Great Barrier Reef Marine Park Amendment Regulations 2003 (No. 2) (Cth)

Great Barrier Reef Marine Park Amendment Regulations 2003 (No. 2)1

Statutory Rules 2003 No. 2002

I, GUY STEPHEN MONTAGUE GREEN, Administrator of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Great Barrier Reef Marine Park Act 1975.

Dated 30 July 2003

G. S. M. GREEN

Administrator

By His Excellency’s Command

DAVID KEMP

Minister for the Environment and Heritage

1Name of Regulations

These Regulations are the Great Barrier Reef Marine Park Amendment Regulations 2003 (No. 2).

2Commencement

These Regulations commence on gazettal.

3Amendment of Great Barrier Reef Marine Park Regulations 1983

Schedule 1 amends the Great Barrier Reef Marine Park Regulations 1983.

Schedule 1Amendments

(regulation 3)

  

[1]Division 5.3

omit

[2]Before regulation 39

insert in Part 6

38Offences relating to spearfishing

1. (1)

   A person who is spearfishing in the Marine Park must not use any of the following:

   1. (a)

      an underwater breathing apparatus that is not a snorkel;

   2. (b)

      a power-head;

   3. (c)

      a firearm.

Penalty: 50 penalty units.

1. (2)

   An offence against subregulation (1) is an offence of strict liability.

2. (3)

   It is a defence to a prosecution for an offence against subregulation (1) in relation to using an underwater breathing apparatus that is not a snorkel that the person used the apparatus:

   1. (a)

      for scientific research, in accordance with the written permission of the Authority given for the purposes of this regulation; or

   2. (b)

      for spearfishing for crayfish or rock lobster, in accordance with an authority (however described) issued to the person, and in force, under the Fisheries Regulation 1995 (Qld).

3. (4)

   It is a defence to a prosecution for an offence against subregulation (1) in relation to using a power-head that the person used the power-head:

   1. (a)

      with the intention of protecting himself or herself, or any other person, from attack by a shark; or

   2. (b)

      for scientific research, in accordance with the written permission of the Authority given for the purposes of this regulation.

Note A defendant bears an evidential burden in relation to the matters mentioned in subregulations (3) and (4) (see section 13.3 of the Criminal Code).

1. (5)

   In this regulation:

power-head means a device that may be attached to a spear or a speargun and that consists of, or contains, an explosive charge.

spearfishing means fishing with a spear or a speargun.

[3]After subregulation 41A (2), including the note

insert

1. (3)

   An offence against subregulation (1) is an offence of strict liability.

[4]Regulation 47

omit

[5]Regulation 66C

omit

A person

insert

1. (1)

   A person

[6]Regulation 66C

after the penalty, insert

1. (2)

   An offence against subregulation (1) is an offence of strict liability.

[7]Subregulation 84 (3), including the note

substitute

1. (3)

   For this regulation:

   1. (a)

      an offence against subregulation (1) is an offence of strict liability; and

   2. (b)

      strict liability applies to the physical element in subregulation (2) of whether, if the receipt or ticket is being used as evidence, the evidence is evidence for regulation 83.

[8]After Part 13

insert

Part 13AInfringement notices

122APurpose of Part 13A

This Part provides a procedure under which a person who is alleged to have committed an offence against a provision of these Regulations mentioned in Schedule 10 may, as an alternative to having the matter dealt with by a court, dispose of the matter by paying a monetary penalty (an infringement notice penalty) specified in a notice (an infringement notice) served on the person.

122BInterpretation

1. (1)

   In this Part:

owner, for a vehicle, means:

1. (a)

   for a vehicle that is registered under a law of a State or Territory providing for the registration of vehicles — the registered owner; or

2. (b)

   for any other vehicle — the person who is legally entitled to possession of the vehicle.

vehicle means an aircraft, a motor vehicle or a vessel.

1. (2)

   A reference in this Part to an offence involving a vehicle is a reference to an offence occurring as a result of the use of, or an attribute of, the vehicle.

122CInfringement notices

1. (1)

   An inspector may serve an infringement notice, or cause an infringement notice to be served, on a person in accordance with regulation 122E if there are reasonable grounds for believing that the person has committed an offence against a provision mentioned in Schedule 10.

2. (2)

   An infringement notice must set out the following information:

   1. (a)

      the name and address of the person served (unless the notice is served in accordance with subparagraph 122E (1) (c) (ii));

   2. (b)

      the nature of the alleged offence, including the provision that it is alleged has been contravened;

   3. (c)

      the date, time and place of the alleged offence;

   4. (d)

      the amount payable as the infringement notice penalty;

   5. (e)

      the maximum penalty that a court may impose for the offence;

   6. (f)

      a statement that, if the person prefers that the matter not be dealt with by a court, he or she may signify that preference by paying the infringement notice penalty;

   7. (g)

      the period in which, and the place where, the infringement notice penalty may be paid;

   8. (h)

      the effect of paying the infringement notice penalty;

   9. (i)

      the period, and manner, in which the person served may notify the Authority of any facts or matters that the person believes ought to be taken into account in relation to the alleged offence;

   10. (j)

       the name of the person who serves the notice.

3. (3)

   An infringement notice may contain any other information that the inspector or the Authority considers necessary.

122DInfringement notice penalty

The infringement notice penalty for an offence against a provision mentioned in column 2 of an item in Schedule 10 is the infringement notice penalty mentioned in column 3 of the item.

122EService of infringement notices

1. (1)

   An infringement notice may be served on a person:

   1. (a)

      personally or by post; or

   2. (b)

      by leaving the notice:

      1. (i)

         at the last-known place of residence or business of the person; and

      2. (ii)

         with a person, apparently over the age of 16 years, who appears to live or work at the place; or

   3. (c)

      for an offence involving a vehicle:

      1. (i)

         in the case of a person who appears to be in charge of the vehicle at the time of the alleged offence — personally; or

      2. (ii)

         by securely placing the notice on the vehicle in a conspicuous position; or

      3. (iii)

         if the Authority receives a statutory declaration under subregulation 122N (3) — by serving the notice, in accordance with paragraph (a) or (b), on the person named in the statutory declaration as being the person in charge of the vehicle at the time of the alleged offence; or

   4. (d)

      by any other method the inspector who serves the infringement notice, or who causes the infringement notice to be served, considers appropriate.

2. (2)

   If an infringement notice for an offence involving a vehicle is to be served by post, it must be sent:

   1. (a)

      to the last-known place of residence or business of the person who was the owner of the vehicle at the time the alleged offence occurred; or

   2. (b)

      if the vehicle is registered under a law of a State or Territory — to the latest address of the owner in the record of registration of the vehicle; or

   3. (c)

      for a person named in a statutory declaration under subregulation 122N (3) — to the address given in the statutory declaration.

3. (3)

   An infringement notice for an offence is of no effect if it is served on a person more than 12 months after the alleged commission of the offence by the person.

122FPayment of penalty

An infringement notice penalty must be paid:

1. (a)

   before the end of 28 days after the day the infringement notice is served (the 28-day period); or

2. (b)

   if an application for a further period for payment is made under regulation 122G and the further period is granted, before the end of the further period; or

3. (c)

   if an application for a further period for payment is made under regulation 122G and the further period is refused, before the end of the later of:

   1. (i)

      10 days after the date of the notice of the refusal; and

   2. (ii)

      the 28-day period; or

4. (d)

   if a notice is given under regulation 122H and the Authority refuses to withdraw the infringement notice, before the end of 28 days after the date of the notice of the refusal.

122GExtension of time to pay

1. (1)

   A person on whom an infringement notice has been served may apply in writing to the Authority requesting a further period for payment of the infringement notice penalty, whether or not the period of 28 days after the date of service of the notice has ended.

2. (2)

   If an application is made after the end of the 28-day period, the application must include a statement explaining why the alleged offender could not deal with the notice within that period.

3. (3)

   On receiving an application, the Authority must:

   1. (a)

      grant or refuse a further period; and

   2. (b)

      give the person written notice of the decision; and

   3. (c)

      if the decision is a refusal — state in the notice the reasons for refusal and the period in which the infringement notice penalty must be paid.

122HMatters for Authority to take into account

If, before the end of 28 days after the day an infringement notice is served on a person, the person notifies the Authority, in the manner set out in the infringement notice, of any facts or matters that the person believes ought to be taken into account in relation to the alleged offence:

1. (a)

   the period for payment of the infringement notice penalty is extended to the extent necessary to enable the Authority to consider those facts and matters; and

2. (b)

   the Authority must make a decision under subregulation 122I (2).

122IWithdrawal of infringement notices

1. (1)

   The Authority may withdraw an infringement notice served on a person on its own initiative by giving written notice of the withdrawal to the person:

   1. (a)

      before the end of 28 days after the day the infringement notice was served on the person; or

   2. (b)

      if the Authority grants, under regulation 122G, a further period for payment of the infringement notice penalty by the person — before the end of the further period.

2. (2)

   If the Authority receives a notice from a person under regulation 122H, the Authority must:

   1. (a)

      decide to withdraw, or refuse to withdraw, the infringement notice; and

   2. (b)

      give the person written notice of the decision in accordance with subregulation (4).

3. (3)

   In making a decision under subregulation (1) or (2), the Authority must consider:

   1. (a)

      if a notice has been given under regulation 122H — the facts or matters in the notice; and

   2. (b)

      the circumstances in which the offence mentioned in the infringement notice is alleged to have been committed; and

   3. (c)

      whether the person has been convicted previously of an offence against these Regulations or the Act; and

   4. (d)

      whether an infringement notice has previously been given to the person for an offence against these Regulations; and

   5. (e)

      any other matter the Authority considers relevant.

Note Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.

1. (4)

   If the Authority decides, under subregulation (2), to refuse to withdraw an infringement notice, notice of the decision must state:

   1. (a)

      the reasons for the refusal; and

   2. (b)

      that the amount of the infringement notice penalty must be paid within 28 days after the date of the notice of the decision; and

   3. (c)

      that if that amount is not so paid, the person may be prosecuted for the alleged offence.

2. (5)

   If an infringement notice is withdrawn after a person pays the infringement notice penalty, the Authority must refund to the person the amount paid.

122JEffect of payment of infringement notice penalty

1. (1)

   If a person who is served with an infringement notice pays the infringement notice penalty in accordance with this Part and the infringement notice is not withdrawn by the Authority before the end of the period in which the notice may be withdrawn under regulation 122I:

   1. (a)

      any liability of the person for the offence, under the provision in Schedule 10 mentioned in the notice, is discharged; and

   2. (b)

      further proceedings against the person for the offence cannot be taken under that provision; and

   3. (c)

      the person is not convicted of the offence.

2. (2)

   If a cheque is given to the Authority in payment of the amount of an infringement notice penalty, the payment is taken not to have been made unless the cheque is honoured on presentation.

122KAdmissions under regulation 122H

Evidence of an admission made by a person in a notice under regulation 122H is inadmissible in a proceeding against the person for the alleged offence.

122LMatter not to be taken into account in determining sentence

1. (1)

   This regulation applies if a person who is served with an infringement notice:

   1. (a)

      chooses not to pay the infringement notice penalty; and

   2. (b)

      is prosecuted for, and convicted of, the alleged offence mentioned in the infringement notice.

2. (2)

   In determining the penalty to be imposed, the court must not take into account the fact that the person chose not to pay the infringement notice penalty.

122MEvidence for hearing

1. (1)

   At the hearing of a prosecution for an offence mentioned in an infringement notice, each of the following certificates is evidence of the facts stated in the certificate:

   1. (a)

      a certificate signed by an inspector stating that:

      1. (i)

         the infringement notice was served on the alleged offender; and

      2. (ii)

         the infringement notice penalty has not been paid in accordance with this Part;

   2. (b)

      a certificate signed by the Authority stating that the notice was withdrawn on a day specified in the certificate;

   3. (c)

      a certificate signed by the Authority stating that:

      1. (i)

         under regulation 122G, a further period for payment of the infringement notice penalty was refused; and

      2. (ii)

         the infringement notice penalty has not been paid in accordance with this Part;

   4. (d)

      a certificate signed by the Authority stating that:

      1. (i)

         under regulation 122G, a further period, stated in the certificate, for payment of the infringement notice penalty was granted; and

      2. (ii)

         the infringement notice penalty has not been paid in accordance with the notice or before the end of the further period.

2. (2)

   A certificate that purports to have been signed by the Authority or an inspector is taken to have been signed by the Authority or the inspector unless the contrary is proved.

122NOffences involving a vehicle — liability of owner

1. (1)

   This regulation identifies who it is that bears liability for the commission of an offence under these Regulations involving a vehicle.

2. (2)

   If the offence is committed by the person in charge of the vehicle, the owner of the vehicle at the time the offence is committed is taken to have committed the offence.

3. (3)

   However, the owner of the vehicle is not taken to have committed the offence if:

   1. (a)

      the vehicle was, at the time of the offence, stolen or illegally taken; or

   2. (b)

      for an owner who is not a body corporate — within 14 days after the date of an infringement notice served under regulation 122E or within 14 days after service of a summons for the alleged offence, the owner gives to the Authority a statutory declaration made by him or her stating:

      1. (i)

         that it is made for subregulation (3) of this regulation; and

      2. (ii)

         that he or she was not in charge of the vehicle at the time of the alleged offence; and

      3. (iii)

         the name and address of the person who was in charge of the vehicle at that time; or

   3. (c)

      for an owner that is a body corporate — within 14 days after the date of an infringement notice served under regulation 122E or within 14 days after service of a summons for the alleged offence, a director, manager or secretary of the body corporate gives to the Authority a statutory declaration made by him or her stating:

      1. (i)

         that it is made for subregulation (3) of this regulation; and

      2. (ii)

         that the vehicle was not being used by or for the body corporate at the time of the alleged offence; and

      3. (iii)

         the name and address of the person who was in charge of the vehicle at that time.

4. (4)

   At the hearing of a prosecution of an owner for an offence involving a vehicle, a certificate signed by the Authority stating that the owner has not given to the Authority a statutory declaration relating to the offence is evidence of the matter so stated.

5. (5)

   For subregulation (4), a document that purports to have been signed by the Authority is to be taken to have been so signed unless the contrary is proved.

6. (6)

   This regulation does not affect the liability of a person who is not the owner of a vehicle involved in an offence against these Regulations if the person would otherwise be liable for the offence.

122OCopy of statutory declaration to be served

1. (1)

   This regulation applies if a person is named in a statutory declaration given under paragraph 122N (3) (b) or (c) as being the person who was in charge of a vehicle at the time of an alleged offence involving the vehicle.

2. (2)

   A copy of the statutory declaration must:

   1. (a)

      if an infringement notice for the offence is to be served on the person after the statutory declaration is given — be attached to the infringement notice when it is served; or

   2. (b)

      if the person is to be prosecuted for the offence and paragraph (c) does not apply — be attached to the summons for the offence when it is served on the person; or

   3. (c)

      if the person is to be prosecuted for the offence and a summons for the offence was served on the person before the statutory declaration was given — be served on the person at least 3 days before the commencement of the hearing for the offence.

3. (3)

   The statutory declaration is admissible in evidence in a prosecution for the offence against the person and is evidence that the person was in charge of the vehicle at that time.

122PInfringement notice not compulsory, etc

Nothing in this Part is to be taken to:

1. (a)

   require that a person suspected of having contravened a provision of these Regulations be served with an infringement notice; or

2. (b)

   affect the liability of a person to be prosecuted for an alleged offence, if:

   1. (i)

      an infringement notice is not served on the person for the offence; or

   2. (ii)

      an infringement notice is served on the person and later withdrawn; or

   3. (iii)

      the person does not comply with an infringement notice; or

3. (c)

   limit the penalty that may be imposed by a court on a person convicted of an offence; or

4. (d)

   other than as provided in regulation 122J, affect any power under these Regulations or the Act that the Commonwealth or Authority may exercise in relation to an alleged offence.

[9]Schedule 5

omit

Promicrops

insert

Epinephelus

[10]After Schedule 9

insert

Schedule 10Infringement notice offences

(regulations 122A and 122D)

Item	Provision	Infringement notice penalty (penalty units)
1	subregulation 38 (1) (Offences relating to spearfishing)	7
2	subregulation 40 (1) (Taking of certain fish in the Marine Park)	10
3	subregulation 41A (1) (Certain animals not to be taken onto Commonwealth islands)	2
4	subregulation 46 (1) (Littering prohibited)	2
5	subregulation 48 (1) (Authority moorings)	5
6	subregulation 66C (1) (Offences — identification numbers)	5
7	subregulation 84 (1) or (2) (Offence — altering ticket etc)	7
8	subregulation 106 (1), (2), (3) or (4) (Record-keeping etc)	5
9	subregulation 113 (1) (Offences — Cairns Area Plan of Management enforcement provisions)	3
10	subregulation 117 (1) (Offences — Whitsundays Plan of Management enforcement provisions)	3

[11]Further amendments — penalties

Provision	omit	insert
Subregulation 40 (1), penalty	10 penalty units.	50 penalty units.
Subregulation 41A (1), penalty	10 penalty units.	50 penalty units.
Subregulation 46 (1), penalty	2 penalty units.	50 penalty units.
Subregulation 48 (1), penalty	10 penalty units.	50 penalty units.
Regulation 66C, penalty	10 penalty units.	50 penalty units.
Subregulations 84 (1) and (2), penalty	10 penalty units.	50 penalty units.
Subregulations 106 (1), (2), (3) and (4), penalty	10 penalty units.	50 penalty units.
Subregulation 110 (1), penalty	10 penalty units.	50 penalty units.
Subregulation 113 (1), penalty	10 penalty units.	50 penalty units.
Subregulation 117 (1), penalty	10 penalty units	50 penalty units.

Notes

1. These Regulations amend Statutory Rules 1983 No. 262, as amended by 1985 No. 169; 1986 No. 1; 1987 No. 247; 1988 No. 185; 1989 Nos. 269, 367 and 368; 1990 Nos. 9 and 35; 1991 Nos. 63, 257 and 296; 1992 No. 69; 1993 Nos. 188, 206 and 266; 1996 No. 277; 1997 Nos. 96 and 326; 1999 No. 252; 2000 No. 5; Act No. 137, 2000; Statutory Rules 2001 Nos. 12, 178, 197 and 307; 2002 Nos. 8, 72, 73, 112, 177, 209 (disallowed by the Senate on 23 October 2002), 224 and 338; 2003 No. 20.

2. Notified in the Commonwealth of Australia Gazette