Fisheries Management Act 2007

This Act may be cited as the Fisheries Management

Act 2007.

In this Act, unless the contrary intention appears—

Aboriginal person means a person of Aboriginal descent who is accepted as a member by a group in the community who claim

Aboriginal descent;

aboriginal traditional fishing means fishing engaged in by an Aboriginal person for the purposes of satisfying personal, domestic or non-commercial, communal needs, including ceremonial, spiritual and educational needs, and using fish and other natural marine and freshwater products according to relevant aboriginal custom;

aboriginal traditional fishing management plan—see section 60;

Adelaide Dolphin Sanctuary has the same meaning as in the Adelaide Dolphin Sanctuary

Act 2005;

advisory committee means an advisory committee established under section 20;

aquaculture has the same meaning as in the

Aquaculture

Act 2001;

aquaculture fish means fish farmed under an aquaculture licence;

aquaculture licence has the same meaning as in the Aquaculture

Act 2001;

aquatic animal means an aquatic animal of any species, and includes the reproductive products and body parts of an aquatic animal;

aquatic mammal means a seal or sea lion (order

Pinnipedia) or a dolphin or whale (order Cetacea);

aquatic plant means an aquatic plant of any species, and includes the reproductive products and parts of an aquatic plant;

aquatic reserve means any waters, or land and waters, declared by proclamation to constitute an aquatic reserve;

aquatic resource means fish or aquatic plants;

aquatic resources of the State means aquatic resources of the waters to which this Act applies but does not include aquatic resources being farmed under an aquaculture licence;

arrangement means—

an arrangement made by the State with the Commonwealth under

Part

4Division 1 (whether or not it is also made with another State or other States); or

an agreement made by the State with 1 or more other States under

Part

4Division 3;

Australian fishing zone means the Australian fishing zone as defined in the Commonwealth Act;

authorised person means a fisheries officer, scientific observer or sea ranger;

authority means a licence, permit, registration, authorisation or other authority under this Act;

boat means a vessel or craft that is used, or is capable of being used, as a means of transportation on water;

coastal waters has the same meaning as in the

Commonwealth Act;

commercial fishing means fishing for a commercial purpose;

commercial purpose means the purpose of trade or business;

commercial quantity means a quantity declared by the regulations to be a commercial quantity for the purposes of this

Act;

Commonwealth Act means the

Fisheries Management Act

1991 of the Commonwealth;

Commonwealth Minister means the Minister for the time being administering the Commonwealth Act and any other Minister performing and exercising functions and powers under section 60 of the Commonwealth

Act;

condition includes a limitation;

contravene includes not comply with;

corresponding law means a law of the

Commonwealth or another State or a Territory of the Commonwealth declared by the regulations to be a law corresponding to this Act;

council has the same meaning as in the

Local Government

Act 1999;

developmental fishery means a fishery declared by the regulations to be a developmental fishery for the purposes of this

Act;

device means an implement, apparatus, device or substance for taking or facilitating the taking of an aquatic resource;

director of a body corporate includes a person occupying or acting in the position of a director or member of the governing body of the body corporate, by whatever name called and whether or not validly appointed to occupy or duly authorised to act in the position, and includes any person in accordance with whose directions or instructions the directors or members of the governing body are accustomed to act;

Director of Fisheries or

Director means the person for the time being holding or acting in the office of the Director of Fisheries under

Part

3Division 1;

ecologically sustainable development—see section 7(5);

entitlement under a fishery authority means—

a gear entitlement; or

a quota entitlement; or

an entitlement of a prescribed kind;

ERD Court means the Environment, Resources and

Development Court;

exemption means an exemption granted under this

Act;

exotic aquatic organism means fish or an aquatic plant of a species that is not endemic to the waters to which this Act applies;

and exotic fish and exotic aquatic plant have corresponding meanings;

fish means an aquatic animal other than—

an aquatic bird, an aquatic mammal, a reptile or an amphibian;

or

an aquatic animal of a kind declared by the regulations to be excluded from the ambit of this definition;

fisheries officer means—

the Director; or

a police officer; or

a person appointed as a fisheries officer under section 80;

fishery—

in Part

4—means a class of fishing activities identified in an arrangement under that Part as a fishery to which the arrangement applies;

in any other case—means a class of fishing activities declared by the regulations to constitute a fishery for the purposes of this

Act (other than Part 4);

fishery authority means a fishery licence or fishery permit;

fishery licence means a licence in respect of a fishery under Part

6Division 1;

fishery permit means a permit in respect of a fishery under Part

6Division 1;

fishing activity or fishing means the act of taking an aquatic resource, or an act preparatory to, or involved in, the taking of an aquatic resource;

fish of a priority species means—

abalone (Haliotis spp.) of all species; or

southern rock lobster (Jasus edwardsii); or

a species of fish declared by the regulations to be a priority species for the purposes of this Act;

fish processor means a person who, for a commercial purpose, processes, stores, transports or deals with fish or other aquatic resources;

foreign boat has the same meaning as in the

Commonwealth Act;

Fund means the Fisheries Research and

Development Fund continued in existence under section 21;

gear entitlement under a fishery authority means the maximum number of devices of a particular kind that the holder of the authority may lawfully use at any 1 time for the purpose of taking fish pursuant to the authority;

indigenous land use agreement means an indigenous land use agreement registered under Part 2 Division 3 of the Native Title

Act 1993 of the Commonwealth;

Joint Authority means a Joint Authority established under section 61 of the Commonwealth Act of which the Minister is a member;

Joint Authority Fishery means a fishery in respect of which there is in force an arrangement under

Part

4Division 2 under which the fishery is to be under the management of a Joint Authority;

management plan means a management plan under

Part

5;

native title group means a native title group under section 24CD of the Native

Title Act 1993 of the Commonwealth;

noxious, in relation to an aquatic resource, means a species of aquatic resource declared by the Minister by notice in the

Gazette to be a noxious species for the purposes of this Act;

plant includes alga;

prescribed apparatus means apparatus of a kind prescribed by the regulations for the purpose of counting, grading, weighing or sizing fish;

prescribed procedure means a procedure prescribed by the regulations for determining the weight of a fish catch;

processing—

in relation to fish—means scaling, gilling, gutting, filleting, freezing, chilling, packing or any other activity involved in preparing fish for sale;

in relation to any other aquatic resource—means any activity involved in preparing the resource for sale;

protected species means a species of aquatic resource declared by the regulations to be a protected species for the purposes of this Act;

public authority includes a Minister, statutory authority or council;

purchase means—

purchase or take in exchange; or

agree or offer to purchase or take in exchange; or

receive, or accept or take delivery, under an agreement to purchase or take in exchange; or

cause, suffer or permit an act referred to in a preceding paragraph;

quota entitlement under a fishery authority means the total quantity of aquatic resource of a particular class that may be taken under the authority during a quota period;

quota period means the period during which a total allowable catch or total allowable commercial catch may be taken;

recreational fishing means fishing other than commercial fishing or aboriginal traditional fishing;

registered boat—

means a boat registered under

Part

6Division 1 for use under a fishery authority; and

includes a boat used in the place of a boat referred to in paragraph (a) with the consent of the Minister and in accordance with the conditions (if any) of that consent;

registered fish processor means a person who is registered as a fish processor under

Part

6Division 3;

registered master—

means a person registered under

Part

6Division 1 as master of a boat that may be used under a fishery authority; and

includes a person acting in the place of a person referred to in paragraph (a) with the consent of the Minister and in accordance with the conditions (if any) of that consent;

registered owner—

in relation to a registered boat—means, subject to paragraph (b), the holder of the fishery authority under which the registered boat may be used; or

in relation to a boat being used by the holder of a fishery authority under this Act in place of a boat registered under

Part

6Division 1—means the holder of that authority;

register of authorities—see section 116(1)(a);

register of exemptions—see section 116(1)(b);

relevant Act means—

in relation to the Adelaide Dolphin Sanctuary—the

Adelaide Dolphin Sanctuary

Act 2005; or

in relation to a marine park—the

Marine Parks

Act 2007; or

in relation to the River Murray—the

River Murray

Act 2003;

relevant Minister means—

in relation to the Adelaide Dolphin Sanctuary—the Minister to whom the administration of the Adelaide

Dolphin Sanctuary Act 2005 is committed;

or

in relation to a marine park—the Minister to whom the administration of the Marine Parks

Act 2007 is committed; or

in relation to the River Murray—the Minister to whom the administration of the River Murray

Act 2003 is committed;

repealed Act means the

Fisheries

Act 1982;

River Murray has the same meaning as in the

River Murray

Act 2003;

scientific observer means a person appointed as a scientific observer under section 80;

sea ranger means a person appointed as a sea ranger under section 80;

sell means—

sell or give in exchange; or

agree or offer to sell or give in exchange; or

have in possession or control, expose, store, consign or deliver for sale or exchange; or

cause, suffer or permit an act referred to in a preceding paragraph;

specially protected area means—

the Adelaide Dolphin Sanctuary; or

a marine park; or

the River Murray;

species includes a subspecies or variety;

State includes a Territory;

take, in relation to an aquatic resource, means catch, take or obtain the resource (whether dead or alive) from any waters or kill or destroy the resource in any waters;

total allowable catch, in relation to a fishery, means the total quantity of aquatic resources of a particular class that may be taken from the waters of the fishery during a particular period;

total allowable commercial catch, in relation to a fishery, means the total quantity of aquatic resources of a particular class that may be taken from the waters of the fishery during a particular period for a commercial purpose;

Tribunal means the South Australian Civil and

Administrative Tribunal established under the South Australian Civil and Administrative Tribunal

Act 2013;

waters means—

any sea or inland waters (including any body of water or watercourse of any kind whether occurring naturally or artificially created);

and

the bed of such waters.

A class of fishing activities may be defined in an instrument under this Act by reference to all or any of the following factors:

a species of aquatic resource;

a description of aquatic resource by reference to sex, size, weight or any other characteristic;

a number or quantity of aquatic resource;

a period of time;

an area of waters or a place;

a method of fishing;

a class or number of boats;

a class of persons;

a purpose of activities;

any other factor.

In this Act—

a reference to engaging in a fishing activity of a class is to be construed as a reference to doing an act that falls within the defined class and as including a reference to—

using a device for the purpose of the activity; or

using a boat for the purpose of the activity; or

being in charge of, or acting as a member of the crew of, a boat that is being used for the purpose of the activity; or

diving in waters for the purpose of the activity; or

causing, assisting, suffering or permitting a person to do an act referred to in this section;

a reference to waters includes a reference to the intertidal and supra tidal zones of waters;

a reference to the waters of a fishery is a reference to the waters in relation to which the fishery is constituted.

For the purposes of this Act, an aquatic resource will not be regarded as having been taken if it is taken but immediately returned to the water unencumbered in any way and with as little injury or damage as possible.

The Governor may, by proclamation—

declare that waters, or land and waters, specified in the proclamation, constitute an aquatic reserve; and

assign a name to the aquatic reserve so constituted.

Land cannot form part of an aquatic reserve unless the land has been placed under the care, control and management of the

Minister.

The Governor may, by subsequent proclamation—

abolish an aquatic reserve; or

alter the boundaries of an aquatic reserve; or

alter the name of an aquatic reserve.

Subject to any limitations expressly prescribed in this Act, this

Act applies—

in relation to all waters that are within the limits of the State;

and

except for purposes relating to a fishery that is to be managed in accordance with the law of the Commonwealth under an arrangement under

Part

4Division 2 or purposes prescribed by paragraph (d)—in relation to any waters of the sea not within the limits of the State that are on the landward side of waters adjacent to the State that are within the Australian fishing zone;

and

for purposes relating to a fishery that is to be managed in accordance with the law of the State under an arrangement under

Part

4Division 2—in relation to any waters to which the legislative powers of the State extend, with respect to that fishery, whether under section 5 of the

Coastal Waters (State Powers)

Act 1980 of the Commonwealth or otherwise;

and

for purposes relating to recreational fishing activities engaged in otherwise than by use of a foreign boat (other than recreational fishing activities prohibited or regulated under a plan of management determined under section 17 of the Commonwealth Act)—in relation to any waters to which the legislative powers of the State extend with respect to such activities.

This Act does not apply in relation to an activity (other than the taking of aquatic resources for a commercial purpose or the introduction of exotic aquatic organisms or disease in aquatic resources) engaged in relation to inland waters if those waters are surrounded by land that is in the ownership, possession or control of the same person (being a person other than the Crown or an instrumentality of the Crown).

Native title and native title rights and interests are not affected by the operation of this Act except to the extent authorised under the

Native Title Act 1993 of the Commonwealth.

An authority granted by or under this Act is not personal property for the purposes of the Personal Property

Securities Act 2009 of the Commonwealth.

The Crown in right of the State owns all aquatic resources (whether living or dead) of the State.

Property in aquatic resources of the State passes—

to the holder of a licence, permit or other authority granted under this Act when taken in accordance with that licence, permit or other authority;

or

to any other person when taken lawfully in circumstances in which no licence, permit or other authority is required under this Act for the taking.

An object of this Act is to protect, manage, use and develop the aquatic resources of the State in a manner that is consistent with ecologically sustainable development and, to that end, the following principles apply:

proper conservation and management measures are to be implemented to protect the aquatic resources of the State from over-exploitation and ensure that those resources are not endangered;

access to the aquatic resources of the State is to be allocated between users of the resources in a manner that achieves optimum utilisation and equitable distribution of those resources to the benefit of the community;

aquatic habitats are to be protected and conserved, and aquatic ecosystems and genetic diversity are to be maintained and enhanced;

recreational fishing and commercial fishing activities are to be fostered for the benefit of the whole community;

the participation of users of the aquatic resources of the State, and of the community more generally, in the management of fisheries is to be encouraged.

The principle set out in subsection (1)(a) has priority over the other principles.

A further object of this Act is that the aquatic resources of the

State are to be managed in an efficient and cost effective manner and targets set for the recovery of management costs.

The Minister, the Director, the ERD Court and other persons or bodies involved in the administration of this Act, and any other person or body required to consider the operation or application of this Act (whether acting under this Act or another Act), must—

act consistently with, and seek to further the objects of, this

Act; and

insofar as this Act applies to the Adelaide Dolphin Sanctuary, seek to further the objects and objectives of the Adelaide Dolphin Sanctuary Act 2005;

and

insofar as this Act applies to the River Murray, seek to further the objects of the River Murray

Act 2003 and the Objectives for a Healthy River

Murray under that Act; and

insofar as this Act applies to areas within a marine park, seek to further the objects of the Marine Parks

Act 2007.

For the purposes of subsection (1), ecologically sustainable development comprises the use, conservation, development and enhancement of the aquatic resources of the State in a way, and at a rate, that will enable people and communities to provide for their economic, social and physical well-being while—

sustaining the potential of aquatic resources of the State to meet the reasonably foreseeable needs of future generations; and

safeguarding the life-supporting capacity of the aquatic resources of the State; and

avoiding, remedying or mitigating adverse effects of activities on the aquatic resources of the State, (taking into account the principle that if there are threats of serious or irreversible damage to the aquatic resources of the State, lack of full scientific certainty should not be used as a reason for postponing measures to prevent such damage).

The Minister has the functions and powers assigned or conferred by or under this Act.

If a document appears to bear the common seal of the Minister, it will be presumed, in the absence of proof to the contrary, that the common seal of the Minister was duly affixed to the document.

The office of the Director of Fisheries continues in existence.

The Director is a Public Service employee.

The Minister may delegate a function or power of the Minister under this Act (other than this power of delegation) to the Director or any other person or body (including a person for the time being holding or acting in a specified office or position).

The Director may delegate a function or power of the Director under this Act (other than this power of delegation) to a Public Service employee (including a person for the time being holding or acting in a specified office or position).

A delegation under this section—

must be by instrument in writing; and

may be absolute or conditional; and

does not derogate from the power of the delegator to act in a matter; and

is revocable at will.

A function or power delegated under this section may, if the instrument of delegation so provides, be further delegated.

In legal proceedings, an apparently genuine certificate, purportedly signed by the Minister or the Director containing particulars of a delegation under this section, will, in the absence of proof to the contrary, be accepted as proof that the delegation was made in accordance with the particulars.

The Minister may establish committees to provide advice to the

Minister on any matter related to the administration of this

Act.

The members of a committee established under this section will be appointed by the Minister and hold office for a term and on conditions determined by the Minister.

The membership of a committee must include persons who, in the opinion of the Minister, have expertise in fields relevant to those matters on which the committee is established to provide advice about and, in particular—

a committee established to provide advice on the management of a fishery must include at least 1 person with expertise in fisheries management and at least 1 person with expertise in fisheries research;

a committee established to provide advice on the allocation of the aquatic resources of a fishery must include persons who have expertise in issues related to that matter and who are cognisant of the interests of the various stakeholders in the fishery.

The procedures to be observed in relation to the conduct of the business of a committee will be—

as prescribed by the regulations; or

insofar as the procedure is not prescribed by the regulations—as determined by the Minister.

The Fisheries Research and Development Fund continues in existence.

The Fund will continue to be kept in a separate account at the

Treasury.

The Fund consists of—

money in the Fund immediately before the commencement of this Act;

and

money provided by Parliament for the purposes of the Fund;

and

grants, gifts and bequests made to the Minister for payment into the Fund; and

voluntary payments from persons and organisations involved in the fishing industry; and

fees, levies and charges paid under this Act; and

income arising from investment of the Fund; and

all other money that is required or authorised by or under this Act or another law to be paid into the Fund.

Money in the Fund that is not for the time being required for the purposes of this Act may be invested by the Minister with the approval of the

Treasurer.

The Minister may apply a part of the Fund—

in making a refund required or authorised by this Act to be made;

and

in payment of a reward under section 123; and

in payment of compensation payable to any person under this Act;

and

in payment of the costs of—

projects relating to the management of aquatic resources;

and

research or development relating to the fishing industry;

and

in making any other payment required by this Act or another law to be made from the Fund; and

in payment of expenses of administering the Fund; and

in defraying the costs of administering and enforcing this

Act.