Fisheries Management Act 1991

11. For the purposes of this article, a serious violation means: (a) fishing without a valid license, authorization or permit issued by the flag State in accordance with article 18, paragraph 3(a); (b) failing to maintain accurate records of catch and catch-related data, as required by the relevant subregional or regional fisheries management organization or arrangement, or serious misreporting of catch, contrary to the catch reporting requirements of such organization or arrangement; (c) fishing in a closed area, fishing during a closed season or fishing without, or after attainment of, a quota established by the relevant subregional or regional fisheries management organization or arrangement; (d) directed fishing for a stock which is subject to a moratorium or for which fishing is prohibited; (e) using prohibited fishing gear; (f) falsifying or concealing the markings, identity or registration of a fishing vessel; (g) concealing, tampering with or disposing of evidence relating to an investigation; (h) multiple violations which together constitute a serious disregard of conservation and management measures; or (i) such other violations as may be specified in procedures established by the relevant subregional or regional fisheries management organization or arrangement.

Regulation etc. of certain practices (1) For the purpose of conserving the marine environment, the regulations may prohibit, or make provision for the regulation of, the engaging in specified activities, or the use of specified practices, by: (a) persons engaged in fishing in the AFZ; and (b) Australian boats, and persons on Australian boats, engaged in fishing outside the AFZ. (2) Without limiting the generality of subsection (1), regulations may be made in relation to: (a) the employment of specified fishing practices or methods; and (b) the use of specified fishing equipment; and (c) the taking, and treatment of, by-catches, and the making of returns in relation to by-catches taken; and (d) littering at sea.

Regulation etc. of certain practices (1) For the purpose of conserving the marine environment, the regulations may prohibit, or make provision for the regulation of, the engaging in specified activities, or the use of specified practices, by: (a) persons engaged in fishing in the AFZ; and (b) Australian boats, and persons on Australian boats, engaged in fishing outside the AFZ. (2) Without limiting the generality of subsection (1), regulations may be made in relation to: (a) the employment of specified fishing practices or methods; and (b) the use of specified fishing equipment; and (c) the taking, and treatment of, by-catches, and (d) littering at sea.

Driftnet fishing (1) A person must not engage in driftnet fishing activities in the AFZ. Penalty: 500 penalty units. (1A) In subsection (1), strict liability applies to the physical element of circumstance, that the relevant conduct is engaged in within the AFZ. Note: For strict liability, see section 6.1 of the Criminal Code. (2) An Australian citizen must not engage in driftnet fishing activities outside the AFZ. Penalty: 500 penalty units. (3) A body corporate that is incorporated in Australia or carries on activities mainly in Australia must not engage in driftnet fishing activities outside the AFZ. Penalty: 2,500 penalty units. (4) A person must not, outside the AFZ, engage in driftnet fishing activities from an Australian boat. Penalty: 500 penalty units. (4A) In subsections (2), (3) and (4), strict liability applies to the physical element of circumstance, that the relevant conduct is engaged in outside the AFZ. Note: For strict liability, see section 6.1 of the Criminal Code. (5) In subsection (1): driftnet means a gillnet or other net or a combination of nets that is more than 2.5 kilometres in length, or such shorter length as is prescribed, the purpose of which is to enmesh, entrap or entangle fish by drifting on the surface of or in the water driftnet fishing activities means: (a) taking fish with the use of a driftnet; or (b) engaging in any other activity that can reasonably be expected to result in the taking of fish with the use of a driftnet, including searching for and locating fish to be taken by that method; or (c) any operations at sea in support of, or in preparation for any activity described in this definition, including operations of placing, searching for or recovering fish aggregating devices or associated electronic equipment such as radio beacons; or (d) aircraft use relating to the activities described in this definition except for flights in emergencies involving the health or safety of crew members or the safety of a boat; or (e) transporting, transhipping and processing any driftnet catch, and co-operation in the provision of food, fuel and other supplies for boats equipped for or engaged in driftnet fishing.

14. Regulation etc. of certain practices (1) For the purpose of conserving the marine environment, the regulations may prohibit, or make provision for the regulation of, the engaging in specified activities, or the use of specified practices, by: (a) persons engaged in fishing in the AFZ; and (b) Australian boats, and persons on Australian boats, engaged in fishing outside the AFZ. (2) Without limiting the generality of subsection (1), regulations may be made in relation to: (a) the employment of specified fishing practices or methods; and (b) the use of specified fishing equipment; and (c) the taking, and treatment of, by-catches, and the making of returns in relation to by-catches taken; and (d) littering at sea.

15. Prohibition against certain fishing (1) A person must not (otherwise than in accordance with the terms of a scientific permit): (a) in the AFZ, take black cod (Epinephelus daemelii); or (b) in the AFZ, or in a part of the AFZ specified in the regulations, take prescribed fish. Penalty: 125 penalty units. (2) A person on an Australian boat must not, outside the AFZ, take a prescribed fish. Penalty: 125 penalty units. (3) It is a defense to a prosecution for an offense against this section if the person charged satisfies the court that, upon becoming aware of the taking of the fish, he or she took steps immediately to return the fish to its natural environment. (4) An offense under this section is an offense of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code.

AFMA to meet international fisheries management organization and Fish Stocks Agreement obligations Boat involved in contravening international fisheries management measure (1) AFMA must not authorize under this Part the use of an Australian-flagged boat for fishing on the high seas for a conserved fish stock during the period specified in subsection (2), if: (a) a court has convicted a person of an offense described in subsection (3) involving the use of the boat; and (b) the court has ordered the person to pay a fine for the offense (whether or not the person has also been sentenced to imprisonment for the offense); and (c) the court has not ordered the forfeiture of the boat.

Period for which AFMA must not authorise use of boat (2) The period starts when the person is ordered to pay the fine and ends when one of the following events occurs: (a) the person pays the fine; (b) a penalty is imposed on the person for failure to pay the fine; (c) the court orders the forfeiture of the boat (for the offense or another offense); (d) the conviction of the person for the offense for which the person was ordered to pay the fine is quashed.

Offenses that prevent AFMA authorizing use of boat (3) Subsection (1) limits authorization of the use of a boat involved in any of the following offenses: (a) an offense against subsection 95(5) constituted by one of the following acts or omissions that contravenes a condition of a fishing concession or scientific permit that authorizes fishing for a conserved fish stock on the high seas or contravenes a provision of a temporary order relating to fishing for a conserved fish stock on the high seas: (i) fishing for the conserved fish stock at a particular time, in a particular place or with particular equipment; (ii) failing to maintain accurate records of catch; (iii) failing to provide an accurate return of fish taken, carried, transhipped or processed; (iv) taking, carrying, transhipping or processing more fish than authorized by the concession, permit or order; (v) changing or hiding the markings of the boat; (b) an offense against section 105A involving a fish from a conserved fish stock and a boat; (ba) an offense against section 105AA or 105AB; (c) an offense against section 105B involving a boat equipped for fishing for a conserved fish stock; (d) an offense against section 107 relating to a document, statement, return or information about catch of a conserved fish stock; (e) an offense against a prescribed provision of this Act or the regulations that is constituted by a prescribed act or omission relating to a conserved fish stock.

AFMA to meet international fisheries management organization and Fish Stocks Agreement obligations Boat involved in contravening international fisheries management measure (1) AFMA must not authorize under this Part the use of an Australian-flagged boat for fishing on the high seas for a conserved fish stock during the period specified in subsection (2), if: (a) a court has convicted a person of an offense described in subsection (3) involving the use of the boat; and (b) the court has ordered the person to pay a fine for the offense (whether or not the person has also been sentenced to imprisonment for the offense); and (c) the court has not ordered the forfeiture of the boat.

Period for which AFMA must not authorise use of boat (2) The period starts when the person is ordered to pay the fine and ends when one of the following events occurs: (a) the person pays the fine; (b) a penalty is imposed on the person for failure to pay the fine; (c) the court orders the forfeiture of the boat (for the offense or another offense); (d) the conviction of the person for the offense for which the person was ordered to pay the fine is quashed.

Offenses that prevent AFMA authorizing use of boat (3) Subsection (1) limits authorization of the use of a boat involved in any of the following offenses: (a) an offense against subsection 95(5) constituted by one of the following acts or omissions that contravenes a condition of a fishing concession or scientific permit that authorizes fishing for a conserved fish stock on the high seas or contravenes a provision of a temporary order relating to fishing for a conserved fish stock on the high seas: (i) fishing for the conserved fish stock at a particular time, in a particular place or with particular equipment; (ii) failing to maintain accurate records of catch; (iii) failing to provide an accurate return of fish taken, carried, transhipped or processed; (iv) taking, carrying, transhipping or processing more fish than authorized by the concession, permit or order; (v) changing or hiding the markings of the boat; (b) an offense against section 105A involving a fish from a conserved fish stock and a boat; (ba) an offense against section 105AA or 105AB; (c) an offense against section 105B involving a boat equipped for fishing for a conserved fish stock; (d) an offense against section 107 relating to a document, statement, return or information about catch of a conserved fish stock; (e) an offense against a prescribed provision of this Act or the regulations that is constituted by a prescribed act or omission relating to a conserved fish stock.

Contravention on high seas—strict liability (1) A person commits an offense if: (a) the person uses a boat for fishing; and (b) the person contravenes an international fisheries management measure in relation to the fishing; and (c) the boat is on the high seas; and (d) the boat is a foreign boat. Penalty: 60 penalty units. (2) Strict liability applies to subsection (1). Note: For strict liability, see section 6.1 of the Criminal Code. (3) Subsection (1) does not apply if the act that contravenes the international fisheries management measure is fishing that is authorized by an authorization (however described) issued under the law of the country of nationality of the boat. Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

offenses in places beyond the AFZ Subdivision A—Australian-flagged boats beyond the AFZ 105A. Australian-flagged boat with fish on high seas (1) A person commits an offense if: (a) the person intentionally has a fish in his or her possession or control; and (b) the fish is on an Australian-flagged boat on the high seas and the person is reckless as to that fact; and (c) the taking of the fish is not authorized by a fishing concession or scientific permit and the person is reckless as to that fact. (2) The offense is punishable on conviction by a fine not more than 500 penalty units.

105AA. Person fishing for conserved fish stock on high seas without a concession—strict liability (1) A person commits an offense if: (a) the person uses a boat for fishing; and (b) the fishing is for a conserved fish stock; and (c) the boat is an Australian-flagged boat; and (d) the boat is on the high seas in a part of the conservation area for the fish stock; and (e) the fishing is not authorised by a fishing concession. (2) The offense is punishable on conviction by a fine of not more than 60 penalty units. (3) An offense under this section is an offense of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code.

105AB. Person fishing for conserved fish stock on high seas without a concession (1) A person commits an offense if: (a) the person uses a boat for fishing; and (b) the fishing is for a conserved fish stock; and (c) the boat is an Australian-flagged boat; and (d) the boat is on the high seas in a part of the conservation area for the fish stock; and (e) the fishing is not authorized by a fishing concession. (2) The offense is punishable on conviction by a fine of not more than 500 penalty units.

105B. Australian-flagged boat on high seas equipped for fishing (1) A person commits an offense if: (a) a person intentionally has in his or her possession or charge an Australian-flagged boat; and (b) the boat is equipped with nets, traps or other equipment for fishing and the person is reckless as to that fact; and (c) the boat is at a place on the high seas and the person is reckless as to that fact. (2) The offense is punishable on conviction by a fine not more than 500 penalty units. (3) Subsection (1) does not apply if: (a) the person holds a fishing concession or scientific permit authorizing the boat to be at that location equipped with nets, traps or other equipment for fishing; or (b) the person is acting on behalf of the holder of such a concession or permit; or (c) the boat is engaged solely in the ordinary course of trade of carrying cargo between: (i) Australia and a foreign country; or (ii) Australia and an external Territory; or (iii) an external Territory and a foreign country; or (iv) 2 external Territories; or (d) the person has a reasonable excuse. Note: Even if subsection (1) does not apply because the person holds, or acts for the holder of, a fishing concession or scientific permit, the person will commit an offense under section 95 if the person contravenes a condition of the concession or permit. (4) The only burden of proof that a defendant bears in respect of subsection (3) is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter in question existed.

105C. Australian-flagged boat fishing in foreign waters (1) A person commits an offense if: (a) the person intentionally uses an Australian-flagged boat for fishing; and (b) the boat is in the exclusive economic zone, territorial sea, archipelagic waters (as defined in the United Nations Convention on the Law of the Sea) or internal waters of a foreign country and the person is reckless as to that fact; and (c) the law of the country requires the person to have an authorization (however described) given under the law of the country for the fishing and the person is reckless as to that fact. (2) The offense is punishable on conviction by a fine not more than 500 penalty units. (3) Subsection (1) does not apply if the person has an authorization (however described) issued under the law of the country for the fishing. (4) The only burden of proof that a defendant bears in respect of subsection (3) is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter in question existed. (5) If the person has been convicted or acquitted in the foreign country of an offense involving the fishing, the person cannot be convicted of an offense under this section involving the fishing.

105D. Authorizing foreign officials’ action affecting Australian-flagged boats Boarding boats suspected of illegal fishing in foreign waters (1) On behalf of Australia, AFMA may authorize officials of a foreign country that is party to the Fish Stocks Agreement or that participates in an international fisheries management organization to board and inspect an Australian-flagged boat on the high seas if: (a) AFMA or Australia has received a request from the appropriate authority of the foreign country for that country’s officials to board and inspect the boat; and (b) AFMA has reasonable grounds to believe that the boat has been used for fishing in the exclusive economic zone, territorial sea, archipelagic waters (as defined in the United Nations Convention on the Law of the Sea) or internal waters of the foreign country without an authorization (however described) given under the law of that country; and (c) AFMA is satisfied that the boarding and inspection will be carried out in accordance with the Fish Stocks Agreement or measures established by the international fisheries management organisation.

Investigating breach of international fisheries management measures (2) On behalf of Australia, AFMA may authorize an authority of a foreign country that is party to the Fish Stocks Agreement or that participates in an international fisheries management organization to investigate an alleged contravention of an international fisheries management measure involving an Australian-flagged boat if: (a) an official of the foreign country has boarded the boat on the high seas in an area covered by the international fisheries management organization; and (b) the appropriate authority of the foreign country has notified AFMA or Australia that the official has reasonable grounds for believing that the boat has been used in contravention of the international fisheries management measure; and (c) AFMA is satisfied that the investigation will be carried out in accordance with the Fish Stocks Agreement or measures established by the international fisheries management organization.

Revocation of authorization by AFMA (3) AFMA may revoke an authorization AFMA has given under this section.

Form of authorization or revocation by AFMA (4) An authorization, or revocation of an authorization, by AFMA must be in writing or by electronic transmission. However, an authorization or revocation cannot be made by electronic transmission of an oral message.

Enforcement action for breach of international fisheries management measures (5) On behalf of Australia, the Attorney-General may authorize in writing an authority of a foreign country to take specified action to enforce a law of the foreign country against a contravention of an international fisheries management measure on the high seas involving an Australian-flagged boat if: (a) AFMA has authorized an authority of the foreign country under subsection (2) to investigate the alleged contravention; and (b) the appropriate authority of the foreign country has communicated the results of the investigation to Australia; and (c) the Attorney-General is satisfied that the action will be taken in accordance with the Fish Stocks Agreement or measures established by the international fisheries management organization.

Revocation of authorisation by Attorney-General (6) The Attorney-General may revoke in writing an authorization he or she has given under this section.

Subdivision B—Using foreign boat to contravene international fisheries management measure

105E. Contravention on high seas—strict liability (1) A person commits an offense if: (a) the person uses a boat for fishing; and (b) the person contravenes an international fisheries management measure in relation to the fishing; and (c) the boat is on the high seas; and (d) the boat is a foreign boat. Penalty: 60 penalty units. (2) Strict liability applies to subsection (1). Note: For strict liability, see section 6.1 of the Criminal Code. (3) Subsection (1) does not apply if the act that contravenes the international fisheries management measure is fishing that is authorized by an authorization (however described) issued under the law of the country of nationality of the boat. Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

105EA. Contravention on high seas (1) A person commits an offense if: (a) the person uses a boat for fishing; and (b) the person contravenes an international fisheries management measure in relation to the fishing; and (c) the boat is on the high seas; and (d) the boat is a foreign boat. Penalty: 500 penalty units. (2) Strict liability applies to paragraphs (1)(c) and (d). Note: For strict liability, see section 6.1 of the Criminal Code. (3) Subsection (1) does not apply if the act that contravenes the international fisheries management measure is fishing that is authorized by an authorization (however described) issued under the law of the country of nationality of the boat. Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

105F. Australian national on foreign boat in foreign waters—strict liability (1) A person commits an offense if: (a) the person uses a boat for fishing; and (b) the person is an Australian national; and (c) the person contravenes an international fisheries management measure in relation to the fishing; and (d) the boat is in the exclusive economic zone, territorial sea, archipelagic waters (as defined in the United Nations Convention on the Law of the Sea) or internal waters of a foreign country; and (e) the boat is a foreign boat. Penalty: 60 penalty units. (2) Strict liability applies to subsection (1). Note: For strict liability, see section 6.1 of the Criminal Code. (3) Subsection (1) does not apply if the act that contravenes the international fisheries management measure is fishing that is authorized by an authorization (however described) issued under the law of the country covered by paragraph (1)(d). Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

105FA. Australian national on foreign boat in foreign waters (1) A person commits an offense if: (a) the person uses a boat for fishing; and (b) the person is an Australian national; and (c) the person contravenes an international fisheries management measure in relation to the fishing; and (d) the boat is in the exclusive economic zone, territorial sea, archipelagic waters (as defined in the United Nations Convention on the Law of the Sea) or internal waters of a foreign country; and (e) the boat is a foreign boat. Penalty: 500 penalty units. (2) Strict liability applies to paragraphs (1)(d) and (e). Note: For strict liability, see section 6.1 of the Criminal Code. (3) Subsection (1) does not apply if the act that contravenes the international fisheries management measure is fishing that is authorized by an authorization (however described) issued under the law of the country covered by paragraph (1)(d). Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

Subdivision C—Unauthorized foreign boat on high seas 105H. Unauthorized fishing—strict liability (1) A person commits an offense if: (a) the person uses a boat for fishing; and (b) the boat is a foreign boat; and (c) the boat is on the high seas; and (d) a law of the country of nationality of the boat requires the fishing to be authorized (however described); and (e) the fishing is not so authorized. Penalty: 60 penalty units. (2) Strict liability applies to subsection (1). Note: For strict liability, see section 6.1 of the Criminal Code.

105I. Unauthorized fishing (1) A person commits an offense if: (a) the person uses a boat for fishing; and (b) the boat is a foreign boat; and (c) the boat is on the high seas; and (d) a law of the country of nationality of the boat requires the fishing to be authorized (however described); and (e) the fishing is not so authorized. Penalty: 500 penalty units.

(1) A person commits an offense if: (a) the person is the master of a foreign boat; and (b) the person intentionally lands or tranships (or causes to be landed or transhipped) fish from the boat at a place; and (c) the place is in Australia or an external Territory and the person is reckless as to that fact. (1A) The offense is punishable on conviction by a fine not more than 500 penalty units. (1B) Subsection (1) does not apply if: (a) the fish were landed or transhipped in accordance with: (i) the terms of a foreign fishing licence; or (ii) an entry under paragraph 21(2)(b) of the Torres Strait Fisheries Act 1984; or (iii) the terms of an approval given by the Minister; or (b) the person has a reasonable excuse for causing the fish to be landed or transhipped. Note: The defendant bears an evidential burden in relation to the matter in subsection (1B). See subsection 13.3(3) of the Criminal Code. (1C) The Minister may give a person written approval of the landing or transhipment of fish. The approval may be expressed to be subject to conditions. (1D) The conditions to which an approval may be expressed to be subject include: (a) a condition that the person (the approved person) to whom the approval relates notify a specified person of the landing or transhipment; and (b) a condition that the approved person give a specified person a return of the species and quantity of fish landed or transhipped; and (c) a condition that the landing or transhipment occur under the supervision of a specified person. This does not limit subsection (1C). (2) An offense against this section is an indictable offense but may be heard and determined, with the consent of the prosecutor and the defendant, by a court of summary jurisdiction. (3) If an offense is dealt with by a court of summary jurisdiction, the penalty that the court may impose is a fine not exceeding 250 penalty units. (4) An offense under subsection (1) is an offense of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code.

(1) In this Act, unless the contrary intention appears: Australian-flagged boat means a boat that: (a) is an Australian ship as defined in the Shipping Registration Act 1981; or (b) would be an Australian ship as defined in the Shipping Registration Act 1981 if it were a ship as defined in that Act. Master, in relation to a boat, means the master or other person in charge of the boat.

Application of the Criminal Code Chapter 2 (other than Part 2.5) of the Criminal Code applies to all offenses against this Act. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

(1) A person must not: (a) at a place in the AFZ, engage in commercial fishing unless: (i) the person is, or is acting on behalf of, the holder of a fishing concession, or a scientific permit, that is in force authorizing commercial fishing at that place; or (ii) if a Treaty boat is used—a Treaty licence is in force in respect of the boat authorizing commercial fishing at that place; or (b) in the AFZ, be in charge of a Treaty boat that is being used for commercial fishing unless a Treaty license is in force in respect of the boat; or (c) in the AFZ, have a fish in the person’s possession or under his or her control in a boat at a time when the taking of the fish was not authorized by a fishing concession or a scientific permit; or (d) being the holder of a fishing concession, scientific permit, fish receiver permit, port permit or foreign master fishing license that is in force, contravene a condition of the fishing concession, permit or license or a provision of a temporary order; or (e) being the holder of a fishing concession, scientific permit, fish receiver permit or port permit that is in force, cause or permit a person acting on his or her behalf to contravene a condition of the fishing concession or permit or a provision of a temporary order, as the case may be; or (f) being a person acting on behalf of the holder of a fishing concession, scientific permit, fish receiver permit or port permit that is in force, contravene a condition of the fishing concession or permit or a provision of a temporary order, as the case may be; or (g) keep or purport to keep a logbook, or furnish or purport to furnish a logbook or return, relating to a matter specified in subsection 42(1B) knowing that the logbook so kept or the logbook or return so furnished contains a statement in respect of that matter that is false or misleading in a material particular. (1AA) Paragraphs (1)(d), (e) and (f) (and the rest of this section so far as it relates to those paragraphs) apply whether the contravention occurs inside or outside the outer limits of the AFZ. (1A) A person does not contravene subsection (1) because of an act or omission that the person is authorized to do, or not to do, as the case may be: (a) under the management plan for the relevant fishery; or (b) under regulations made for the relevant fishery; or (c) in relation to a by-catch under regulations made for the purposes of paragraph 14(2)(c). (2) A person who contravenes paragraph (1)(a) or (b) with the use of, or in relation to, a foreign boat or in relation to a foreign fishing license commits an offense punishable on conviction by a fine not exceeding 500 penalty units. (3) An offense mentioned in subsection (2) is an indictable offense but may be heard and determined, with the consent of the prosecutor and the defendant, by a court of summary jurisdiction. (4) If an offense mentioned in subsection (2) is dealt with by a court of summary jurisdiction, the penalty that the court may impose is a fine not exceeding 250 penalty units. (5) A person who contravenes subsection (1) in circumstances in which the person does not commit an offense against subsection (2) commits an offense punishable, on conviction, by a fine not exceeding 250 penalty units. (5A) Strict liability applies to subsections (2) and (5). (6) It is a defence to a prosecution for an offense arising under paragraph (1)(c) if the person charged satisfies the court that the fish was not taken in the AFZ. (7) A prosecution for an offense against subsection (2) or (5) may be commenced within 2 years after the commission of the offense.

(1) In this Act, unless the contrary intention appears: Australian boat means: (a) a boat: (i) the operations of which are based on a place in Australia or an external Territory; and (ii) that is wholly-owned by a natural person who is a resident of, or by a company incorporated in, Australia or an external Territory; and (iii) that was built in Australia or an external Territory; or (b) a boat, not being a boat mentioned in paragraph (a) or a boat owned by a foreign resident that is under a demise charter, that is registered under the Shipping Registration Act 1981; or (c) a boat the subject of a declaration under subsection (2).

(1) In this Act, unless the contrary intention appears: Australian boat means: (a) a boat: (i) the operations of which are based on a place in Australia or an external Territory; and (ii) that is wholly-owned by a natural person who is a resident of, or by a company incorporated in, Australia or an external Territory; and (iii) that was built in Australia or an external Territory; or (b) a boat, not being a boat mentioned in paragraph (a) or a boat owned by a foreign resident that is under a demise charter, that is registered under the Shipping Registration Act 1981; or (c) a boat the subject of a declaration under subsection (2).

32 Grant of fishing permits (1) AFMA may, upon application made in the approved form, grant to a person a fishing permit authorising, subject to subsections (1A), (1B), (1C) and (1D), the use by that person, or by a person acting on that person’s behalf, of an Australian boat for fishing in a specified area of the AFZ or a specified fishery. (1A) Subject to subsections (1C) and (1D), if an Australian boat is specified in the permit, the permit authorises the use as mentioned in subsection (1) of: (a) subject to paragraph (b)—that boat; or (b) if the person to whom the permit is granted, from time to time, by written notice given to AFMA, nominates for the purposes of the permit another Australian boat in lieu of that boat—the boat so nominated. (1B) Subject to subsections (1C) and (1D), if no Australian boat is specified in the permit, the permit authorises the use as mentioned in subsection (1) of such Australian boat (if any) as the person to whom the permit is granted, from time to time, by written notice given to AFMA, nominates for the purposes of the permit. (1BA) After the commencement of this subsection, a boat may be nominated under subsection (1A) or (1B) only if: (a) either: (i) the boat’s particulars are already registered on the Fishing Permits Register; or (ii) the boat is an Australian boat; and (b) the acceptance of the nomination would not be contrary to: (i) a condition of the permit; or (ii) the regulations; and (c) for the purposes of a permit to fish in a specified fishery on the high seas—the boat is an Australian-flagged boat. (1C) The permit does not authorise the use of an Australian boat unless the boat complies with any conditions to which the permit is subject. (1D) If subsection 16A(1) prohibits AFMA from authorising a use of a boat for a period described in subsection 16A(2), the permit does not authorise the use of the boat during the period. Note: Subsection 16A(1) prohibits AFMA from authorising the use of a boat to fish on the high seas for a conserved fish stock if the boat has been used in the commission of certain offenses and the penalties for those offenses have not been complied with. (2) An application made for the grant of a fishing permit must provide AFMA with such information as it reasonably requires for a proper consideration of the application. (3) Without limiting the operation of subsection (1), AFMA may refuse to grant a fishing permit if it has reason to believe that a requirement of a law of the Commonwealth, or of a State or Territory, has not been complied with in relation to the boat. (4) A fishing permit may authorise the use of a boat: (a) for commercial fishing generally; or (b) for recreational fishing generally (whether from a charter boat or otherwise); or (d) for specified fishing activities, including: (i) the carrying of fish; or (ii) the processing of fish; or (iii) the testing of fishing equipment. (5) A fishing permit is granted subject to the following conditions: (a) if the fishing permit authorises fishing in a specified managed fishery—the holder of the permit must comply with any obligations imposed by, or imposed by AFMA under, the relevant plan of management on the holder of such a fishing permit; (b) if the fishing permit authorises fishing in a specified managed fishery—the permit will cease to have effect if the plan of management for the fishery is revoked under subsection 20(3); (c) the fishing permit may, under subsection 75(7), cease to have effect; (d) the fishing permit may be cancelled under section 39; (e) no compensation is payable because the fishing permit is cancelled, ceases to have effect or ceases to apply to a fishery. Note: For further provisions relating to conditions imposed on fishing permits see subsections (6), (7A) and sections 40C, 42, 42A and 42B.

(6) A fishing permit: (a) is subject to such other conditions as are: (i) specified in the permit; or (ii) prescribed in relation to permits granted under this section; and (b) comes into force on the day specified for the purpose in the permit or, if no day is so specified, on the day on which it is granted; and (c) subject to this Act, remains in force until the day specified for the purpose in the permit, being a day not later than 5 years after the day on which it came into force. (7) Without limiting the operation of paragraph (6)(a), the conditions that may be specified in a permit include conditions relating to: (a) the fish that may be taken; or (b) the quantity of fish that may be taken; or (c) the rate at which fish may be taken; or (d) the methods or equipment that may be used to take fish; or (e) the methods or equipment that may be used to process or carry fish. (7A) It is also a condition of a fishing permit relating to a fishery that the holder of the permit comply with a direction under section 41A that relates to the fishery. (8) AFMA may, by written notice given to the holder of a permit, whether or not at the request of the holder, vary or revoke a condition of the permit (not being a condition mentioned in subsection (5) or (7A)) or specify a condition or a further condition to which the permit is to be subject. (9) A permit ceases to be in force if the holder of the permit surrenders the permit by written notice given to AFMA. (11) A fishing permit is to be in the approved form.

32A Transfer of fishing permits (1) This section is about the holder of a fishing permit transferring the permit to another person. (2) The holder of the fishing permit must apply to AFMA, in the approved form, to register the transfer. (3) The transfer takes effect when AFMA registers the transfer. (4) AFMA must register the transfer unless: (a) the fishing permit is suspended under section 38; or (b) the holder of the fishing permit: (i) is being investigated for a fisheries offense; or (ii) has been convicted of a fisheries offense; or (c) a levy on the fishing permit that is due has not been paid; or (d) other circumstances that are prescribed under the regulations exist. (5) Subsection (4) applies despite the fact that a requirement in a plan of management relating to the transfer has not been satisfied. (6) This section does not apply to a fishing permit that is stated to be non-transferable.

34 Grant of foreign fishing licences (1) AFMA may, upon application made in the approved form, grant to a person a foreign fishing licence authorising the use of a specified foreign boat by that person, or a person acting on that person’s behalf, for commercial fishing in a specified area of the AFZ or a specified fishery. (2) An application made for the grant of a foreign fishing licence must provide AFMA with such information as it reasonably requires for a proper consideration of the application. (3) In considering whether to grant a foreign fishing licence, AFMA must give effect to any obligation undertaken by the Commonwealth contained in an agreement entered into by the Commonwealth that is relevant in the particular case. (4) A foreign fishing licence is granted subject to the following conditions: (a) if the licence authorises commercial fishing in a specified managed fishery—the holder of the licence must comply with any obligations imposed by, or imposed by AFMA under, the relevant plan of management on the holder of such a licence; (b) if the licence authorises commercial fishing in a specified managed fishery—the licence will cease to have effect in relation to the fishery if the plan of management for the fishery is revoked under subsection 20(3); (c) the licence may be cancelled under section 39; (d) no compensation is payable because the licence is cancelled. Note: For further provisions relating to conditions imposed on foreign fishing licences see subsections (5), (6A) and sections 40C, 42, 42A and 42B. (5) A licence granted under this section: (a) is subject to the condition that, while the boat to which the licence relates is in the AFZ, the person in charge of the boat is the holder of a foreign master fishing licence; and (b) is subject to such other conditions as are specified in the licence; and (c) comes into force on the day specified for the purpose in the licence or, if no day is so specified, on the day on which it is granted; and (d) subject to this Act, remains in force until the day specified for the purpose in the licence, being a day not later than 12 months after the day on which it came into force. (6) Without limiting the operation of subsection (5), the conditions that may be specified in a licence include conditions relating to any matter that may be included in a fishing permit granted under section 32. (6A) It is also a condition of a foreign fishing licence relating to a fishery that the holder of the licence comply with a direction under section 41A that relates to the fishery. (7) AFMA may, at any time, subject to such conditions (if any) as are specified in the endorsement, endorse a licence so as to extend it to authorise the boat to be brought into a specified port in Australia or in an external Territory at such time as is, or at such times as are, specified in the endorsement. (8) AFMA may, by written notice given to the holder of a licence in respect of which an endorsement under subsection (7) is in force, revoke the endorsement. (9) AFMA may, by written notice given to the holder of a licence, whether or not at the request of the holder, vary or revoke a condition of the licence (not being a condition mentioned in subsection (4) or (6A)) or specify a condition or further condition to which the licence is to be subject. (10) A licence ceases to be in force if the holder of the licence surrenders the licence by written notice given to AFMA. (11) A licence is to be in the approved form.

35 Agreements to grant foreign fishing licences (1) AFMA, with the approval of the Minister, may enter into an agreement with a person that contains a provision under which AFMA agrees to grant a foreign fishing licence or 2 or more such licences (whether to that person or to any other person or persons) in respect of a foreign boat or 2 or more foreign boats. (2) Where AFMA has entered into an agreement with a person that contains a provision of a kind mentioned in subsection (1), AFMA may, with the approval of the Minister, enter into a further agreement with the person varying the terms of the provision or varying the terms of the provision as varied under this subsection. (3) The Minister is to cause a copy of such an agreement or further agreement, as the case may be, to be laid before each House of the Parliament within 15 sitting days of that House after the agreement, or the further agreement, as the case may be, is entered into. (4) Where: (a) AFMA has entered into an agreement under subsection (1); or (b) there is in force an agreement between the Commonwealth and the government of another country that contains a provision under which foreign fishing licences are agreed to be granted in respect of foreign boats (whether or not the provision also provides for the payment of an amount or amounts to the Commonwealth); AFMA must, in deciding whether or not to grant the licence or any of the licences to which the agreement relates, have regard only to the terms of the agreement. (5) Subsection (4) has effect only so far as that subsection is not a law imposing taxation within the meaning of section 55 of the Constitution.

36 Fisheries agreements (1) If the Commonwealth enters into an agreement with the government of another country that contains a provision under which foreign fishing licences are agreed to be granted in respect of foreign boats (whether or not the provision also provides for the payment of an amount or amounts to the Commonwealth), the Minister is to cause a copy of the agreement to be laid before each House of the Parliament within 15 sitting days of that House after the agreement is entered into. (2) Where: (a) an agreement that contains a provision of a kind mentioned in subsection (1) is in force; and (b) the provision provides for the payment of an amount or amounts to the Commonwealth; and (c) a foreign fishing licence or licences to which the provision relates has or have been granted in respect of a foreign fishing boat or foreign fishing boats; and (d) the whole or any part of an amount specified in the provision is not paid to the Commonwealth in accordance with the terms of the provision; AFMA may suspend each licence by written notice given to the holder of the licence. (3) Where AFMA has suspended a licence under subsection (2) and the amount concerned is fully paid, AFMA must revoke the suspension by written notice given to the holder of the licence. (4) Subsections (2) and (3) have effect only so far as those subsections are not laws imposing taxation within the meaning of section 55 of the Constitution.

37 Treaty licences (1) For the purposes of this Act, a Treaty licence is taken to be in force in respect of a boat at all times during the period of validity of the Treaty licence as stated in the licence, except when the Treaty licence is suspended within the meaning of this section. (2) A Treaty licence issued in respect of a Treaty boat is suspended when: (a) each party to the Treaty has been notified in writing by the Minister that an investigation is being conducted in relation to an alleged contravention of a provision of the Treaty with the use of, or in relation to, the boat; or (b) the Minister is notified in writing by the Administrator that the Treaty licence has been suspended in accordance with paragraph 8 of Article 5 of the Treaty. (3) A notice under paragraph (2)(a) must give particulars of the alleged contravention. (4) A Treaty licence ceases to be suspended: (a) where paragraph (2)(a) applies—when the Minister has, in writing, notified the Administrator that the investigation has been completed; or (b) where paragraph (2)(b) applies—when the Minister is notified in writing by the Administrator that the Treaty licence is no longer suspended.

38 Suspension of fishing concessions (1) AFMA may, by written notice given to the holder of a fishing concession, suspend the operation of the concession if: (a) any fee, levy, charge or other money relating to the concession is not paid as it becomes due; or (b) it has reasonable grounds to believe that: (i) there has been a contravention of a condition of the concession; or (ii) in an application under this Act, the holder of the concession made a statement or furnished information that was, to the holder’s knowledge, false or misleading in a material particular, not being an act or omission in relation to which AFMA has previously exercised powers under this subsection; or (c) to do so would be in accordance with a condition of the fishing concession relating to suspension of the concession. (2) Subject to subsections (3) and (3A), where a fishing concession is so suspended (otherwise than for the reason mentioned in paragraph (1)(a)), the suspension, unless it is sooner revoked, ceases: (a) if proceedings for an offense against this Act in relation to the alleged act or omission because of which the concession was suspended are instituted against the holder of the concession, or a person who acted on behalf of the holder of the concession, within one month after the suspension—on completion of the proceedings; or (b) in any other case—at the end of one month after the suspension. (3) AFMA may, by written notice given to the holder of a fishing concession, suspend the fishing concession for such period as is specified in the notice, if the holder of the fishing concession is convicted of an offense against this Act, the regulations or any other law of the Commonwealth relating to fishing or against a law of New Zealand, Papua New Guinea or a State or Territory relating to fishing. (3A) If: (a) a contravention of an international fisheries management measure has led to the imposition on the holder of a fishing concession of sanctions by Australia or a foreign country; and (b) those sanctions have not been complied with; AFMA may, by written notice given to the holder of the concession, suspend the fishing concession until the sanctions are fully complied with. (4) AFMA, by written notice given to the holder of a fishing concession suspended under this section: (a) may revoke the suspension; and (b) if the concession was suspended for the reason mentioned in paragraph (1)(a), must revoke the suspension: (i) if the money is paid; or (ii) if the holder enters into an arrangement mentioned in paragraph 39(c) in relation to the money; or (iii) there is a remission or refund made under the regulations of the whole of the money. Note: Section 98 authorises a court in certain circumstances to suspend a fishing concession.

39 Cancellation of fishing concessions (1) AFMA may, by notice in writing given to the holder of a fishing concession, whether or not it has previously suspended the fishing concession, cancel the concession if: (a) the holder of the concession is convicted of an offense against this Act, the regulations or any other law of the Commonwealth relating to fishing or against a law of New Zealand, Papua New Guinea or a State or Territory relating to fishing; or (b) to do so would be in accordance with a condition of the concession relating to cancellation of the concession; or (c) any fee, levy, charge or other money relating to the concession is not paid or the holder does not enter into an arrangement satisfactory to AFMA in relation to the money within such period as is prescribed after the time at which such fee, levy, charge or other money became due; or (d) both of the following conditions are met: (i) the concession authorises the use of a boat for fishing for a fish stock covered by a global, regional or subregional fisheries organisation or arrangement; (ii) Australia is not involved in the organisation or arrangement and has not agreed to apply measures established by the organisation or arrangement. Note: Section 98 authorises a court in certain circumstances to cancel a fishing concession. (2) If a fishing concession authorises the use of an Australian-flagged boat for fishing activities in waters wholly or partly beyond the AFZ—the concession is taken, by force of this subsection, to have been cancelled if the boat ceases to be an Australian-flagged boat.

AFMA to pursue objectives (1) In performing its functions under this Part, AFMA must pursue its objectives and, in addition, act in accordance with its corporate plan and its current annual operational plan. (2) Nothing in subsection (1) is taken to limit the operation of subsection 17(10).

16A. AFMA to meet international fisheries management organization and Fish Stocks Agreement obligations Boat involved in contravening international fisheries management measure (1) AFMA must not authorize under this Part the use of an Australian-flagged boat for fishing on the high seas for a conserved fish stock during the period specified in subsection (2), if: (a) a court has convicted a person of an offense described in subsection (3) involving the use of the boat; and (b) the court has ordered the person to pay a fine for the offense (whether or not the person has also been sentenced to imprisonment for the offense); and (c) the court has not ordered the forfeiture of the boat. Period for which AFMA must not authorize use of boat (2) The period starts when the person is ordered to pay the fine and ends when one of the following events occurs: (a) the person pays the fine; (b) a penalty is imposed on the person for failure to pay the fine; (c) the court orders the forfeiture of the boat (for the offense or another offense); (d) the conviction of the person for the offense for which the person was ordered to pay the fine is quashed. Offenses that prevent AFMA authorising use of boat (3) Subsection (1) limits authorisation of the use of a boat involved in any of the following offenses: (a) an offense against subsection 95(5) constituted by one of the following acts or omissions that contravenes a condition of a fishing concession or scientific permit that authorises fishing for a conserved fish stock on the high seas or contravenes a provision of a temporary order relating to fishing for a conserved fish stock on the high seas: (i) fishing for the conserved fish stock at a particular time, in a particular place or with particular equipment; (ii) failing to maintain accurate records of catch; (iii) failing to provide an accurate return of fish taken, carried, transhipped or processed; (iv) taking, carrying, transhipping or processing more fish than authorized by the concession, permit or order; (v) changing or hiding the markings of the boat; (b) an offense against section 105A involving a fish from a conserved fish stock and a boat; (ba) an offense against section 105AA or 105AB; (c) an offense against section 105B involving a boat equipped for fishing for a conserved fish stock; (d) an offense against section 107 relating to a document, statement, return or information about catch of a conserved fish stock; (e) an offense against a prescribed provision of this Act or the regulations that is constituted by a prescribed act or omission relating to a conserved fish stock.

16B. Australian-flagged boats that have previously undermined conservation and management measures (1) Subject to subsection (5), AFMA must not, under this Part, grant a fishing concession authorising the use for fishing activities on the high seas of an Australian-flagged boat that was previously registered in a foreign country and authorized by that country for such fishing activities if: (a) AFMA believes, on reasonable grounds, that the boat is a boat to which subsection (2) or (3) applies; and (b) subsection (4) does not apply. (2) This subsection applies to an Australian-flagged boat that was previously registered in a foreign country that is a party to the Compliance Agreement if: (a) that foreign country has, because the owner or operator of that boat has undermined international conservation and management measures, suspended the authority to use that boat on the high seas for a period and that period has not expired; or (b) that foreign country has, because the owner or operator of that boat has undermined international conservation and management measures, cancelled the authority to use that boat on the high seas and a period of 3 years has not elapsed since that cancellation. (3) This subsection applies to an Australian-flagged boat that was previously registered in a foreign country that is not a party to the Compliance Agreement if, on the basis of information available to it, AFMA is satisfied that: (a) the foreign country has, because the owner or operator of that boat has undermined international conservation and management measures, suspended the authority to use that boat on the high seas for a period and that period has not expired; or (b) the foreign country has, because the owner or operator of that boat has undermined international conservation and management measures, cancelled the authority for use of that boat on the high seas and a period of 3 years has not elapsed since that cancellation. (4) If the person seeking the grant of a fishing concession authorizing the use of a boat to which subsection (2) or (3) applies for fishing activities on the high seas satisfies AFMA that the owner or operator of the boat at the time the authority to use it was suspended or cancelled has no present legal, beneficial or financial interest in, or control of, the boat, AFMA may grant such a fishing concession authorizing the use of the boat despite the application of subsection (2) or (3). (5) Despite subsection (1), AFMA may grant a fishing concession authorizing the use of an Australian-flagged boat to which subsection (2) or (3) applies for fishing activities on the high seas if, having regard to the circumstances in which a foreign country’s authorization for the use of that boat for fishing activities on the high seas was suspended or cancelled, AFMA is satisfied that the grant of that fishing concession will not be likely to undermine international conservation and management measures. (6) Nothing in this section implies that AFMA may not take other matters into consideration when deciding whether or not to grant a fishing concession authorizing the use of an Australian-flagged boat for fishing activities on the high seas.