','

' ); } ?>

Fishing Closures – Contravene a Prohibition

Fishing Closures – Contravene a Prohibition

This is an offence whereby a person is accused of fishing in a place they are not meant to or in a way they are not meant to. A regulation or fisheries notice may restrict the way in which fishing takes place at a fisher, and contravention of such regulations is governed by section 67(3) of the Fisheries Act 1995 (‘the Act’).

Contraventions of regulations or fisheries notices are usually minor. However, there are some occasions where Courts take these offences very seriously, and this is reflected in the maximum penalty (100 penalty units or six months imprisonment).

Courts recognise the importance of protecting the environment and our marine life and will impose a harsh penalty if they feel it is necessary to deter others from wrongdoing. If you have been charged with a serious breach of a regulation or fisheries notice then you should seek legal advice.

As a summary offence, any summons for this charge will primarily be handled by the Magistrates’ Court.
 
What is the legal definition of Fishing Closures – Contravene a Prohibition?
The legal definition of this offence is contravening a prohibition under section 67(1) of the Act.

Examples of Fishing Closures – Contravene a Prohibition
  • You go a camping trip with your family and go fishing at the local creek. This creek is protected by a fisheries notice which prohibits all fishing.
  • You go fishing and catch Murray cod. There is a fisheries notice in place which specifies that the minimum size for Murray cod is 55 centimetres, and you catch a fish which is only 50 centimetres.
  • You go fishing for abalone and use a spear to catch the fish. The abalone is protected by a fisheries notice, which prohibits spearing as a method of fishing.
  • You buy an endangered species of fish that is protected under a fisheries notice and sell it in your shop.
Legislation
The legislation for this offence can be found in section 67(3) of the Fisheries Act 1995.

Elements of the offence
The prosecution must prove the following beyond reasonable doubt:

  1. The regulation or fisheries notice prohibited conduct as specified under section 67(1) of the Act; and
  2. The accused contravened the regulation or fisheries notice by engaging in such conduct.
Element 1: did the regulation or fisheries notice prohibit the conduct?
In order to prove this element, the prosecution will have to show that the regulation or fisheries notice prohibited certain conduct.

Under section 67(1), a regulation or fisheries notice may:

  1. fix open and closed seasons for fish, or
  2. prohibit the taking, landing, processing, selling or possessing of fish or fishing bait or a specified species of fish or fishing bait; or
  3. prohibit the use of specified fishing methods.
Usually, this will not be a controversial element. The court will look at the words of the regulation or notice to see if it prohibits conduct.

Element 2: did this contravene a regulation or fisheries notice?
The prosecution will also have to show that the accused contravened a prohibition under a regulation or fisheries notice.

This will usually be a factual dispute. There may be a dispute over the size of the fish, or the place in which it was caught, or the method used to catch it.
 
Cases related to this charge may be defended in many ways including an attack on the factual basis of the prosecution. Whether you should contest or plead guilty to this charge depends on a lot on your instructions as to what happened and also an assessment of what the Prosecutors can prove against you.

Questions in cases like this
  • Did you use a prohibited species of fishing bait to catch the fish?
  • Did you catch an endangered species of fish that is protected under a fisheries notice?
  • Did you fish at a prohibited time of day, or time of year?
  • Did you use equipment to catch the fish which is prohibited under a fisheries notice?

The offence of Fishing Closures – Contravene a Prohibition (s67(3) of the Fisheries Act 1995) carries a fine of 100 penalty units (around $16,119) or six months imprisonment as the highest possible sentence. It should be noted that the worse the breach of the fishing closure the worse the penalty likely to be imposed. For instance, if you made an enormous profit from catching and selling an endangered species of fish, you are likely to receive a substantial fine.

Under section 67(4), the regulations or fisheries notice may specify that a person is liable to a further penalty. If it is their first offence, a person may be liable to pay up to half a penalty unit for each fish. For any subsequent offence, they may be liable to pay up to one penalty unit for each fish.

Sentencing in the Magistrates’ Courts
In the Magistrates’ Courts of Victoria, 56 cases of Fishing Closures – Contravene a Prohibition were heard from 1 July 2013 to 30 June 2016. Majority of these cases resulted in fines (73.2%) but there were various other sentencing forms that were imposed:

  • Community Correction Order – 10.7%
  • Adjourned Undertaking/Discharge/Dismissal – 8.9%
  • Imprisonment – 5.4%
  • Wholly Suspended Sentence – 1.8%
Majority of those who were fines were in the “$1,000 < $2,000” category (31.1% for aggregate and 2.2% for non-aggregate). The highest amount imposed was between $10,000 and $20,000 but this was applied to only 4.4% of those who were fined.1

Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.2


[1] SAC Statistics – Fisheries Act 1995 (Vic) : s 67(3) – contravene a prohibition – fishing closures < https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/95_92_67_3.html >
[2] Suspended Sentence | The Sentencing Advisory Council < https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence >