This Act amends the Fisheries Act 1995 (Vic). The Act’s primary purpose is to phase out commercial net fishing in Port Phillip Bay in order to increase recreational fishing. The Act was introduced to the Legislative Council on 12 November 2015 and was passed on 24 November 2015.
It also provides several options for current licence holders. Current licence holders may surrender their licence and receive compensation, or may elect to convert their licence, at the discretion of the Secretary, to a non-net licence.
Indigenous groups with native title claims over the Port Phillip Bay area should be aware of these changes, and expect an increase in recreational fishing in the area. They should particularly be aware of the law prohibiting commercial net fishing and be aware of their rights and interests under s 211 of the Native Title Act 1993 (Cth).
For further information please see the Explanatory Memorandum and Second Reading Speech.
Relevant provisions:
s 153D Definitions for this Division
In this Division—
"Corio Bay" means any of the waters of Port Phillip Bay west of longitude 144°30';
"election year" means a 12 month period commencing on 1 April;
"licence holder" means—
(a) the holder of a Western Port/Port Phillip Bay Fishery Access Licence; or
(b) the holder of a Purse Seine (Port Phillip Bay) Fishery Access Licence;
Port Phillip Bay means all the waters within the bays lying north of a line from the most seaward point of Point Lonsdale to the most seaward point of Point Nepean and includes the waters of Hobsons Bay and Corio Bay, but not the waters of Swan Bay;
"Purse Seine (Port Phillip Bay) Fishery Access Licence "means a licence belonging to the class of access licences of that name created by regulations made for the purposes of section 38;
"Western Port/Port Phillip Bay Fishery Access Licence" means a licence belonging to the class of access licences of that name created by regulations made for the purposes of section 38.
s 153E Restriction against commercial net fishing in Port Phillip Bay
(1) Despite anything to the contrary in this Act or any regulations made under this Act—
(a) a licence holder is not authorised to use any fishing net in Corio Bay on and after 1 April 2018; and
(b) a holder of a Western Port/Port Phillip Bay Fishery Access Licence is not authorised to use any fishing net anywhere in Port Phillip Bay on and after 1 April 2022.
(2) On 1 April 2022, each holder of a Western Port/Port Phillip Bay Fishery Access Licence that is in force on that day is entitled to be paid an amount of $205 000 out of the Consolidated Fund (which is, by this subsection, appropriated to the extent necessary).
(3) Despite anything to the contrary in sections 64 and 64A, the Minister must not make an order in relation to the commercial fishery operating in Western Port and Port Phillip Bay for the 12 month period commencing on 1 April 2022 that—
(a) sets a total allowable catch that exceeds 88 tonnes of snapper; or
(b) allocates quota units to each holder of a Western Port/Port Phillip Bay Fishery Access Licence that are other than the equivalent of 11 tonnes of snapper.
s 153F Election to retain licence
(1) Before 1 April 2016—
(a) a holder of a Western Port/Port Phillip Bay Fishery Access Licence may elect to retain their licence on and after 1 April 2022; and
(b) the Secretary must determine which of those elections are successful.
(2) The procedure by which a holder of a Western Port/Port Phillip Bay Fishery Access Licence may elect to retain their licence and by which the Secretary determines which elections are successful is set out in Part 1 of Schedule 4.
(3) The holder of a Western Port/Port Phillip Bay Fishery Access Licence who is notified by the Secretary in accordance with Part 1 of Schedule 4 that their election is successful is entitled to retain that licence on and after 1 April 2022.
s 153G Election to surrender licence
(1) Before 1 April 2016—
(a) any licence holder may elect to surrender their licence; and
(b) an election to surrender by a licence holder who is the holder of a Western Port/Port Phillip Bay Fishery Access Licence may be made concurrently with an election to retain their licence referred to in section 153F(1).
(2) In each of the following election years until 1 April 2021, a licence holder, other than a licence holder who is entitled under section 153F(3) to retain their licence on and after 1 April 2022, may elect to surrender their licence.
(3) The procedure by which a licence holder may elect to surrender their licence is set out in Part 2 of Schedule 4.
s 153H Power of Secretary to cancel licence
(1) Before 1 April 2016, the Secretary must cancel the licence of any licence holder who—
(a) has elected to surrender their licence under section 153G(1); and
(b) in the case of a licence holder who is the holder of a Western Port/Port Phillip Bay Fishery Access Licence, has not successfully elected to retain their licence under section 153F.
(2) In each of the following elections years until but not including the election year commencing 1 April 2021, the Secretary must cancel the licence of any licence holder who has elected to surrender their licence.
(3) On or after 1 April 2021 and before 1 April 2022, the Secretary must cancel the licence of any remaining licence holder other than a licence holder who is entitled under section 153F(3) to retain their licence.
(4) For the purposes of this section, the Secretary may specify a day on which the cancellation of a licence takes effect, being a day occurring before—
(a) the commencement of the following election year, in the case of the cancellation of a licence under subsection (1) or (2); or
(b) 1 April 2022, in the case of a cancellation under subsection (3).
s 153I Compensation
(1) A licence holder whose licence is cancelled by the Secretary under section 153H is only entitled to be paid compensation calculated in accordance with, and limited to, Part 3 of Schedule 4.
(2) The compensation is to be paid out of the Consolidated Fund (which, by this section, is appropriated to the extent necessary).
s 153J State not liable
(1) Despite any Act or law to the contrary and except as provided in this Division, the State of Victoria is not liable in any way for any loss, damage or injury whatsoever resulting directly or indirectly from or arising out of any action taken or decision made under this Division or Schedule 4.
(2) For the avoidance of doubt, the reference in subsection (1) to an action taken or a decision made includes, but is not limited to—
(a) the restriction on the use of any fishing net in Corio Bay; and
(b) the restriction on the use of any fishing net in Port Phillip Bay; and
(c) the determination of which of the holders of a Western Port/Port Phillip Bay Fishery Access Licence may retain their licence on and after 1 April 2022; and
(d) the amount paid under section 153E(2) to the holders of a Western Port/Port Phillip Bay Fishery Access Licence who retain their licence on an after 1 April 2022; and
(e) the cancellation by the Secretary of a licence following an election by the licence holder to surrender their licence; and
(f) the cancellation by the Secretary of a licence after 1 April 2021; and
(g) the determination, in accordance with section 153I, of the amounts payable to a licence holder whose licence is cancelled.
s 153K Delegation
The Secretary by instrument may delegate any power, duty or function of the Secretary under this Division or Schedule 4, other than this power of delegation, to any person including a body corporate.
s 153L Transfer of licence
(1) A holder of a Western Port/Port Phillip Bay Fishery Access Licence who has made a successful election to retain their licence on and after 1 April 2022 may, in accordance with this Act and the regulations, transfer the licence to another person before that date.
(2) Any reference in this Division or Schedule 4 to a licence holder who is entitled to retain a Western Port/Port Phillip Bay Fishery Access Licence on or after 1 April 2022 is taken to include a reference to any person to whom the licence is transferred before that date.".