Fisheries Amendment Act 2022

1: Title
This Act is the Fisheries Amendment Act 2022.
2: Commencement
1: This Act, other than the provisions specified in subsections (2) to (4), comes into force on 1 November 2022.
2: Section 24 Schedule 3
3: Part 1
4: The following provisions come into force at the close of 30 September 2023:
a: section 4(2)
b: section 19
c: section 20 Schedule 1 clause 4 Schedule 1AA
3: Principal Act
This Act amends the Fisheries Act 1996 2022-11-01 Fisheries Act 1996 This Act, other than the provisions specified in section 2(2)-(4) comes into force 1 November 2022 2023-10-01 Fisheries Act 1996 re: section 2(4)﻿(a)-(c) — section 4(2), section 19, section 20 and Schedule 1 (to the extent that they relate to clause 4 of Schedule 1AA)
1: Substantive provisions
4: Section 2 amended (Interpretation)
1: In section 2(1) fisheries services
e: the provision, installation, and maintenance of electronic and other equipment on fishing vessels to observe fishing and related activities, including—
i: the return, abandonment, processing, or sorting of fish:
ii: transportation connected with fishing:
iii: measures to avoid, remedy, or mitigate fishing-related mortality:
f: the submission, storage, and review of electronic and other data from activities described in paragraph (e)
2: In section 2(1) fishing year
a: in relation to green-lipped mussel in quota management area 9, rock lobster, southern scallops, Northland scallops, southern blue whiting, or any stock declared under a notice made under section 18 to have a fishing year commencing on 1 April in any year, a period of 12 months commencing on each 1 April:
5: Section 72 amended (Dumping of fish prohibited)
1: Replace section 72(1) to (4)
1: A commercial fisher must not return to or abandon in the sea or any other waters any fish or other animal that is aquatic life that is subject to the quota management system, except as provided in subsection (2) or (3)
2: A commercial fisher who takes any fish or other animal that is aquatic life subject to the quota management system must, if required by an instrument made under section 72A(2)﻿(c)
a: immediately return it to, or abandon it in, the sea or waters from which it was taken; and
b: comply with the conditions and requirements (if any) specified in that instrument.
3: A commercial fisher who takes any fish or other animal that is aquatic life subject to the quota management system may return it to, or abandon it in, the sea or waters from which it was taken if—
a: the return is permitted by an instrument made under section 72A(2)﻿(a) or (b)
b: they comply with the conditions and requirements (if any) specified in that instrument.
4: Every person commits an offence and is liable to the applicable penalty imposed by section 252(3A), (5)﻿(ba), or (5A)
a: in contravention of subsection (1) section 72A(2)﻿(c)
i: 50 or fewer fish or other animals that are aquatic life in any 24-hour period; or
ii: more than 50 fish or other animals that are aquatic life in any 24-hour period; or
b: in contravention of subsection (2)﻿(a)
i: 50 or fewer fish or other animals that are aquatic life in any 24-hour period; or
ii: more than 50 fish or other animals that are aquatic life in any 24-hour period; or
c: in contravention of subsection (2)﻿(b)
i: 50 or fewer fish or other animals that are aquatic life in any 24-hour period; or
ii: more than 50 fish or other animals that are aquatic life in any 24-hour period; or
d: in contravention of subsection (3)﻿(b)
i: 50 or fewer fish or other animals that are aquatic life in any 24-hour period; or
ii: more than 50 fish or other animals that are aquatic life in any 24-hour period.
2: After section 72(5)﻿(b)
ba: the commercial fisher believed on reasonable grounds that the return or abandonment of the fish or other animal that is aquatic life was necessary to ensure the safety of—
i: a marine mammal (as defined in section 2(1) of the Marine Mammals Protection Act 1978); or
ii: fish of the species of Chordata
iii: any other protected species specified by the Minister in an instrument made under this paragraph.
3: Replace section 72(7) and (8)
7: In proceedings for an offence relating to a contravention of subsection (4)
a: the prosecutor need not assert in the charging document that the exceptions set out in subsection (2) or (3) subsection (5)﻿(ba)
b: the burden of proving that any of the exceptions set out in subsection (2) or (3) subsection (5)﻿(ba)
8: An instrument made under subsection (5)﻿(ba)﻿(iii) see The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation referred to in subsection (8). Legislation Act 2019 requirements for secondary legislation referred to in subsection (8) Publication The maker must publish it in accordance with the Legislation (Publication) Regulations 2021 LA19 ss 69 73 74(1)﻿(aa) Presentation The Minister must present it to the House of Representatives, unless it is excluded by section 114(2) LA19 s 114 Disallowance It may be disallowed by the House of Representatives, unless it is excluded by section 115 LA19 ss 115 116 This note is not part of the Act.
6: New section 72A inserted (Minister may require or permit fish or other animal that is aquatic life to be returned or abandoned)
After section 72
72A: Minister may require or permit fish or other animal that is aquatic life to be returned or abandoned
1: The Minister may make instruments for the purposes of section 72(2) or (3)
2: An instrument made under this section may—
a: permit a stock or species to be returned to or abandoned in the sea or other waters from which it was taken if the Minister is satisfied that the stock or species has an acceptable likelihood of survival if returned or abandoned in the manner specified by the instrument; or
b: permit a stock or species to be returned to or abandoned in the sea or other waters from which it was taken if the Minister is satisfied that the stock or species—
i: would damage other stocks or species taken by the commercial fisher if retained (for example, an ammoniating species); or
ii: is damaged as a result of unavoidable circumstances (for example, diseased or predated fish); or
c: require a stock or species to be returned to or abandoned in the sea or other waters from which it was taken if the Minister is satisfied that the return or abandonment is for a biological, a fisheries management, or an ecosystem purpose and the stock or species has an acceptable likelihood of survival if returned or abandoned in the manner specified by the instrument.
3: In considering the acceptable likelihood of survival of a stock or species under subsection (2)﻿(a)
a: the sustainability of the stock or species; and
b: the method by which the stock or species is taken; and
c: the handling practices for the stock or species taken; and
d: the social, cultural, and economic factors that the Minister considers relevant.
4: The instrument may also—
a: provide that it applies to the stocks or species, or classes of stocks or species, specified in the instrument by reference to size, weight, or other physical characteristics:
b: provide that it applies in relation to—
i: the fishing methods, the use of fishing gear, or in the circumstances specified in the instrument; or
ii: the classes of fishing methods, fishing gear, or circumstances specified in the instrument:
c: impose conditions and requirements that the Minister considers appropriate.
5: An instrument made under this section may be amended, replaced, or revoked.
6: Before making, amending, replacing, or revoking an instrument under this section, the Minister must consult any persons or organisations that the Minister considers are representative of the classes of persons having an interest in the proposed action.
7: The decision to make an instrument under this section must be notified in the Gazette
8: An instrument made under this section is secondary legislation ( see The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation referred to in subsection (7). Legislation Act 2019 requirements for secondary legislation referred to in subsection (7) Publication The maker must publish it in accordance with the Legislation (Publication) Regulations 2021 LA19 ss 69 73 74(1)﻿(aa) Presentation The Minister must present it to the House of Representatives, unless it is excluded by section 114(2) LA19 s 114 Disallowance It may be disallowed by the House of Representatives, unless it is excluded by section 115 LA19 ss 115 116 This note is not part of the Act.
7: Section 113K amended (Conditions of high seas fishing permit)
Replace section 113K(1)﻿(n)
n: the provision, installation, and maintenance of electronic and other equipment to observe any fishing and related activities described in paragraph (e)
8: Section 191 amended (Disposal of fish by commercial fishers)
Replace section 191(1)
1: No commercial fisher may sell or otherwise dispose of fish, aquatic life, or seaweed, taken by the commercial fisher in that capacity, except—
a: to a licensed fish receiver; or
b: as provided in subsection (2) or (5); or
c: by an approved alternative method of disposal in accordance with regulations made under section 297.
9: Section 192 amended (Restrictions on purchase or acquisition of fish by certain persons)
After section 192(5)﻿(c)
d: a person using an approved method of disposal in accordance with regulations made under section 297.
10: Section 227A amended (Installation and maintenance of equipment on vessels may be required)
1: In section 227A fishing and transportation fishing and related activities described in paragraph (e)
2: In section 227A
2: Subsection (1)
11: Section 252 amended (Penalties)
1: Repeal section 252(3)﻿(b)
2: After section 252(3)
3A: Every person convicted, whether in the same or separate proceedings, of 2 or more offences against section 72(4)﻿(a), (b), (c), or (d)
3: After section 252(5)﻿(b)
ba: section 72(4)﻿(a)﻿(ii), (b)﻿(ii), (c)﻿(ii), or (d)﻿(ii)
4: After section 252(5)
5A: Every person convicted of an offence against section 72(4)﻿(a)﻿(i), (b)﻿(i), (c)﻿(i), or (d)﻿(i)
12: Section 255A amended (Forfeiture for infringement offence)
In section 255A(1) infringement offence against this Act (other than an offence in respect of the taking or possession of fish or another animal that is aquatic life by a commercial fisher)
13: Section 255C amended (Forfeiture for section 252(2), (3), and (5) offences, offences carrying fine of $100,000, repeat offences, and serious non-commercial offences)
1: In section 255C(1)﻿(a) section 252(2) or (3) or (5) (other than an offence referred to in section 252(5)﻿(ba)
2: After section 255C(1)﻿(a)
aa: on conviction for a second or subsequent offence referred to in section 252(3A)
3: In section 255C(1)﻿(b) $100,000 (other than an offence referred to in section 252(5)﻿(ba)
4: In section 255C(1)﻿(d) this Act (other than an offence referred to in section 252(5)﻿(ba) or (5A)
5: After section 255C(2)
2A: On conviction of a person for an offence referred to in section 252(5)﻿(ba)
6: In section 255C(3) section 252(2) or (3) section 252(2), (3), (3A), or (5)﻿(ba)
7: In section 255C(4) Subsection (2) does Subsections (2) and (2A)
14: Section 257 amended (Prohibition of fishing activity in case of reoffending)
1: In section 257(1)﻿(b) of section 252 (other than an offence referred to in section 252(5) (ba)
2: After section 257(1)
1A: If a person is convicted of offences against section 72(4)﻿(a), (b), (c), or (d) (3A)
a: that the person forfeit any licence, approval, permission, or fishing permit obtained under this Act; and
b: that the person be prohibited, for a period of 3 years commencing on the date of the most recent conviction, from doing any of the following:
i: holding any licence, approval, permission, or fishing permit obtained under this Act:
ii: engaging in fishing or any activity associated with the taking of fish, aquatic life, or seaweed:
iii: deriving any beneficial income from activities associated with the taking of fish, aquatic life, or seaweed.
3: In section 257(2) subsection (1) or (1A)
4: In section 257(3) subsection (1) and (1A)
15: Section 297 amended (General regulations)
1: After section 297(1)﻿(a)﻿(xiii)
xiv: for the purposes of section 191(1)﻿(c)
A: authorising the chief executive to approve alternative methods of disposal of fish, aquatic life, or seaweed:
B: providing for applications to use an approved alternative method of disposal and prescribing requirements relating to applications:
C: prescribing criteria that the chief executive must take into account in considering an application:
D: prescribing requirements relating to the disposal of fish, aquatic life, or seaweed by an approved method of disposal:
E: providing for, and prescribing requirements relating to, the verification of the alternative methods of disposal of fish, aquatic life, or seaweed.
2: Replace section 297(1)﻿(ca)
ca: prescribing requirements relating to the provision, installation, and maintenance of electronic and other equipment (including, for the avoidance of doubt, the requirement for a class of person to provide, install, or maintain the equipment) to observe any fishing and related activities described in paragraph (e)
3: Replace section 297(1)﻿(na)
na: prescribing infringement offences against this Act by commercial fishers and other persons, including—
i: offences in respect of fishing and related activities, such as offences in respect of—
A: the taking, possession, return, abandonment, processing, or sorting of fish or other animals that are aquatic life:
B: transportation connected with fishing:
C: measures to avoid, remedy, or mitigate fishing-related mortality:
ii: offences in respect of reporting and record-keeping requirements:
4: After section 297(1)﻿(w)
wa: authorising the Minister to set or vary management controls in respect of recreational fishing, including—
i: daily limits, maximum legal sizes, and minimum legal sizes for any stocks, species, or fisheries management areas; and
ii: conditions and requirements relating to the controls:
5: After section 297(3)
3A: If the regulations authorise the Minister under subsection (1)﻿(wa)
a: the instrument by which that is done is secondary legislation ( see
b: the regulations must contain a statement to that effect. The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation referred to in subsection (3A). Legislation Act 2019 requirements for secondary legislation referred to in subsection (3A) Publication The maker must publish it in accordance with the Legislation (Publication) Regulations 2021 LA19 ss 69 73 74(1)﻿(aa) Presentation The Minister must present it to the House of Representatives, unless it is excluded by section 114(2) LA19 s 114 Disallowance It may be disallowed by the House of Representatives, unless it is excluded by section 115 LA19 ss 115 116 This note is not part of the Act.
16: New section 298A inserted (Regulations relating to demerit points)
After section 298
298A: Regulations relating to demerit points
1: The Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes:
a: authorising the Minister or the chief executive to record demerit points against any of the following persons who commit a specified infringement offence:
i: the master of a vessel:
ii: the holder of a fishing permit:
b: prescribing the number of demerit points or a graduated scale of demerit points that may be recorded for specified infringement offences (including a greater number of demerit points for committing a second or subsequent infringement offence):
c: specifying different classes of infringement offence that are liable to demerit points:
d: providing for the expiry of recorded demerit points no later than 3 years after the date on which the specified infringement offence is committed:
e: prescribing a civil penalty not exceeding $10,000, which may be a fixed amount or a graduated scale of civil penalties for different levels of recorded demerit points:
f: providing for the review of penalties imposed for recorded demerit points:
g: providing for appeals against penalties imposed for recorded demerit points:
h: providing for the review of video recordings and associated information made by equipment placed on a fishing vessel under section 227A if a specified number of demerit points is accumulated in relation to activities carried out using the vessel:
i: providing for the effective operation of the demerit point system under this section, including regulations that—
i: specify how demerit points (including accumulated demerit points) are to be recorded, including the information to be recorded in connection with the recorded demerit points:
ii: authorise the chief executive to require persons to provide that specified information:
iii: provide for the giving of notices in respect of demerit points.
2: Regulations made under this section must provide for the matters specified in subsection (1)﻿(f) and (g)
3: This section does not limit the generality of section 297.
4: Regulations made under this section are secondary legislation ( see The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act.
17: Section 302A repealed (
Gazette Repeal section 302A
18: Section 303 replaced (Certain secondary legislation may be consolidated)
Replace section 303
303: Certain secondary legislation or published instruments may be consolidated
Secondary legislation made by same maker and with same publishing requirements
1: The Minister or the chief executive (the maker
a: the maker has made, or may make, under a provision of this Act, or of regulations made under this Act, by satisfying the same requirements for publishing the secondary legislation; and
b: is not drafted by the PCO ( see Other instruments made by same maker and with same publishing requirements
2: The Minister or the chief executive (the maker
a: the maker has made, or may make, under any provisions of this Act, or of regulations made under this Act, by satisfying the same requirements for publishing the instruments; and
b: are not secondary legislation. Once this section is applied to specific instruments
3: The powers of the maker to amend or replace the specific instruments (whether given by a specific empowering provision, section 48 of the Legislation Act 2019, or otherwise) authorise the maker to—
a: revoke any specific instrument that has been made (a revoked instrument
b: make an instrument under any of the specific empowering provisions (the new instrument
i: has the same effect that all or part of the revoked instrument or instruments had immediately before being revoked; and
ii: otherwise has any further effect (if any) authorised by the specific empowering provisions (the new or amended parts
4: For each part of the new instrument (the replacement part revoked part
a: the replacement part must be treated as being made under the specific empowering provision under which the revoked part was made; and
b: any requirements for making the replacement part or for revoking the revoked part, other than the requirements for publication, must be treated as being satisfied to the extent that the requirements for making the revoked part were satisfied when it was made.
5: To avoid doubt,—
a: the new or amended parts of the new instrument (if any) are made under the relevant specific empowering provisions; and
b: any requirements of the relevant specific empowering provisions must be satisfied in making those parts.
6: A revoked instrument continues to have effect, as if it had not been revoked, in relation to any matter in a period to which the revoked instrument applied.
7: In this section,— instrument maker subsection (1) or (2) specific empowering provisions
a: empower the making of the specific instruments; and
b: are referred to in the subsection under which the maker applies this section to the specific instruments specific instruments
a: have been made (and are to be revoked); or
b: are able to be made.
19: Section 369S amended (Green-lipped mussel in quota management area 9 subject to quota management system)
In section 369S(2) 1 October 1 April
2: Repeal and consequential amendments
20: Schedule 1AA amended
In Schedule 1AA
a: insert the Part set out in Schedule 1
b: make all necessary consequential amendments.
21: Schedule 6 repealed
Repeal Schedule 6
22: Repeal of Fisheries Act 1983
Repeal the Fisheries Act 1983 2022-11-01 Fisheries Act 1983 re: section 2(1)
23: Consequential amendments to principal Act
Amend the principal Act as set out in Schedule 2 2022-11-01 Fisheries Act 1996 re section 2(1)
24: Fisheries (Amateur Fishing) Regulations 2013 amended
Amend the Fisheries (Amateur Fishing) Regulations 2013 Schedule 3 2022-11-28 Fisheries (Amateur Fishing) Regulations 2013 re: section 2(2) — Section 24 and Schedule 3 comes into force 28 November 2022
25: Consequential amendments to secondary legislation
Amend the secondary legislation as set out in Schedule 4 2022-11-29 Fisheries (Amateur Fishing) Regulations 2013 re: section 2(3) — Part 1 of Schedule 4 comes into force 29 November 2022 2022-11-01 Fisheries (Licensed Fish Receivers) Regulations 1997 (Part 2 of Schedule 4) re: section 2(1) 2022-11-01 Fisheries (Electronic Monitoring on Vessels) Regulations 2017 (Part 3 of Schedule 4) re: section 2(1) 2022-11-01 Fisheries (Electronic Monitoring on Vessels) Amendment Regulations 2022 (Part 4 of Schedule 4) re section 2(1)