Continental Shelf (Living Natural Resources) Act 1973 (Cth)

Continental Shelf (Living Natural Resources) Act 1973

No. 219 of 1973

AN ACT

Relating to the Living Natural Resources of the Continental Shelf.

[Assented to 20 December 1973]

BE IT ENACTED by the Queen, the Senate and the House of Representatives of Australia, as follows:—

Short title and citation.

1.(1) This Act may be cited as the Continental Shelf (Living Natural Resources) Act 1973.

(2) The Continental Shelf (Living Natural Resources) Act 1968 is in this Act referred to as the Principal Act.

(3) The Principal Act, as amended by this Act, may be cited as the Continental Shelf (Living Natural Resources) Act 1968-1973.

Commencement.

2.This Act shall come into operation on the day on which it receives the Royal Assent.

Parts.

3. Section 4of the Principal Act is repealed.

Interpretation.

4. Section 5 of the Principal Act is amended—

(a) by inserting in sub-section (1), before the definition of “commercial purpose”, the following definitions:—

“‘Australia’ includes—

(a) Norfolk Island;

(b) the Territory of Ashmore and Cartier Islands; and

(c) the Coral Sea Islands Territory;

‘Australian continental shelf’ means the continental shelf adjacent to the coast of Australia (including the continental shelf adjacent to Norfolk Island, the continental shelf adjacent to the Territory of Ashmore and Cartier Islands, and the continental shelf adjacent to the Coral Sea Islands Territory);

‘ Australian ship’ means a ship the operations of which are based on a place in Australia and that is wholly owned by a natural person who is a resident of, or by a company incorporated in, Australia, being a ship that—

(a) was built in Australia;

(b) has been lawfully imported into Australia, otherwise than for a limited period; or

(c) has been sold, or otherwise disposed of, in Australia after having been forfeited or distrained under this or any other Act or under a law of a State or Territory;”;

(b) by inserting in sub-section (1), after the definition of “continental shelf”, the following definition:—

“‘continental shelf of an external Territory’ means the continental shelf adjacent to an external Territory;”;

(c) by inserting in sub-section (1), after the definition of “controlled area”, the following definition:—

“‘Convention’ means the Convention entitled ‘Convention on the Continental Shelf’ signed at Geneva on 29 April 1958, being the Convention a copy of which in the English language is set out in Schedule 1 to the Petroleum (Submerged Lands) Act 1967-1973;”;

(d) by omitting from sub-section (1) the definition of “foreign ship” and substituting the following definitions:—

“‘external Territory’ means a Territory not forming part of Australia;

‘foreign ship’ means—

(a) in relation to the Australian Continental Shelf—a ship other than an Australian ship; and

 

(b) in relation to the continental shelf of an external Territory—a ship other than a ship that is a Territory ship in relation to that Territory;”;

(e) by omitting from sub-section (1) the definition of “officer” and substituting the following definition:—

“‘officer’ means—

(a) an officer or employee of Australia, of the Administration of a Territory or of an authority of Australia who is authorized in writing by the Secretary to the Department of Primary Industry, or by the Secretary to the Department of External Territories, to perform duties under this Act;

(b) an officer or employee of a State who is authorized in writing by the Secretary to the Department of Primary Industry to perform duties under this Act in pursuance of an arrangement between Australia and the State;

(c) a member of the Commonwealth Police Force or of the Police Force of a State or Territory; or

(d) a member of the Defence Force;”;

(f) by omitting from sub-section (1) the definitions of “Territory”, “the Australian continental shelf”, “the continental shelf of a Territory” and “the Convention” and substituting the following definition:—

“‘Territory ship’, in relation to an external Territory, means a ship the operations of which are based on a place in the Territory and that is wholly owned by a natural person who is a resident of, or by a company incorporated in, the Territory, being a ship that—

(a) was built in the Territory;

(b) has been lawfully imported into the Territory; or

(c) has been sold, or otherwise disposed of, in the Territory after having been forfeited or distrained under this or any other Act or under a law of the Territory;”; and

(g) by adding at the end thereof the following sub-section:—

“(4)For the purposes of this Act, the Territory of Papua and the Territory of New Guinea shall be deemed to form one Territory and that Territory shall be deemed to be an external Territory”.

Administration.

5. Section 6of the Principal Act is amended by omitting the words “Department for External Territories” and substituting the words “Department of External Territories”.

6.After section 6 of the Principal Act the following section is inserted:—

Secretaries and delegates subject to directions of Ministers.

“6a. (1) The Secretary to the Department of Primary Industry or his delegate or a delegate of the Minister of State for Primary Industry is, in the exercise of his powers and the performance of his functions under this Act, subject to the directions of the Minister of State for Primary Industry.

“(2) The Secretary to the Department of External Territories or his delegate or a delegate of the Minister of State for External Territories, other than a Minister of the House of Assembly for Papua New Guinea, is, in the exercise of his powers and the performance of his functions under this Act, subject to the directions of the Minister of State for External Territories”.

Declaration of areas of continental shelf adjacent to external Territories.

7.Section 8 of the Principal Act is amended by omitting from sub-section (1) the words “a Territory (being a Territory not forming part of the Commonwealth)” and substituting the words “an external Territory”.

Delegation.

8.Section 10 of the Principal Act is amended by omitting sub-sections (1) and (2) and substituting the following sub-sections:—

“10. (1) Subject to this section, a Minister of State, or the Secretary to a Department, on whom powers or functions are conferred by this Act may, by writing under his hand, delegate to a person or authority, either generally or otherwise, all or any of those powers or functions except this power of delegation or his powers and functions under section 13a.

“(1 a) The Minister of State for External Territories may, by writing under his hand, delegate to a Minister of the House of Assembly for Papua New Guinea, either generally or otherwise, all or any of his powers and functions under section 13a with respect to natural persons resident in, companies incorporated in, or ships the operations of which are based on a place in, Papua New Guinea.

“(2) A power or function delegated under sub-section (1) or (1a) may be exercised or performed by the delegate in accordance with the delegation, and, when so exercised or performed, shall, for the purposes of this Act, be deemed to have been exercised or performed by the person who gave the delegation”.

Notices by Minister.

9.Section 12 of the Principal Act is amended—

(a) by inserting in paragraph (b) of sub-section (1), after the word “size”, the words “or has, or has a part having, a dimension less than a specified dimension”; and

(b) by inserting after paragraph (d) of sub-section (1) the following paragraphs:—

“(da) prohibit the searching for or taking of sedentary organisms of a specified kind in a specified part of an area of the Australian continental shelf, or an area of the continental shelf of an external Territory, except by a

person who holds a licence under sub-section (1) of section 13 that, by virtue of an endorsement under sub-section (1a) of that section, extends to authorizing that searching or taking, as the case may be;

(db) prohibit the use of ships for searching for or taking sedentary organisms of a specified kind in a specified part of an area of the Australian continental shelf, or an area of the continental shelf of an external Territory, other than ships in respect of which there are licences under sub-section (2) of section 13 that, by virtue of an endorsement under sub-section (2a) of that section, extend to authorizing that use;”.

Licences.

10. Section 13 of the Principal Act is amended—

(a) by inserting after sub-section (1) the following sub-section:—

“(1a) Where a licence granted under sub-section (1) would, but for a notice under paragraph (da) of sub-section (1) of section 12, extend to authorizing a person to search for and take sedentary organisms of a kind to which the notice applies in the part of an area of the Australian continental shelf, or an area of the continental shelf of an external Territory, to which the notice applies, the appropriate Minister or the appropriate Secretary may endorse it so as to extend it to authorize the person to search for and take sedentary organisms of that kind in that part”;

(b) by inserting after sub-section (2) the following sub-section:—

“(2a) Where a licence granted under sub-section (2) would, but for a notice under paragraph (db) of sub-section (1) of section 12, extend to authorizing the use of a ship in searching for and taking sedentary organisms of a kind to which the notice applies in the part of an area of the Australian continental shelf, or an area of the continental shelf of an external Territory, to which the notice applies, the appropriate Minister or the appropriate Secretary may endorse it so as to extend it to authorize the use of the ship in searching for and taking sedentary organisms of that kind in that part.”;

(c) by omitting sub-section (10) and substituting the following sub-section:—

“(10) A licence under this section shall be in accordance with a form approved by the Minister of State for Primary Industry.”; and

(d) by inserting after sub-section (11) the following sub-section:—

“(12) Nothing in this Act prevents a licence under this section and a licence of the same kind under a law of a State or Territory being combined and issued as one instrument.”.

11.After section 13 of the Principal Act the following section is inserted:—

Cancellation and suspension of licences.

“13a. (1) The appropriate Minister or the appropriate Secretary may cancel a licence under this section if—

(a) he is satisfied that there has been a contravention of, or a failure to comply with, a condition to which the licence is subject;

(b) the holder of the licence has been convicted of an offence against this Act or the Fisheries Act 1952 or that Act as amended; or

(c) the holder has been convicted of an offence under the law of a State or Territory relating to fisheries.

“(2) The appropriate Minister or the appropriate Secretary may, by notice in writing expressed to be given under this sub-section given to the holder of a licence under section 13, suspend that licence if he has reasonable grounds to suspect that there has been a contravention of, or a failure to comply with, a condition to which the licence is subject, not being grounds in relation to which he has previously exercised his powers under this sub-section.

“(3) The suspension of a licence under sub-section (2), unless sooner revoked, ceases—

(a) if proceedings for an offence in respect of the licence are instituted against its holder within one month after the suspension—on the completion of those proceedings; or

(b) in any other case—on the expiration of one month after the suspension.

“(4) The appropriate Minister or the appropriate Secretary may, by notice in writing expressed to be given under this sub-section given to the holder of a licence under section 13, suspend that licence for a specified time if—

(a) the holder has had a licence relating to a ship or to the searching for or taking of sedentary organisms held by him under the law of a State or Territory suspended or cancelled; and

(b) the appropriate Minister or the appropriate Secretary, as the case may be, is satisfied, after consulting the relevant authority of the State or Territory, that suspension for that period under this sub-section is necessary for the proper management of sedentary organisms in an area of the sea-bed or subsoil of the sea.

“(5) A suspension of a licence under sub-section (2)or (4) may be expressed to operate either generally or in so far as the licence applies in relation to an area of the continental shelf or to sedentary organisms of a specified kind”.

Powers of officers.

12.Section 14 of the Principal Act is amended by inserting in paragraph (f), after the word “taking” the words “and determination”.

Offences in relation to licences and unlicensed operations.

13. Section 15 of the Principal Act is amended—

(a) by omitting from sub-section (2) the word “or” (third occurring);

(b) by inserting after sub-section (3) the following sub-sections:—

“(3a) A person shall not, in an area of the Australian continental shelf, or an area of the continental shelf of an external Territory, that is a controlled area in relation to sedentary organisms of any kind, use a foreign ship in searching for or taking sedentary organisms of that kind unless there is in force a licence under sub-section (2) of section 13 authorizing the use of the ship in that area.

“(3b) A person shall not, in a controlled area, have in his possession or in his charge a foreign ship for use in searching for or taking sedentary organisms unless there is in force a licence under sub-section (2) of section 13 authorizing the use of the ship in that area.

“(3c) A person shall not, in a controlled area, trans-ship sedentary organisms to a ship in respect of which there is not in force a licence under section 13.”;

(c) by omitting from sub-section (6) the words “sub-section (1), (2), (3) or (4)” and substituting the words “sub-section (1), (2), (3), (3a), (3b) or (4)”;

(d) by omitting from paragraph (b) of sub-section (6) the words " sub-section (2) " and substituting the words “sub-section (2) or (3a)”;

(e) by omitting from paragraph (c) of sub-section (6) the words “sub-section (3)” and substituting the words “sub-section (3) or (3b)”; and

(f) by omitting from sub-section (7) the words “sub-sections (2) and (3)” and substituting the words “sub-sections (2), (3), (3a) and (3b)”.

Offences in relation to notices under section 12.

14.Section 16 of the Principal Act is amended by adding at the end thereof the following sub-section:—

“(2) For the purposes of the prosecution of a person for an offence arising under sub-section (1), an act done by an employee or other agent of the person charged shall be deemed to have been done also by that person.”

15.After section 17 of the Principal Act the following section is inserted:—

Liability of master or person in charge of ship.

“17a. (1) The master or other person in charge of a ship on which, or by the use of which, an offence against this Act (in this section referred to as the ‘primary offence’) is committed is guilty of an offence against this section.

“(2) A person may be convicted of an offence against this section, whether or not the identity of the person who committed the primary offence appears, or has appeared, from the evidence in the proceedings in respect of the offence against this section or in any other proceedings, but shall not be convicted of both an offence against this section and of the primary offence.

“(3) The provisions of section 18 apply in relation to an offence against this section in like manner as they would apply if that offence were the primary offence.”.

Punishment of offences.

16. Section 18 of the Principal Act is amended—

(a) by omitting from sub-sections (3) and (4) the words “offence against sub-section (2) or (3) of section 15 of this Act committee in respect of a foreign ship” and substituting the words “offence against sub-section (3a) or (3b) of section 15”; and

(b) by adding at the end thereof the following sub-sections:—

“(6) A ship or goods ordered by a court to be forfeited under this section becomes the property of Australia and shall be dealt with or disposed of in accordance with the directions of the appropriate Secretary.

“(7) An offence against section 17 is punishable by a fine not exceeding $1,000 or by imprisonment for a period not exceeding 6 months.”.

Evidentiary certificates.

17.Section 20 of the Principal Act is amended by omitting sub-section (1) and substituting the following sub-sections:—

“(1) The Minister of State for Primary Industry or a person authorized in writing by him to give certificates under this sub-section may give a certificate that, at a time specified in the certificate, a ship specified in the certificate was, or was not, an Australian ship.

“(1a) The Minister of State for External Territories or a person authorized in writing by him to give certificates under this sub-section may give a certificate that, at a time specified in the certificate, a ship specified in the certificate was, or was not, in relation to an external Territory or an external Territory specified in the certificate, a Territory ship.

“(1b) The appropriate Minister or a person authorized in writing by him to give a certificate under this sub-section may give a certificate—

(a) that a submarine area specified in the certificate is an area of the Australian continental shelf or an area of the continental shelf of an external Territory;

(b) that, at a time specified in the certificate, a person specified in the certificate was, or was not, the holder of a licence under sub-section (1) of section 13 authorizing him to search for and take sedentary organisms of a kind specified in the certificate in, or in a part of, an area of the Australian continental shelf, or an area of the continental shelf of an external Territory, so specified;

(c) that, at a time specified in the certificate, a person specified in the certificate was, or was not, the holder of a licence under sub-section (1) of section 13 endorsed under sub-section (1a) of that section so as to authorize him to search for and take sedentary organisms of a kind specified in the certificate in a part of an area of the Australian continental shelf, or an area of the continental shelf of an external Territory, so specified;

(d) that, at a time specified in the certificate, a person specified in the certificate was, or was not, or no person was, the holder of a licence under sub-section (2) of section 13 authorizing the use of a ship by him or by a person acting on his behalf in searching for and taking sedentary organisms of a kind specified in the certificate in, or in a part of, an area of the Australian continental shelf, or an area of the continental shelf of an external Territory, so specified;

(e) that, at a time specified in the certificate, a person specified in the certificate was, or was not, or no person was, the holder of a licence in respect of a ship under sub-section (2) of section 13 endorsed under sub-section (2a) of that section so as to authorize the use of the ship by him or by a person acting on his behalf in searching for and taking sedentary organisms of a kind specified in the certificate in a part of an area of the Australian continental shelf, or an area of the continental shelf of an external Territory, so specified; or

(f) that, at a time specified in the certificate, a licence under sub-section (4) of section 13 was not in force authorizing the employment of a person specified in the certificate, in a controlled area so specified, as a diver, as a trial diver or as a diver’s tender, as the case may be.

“(lc) A person giving a certificate under paragraph (d) or (e) of sub-section (1b) that a person was the holder of a licence may, in the certificate, certify that conditions specified in the certificate were the conditions specified in the licence.

“(1d) In proceedings for an offence against this Act or the regulations or in proceedings for the condemnation or recovery of a ship seized under this Act, a certificate given under this section is prima facie evidence of the matters specified in the certificate.

“(1e) For the purposes of this section, a writing purporting to be a certificate given under this section shall, unless the contrary is proved, be deemed to be such a certificate and to have been duly given.”.

Regulations.

18.Section 25 of the Principal Act is amended by inserting after paragraph (c) the following paragraph:—

“(ca) for providing for services in actions for the condemnation

of foreign ships seized as forfeited;”.

Additional amendments.

19.The Principal Act is amended as set out in the Schedule.

Saving.

20.(1) A Proclamation in force or purporting to be in force immediately before the commencement of this Act under section 8 of the Principal Act has effect after the commencement of this Act as if it were a Proclamation under section 8 of the Principal Act as amended by this Act.

(2) A notice in force or purporting to be in force immediately before the commencement of this Act under section 12 of the Principal Act has effect after the commencement of this Act as if it were a notice under section 12 of the Principal Act as amended by this Act.

 

SCHEDULE Section 19

ADDITIONAL AMENDMENTS

1. Section 13(9) of thePrincipal Act is amended by omitting the words “the Commonwealth” (wherever occurring) and substituting the word “Australia”.

2. The following provisions of the Principal Act are amended by omitting the words “of this Act” and “of this section” (wherever occurring):—

Sections 5(1) (definitions of “controlled area” and “sedentary organism”), 13(3), 14(j), 15, 16, 17(c), 18(5) and 20.

3. The following provisions of the Principal Act are amended by omitting the words “a Territory” (wherever occurring) and substituting the words “an external Territory”:—

Sections 5(1) (definition of “controlled area”) and (2), 6, 7, 9, 11, 12(1), 13(1), (2), (3) and (9), 15(1) and (2), 20(2), 21 and 22.