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Fisheries Amendment Bill 2011
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
Clause 1 sets out the purposes of the Bill.
Clause 2 provides for the Bill to come into operation on a day or days to
be proclaimed, with a forced commencement date of 1 January
2012.
Clause 3 makes a technical amendment to section 67(1) of the Fisheries
Act 1995 to clarify that prohibitions can be included in a fisheries
notice made under that provision whether or not the notice also
fixes open and close seasons.
Clause 4 inserts into section 105(1)(a) of the Fisheries Act 1995, the
words "possession, sale or". This insertion extends the power of
seizure to fishing equipment the possession or sale of which is
prohibited. The power currently only applies to fishing
equipment the use of which is prohibited.
Clause 5 Subclause (1) of clause 5 makes a consequential amendment to
section 106(1) of the Fisheries Act 1995 to delete words from
section 106(1) that are now provided for in the new section
106AA being inserted by clause 6 of the Bill.
Subclause (2) of clause 5 inserts a new subsection (1A) in
section 106 of the Fisheries Act 1995. This new provision
provides that fish, protected aquatic biota or noxious aquatic
species taken or possessed in contravention of the Act,
regulations or a fisheries notice are forfeited to the Crown.
This extends the current forfeiture provision under section 106(1)
of the Fisheries Act 1995 that currently applies to fishing
equipment the possession, sale or use of which is prohibited by
the Fisheries Act 1995, regulations or a fisheries notice.
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Subclause (3) substitutes section 106(5) of the Fisheries Act
1995 to replace a reference to things not "prohibited" to things
not "subject to forfeiture to the Crown under subsection (1)
or (1A)". This will clarify that the court may order a thing to be
forfeited to the Crown if an offence is proven and the thing is not
subject to automatic forfeiture. Such things would include seized
equipment that may have been be used illegally but the use of
which was not prohibited.
Subclause (4) of clause 5 substitutes section 106(6A) of the
Fisheries Act 1995. This amendment has been made because
fish taken in contravention of the Fisheries Act 1995, the
regulations or fisheries notice are now covered by the wording of
new paragraph (a), which has been amended in consequence of
the amendment made by clause 5(2) of the Bill.
Subclause (5) of clause 5 makes a minor technical amendment
that clarifies the meaning of section 106(8) of the Fisheries Act
1995.
Clause 6 inserts new sections 106AA, 106AB, 106AC, 106AD, 106AE
and 106AF in the Fisheries Act 1995.
The new section 106AA provides for new powers that may be
exercised in relation to a thing that is subject to forfeiture to the
Crown under section 106(1) or 106(1A). Under this section, in
addition to the current power allowing disposal of the thing, an
authorised officer will be able to issue a disposal notice under the
new proposed section 106AB and the Secretary or an authorised
officer will be able to seek a court order condemning a thing as
forfeited to the Crown. These new processes will provide greater
certainty as to whether a seized thing is actually forfeited to the
Crown and therefore can be lawfully disposed of.
The new section 106AB sets out the requirements of a disposal
notice that may be issued pursuant to the new section 106AA.
The new section 106AC provides for the making of a claim for
the return of a seized thing by the person issued with a disposal
notice and the requirements for making that claim.
The new section 106AD provides that if a claim for the return of
the seized thing is not made within 28 days after being given the
disposal notice, the seized thing will be taken to be condemned as
forfeited to the Crown.
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The new section 106AE allows a court to make a condemnation
order on the application by the Secretary or authorised officer in
respect of a thing forfeited to the Crown under section 106(1)
or (1A).
The new section 106AF provides that any action referred to in
section 106AA that may be taken in relation to a seized thing
can still be taken despite the payment of any penalty for an
infringement notice served in respect of an offence relating to
the seized thing.
Clause 7 amends section 111(2) of the Fisheries Act 1995 to increase the
penalty for obstructing an authorised officer from 50 penalty
units or 3 months imprisonment to 120 penalty units or
12 months imprisonment. This level is consistent with similar
legislation such as section 62 of the Wildlife Act 1975.
Clause 8 amends section 119A of the Fisheries Act 1995 to make it an
offence to knowingly furnish a false or misleading document, in
line with the current offence in that section that applies for
making a false or misleading statement.
Clause 9 inserts a new section 129A in the Fisheries Act 1995 that
provides a new power for a court to order a person found guilty
of an offence under that Act to carry out specified projects for the
restoration or enhancement of the environment in a public place
or for the benefit of the public.
Clause 10 inserts a new section 130AA in the Fisheries Act 1995 that
provides a new power for a court to prohibit a person from
recreational fishing. The power will apply if the Court has
convicted or found a person guilty of an offence under the
Fisheries Act 1995. The prohibition prevents the person from
taking or attempting to take fish from marine or inland waters,
using or possessing fishing equipment in or next to Victorian
waters, and if they are required to hold a recreational licence, that
licence is suspended and the person is disqualified from holding a
recreational licence. The prohibition order will be effective for
the time specified in the notice but not exceeding 12 months.
Failure to comply with the prohibition order is an offence with a
penalty of 100 penalty units or 6 months imprisonment or both.
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The new section ensures that the prohibitions relating to the
taking of fish and use of recreational fishing equipment does not
apply to a person who holds a licence or permit (other than a
recreational licence) and they are acting in accordance with that
licence or permit.
Clause 11 inserts new section 163D into the Fisheries Act 1995.
This contains transitional provisions that provide that the
proposed new court powers to order offenders to carry out
restorative or enhancement activities under new section 129A
or to prohibit a person from recreational fishing under new
section 130AA only apply in respect of offences committed from
the commencement of the respective provisions of this Bill that
insert these respective powers.
Clause 12 provides that this amending Act will be repealed on 1 January
2013. The repeal of this Act does not affect the continuing
operation of the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
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