity prescribed by or determined under the regulations; or

(b) a quantity of fish the value of which exceeds the value prescribed by or determined under the regulations;

priority fish means —

(a) fish of a species that is declared by the regulations to be a priority species; or

(b) fish belonging to a group of 2 or more species that is declared by the regulations to be a priority group of species;

traffic, in fish, has the meaning given in section 154.

154. Trafficking in fish

(1) A person traffics in fish if the person deals with fish in any of these ways —

(a) takes fish;

(b) is in possession or control of fish;

(d) delivers fish to, or receives fish from, another person;

(e) processes fish;

(f) transports fish;

(g) conceals fish or any dealing with fish referred to in paragraphs (a) to (f);

(h) engages in conduct preparatory to any dealing with fish referred to in paragraphs (a) to (g).

(2) A person traffics in fish if the person does any of these things in relation to any dealing with fish referred to in subsection (1) —

(a) controls, directs or supervises the dealing;

(b) provides facilities, finance or any other thing for the purpose of enabling or facilitating the dealing;

(d) is knowingly concerned otherwise in the dealing.

155. Unauthorised trafficking in fish

(1) A person must not traffic in a commercial quantity of priority fish unless the person is authorised under this Act to do so.

(2) A person who contravenes subsection (1) commits a crime.

Penalty for an offence under subsection (2):

(a) for an individual —

(i) for a first offence, a fine of $400 000 and imprisonment for 4 years;

(ii) for a second or subsequent offence, imprisonment for 10 years;

(b) for a body corporate, a fine of $800 000.

Summary conviction penalty for an offence under subsection (2):

(a) for an individual —

(i) for a first offence, a fine of $200 000 and imprisonment for 2 years;

(ii) for a second or subsequent offence, imprisonment for 4 years;

(b) for a body corporate, a fine of $400 000.

156. Regulations relating to trafficking in fish

The regulations may make provision in relation to —

(a) methods for determining commercial quantities of priority fish; or

(b) the exemption of persons from the application of section 155.

55. Section 172 amended

In section 172:

(a) delete paragraphs (a) and (b) and insert:

(a) remove fish from any fishing or aquaculture gear; or

(b) interfere with any fishing or aquaculture gear,

(b) delete “the net, trap or gear” and insert:

the gear

Note: The heading to amended section 172 is to read:

Unlawful interference with fish or gear

56. Part 16A inserted

After section 176 insert:

Part 16A — Emergency powers to deal with biological threats

177A. Application

This Part applies despite the Biosecurity and Agriculture Management Act 2007.

177B. Terms used

In this Part —

biological threat means a serious and imminent threat posed by an organism;

organism has the meaning given in the Biosecurity and Agriculture Management Act 2007 section 6.

177C. Dealing with biological threats

(1) This section applies if the CEO considers that it is necessary to exercise powers under this section because of a biological threat to fish or other aquatic resources or to their habitats.

(2) The CEO may take, or may direct the person whom the CEO considers responsible for causing the biological threat to take, the steps that the CEO considers appropriate —

(a) to prevent the organism from entering an area of WA waters; or

(b) to prevent or control the spread of the organism in an area of WA waters; or

(3) If a person contravenes a direction given under subsection (2) —

(a) the CEO may take the steps specified in the direction; and

(b) the reasonable cost of any action taken under paragraph (a) is recoverable as a debt due to the State from the person.

57. Section 182 amended

In section 182:

(a) delete paragraph (c) and insert:

(c) enter any land or premises ordinarily used for the purpose of manufacturing, repairing or selling boats or fishing or aquaculture gear and inspect the boats or gear; or

(b) after each of paragraphs (a) and (b) insert:

58. Section 191 amended

In section 191(1):

(a) in paragraph (p) delete “fishing gear or any gear or equipment used for aquaculture or” and insert:

fishing or aquaculture gear or gear or equipment used for

(b) in paragraph (r)(i) after “fishing” insert:

or aquaculture

(d) in paragraph (u) delete “fish or fishing gear or any gear or equipment used for aquaculture” and insert:

fish, fishing or aquaculture gear or gear or equipment used for fishing tours

59. Section 191A amended

In section 191A delete “258(va) or (vb),” and insert:

258(1)(va) or (vb),

60. Section 193 amended

In section 193(1):

(a) after paragraph (f) insert:

(ga) any exotic fish, any receptacle or container containing exotic fish, and any medium in which the exotic fish are being held, in compliance with a direction under section 103A(3) to intervene in relation to that fish; or

(b) in paragraph (h) delete “totally protected fish —” and insert:

protected fish —

61. Section 202B inserted

After section 202A insert:

202B. Liability of authorisation holder for offences by other holders

(1) If an authorisation is held by 2 or more persons and any of those persons commits an offence under this Act while acting or purporting to act as a holder of the authorisation, each of those persons is taken to have committed the offence.

(2) If a person is charged with an offence under this Act because of subsection (1), it is a defence to prove that —

(a) the act or omission that constituted the offence was done or made without the consent or connivance of the person; and

(b) the person took all reasonable measures to prevent the act or omission being done or made.

(3) A person may be charged with and convicted of an offence under this Act because of subsection (1) whether or not another person has been charged with or convicted of the offence.

62. Section 212 amended

In section 212(1):

(a) in paragraphs (a) and (b) delete “authorisation” and insert:

authorisation, temporary aquaculture permit

(b) in paragraph (c) after “authorisation” insert:

or temporary aquaculture permit

temporary aquaculture permit,

63. Section 215 amended

In section 215 delete “any scales, callipers, rule, compass or other navigational equipment or measuring equipment” and insert:

any communications, navigational, measuring or recording equipment (including electronic equipment)

Note: The heading to amended section 215 is to read:

Accuracy of equipment

64. Section 216 amended

In section 216(2)(a) and (b) after “authorisations,” insert:

temporary aquaculture permits,

65. Section 220 amended

In section 220:

(a) after paragraph (a) insert:

(ba) any fish in excess of a bag or possession limit is seized under section 193(1)(a); or

(bb) any fish in excess of a quantity or value that is prescribed for the purposes of the definition of commercial quantity in section 153 is seized under section 193(1)(a); or

(bc) any exotic fish is seized under section 193(1)(ga); or

(b) delete paragraph (d) and insert:

(d) any receptacle, container or medium containing fish referred to in this section is seized under this Act,

66. Section 222 amended

(1) In section 222(1):

(a) after “47,” insert:

48A,

(b) delete “88” and insert:

88, 155(2)

(2) Delete section 222(2) and insert:

(2) If a court convicts a person of an offence under a provision referred to in subsection (1), in addition to any penalty imposed under that provision, the court must impose on the person an additional penalty that —

(a) is equal to 10 times the prescribed value of any fish the subject of the offence; or

(b) if subsection (3A) applies — is less than 10 times that value but is at least equal to that value.

(3A) The court can only impose an additional penalty under subsection (2)(b) —

(a) on the application of the CEO or a person acting for or on behalf of the CEO; and

(b) if the court is satisfied that the imposition of the additional penalty under subsection (2)(a) would be harsh, oppressive or not otherwise in the interests of justice.

(3) In section 222(5) delete “subsection (2)” and insert:

subsection (2)(a) or (b)

67. Section 225 amended

(1) Delete section 225(1) and insert:

(1) If a court convicts a person of an offence under this Act, in addition to any other penalty that may be imposed for the offence, the court may by order prohibit the person from doing all or any of the following —

(a) being on board boats, any specified boat or any boat in a specified class of boats;

(b) being at —

(i) places used for aquaculture or the processing or sale of fish, any specified place used for aquaculture or the processing or sale of fish, any place in a specified class of places used for aquaculture or the processing or sale of fish; or

(ii) any other specified place or any place in any other specified class of places;

(i) being employed in, or managing, operating or holding an interest in, a business; and

(ii) being in control or possession of fish or fishing or aquaculture gear;

(d) being in possession of any fish or fishing or aquaculture gear, any specified fish or fishing or aquaculture gear or any fish or gear in a specified class of fish or fishing or aquaculture gear;

(e) being on or near specified waters.

(2) In section 225(4) delete the Penalty and insert:

Penalty:

(a) for a first offence, a fine of $40 000;

(b) for a second or subsequent offence, a fine of $80 000 and imprisonment for 3 years.

(3) Delete section 225(5) and insert:

(5) A person must not knowingly allow or permit another person to contravene an order made under this section.

Penalty for an offence under subsection (5):

(a) for an individual —

(i) for a first offence, a fine of $40 000;

(ii) for a second or subsequent offence, a fine of $80 000 and imprisonment for 3 years;

(b) for a body corporate —

(i) for a first offence, a fine of $80 000;

(ii) for a second or subsequent offence, a fine of $150 000.

Note: The heading to amended section 225 is to read:

Court may impose certain prohibitions on offender

68. Section 228 amended

In section 228(1) delete “21 days” and insert:

45 days

69. Section 238 amended

(1) In section 238(4)(a)(i) delete “licences)” and insert:

licences), temporary aquaculture permits

(2) In section 238(5):

(a) after paragraph (d) insert:

(eaa) to defray the costs of the administration and management of customary fishing;

(b) in paragraph (e) delete “fishing gear” and insert:

fishing or aquaculture gear

(kaa) to maintain the marking and lighting of areas subject to aquaculture licences, temporary aquaculture permits and aquaculture leases;

(kab) to clean up and rehabilitate areas that have been but are no longer being used for aquaculture purposes;

(kac) to repay any amount paid under section 97(7A) that is not required to satisfy a debt due under section 101(2)(b);

70. Sections 241 and 242 deleted

Delete sections 241 and 242.

71. Section 246 amended

(1) Delete section 246(1) and insert:

(1) For the assistance of the CEO, fisheries officers and the staff of the Department (fisheries personnel) and for the information of industry and the community, the Minister may issue guidelines for the administration or enforcement of this Act or any other Act the administration of which is committed to the Minister.

(2) Delete section 246(4) and insert:

(4) In performing a function under an Act referred to in subsection (1), fisheries personnel must take into account any guidelines that are relevant to the performance of the function.

(3) In section 246(5):

(a) delete paragraph (a) and insert:

(a) derogates from the duty of fisheries personnel to exercise a discretion in a particular case; or

(b) in paragraphs (b) and (c) delete “the CEO” and insert:

fisheries personnel

72. Section 250 amended

(1) Delete section 250(1) and insert:

(1) In this section —

confidential information means information contained in any of the following —

(a) a record that is required to be kept under this Act;

(b) a return that has been submitted or lodged as required under this Act;

(d) a MEMP that has been lodged as required under this Act.

(2) In section 250(2) delete “subsection (3) or (4),” and insert:

this section,

(3) Delete section 250(3)(d) and insert:

(d) that relates to the person or persons required to keep, submit or lodge the information, or who voluntarily provided the information, with the consent of that person or each of them.

(4) After section 250(3) insert:

(4A) Subsection (2) does not apply to the divulging of information in aggregated form relating to fishing carried out under the authorisations in respect of a fishery, even though it could reasonably be expected to lead to the identification of a participant in the fishery because of the small number of participants.

(4B) Subsection (2) does not apply to the divulging of information relating to fishing carried out under an authorisation to its holder —

(a) in respect of the period during which the holder has held the authorisation (the current period); or

(b) in respect of any period before the current period (a previous period) with the consent of —

(i) the person who held the authorisation during that previous period; or

(ii) if that person has since died — the deceased’s personal representative.

(4C) Subsection (2) does not apply to the divulging of information relating to fishing carried out under an authorisation to the master of a boat who is acting on behalf of the holder of the authorisation.

(4D) Subsection (2) does not apply to the divulging of information for law enforcement purposes to a department or other agency of the State with the approval of the Minister.

(4E) Subsection (2) does not apply to the divulging of information for law enforcement purposes to a department or other agency of the Commonwealth, another State or a Territory (an interstate jurisdiction) in accordance with —

(a) an agreement between the Minister and a Minister of the interstate jurisdiction; and

(b) the requirements (if any) under the regulations.

(5) After each of section 250(3)(a) and (b) insert:

73. Section 257 amended

(1) In section 257(1):

(a) delete “licensing of —” and insert:

licensing of any of the following —

(b) delete paragraph (b) and insert:

(ba) Aboriginal bodies corporate engaged in commercial fishing, but a licence granted or renewed under this provision cannot be transferred despite any other provision of this Act;

(bb) masters of boats used for purposes relating to commercial fishing;

(bc) persons engaged in diving for purposes relating to commercial fishing, aquaculture or aquatic eco‑tourism;

(bd) persons collecting fish (including protected fish) for broodstock and other aquaculture purposes;

(b) individuals engaged in recreational fishing;

(ca) boats (including foreign boats) used for purposes relating to recreational fishing;

(cb) persons engaged in specified activities in a fish habitat protection area;

(f) charter boats;

(d) in paragraph (g) delete “purpose; and” and insert:

purpose;

(e) in paragraph (h) delete “aquaculture.” and insert:

aquaculture;

(f) after paragraph (h) insert:

(i) persons engaged in the possession, unloading, transport, consignment, handling, labelling, delivery, receival, storage, packaging, purchase or sale of fish.

(2) In section 257(2):

(a) delete “may —” and insert:

may do any of the following —

(b) in paragraph (f) delete “licence; and” and insert:

licence;

licences;

(d) after paragraph (g) insert:

(h) prohibit a person who has been convicted of a prescribed offence from being on any boat in a prescribed class of boats for a prescribed period after the conviction unless the person holds a prescribed authorisation and the authority conferred by the authorisation is in effect.

74. Section 258 amended

In section 258(1):

(a) delete “may —” and insert:

may do any of the following —

(b) in paragraph (a) delete “regulate the” and insert:

prohibit or regulate the possession,

(ba) regulate customary fishing;

(d) after paragraph (d) insert:

(ea) provide for methods of deciding to whom authorisations will be granted if the number of available authorisations is less than the number of appropriate applicants for those authorisations, including by way of public auction, public tender, ballot and lottery;

(eb) provide for the reseeding of fish stocks or the release of fish for the purpose of restoring or improving fish stocks;

(ec) provide for the labelling or other identification of fish that is the product of aquaculture;

(ed) prohibit or regulate aquaculture that has, or is likely to have, an incidental impact on aquatic fauna or flora;

(ee) apply, adopt or incorporate a provision of any code of practice, standard or other document relating to aquaculture —

(i) with or without modifications; or

(ii) as in force at a particular time or from time to time;

(e) after paragraph (h)(ii) insert:

(iii) require persons in specified circumstances to notify the CEO of the occurrence of such fish;

(f) after paragraph (h) insert:

(ia) prescribe measures for the control, recapture and eradication of exotic fish;

(ib) prohibit or regulate the entry into or movement or use within, or direct the removal from, WA waters or an area of WA waters of boats or equipment on or attached to boats for the purpose of —

(i) preventing organisms, as defined in section 177B, that pose or are likely to pose a threat to fish or other aquatic resources or to their habitats from entering WA waters or an area of WA waters; or

(ii) preventing or controlling the spread of such organisms in WA waters or an area of WA waters; or

(iii) eradicating or removing such organisms from WA waters or an area of WA waters;

(g) in paragraph (k) delete “fish,” and insert:

fish or pearl oysters,

(h) in paragraph (k)(i) and (ii) delete “fish;” and insert:

fish or pearl oysters;

(i) in paragraph (k)(iii) delete “fish” and insert:

fish or pearl oysters

(j) in paragraph (k)(iv) and (v) delete “fish;” and insert:

fish or pearl oysters;

(k) after paragraph (k) insert:

(la) provide for the protection from, or the minimisation of incidental harm from, fishing activities of aquatic fauna or aquatic habitats, including by prohibiting or regulating specified fishing activities;

(l) in paragraphs (o) and (p) delete “gear or equipment used in connection with fishing, aquaculture,” and insert:

fishing or aquaculture gear or gear or equipment used in connection with

(m) delete paragraph (u) and insert:

(u) prohibit the deposit of any refuse or waste in any waters;

(ua) prohibit or regulate any other activity that might pollute any waters;

(n) after paragraph (wa) insert:

(wb) prohibit or regulate the possession of fish in, and the removal of fish from, designated areas (whether the fish was taken or otherwise obtained in those areas or elsewhere) and provide for the management of fishing and related activities in those areas;

(o) after paragraph (z) insert:

(zaa) regulate the exchange of information for law enforcement purposes between departments or other agencies of the State and departments or other agencies of the Commonwealth, other States or Territories;

(p) in paragraph (za) delete “who engage” and insert:

who are authorised to engage

(q) in paragraph (za)(ii) after “submit” insert:

or lodge

(r) in paragraph (zb) after “submitted” insert:

or lodged

(s) after paragraph (zc) delete “and”.

75. Section 261 amended

In section 261(1) delete “authorisation” and insert:

authorisation, temporary aquaculture licence

76. Part 20 heading and Part 20 Division 1 heading inserted

Before section 266 insert:

Part 20 — Transitional matters

Division 1 — Transitional matters for Fish Resources Management Act 1994

77. Part 20 Division 2 inserted

After section 266 insert:

Division 2 — Transitional matters for Fish Resources Management Amendment Act 2011

267. Term used: amending Act

In this Division —

amending Act means the Fish Resources Management Amendment Act 2011.

268. Exemptions under section 7

An exemption that was in force under section 7 immediately before the commencement of the amending Act section 7 is taken to have been granted under section 7 as amended by the amending Act section 7.

269. Application of extended period for service of infringement notices under section 228

The amendment effected by the amending Act section 68 does not apply in relation to the service by an authorised person of an infringement notice in respect an offence that the authorised person believes to have been committed before the commencement of that section.

270. Transfer of money in accounts under repealed sections 241 and 242

(1) Any money in the AFMA Account immediately before the commencement of the amending Act section 70 must be paid into the Fisheries Research and Development Account.

(2) Any money in the Fisheries Research and Development Corporation Account immediately before the commencement of the amending Act section 70 must be paid into the Fisheries Research and Development Account.

78. Schedule 3 heading amended

In the heading to Schedule 3 after “provisions” insert:

for Fish Resources Management Act 1994

Note: The headings to the sections listed in the Table are to read as set out in the Table.

Table

Section	Section heading
s. 96	Offence for contravention of licence
s. 203	Liability of authorisation holder for offences by persons acting for or on behalf of holder
s. 224	Automatic suspension if 3 offences committed in 10‑year period
s. 266	Savings and transitional provisions for Fish Resources Management Act 1994

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