Possess More Fish Than the Catch Limit

– section 68A(3)(b) of the Fisheries Act 1995
Fish
It is an offence for a person to take or have in their possession a species of fish in excess of the catch limit for that species of fish, pursuant to section 68A(3)(b) of the Fisheries Act 1995 (‘the Act’).The ‘catch limit’ specifies the maximum number of a given fish a person may take on any one day.1
Examples of Possess More Fish Than the Catch Limit
  • A person has in their possession 5 Rock Lobsters after one day of fishing.
  • A person has in their possession 3 Gummy Shark after one day of fishing.
  • A person has in their possession 6 Silver Perch after one day of fishing.
Questions in cases like this
  • What is the catch limit for the particular fish in question?
  • Has the person accused of this offence been fishing for multiple days?
  • Was the person accused of this offence the person taking the fish?
What are some of the possible defences to Possess More Fish Than the Catch Limit?

It is a defence to this charge if a person is found with excess of the catch limit for a certain fish and they can prove they were fishing for multiple days. This is because catch limits apply to any one day. For example, if Hannah is found with twelve Bream in her possession (catch limit is 10) but can prove she has been based in a caravan park and fishing for three days, she can successfully defend the charge.2

Another common defence to this charge is that the fish are not in the accused person’s possession.

Maximum penalty and court that deals with this charge

The maximum penalty for this offence is 20 penalty units (a $3,223.80 fine).

The Department of Treasury and Finance reviews and updates the value of a penalty unit on 1 July each year.3 As such, the maximum fine for this offence is liable to change.

This charge is heard in the Magistrates’ Court.

As with any criminal offence, whether or not someone should plead guilty to this charge depends on the specific features of their case.

What is the legal definition of Possess More Fish Than the Catch Limit?
  1. A person must not take or have in his or her possession—
    1. fish that are less than the minimum size, or that are more than the maximum size, specified by the regulations or by a fisheries notice for that species of fish; or
    2. more fish than the catch limit for that species of fish.
       

    Penalty: 20 penalty units.

Legislation

The relevant legislation for this offence is section 68A(3)(b) of the Fisheries Act 1995.

Call Doogue + George

Elements of the offence

The prosecution must prove either of the following two elements for a person to be found guilty of this offence:

  1. A person has taken a species of fish in excess of the catch limit for that species; or
  2. A person is in possession of a species of fish in excess of the catch limit for that species.

Element 1: A person has taken a species of fish in excess of the catch limit for that species
A person will be guilty of this offence if they take a species of fish in excess of the catch limit.

‘Take’ is defined in the Act as ‘gain possession or control by any means’.4 This will ordinarily mean catching the fish from the ocean or a body of fresh water and then taking possession of them. However, ‘take’ is defined broadly and could also include other means of gaining possession, for example receiving fish as a gift from another angler.

‘Fish’ is defined in the Act as:5

  1. all species of vertebrate aquatic fauna other than mammals, reptiles, birds and amphibians;
  2. sharks, rays, lampreys and other cartilaginous fish;
  3. oysters and other aquatic molluscs;
  4. aquatic crustaceans;
  5. echinoderms;
  6. any other species of aquatic invertebrate declared to be fish by the Governor in Council.

A ‘fish’ might be alive or dead, raw, cooked, preserved or processed in any matter whatsoever. A fish can be of either sex, ova or be part of a fish.6

‘Catch limit’ is defined in the Act as any limit imposed under the Act on the quantity or type of fish or fishing bait that may be taken, possessed or controlled in any specified circumstances.7 Catch limits for specific species of fish are available on the Victorian Fisheries Authority website.8

Element 2: A person is in possession of a species of fish in excess of the catch limit for that species
A person will be guilty of this offence if they are in possession of a species of fish in excess of the catch limit.

‘Possession’ is defined in the Act as follows:

Without limiting the meaning of “possess”, for the purposes of this Act a person possesses a fish or an item of fishing equipment if the fish or item is on any land or premises occupied by him or her, or is under the person’s control, unless the person can satisfy the relevant court to the contrary.”9
 

This means that if a fish is found on a premise the accused person is occupying or under the accused person’s control, it is assumed that the person is in possession of that fish. The onus is on the accused person to demonstrate that they were not in possession of the fish in these circumstances.

‘Fish’ and ‘catch limit’ have the same meaning as in Element 1 above.

“Can you demonstrate that you are not in possession of the fish?”
Other important information for fishing

It is important to note that there are many regulations around the types of fish a person can take or be in possession of aside from maximum catch limits. For example, a person may not take or possess female Rock Lobster with eggs or remove eggs or take soft-shelled Rock Lobster.

Ensure that you check the Victorian Fisheries Authority website before and understand the appropriate regulations governing the relevant fish.

Sentencing in the Magistrates’ Courts

Magistrates' CourtFrom 1 July 2013 to 30 June 2016, 66 cases (74 charges) of Possess More Fish Than the Catch Limit were heard in the Magistrates’ Court of Victoria. These cases led to financial penalties (83.3%), adjourned undertaking/discharge/dismissal (15.2%), and Community Correction Orders (1.5%).

The highest fine imposed was between $4,000 and $5,000. This quantum was applied in 1.6% of the charges that led to aggregate fines. The majority were sentenced to an amount between $1,000 and $2,000 (32.3% for aggregate) and between $500 and $1,000 (17.7% for non-aggregate).10

Other important resources

 



[1] Victorian Fishing Authority, “Catch Limits and Closed Seasons”, see <https://vfa.vic.gov.au/recreational-fishing/recreational-fishing-guide/catch-limits-and-closed-seasons>
[2] Victorian Fishing Authority, “Catch Limits and Closed Seasons”, see <https://vfa.vic.gov.au/recreational-fishing/recreational-fishing-guide/catch-limits-and-closed-seasons>
[3] See http://www.justice.vic.gov.au/home/justice+system/fines+and+penalties/penalties+and+values/
[4] Fisheries Act 1995 (Vic) s 4
[5] Fisheries Act 1995 (Vic) s 5(1), s 5(2)
[6] Fisheries Act 1995 (Vic) s 5(3)
[7] Fisheries Act 1995 (Vic) s 4
[8] Victorian Fishing Authority, “Catch Limits and Closed Seasons”, see <https://vfa.vic.gov.au/recreational-fishing/recreational-fishing-guide/catch-limits-and-closed-seasons>
[9] Fisheries Act 1995 (Vic) s 7B
[10] SAC Statistics – Fisheries Act 1995 (Vic) : s 68A(3)(b) – possess more fish than the catch limit < https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/95_92_68A_3_b.html >