Living Marine Resources Management Act 1995

Living Marine Resources Management Act 1995

This Act may be cited as the Living Marine Resources Management Act 1995.

The provisions of this Act commence on a day or days to be proclaimed.

In this Act –

abalone quota unit means one-3500th of the total allowable catch set for the commercial abalone fishery for a quota period;

Aboriginal activity means – the non-commercial use of the sea and its resources by Aborigines; and the taking of prescribed fish by Aborigines for the manufacture, by Aborigines, of artefacts for sale; and manufacturing of the kind referred to in paragraph (b);

Aborigine means an Aboriginal person within the meaning of the Aboriginal Lands Act 1995;

adult means a natural person who has attained the age of 18 years;

apparatus includes – any net, dilly, crab pot, rock lobster pot, rock lobster ring, rake, spade, dredge, implement, gear, equipment, contrivance, device, trap, pitch fork, spear or spear gun used, or capable of being used, in connection with fishing; and any hook, rod or line used, or capable of being used, for fishing; and any buoy, float, raft or dredge used, or capable of being used, in connection with fishing; and anything else used, or capable of being used, in connection with fishing;

Appeal Tribunal means the Tasmanian Civil and Administrative Tribunal;

approved means approved by the Secretary;

approved electronic record system means the electronic record system approved under section 145A;

aquatic observation means an activity on, in or under water relating to the observation of fish and their habitat;

arrangement means an arrangement under Part 7;

authorisation means a permit, licence or other authority permitting a person to undertake an activity;

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

coastal waters means – any part of the territorial sea of Australia adjacent to the State within 3 nautical miles of the baseline by reference to which the territorial limits of Australia are defined for the purposes of international law; and the marine or tidal waters on the landward side of any territorial sea of Australia adjacent to the State but not within the limits of the State;

Commonwealth Act means the Fisheries Management Act 1991 of the Commonwealth or an Act enacted in substitution of that Act;

Commonwealth Minister means the Minister administering the Commonwealth Act and any other Minister exercising powers and performing functions under that Act;

commercial purposes means the purpose of sale, processing, manufacture, marine farming or any other purpose that is directed to gain or reward;

commercially protected fish means fish referred to in section 100;

consult includes to seek information, advice, opinion and representation;

control order means an order referred to in Division 7 of Part 9;

conviction includes – a plea of guilty; or a finding by a court that a person committed an offence for which the person was charged even though a conviction was not recorded; or a finding of guilty by a court even though a conviction is not recorded;

corresponding law means – the Commonwealth Act; and the Export Control Act 1982 of the Commonwealth; and a law of another State or a Territory of the Commonwealth that relates to the management or protection of living marine resources;

deed of agreement means a deed of agreement referred to in section 99;

demerit point means a demerit point referred to in Division 6 of Part 9;

document includes – any tape, disc or other device or medium on which information is recorded or stored mechanically, photographically, electronically or otherwise; and anything on which any material has been recorded in a manner that, by the use of any device or instrument, it may be reproduced in a manner suitable for human perception;

draft management plan means a draft management plan referred to in Division 2 of Part 3;

examine includes count, measure, weigh and grade;

export means to transport beyond State waters;

finfish farming has the same meaning as it has in the Environmental Management and Pollution Control Act 1994;

fish means fish referred to in section 4;

fish habitat means an area of the natural environment of fish which has particular importance to the life cycle of fish;

fish hatchery means a place or premises where fish are bred for marine farming or sale or for placement or introduction into State waters;

fish processing licence means a fish processing licence in force under Part 4;

fisheries officer means – the Secretary; and a police officer; and a person appointed as a fisheries officer under section 164; and an officer referred to in section 171;

fishery means anything referred to in section 6;

fishing includes any of the following activities, other than an activity carried out under the authority of a marine farming licence:searching for, attempting to take, catching, taking or harvesting fish; any other activity which may reasonably be expected to result in catching, taking or harvesting fish; an activity under an arrangement that is necessary for an activity under paragraph (a) or (b) to occur under that arrangement;

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

fishing certificate means a fishing certificate referred to in section 63;

fishing licence means a fishing licence in force under Part 4;

fishing vessel means a vessel that is equipped for, or used for, fishing or transporting fish for a commercial purpose;

foreign boat means a foreign boat as defined in the Commonwealth Act;

habitat protection plan means a plan approved under Division 3 of Part 5;

handling licence means a handling licence in force under Part 4;

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

infringement notice means an infringement notice referred to in Division 5 of Part 9;

inland waters means waters within the meaning of the Inland Fisheries Act 1995;

introduced fish means – fish which were brought into the State; and any progeny or subsequent progeny of those fish unless prescribed to be otherwise;

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

Joint Authority fishery means a fishery under the management of a Joint Authority;

licence means any licence specified in Part 4;

licensee means a person holding a licence;

living marine resources means fish and their environment;

management plan means a management plan approved under Part 3;

managing authority, in relation to a marine resources protected area, means – the Minister; or a body or association declared to be the managing authority under section 115;

marine farm means an area to which a marine farming licence relates within which marine farming is carried out;

marine farming includes the farming, culturing, enhancement or breeding of fish for trade, business or research;

marine farming development plan means a marine farming development plan approved under Part 3 of the Marine Farming Planning Act 1995;

marine farming licence means a marine farming licence in force under Part 4;

marine resources protected area means an area established as a marine resources protected area under Part 5;

marine resources protected area management plan means a marine resources protected area management plan approved under Part 5;

master, in relation to a vessel, means the person having command, charge or management of the vessel;

native title rights and interests means native title rights and interests recognised under the Native Title Act 1993 of the Commonwealth;

non-exploitative use of fish includes the viewing, photographing or feeding of fish and the feelings associated with knowing fish are in State waters but does not include the removal, killing or injuring of fish;

noxious fish means – any fish of a species prescribed as noxious fish; or any fish declared to be noxious fish under section 127;

noxious matter means any matter which is harmful to fish or fish habitat;

objectives of resource management means the objectives set out in Schedule 1;

permit means a permit under Division 2 of this Part;

place includes – any land whether covered by water or not; and any building or structure, whether permanent or temporary; and any vessel, aircraft, vehicle or trailer; and any tent, camp or caravan;

possession– see section 6A;

protected fish means fish declared to be protected fish under section 135;

process, in relation to any fish, means to – void or purge the fish; or break up, cut up, skin or fillet the fish; or shell or shuck the fish; or dry, cure, smoke or cook the fish; or chill the fish (either dead or alive); or freeze the fish; or pack the fish (either dead or alive); or can the fish; or treat the fish by any other means; or hold the fish in readiness for processing by any means;

public authority means – a person or body established or constituted by an Act for a public purpose; and a council;

public notice means a notice which is published in the Gazette and a daily newspaper circulating generally in the State;

purchase includes – take in exchange; and agree or offer to take in exchange; and receive, accept or take delivery under an agreement to take in exchange;

quota period means – in relation to the commercial abalone fishery, a period of one year; and in relation to any other fishery, the period during which a total allowable catch may be taken;

recreational fishing means fishing carried out other than – for a commercial purpose; or as part of an Aboriginal activity;

regulations means regulations made under this Act;

repealed Act means the Fisheries Act 1959;

rock lobster quota unit, for a quota period, means a unit that is an entitlement to one 10 507th of the total allowable catch set for the commercial rock lobster fishery for that quota period;

sale includes – any method of disposition for valuable consideration or in the expectation of receiving any kind of reward; and barter; and the disposition to an agent for sale on consignment; and offering or attempting to sell; and receiving or having in possession for sale; and exposing for sale; and sending or delivering for sale; and causing or permitting to be sold, offered or exposed for sale; and disposal by way of raffle, lottery or other game of chance; and resale;

Secretary means the Secretary of the Department;

size, in relation to fish, includes prescribed measurement of length or breadth, or of other linear measurement or of weight;

special penalty means a special penalty referred to in Division 10 of Part 9;

species means a species, subspecies, hybrid, variant, race, mutation or separate population of any fish;

structure includes a platform, pontoon, jetty, building or any other thing used in connection with fishing or marine farming;

suitable person– see section 76B;

supervisor means a person referred to in section 89;

total allowable catch means the total quantity of a kind or species of fish that may be taken from a fishery;

take, in relation to fish, includes any of the following activities (except where the activity is authorised under a marine farming licence or fish processing licence):capture, carry away, catch, collect, destroy, dredge or fish for, gather, kill, raise, remove or in any other way obtain the fish (whether from water, land under water or the foreshore); land the fish from a vessel or in any other way bring the fish ashore; transfer the fish from one fishing vessel to another fishing vessel; attempt, cause or permit an act referred to in paragraph (a), (b) or (c);

vary includes substitute, add or delete;

vehicle includes any vehicle designed to move or be moved on one or more wheels or revolving runners;

vessel includes – a boat, ship, craft, hovercraft, aircraft or platform and any trailer used to transport any of them; and a vehicle that is capable of use in or on water whether floating, partly submersible or submersible and whether or not self propelled;

waters include – the bed and subsoil under any waters; and the airspace above any waters;

waters relevant to the State means – the coastal waters of the State; and the Australian fishing zone.

Fish is any aquatic organism of any species, whether dead or alive, which, in the normal course of events, spends part or all of its life in the aquatic environment.

Fish includes – bony fishes of the class Osteichthyes; and sharks, rays, lampreys and other cartilaginous fishes of the classes Chondrichthyes and Agnatha; and aquatic reptiles; and sea squirts and other aquatic chordates; and sea-stars, sea-urchins, sea-cucumbers and other echinoderms; and lobsters, crabs, prawns and other aquatic arthropods; and bristle worms, fan worms, arrowworms and other aquatic annelids, chaetognaths, nematodes, nemerteans and platyhelminths; and squid, oysters, abalone and other aquatic molluscs and brachiopods; and seafans, sponges, corals, jelly-fish, salps and other bryozoans, poriferans, coelenterates and ctenophores; and protozoans and bacteria; and seagrass, seaweed and other aquatic vascular plants, algae, diatoms, euglenoids and any other marine plants.

A reference to fish includes – the eggs, spat, spawn, seeds, spores, larvae or other offspring of an aquatic organism; and a shell containing fish or any other part derived from an aquatic organism; and raw, cooked, dismembered, frozen, preserved, salted or otherwise processed fish; and any other saltwater product declared by the regulations to be a fish for the purpose of any provision of this Act.

Fish does not include – a whale as defined in the Whales Protection Act 1988; or any aquatic mammal or aquatic bird; or freshwater fish as defined in the Inland Fisheries Act 1995, other than – freshwater fish that – is of a kind or species declared not to be freshwater fish in an order made and in force under section 4(1)(b) of that Act; and is in, or has been taken from, State waters that are not excepted waters as defined in that Act; or freshwater fish that – is of a kind, or species, of fish that forms a fishery or part of a fishery to which an arrangement applies; and is in, has been taken from, or is to be placed or introduced into, State waters to which the arrangement referred to in subparagraph (ii)(A) relates.

State waters are – any waters of the territorial sea of Australia that are – within 3 nautical miles of the baseline by reference to which the territorial limits of Australia are defined for the purposes of international law; and adjacent to the State; and any marine or tidal waters that are on the landward side of that baseline and are adjacent to the State, except inland waters; and any land which is swept by those waters to the highest landward extent; and in relation to a fishery managed under a law of Tasmania under an arrangement, any waters to which the arrangement relates; and in relation to recreational fishing to which the Commonwealth Act does not apply, any waters to which the legislative powers of Tasmania extend.

In relation to a fishery managed under a law other than a law of Tasmania under an arrangement, State waters do not include any waters to which the arrangement relates.

A fishery includes activities by way of fishing identified by reference to any or all of the following:a species, type or class of fish; a description of fish by reference to sex, size or another characteristic; an area of water, seabed or land; a method of fishing; a class or type of vessel; a class of persons; a purpose of an activity; a season.

A fishery includes the activity of processing or handling fish.

For the purposes of subsection (1)(g), a purpose of an activity may include, but is not limited to, a purpose of an activity specified in an arrangement entered into under Part 7.

A person is taken to be in possession of something for the purposes of this Act if the person has, either alone or jointly with others, actual possession or actual custody of the thing.

A person is also taken to be in possession of something for the purposes of this Act if – the thing is at or in a place that the person, either alone or jointly with others, occupies; or the person, either alone or jointly with others, enjoys the thing at or in any place; or the person has, whether it is exercised for the person's own benefit or for the benefit of others, any control over the thing.

Subsection (2) applies whether or not any other person has actual possession or actual custody of the thing.

However, subsection (2)(a) does not apply if the person proves that the person had no knowledge of the thing.

The purpose of this Act is to achieve sustainable development of living marine resources having regard to the need to – increase the community's understanding of the integrity of the ecosystem upon which fisheries depend; and provide and maintain sustainability of living marine resources; and take account of a corresponding law; and take account of the community's needs in respect of living marine resources; and take account of the community's interests in living marine resources.

A person must perform any function or exercise any power under this Act in a manner which furthers the objective of resource management.

This Act binds the Crown in right of Tasmania and, in so far as the legislative power of Parliament permits, in all its other capacities.

The Crown is not liable for prosecution for an offence under this Act, but an officer, employee or agent of the Crown is liable for prosecution for an offence under this Act.

All living marine resources present in waters referred to in section 5(1)(a), (b) and (c) are owned by the State.

Any fish specifically provided for under a marine farming licence are not owned by the State but are the property of the holder of that licence.

An authorisation under this Act takes precedence over any other public or private fishing rights.

Subsection (1) does not – extinguish or impair any native title rights and interests; or preclude Aborigines from engaging in Aboriginal activities.