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斐济近海渔业管理法
OFFSHORE FISHERIES MANAGEMENT DECREE
【发布部门】斐济国会 【发文字号】
【发布日期】2014年02月11日 【实施日期】2012年12月11日
【时效性】现行有效 【效力级别】法律
【法规类别】斐济法规规划 【来源】联合国粮农组织网站

斐济近海渔业管理法

【法律沿革】

本法以2012年第78号法令于2012年12月11日由斐济总统颁布,并于2013年1月1日生效,该法于2014年做部分修改,与2014年2月11日生效。

【内容介绍】

本法共分12部分,总计110条,其立法目的是对斐济管辖海域内的渔业和海洋生物资源实施管理、开发及可持续利用。其内容包括立法目标和原则、行政管理、渔业养护管理及开发、许可证的管理及授权、监督控制监测及执法、港口措施、过驳及其他服务、管辖权及证据、处罚以及条例制定等内容。

【内容出处】

http://www.fao.org/faolex/results/details/en/c/LEX-FAOC138492

近海渔业管理法(OFFSHORE FISHERIES MANAGEMENT DECREE2012)

(Decree No. 78 of 2012)

PART 1—PRELIMINARY

Short title andcommencement

1. This Decree may be cited as the OffshoreFisheries Management Decree 2012 and shall come into force on1st January, 2013.

Interpretation

2.—(1) In this Decree, unless the context otherwise requires—

“access agreement” means a treaty, agreement or other arrangemententered into pursuant to section 20 ofthis Decree, to which Fiji is party andwhich may relate to the fisheries waters, the high seas, or sucharea as may bedescribed in such agreement;

“administrator” means any organisation or person authorised toadminister an access agreement pursuant tosection 20 of this Decree or anymultilateral related agreement where such authorisation may includeauthority toissue licences for fishing in the fisheries waters;

“aircraft” means any craft capable of self-sustained movementthrough the atmosphere and includeshelicopters and hovercraft;

“allocation” means an allocation made under section 22 whichallows the distribution of fishing rightsthrough the Ministry’s licensing process;

“archipelagic waters of Fiji” means all areas of sea contained within thebaselines established under section4 of the Marine Spaces Act (Cap 158A);

“associated electronic equipment” means any device or system that can be used by anyvessel to locate,track or otherwise monitor a Fish Aggregating Device;

“authorisation” means any authorisation given pursuant to thisDecree;

“authorised officer” means any person or category of persons designatedpursuant to sections 45 and 46 ofthis Decree to be an authorised officer forthe purposes of this Decree;

“bunkering” means the carriage and transfer of fuel from onevessel to another by any means and “bunker”have a corresponding meaning;

“buy” includes but is not limited to—

(a) barteror attempt to barter;

(b) purchaseor attempt to purchase;

(c) receiveon account or consignment;

(d) receivein order to send, forward or deliver for sale;

(e) broker asale;

(f) purchaseor barter for future goods or for any consideration or value; or

(g) purchaseor barter as an agent for another person, and “buyer” shall have a correspondingmeaning;

“carry” in relation to fish, includes but is not limitedto, preserving for the purpose of carriage and storage;

“charter” for the purposes of this Decree, means a bareboator demise charter party agreement made inaccordance with the Marine Act, 1986 ;

“chartered fishing vessel” for the purposes of this Decree, means a fishingvessel bareboat or demisechartered by a Fiji citizen or company incorporated inFiji;

“commercial access agreement” means a fishing access agreement entered intopursuant to section 20;

“commercial fishing” means any fishing resulting or intending, orappearing to result in selling or tradingany fish, which may be taken duringthe fishing operations;

“Council” means the Offshore Fisheries Advisory Councilestablished under section 10 of this Decree;

“crew member” means a person who is engaged or employed as acrew member in any capacity in connectionwith a vessel and in the business ofthe vessel, other than a master or a pilot;

“designated port” means a place declared as a designated port;

“Director” means the Director of Fisheries;

“document” means in relation to a vessel, means any chart,logbook and other information or record whichinclude electronically storedrecords or information used in the operation of the vessel or for thepurpose offishing or related activities, or that which relates to fishing vessel and crewactivities andfishing vessel operations;

“driftnet” means a gillnet or other net which is more than2.5 kilometres in length, the purpose of which isto enmesh, entrap or entanglefish;

“driftnet fishing activities” means—

(a) catching,taking or harvesting fish with the use of a driftnet;

(b) attemptingto catch, take or harvest fish with the use of a driftnet;

(c) engagingin any activity which can reasonably be expected to result in the catching,taking orharvesting of fish with the use of a driftnet, including searching foror locating fish to be takenby that method;

(d) anyoperations at sea in support of driftnet fishing, or in preparation for anyactivity describedin this definition, including operations of placing,searching for or recovering fish aggregatingdevices or associated electronicequipment;

(e) aircraftuse relating to driftnet fishing activities, except for flights in emergencysituationsinvolving the health or safety of crew members or the safety of avessel; or

(f) transporting,transhipping, landing or processing of food, fuel or other supplies tovesselsequipped for or engaged in driftnet fishing;

“exclusive economic zone” has the corresponding meaning as defined undersection 6 of the MarineSpaces Act (Cap. 158A);

“exploratory fishing” means any fishing operation undertaken over alimited period as authorised by the

Permanent Secretary pursuant to section 23;

“export” means to—

(a) send ortake out of Fiji;

(b) attemptto send or take out of Fiji;

(c) receiveon account or consignment for the purposes of paragraph (a) or (b);or

(d) carry ortransport anything for the purposes of paragraph (a) or (b);

“Fiji fisheries waters” means the internal waters, the archipelagicwaters, the territorial sea, the exclusive

economic zone and any other waters over which Fijiexercises its sovereignty or sovereign rights, and

includes the bed and subsoil underlying thosewaters;

“Fiji fishing vessel” means a vessel which is registered in Fiji underthe Marine Act 1986 and is operated

and authorised to fish in accordance with Fiji lawand includes a Fiji chartered fishing vessel;

“Fiji national” means a—

(a) Fijicitizen;

(b) personwho is ordinarily resides in Fiji; and

(c) a bodycorporate established by or under Fiji law;

“Fiji vessel” means a vessel which is duly registered under theMarine Act, and includes a vessel charteredby a Fiji national;

“fish” means any aquatic plant or animal, whether piscineor not, and includes any oyster or other mollusc,crustacean, coral, sponge,holothurian (beche-de-mer), or other echinoderm, turtle and marine mammal,andincludes their eggs, spawn, spat and all juvenile stages and any of theirparts;

“fish aggregating device” or “FAD” means any living or non-living object or group of objects, of any size,thathas or has not been deployed, including but not limited to buoys, floats,netting, webbing, plastics,bamboo, logs and large fish floating on or near thesurface of the water;

“fish processing” means the production of any substance or articlefrom fish by any method and includesthe cutting up, dismembering, cleaning,sorting, loining, freezing, canning, salting and preserving offish;

“fish product” includes any product which has fish as aningredient or component;

“Fish Stocks Agreement” means the Agreement for the Implementation of theProvisions of the UnitedNations Convention on the Law of the Sea of 10 December1982 relating to the conservation andmanagement of straddling fish stocks andhighly migratory fish stocks, adopted at New York on 4December 1995;

“fisheries management agreement” means any agreement entered into by Fiji inaccordance with this Decree,which has as its purpose cooperation in orcoordination of fisheries management measures with otherStates, organisationsof entities, and includes any arrangement or treaty;

“Fisheries Officer” means the Minister, Permanent Secretary and anyperson appointed or authorised as afisheries officer by the Public ServiceCommission;

“fishery” or “fisheries” means one or more stocks of fish or any fishingoperation based on such stocks whichcan be treated as a unit for conservationand management purposes, taking into account geographical,scientific, social,technical, recreational, economic, and other relevant characteristics;

“Fisheries Management Plan” means a plan for the conservation, management anddevelopment of fisheriespursuant to section 17 of this Decree;

“fishing” means—

(a) searchingfor, catching, taking or harvesting fish;

(b) theattempted searching for, catching, taking or harvesting of fish;

(c) engagingin any activity which can reasonably be expected to result in the locating,catching,taking or harvesting of fish;

(d) placing,searching for or recovering any fish aggregating device or associated equipmentincludingradio beacons;

(e) anyoperation at sea in support of or in preparation for any activity described inthis paragraphexcept for operations defined as related activities in thissection; or

(f) the useof an aircraft in relation to any activity described in this paragraph;

“fishing gear” means any equipment, implement, or other thingthat can be used in the act of fishing,including any fishing net, rope, line,float, trap, hook, winch, vessel, vehicle or aircraft;

“fishing licence” means any licence for fishing issued or recognisedunder sections 34 and 35 of thisDecree;

“fishing master” means the person in charge or apparently incharge, or for the time being in charge offishing activities of a fishingvessel;

“fishing vessel” means any vessel, ship or other craft which isused, equipped to be used or of a type that isnormally used for fishing orrelated activities;

“Flag State” in relation to a vessel that is a foreign vessel,means—

(a) theState in which the vessel is registered; or

(b) if thevessel is not registered, the State whose flag the vessel flies;

“foreign vessel” means any vessel that is not a Fiji vessel;

“foreign fishing vessel” means any fishing vessel other than a Fiji fishingvessel;

“formal arrangement” means a charter, joint venture, consortium orpartnership arrangement or agreement,where at least 51 percent of thebeneficial ownership and control of the charter, joint venture, consortiumorpartnership is vested in or held by nationals of Fiji or the State;

“full insurance coverage” means insurance cover for—

(a) personalinjury;

(b) loss oflife;

(c) loss ofequipment and personal effects;

(d) medicalcoverage, including medical evacuation

(a) repatriationcosts; and

(b) losses arisingfrom the action, inaction or activity of an authorised observer whilst on boardorin the service of the vessel;

“good standing” means such status as is accorded to fishingvessels on the Vessel Register maintained bythe Pacific Islands Forum FisheriesAgency;

“high seas” means all parts of the sea that are not includedin the exclusive economic zone, in the territorialsea, archipelagic waters orin the internal waters of Fiji or the national waters of any other State;

“hot pursuit” refers to the right of hot pursuit described inArticle 111 of the United Nations Conventionon the Law of the Sea adopted on 10December 1982 as developed in accordance with internationallaw;

“international conservation and management measure” means a measure to conserve or manage fish thatis—

(a) adoptedand applied by an organisation or arrangement to which Fiji is a party, and isrequiredto apply; or

(b) prescribedunder section 104 of this Decree;

“landing” means the transfer of any fish from a vessel toany land within Fiji;

“licence” means any licence issued under this Decree, and “licensed” and “licensee” have correspondingmeanings;

“licence fee” means the fee prescribed to be paid in relation tolicences issued under this Decree;

“limitation of effort” means technical measures, restrictions orconstraints to regulate the amount of effortwhich can be put into a fishery inorder to regulate the catch which can be taken from a fishery by afishingvessel or fleet;

“locally based foreign fishing vessel” means a foreign fishing vessel which operates fromFiji and has aformal arrangement in Fiji and lands or tranships an approvedportion of its catch in Fiji;

“master” in relation to any vessel, means the person incommand or charge, or for the time being in charge,or apparently in command orin charge of the vessel, aircraft or vehicle, but does not include a pilotonboard a vessel solely for the purpose of navigation;

“Minister” means the Minister responsible for Fisheries;

“Mobile Transceiver Unit” or “MTU” means a device approved by the Permanent Secretary which is placedon afishing vessel that transmits, either in conjunction with another device ordevices or independently,information or data concerning the position, fishingand such other activities of the vessel as may berequired;

“non-target species” means species that are not targeted by a fishingvessel and includes both fish and nonfishspecies;

“observer” means any person authorised to act as observerpursuant to section 69;

“operator” means any person who is in charge of, responsiblefor the operations of, directs or controls avessel, including the owner,charterer and master and includes the beneficiary of the economic orfinancialbenefit of the vessel’s operations;

“owner” in relation to a fishing vessel, means any personexercising, discharging or claiming the right oraccepting the obligation toexercise or discharge any of the powers or duties of an owner whether onhis ownbehalf or on behalf of another, a person who is a joint owner or persons andany manager,director or secretary of any body corporate or company;

“Permanent Secretary” means the Permanent Secretary responsible forFisheries;

“person” means any natural person or business enterpriseand includes, but is not limited to, a corporation,partnership, cooperative,association, the State or any subdivision or agency thereof, and anyforeignState, subdivision or agency of such State or other entity;

“precautionary approach” means the approach implemented in accordance withArticle 6 and Annex II ofthe Fish Stocks Agreement;

“property” means any vessel, vehicle, aircraft or otherconveyance, fishing gear, implement, appliance,material, container, goods orequipment, but does not include any fishing right or other form ofallocationunder this Decree;

“qualifying authorisation” means an authorisation pursuant to section 26;

“recreational fishing” means fishing done for leisure and without regardto earnings, gain or profit;

“regional register” means the Vessel Register maintained by thePacific Islands Forum Fisheries Agency inHoniara, Solomon Islands;

“related activities” includes—

(a) storing,buying, transhipping, processing or transporting fish or fish products takenfrom fisherieswaters up to the time they are first landed;

(b) on-shorestoring, buying, or processing of fish or fish products from the time they arefirstlanded;

(c) refuellingor supplying fishing vessels, selling or supplying fishing equipment orperformingother activities in support of fishing;

(d) exportingfish or fish products from the country; or

(e) engagingin the business of providing agency, consultancy or other similar services inrelationto fishing or a related activity;

“related agreement” means any treaty, agreement or arrangement which isconcluded in relation to antreaty, access agreement or fisheries managementagreement entered into pursuant to section 20 ofthis Decree;

“sell” includes−

(a) anymethod of disposition for consideration, including cash, anything which hasvalue or whichcan be exchanged for cash, and barter;

(b) dispositionto an agent for sale on consignment;

(c) offeringor attempting to sell, or receiving or having in possession for sale, ordisplaying forsale, or sending or delivering for sale, or causing or permittingto be sold, offered, or displayedfor sale; and

(d) dispositionby way of raffle, lottery, or other game of chance, and “sale” and “sold” have acorresponding meaning;

“serious violation” means—

(a) fishingwithout a valid licence, authorisation, fishing right or permit as requiredunder thisDecree;

(b) failingto maintain accurate records of catch and catch-related data, as required bythis Decreeor a licence issued pursuant to this Decree, or

(c) seriousmisreporting of catch contrary to this Decree or a licence issued pursuant tothis Decree;

(d) fishingin a closed area, fishing during a closed season or fishing without, or afterattainment of,a quota established in the fisheries waters or by an applicablesub-regional or regional fisheriesmanagement organisation or arrangement;

(e) directedfishing for a stock which is subject to a moratorium or for which fishing isprohibited;

(f) usingprohibited fishing gear;

(g) falsifyingor concealing the markings, identity or registration of a fishing vessel;

(h) concealing,tampering with or disposing of evidence relating to an investigation oranticipatedinvestigation;

(i) multipleviolations which together constitute a serious disregard of conservation andmanagementmeasures;

(j) sexualharassment; or

(k) suchother violations as may be prescribed;

“sport fishing” means fishing other than for reward or profit forthe purposes of sport;

“statutory fishing rights” means rights granted under section 104 (3) of thisDecree;

“surveillance officers” include any officer of a vessel or aircraft usedfor the enforcement of this Decree,whether or not such officers are Fijicitizens or whether or not such vessel or aircraft is registered inFiji;

“sustainable use” means conserving, using, enhancing, and developingmarine resources to enable peopleto provide for their social, economic, andcultural wellbeing while—

• maintaining the potential of marine resources tomeet the reasonably foreseeable needs of futuregenerations; and

• avoiding, remedying, or mitigating any adverseeffects of fishing on the aquatic environment; or

• conserving, using, enhancing and developingfisheries resources to provide for social, economicand cultural wellbeing ofthe people of Fiji.

“taking” means fishing and “to take” has a corresponding meaning;

“test fishing” means any fishing operation undertaken over alimited period of time with the approval ofthe Permanent Secretary for thepurpose of testing the feasibility of commercial fishing operationswith a viewto the establishment of fishery operations based locally or in the region, and “exploratoryfishing” has the same meaning;

“transhipment” means the transfer of any or all of the fish onboard a vessel onto another vessel, eitherdirectly or by off-loading the fishfrom the vessel onto the shore and then immediately onto anothervessel, for thepurposes of transporting that fish elsewhere and does not include net sharing;

“treaty” or “treaties” includes a bilateral and multilateral treaty, aswell as a multilateral access agreement;

“vehicle” means any car, truck, van, bus, trailer or otherpowered land conveyance;

“vessel” means any boat, ship, hovercraft or otherwater-going craft which is used for or equipped to beused for or of a typenormally used for fishing or related activities;

“vessel monitoring system” means any system to monitor the position and activitiesof fishing vessels forthe purpose of effective management of fisheries; and

“vessel monitoring system information” means all data and information generated, obtainedor collected inrespect to the operation of the vessel monitoring system asrequired under this Decree.

Application

3.—(1) Subject to subsection (3), unless the contrary intention appears, thisDecree applies to all—

(a) fishingand related activities;

(b) persons,vessels, vehicles, aircraft, export or import facilities or other craft orplace engaged in orotherwise connected with any activity falling within thescope of this Decree;

(c) persons,including non-citizens of Fiji and vessels, including foreign vessels in and inrelationto—

(i) Fiji fisheries waters; and

(ii) any other waters—

a. following hot pursuit conducted in accordancewith international law; or

b. as required by this Decree or conservation andmanagement measures, or permitted byinternational. law or any convention,treaty, arrangement or agreement to which Fiji is aparty;

(d) Fijifishing vessels and to all persons on board these Fiji fishing vessels; or

(e) allpersons dealing with or having any connection or association with Fiji fishingvessels or anypersons on them.

(2) This Decree has extra-territorial applicationaccording to its provisions and tenor.

(3) The provisions of this Decree concerning theapplication of conservation and management measures adoptedby a regionalfisheries management organisation or arrangement to which Fiji is a member donot apply to the internalwaters, archipelagic waters and territorial sea ofFiji as defined under the Marine Spaces Act [Cap. 158A] withoutthe expressconsent of the State.

Decree bindsState

4. This Decree shall bind the State.

 

PART 2—OBJECTIVES AND PRINCIPLES

Objective,Function and Authority

5.—(1) The objective of this Decree shall be to conserve, manage and developFiji fisheries to ensure long termsustainable use for the benefit of the peopleof Fiji.

(2) The Ministry responsible for Fisheries shallhave the principal function of and authority for the conservation,managementand development of the fisheries resources in fisheries waters in accordancewith this Decree.

(3) This Decree shall be interpreted, and allpersons exercising or performing functions, duties or powers conferredorimposed by or under this Decree shall act, in a manner consistent with Fiji’s international and regional obligationsrelating tothe conservation and management of fisheries resources in Fiji’s fisheries waters.

(4) To ensure that the objectives, functions andauthority provided under this Decree and Fiji’s international andregional obligations areeffectively discharged, the provisions of this Decree shall prevail in theevent of inconsistencyor incompatibility with any other law or instrumenthaving the force of law in Fiji.

Principles andmeasures

6. The Minister, Permanent Secretary or Director,as appropriate, when performing functions or exercisingpowers under thisDecree, shall—

(a) adoptmeasures to ensure the long-term sustainability of fisheries resources andpromote the objective oftheir optimum utilisation;

(b) ensurethat such measures are based on the best scientific evidence available and aredesigned to maintainor restore, where appropriate, target stocks at levelscapable of producing maximum sustainable yield,as qualified by relevantenvironmental and economic factors, taking into account fishing patterns,theinterdependence of stocks and any generally recommended internationalminimum standards;

(c) forspecific target stocks to which the application of subsection (b) would nototherwise apply, ensurethat measures applied to such stocks are consideredappropriate to achieve the purpose of this Decree;

(d) applythe precautionary approach in accordance with this Decree;

(e) assess theimpacts of fishing, other human activities and environmental factors on targetstocks, nontargetspecies and species belonging to the same ecosystem ordependent upon or associated with targetstocks;

(f) adoptmeasures to minimise waste, discards, catch by lost or abandoned gear,pollution originating fromfishing vessels, catch of non-target species andimpacts on associated or dependent species, in particularendangered species andpromote the development and use of selective, environmentally safe and costeffectivefishinggear and techniques;

(g) protectbiodiversity in the marine environment, especially habitats of particularsignificance for fisheriesresources;

(h) takemeasures to prevent or eliminate over-fishing and excess fishing capacity andto ensure that levelsof fishing effort do not exceed those commensurate withthe sustainable use of fisheries resources;

(i) takeinto account the interests of artisanal, subsistence fishers and localcommunities including ensuringtheir participation in the management offisheries;

(j) maintaintraditional forms of sustainable fisheries management;

(k) ensurebroad participation by Fiji nationals in activities related to the sustainableuse of fisheriesresources;

(l) collectand share, in a timely manner, complete and accurate data concerning fishingactivities on, interalia, vessel position, catch of target and non-targetspecies and fishing effort, as well as information fromnational andinternational research programmes; and

(m) implementand enforce conservation and management measures through effective monitoring,controland surveillance.

 

PART 3 —ADMINISTRATION

Functions andauthorities of the Minister

7. The Minister shall—

(a) takinginto account the advice of the Offshore Fisheries Advisory Council, givegeneral policy guidanceon fisheries matters; and

(b) delegateresponsibilities and give general or special directions to the PermanentSecretary from time totime.

Functions andauthorities of the Permanent Secretary

8.—(1) The Permanent Secretary shall—

(a) advisethe Minister on any matter relating to the conservation, management,development and sustainableuse of fisheries resources and in relation to any ofthe functions, powers and responsibilities of theMinistry;

(b) designatemarine protected areas;

(c) makedecisions based on recommendations relating to licensing; and

(d) exercisesuch other functions and authorities as may be prescribed in accordance withthis Decree.

(2) The Permanent Secretary may delegate any of hisor her authorities conferred by this Decree to a publicofficer of the Ministry.

(3) The Permanent Secretary may delegate functionsand authorities relating to—

(a) licensing,except for the final approval of any decision regarding licence disposition includingissuance,renewal, denial, variation, suspension and termination; and

(b) monitoring,control and surveillance operations, except that such operations shall takeplace under hisor her general authority, direction and guidance.

(4) The Permanent Secretary may appoint suchcommittees as he or she determines necessary to advise or makerecommendationson any areas under his or her authority.

(5) In performing functions or exercising powersunder this Decree, the Permanent Secretary on therecommendation of the Directormay enter into commercial access agreements with companies or associations ofpeopleinvolved in fishing activities providing for fisheries access, relatedactivities, cooperation in fisheries conservation,management, exploration, orexploitation of fisheries resources or such other matters as provided underthis Decree.

Functions andauthorities of the Director of Fisheries

9.—(1) The Director shall—

(a) manageand control the affairs of the Department of Fisheries;

(b) advisethe Minister and Permanent Secretary on any matter relating to theconservation, management,development and sustainable use of fisheries resourcesand in relation to any of the functions, powersand responsibilities of theDepartment;

(c) develop,coordinate and facilitate the implementation of national policy and strategiesconcerningfisheries conservation, management, development and sustainable use;

(d) manageand coordinate the conservation, management, development and sustainable use offisheriesresources;

(e) manageand coordinate monitoring, control and surveillance of fisheries activities;

(f) monitorand advise on international developments in fisheries matters and ensure thefulfilment ofobligations of Fiji under international agreements;

(g) promoteand facilitate fisheries research, training and education;

(h) promoteand facilitate the development of Fisheries Management Plans;

(i) identifyand recommend the designation of marine protected areas;

(j) makerecommendations relating to licensing to the Permanent Secretary; and

(k) exercisesuch other functions and authorities as may be prescribed in accordance withthis Decree.

(2) The Director may delegate any authorityconferred by this Decree to either of his or her Deputy Directorsor a publicofficer of the Ministry.

OffshoreFisheries Advisory Council

10. This section establishes the Offshore FisheriesAdvisory Council.

Function of theCouncil

11. The function of the Council shall be to advisethe Minister on policy matters relating to fisheries conservation,management,development and sustainable use.

Composition ofthe Council

12.—(1) In appointing the members of the Minister shall ensure they comprise ofthe following—

(a) thePermanent Secretary as Chairperson;

(b) theDirector of Fisheries as Secretary;

(c) threerepresentatives of the fishing industry nominated by the industry;

(d) arepresentative of non-government organisations with an interest in fisheriesnominated by relevantnon-government organisations;

(e) the followingor their nominee, who shall serve in an ex officio capacity—

(i) the Solicitor General;

(ii) the Permanent Secretary of the Ministryresponsible for Environment;

(iii) the Permanent Secretary of the Ministryresponsible for Foreign Affairs;

(iv) the Permanent Secretary of the Ministryresponsible for Finance;

(v) the Permanent Secretary of the Ministryresponsible for National Planning; and

(vi) the Permanent Secretary of the Ministryresponsible for Transport.

(2) The Minister may as appropriate, inviterepresentatives of relevant international, regional or nationalorganisations tospecific meetings of the Advisory Council as observers.

(3) The Minister may remove any member of theCouncil for inability to perform the functions of the Council,whether arisingfrom infirmity of body or mind, absence, misbehaviour or any other cause, ormay be otherwiseremoved by giving one month’s notice.

Term of Office

13. Members of the Council, other than members whoare public officials shall hold office for a term of 3 yearsand are eligiblefor reappointment.

Remuneration

14. Members of the Council other than members whoare public officers may be remunerated in manner andat a rate determined by theMinister.

Meetings of theCouncil

15. (1) The Council may meet as and when necessaryor expedient for the transaction of its business withsuch meetings held at atime and venue determined by the Permanent Secretary.

(2) The Council shall adopt such procedures itdeems necessary for the conduct of its meetings.

PART 4—FISHERIES CONSERVATION, MANAGEMENT AND DEVELOPMENT

Designatedfisheries

16. The Minister shall by notice in the Gazettedeclare a fishery as a designated fishery where, having regardto scientific,social, economic, environmental and other relevant considerations, such fishery—

(a) isimportant to the national interest; and

(b) requiresmanagement measures for ensuring sustainable use of the fishery resource.

FisheriesManagement Plan

17.—(1) Pursuant to section 16, a fishery shall be subject to the requirementsof a Fisheries Management Planprepared in accordance with this section.

(2) The Director shall be responsible for thepreparation and review of a Fisheries Management Plan for themanagement of eachdesignated fishery in Fiji fisheries waters.

(3) Each Fisheries Management Plan shall—

(a) identifythe fishery;

(b) specifyobjectives to be achieved in the management and development of the fishery orarea;

(c) describethe status of the fishery;

(d) specifymanagement measures to be applied to the fishery and the appropriate fines,penalties andsanctions for contravention of such measures;

(e) specifythe process for the allocation of any fishing rights provided for in theFisheries ManagementPlan;

(f) protectthe fishing interests of artisanal, subsistence and small scale fishers;

(g) includean assessment of risk;

(h) identifyrequirements for monitoring, reporting, and assessment; and

(i) makeprovision in relation to any other matter necessary for sustainable use offisheries resources.

(4) The Director being satisfied that the criteriain subsection (3) have been met, shall publish the FisheriesManagement Plan byway of Regulations.

Effect ofFisheries Management Plans

18.—(1) A Fisheries Management Plan has no effect to the extent it is inconsistentwith the provisions of thisDecree.

(2) A Fisheries Management Plan may containprovisions enabling the Director by of written notice, to givedirectivesproviding for such matters as are contemplated by or necessary for giving full effectto the provisions ofthat Fisheries Management Plan.

Amendment orrevocation of a Fisheries Management Plan

19. The Director may after such consultation as heor she considers appropriate in the circumstances, amend or

revoke a Fisheries Management Plan.

Fisheriestreaties and commercial access agreements

20.—(1) A fisheries treaty or commercial access agreement—

(a) whichrelates to areas within Fiji fisheries waters is subject to the sovereignty andsovereign rights ofFiji over fisheries resources;

(b) whichauthorises fishing in areas beyond Fiji fisheries waters is subject to therequirements of anyapplicable bilateral or multilateral treaty or arrangementto which Fiji is party;

(c) shallensure the responsibility of the other party or parties to take all measures toensure compliancewith the terms and conditions of the agreement and with allapplicable laws of Fiji;

(d) in respect of each fishing vessel shall require theflag State, associations of fishers or vessel operatorto−

(e) nominate, appoint and maintain an agent who shallbe resident in Fiji and who shall have authority toreceive and respond to anylegal process; and

(f) notify the Director of the name and address of suchagent, and any communication, information,document, direction, request orresponse to or from that agent shall be deemed to have been sent to, or receivedfrom the flag State, fishermen’s association or vessel operator; and

(g) shall beconsistent with the principles and measures referred to in section 6.

(2) A treaty, multilateral access agreement orcommercial access agreement may provide, for—

(a) authorisationof fishing, related activities or other activities or operations described inthis Decree;

(b) theissuance of licences for fishing, related activities or operations described inthis Decree;

(c) anadministrator authorised to perform such duties specified in such agreementswhich may include

the issuance of licences;

(d) harmonisedterms and conditions for fisheries access;

(e) the implementationof a multilateral access agreement;

(f) harmonised,joint or reciprocal fisheries surveillance and enforcement measures;

(g) harmonisedor joint conservation and management of fisheries;

(h) anobserver programme; and

(i) suchother matters as may be required for the effective implementation of theagreement in accordancewith this Decree.

Giving effectto fisheries conservation and management measures and international agreements

21.—(1) The Minister shall make Regulations as considered necessary or expedientfor the purpose of givingeffect to—

(a) internationalconservation and management measures adopted by regional fisheries managementorganisations;or

(b) treatyor arrangements to which Fiji is a member.

(2) The Permanent Secretary shall attach conditionsto a licence as considered necessary or expedient for thepurpose of givingeffect to—

(a) internationalconservation and management measures adopted by regional fisheries managementorganisations;or

(c) treatyor arrangements to which Fiji is a member.

Allocationsunder a Fisheries Management Plan or agreement

22.—(1) The Permanent Secretary may make, amend or revoke allocations for anyfishing activity within the

scope of this Decree, in accordance with theprovisions of this Decree and any applicable Fisheries Management

Plan, access agreement or fishery managementagreement.

(2) Allocations under fisheries treaties,multilateral access agreements and commercial access agreements shall—

(a) notexceed a level consistent with the long-term conservation and sustainable useof fisheries resources

and the protection of fishing by Fiji citizens;

(b) beconsistent with any applicable Fishery Management Plan; and

(c) be madetaking into account, the following considerations as may be appropriate—

(i) past and present fishing patterns andpractices;

(ii) submission of information for theconservation, management and development of fish stocks;

(iii) contributions to research in Fiji fisherieswaters; and

(iv) whether such allocations would advancedevelopment of the fishing industry in Fiji.

(3) A decision made by the Permanent Secretaryunder subsection (1) shall not give rise to any—

(a) right ofreview or appeal unless expressly provided for in this Decree or under anyFisheries Management Plan, access agreement, fishery management agreement madeunder this Decree; or

(b) entitlementor expectation to compensation for any purpose or reason.

(4) The Minister, on the recommendation of thePermanent Secretary, may determine and declare the nature, extent and durationof statutory fishing rights derived from an allocation.

(5) A person may apply to the Permanent Secretaryfor such statutory fishing rights or quota in accordance with the prescribedregimes for statutory fishing rights.

Exploratoryfishing or test fishing

23.—(1) A vessel shall not be used or operated for test or exploratory fishingexcept with the permission of thePermanent Secretary.

(2) In granting permission to undertake test orexploratory fishing, the Permanent Secretary may impose conditionson theconduct of such operations.

(3) The Permanent Secretary may suspend or revokethe permission to undertake exploratory or test fishing ifhe or she believesthat the operator of a vessel has contravened any condition for the conduct ofsuch operations.

Prohibitedfishing methods

24.—(1) Any person who—

(a) permitsto be used, uses or attempts to use any explosive, firearm, poison, other noxioussubstance orother prohibited item; or

(b) permitsto be carried, carries or has in his or her possession or control anyexplosive, firearm, poison,or other noxious substance, for the purpose ofkilling, stunning, disabling, catching or in any way rendering fish to beeasily caught, commits an offence and shall be liable on conviction to a finenot less than $25,000 and not more than $50,000.

(2) The Permanent Secretary may by notice in theGazette designate a prohibited item or prohibited fishingmethod for the purposeof subsection (1).

(3) Any explosive, firearm, poison, or othernoxious substance found on board any fishing vessel shall be presumed to beintended for the purposes referred to in subsection (1) unless the contrary isproved.

(4) Any person who lands, sells or receives fishtaken or caught using a prohibited item or prohibited fishing method, commitsan offence and is liable on conviction to a fine not less than $25,000 and notmore than $50,000.

(5) In any proceeding for an offence under thissection, a certificate delineating the cause and manner of death or injury offish, signed by the Permanent Secretary or by any person authorised by thePermanent Secretary in writing, shall be sufficient evidence as to the mattersstated in the certificate, unless the contrary is proven.

Driftnetfishing activities

25.—(1) A Fiji fishing vessel or foreign fishing vessel shall not be used foror assist in any driftnet fishing activities, possess or have on board adriftnet in Fiji fisheries waters.

(2) A Fiji fishing vessel authorised to fish in thehigh seas or national waters of another State shall not be used for or assistin any driftnet fishing activities.

(3) A vessel which has been used for or assisted indriftnet fishing activities shall not enter a port in Fiji except in cases offorce majeure.

(4) Where any vessel is used in contravention ofsubsections (1), (2) and (3), the operator and master each commits an offence,and shall be liable on conviction to a fine not less than $50,000 and not morethan $100,000.

(5) A person shall not engage or assist in anydriftnet fishing activities in Fiji fisheries waters.

(6) Any person who contravenes subsection (5)commits an offence and shall be liable on conviction to a fine not less than$5,000 and not more than $100,000 or imprisonment for a term not exceeding 6months, or both.

 

PART 5—LICENCES AND AUTHORISATIONS

Licence orauthorisation required for Fiji fishing vessels

26.—(1) A Fiji fishing vessel or fishing vessel used for sport or recreationalfishing shall not be used in the

internal waters, archipelagic waters, territorialsea or exclusive economic zone of Fiji for—

(a) fishing;

(b) relatedactivities; or

(c) anyother activity,

unless under the authority of a valid licence,authorisation or fishing right as may be required under this Decree, aFisheriesManagement Plan or any access agreement or fisheries management agreemententered into pursuant tothis Decree.

(2) Where any sports or recreational fishing vesselis used in contravention of subsection (1), the operator and master of suchvessel each commits an offence and shall be liable on conviction to a fine notless than $5,000 and not more than $10,000.

(3) Where any vessel is used in contravention ofsubsection (1), the operator and master of such vessel each commits an offenceand shall be liable on conviction to a fine not less than $20,000 and not morethan $1,000,000.

(4) A crew member who contravenes subsection (1)commits an offence and shall be liable on conviction to a fine not less than$2,000 and not more than $10,000.

(5) For the purposes of subsection (3), the onus ison the crew member to prove that at the relevant time he or she did not knowthat an offence was being committed.

Requirementsfor Fiji fishing vessels outside Fiji fisheries waters

27.—(1) A person shall not use a Fiji fishing vessel for fishing or relatedactivities—

(a) in thefisheries waters of another State except in accordance with the laws of thatState and an authorisation issued under section 34 of this Decree;

(b) in anarea subject to a treaty or multilateral access agreement except in accordancewith that treaty oragreement;

(c) on thehigh seas except in accordance with an authorisation issued under section 34;or

(d) in anarea subject to an international conservation and management measure except inaccordancewith such measure.

(2) Where any vessel is used in contravention ofsubsection (1), the operator and master of such vessel each commits an offence,and may each be liable on conviction to a fine not less than $20,000 and notmore than $40,000.

(3) A crew member who contravenes subsection (1)commits an offence and shall be liable on conviction to afine not less than$2,000 and not more than $10,000, unless he or she is able to prove that at therelevant time he orshe did not know that an offence was being committed.

Use of foreignfishing vessels by Fiji nationals on the high seas

28.—(1) A Fiji national shall not use or be employed on a vessel registered inanother country for fishing or related activities on the high seas except inaccordance with a qualifying authorisation issued by the flag State.

(2) A qualifying authorisation may be issued by aState that—

(a) is aparty to the Fish Stocks Agreement;

(b) is aparty to, or has accepted the obligations of, a global, regional, orsub-regional fisheries organization or arrangement to which the authorisationrelates; or

(c) haslegal and administrative mechanisms to control its vessels on the high seas inaccordance with the agreement or arrangement.

(3) For the purpose of subsection (1) any noticegiven by the Minister in the Gazette, specifying any State or categoryof States as States that may issue a qualifying authorisation shall beconclusive of its contents.

(4) An operator or master who contravenessubsection (1) each commits an offence, and shall be liable on conviction to afine not less than $500,000 and not more than $100,000.

(5) A crew member who contravenes subsection (1)commits an offence, and shall be liable on conviction to a fine not less than$2,000 and not more than $10,000.

(6) For the purposes of subsection (5), the onus ison the crew member to prove that at the relevant time he or she did not knowthat an offence was being committed.

Application forlicence

29. The Permanent Secretary or an authorisedadministrator may issue licences upon—

(a) anapplication being made in the prescribed form or in accordance with anapplicable multilateral access or related agreement; and

(b) paymentof the required fees.

Conditions oflicence or authorisation

30.—(1) Every licence or authorisation issued under section 32 shall be in theprescribed form and may besubject to—

(a) prescribedconditions; and

(b) specialconditions as may be specified under subsection (3); or

(c) suchconditions as the Permanent Secretary thinks fit and are consistent with thosewhich may be

prescribed to any licence granted under sections 32and 34.

(2) The Permanent Secretary may, by noticepublished in the Gazette, specify conditions additional to those to which anylicence or authorisation shall be subject.

(3) The Permanent Secretary may attach to anylicence or authorisation such special conditions as may be required for theproper management of fisheries, including conditions relating to—

(a) the typeand method of fishing or related activity authorised;

(b) theareas where fishing or related activities are authorised;

(c) thetarget species and amount of fish authorised to be taken, including any restrictionon by-catch;

(d) thetimes within which such fishing or related activities are authorised;

(e) protectionand indemnity insurance required; and

(f) restrictionsrelating to the numbers, types, sizes, specifications or operation of fishingrelated equipmentor vessels.

Varying specialconditions

31.—(1) The Permanent Secretary may from time to time, where it is expedientfor the proper management of fisheries, vary any special conditions attached toany licence or authorisation.

(2) Where the Permanent Secretary varies anyspecial conditions attached to any licence, the licence holder shall benotified of the variation by way of written notice.

(3) Any additional conditions made to a licence orvariations made to a licence shall not have effect until the licence holder, orin respect of a foreign fishing vessel, the licence holder or agent, has beennotified in writing.

(4) Each vessel or person authorised in accordancewith this section shall comply with all applicable laws of Fiji and anyconditions of such authorisation.

Issuance oflicence or authorisation to owner or operator of Fiji fishing vessel

32. The Permanent Secretary may issue a licence tothe owner or operator of a Fiji fishing vessel authorising thevessel to be used—

(a) in the exclusiveeconomic zone or other areas within Fiji fisheries waters, for fishing or forotherpurposes in accordance with this Decree as specified in the licence;

(b) forfishing in high seas beyond Fiji fisheries waters; or

(c) forfishing in the waters under the jurisdiction of another State subject to thelaws of that State.

Licence orauthorisation required for foreign fishing vessels

33.—(1) Subject to subsection (4), a foreign fishing vessel that is in Fijifisheries waters shall act in accordance with international law concerningnavigation and the protection and preservation of the marine environment.

(2) A foreign vessel shall not—

(a) be usedfor fishing or for a related activity or other activity provided for in thisDecree; or

(b) undertakefishing or related activities except in accordance with a valid licence issuedpursuant to this Decree or an applicable treaty or multilateral accessagreement or commercial access agreement.

(3) An operator of a foreign fishing vessel in Fijifisheries waters where fishing and related activities are prohibited shallensure that all gear on board the vessel, is stowed in such manner that it isnot readily available for fishing orrelated activities.

(4) An unlicensed operator of a foreign fishing vesselnavigating through Fiji fisheries waters shall submit a report containing the—

(a) name ofthe vessel;

(b) InternationalRadio Call Sign;

(c) flagregistration;

(d) date andtime;

(e) position,to 1 minute of arc;

(f) complement;

(g) intendedactivity; and

(h) catch onboard,

(5) A report made under subsection (4) shall besubmitted to the Director or his or her nominee electronicallyor manually—

(i) at prescribed distance or time intervals priorto entry into Fiji fisheries waters;

(ii) upon entry into Fiji fisheries waters;

(iii) at prescribed time intervals while withinFiji fisheries waters;

(iv) upon departure from Fiji fisheries waters; and

(v) at any other time prescribed.

(6) Where the operator of a foreign fishing vesselnavigating through Fiji fisheries waters refuses or otherwise fails to reportthe information described in subsections (4) and (5), there shall be arefutable presumption that all fish found on board such vessel have been caughtwithin the Fiji fisheries waters in contravention of this Decree.

(7) The Director shall work with other agencies inthe implementation of subsection (4) and (5) and may in consultation with suchagencies issue notices of the reporting requirement for foreign fishing vesselsnavigating through Fiji fisheries waters.

(8) Where any foreign fishing vessel is used incontravention of subsections (1), (2) or (3), the operator and master of suchvessel each commits as serious violation or offence, and shall be liable onconviction to a fine notexceeding $1,000,000 and not more than $2,000,000.

Issuance oflicence or authorisation to owner or operator of foreign fishing vessel

34. Subject to the provisions of this Decree, thePermanent Secretary may issue a licence to the owner or operator of a foreignfishing vessel authorising that vessel to access the exclusive economic zonefor fishing, exploration or exploitation of living marine resources, or forother purposes in accordance with this Decree as may be specified inthelicence.

Period ofvalidity of licence or authorisation

35.—(1) Every licence or authorisation issued by the Permanent Secretary shall,unless earlier cancelled or suspended under section 38 of this Decree, be validfor a period not exceeding 36 months from the date of issue.

(2) The period of validity of a licence orauthorisation shall not extend beyond the period of validity of any applicabletreaty or access agreement.

(3) Except as may be otherwise prescribed by thePermanent Secretary in connection with the limitation ofeffort in any fishery,a licence issued in respect of any vessel shall not be transferable.

Refusal oflicence

36. The Permanent Secretary may refuse anapplication for a licence on any of the following grounds—

(a) theowner or operator is the subject of proceedings under bankruptcy laws of anyjurisdiction andreasonable financial assurances have not been provided;

(b) failureto satisfy a judgment or other determination for a contravention of this Decreeor an accessagreement by the owner or operator of the vessel in respect ofwhich an application for a licence hasbeen made until such time as the judgmentor other determination has been made;

(c) an owneror operator of the vessel has contravened, or the vessel has been used for thecontravention of conservation and management measures adopted by a regional orsub-regional fisheries management organisation to which Fiji is a member;

(d) an owneror operator of the vessel has contravened, or the vessel has been used in thecontravention of a treaty or access agreement to which Fiji is party;

(e) an owneror operator of the vessel has committed, or the vessel has been used to commitan offenceagainst the laws of Fiji;

(f) thefishing vessel in respect of which the application is made does not have goodstanding on the regional register;

(g) theprevious offending history of the vessel’s owner, operator or master;

(h) grantingof the licence would conflict or would be inconsistent with the requirements ofthis Decree, an applicable access agreement, fisheries management agreement,Fisheries Management Plan or any international conservation and managementmeasure binding on Fiji; or

(i) inaccordance with such other grounds as may be prescribed by the Regulations.

Automatictermination of licence

37. Where a material circumstance of a licencedvessel changes, including but not limited to a change in name,charter,ownership, flag or gear, the licence or authorisation shall automaticallyterminate.

Cancellation orsuspension of licences or authorisation

38.—(1) The Permanent Secretary may suspend or cancel a licence orauthorisation if—

(a) it isnecessary to do so in order to give effect to any licensing programme orconservation measurespecified in or implemented in accordance with a FisheriesManagement Plan;

(b) a vesselis used in contravention of this Decree, condition of the licence or anyapplicable treaty oraccess agreement;

(c) paymenthas not been made for any charge, penalty, fine or compensation required underthis Decree;

(d) goodstanding has been withdrawn in respect to the licenced or authorised vesselwhere such goodstanding is a condition of licence issuance; or

(e) theMinister or Permanent Secretary is required or authorised to do so inaccordance with the provisions of any access agreement entered into under thisDecree.

(2) Pursuant to subsection (1) a writtennotification of the cancellation or suspension shall be issued to the person tothe licence holder except in accordance with subsection (5).

(3) Where a licence or authorisation has been issuedpursuant to a treaty or multilateral access agreement, it may only be suspendedor cancelled in accordance with the terms of such agreement.

(4) Where a licence or authorisation has beensuspended or cancelled on the grounds specified in subsection

(1) a proportion of any fees paid for the licencerepresenting the unexpired period of that licence or the period ofsuspension,as the case may be, shall be reimbursed to the licence holder at his or herrequest.

(5) In the case of a fishing vessel, a notificationreferred to in subsection (3) may be in writing or by radio,facsimile, email orsuch other form as the Permanent Secretary thinks appropriate.

Record offishing vessels

39.—(1) The Permanent Secretary shall maintain a record of all licenced fishingvessels authorised to fly theflag of Fiji under this Decree.

(2) The record maintained under subsection (1)shall contain the following information—

(a) name offishing vessel, registration number, previous names, and port of registry;

(b) name andaddress of owner or owners;

(c) name andnationality of master;

(d) previousflag, if any;

(e) InternationalRadio Call Sign;

(f) vesselcommunication types and numbers including INMARSAT A, B, C and D numbers andsatellitetelephone number;

(g) colourphotograph of vessel;

(h) locationand date of vessel manufacture;

(i) type ofvessel;

(j) normalcrew complement;

(k) type offishing method or methods;

(l) lengthoverall and length between the perpendiculars;

(m) mouldeddepth;

(n) beam;

(o) grossregister tonnage;

(p) power ofmain engine or engines;

(q) thenature of the authorisation to fish granted by Fiji; and

(r) carryingcapacity, including freezer type and fish hold capacity; or

(s) furtherinformation as may be required in order to fulfil any obligations arising outof measuresadopted by relevant regional or sub-regional fisheries managementorganisations.

(3) The owner or operator of any Fiji fishingvessel to which this Decree applies who intends to fish or undertake fishing inwaters beyond Fiji fisheries waters but fails to provide the information requiredin subsection (2) shall beguilty of an offence and liable upon conviction to apenalty not exceeding $2,000.

Release ofinformation

40. The Permanent Secretary may provide to anyrelevant regional or sub-regional fisheries management organisation,information on the record of fishing vessels, additions to or deletions fromthe record, withdrawal ofauthorisation or information that a vessel is nolonger authorised to fly the flag of Fiji.

Fisheriesscientific research operations

41.—(1) The Permanent Secretary may, on the submission of a research planrecommended by the Council, issue a written authorisation to any vessel orperson to undertake marine scientific research operations related tofisheriesin the exclusive economic zone.

(2) The Permanent Secretary shall prescribeconditions or additional conditions as he or she thinks fit to anyauthorisationgranted under subsection (1).

(3) Each vessel or person authorised in accordancewith this section shall comply with all applicable laws ofFiji, including anycondition of such authorisation.

(4) Any person who undertakes or assists in anyfisheries scientific research related to fisheries in the exclusiveeconomiczone in contravention of subsections (1) and (3) commits an offence and onconviction shall be liable toa fine not less than $5,000 and not more than$10,000.

(5) In addition to subsection (4), the PermanentSecretary may suspend or revoke such authorisation if there isfailure to complywith the conditions of the authorisation or the requirements of this Decree.

Fees and otherforms of compensation

42. The applicant shall pay in respect of everylicence issued by the Minister or the Permanent Secretary or in respect of authorisationsor allocations given or made, such fees and other forms of compensation as maybeprescribed.

Appeals

43. Any person aggrieved by—

(a) therefusal of the Permanent Secretary to issue or renew a licence or authorisationin respect of a Fijifishing vessel; or

(b) thecancellation or suspension of a licence or authorisation issued in respect of aFiji fishing vessel,may within 30 days of that decision, appeal in writing tothe Minister.

Observation oflaws

44.—(1) A licence or authorisation issued under this Decree shall not relieveany vessel, its master or crew, of any obligation or requirement imposed by anyapplicable law concerning navigation, customs, quarantine, immigration,healthor any other matter.

(2) The operator, master and crew members of anyFiji fishing vessel or any vessel within Fiji fisheries watersshall comply withall applicable laws of Fiji, regardless of whether or not it holds a licence orauthorisation.

(3) The operator and master of any Fiji fishingvessel holding a licence for fishing outside Fiji fisheries waters undersection 34 or who is subject to the requirements of that licence shall complywith all applicable laws of Fiji.

(4) Where a vessel is used in contravention ofsubsections (1) or (2), the operator and master of such vessel, eachcommits anoffence, and shall be liable on conviction to a fine not less than $10,000 andnot more than $200,000.

(5) Any person who commits a serious violationshall be liable on conviction to a fine of not less than $1,000,000and not morethan $2,000,000 or imprisonment for a term of 6 months or to both such fine andimprisonment.

 

PART 6—MONITORING, CONTROL, SURVEILLANCE AND ENFORCEMENT

Appointment ofauthorised officers

45. Notwithstanding the provisions of any otherwritten law, the Minister may, by notice in the Gazette, appoint anyperson or category of persons or an employee of the Ministry responsible forfisheries to be an authorised officer for the purposes of this Decree, or anyRegulation made under it.

Appointment ofauthorised officers from other states

46. The Minister shall, on the recommendation ofthe Permanent Secretary, by notice in the Gazette, appointnationals ofother States to be authorised officers for purposes of this Decree.

Powers of entryand search

47.—(1) In the course of the enforcement and administration of this Decree, anauthorised officer may, at any reasonable time in Fiji and in Fiji fisherieswaters, without warrant—

(a) stop,enter, board or examine any vessel or vehicle, or enter and examine anypremises or place,or examine any record, document, article, and any gear,apparatus, device, or contents of any kindtherein;

(b) stop anyperson and examine any record, document, article, container, gear, apparatus,device, or fish in the possession of that person; and

(c) passacross any land.

(2) If an authorised officer believes, onreasonable grounds that an offence is being or has been committed againstthisDecree and that—

(a) any fishtaken or thing used or intended to be used in contravention of this Decree;

(b) anyrecord or information required by or under this Decree to be kept, completed,or provided; or

(c) anyarticle, record, document or thing for which there is reasonable ground tobelieve will be evidenceas to the commission of an offence against this Decree,maybe concealed or located or held in any vessel, vehicle, conveyance of any kind,premises, place, parcel, package,record, or thing, then, that authorisedofficer may, without warrant, at any reasonable time enter or pass across anylandin order to enter, examine, and search any such premises or place, or any suchvessel vehicle, or conveyance of any kind, and may examine and search, bystopping or opening where necessary any such parcel, package, record,or thing.

(3) An authorised officer may detain any person,vessel, vehicle, conveyance of any kind, parcel, package,record, document,article, gear, apparatus, device, container, fish, or thing for such period asis reasonably necessaryto enable the authorised officer to carry out anexamination or search under this section.

Power toquestion persons and require production of documents

48.—(1) For the purpose of the enforcement of this Decree, if an authorisedofficer believes on reasonablegrounds that a person—

(a) is orhas been engaged in the taking or selling of fish;

(b) haspurchased, is or has been in possession of fish; or

(c) iscommitting or has committed an offence against this Decree, the authorisedofficer may, at any reasonable time question that person or any other person,and –

(i) require the person being questioned to providean answer, including any explanation or information concerning any vessel, orany place or thing, or any fish or fishing method, gear, apparatus, record,document,article, device, or thing relating to the taking, sale, purchase, or possessionof any fish; and

(ii) require that person or any other person toproduce any permit, authority, approval, permission, licence,or certificateissued in respect of any vessel or person.

(2) Nothing in subsection (1) shall be construed soas to require any person to answer any question tending to incriminate him orherself.

Power of arrest

49.—(1) For the purpose of the enforcement of this Decree an authorised officermay, if he or she believes onreasonable grounds that any person has committedan offence or is likely to commit an offence in contravention ofthis Decree,shall—

(a) orderthat person to forthwith desist from offending;

(b) requestthat person to supply the name by which that person is commonly known and theperson’s family name or surname, date of birth, actual place of residence, andoccupation; or

(c) arrestthat person without warrant.

(2) If an authorised officer arrests a person undersubsection (1) the authorised officer shall cause the person to be deliveredinto the custody of a member of the Police as soon as practicable and theprovisions of the CriminalProcedure Decree shall apply.

(3) If the offence in respect of which the personhas been arrested carries a maximum penalty not exceeding $1,000,000 thatperson shall not be bailable as of right.

Power to givedirections to master

50.—(1) For the purpose of the enforcement of this Decree, an authorised officermay, if he or she believes that a vessel is being or has been used incontravention of the provisions of this Decree or of the conditions of anypermit, authority, approval, permission, licence, registration, or certificateissued under this Decree, require the master to take the vessel, as soon aspracticable, to the nearest available port in Fiji, or such other port as isagreed between the master and the authorised officer.

(2) If an authorised officer has given a directionunder subsection (1), he or she may also give to the master or any person onboard the vessel any reasonable directions in respect of any activity, method,procedure, item, gear, document, fish, property, or thing while the vessel isproceeding to port.

Power to usereasonable force and take copies of documents

51.—(1) For the purpose of the enforcement of this Decree, an authorisedofficer is justified in using such forceas may be reasonably necessary toenable the exercise of his or her powers under this Decree.

(2) In exercising powers under this Decree, anauthorised officer may—

(a) make ortake copies of any record or document, and for this purpose take possession ofand remove from the place where they are kept any such record or document, fora period of time as is reasonablein the circumstances; and

(b) ifnecessary require a person to produce, or assist the authorised officer toproduce in a useable form,information recorded or stored in a document.

Powers ofseizure

52.—(1) An authorised officer may seize without warrant—

(a) anyvessel, vehicle or other conveyance, fishing gear, implement, appliance,material, container,goods, equipment, or thing which the authorised officerbelieves on reasonable grounds is being or has been or is intended to be usedin the commission of an offence against this Decree;

(b) any fishwhich the authorised officer believes on reasonable grounds are being or havebeen taken,killed, transported, bought, sold or found in possession of anyperson in contravention of this Decree;

(c) any fishwith which fish taken under subsection (b) have been intermixed; or

(d) anyarticle, record, document, or thing which the authorised officer believes onreasonable grounds isevidence of the commission of an offence against thisDecree.

(2) Any property seized under subsection (1) shallbe delivered into the custody of the Police as soon as practicable.

General powers

53.—(1) An authorised officer may take all reasonable steps in his or herpowers under this Decree or any other law and give such directives as arereasonably necessary for the purposes of exercising any of his or her powers.

(2) The powers of an authorised officer under thisDecree are exercisable—

(a) withinFiji;

(b) in Fijifisheries waters; and

(c) beyondFiji fisheries waters,in relation to any conduct whether or not that conductoccurred in Fiji fisheries waters and in accordance with any internationalconservation and management measure, applicable bilateral or multilateraltreaty, or arrangement, towhich Fiji is party.

(3) Subsection (2)(c) does not authorise anauthorised officer to exercise any power under this Decree in respectto anyforeign vessel or any person aboard any such vessel unless the authorisedofficer—

(a) believeson reasonable grounds that any person on board the vessel has committed anoffence in Fijifisheries waters;

(b) is inhot pursuit of or has recently pursued a vessel; and

(c) commencedthat pursuit in the Fiji fisheries waters.

(4) An authorised officer may exercise any powersbeyond the limits of Fiji fisheries waters in respect to any foreign vessel orperson aboard any such vessel and relating to fisheries inspection, complianceor enforcement provided that the exercise of those powers is authorised by atreaty, a multilateral access agreement other bilateral or multilateral legaltreaty to which Fiji is party, and implemented in Fiji by regulation ornotification in the Gazette, or is otherwise authorised under internationallaw.

Powers withrespect to measures of a regional fisheries management organisation

54.—(1) Subject to subsection (2), the Permanent Secretary may authorise anauthorised officer to undertake fisheries inspection, compliance andenforcement measures which have been adopted by a regional fisheries managementorganisation to which Fiji is a member.

(2) The Permanent Secretary shall publish by noticein the Gazette the enforcement measures referred to insubsection (1).

Persons toassist authorised officer

55. Any authorised officer exercising any of thepowers conferred on him or her by this Decree may do so with the aid of suchassistants as he or she considers necessary for the purpose.

Exemption ofliability

56.—(1) An authorised officer or a person assisting an authorised officer whodoes any act under this Decree, or omits to do any act required by this Decree,shall not be under any civil or criminal liability as a result of that actoromission on the ground of want of jurisdiction or mistake of law or fact, orany other ground, unless he or she hasnot acted, or omitted to act, in goodfaith.

(2) The State shall not be held liable in civil orcriminal proceedings for an act or omission of any authorized officer orperson, unless the authorised officer or person would himself or herself incurliability for the act or omission.

Requirementsfor seized property

57.—(1) The Permanent Secretary may, at any time until an information or chargeis laid in respect of the alleged offence for which the property was seized, onapplication by—

(a) theperson from whom the property was seized; or

(b) theowner or person entitled to the possession of the property seized, authorisethe release of the property to any such person under bond in such sum and undersuch sureties and conditions as the Permanent Secretary may specify.

(2) Where any person to whom property is releasedunder subsection (1) fails to comply with the conditions of any bond or withany condition specified by the Permanent Secretary—

(a) theproperty may be seized at any time at the direction of the Permanent Secretary;

(b) theprovisions of this section shall apply to property as if it had been seizedpursuant to section 52;

(c) thePermanent Secretary may, in the case of failure to comply with conditions ofany bond, apply to the High Court for an order for estreat of the bond;

(d) wherethe Permanent Secretary so applies the Registrar of the High Court shall fix atime and place for hearing of the application, and shall, not less than 7 daysbefore the time fixed, cause to be served on every person bound by the bond anotice of the time and place so fixed;

(e) if onthe hearing of any such application it is proved to the satisfaction of theCourt that any conditionof the bond has not been kept, the Court may make anorder to estreat the bond to such an amount asit thinks fit to any person boundthereby on whom notice is proved to have been served in accordancewith thissubsection; and

(f) anypenalty payable in accordance with this subsection shall be recoverable as ifit were a fine issuedunder an Offshore Fisheries Fixed Penalty Notice.

Sale of seizedproperty

58.—(1) Where, in the opinion of the Permanent Secretary, any fish or otherarticle seized pursuant to section 52 may rot, spoil, deteriorate or otherwiseperish, the Permanent Secretary may authorise its sale in such manner andforsuch price as the Permanent Secretary may determine.

(2) Such determination by the Permanent Secretaryshall be based on and include but not be limited to localmarket price, demand,quality of the seized fish or other article, and other circumstances.

Seized propertyforfeiture to the State

59. Where the ownership of any property cannot atthe time of seizure be ascertained, the property seized shallbe forfeited tothe State and shall be disposed of as directed by the Permanent Secretary after90 days from the dateof seizure if, within that time, it has not been possibleto establish the ownership of the property.

Purchaserobtains good title

60. A purchaser for valuable consideration of anyfish, article or property sold under section 58 shall derive goodandunencumbered title in respect of that fish, article or property as the case maybe.

Seized propertyto be in the custody of the Police

61. Subject to section 57 (1), all property seizedpursuant to section 52 and the proceeds from the sale of anysuch propertypursuant to section 58 except where such property has been disposed of by theState pursuant to section 59 shall be held in the custody of the Police actingon behalf of the State until—

(a) adecision is made not to lay any information or charge in respect of the allegedoffence for which the property was seized; or

(b) wheresuch a charge or information is laid, the completion of proceedings in respectof the alleged offence for which the property was seized, or such sooner timeas the Court may determine.

Release ofseized property subject to sureties and conditions

62.—(1) Where any information or charge has been laid in respect of the allegedoffence for which the propertywas seized pursuant to section 57 (1), and thatproperty remains in the custody of the State, the Court may at anytime, onapplication by—

(a) theperson from whom the property was seized; or

(b) theowner or person entitled to the possession of the property seized, release theproperty under bond to any such person, and any such release may be subject tosuch sureties andconditions as the Court may specify.

(2) In determining the value of the bond or otherform of security, the Court shall have regard to the aggregateamount of—

(a) thevalue of the property to be released;

(b) thetotal maximum fine or fines provided for the offence charged or likely to becharged; and

(c) theloss, damages or costs the prosecution would be likely to recover, if aconviction were entered, andthe Court may set the value at such aggregateamount.

Laying ofinformation or charge

63. The decision whether or not to lay anyinformation or charge in respect of an alleged offence for which any propertyis seized under section 52 shall be made as soon as reasonably practicableafter the property is seized, takenpossession of, or detained.

State notliable

64. The State shall not be liable to any person forany spoilage or deterioration in the quality of any fish or otherperishablearticles seized under section 52.

Release ofseized property and proceeds from sale

65. Subject to section 64, but notwithstanding anyother provisions of this Decree, where any property has beenseized undersection 52, and—

(a) adecision not to lay an information or charge has been made; or

(b) upon theacquittal of any person charged with an offence for which the property issubject to forfeiture,such property, or the proceeds from the sale of suchproperty, shall be released from the custody of the State to the personentitled thereto and in the case of proceeds of sale from property undersection 58 the same shall be paid intothe unclaimed monies account and be dealtwith in accordance with the laws of Fiji.

Exemption ofliability of authorised officer

66. Notwithstanding any other provisions in thisDecree, an authorised officer who at the time of seizure returnsto the waterany fish seized pursuant to section 52 of this Decree that he or she believesto be alive, shall not be under any civil or criminal liability to the personfrom whom the fish was seized in the event of a decision being made notto layan information or charge in respect of the fish, or of the person beingacquitted of the charge.

Removal ofparts from seized vessels

67.—(1) An authorised officer may remove any part or parts from any vessel,vehicle or aircraft held in custodyof the State for the purpose of immobilisingthat vehicle or aircraft.

(2) Any part or parts removed under subsection (1)shall be kept safely and returned to the vessel, vehicle oraircraft upon itsrelease from custody.

(3) Any person who—

(a) possessesor arranges to obtain any part or parts removed under subsection (1);

(b) possessesor arranges to obtain or make any replacement or substitute part or parts forthose removedunder subsection (1); or

(c) fits orattempts to fit any part or parts or any replacement or substitute part orparts to a vessel, vehicle or aircraft held in custody of the State,without theauthority of the Permanent Secretary, commits an offence.

Observers andObserver Programme

68. –(1) This section establishes the Fiji ObserverProgramme.

(2) The Fiji Observers Programme shall beresponsible for collecting, recording and reporting reliable andaccurateinformation for scientific, management, and compliance purposes including −

(a) thespecies, quantity, size, age, and condition of fish taken;

(b) themethods used and areas and depths at which fish are taken;

(c) theeffects of fishing methods on fish and the environment;

(d) allaspects of the operation of any vessel;

(e) processing,transportation, transhipment, storage, or disposal of any fish;

(f) monitoringthe implementation of management measures and applicable internationalconservationand management measures; or

(g) anyother matter that may assist the Permanent Secretary to obtain, analyse, orverify informationregarding fisheries for scientific, management, andcompliance purposes.

Designation ofobservers

69.—(1) The Permanent Secretary may, by notice published in the Gazette,designate persons to act as observers on vessels issued with valid licences orauthorisations pursuant to this Decree or any regulation made under it.

(2) The Permanent Secretary may, by noticepublished in the Gazette, designate nationals of other States to beobserversfor the purposes of this Decree.

(3) Notwithstanding subsection (1), observers maybe designated in accordance with any cooperation agreement to which Fiji isparty and shall be so designated provided that such agreement enables thereciprocal recognition ofobservers.

(4) Persons designated in accordance withsubsection (2) and (3) who are not Fiji citizens shall be subject to theprovisionsof this Decree while carrying out their duties and functions.

Observerspermitted to board any licenced or authorised vessel

70.—(1) Observers shall be permitted to board any vessel issued with a validlicence or authorisation pursuant to this Decree and remain on such vessel forthe purpose of exercising the observers’ functions stipulated undersection 68.

(2) The operator, master, and each member of thecrew of such vessel shall allow and assist an observer to—

(a) boardand remain on such vessel for the purpose of carrying out his or her duties andfunctions, at such time and place as the Permanent Secretary may require;

(b) havefull access to and the use of facilities and equipment on board the vesselwhich the observer maydetermine necessary to carry out his or her duties,including –

(i) full access to the bridge, fish on board andareas which may be used to hold, process, weighand store fish;

(ii) full access to the vessel’s records including its log and documentation forthe purpose ofrecords inspection and copying;

(iii) full access to fishing gear on board;

(iv) full access to navigation equipment andradios;

(v) take and remove from the vessel reasonablesamples for the purposes of scientific investigation and other relevantinformation;

(vi) take photographs of the fishing operations,including fish, fishing gear, equipment, charts and records, and remove fromthe vessel such photographs or film as he or she may have taken orused on boardthe vessel;

(vii) send or receive messages by means of thevessel’s communications equipment;and

(viii) gather any other information relating tofisheries in Fiji fisheries waters or other areas as maybe authorised bylicence or authorisation;

(c) carryout the observers duties safely; and

(d) disembarkat such time and place as may be determined by the Permanent Secretary or inaccordancewith an access agreement.

(3) The operator shall provide the observer, whileon board the vessel, at no expense to the State with food, accommodation,safety equipment and medical facilities equivalent to officers or suchreasonable standard as maybe acceptable to the Permanent Secretary.

(4) In addition to the requirements in subsection(2), the Permanent Secretary may require the operator to payin full thefollowing costs of the authorised observer—

(a) travelcosts to and from the vessel;

(b) suchsalary as may be notified by the Permanent Secretary, being the full amount ofsuch salary; and

(c) fullinsurance coverage.

(5) Any operator and master of any vessel with avalid licence or authorisation issued in accordance with thisDecree shall allowand assist any observer to have full access to any place within Fiji orelsewhere where fish taken inFiji fisheries waters is unloaded or transhipped,to remove samples and to gather any information relating to fisheriesin Fijifisheries waters.

(6) Any observer who performs duties in areasbeyond Fiji fisheries waters in accordance with this Decree, anyinternationalagreement, fisheries management agreement or international conservation andmanagement measures,shall, unless the contrary is provided, continue to besubject to all provisions of this Decree, and all responsibilitiesand duties ofoperators, crew members or other relevant persons to such observer or portsamplers, under this Decreeshall be applicable.

Exemption ofliability of observer

71. Any observer designated under this section, whodoes any act under this Decree, or omits to do any act required by this Decree,shall not be under any civil or criminal liability as a result of that act oromission on the ground ofwant of jurisdiction or mistake of law or fact, or anyother ground, unless he or she has not acted, or omitted to act,in good faith.

Duties toauthorised officers and observers

72.—(1) The operator, master, crew member of any fishing vessel, driver of anyvehicle or pilot and crew of anyaircraft shall immediately comply with everyinstruction or direction given by an authorised officer or observer and facilitatesafe boarding, entry, exit and inspection of the vessel, vehicle or aircraft andany fishing gear, equipment,records, fish and fish products.

(2) The operator, master, and each crew member of avessel, driver of a vehicle and pilot and crew of an aircraftshall ensure thesafety of an authorised officer or observer as appropriate in the performanceof his duties.

(3) Any person who contravenes subsections (1) or(2), or—

(a) assaults,obstructs, resists, delays, refuses boarding to, intimidates or otherwiseinterferes with an authorised officer or observer in the performance of hisduties;

(b) incitesor encourages any other person to assault, resist, or obstructs any authorisedofficer or observerwhile in the execution of his powers or duties, or anyperson lawfully acting under the officer’s ordersor in his or her aid;

(c) usesthreatening language or behaves in a threatening or insulting manner or usesabusive language orinsulting gestures towards any authorised officer orobserver while in the execution of his powers orduties, or any person lawfullyacting under an authorised officer’s orders or in his or her aid;

(d) fails tocomply with the lawful requirements or any authorised officer or observer;

(e) furnishesto any authorised officer or observer any particulars which are false ormisleading in anymaterial respect;

(f) impersonatesor falsely represents himself or herself to be an authorised officer orobserver, or who falsely represents himself or herself to be a person lawfullyacting under an authorised officer’s ordersor in his or her aid;

(g) resistslawful arrest for any act prohibited by this Decree; or

(h) is inbreach of any other duty to an authorised officer or observer under thisDecree, commits an offence.

(4) For the purpose of subsection (3), any personwho does not allow any authorised officer, or any person acting under his orher orders or in his or her aid, or an observer to exercise any of the powersconferred on such person by this Decree shall be deemed to be obstructing thatofficer or person.

(5) A violation of subsection (3) shall constitutea serious violation.

(6) Any person who, being a master, owner,charterer, agent, or a company established under the laws ofFiji which owns,partly owns or controls a fishing vessel which transports an authorised officeror observeroutside the Fiji fisheries waters and causes him or her to disembarkoutside the jurisdiction of Fiji, shall be liable for all costs of repatriationincluding board and lodging while out of Fiji and direct transportation toFiji.

(7) Subject to subsection (5), any person whocommits an offence against this section shall be liable on convictionto a finenot less than $1,000 and not more than $2,000.

Identificationof authorised officers and observers

73. An authorised officer or observer whenexercising any of the powers conferred on him or her by this Decree shall onrequest produce identification to show he or she is an authorised officer orobserver.

MobileTransceiver Units–VesselRequirements

74.—(1) The operator of each fishing vessel licensed or authorised to fishpursuant to thisDecree shall be required, as a condition of its licence orauthorisation, to install, maintain, operate, and consent tothe monitoringduring the licence period, of an approved mobile transceiver unit (MTU) at alltimes while in Fijifisheries waters and beyond Fiji fisheries waters or suchother area as may be agreed or designated, and in accordance with—

(a) themanufacturer’s specifications andoperating instructions; and

(b) suchother requirements as may be prescribed.

(2) The operator of each vessel referred to insubsection (1) shall ensure that—

(a) noperson tampers or interferes with the MTU and that the MTU is not altered,damaged, disabled orotherwise interfered with;

(b) the MTUis not moved from the required or agreed installed position or removed withoutthe priorwritten permission of the Director;

(c) the MTUis switched on and is operational at all times when the vessel is within Fijifisheries waters

and beyond Fiji fisheries waters during the periodof validity of the licence or authorisation;

(d) uponnotification by the Director that the vessel’s MTU has failed to transmit, the directives of thePermanentSecretary are complied with until such time that the vessel’s MTU is functioning properly; and

(e) the MTUis registered as the Director may direct or as may be prescribed, at theoperator’s expense.

(3) The operator of each vessel referred to insubsection (1) or his or her authorised agent, upon notification by thelicensing country of appropriate authority that the vessel’s MTU has failed to report, shall ensure thatreportscontaining the vessel’s name, call sign, position (expressed in latitude and longitude to minutesof arc), and date and time for the report, are communicated to a delegatedauthority.

(4) Such communication must be made at intervals of4 hours or such shorter period as specified by the delegated authority,commencing from the time of notification of failure of the MTU.

(5) Such reports must continue until such time asthe MTU is confirmed operational by the licensing countryor appropriateauthority provided the time between the notification of the failure and theconfirmed operation of the MTU does not exceed sixty days.

(6) If it is not possible to make any one or moreof the further position reports described in subsections (3), (4)and (5) above,or when the Director so directs, the master of the vessel must immediately stowthe fishing gear andtake the vessel directly to a port identified by theDirector, and as soon as possible, report to the Director that the vessel isbeing, or has been, taken to port with gear stowed.

(7) Any operator, including the master, owner andcharterer, who does not comply with this section commits anoffence and shall beliable on conviction to a fine not less than $10,000 and not more than$100,000, and in additionthe applicable licence and authorisation shall becancelled.

VesselMonitoring System Information

75.—(1) Ownership of all vessel monitoring system information generated by anMTU required and operating under section 74 is vested in the State.

(2) All vessel monitoring information shall beclassified as confidential information, and shall be subject to suchproceduresas may be prescribed.

(3) Any person who divulges information from avessel monitoring system, to any person or persons not authorizedto receivesuch information commits an offence and shall be liable on conviction to a finenot less than $10,000 andnot more than $20,000.

 

PART 7—PORT MEASURES, TRANSHIPMENT AND OTHER SERVICES

Port measures

76.—(1) The Permanent Secretary may, in his or her discretion deny entry into aport where the PermanentSecretary has reasonable grounds to suspect that avessel seeking entry into port has engaged in illegal, unreported andunregulated fishing or fishing related activities in support of illegal,unreported and unregulated fishing.

(2) The Permanent Secretary may also deny entryinto port where the Permanent Secretary is aware that a vessellisted in alisting adopted by a regional fisheries management organisation to which Fijiis a member or cooperatingnon-member, has engaged in illegal, unreported andunregulated fishing or fishing related activities in support ofillegal,unreported and unregulated fishing.

(3) Notwithstanding subsection (1), authorisationfor such a vessel to enter a port may be given—

(a) exclusivelyfor the purpose of inspecting it and taking other appropriate actions inconformity withinternational law which are at least as effective as denial ofport entry in preventing, deterring and eliminating illegal, unreported andunregulated fishing and fishing related activities in support ofillegal,unreported and unregulated fishing; or

(b) in theevent of force majeure or distress a vessel under such circumstances may enterand remain in theinternal waters of Fiji for such period as is necessary forthe purposes of obtaining the food, fuel, andother goods and services necessaryto enable the vessel to proceed safely and directly to a port outsideFiji.

(4) The Permanent Secretary in liaison with therelevant agencies may prohibit from entering a port of Fiji avessel which hasbeen sighted as being engaged in or supporting fishing in contravention of theconservation andmanagement measures of a regional or sub regional fisheriesorganisation and whose flag State is not a member of nora cooperating noncontracting State to that sub regional or regional fisheries organisation,unless it can be establishedthat the catch on board has been taken in a mannerconsistent with relevant conservation and management measures.

(5) Such a prohibition may apply to an individualvessel or to a category of vessels.

(6) The Permanent Secretary may in addition providefor any of the matters referred to in this section by noticein the Gazette.

(7) References to ports in this section includeoffshore terminals and other installations for landing, transhipping, refuellingor resupplying vessels.

(8) Any person who fails to comply with theprovisions of this section or with any regulations or orders ornotices made inaccordance with its provisions commits an offence and shall be liable to a finenot less than $20,000and not more than $100,000.

Port Samplingand Monitoring

77.—(1) A port sampling and monitoring programme shall be established by thePermanent Secretary for the same purposes for which the observer programme insection 68 is established.

(2) The Permanent Secretary may require as acondition of a licence issued under this Decree or an internationalagreement,that where a fishing vessel undertakes a fishing trip in Fiji fisheries waters,whether or not the trip terminatesat a port located in fisheries waters, theoperator of such fishing vessel or carrier vessel shall comply with suchportsampling and monitoring requirements as the Permanent Secretary may directat the port where the fish are landed.

(3) The Permanent Secretary shall require as acondition of the use of a designated port or other facilities in Fijiby anyfishing vessel, that such vessel complies with such port monitoringrequirements as the Permanent Secretarymay direct at the port where the fishare landed.

(4) Port sampling and monitoring shall be carriedout in such place or places, within or beyond Fiji fisherieswaters and inrespect of such vessel or vessels as the Permanent Secretary may determine.

(5) Where the Permanent Secretary designates port sampling and monitoringto take place in areas beyond Fiji fisheries waters, he or she shall, prior tocommencement of the port sampling −

(a) ensure that the requirement for such port samplinghas been agreed by the operator of the vesselthrough acceptance of a licencecondition, international agreement or other means; and

(b) ensure that approval is obtained from theresponsible authorities of the State in which such port islocated.

(6) An operator, who does not comply with anyrequirement given by the Permanent Secretary in accordancewith subsections (2)and (3) commits an offence and shall be liable upon conviction to a fine notless than $10,000and not more than $20,000, in addition the applicable licenceshall be cancelled and no further licence shall be issuedfor at least one yearfrom the time the offence in respect of the vessel or operator was committed.

Landing,Transhipment, Bunkering and Provisioning

78.—(1) Unless otherwise prescribed, the Director shall authorise any landing,transhipment, bunkering orprovisioning involving any vessel in Fiji fisherieswaters or in a port of Fiji in accordance with any applicable accessagreement,fisheries management agreement, and any requirement which may be prescribed.

(2) The Director shall attach such conditions asmay be prescribed and may attach additional conditions as heor she thinks fitwhich are consistent to any condition which may be prescribed, to anyauthorisation granted undersubsection (1).

(3) The master, owner, charterer or operator of thevessel authorised in accordance with this section shall complywith allapplicable laws of Fiji and any conditions of such authorisation.

(4) The Director may suspend or revoke suchauthorisation if there is failure to comply with the conditions oftheauthorisation or the requirements of this Decree.

(5) Any person who undertakes any landing,transhipment, bunkering or provisioning activity in respect of afishing vesselwithout an authorisation issued pursuant to this section, commits an offenceand shall be liable onconviction to a fine not less than 10,000 and not morethan $20,000.

 

PART 8—JURISDICTION AND EVIDENCE

Jurisdictionand standing

79.—(1) Any act or omission in contravention of any of the provisions of thisDecree, in such places and to suchpersons to whom this Decree applies shall bedealt with and judicial proceedings taken as if such act or omissionhad takenplace in Fiji within the jurisdiction of the High Court.

(2) Where an authorised officer or observer islawfully exercising any powers conferred under this Decreebeyond Fiji fisherieswaters or, unless the applicable treaty, multilateral access agreement, orcommercial accessagreement provides otherwise, any person that commits any actor omission, which if committed within Fiji fisherieswaters would be an offenceagainst this Decree, then the exercise of those powers or the commission ofthat act oromission shall be deemed to have been committed within the competentjurisdiction of the High Court as describedin subsection (1).

(3) Any act or omission on the high seas by aperson referred to in subsection (1), which if committed within Fijifisherieswaters would be an offence against Part 5 of this Decree shall be deemed tohave been committed withinthe competent jurisdiction of the High Court asdescribed in subsection (1).

(4) Where any regulation or licence conditionrequires specifically or incidentally the reporting of any fact whilea vesselis on the high seas then proceedings may be taken in respect of any failure toreport or the misreporting ofsuch fact as if it had occurred within Fijifisheries waters and shall be deemed to have been committed within thecompetentjurisdiction of the High Court as described in subsection (1).

(5) Notwithstanding any provision of any statutoryenactment an information or charge in respect of any offenceagainst this Decreemay be laid at any time within two years of the commission of the offence.

(6) No prosecution or proceedings in the High Courtfor an offence against this Decree may be commencedexcept by the State.

Liability fornon-payment of penalties

80. All pecuniary penalties and all forfeituresincurred or imposed pursuant to this Decree, and the liability toforfeiture ofany article seized under the authority thereof, and all rents, charges, expensesand duties and all othersums of money payable under this Decree may be suedfor, determined, enforced and recovered by suit or otherappropriate civilproceedings in the name of the Attorney General as the nominal plaintiff, andall such proceedingsshall be deemed to be civil proceedings.

Liability forloss, damage or costs incurred

81. A person who commits an offence against thisDecree may, upon conviction, be held liable to the State for—

(a) any lossor damage caused by the offence;

(b) anycosts incurred in detecting, apprehending, investigating or prosecuting theoffence; and

(c) anycosts incurred in detaining or seizing any property, fish, article or thing inrespect of that offence, and the amount of compensation for such loss, damageor costs may be awarded by the Court as restitution in addition to, andrecovered in the same manner as a fine.

Certificateevidence

82. The Permanent Secretary or any persondesignated in writing by him or her may give a certificate statingthat—

(a) aspecified vessel or person was or was not on a specified date or dates theholder of any specifiedlicence, authorisation or certificate of registration;

(b) anappended document is a true copy of the licence, authorisation or otherdocument granted or issuedunder this Decree and that specified conditions wereattached to such document;

(c) aparticular location or area of water was on a specified date or dates within thefisheries waters, orwithin a closed, limited, restricted or in any other waycontrolled area of the Fiji fisheries waters, oran area of the Fiji fisherieswaters subject to specified conditions;

(d) anappended chart shows the boundaries on a specified date or dates of the Fijifisheries waters,territorial sea, closed or limited areas or other areas orzones delineated for any specified purpose;

(e) aparticular item or piece of equipment is fishing gear;

(f) causeand manner of death of or injury to any fish;

(g) Anappended document is a true copy of an access agreement, fisheries managementagreement orother bilateral or multilateral legal instrument to which Fiji is aparty;

(h) a callsign, name or number is that of or allotted under any system of naming ornumbering of vesselsto a particular vessel;

(i) aspecified vessel does or does not have good standing on the regional registeras declared in anappended copy of a statement signed by the Director-General ofthe Pacific Islands Forum FisheriesAgency;

(j) anappended position or catch report was given in respect of a specified vessel;

(k) aspecified vessel, mobile transceiver unit or other item fulfils or does not fulfilregistration requirementsunder this Decree, an applicable access agreement orinternational conservation and managementmeasures as declared in an appendedcopy of a statement signed by the administrator of such register;

(l) anappended document is a true certificate of a specified measuring device;

(m) anoffence was committed against the laws of another State, as declared in anappended copy of astatement signed by competent authorities of such State;

(n) internationalconservation and management measures as defined in this Decree are in force asdeclaredin an appended copy of a statement signed by the Permanent Secretary, orequivalent, of theorganisation or arrangement which adopted such measures;

(o) acertification as to the condition of fish given under this Decree was made inaccordance with this Actand was made by the person who is signatory to thecertificate;

(p) aphotograph is a true and accurate representation of what it is meant torepresent;

(q) aphotograph was taken by a specified person;

(r) anyspecified return, log, record or information required to be kept or furnishedunder this Decree wasor was not kept or furnished; or

(s) anyspecified interest in any specified fishing right was or was not held by aperson named in thecertificate.

Certificate asto location of vessel sufficient evidence

83.—(1) Where in any proceedings under this Decree the place or area in which avessel is alleged to have beenat a particular date and time or during aparticular period of time is material to an offence charged then a place orareastated in a certificate given by an authorised officer shall be evidence,unless the contrary is proved, of the placeor area in which the vessel was atthe date and time or during the period of time stated.

(2) An authorised officer shall in any certificatemade under subsection (1) state—

(a) his orher name, address, official position, country of appointment and the provisionunder whichthey were appointed;

(b) the nameand, if known, call sign of the fishing vessel concerned;

(c) the dateand time or period of time the vessel was in the place or area;

(d) theplace or area in which it is alleged the vessel was located;

(e) theposition fixing instruments used to fix the place or area stated in (d) andtheir accuracy withinspecified limits;

(f) adeclaration that the authorised officer checked the position fixing instrumentsa reasonable timebefore and after they were used to fix the position andwhether they appeared to be working correctly; and

(g) if aposition fixing instrument which is not judicially recognised as notoriouslyaccurate or a designatedmachine is used, a declaration that he checked theinstrument as soon as possible after the timeconcerned against such aninstrument.

(3) For the purposes of this section “authorised officer” shall include fisheries enforcement officers, surveillanceofficersand those charged with similar responsibilities in other countries, and high seasinspectors duly authorizedunder a multilateral arrangement or agreement towhich Fiji is party.

MobileTransceiver Units – Evidence

84.—(1) All information or data obtained or ascertained by the use of an MTUshall be presumed, unless thecontrary is proved, to—

(a) comefrom the vessel so identified;

(b) beaccurately relayed or transferred;

(c) be givenby the master, owner and charterer of the vessel.

(2) Evidence may be given of information and dataso obtained or ascertained under subsection (1) whetherfrom a printout orvisual display unit.

(3) The presumption in subsection (1) shall applywhether or not the information was stored before or after anytransmission ortransfer.

(4) A MTU installed and operated in accordance withthis Decree shall be judicially recognised as notoriouslyaccurate.

(5) An authorised officer or other personauthorised in writing by the Permanent Secretary may give a certificatestating—

(a) his orher name, address and official position;

(b) that heor she is competent to read the printout or visual display unit of any machinecapable ofobtaining or ascertaining information from an MTU;

(c) the dateand time the information was obtained or ascertained from the MTU and thedetails thereof;

(d) the nameand call sign of the vessel on which the MTU is or was located as known to himor her, or asascertained from any official register, record or other document;and

(e) a declarationthat there appeared to be no malfunction in the MTU, its transmissions, orother machinesused in obtaining or ascertaining the information.

Photographicevidence

85.—(1) Where a photograph is taken of any fishing or related activity and simultaneouslythe date, time andposition from which the photograph is taken are superimposedupon the photograph then it shall be presumed unlessthe contrary is proved thatthe photograph was taken on the date at the time and in the position soappearing.

(2) The presumption set out in subsection (1) aboveshall only arise if—

(a) thecamera taking the photograph is connected directly to the instruments whichprovide the date, timeand position concerned; and

(b) thephotograph was taken by an authorised officer or observer or under theirsupervision.

(3) Any authorised officer or observer who takes aphotograph of the kind described in subsection (1) may givea certificateappending the photograph stating—

(a) his orher name, address, official position, country of appointment, and provisionunder which he orshe is appointed;

(b) the nameand call sign, if known, of any fishing vessel appearing in the photograph;

(c) thenames of the camera, watch or clock or other instruments supplying the date,time and positionfixing instrument and a declaration that he or she checkedthose instruments a reasonable time beforeand after the taking of thephotograph and, if necessary, in accordance with subsection (2)(b) andwhetherthey all appeared to be working correctly;

(d) thematters set out in subsection (2)(a) and (b); and

(e) theaccuracy of the fixing instrument used within specified limits.

Validity andprocedures for certificates

86.—(1) Unless the contrary is proved, a document purporting to be acertificate issued under this Part shall bedeemed to be such a certificate andto have been duly given.

(2) Where a certificate given under this Part—

(a) isserved upon a defendant 28 or more days before its production in court in anyproceedings underthis Decree; and

(b) thedefendant does not, within seven working days of the date of service, servenotice of objection andthe grounds therefore in writing upon the prosecutor,thenthe certificate shall, unless the Court finds the defendant is unduly prejudicedby the failure to object, beconclusive proof of all the facts averred in it.

(3) Where—

(a) acertificate is served less than 28 days before its production in court;

(b) awritten notice of objection and the grounds therefore is served upon theprosecutor within 7 days ofservice of the certificate on the defendant; or

(c) theCourt finds the defendant is unduly prejudiced by the failure to object,thenthe certificate shall, unless the contrary is proved, be prima facie evidenceof all the facts averred in it.

(4) Any omission from or mistake made in anycertificate issued under this Part shall not render it invalid unlessthe courtconsiders such omission or mistake is material to any issue in the proceedingsconcerned, or the defendantis unduly prejudiced thereby.

(5) Where in any proceedings a certificate issuedunder this Part is produced to the Court, the prosecution shallnot be obligedto call the maker of the certificate and the court shall, where material, relyon the facts therein unlessthe contrary is proved.

GeneralPresumptions

87.—(1) All fish found on board any fishing vessel which has been used in the commissionof any offence underthis Decree shall be presumed to have been caught in thecommission of that offence, unless the contrary is proved.

(2) Where, in any legal proceedings under thisDecree, the place in which an event is alleged to have taken placeis in issue,the place stated in the relevant entry in the logbook or other official recordof any enforcement vessel oraircraft as being the place in which the event tookplace shall be presumed to be the place in which the event tookplace, unlessthe contrary is proved.

(3) Prima facie evidence of an entry in a logbookor other official record of an enforcement vessel or aircraftmay be given bythe production of a written copy or extract of the entry certified by anauthorised officer as a truecopy or accurate extract.

(4) For the purposes of any proceedings under thisDecree, the act or omission in fishing activity related to thatvessel shall bedeemed to be also that of the operator and master of the vessel.

(5) Any entry in writing or other mark in or on anylog, chart or other document required to be maintained underthis Decree or usedto record the activities of a fishing vessel shall be deemed to be that of theoperator and masterof the vessel.

(6) Where in any legal proceedings for an offenceunder this Decree—

(a) anauthorised officer gives evidence on reasonable grounds to believe that any fishto which the chargerelates were taken by the use of driftnets; or

(b) theCourt considers that, having regard to the evidence, the grounds arereasonable,the fish shall be presumed to have been so taken, unless thecontrary is proved.

(7) Where in any legal proceedings for an offenceunder this Decree—

(a) anauthorised officer gives evidence of reasonable grounds to believe that anyfish to which the charge

relates were taken in a specified area of the Fijifisheries waters; or

(b) theCourt considers that, having regard to that evidence the grounds arereasonable,the fish shall be presumed to have been so taken, unless thecontrary is proved.

(8) In any proceeding for an offence against thisDecree, an allegation made by the informant in any informationor chargerelating to whether or not any person was the operator or master of any vesselshall be presumed to be truein the absence of proof to the contrary.

Presumption asto authority

88. A return, log, record or other informationpurporting to be made, kept or furnished by or on behalf of anyperson shall,for the purposes of this Decree, be deemed to have been made, kept or furnishedby that person or bythat person’s authority unless the contrary is proved.

Absolute liability

89. In any prosecution for any offence against thisDecree it shall not be necessary for the prosecution to prove that thedefendant intended to commit an offence.

Liability ofDirectors and Managers

90. Where any body corporate is convicted of anoffence against this Decree, every director and every personconcerned in themanagement of the body corporate shall be guilty of a like offence if it isproved that the act thatconstituted the offence—

(a) tookplace with the person’s authority, permission, or consent; or

(b) that theperson knew or should have known that the offence was to be or was beingcommitted; and

(c) failedto take all reasonable steps to prevent or stop it.

Liability ofprincipal for actions of agent in relation to records and returns

91.—(1) Where a principal is required by or under this Decree to—

(a) keep anyaccount, log or record;

(b) furnishany return, log or information;

(c) completeany form; or

(d) take anyaction in relation to the keeping of any account, log or record or thefurnishing of any return,log or information or the completing of any form,everyact or omission of any person acting or purporting to act as agent for the principalin respect of any suchrequirement shall be deemed for the purposes of thisDecree to be the act or omission of the principal.

(2) Notwithstanding subsection (1), where theprincipal proves that the person purporting to act as agent had noexpress orimplied authority, to act as the principal’s agent for the purpose of any act listed undersubsection (1), theprincipal shall not be held liable.

(3) For the purposes of this section a person mayact as an agent for a principal whether or not that person isemployed by theprincipal and whether or not acting for reward.

Liability ofcompanies and persons for actions of officers and employees

92. Any act or omission of any officer or employeeof a person, master or any member of the crew of a vesselowned, chartered orleased by the person for the purpose of engaging in fishing, shall be deemedfor the purposes ofthis Decree, to be the act or omission of the person.

Interferencewith Evidence

93.—(1) No person shall destroy, throw overboard, conceal or abandon any fish,fish product, fishing gear, net orother fish appliance, log, return, record,document, electric shock device, explosive, poison or other noxious substance,orany other thing with intent to avoid seizure or the detection of an offenceagainst this Decree.

(2) Any person who contravenes subsection (1)commits an offence and shall be liable on conviction to a finenot less than$20,000 and not more than $50,000 or to imprisonment of 6 months, or to both.

Liability ofMaster and Operator

94.—(1) Where an offence against this Decree has been committed by any personon board or employed on afishing vessel, the master of the vessel shall also beguilty of the offence.

(2) Where an operator of a fishing vessel chargedwith an offence under this Decree is neither resident norphysically present inFiji at the time when the vessel was first arrested, or at any time after thearrest any corporateentity operating under the laws of Fiji, with which suchoperator is connected as an officer, director, or chief executiveofficer shallbe deemed to be the operator, and legal proceedings may be taken in accordancewith this Decree, andsuch operator may be charged, prosecuted, convicted andfined as appropriate.

Forfeiture andsuspension of fishing rights, licences

95. Where any person is convicted of an offenceunder this Decree the High Court may forfeit or suspend forsuch period as theCourt considers appropriate, any applicable fishing right, licence,authorisation, or permit.

Banning Order

96.—(1) Where any person who is convicted of an offence against this Decree orany regulation made underthis Decree and within 7 years from the date of thatconviction is convicted on another occasion of the same or anyother offenceagainst this Decree or any regulation made under this Decree, the Court may, inaddition to any otherfine or penalty provided under this Decree, make an orderprohibiting that person from engaging in—

(a) fishing;

(b) fishingrelated activities; and

(c) anyother activity as may be provided for under this Decree.

(2) Any person who contravenes an order made undersubsection (1) or the master of a fishing vessel who hasaboard a person heknows is banned under subsection (1) commits an offence and shall be liable onconviction to afine not less than $50,000 and not more than $100,000.

 

PART 9—OFFSHORE FISHERIES FIXED PENALTY NOTICE

OffshoreFisheries Fixed Penalty Notice

97.—(1) A Fisheries Officer or authorised officer—

(a) issue anOffshore Fisheries Fixed Penalty Notice as set out in Schedule 1 of thisDecree; or

(b) institutelegal proceedings under the provisions of this Decree,against a person for anyoffence committed under this Decree.

(2) Pursuant to subsection (1), where an OffshoreFisheries Fixed Penalty Notice served upon a person is notcomplied with within21 days of the notice being issued, the notice shall be regarded for all purposesas a summonissued under the provisions of the Criminal Procedure Decree.

(3) A Fisheries Officer or authorised officer whoissues an Offshore Fisheries Fixed Penalty Notice undersubsection (1) shallduly notify the Permanent Secretary in writing within 14 days of the issuanceof such notice.

ProceedingsOffshore Fisheries Fixed Penalty Notice

98.—(1) Notwithstanding any other requirement of the Criminal Procedure Decree,an authorised officer mayinstitute proceedings in respect of the allegedcommission of an offence by serving personally upon the personalleged by him orher to have committed the offence, an Offshore Fisheries Fixed Penalty Noticeas in Schedule 1.

(2) A Offshore Fisheries Fixed Penalty Notice shallcomply with the following requirements—

(a) statethe place, date and time of alleged offence;

(b) statethe name and address of the person to whom the notice is issued;

(c) notifythe person to whom the notice is issued when and where the fixed penalty may bepaid;

(d) requirethe person to whom the notice is issued to pay the amount due within 21 daysand in the eventof failure to pay the fixed penalty, legal proceedings shall beinstituted within the next 14 days and theperson may have a barrister andsolicitor to represent them or enter a written guilty plea;

(e) notifythe person to whom the notice is issued that, in case of default in paymentwithin the timespecified in the notice, the court may, if the person is foundguilty by the court, impose a penalty whichis more than the fixed penalty forthe offence or if unable to pay apply section 37 (1) and (2) of theSentencingand Penalties Decree 2009; and

(f) shallbear the date on which it was served on the person charged as the caserequires.

(3) The authorised officer or Fisheries Officer whoissues an Offshore Fisheries Fixed Penalty Notice shall causea signed copy ofthat notice to be placed before the court specified in the notice not laterthan 7 days after the dateof the notice.

(4) Nothing in this section shall be taken toprevent the institution of proceedings under any other provision ofthis Decree.

PART 10  SALE,RELEASE AND FORFEITURE OF RETAINED PROPERTY

Forfeiture ofproperty on conviction

99.—(1) On the conviction of any person for an offence against this Decree forwhich the maximum penaltyis a fine of $500,000 or more, the High Court shall inaddition to imposing any fine order that the following shallbe forfeited to theState unless the Court for special reasons relating to the offence thinks fitto order otherwise—

(a) anyproperty used in respect of the commission of the offence ;

(b) any fishfound onboard any foreign vessel at the time it was seized or detained pursuantto this Decreeand in any other case any fish in respect of which the offencewas committed;

(c) anyproceeds from the sale of such property or fish pursuant to section 58 of thisDecree; and

(d) anyfishing gear in respect of which the offence was committed,

whether or not seized pursuant to this Decree.

(2) On the conviction of any person for an offenceagainst this Decree (not being an offence referred to insubsection (1) orsubsection (3), the High Court may in addition to imposing any fine order thatany of the followingshall be forfeited to the State—

• any property used in respect of the commission ofthe offence;

• any fish in respect of which the offence wascommitted;

• any proceeds from the sale of such property orfish pursuant to section 58 of this Decree; and

• any fishing gear in respect of which the offencewas committed,whether or not seized pursuant to this Decree.

(3) On the conviction of any person for an offenceagainst this Decree for which the maximum penalty is a finenot exceeding$500,000 the High Court may in addition to imposing any fine order that any ofthe following shallbe forfeited to the State—

(a) any fishin respect of which the offence was committed;

(b) anyproceeds from the sale of such fish pursuant to section 58; and

(c) anyfishing gear in respect of which the offence was committed,whether or notseized pursuant to this Decree.

Application ofbond

100.—(1) Upon the making of an order for forfeiturepursuant to this Decree, the High Court may, upon applicationof the PermanentSecretary, make an order that any bond or security given in respect of thatforfeited property or fishshall be applied as follows and in this order—

(a) thedischarge of the property or fish ordered forfeited under section 99;

(b) thepayment of all fines or penalties imposed in respect of the offences givingrise to the forfeitureordered; and

(c) thedischarge of all orders for restitution of any loss, damages or costs madeunder section 99.

(2) Where any monies recovered in respect of anorder for restitution made pursuant to this Decree relate tofuel costs incurredby any State vessel or other craft, those monies shall be paid into theappropriate fuel accountmaintained in respect of that vessel, craft or itsreplacement or substitute, and shall be applied for the purpose ofreplacementfuel.

Removal ofseized goods

101. Where any property or other item held orconfiscated or forfeited under this Decree has been unlawfullyremoved from thecustody of the State such item shall be liable for seizure at any time withinFiji fisheries waters.

Disposal offorfeited goods

102.—(1) Any property, fish or other item ordered to beconfiscated or forfeited under this Decree may, at theexpiry of the timelimited for appeal and if no appeal is lodged, be disposed of in such manner asthe PermanentSecretary may direct.

(2) Any property, fish or other item seized underthis Decree or any monies held pursuant to this Decree but notforfeited in anylegal proceedings may be held by the State until all fines, orders for restitutionor costs and penaltiesimposed under this Decree have been paid within the timeallowed.

(3) Where there is a failure to make paymentswithin the time allowed, any such property, fish or other itemseized shall besold and the balance of the proceeds released after deduction of all fines,orders for costs, penaltiesimposed under this Decree and costs of sale.

Removal of itemin custody

103.—(1) Any person who removes any vessel, vehicle,aircraft or other item held in the custody of the Stateunder this Decreecommits an offence and shall be liable on conviction to a fine not less than$10,000 and not morethan $20,000 or to imprisonment for a term of 3 months, orto both.

(2) It is not a defence to an offence committedunder subsection (1) that the offender did not have knowledgethat the vessel,vehicle, aircraft or other item was held in the custody of the State at thetime he or she removed it.

 

PART 11—REGULATIONS

Regulations

104.—(1) The Minister may make such Regulations as maybe necessary to give effect to the provisions of thisDecree and for dueadministration.

(2) Without limiting the generality of subsection(1), Regulations made pursuant to this section may provide forall or any of thefollowing—

(a) prescribingmeasures for the conservation, management, development and regulation offisheries orany particular fishery;

(b) licensing,authorisation or registration in respect of any vessel or class or category ofvessels to beused for fishing, related activities or any other purpose pursuantto this Decree, including the form,issuance requirements, grounds for denial,terms, conditions and fees, charges, royalties, and otherforms of compensationrelated to such licensing, authorisation or registration;

(c) licensing,authorisation or registration in respect of any fisherman or class offisherman, fishing gearand other equipment or device used for fishing;

(d) theoperation of, and conditions and procedures observed by any licenced foreignfishing vessel;

(e) theoperation of, and conditions and procedures to be observed by any other vesselwhich may enterFiji fisheries waters for any purpose;

(f) thecatching, loading, landing, handling, transhipping, transporting, possessionand disposal of fish;

(g) theimport, export, distribution and marketing of fish and fish products, includinglive fish;

(h) themanner in which any fishing gear is to be stowed;

(i) theappointment, powers and duties of authorised officers, observers, and portsamplers and monitors;

(j) theduties and procedures to be followed by the master and crew of any vessel inrespect of authorizedofficers, observers and port samplers and monitors;

(k) rewardsto be paid to any person providing information on the operations of fishingvessels leading toa conviction of an offence against this Decree;

(l) thelicensing, control and use of fish aggregating devices and the rights to theaggregated fish,prescribing times and the minimum distances from such devicesthat any vessel may fish around;

(m) standardsand measures for the safety of Fiji fishermen and Fiji fishing vessels;

(n) requiringthe provision of statistical and other information related to fisheries;

(o) mattersrelating to the control, inspection and conditions of operation of fishprocessing establishments;

(p) theprevention of marine pollution;

(q) theappointment, maintaining of and procedures for agents appointed to receive andrespond to processpursuant to this Decree;

(r) theimplementation of any access or related agreement or other agreement orarrangement entered intopursuant to this Decree;

(s) regulatingor prohibiting the use of fish aggregating devices;

(t) regulatingconduct and management of test or exploratory fishing including but not limitedto reporting

requirements, gear and equipment trials andapplicable fees;

(u) therequirement for the reporting of any new fish species in Fiji fisheries waters;

(v) regulatingthe recreational or sport fishery;

(w) prescribingoffences against the regulations and penalties for such offences, not exceedinga fine of$100,000 and, where the offence is a continuing one, a further finenot exceeding $1,000 for every daythat the offence has continued; and

(x) prescribingany other matter, which is required or authorised to be prescribed by thisDecree.

(3) The Minister may provide for the establishmentof a regime of statutory fishing rights, and in doing so maymake Regulations onthe following matters—

(a) themethod of applying for a right of access or quota share;

(b) theidentification of criteria for determining those eligible to apply for astatutory fishing right;

(c) thenature of a statutory fishing right;

(d) theduration of a statutory fishing right;

(e) thecriteria for adjusting the fishing rights allocated from one period to anotherdue to fluctuations inthe availability of the stocks to which the rightsrelate;

(f) determiningwhether the statutory fishing right shall be inheritable, leasable, saleable,or divisible;

(g) thenumber of rights or quota any person or company may hold at any one time;

(h) themethod of calculation of any quota which may be expressed as part of the TotalAllowable Catchor the Total Allowable Catch for a particular species; and

(i) thecircumstances in which a statutory fishing right may lapse, be reduced, suspended,reallocated orcancelled.

(4) For the purpose of promoting the effectivenessof conservation and management measures adopted by subregional, regional orglobal fisheries management organisations, treaties or arrangements, theMinister in consultationwith relevant agencies may make Regulations concerningthe following matters—

(a) thedesignation and publication of ports to which foreign fishing vessels may bepermitted access;

(b) thetraining, qualification and designation of port inspectors;

(c) conditionsfor access to and use of ports by foreign fishing vessels including but notlimited to the feespayable, reporting and monitoring requirements;

(d) establishingprocedures, the contents of and results to be obtained from an inspectionregime, includingthe adoption of port measures adopted by a sub regional,regional or global fisheries organisation,treaty or arrangement;

(e) prescribingthe powers of inspectors, mode of conducting an inspection, including the powertoinspect any area of the fishing vessel, catch, whether processed or not, anyfishing gear, equipmentor other gear and document which the inspector deemsnecessary to verify compliance with relevantinternational conservation andmanagement measures;

(f) requiringthe provision of such assistance or information as may be needed in order toundertakeinspections;

(g) requiring,prior to allowing port access to a fishing vessel, that such vessel providessuch noticeas may be prescribed prior to entering a port or the fisherieswaters for the purpose of port access,including vessel identification, anyauthorisation to fish, information on its fishing trip and vesselmonitoringsystems, quantities of fish on board and such other documentation orinformation as mayprescribed;

(h) regulatingor prohibiting the landing, packaging or processing of fish, including theprohibition ofport access of a vessel which has been identified or reported ashaving been engaged in or supportingfishing activities in contravention withsub regional, regional or global conservation measures, orwhere there arereasonable grounds for presuming that a vessel has been engaged in suchactivity;

(i) regulatingor prohibiting port access of a vessel that has been included on the list ofvessels that arebelieved to have engaged in illegal, unregulated or unreportedfishing maintained by sub-regional,regional or global fisheries organisationsto which Fiji is a member;

(j) regulatingor prohibiting the landing, packaging or processing of fish, including theprohibition ofport access of a vessel which has been identified or reported ashaving been engaged in or supportingfishing activities in areas under nationaljurisdiction in contravention of the laws of a State, or fishingon the highseas without an authorisation to do so from its flag state or where there arereasonablegrounds for presuming that a vessel has been engaged in suchactivity;

(k) authorisingthe cooperation and exchange of information, including inspection results withotherStates and sub regional, regional or global fisheries organisations;

(l) providingfor a system of appeal against decisions taken in respect of fishing vesselsunder this section;and

(m) providingfor any other measures that may be agreed to by sub-regional, regional orglobal fisheriesorganisations, treaty or arrangement to which Fiji is a party.

 

PART 12—MISCELLANEOUS

Prosecution byFisheries Officer

105. Subject to the authorisation of the PermanentSecretary, a Fisheries Officer may lay information and conductprosecutions forfisheries offences pursuant to prescribed rules and procedures, and the Statemay sue for and recoverfees, levies and charges due and payable under thisDecree.

Generaloffences and penalties

106.—(1) Every person who acts in contravention of orfails to comply with any provision under this Decree,or any notice, direction,restriction, requirement, or condition given, made, or imposed under thisDecree other thana requirement to pay a sum of money, commits an offence.

(2) Every person who commits an offence againstthis Decree for which no other penalty is prescribed shall beliable onconviction to a fine not less than $5,000 and not more than $50,000 and, if theoffence is a continuing one,to a further fine not exceeding $1,000 for everyday after the first day on which the offence has continued.

(3) Nothing in subsection (1) shall apply to anyperson carrying out any duties or responsibilities imposed orrequired underthis Decree while acting in the capacity of an employee, agent orrepresentative of the State.

Duty ofconfidentiality

107.—(1) Any person carrying out duties orresponsibilities under this Decree, shall not unless authorised inaccordancewith this Decree, reveal information or other data of a confidential nature acquiredby virtue of their saidauthority, duties and responsibilities to any person nothaving such authority, duties and responsibilities.

(2) The Permanent Secretary may designate anyinformation as confidential, and in doing so may also exemptgeneral summariesof aggregated information from confidential requirements.

(3) The Permanent Secretary may authorise inwriting any person to—

(a) receiveor access confidential information; or

(b) accessor restrict access to such premises holding confidential information as he maydesignate.

(4) Notwithstanding subsection (2) the followinginformation shall be confidential—

(a) anyinformation or data of a commercial nature provided in records, returns, orother documentsrequired under this Decree;

(b) anyinformation or other data supplied by a vessel monitoring system in accordancewith this Decree;

(c) suchother information or data as may be prescribed from time to time.

(5) Information may be disclosed to the extent—

(a) that thedisclosure is authorised or required under this Decree or any other law;

(b) that theperson providing the information authorised its disclosure;

(c) necessaryto enable the Permanent Secretary to publish statistical information relatingto the fisheriessector; or

(d) necessaryto enable advice to be given to the Minister.

(6) The Permanent Secretary may authorise therelease of any information supplied by a vessel monitoringsystem relating tothe position of any vessel, upon request, to the responsible State agencies forpurposes includingsurveillance, search and rescue and other emergency, and mayauthorise the release of such other confidentialinformation for such purposes asmay be prescribed.

(7) Any person who violates the requirements ofthis section commits an offence and, in addition to any penalty, hisor herappointment or other authority under this Decree may be reviewed and terminatedby the appropriate authority.

Activitiescontrary to the laws of another State

108.—(1) Notwithstanding subsection (3), this sectionapplies to all persons, vessels, fishing, related and otheractivities to whichthis Decree has application.

(2) Subject to subsection (1), no person shall,within Fiji or in Fiji fisheries waters, on their own account or anyothercapacity—

(a) cause orpermit a person acting on his or her behalf; or

(b) use orpermit a vessel to engage in fishing or related activity,to take or to import,export, land, transport, sell, receive, acquire, buy any fish or fish producttaken, possessed,transported or sold in violation of any law or regulation ofanother State or of international conservation andmanagement measures.

(3) This section does not apply to fish taken on thehigh seas contrary to the law of another State where Fiji doesnot recognise thejurisdiction of that State over those fish.

(4) Any person who contravenes subsection (2)commits an offence and upon conviction shall be liable for afine not less than$500,000 and not more than $1,000,000 or to a term of imprisonment notexceeding 6 months, orto both.

(5) Where an international agreement with anotherState provides for a fine, penalty or other determination or anyportion of itto be remitted to that State upon conviction or other process pursuant to subsection(2), such remittanceshall be made after all costs and expenses incurred by theState have been deducted.

Repeal andsavings

109.—(1) The following provisions, hereinafter referredto as the repealed provisions, are hereby repealed—

(a) Section4 and subsection (4) of section 5 of the Fisheries Act (Cap. 158);

(b) Regulations4(A), 4(B), and 5(A) and the Seventh, Eighth and Ninth Schedule of theFisheriesRegulations;

(c) PartsIII and IV of the Marine Spaces Act (Cap. 158A); and

(d) MarineSpaces (Foreign Fishing Vessel) Regulations.

(2) Subject to subsection (3), all permits,licences granted or appointments made under the repealed provisions,valid andin force immediately before the coming into operation of this Decree, shallcontinue, on such coming intooperation, to have full force and effect for theterm for which they were granted or made or until they expire or arerevokedaccording to law as if the provisions under which they were granted or made hadnot been repealed.

(3) Where the Permanent Secretary is of the opinionthat any term or condition of any licence permit orauthorisation granted orappointment made under the repealed provisions is at variance with theprovisions of thisDecree to an extent which makes it unacceptable, he or sheshall by written notice—

(a) advisethe holder of the licence or permit or authorisation, the operator of thevessel in respect ofwhich a licence or permit or authorisation is granted, orthe person appointed, as the case may be, ofthe terms or conditions that isunacceptable;

(b) specifythe variation in any term or condition required to ensure compliance with thisDecree; and

(c) advisethat the variation shall apply in respect of the licence, permit orauthorisation, or appointment,as the case may be, with effect from a datespecified in the notice, unless or she receives notificationfrom the holder ofthe licence or permit, the operator of the vessel in respect of which thelicence orpermit is granted or the person appointed, as the case may be, thatsuch variation is unacceptable, inwhich case the licence, permit orappointment, as the case may be, shall cease to have effect from thedatespecified.

(4) Any agreement made under or in relation to therepealed provisions, which is substantially at variance withthe provisions ofthis Decree shall continue in full force and effect until the earliest possibledate of its re-negotiationor renewal according to its terms, at which time itshall be re-negotiated so as to ensure compliance with the provisionsof thisDecree.

Actions toabate

110. Unless otherwise provided in this Decree orany other law, nothing in this Decree shall affect any action orproceedingswhich was pending or existing by or against a person or body under the repealedprovisions, nor doesthe provisions of this Decree abate or discontinue, or anyway affect those actions or proceeding.

GIVEN UNDER MY HAND this 6th day of December 2012.

EPELI NAILATIKAU

PRESIDENT OF THE REPUBLICOF FIJI

 

 

OFFSHORE FISHERIES MANAGEMENT (AMENDMENT) DECREE2014

(DECREE NO. 4 OF 2014)

Short title andcommencement

1.—(1) This Decree may be cited as the OffshoreFisheries Management (Amendment) Decree 2014 and shall come into force on thedate of its publication in the Gazette.

(2) The Offshore Fisheries Management Decree 2012shall be referred to as the “Principal Decree”.

Section 12 amended

2. Section 12 of the Principal Decree is amended insubsection (1) by inserting “the Council,” after the words “In appointing themembers of”.

Section 25 amended

3. Section 25 of the Principal Decree is amended insubsection (6) by deleting “$5,000” and substituting with “$50,000”.

Section 26 amended

4. Section 26 of the Principal Decree is amended insubsection (3) by deleting “$20,000” and substituting with “$200,000”.

Section 27 amended

5. Section 27 of the Principal Decree is amendedin—

(a) section(1)(a) by deleting “34” and substituting with “32”; and

(b) section(1)(c) by deleting “34” and substituting with “32”.

6. Section 28 of the Principal Decree is amended insubsection (4) by deleting “$500,000” and substituting with “$50,000”.

Section 30 amended

7. Section 30 of the Principal Decree is amended insubsection (1) by deleting “section 32” and substituting with “sections 32 and34”.

Section 33 amended

8. Section 33 of the Principal Decree is amended insubsection (8) by deleting the words “not exceeding” and substituting with “notless than”.

Section 44 amended

9. Section 44 of the Principal Decree is amendedin—

(a) subsection(3) by deleting “34” and substituting with “32”; and

(b) subsection(4) by deleting “(1) or (2)” and substituting with “(2) or (3)”.

Section 62 amended

10. Section 62 of the Principal Decree is amendedin subsection (1) by deleting “57” and substituting with “52”.

Section 72 amended

11. Section 72 of the Principal Decree is amendedin subsection (7) by deleting “$1,000” and “$2,000” and substituting “$20,000”and “$50,000” respectively.

Given under my hand this 5th day of February 2014.

EPELI NAILATIKAU

President of the Republicof Fiji


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