Great Barrier Reef Marine Park and Other Legislation Amendment Act 2008 (Cth)
Contents
[
The Parliament of Australia enacts:
This Act may be cited as the
Great Barrier Reef Marine Park and Other Legislation Amendment Act 2008 .
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Sections 1 to 3 and anything in this Act not elsewhere covered by this table | The day on which this Act receives the Royal Assent. | 25 November 2008 |
Schedules 1, 2 and 3 | The day after this Act receives the Royal Assent. | 26 November 2008 |
Schedules 4, 5 and 6 | A single day to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 12 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. | 25 November 2009 |
Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Insert:
(1) The main object of this Act is to provide for the long term protection and conservation of the environment, biodiversity and heritage values of the Great Barrier Reef Region.
(2) The other objects of this Act are to do the following, so far as is consistent with the main object:
(a) allow ecologically sustainable use of the Great Barrier Reef Region for purposes including the following:
(i) public enjoyment and appreciation;
(ii) public education about and understanding of the Region;
(iii) recreational, economic and cultural activities;
(iv) research in relation to the natural, social, economic and cultural systems and value of the Great Barrier Reef Region;
(b) encourage engagement in the protection and management of the Great Barrier Reef Region by interested persons and groups, including Queensland and local governments, communities, Indigenous persons, business and industry;
(c) assist in meeting Australia’s international responsibilities in relation to the environment and protection of world heritage (especially Australia’s responsibilities under the World Heritage Convention).
(3) In order to achieve its objects, this Act:
(a) provides for the establishment, control, care and development of the Great Barrier Reef Marine Park; and
(b) establishes the Great Barrier Reef Marine Park Authority; and
(c) provides for zoning plans and plans of management; and
(d) regulates, including by a system of permissions, use of the Great Barrier Reef Marine Park in ways consistent with ecosystem‑based management and the principles of ecologically sustainable use; and
(e) facilitates partnership with traditional owners in management of marine resources; and
(f) facilitates a collaborative approach to management of the Great Barrier Reef World Heritage area with the Queensland government.
2
Subsection 3(1) (definition of Australian coastal sea ) Repeal the definition.
Insert:
Australian jurisdiction has the meaning given by subsection 5(4).
Insert:
continental shelf has the same meaning as in theSeas and Submerged Lands Act 1973 .
5
Subsection 3(1) (definition of continental shelf of Australia ) Repeal the definition.
Repeal the definition.
7
Subsection 3(1) (definition of ecological community ) Repeal the definition.
Insert:
ecologically sustainable use has the meaning given by section 3AA.
Insert:
ecosystem‑based management means an integrated approach to managing an ecosystem and matters affecting that ecosystem, with the main object being to maintain ecological processes, biodiversity and functioning biological communities.
Insert:
exclusive economic zone has the same meaning as in theSeas and Submerged Lands Act 1973 .
Insert:
Indigenous person means a person who is:
(a) a member of the Aboriginal race of Australia; or
(b) a descendant of an Indigenous inhabitant of the Torres Strait Islands.
Insert:
precautionary principle means the principle that lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment where there are threats of serious or irreversible environmental damage.
Insert:
principles of ecologically sustainable use has the meaning given by section 3AB.
Repeal the definition.
Repeal the definition.
Insert:
traditional owner means an Indigenous person:
(a) who is recognised in the Indigenous community or by a relevant representative Aboriginal or Torres Strait Islander body:
(i) as having spiritual or cultural affiliations with a site or area in the Marine Park; or
(ii) as holding native title in relation to that site or area; and
(b) who is entitled to undertake activities under Aboriginal or Torres Strait Islander custom or tradition in that site or area.
Insert:
(1A) In this Act, the following terms have the same meaning as in the
Environment Protection and Biodiversity Conservation Act 1999 :
approved conservation advice
Australian aircraft
Australian IUCN reserve management principles
Australian vessel
biodiversity
bioregional plan
cetacean
critical habitat
ecological community
ecosystem
environment
heritage value
IUCN category
key threatening process
listed marine species
listed migratory species
listed threatened ecological community
listed threatened species
recovery plan
species
threat abatement plan
wildlife conservation plan
World Heritage Convention
world heritage values
Insert:
For the purposes of this Act,
ecologically sustainable use of the Great Barrier Reef Region or its natural resources is use of the Region or resources:
(a) that is consistent with:
(i) protecting and conserving the environment, biodiversity and heritage values of the Great Barrier Reef Region; and
(ii) ecosystem‑based management; and
(b) that is within the capacity of the Region and its natural resources to sustain natural processes while maintaining the life‑support systems of nature and ensuring that the benefit of the use to the present generation does not diminish the potential to meet the needs and aspirations of future generations.
For the purposes of this Act, the following principles are
principles of ecologically sustainable use :
(a) decision‑making processes should effectively integrate both long‑term and short‑term environmental, economic, social and equitable considerations;
(b) the precautionary principle;
(c) the principle of inter‑generational equity—that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations;
(d) the conservation of biodiversity and ecological integrity should be a fundamental consideration in decision‑making;
(e) improved valuation, pricing and incentive mechanisms should be promoted.
Repeal the subsection.
Note: The heading to section 4 is replaced by the heading “
Act to bind Crown ”.
Repeal the section, substitute:
Extension to external Territories
(1) This Act extends to every external Territory.
Limited extraterritorial application
(2) This Act applies to acts, omissions, matters and things in the Australian jurisdiction, and does not apply to acts, omissions, matters and things outside the Australian jurisdiction except so far as the contrary intention applies.
Application to everyone in Australia and exclusive economic zone
(3) A provision of this Act that has effect in relation to a place that is within the outer limits of the exclusive economic zone of Australia (whether the place is in the zone or in Australia or an external Territory), or that is on or in the continental shelf of Australia, applies in relation to the following:
(a) all persons (including persons who are not Australian citizens);
(b) all vessels (including vessels that are not Australian vessels);
(c) all aircraft (including aircraft that are not Australian aircraft);
(d) all platforms.
Note: A reference to Australia or to an external Territory generally includes a reference to the coastal sea of Australia or the Territory (as appropriate). See section 15B of the
Acts Interpretation Act 1901 .
Definition of Australian jurisdiction
(4) In this Act:
Australian jurisdiction means:
(a) the land, waters, seabed and airspace in, under or above:
(i) Australia; or
(ii) an external Territory; or
(iii) the exclusive economic zone of Australia; or
(b) the continental shelf of Australia.
Note: A reference to Australia or to an external Territory generally includes a reference to the coastal sea of Australia or the Territory (as appropriate). See section 15B of the
Acts Interpretation Act 1901 .
Add:
(3) In managing the Marine Park and performing its other functions, the Authority must have regard to, and seek to act in a way that is consistent with:
(a) the objects of this Act in section 2A; and
(b) the principles of ecologically sustainable use; and
(c) the protection of the world heritage values of the Great Barrier Reef World Heritage Area.
(4) The Authority may prepare and publish plans and policies about:
(a) the way in which the Authority intends to manage the Marine Park or perform its other functions; and
(b) the way in which the Authority considers that this Act or a zoning plan applies:
(i) in relation to persons generally or a class of persons; or
(ii) in relation to persons generally, or a class of persons, in relation to particular circumstances.
(5) A plan or policy prepared under subsection (4) is not a legislative instrument.
Repeal the section.
Repeal the subsections.
Omit “(2)”.
Add:
(13) Despite subsection 14(2) of the
Legislative Instruments Act 2003 , the regulations may make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time.
Repeal the section, substitute:
Sections 4 and 5 of the
Great Barrier Reef Marine Park Act 1975 apply in relation to this Act in a corresponding way to the way in which they apply in relation to that Act.
Repeal the section, substitute:
Sections 4 and 5 of the
Great Barrier Reef Marine Park Act 1975 apply in relation to this Act in a corresponding way to the way in which they apply in relation to that Act.
Insert:
(6A) At least one member must be an Indigenous person with knowledge of, or experience concerning, indigenous issues relating to the Marine Park.
(6B) At least one member must have knowledge of or experience in the tourism industry associated with the Marine Park.
Add:
Note: See also section 33B of the
Acts Interpretation Act 1901 .
Repeal the subsection, substitute:
(8) If only 2 members are present at a meeting of the Authority and they differ on a question arising at the meeting, a decision on the question must be deferred:
(a) until a meeting at which at least 3 members are present; or
(b) for decision under section 18.
Add:
(1) The Authority is taken to have made a decision at a meeting if:
(a) without meeting, a majority of the members entitled to vote on the proposed decision indicate agreement with the decision; and
(b) that agreement is indicated in accordance with the method determined by the Authority under subsection (2); and
(c) all the members were informed of the proposed decision, or reasonable efforts were made to inform all the members of the proposed decision.
(2) Subsection (1) applies only if the Authority:
(a) has determined that it may make decisions of that kind without a meeting; and
(b) has determined the method by which members are to indicate agreement with proposed decisions.
(3) For the purposes of paragraph (1)(a), a member is not entitled to vote on a proposed decision if the member would not have been entitled to vote on that decision if the matter had been considered at a meeting of the Authority.
(4) The Authority must keep a record of decisions made in accordance with this section.
Add:
(3) Subsection (2) does not apply in relation to so much of a property as is in the Great Barrier Reef Marine Park.
Note: A zoning plan must be prepared under the
Great Barrier Reef Marine Park Act 1975 for areas that are part of the Great Barrier Reef Marine Park. In preparing a zoning plan, regard must be had to the Australian World Heritage management principles.
Insert:
(2A) Subsection (2) does not apply in relation to so much of a place as is in the Great Barrier Reef Marine Park.
Note: A zoning plan must be prepared under the
Great Barrier Reef Marine Park Act 1975 for areas that are part of the Great Barrier Reef Marine Park. In preparing a zoning plan, regard must be had to the National Heritage management principles.
Insert:
community group having a special interest has a meaning affected by section 39V.
4
Subsection 3(1) (definition of plan of management ) Omit “under section 39ZD”, substitute “in accordance with Part VB”.
Insert:
public notice means a notice published:
(a) in the
Gazette ; and(b) in a newspaper circulating generally in Queensland; and
(c) on the website of the Authority; and
(d) in such other manner (if any) as the Authority considers appropriate.
6
Subsection 3(1) (at the end of the definition of zone ) Add “(whether designated in the plan as a zone, area or some other designation)”.
Omit “in pursuance of section 32”, substitute “in accordance with Division 2 of Part V”.
Repeal the subsection.
Before “Part V”, insert “Division 2 of”.
Insert:
Add:
Note: A Proclamation under subsection (1) is a legislative instrument but is not subject to disallowance or sunsetting (see item 23 of the table in subsection 44(2), and item 22 of the table in subsection 54(2), of the
Legislative Instruments Act 2003 ).
Omit “subsection (4)”, substitute “subsections (4) and (5)”.
Add:
Note: A Proclamation under subsection (3) is a legislative instrument but is not subject to disallowance or sunsetting (see item 23 of the table in subsection 44(2), and item 22 of the table in subsection 54(2), of the
Legislative Instruments Act 2003 ).
Add:
(6) Before preparing the report, the Authority must, by public notice:
(a) state that the area is proposed to be included in the Marine Park; and
(b) state the boundaries of the area; and
(c) state any name or other designation proposed for the area; and
(d) invite the public to make comments in connection with the proposal by the date specified in the notice (which must be at least 60 days after the date the notice is published in the
Gazette ); and(e) specify the address to which comments must be sent.
(7) The Authority must include in the report any comments made in accordance with the notice and the Authority’s views on the comments.
Repeal the sections, substitute:
(1) The objects of this Division are:
(a) to regulate the use of the Marine Park so as to:
(i) protect the ecosystem within the Great Barrier Reef Region; and
(ii) ensure the use is ecologically sustainable use; and
(iii) manage competing usage demands; and
(b) to protect areas in the Marine Park that are of high conservation value; and
(c) to protect and conserve the biodiversity of the Marine Park, including ecosystems, habitats, populations and genes; and
(d) to regulate activities that exploit the resources of the Great Barrier Reef Region so as to:
(i) minimise the adverse effect of those activities on the Great Barrier Reef; and
(ii) ensure the ecologically sustainable use of the resources; and
(e) to protect the world heritage values of the Great Barrier Reef World Heritage Area; and
(f) to provide for the ecologically sustainable use of marine resources by traditional owners consistent with their traditional practices; and
(g) to reserve some areas of the Great Barrier Reef Region for public enjoyment and appreciation; and
(h) to preserve some areas of the Great Barrier Reef Region in a natural state, undisturbed except for the purposes of scientific research that cannot be undertaken elsewhere in the Marine Park.
(2) To achieve these objects, this Division provides for the preparation of zoning plans in respect of areas in the Marine Park.
As soon as practicable after an area has been declared under section 31 to be part of the Marine Park, the Authority must prepare a zoning plan in respect of the area.
(1) A zoning plan prepared in respect of an area must provide that, for the purposes of this Act, the area:
(a) constitutes a single zone; or
(b) is divided into 2 or more zones described in the plan.
(2) The plan must do the following in relation to the zone or each of the zones:
(a) give the zone a name or other designation;
(b) make provision with respect to the purposes for which the zone may be used or entered;
(c) designate an IUCN category for the zone, or each part of the zone.
(1) Before preparing a zoning plan in respect of an area, the Authority must, by public notice:
(a) state that it intends to prepare a zoning plan in respect of the area; and
(b) invite the public to make comments in connection with the proposed plan by the date specified in the notice (which must be at least 3 months after the date the notice is published in the
Gazette ); and(c) specify the address to which comments must be sent; and
(d) specify that the following are publicly available and how a copy may be obtained:
(i) principles approved under section 34;
(ii) a statement prepared under subsection 35(1).
(2) The Authority must consider any comments made in accordance with the notice.
Omit “section 33”, substitute “section 38 of the
Legislative Instruments Act 2003 ”.
Insert:
(1) The Authority must, in preparing a zoning plan in respect of an area (the
zoning plan area ), have regard to the following:
(a) the objects of this Division;
(b) the principles approved under section 34 relating to the preparation of the plan;
(c) any reports that have been given to the Minister under section 54;
(d) any matter protected by a provision of Part 3 of the
Environment Protection and Biodiversity Conservation Act 1999 that is relevant to the zoning plan area;(e) any approved conservation advice, bioregional plan, recovery plan, threat abatement plan or wildlife conservation plan that is relevant to the zoning plan area;
(f) any value, plan or principle referred to in Part 15 of the
Environment Protection and Biodiversity Conservation Act 1999 that relates to a property, place, wetland or other area that is in the zoning plan area;(g) any habitat in the zoning plan area that is critical habitat;
(h) any plan made under the
Marine Parks Act 2004 of Queensland or theNature Conservation Act 1992 of Queensland that is relevant to the zoning plan area;(i) any other matter prescribed by the regulations for the purposes of this paragraph.
(2) In designating an IUCN category in relation to a zone for the purposes of paragraph 32B(2)(c), the Authority must have regard to:
(a) the purposes for which the zone may be used or entered; and
(b) the Australian IUCN Reserve Management Principles for the category.
(1) When the Authority has prepared a zoning plan in respect of an area, it must, by public notice:
(a) state that a zoning plan has been prepared in respect of the area; and
(b) invite the public to make comments in connection with the plan by the date specified in the notice (which must be at least 3 months after the date the notice is published in the
Gazette ); and(c) specify the address or addresses at which copies of the plan may be inspected or purchased; and
(d) specify the address to which comments must be sent; and
(e) specify that a statement prepared under subsection 35(2) is publicly available and how a copy may be obtained.
(2) The Authority must consider any comments made in accordance with the notice and, if it thinks fit, alter the plan accordingly.
Submission to Minister
(1) When the Authority has prepared a zoning plan in respect of an area, it must submit to the Minister:
(a) the plan; and
(b) if comments have been made in accordance with a notice under section 35B in connection with the plan—those comments, together with the Authority’s views on those comments.
Plan may be accepted or referred
(2) The Minister may:
(a) accept the plan; or
(b) refer the plan to the Authority, together with the Minister’s suggestions, for further consideration.
Process after plan is referred
(3) If the plan is referred to the Authority, it must, as soon as practicable after receiving the plan, further consider the plan, having regard to the Minister’s suggestions.
(4) The Authority must then submit the plan again, with or without alterations, to the Minister, together with its views on the Minister’s suggestions.
(5) When the plan is again submitted to the Minister, the Minister must, as soon as practicable after receiving the plan:
(a) accept the plan; or
(b) accept the plan after making such alterations as the Minister thinks fit.
(6) If the Minister alters the plan under subsection (5), the Minister must prepare a report:
(a) specifying the alterations; and
(b) setting out any views expressed by the Authority in respect of the matters to which the alterations relate.
(7) The report must accompany the plan when it is laid before both Houses of the Parliament under section 38 of the
Legislative Instruments Act 2003 .
Matters to which Minister must have regard
(8) In deciding whether to accept a zoning plan under this section, the Minister must have regard to the obligations of Australia under international law, including obligations under any agreement or arrangement between Australia and another country or countries.
A zoning plan prepared by the Authority and accepted by the Minister is a legislative instrument made by the Minister on the day on which the plan is accepted, but neither section 42 (disallowance) nor Part 6 (sunsetting) of the
Legislative Instruments Act 2003 applies to the plan.
(1) If notice of a motion to disallow a zoning plan is given in a House of the Parliament within 15 sitting days of that House after a copy of the plan was laid before that House, the House may, within 15 sitting days of that House after the giving of that notice, pass a resolution, in pursuance of the motion, disallowing the plan.
Note: A zoning plan is a legislative instrument (see section 35D) and must be laid before each House of the Parliament under section 38 of the
Legislative Instruments Act 2003 .(2) If:
(a) notice of a motion to disallow a zoning plan is given in a House of the Parliament within 15 sitting days of that House after a copy of the plan was laid before that House; and
(b) before the end of 15 sitting days of that House after the giving of that notice of motion, the House of Representatives is dissolved or expires, or the Parliament is prorogued; and
(c) at the time of the dissolution, expiry or prorogation, as the case may be:
(i) the notice has not been withdrawn and the motion has not been called on; or
(ii) the motion has been called on, moved and (where relevant) seconded and has not been withdrawn or otherwise disposed of;
the plan is taken, for the purposes of this section, to have been laid before the first‑mentioned House on the first sitting day of that first‑mentioned House after the dissolution, expiry or prorogation, as the case may be.
(3) If either House of the Parliament passes a resolution in accordance with subsection (1) disallowing a zoning plan:
(a) the Minister must direct the Authority to prepare a fresh plan; and
(b) the Authority must prepare a fresh plan in accordance with this Division.
(1) If:
(a) a zoning plan has been laid before both Houses of the Parliament under section 38 of the
Legislative Instruments Act 2003 ; and(b) neither House of the Parliament passes a resolution in accordance with subsection 35E(1) disallowing the plan;
the Minister must, as soon as practicable after the end of the last day on which a resolution disallowing the plan could have been passed, state, by public notice, that the plan is to come into operation on the date specified in the notice (which must not be earlier than the date the notice is published in the
Gazette ).
(2) The plan comes into operation on the date specified in the notice.
(3) The notice:
(a) must specify an address or addresses at which copies of the plan may be inspected or purchased; and
(b) may contain:
(i) a description of the zone or zones to which the plan relates; and
(ii) any other particulars of the plan.
Within 60 days after the day on which a notice under section 35F is published in the
Gazette in relation to a zoning plan, the Authority must make publicly available a report that contains a statement of how the Authority, in preparing the plan, had regard to the principles approved under section 34 relating to the preparation of the plan.
Omit “subsection 32(2)”, substitute “section 32C”.
Omit “Subsection 32(2)”, substitute “Section 32C”.
Insert:
Amendment is a legislative instrument
(2A) An amendment of a zoning plan, prepared by the Authority and accepted by the Minister, is a legislative instrument made by the Minister on the day on which the amendment is accepted, but neither section 42 (disallowance) nor Part 6 (sunsetting) of the
Legislative Instruments Act 2003 applies to the amendment.
Omit “subsection 32(2)”, substitute “section 32C”.
Omit “Subsection 32(2)”, substitute “Section 32C”.
Insert:
Revocation is a legislative instrument
(4A) A revocation of a zoning plan, prepared by the Authority and accepted by the Minister, is a legislative instrument made by the Minister on the day on which the revocation is accepted, but neither section 42 (disallowance) nor Part 6 (sunsetting) of the
Legislative Instruments Act 2003 applies to the revocation.
Omit “to 35”, substitute “to 35C and 35E to 35G”.
Note: The heading to subsection 37(8) is altered by omitting “
35 ” and substituting “35C and 35E to 35G ”.
Omit “section 32”, substitute “this Division”.
Omit “subsection 32(2)”, substitute “section 32C”.
Omit “Subsections 33(1) to (3) and (5) and (6)”, substitute “Subsections 35E(1) and (2) and section 35F”.
Omit “section 32”, substitute “section 35C”.
Add:
(3) An amendment of a zoning plan, prepared by the Authority and approved by the Minister, is a legislative instrument made by the Minister on the day on which the amendment is approved, but neither section 42 (disallowance) nor Part 6 (sunsetting) of the
Legislative Instruments Act 2003 applies to the amendment.
Insert:
Omit “(1) A reference in this Part to a
community group having a special interest ”, substitute “A reference in this Act to a community group having a special interest”.
Repeal the subsection.
Add:
(3) Plans of management prepared in accordance with this Part may set out:
(a) policies and strategies in relation to management of the matters referred to in section 39X; and
(b) enforcement provisions (see subsection 39ZD(5)).
Repeal the paragraphs, substitute:
(c) invite the public to make comments in relation to matters to be included in the plan by the date specified in the notice (which must be at least 1 month after the date the notice is published in the
Gazette ); and(d) specify the address to which comments must be sent.
Repeal the subsections, substitute:
(2) The Authority must take into account any comments made in accordance with the notice.
Omit “submissions”, substitute “comments”.
Repeal the subsection, substitute:
(1A) The Authority must, in preparing the plan of management, have regard to the following:
(a) any key threatening process that is relevant to the area, species or ecological community to which the plan relates;
(b) any critical habitat that is in the area, or that is relevant to the species or ecological community, to which the plan relates;
(c) if the plan relates to a listed threatened species or a listed threatened ecological community—any approved conservation advice, recovery plan, threat abatement plan or wildlife conservation plan that is relevant to the species or ecological community;
(d) any plan made under the
Marine Parks Act 2004 of Queensland or theNature Conservation Act 1992 of Queensland that is relevant to the area, species or ecological community to which the plan relates.(2) The plan of management must not be inconsistent with any of the following:
(a) a provision of this Act;
(b) a provision of a zoning plan in force for the area, or in force for an area relevant to the species or ecological community, to which the plan of management relates;
(c) if the plan of management relates to a listed threatened species or a listed threatened ecological community—a recovery plan or threat abatement plan that is relevant to the species or ecological community.
Repeal the paragraph, substitute:
(c) invite the public to make comments in connection with the plan by the date specified in the notice (which must be at least 1 month after the date the notice is published in the
Gazette ); and
Omit “submissions may”, substitute “comments must”.
Repeal the subsection.
Omit “submissions so made”, substitute “comments made in accordance with the notice”.
Repeal the section, substitute:
A plan of management made under subsection 39ZE(3) is a legislative instrument.
Note: A plan of management is not subject to sunsetting (see item 22 of the table in subsection 54(2) of the
Legislative Instruments Act 2003 ).
Omit “to 39ZF”, substitute “and 39ZE”.
Omit “submissions”, substitute “comments”.
Add:
(4) An amendment of a plan of management made in accordance with this section is a legislative instrument.
Note: An amendment of a plan of management is not subject to sunsetting (see item 22 of the table in subsection 54(2) of the
Legislative Instruments Act 2003 ).
Repeal the subsections, substitute:
(1) The Authority may, by legislative instrument, revoke a plan of management.
Note: A revocation of a plan of management is not subject to sunsetting (see item 22 of the table in subsection 54(2) of the
Legislative Instruments Act 2003 ).
Repeal the section, substitute:
(1) While a plan of management is in force in relation to an area of the Marine Park, the Authority must perform its functions and exercise its powers in relation to the area in accordance with that plan and not otherwise.
(2) While a plan of management is in force in relation to a species within the Marine Park or within an area of the Marine Park, the Authority must perform its functions and exercise its powers in relation to the species, or in relation to the species within the area, in accordance with that plan and not otherwise.
(3) While a plan of management is in force in relation to an ecological community within the Marine Park or within an area of the Marine Park, the Authority must perform its functions and exercise its powers in relation to the community, or in relation to the community within the area, in accordance with that plan and not otherwise.
Omit “zoning plans prepared under section 32 of that Act, instruments made under section 37 of that Act amending or revoking such zoning plans,”.
49 Zoning plans in force under Part V of the Great Barrier Reef Marine Park Act 1975 (1) This item applies if, immediately before the commencement of this Schedule, a zoning plan was in force under Part V of the
Great Barrier Reef Marine Park Act 1975 .(2) Despite the amendments made by this Schedule, the zoning plan continues in force after the commencement of this Schedule as if the plan had been prepared in accordance with Division 2 of Part V of the
Great Barrier Reef Marine Park Act 1975 , as that Division is in force immediately after the commencement of this Schedule.(3) Despite subsection 37(1) of the
Great Barrier Reef Marine Park Act 1975 , and subject to subsection 35A(2) of that Act as in force immediately after the commencement of this Schedule, the Authority may, with the Minister’s approval, amend the zoning plan for the purpose of designating an IUCN category for each zone, or each part of a zone, described in the plan.(4) Subsections 37A(2) and (3) of the
Great Barrier Reef Marine Park Act 1975 , as in force immediately after the commencement of this Schedule, apply to an amendment under subitem (3) in the same way as they apply to amendments under subsection 37A(1) of that Act.50 Plans of management in force under Part VB of the Great Barrier Reef Marine Park Act 1975 (1) This item applies if, immediately before the commencement of this Schedule, a plan of management was in force under Part VB of the
Great Barrier Reef Marine Park Act 1975 .(2) Despite the amendments made by this Schedule, the plan of management continues in force after the commencement of this Schedule as if the plan had been prepared in accordance with Part VB of the
Great Barrier Reef Marine Park Act 1975 , as that Part is in force immediately after the commencement of this Schedule.51 Plans of management etc. prepared under Part VB of the Great Barrier Reef Marine Park Act 1975 (1) This item applies if, before the commencement of this Schedule:
(a) a plan of management, or an amendment of a plan of management, was prepared under Part VB of the
Great Barrier Reef Marine Park Act 1975 ; and(b) a notice under subsection 39ZE(1) of that Act was given in relation to the plan or amendment; and
(c) the plan or amendment had not yet come into force.
(2) Despite the amendments made by this Schedule:
(a) Part VB of the
Great Barrier Reef Marine Park Act 1975 continues to apply in relation to the preparation and coming into force of the plan or amendment as if those amendments had not been made; and(b) after the plan or amendment comes into force, it is taken to be, and continues in force as if it were, a plan or amendment prepared in accordance with Part VB of the
Great Barrier Reef Marine Park Act 1975 , as that Part is in force immediately after the commencement of this Schedule.
52
Plans of management etc. being prepared under Part VB of the Great Barrier Reef Marine Park Act 1975
(1) If, before the commencement of this Schedule:
(a) a plan of management, or an amendment of a plan of management, was being prepared under Part VB of the
Great Barrier Reef Marine Park Act 1975 ; but(b) a notice under subsection 39ZE(1) of that Act had not been given in relation to the plan or amendment;
the amendments made by this Schedule apply in relation to the plan or amendment.
(2) This item does not limit the application that the amendments made by this Schedule have apart from this item.
Omit “or a plan for managing the Great Barrier Reef”, substitute “or it is for a purpose for which, under a zoning plan for a zone made under the
Great Barrier Reef Marine Park Act 1975 , the zone may be used or entered without permission”.
Insert:
Actions in Great Barrier Reef Marine Park affecting the environment
(1) A person must not take in the Great Barrier Reef Marine Park an action that has, will have or is likely to have, a significant impact on the environment.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
Actions outside Great Barrier Reef Marine Park affecting the environment in the Marine Park
(2) A person must not take outside the Great Barrier Reef Marine Park but in the Australian jurisdiction an action that:
(a) has or will have a significant impact on the environment in the Great Barrier Reef Marine Park; or
(b) is likely to have a significant impact on the environment in the Great Barrier Reef Marine Park.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
Exceptions to prohibition
(3) Subsection (1) or (2) does not apply to an action if:
(a) an approval of the taking of the action by the person is in operation under Part 9 for the purposes of the subsection; or
(b) Part 4 lets the person take the action without an approval under Part 9 for the purposes of the subsection; or
(c) there is in force a decision of the Minister under Division 2 of Part 7 that the subsection is not a controlling provision for the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or
(d) the person taking the action is the Commonwealth or a Commonwealth agency; or
(e) the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process).
Note: Section 28 regulates actions by the Commonwealth or a Commonwealth agency with a significant impact on the environment.
Actions in Great Barrier Reef Marine Park affecting the environment
(1) A person commits an offence if:
(a) the person takes an action; and
(b) the action is taken in the Great Barrier Reef Marine Park; and
(c) the action results or will result in a significant impact on the environment.
Penalty: Imprisonment for 7 years or 420 penalty units, or both.
(2) Strict liability applies to paragraph (1)(b).
Note: For strict liability, see section 6.1 of the
Criminal Code .
Actions in Great Barrier Reef Marine Park likely to affect the environment
(3) A person commits an offence if:
(a) the person takes an action; and
(b) the action is taken in the Great Barrier Reef Marine Park; and
(c) the action is likely to have a significant impact on the environment.
Penalty: Imprisonment for 7 years or 420 penalty units, or both.
(4) Strict liability applies to paragraph (3)(b).
Note: For strict liability, see section 6.1 of the
Criminal Code .
Actions outside Great Barrier Reef Marine Park affecting environment in the Marine Park
(5) A person commits an offence if:
(a) the person takes an action; and
(b) the action is taken outside the Great Barrier Reef Marine Park but in the Australian jurisdiction; and
(c) the action results in or will result in a significant impact on the environment in an area; and
(d) the area is the Great Barrier Reef Marine Park.
Penalty: Imprisonment for 7 years or 420 penalty units, or both.
(6) Strict liability applies to paragraphs (5)(b) and (d).
Note: For strict liability, see section 6.1 of the
Criminal Code .
Actions outside Great Barrier Reef Marine Park likely to affect environment in the Marine Park
(7) A person commits an offence if:
(a) the person takes an action; and
(b) the action is taken outside the Great Barrier Reef Marine Park but in the Australian jurisdiction; and
(c) the action is likely to have a significant impact on the environment in an area; and
(d) the area is the Great Barrier Reef Marine Park.
Penalty: Imprisonment for 7 years or 420 penalty units, or both.
(8) Strict liability applies to paragraphs (7)(b) and (d).
Note: For strict liability, see section 6.1 of the
Criminal Code .
Defences
(9) Subsection (1), (3), (5) or (7) does not apply to an action if:
(a) an approval of the taking of the action by the person is in operation under Part 9 for the purposes of the subsection; or
(b) Part 4 lets the person take the action without an approval under Part 9 for the purposes of the subsection; or
(c) there is in force a decision of the Minister under Division 2 of Part 7 that the subsection is not a controlling provision for the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or
(d) the person taking the action is the Commonwealth or a Commonwealth agency; or
(e) the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process).
Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the
Criminal Code .
Omit “(6).”, substitute “(6);”.
Insert:
(h) subsections 24C(1), (3), (5) and (7).
Insert:
(ga) subsections 24B(1) and (2);
After “areas”, insert “or in the Great Barrier Reef Marine Park”.
After “area”, insert “or the Great Barrier Reef Marine Park”.
Insert:
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Omit “the Great Barrier Reef Marine Park established by the
Great Barrier Reef Marine Park Act 1975 ”, substitute “a zone (within the meaning of theGreat Barrier Reef Marine Park Act 1975 ) of the Great Barrier Reef Marine Park”.Note: The heading to section 43 is altered by omitting “
permission ” and substituting “zoning plan ”.
Repeal the paragraph, substitute:
(b) it is for a purpose for which, under the zoning plan for the zone made under the
Great Barrier Reef Marine Park Act 1975 , the zone may be used or entered without permission.
Insert:
(1A) A provision of a bilateral agreement does not have any effect in relation to an action in the Great Barrier Reef Marine Park, unless the agreement expressly provides otherwise.
Note: The heading to section 49 is replaced by the heading “
Certain limits on scope of bilateral agreements ”.
Insert:
If:
(a) a proposal to take an action is referred to the Minister; and
(b) the action, or a component of the action, is to be taken in the Great Barrier Reef Marine Park;
the Minister must, as soon as practicable after receiving the referral, give a copy of the referral to the Great Barrier Reef Marine Park Authority.
After “24A,”, insert “24B, 24C,”.
After “24A,”, insert “24B, 24C,”.
Insert:
(2AA) For the purposes of subsection (2), if the provision of Part 3 is subsection 24B(1) or 24C(1) or (3), then the impacts of the action on the matter protected by that provision are only those impacts that the part of the action that is taken in the Great Barrier Reef Marine Park:
(a) has or will have; or
(b) is likely to have;
on the matter.
Add:
(5) For the purposes of subsections (1) and (2), if subsection 24B(1) or 24C(1) or (3) is or would be a controlling provision for the action, then the impacts of the action on the matter protected by that provision are only those impacts that the part of the action that is taken in the Great Barrier Reef Marine Park:
(a) has or will have; or
(b) is likely to have;
on the matter.
After “areas”, insert “or in the Great Barrier Reef Marine Park”.
Insert:
(3A) Tailored guidelines may also provide for the draft report to include information about other certain and likely impacts of the action if:
(a) the referral of the proposal to take the action is, because of section 37AB of the
Great Barrier Reef Marine Park Act 1975 , taken to be an application for a permission for the purposes of that Act; and(b) the Great Barrier Reef Marine Park Authority has asked the Minister to ensure that the draft report includes information about those other impacts for the purposes of deciding whether to grant the permission.
After “(3)”, insert “or (3A)”.
Insert:
(3A) Tailored guidelines may also provide for the draft statement to include information about other certain and likely impacts of an action if:
(a) the referral of the proposal to take the action is, because of section 37AB of the
Great Barrier Reef Marine Park Act 1975 , taken to be an application for a permission for the purposes of that Act; and(b) the Great Barrier Reef Marine Park Authority has asked the Minister to ensure that the draft statement includes information about those other impacts for the purposes of deciding whether to grant the permission.
After “(3)”, insert “or (3A)”.
Before “may”, insert “if subsection (4) or (4A) applies—”.
Omit “However, the Minister may specify other certain or likely impacts of the action only”, substitute “For the purposes of paragraph (3)(b), the Minister may specify other certain or likely impacts of the action”.
Insert:
(4A) For the purposes of paragraph (3)(b), the Minister may specify other certain or likely impacts of the action if:
(a) the referral of the proposal to take the action is, because of section 37AB of the
Great Barrier Reef Marine Park Act 1975 , taken to be an application for a permission for the purposes of that Act; and(b) the Great Barrier Reef Marine Park Authority has asked the Minister to ensure that the report includes information about those other impacts for the purposes of deciding whether to grant the permission.
25
Subsection 158A(1) (at the end of paragraph (h) of the definition of listing event ) Add:
(v) the Great Barrier Reef Marine Park;
Omit “(2) or”, substitute “(2),”.
After “or (4)”, insert “, 24B(1) or (2) or 24C(1), (3), (5) or (7)”.
Omit “(2) or”, substitute “(2),”.
After “or (4)”, insert “, 24B(1) or (2) or 24C(1), (3), (5) or (7)”.
Omit “(2) or”, substitute “(2),”.
After “or (4)”, insert “, 24B(1) or (2) or 24C(1), (3), (5) or (7)”.
After “or (4),”, insert “24B(1) or (2) or 24C(1), (3), (5) or (7),”.
After “or (4),”, insert “24B(1) or (2) or 24C(1), (3), (5) or (7),”.
After “or (4),”, insert “24B(1) or (2) or 24C(1), (3), (5) or (7),”.
Add:
(1) The Minister may, by signed instrument, delegate any or all of his or her powers or functions to which subsection (2) applies to:
(a) the Great Barrier Reef Marine Park Authority; or
(b) the Chairperson of the Great Barrier Reef Marine Park Authority; or
(c) a member of the staff of the Great Barrier Reef Marine Park Authority.
(2) For the purposes of subsection (1), this subsection applies to a power or function if:
(a) the exercise of the power or performance of the function relates (including in a way described in subsection 7(1A) of the
Great Barrier Reef Marine Park Act 1975 ) to the Great Barrier Reef Marine Park; or(b) the exercise of the power or performance of the function is incidental to a matter that relates (including in a way described in subsection 7(1A) of the
Great Barrier Reef Marine Park Act 1975 ) to the Great Barrier Reef Marine Park.Note: If a power or function is delegated to the Great Barrier Reef Marine Park Authority under this section, the Authority may sub‑delegate the power or function under section 47 of the
Great Barrier Reef Marine Park Act 1975 .(3) Despite subsection (1), the Minister must not delegate under that subsection a power or function under Part 17 (Enforcement) to a person mentioned in paragraph (1)(c) unless the person:
(a) is an SES employee or an acting SES employee; or
(b) holds, or is acting in, an Executive Level 1 or 2, or equivalent, position.
(4) In exercising a power or performing a function under a delegation, the delegate must comply with any directions of the Minister.
(5) This section does not limit the Minister’s power of delegation under section 515.
(1) The Secretary may, by signed instrument, delegate any or all of his or her powers or functions to which subsection (2) applies to:
(a) the Great Barrier Reef Marine Park Authority; or
(b) the Chairperson of the Great Barrier Reef Marine Park Authority; or
(c) a member of the staff of the Great Barrier Reef Marine Park Authority.
(2) For the purposes of subsection (1), this subsection applies to a power or function if:
(a) the exercise of the power or performance of the function relates (including in a way described in subsection 7(1A) of the
Great Barrier Reef Marine Park Act 1975 ) to the Great Barrier Reef Marine Park; or(b) the exercise of the power or performance of the function is incidental to a matter that relates (including in a way described in subsection 7(1A) of the
Great Barrier Reef Marine Park Act 1975 ) to the Great Barrier Reef Marine Park.Note: If a power or function is delegated to the Great Barrier Reef Marine Park Authority under this section, the Authority may sub‑delegate the power or function under section 47 of the
Great Barrier Reef Marine Park Act 1975 .(3) Despite subsection (1), the Secretary must not delegate under that subsection a power or function under Part 17 (Enforcement) to a person mentioned in paragraph (1)(c) unless the person:
(a) is an SES employee or an acting SES employee; or
(b) holds, or is acting in, an Executive Level 1 or 2, or equivalent, position.
(4) In exercising a power or performing a function under a delegation, the delegate must comply with any directions of the Secretary.
(5) This section does not limit the Secretary’s power of delegation under section 515.
Insert:
Great Barrier Reef Marine Park means the Great Barrier Reef Marine Park established under theGreat Barrier Reef Marine Park Act 1975 .
Insert:
Great Barrier Reef Marine Park Authority means the Great Barrier Reef Marine Park Authority established by theGreat Barrier Reef Marine Park Act 1975 .
Omit “by this Act”, substitute “under this or any other Act”.
Insert:
(daa) to exercise any powers, and perform any functions, relating to the Marine Park that have been delegated to the Authority under this or any other Act;
Omit “or (cd)”, substitute “, (cd), (d) or (daa)”.
Repeal the section, substitute:
(1) If:
(a) a proposal to take an action is referred to the Minister under Division 1 of Part 7 of the
Environment Protection and Biodiversity Conservation Act 1999 ; and(b) the action, or a component of the action, involves doing a thing that would be an offence against this Act if done without a permission under the regulations;
the referral is taken to be an application made in accordance with the regulations for that permission.
Note: A subsequent decision under the
Environment Protection and Biodiversity Conservation Act 1999 that the action is not a controlled action does not affect an application that is taken to have been made because of subsection (1).
(2) The Authority, or an agency that has responsibility under a zoning plan for granting permissions, must not grant a person permission under the regulations to do a thing if:
(a) the thing is, or is part of, an action that is a controlled action for the purposes of the
Environment Protection and Biodiversity Conservation Act 1999 ; and(b) the Minister has not decided under Part 9 of the
Environment Protection and Biodiversity Conservation Act 1999 to approve the taking of the action by the person for the purposes of each provision that is, for the purposes of that Act, a controlling provision for the action.
The Governor‑General must not make a Proclamation under section 344 of the
Environment Protection and Biodiversity Conservation Act 1999 declaring an area in the Great Barrier Reef Region to be a Commonwealth reserve under that Act.
(1) The amendments made by this Schedule do not apply in relation to an action that is an exempt action under this item.
(2) An action is an
exempt action if, immediately before the amendments commenced, an approval to take the action was in operation under Part 9 of theEnvironment Protection and Biodiversity Conservation Act 1999 .(3) An action is an
exempt action if, immediately before the amendments commenced:
(a) a person was taking the action; and
(b) Part 4 of the
Environment Protection and Biodiversity Conservation Act 1999 let the person take the action without an approval under Part 9 of that Act.(4) An action is an
exempt action if, immediately before the amendments commenced:
(a) there was in force a decision of the Minister under Division 2 of Part 7 of the
Environment Protection and Biodiversity Conservation Act 1999 that the action is not a controlled action; and(b) the action was not an action the taking of which would be an offence under the
Great Barrier Reef Marine Park Act 1975 if taken without a permission having been granted under regulations made under that Act.(5) An action that was the subject of an active referral (see item 43) at the time the amendments commenced is an
exempt action :
(a) from the time the amendments commence until the time the action ceases to be the subject of an active referral; and
(b) if the action ceases to be the subject of an active referral because an approval of the taking of the action starts to operate under Part 9 of the
Environment Protection and Biodiversity Conservation Act 1999 as a result of the referral—for so long as the approval is in operation.(6) An action that was the subject of an active application (see item 44) at the time the amendments commenced is an
exempt action :
(a) from the time the amendments commenced until the time the action ceases to be the subject of an active application; and
(b) if the action ceases to be the subject of an active application because a permission to take the action is granted in accordance with regulations made under the
Great Barrier Reef Marine Park Act 1975 as a result of the application—for so long as the permission has effect.
43
Actions that are the subject of an active referral For the purposes of subitem 42(5), an action is, at any particular time, the subject of an
active referral if, at that time:
(a) a proposal to take the action has been referred to the Minister under Division 1 of Part 7 of the
Environment Protection and Biodiversity Conservation Act 1999 ; and(b) the referral has not been withdrawn under section 170C of that Act; and
(c) the Minister has not decided under subsection 74A(1) of that Act not to accept the referral; and
(d) provisions of Chapter 4 of that Act are not stopped by Division 1A of Part 7 of that Act from applying in relation to the referral; and
(e) provisions of Chapter 4 of that Act are not stopped by section 155 of that Act from applying because of the referral in relation to the action (or a larger action of which the action is a component); and
(f) the Minister has not decided that the action (or a larger action of which the action is a component) is not a controlled action for the purposes of that Act; and
(g) no decision is in operation under Part 9 of that Act approving or not approving the taking of the action (or a larger action of which the action is a component).
44
Actions that are the subject of an active application For the purposes of subitem 42(6), an action is, at any particular time, the subject of an
active application if, at that time:
(a) an application for permission to take the action has been made in accordance with regulations made under the
Great Barrier Reef Marine Park Act 1975 ; and(b) the application has not been withdrawn; and
(c) the application has not been rejected; and
(d) the application has not lapsed; and
(e) the Great Barrier Reef Marine Park Authority has neither granted nor refused the permission.
Omit “section 43”, substitute “subsection 43(1)”.
Omit “, (except a member of a police force or an officer of Customs),”.
Insert:
(1A) Subsection (1) does not apply in relation to an inspector who is:
(a) a member of a police force; or
(b) an inspector by force of paragraph 397(1)(b); or
(c) an officer of Customs.
Add:
(4) For the purposes of this Act, a requirement for a person who is an inspector by force of paragraph 397(1)(b) to produce his or her identity card is satisfied if the person shows his or her identity card issued under section 45 of the
Great Barrier Reef Marine Park Act 1975 .
Insert:
(1) The powers of an authorised officer in relation to:
(a) an offence against an environmental law that is the
Great Barrier Reef Marine Park Act 1975 or regulations made under that Act; or(b) an environmental penalty provision that is a civil penalty provision of that Act; or
(c) a thing that may be done for the purposes of that Act;
may only be exercised by an authorised officer who is an inspector by force of paragraph 397(1)(a) or (b).
(2) To avoid doubt, an authorised officer who is an inspector by force of paragraph 397(1)(a) or (b) and also by force of paragraph 397(1)(c) is an authorised officer who may exercise the powers referred to in subsection (1).
Omit “this Act or the regulations, in relation to a contravention of a civil penalty provision”, substitute “an environmental law, in relation to a contravention of an environmental penalty provision”.
Omit “this Act or the regulations”, substitute “an environmental law”.
Omit “this Act or the regulations”, substitute “an environmental law”.
Repeal the subsection, substitute:
(5) An authorised officer may, for the purposes of this Act or the
Great Barrier Reef Marine Park Act 1975 (other than Part VIIA of that Act (compulsory pilotage)), require the person in charge of a vehicle, vessel, aircraft or platform to which this section applies to give information concerning any or all of the following:
(a) the vehicle, vessel, aircraft or platform;
(b) the crew or any other person on board the vehicle, vessel, aircraft or platform;
(c) in the case of a vessel—any dory being operated in association with the vessel;
(d) in the case of a vessel—any person operating a dory in association with the vessel.
Insert:
(5C) A reference in this section to an offence against an environmental law does not include an offence against Part VIIA of the
Great Barrier Reef Marine Park Act 1975 (compulsory pilotage).
Omit “this Act or the regulations, in relation to a contravention of a civil penalty provision”, substitute “an environmental law, in relation to a contravention of an environmental penalty provision”.
Omit “this Act or the regulations, in relation to a contravention of a civil penalty provision”, substitute “an environmental law, in relation to a contravention of an environmental penalty provision”.
Omit “this Act or the regulations, in relation to a contravention of a civil penalty provision”, substitute “an environmental law, in relation to a contravention of an environmental penalty provision”.
Omit “the Act or the regulations”, substitute “an environmental law”.
Omit “a civil penalty provision”, substitute “an environmental penalty provision”.
Omit “the civil penalty provision” (wherever occurring), substitute “the environmental penalty provision”.
Repeal the subsections.
Insert:
(1) This section applies if, in conducting a search referred to in paragraph 406(1)(a) or (ba), an authorised officer or a person who conducts a search because of subsection 406A(2) finds:
(a) an eligible seizable item; or
(b) a thing that may be evidential material in relation to an offence against an environmental law, in relation to a contravention of an environmental penalty provision or in relation to both.
(2) An authorised officer may:
(a) take possession of the item or thing; and
(b) keep the item or thing for so long as he or she thinks necessary for the purposes of this Act or the
Great Barrier Reef Marine Park Act 1975 .(3) A person who conducts a search because of subsection 406A(2) must take possession of the item or thing and give it to an authorised officer.
(4) An authorised officer who is given an item or thing under subsection (3) may keep it for so long as he or she thinks necessary for the purposes of this Act or the
Great Barrier Reef Marine Park Act 1975 .(5) If:
(a) an authorised officer is keeping an item or thing under subsection (2) or (4); and
(b) the item or thing was found in conducting a search of a person under paragraph 406(1)(ba); and
(c) the person is detained under Schedule 1;
the authorised officer may continue to keep the item or thing for so long as he or she thinks necessary for the purposes of this Act, the
Great Barrier Reef Marine Park Act 1975 or theMigration Act 1958 .Note: Once the person ceases to be detained under Schedule 1, the person will generally need to be detained under the
Migration Act 1958 while he or she is in the migration zone (because his or her enforcement visa under that Act will cease to have effect). Subsection (5) ensures the officer can keep the item or thing while the person is detained under this Act or that Act.
Omit “406A”, substitute “406AA”.
20
Subsection 407A(12) (paragraph (b) of the definition of relevant material ) Omit “this Act or the regulations”, substitute “an environmental law”.
Omit “this Act or the regulations”, substitute “an environmental law”.
Omit “this Act or the regulations, in relation to a contravention of a civil penalty provision”, substitute “an environmental law, in relation to a contravention of an environmental penalty provision”.
Omit “civil”, substitute “environmental”.
Omit “a civil”, substitute “an environmental”.
Omit “another offence against this Act”, substitute “another offence against an environmental law”.
Omit “a civil”, substitute “an environmental”.
Omit “committing an offence against this Act or the regulations or in contravening a civil penalty provision”, substitute “committing an offence against an environmental law or in contravening an environmental penalty provision”.
Omit “this Act or the regulations, in relation to a contravention of a civil penalty provision”, substitute “an environmental law, in relation to a contravention of an environmental penalty provision”.
Omit “a civil”, substitute “an environmental”.
Omit “another offence against this Act”, substitute “another offence against an environmental law”.
Omit “a civil”, substitute “an environmental”.
Omit “committing an offence against this Act or the regulations or in contravening a civil penalty provision”, substitute “committing an offence against an environmental law or in contravening an environmental penalty provision”.
Omit “a civil”, substitute “an environmental”.
Omit “another offence against this Act”, substitute “another offence against an environmental law”.
Omit “a civil”, substitute “an environmental”.
Omit “committing an offence against this Act or the regulations or in contravening a civil penalty provision”, substitute “committing an offence against an environmental law or in contravening an environmental penalty provision”.
Omit “this Act or the regulations, in relation to a contravention of a civil penalty provision”, substitute “an environmental law, in relation to a contravention of an environmental penalty provision”.
Omit “a civil”, substitute “an environmental”.
Omit “another offence against this Act”, substitute “another offence against an environmental law”.
Omit “a civil”, substitute “an environmental”.
Omit “committing an offence against this Act or the regulations or in contravening a civil penalty provision”, substitute “committing an offence against an environmental law or in contravening an environmental penalty provision”.
Omit “this Act or the regulations, in relation to a contravention of a civil penalty provision”, substitute “an environmental law, in relation to a contravention of an environmental penalty provision”.
Omit “this Act or the regulations, in relation to a contravention of a civil penalty provision”, substitute “an environmental law, in relation to a contravention of an environmental penalty provision”.
Omit “this Act or the regulations”, substitute “an environmental law”.
Add:
(4) A reference in this section to an offence against an environmental law does not include an offence against Part VIIA of the
Great Barrier Reef Marine Park Act 1975 (compulsory pilotage).
Omit “this Act or the regulations”, substitute “an environmental law”.
Omit “this Act or the regulations” (wherever occurring), substitute “an environmental law”.
Omit “a civil”, substitute “an environmental”.
Omit “this Act or the regulations” (wherever occurring), substitute “an environmental law”.
Omit “a civil”, substitute “an environmental”.
Omit “this Act or the regulations”, substitute “an environmental law”.
52
Subdivision A of Division 10 of Part 17 (heading) Repeal the heading, substitute:
Omit “this Act or the regulations, in relation to contravention of a civil penalty provision”, substitute “an environmental law, in relation to a contravention of an environmental penalty provision”.
Insert:
(3A) A reference in this section to an offence against an environmental law does not include an offence against Part VIIA of the
Great Barrier Reef Marine Park Act 1975 (compulsory pilotage).
Omit “this Act or the regulations has been committed, or whether a civil penalty provision”, substitute “an environmental law has been committed, or whether an environmental penalty provision”.
Omit “this Act or the regulations, or of a contravention of a civil penalty provision”, substitute “an environmental law, or of a contravention of an environmental penalty provision”.
Insert:
(1) An authorised officer may direct a person to deliver to the officer, or to another person specified in the direction, a thing that the officer is authorised to seize under a warrant issued under Division 4 or under section 445.
(2) The direction must:
(a) be in writing; and
(b) be given to the person who is directed to deliver the thing, who must be:
(i) if the thing is a vessel—the person in charge of the vessel, or the vessel’s owner; or
(ii) if the thing is an aircraft—the person in charge of the aircraft; or
(iii) otherwise—the person in possession of the thing; and
(c) specify the place at which the delivery is to occur; and
(d) specify the period within which the delivery is to occur.
(3) A person must not fail to comply with a direction under this section.
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
(4) This Part applies to a thing delivered in compliance with a direction under this section as if the thing had been seized under the warrant or section that authorised the officer to seize the thing.
(5) A direction made under subsection (1) is not a legislative instrument.
Before “If”, insert “(1)”.
Add:
(2) A person commits an offence if:
(a) a thing is released to the person under subsection (1) subject to a condition; and
(b) the person engages in conduct; and
(c) the conduct contravenes the condition.
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
(3) Absolute liability applies to paragraph (2)(a).
Note: For absolute liability, see section 6.2 of the
Criminal Code .
Omit “this Act or the regulations”, substitute “an environmental law”.
Omit “406A”, substitute “406AA”.
Omit “this Act or the regulations”, substitute “an environmental law”.
Omit “this Act or the regulations”, substitute “an environmental law”.
Add:
(4) A reference in this section to an offence against an environmental law does not include an offence against Part VIIA of the
Great Barrier Reef Marine Park Act 1975 (compulsory pilotage).
Omit “this Act or the regulations”, substitute “an environmental law”.
Omit “this Act or the regulations”, substitute “an environmental law”.
Omit “this Act or the regulations”, substitute “an environmental law”.
Add:
(3) A reference in this section to an offence against an environmental law does not include an offence against Part VIIA of the
Great Barrier Reef Marine Park Act 1975 (compulsory pilotage).
Omit “this Act”, substitute “an environmental law”.
Omit “this Act or the regulations”, substitute “an environmental law”.
Omit “a civil”, substitute “an environmental”.
Repeal the definition, substitute:
official means any of the following:
(a) the Minister;
(b) an officer or employee in the Department;
(c) the Director;
(d) the Chairperson of the Great Barrier Reef Marine Park Authority;
(e) a member of the staff of the Great Barrier Reef Marine Park Authority.
Omit “this Act or the regulations”, substitute “an environmental law”.
Omit “a civil”, substitute “an environmental”.
Insert:
dory means:
(a) a vessel in relation to which a licence or other permission (however described and whether or not in force) has been granted under a law of the Commonwealth, a State or a Territory authorising the vessel to be used in association with a primary commercial fishing vessel; or
(b) a vessel that is used in association with a primary commercial fishing vessel.
Note: A dory might also be known as a tender commercial fishing vessel.
Insert:
environmental law means:
(a) this Act; or
(b) the regulations; or
(c) the
Great Barrier Reef Marine Park Act 1975 ; or(d) regulations made under the
Great Barrier Reef Marine Park Act 1975 .
Insert:
environmental penalty provision means:
(a) a civil penalty provision under this Act; or
(b) a civil penalty provision under the
Great Barrier Reef Marine Park Act 1975 .
Insert:
primary commercial fishing vessel means:
(a) a vessel in relation to which a licence or other permission (however described and whether or not in force) has been granted under a law of the Commonwealth, a State or a Territory authorising the vessel to be used to take fish for commercial purposes; or
(b) a vessel that is used to take fish for commercial purposes.
Omit “this Act or the regulations”, substitute “an environmental law”.
Omit “this Act or the regulations”, substitute “an environmental law”.
Omit “this Act or the regulations”, substitute “an environmental law”.
After “this Act”, insert “, the
Great Barrier Reef Marine Park Act 1975 ”.
After “the Director,”, insert “the Chairperson of the Great Barrier Reef Marine Park Authority”.
Omit “this Act or the regulations”, substitute “an environmental law”.
Omit “this Act or the regulations”, substitute “an environmental law”.
After “the Director”, insert “, the Chairperson of the Great Barrier Reef Marine Park Authority”.
After “Director”, insert “, Chairperson”.
Insert:
civil penalty provision has the meaning given by section 61AID.
Insert:
class vessel monitoring direction has the meaning given by subsection 61AAA(7).
Insert:
declaration of contravention means a declaration made under section 61AIA.
Insert:
emergency direction has the meaning given by subsection 61ACA(2).
Insert:
enforceable direction has the meaning given by subsection 61ADA(2).
93
Subsection 3(1) (definition of evidential material ) Repeal the definition.
Insert:
executive officer , of a body corporate, means a person, by whatever name called and whether or not a director of the body, who is concerned in, or takes part in, the management of the body.
Insert:
Federal Court means the Federal Court of Australia.
Repeal the definition.
Insert:
individual vessel monitoring direction has the meaning given by subsection 61AAA(2).
98
Subsection 3(1) (paragraph (a) of the definition of inspector ) Omit “section 43”, substitute “subsection 43(1)”.
99
Subsection 3(1) (definition of ordinary search ) Repeal the definition.
Insert:
pecuniary penalty order means an order referred to in subsection 61AIC(2).
Insert:
penalty unit has the meaning given by section 4AA of theCrimes Act 1914 .
Insert:
remediation order has the meaning given by subsection 61AHA(1).
Insert:
reviewable decision has the meaning given by subsection 64(3).
Repeal the definition.
Insert:
vessel monitoring direction means an individual vessel monitoring direction or a class vessel monitoring direction.
Insert:
vessel monitoring system means a system in which vessels are fitted with an electronic device that can provide information about the vessels’ course or position, or other such information.
Repeal the subsection, substitute:
(10) If the owner of a vessel does not operate the vessel, a reference in this Act to the owner of the vessel includes a reference to a person who is a party to an agreement with the owner under which the person, or the person and the owner, may determine the activities for which the vessel is used.
Add “or to be subject to civil proceedings for a contravention of a civil penalty provision”.
Omit “subsection 64(8)”, substitute “subsection 61ANA(8)”.
Repeal the heading, substitute:
(1) A person who uses or enters the Marine Park must take all reasonable steps to prevent or minimise harm to the environment in the Marine Park that might or will be caused by the person’s use or entry.
Note: The Minister may accept an enforceable undertaking under section 61ABA, or make an enforceable direction under section 61ADA, in relation to a contravention of this duty.
(2) For the purposes of subsection (1),
harm includes the following:
(a) it was for the purpose of securing the safety of the vessel, aircraft or platform;
(b) it was for the purpose of saving life at sea;
(c) it was for the purpose of combating a specific incident of pollution in order to minimise the damage from pollution and had been approved by:
(i) a prescribed officer within the meaning of subsection 3(2) of the
Protection of the Sea (Prevention of Pollution from Ships) Act 1983 ; or(ii) the Authority under section 38DE.
Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the
Criminal Code .
Defence—discharge in zone where discharges do not require permission
(9) Subsections (1) and (4) do not apply in relation to the discharge of waste in a zone if the discharge of waste is for a purpose for which, under the zoning plan for the zone, the zone may be used or entered without permission.
Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the
Criminal Code .
For the purposes of subparagraphs 38DD(8)(c)(ii), 38EA(7)(c)(ii) and 38EB(3)(c)(ii), the Authority may approve a proposed discharge of waste from a vessel, aircraft or platform if the Authority is satisfied that the discharge is for the purpose of combating a specific incident of pollution in order to minimise the damage from pollution.
Contravening condition of permission or authority
(1) A person commits an offence if:
(a) the person is authorised to do something by:
(i) a permission granted under the regulations for the purposes of a provision of this Act or of a zoning plan; or
(ii) an authority given in accordance with a condition of a permission referred to in subparagraph (i); and
(b) the permission is subject to a condition; and
(c) the person engages in conduct; and
(d) the conduct contravenes the condition.
Penalty:
(a) for an aggravated offence—1,000 penalty units; or
(b) in any other case—500 penalty units.
(2) Absolute liability applies to paragraphs (1)(a) and (b).
Note: For absolute liability, see section 6.2 of the
Criminal Code .(3) The fault element for paragraph (1)(d) is negligence.
Note: For negligence, see section 5.5 of the
Criminal Code .
Contravening condition of permission or authority: strict liability
(4) A person commits an offence if:
(a) the person is authorised to do something by:
(i) a permission granted under the regulations for the purposes of a provision of this Act or of a zoning plan; or
(ii) an authority given in accordance with a condition of a permission referred to in subparagraph (i); and
(b) the permission is subject to a condition; and
(c) the person engages in conduct; and
(d) the conduct contravenes the condition.
Penalty: 60 penalty units.
(5) Strict liability applies to subsection (4).
Note: For strict liability, see section 6.1 of the
Criminal Code .
Defence—certain discharges of fish from vessels and aircraft
(6) Subsections (1) and (4) do not apply to the discharge of waste from a vessel or aircraft if:
(a) the waste is fresh fish, or parts of fresh fish, caught in the Marine Park; and
(b) the waste is not discharged in a part of the Marine Park specified in the regulations for the purposes of this paragraph.
Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the
Criminal Code .
Defence—certain discharges from vessels, aircraft and platforms
(7) Subsections (1) and (4) do not apply to the discharge of waste from a vessel, aircraft or platform if any of the following apply in relation to the discharge:
(a) it was for the purpose of securing the safety of the vessel, aircraft or platform;
(b) it was for the purpose of saving life at sea;
(c) it was for the purpose of combating a specific incident of pollution in order to minimise the damage from pollution and had been approved by:
(i) a prescribed officer within the meaning of subsection 3(2) of the
Protection of the Sea (Prevention of Pollution from Ships) Act 1983 ; or(ii) the Authority under section 38DE.
Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the
Criminal Code .
(1) A person who is authorised to do something by:
(a) a permission granted under the regulations for the purposes of a provision of this Act or of a zoning plan; or
(b) an authority given in accordance with a condition of a permission referred to in paragraph (a);
must not engage in conduct that contravenes a condition of the permission.
Civil penalty:
(a) for an aggravated contravention by an individual—2,000 penalty units; or
(b) for an individual in any other case—1,000 penalty units; or
(c) for an aggravated contravention by a body corporate—20,000 penalty units; or
(d) for a body corporate in any other case—10,000 penalty units.
(2) Subsection (1) does not apply to the discharge of waste from a vessel or aircraft if:
(a) the waste is fresh fish, or parts of fresh fish, caught in the Marine Park; and
(b) the waste is not discharged in a part of the Marine Park specified in the regulations for the purposes of this paragraph.
(3) Subsection (1) does not apply to the discharge of waste from a vessel, aircraft or platform if any of the following apply:
(a) it was for the purpose of securing the safety of the vessel, aircraft or platform;
(b) it was for the purpose of saving life at sea;
(c) it was for the purpose of combating a specific incident of pollution in order to minimise the damage from pollution and had been approved by:
(i) a prescribed officer within the meaning of subsection 3(2) of the
Protection of the Sea (Prevention of Pollution from Ships) Act 1983 ; or(ii) the Authority under section 38DE.
(1) A person commits an offence if:
(a) a person is responsible (see subsection (4)) for a vessel, aircraft or platform; and
(b) the vessel, aircraft or platform is used in committing an offence against a provision of another Division of this Part; and
(c) the person failed to take all reasonable steps and to exercise due diligence to prevent the vessel, aircraft or platform being used in committing the offence.
Penalty: The penalty for which the person would have been liable had the person committed the offence referred to in paragraph (1)(b).
Note: See also Division 8.
(2) Strict liability applies to paragraphs (1)(a) and (b).
Note: For strict liability, see section 6.1 of the
Criminal Code .(3) In determining whether the person took all reasonable steps and exercised due diligence for the purposes of paragraph (1)(c), have regard to:
(a) any steps the person took to become satisfied that this Act would be complied with; and
(b) if the person was, or should have been, aware that there was a risk that the vessel, aircraft or platform would be used in committing an offence—any steps the person took to reduce or remove that risk.
(4) For the purposes of paragraph (1)(a), each of the following persons is
responsible for the vessel, aircraft or platform:
(a) the master of the vessel or the person in charge of the aircraft or platform;
(b) the owner or a co‑owner, or an owner of any part of or share in, the vessel, aircraft or platform;
(c) a party to an agreement with a person referred to in paragraph (a) or (b) under which the party, or the party and the other person, may determine the activities for which the vessel, aircraft or platform is used;
(d) in relation to a primary commercial fishing vessel used in committing an offence constituted by conduct that is fishing:
(i) a person who, under a law of the Commonwealth, a State or Territory, holds a licence or other permission (however described and including one that is suspended) permitting the vessel to be used to take fish for commercial purposes; and
(ii) a person who, under a law of the Commonwealth, a State or Territory, holds a licence or other permission (however described and including one that is suspended) permitting the person to be in charge of the vessel’s fishing operations;
(e) in relation to a dory used in committing an offence constituted by conduct that is fishing:
(i) the master of the primary commercial fishing vessel in association with which the dory is used; and
(ii) a person who, under a law of the Commonwealth, a State or a Territory, holds a licence or other permission (however described and including one that is suspended) permitting the dory to be used in association with a primary commercial fishing vessel; and
(iii) a person who, under a law of the Commonwealth, a State or a Territory, holds a licence or other permission (however described and including one that is suspended) permitting the primary commercial fishing vessel in association with which the dory is used to be used to take fish for commercial purposes; and
(iv) a person who, under a law of the Commonwealth, a State or a Territory, holds a licence or other permission (however described and including one that is suspended) permitting the person to be in charge of the fishing operations of the primary commercial fishing vessel in association with which the dory is used.
(1) A person commits an offence if:
(a) the person is an owner of or the master of a vessel; and
(b) the vessel is used in committing an offence against a provision of another Division of this Part; and
(c) the conduct constituting the offence is engaged in in a zone; and
(d) the vessel is a ship within the meaning of the zoning plan for the zone.
Penalty: 500 penalty units.
(2) Strict liability applies to subsection (1).
Note: For strict liability, see section 6.1 of the
Criminal Code .
(1) A person commits an offence if:
(a) the person is an owner of or the master of a vessel; and
(b) the vessel is used in committing an offence against section 38DA (vessel causing damage in Marine Park) or 38DD (discharging waste).
Penalty: 500 penalty units.
(2) Strict liability applies to subsection (1).
Note: For strict liability, see section 6.1 of the
Criminal Code .
(1) A person commits an offence if:
(a) the person gives another person authority to engage in conduct; and
(b) the authority is given in accordance with a permission granted under the regulations for the purposes of a provision of this Act or of a zoning plan; and
(c) the permission is subject to a condition; and
(d) the other person commits an offence against section 38EA involving a contravention of the condition; and
(e) the person failed to take all reasonable steps and to exercise due diligence to prevent the other person contravening the condition.
Penalty: The penalty for which the person would have been liable had the person committed the offence referred to in paragraph (1)(d).
(2) Strict liability applies to paragraphs (1)(a), (b), (c) and (d).
Note: For strict liability, see section 6.1 of the
Criminal Code .(3) In determining whether the person took all reasonable steps and exercised due diligence for the purposes of paragraph (1)(e), have regard to:
(a) any steps the person took to become satisfied that the conditions of the permission would be complied with; and
(b) if the person was, or should have been, aware that there was a risk that the other person would contravene a condition of the permission—any steps the person took to reduce or remove that risk.
(1) A person commits an
aggravated offence against a provision of this Part if the conduct the person engaged in that constituted the offence:
(a) was fishing that involved a primary commercial fishing vessel or a dory; or
(b) was navigating a vessel that is a ship within the meaning of the zoning plan for the zone in which the vessel was being navigated; or
(c) resulted in:
(i) the taking of or injury to an animal or plant that is a member of a protected species; or
(ii) serious harm to the environment in the Marine Park (see subsection (7)); or
(d) had the potential to result in serious harm to the environment in the Marine Park (see subsection (8)); or
(e) was done for a commercial purpose.
(2) If the prosecution intends to prove an aggravated offence, the charge must allege the relevant aggravated offence.
(3) In order to prove an aggravated offence, the prosecution must prove the following:
(a) if paragraph (1)(a) applies—that the defendant was reckless as to whether the conduct he or she engaged in was fishing;
(b) if paragraph (1)(b) applies—that the defendant was reckless as to whether the conduct he or she engaged in was navigating a vessel;
(c) if paragraph (1)(c) applies—that the defendant was reckless as to whether the conduct he or she engaged in had the result referred to in paragraph (1)(c);
(d) if paragraph (1)(d) applies—that the defendant was reckless as to whether the conduct he or she engaged in had the potential to result in serious harm to the environment in the Marine Park;
(e) if paragraph (1)(e) applies—that the defendant intended to engage in the conduct for a commercial purpose.
(4) Strict liability applies to:
(a) if paragraph (1)(a) applies—the physical element of circumstance, that the fishing involved a primary commercial fishing vessel or a dory; and
(b) if paragraph (1)(b) applies—the physical element of circumstance, that the vessel is a ship within the meaning of the zoning plan for the zone in which it was being navigated; and
(c) if subparagraph (1)(c)(i) applies—the physical element of circumstance, that the animal or plant is a member of a protected species.
Note: For strict liability, see section 6.1 of the
Criminal Code .(5) If, in a prosecution for an aggravated offence against a provision of this Part, the trier of fact:
(a) is not satisfied that the defendant has committed an aggravated offence against that provision; and
(b) is satisfied beyond reasonable doubt that the defendant has committed an offence against that provision;
the trier of fact may find the defendant not guilty of the aggravated offence but guilty of an offence against that provision.
(6) For the purposes of paragraph (1)(b),
navigate includes moor, or anchor, in the course of navigation.(7) In determining for the purposes of subparagraph (1)(c)(ii) whether conduct has resulted in serious harm to the environment in the Marine Park, have regard to the following:
(a) the harm;
(b) the size of the affected environment;
(c) the sensitivity of the affected environment;
(d) the significance of the affected environment;
(e) the management objectives contained in the zoning plan for the zone in which the person engaged in the conduct;
(f) whether the harm is irreversible;
(g) the measures required to remedy the harm.
(8) In determining for the purposes of paragraph (1)(d) whether conduct had the potential to result in serious harm to the environment in the Marine Park, have regard to the potential for the conduct to result in serious harm for the purposes of subparagraph (1)(c)(ii).
(1) A contravention of a civil penalty provision by a person is an
aggravated contravention if the conduct the person engaged in that constituted the contravention:
(a) was fishing that involved a primary commercial fishing vessel or a dory; or
(b) was navigating a vessel that is a ship within the meaning of the zoning plan for the zone in which the vessel is being navigated; or
(c) resulted in:
(i) the taking of or injury to an animal or plant that is a member of a protected species; or
(ii) serious harm to the environment in the Marine Park; or
(d) had the potential to result in serious harm to the environment in the Marine Park; or
(e) was done for a commercial purpose.
(2) If the Authority, on behalf of the Commonwealth, intends to prove that the person has committed an aggravated contravention, the Authority’s application to the Federal Court under section 61AIA in relation to the contravention must specify the relevant aggravated contravention.
(3) If, in proceedings for a declaration of contravention in relation to an aggravated contravention of a provision of this Part, the Federal Court:
(a) is not satisfied that the person has committed an aggravated contravention against that provision; and
(b) is satisfied beyond reasonable doubt that the person has contravened that provision;
the Federal Court may make a pecuniary penalty order against the person not for the aggravated contravention but for the contravention of that provision.
(4) Subsection 38GA(6) (about navigation) also applies for the purposes of paragraph (1)(b).
(5) Subsections 38GA(7) and (8) (about serious harm) also apply for the purposes of subparagraph (1)(c)(ii) and paragraph (1)(d).
(1) A prosecution of an individual for an offence against a provision of this Part, the maximum penalty for which:
(a) does not include a term of imprisonment (otherwise than because of section 38HC, 38HD, 38HE or 38HF); or
(b) includes a term of imprisonment of 6 months or less;
may be commenced at any time within 2 years of the commission of the offence.
Note: Subsection (1) extends by a year the deadline that would otherwise apply to these offences under section 15B of the
Crimes Act 1914 . For offences with a maximum penalty of more than 6 months’ imprisonment, section 15B of that Act means that there is no deadline.
(2) A prosecution of a body corporate for an offence against a provision of this Part, the maximum penalty for which is a fine of 150 penalty units or less, may be commenced at any time within 2 years of commission of the offence.
Note: Subsection (2) extends by a year the deadline that would otherwise apply to these offences under section 15B of the
Crimes Act 1914 . For offences with a maximum penalty of more than 150 penalty units, section 15B of that Act means that there is no deadline.(3) In applying subsection 15B(1) of the
Crimes Act 1914 to an offence against a provision of this Part, disregard the effect of sections 38HC, 38HD, 38HE and 38HF.
(1) Proceedings for an offence committed by a person against a provision of Division 6 of this Part must not be commenced without the Attorney‑General’s written consent if the person is not an Australian citizen, an Australian resident or a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.
(2) In deciding whether to consent for the purposes of this section, the Attorney‑General must have regard to the obligations of Australia under international law, including obligations under any agreement or arrangement between Australia and another country or countries.
(1) This section applies in relation to an offence committed by a person against a provision of this Part (other than a provision of Division 6) if:
(a) the conduct constituting the offence occurs in the exclusive economic zone of Australia; and
(b) none of the following apply:
(i) the person is an Australian citizen, an Australian resident or a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory;
(ii) an Australian vessel is used in committing the offence;
(iii) an Australian aircraft is used in committing the offence;
(iv) a platform located in the Great Barrier Reef Region is used in committing the offence; and
(c) the penalty set out at the foot of the provision for an offence against the provision includes imprisonment.
(2) Despite the penalty set out at the foot of the provision, the penalty for the offence committed by the person does not include imprisonment.
(1) This section applies in relation to an offence (a
vicarious liability offence ) committed by a person against a provision of Division 6 of this Part if:
(a) the conduct constituting the offence (the
underlying offence ) to which the vicarious liability offence relates occurs in the exclusive economic zone of Australia; and(b) the person is not an Australian citizen, an Australian resident or a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and
(c) the penalty set out at the foot of the provision for an offence against the provision includes imprisonment.
(2) Despite the penalty set out at the foot of the provision, the penalty for the offence committed by the person does not include imprisonment.
(1) This section applies in relation to an offence committed by a person against a provision of this Part (other than a provision of Division 6) if:
(a) the result of the conduct constituting the offence is pollution of the marine environment (however described); and
(b) the conduct occurs in the territorial sea of Australia; and
(c) none of the following apply:
(i) the person is an Australian citizen, an Australian resident or a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory;
(ii) an Australian vessel is used in committing the offence;
(iii) an Australian aircraft is used in committing the offence;
(iv) a platform located in the Great Barrier Reef Region is used in committing the offence; and
(d) the penalty set out at the foot of the provision for an offence against that provision includes imprisonment.
(2) Despite the penalty set out at the foot of the provision, the penalty for the offence committed by the person only includes imprisonment if the prosecution proves that:
(a) the person intended to engage in the conduct that constituted the offence; and
(b) the pollution is serious.
(1) This section applies in relation to an offence (a
vicarious liability offence ) committed by a person against a provision of Division 6 of this Part if:
(a) the result of the conduct constituting the offence (the
underlying offence ) to which the vicarious liability offence relates is pollution of the marine environment (however described); and(b) the conduct constituting the underlying offence occurs in the territorial sea of Australia; and
(c) the person is not an Australian citizen, an Australian resident or a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and
(d) the penalty set out at the foot of the provision for an offence against that provision includes imprisonment.
(2) Despite the penalty set out at the foot of the provision, the penalty for the offence committed by the person only includes imprisonment if the prosecution proves that:
(a) the person who engaged in the conduct that constituted the underlying offence intended to engage in that conduct; and
(b) the pollution is serious.
Insert:
Civil penalty for failing to collect charge
(1A) A holder of a chargeable permission must not fail to collect charge from a visitor if:
(a) the holder provides a service to the visitor under the permission; and
(b) charge is due and payable by the visitor in relation to the permission.
Civil penalty:
(a) for an individual—100 penalty units; or
(b) for a body corporate—500 penalty units.
Omit “subsection (1)”, substitute “subsections (1) and (1A)”.
Add “or for a contravention of subsection (1A)”.
After “subsection (1)”, insert “or a court makes a declaration of contravention against a person for a contravention of subsection (1A)”.
Add “or the amount of any pecuniary penalty order made against the person for the contravention of subsection (1A)”.
Insert:
Civil penalty for failing to pay collected amount on time
(2A) A holder of a chargeable permission must not fail to pay a collected amount to the Authority before or on the day it is due and payable.
Civil penalty:
(a) for an individual—20 penalty units; or
(b) for a body corporate—100 penalty units.
Note: The following heading to subsection 39FB(1) is inserted “
Offence for failing to pay collected amount on time ”.
After “subsection (1)”, insert “or a court makes a declaration of contravention against a person for a contravention of subsection (2A)”.
Note: The following heading to subsection 39FB(3) is inserted “
Penalty for failing to pay collected amount on time ”.
Add “or the amount of any pecuniary penalty order made against the person for the contravention of subsection (2A)”.
Add:
(1) A person commits an offence if:
(a) the person makes a false or misleading representation; and
(b) the person is reckless as to whether the representation is false or misleading; and
(c) the representation relates to:
(i) a person’s liability to pay a tax, charge or fee (however described) imposed by the Commonwealth for purposes connected with use of or entry to the Marine Park; or
(ii) the amount of any such tax, charge or fee; and
(d) the representation is made in the course of providing a tourism‑related service (see subsection (3)).
Penalty: 1,000 penalty units.
(2) In a prosecution for an offence against subsection (1), it is not necessary to prove that the representation expressly refers to the Marine Park or to an imposition by the Commonwealth.
(3) For the purposes of subsection (1), a
tourism‑related service means:
(a) a service provided on a commercial basis to or for the benefit of tourists, or in relation to tourism, in Australia; and
(b) any action incidental to such a service (for example, advertising a service).
Repeal the subsections, substitute:
(1) If any charge payable by a person (other than a visitor) remains unpaid after the time when it became due for payment, the person is liable to pay, by way of penalty, an amount (the
late payment penalty ) equal to:
(a) the amount worked out at the rate of 20% per annum of the amount unpaid, as at the time the amount unpaid became due for payment; or
(b) if the amount worked out under paragraph (a) is less than $250—$250.
(1A) If a collected amount payable by a person remains unpaid after the time when it became due for payment, the person is liable to pay, by way of penalty, an amount (the
late payment penalty ) equal to:
(a) the amount worked out at the rate of 20% per annum of the amount unpaid, as at the time the amount unpaid became due for payment; or
(b) if the amount worked out under paragraph (a) is less than $250—$250.
(1B) If a penalty amount payable by a person remains unpaid after the time when it became due for payment, the person is liable to pay, by way of penalty, an amount (the
late payment penalty ) equal to:
(a) the amount worked out at the rate of 20% per annum of the amount unpaid, as at the time the amount unpaid became due for payment; or
(b) if the amount worked out under paragraph (a) is less than $250—$250.
In this Part:
Marine Park regulations means regulations made under theGreat Barrier Reef Marine Park Act 1975 .
36
Mining or drilling in Great Barrier Reef Region (sections 38AA and 38AB) A reference in section 38AA or 38AB of the
Great Barrier Reef Marine Park Act 1975 , as in force after the commencement of this Schedule, to a permission granted under the regulations for the purposes of section 38AA includes a reference to an approval that meets the following conditions:
(a) the approval was given by the Authority under subsection 38(3) of the
Great Barrier Reef Marine Park Act 1975 as in force before the commencement of this Schedule;(b) either:
(i) the approval was in force immediately before the commencement of this Schedule; or
(ii) if, at the time this Schedule commenced, the approval was suspended—the suspension has been removed under Marine Park regulations;
(c) the approval is not suspended under Marine Park regulations;
(d) the approval has not expired or been revoked under Marine Park regulations.
A reference in section 38BA or 38BB of the
Great Barrier Reef Marine Park Act 1975 , as in force after the commencement of this Act, to a permission granted under the regulations for the purposes of the zoning plan includes a reference to a permission that meets the following conditions:
(a) the permission was granted or transferred to a person under Marine Park regulations before the commencement of this Schedule;
(b) the permission was, immediately before the commencement of this Schedule, a permission of a kind declared by Marine Park regulations to be a permission to which section 38B, 38CB or 38MA of the
Great Barrier Reef Marine Park Act 1975 applied;(c) either:
(i) the permission was in force immediately before the commencement of this Schedule; or
(ii) if, at the time this Schedule commenced, the permission was suspended—the suspension has been removed under Marine Park regulations;
(d) the permission is not suspended under Marine Park regulations;
(e) the permission has not expired or been revoked under Marine Park regulations.
38
Conduct in unzoned area (sections 38CA and 38CB) A reference in section 38CA or 38CB of the
Great Barrier Reef Marine Park Act 1975 , as in force after the commencement of this Schedule, to a permission granted under the regulations for the purposes of section 38CA includes a reference to a permission that meets the following conditions:
(a) the permission was granted or transferred to a person under Marine Park regulations before the commencement of this Schedule;
(b) the permission was, immediately before the commencement of this Schedule, a permission of a kind declared by Marine Park regulations to be a permission to which section 38F of the
Great Barrier Reef Marine Park Act 1975 applied;(c) either:
(i) the permission was in force immediately before the commencement of this Schedule; or
(ii) if, at the time this Schedule commenced, the permission was suspended—the suspension has been removed under Marine Park regulations;
(d) the permission is not suspended under Marine Park regulations;
(e) the permission has not expired or been revoked under Marine Park regulations.
(1) A reference in section 38DC of the
Great Barrier Reef Marine Park Act 1975 , as in force after the commencement of this Schedule, to an order or direction of a kind declared by the regulations to be an order or direction to which section 38DC applies includes a reference to an order that meets the following conditions:
(a) the order was given before the commencement of this Schedule;
(b) the order was, immediately before the commencement of this Schedule, an order of a kind declared by the regulations to be an order to which section 38H of the
Great Barrier Reef Marine Park Act 1975 applied;(c) the order was in force immediately before the commencement of this Schedule;
(d) the order has not expired or been revoked.
(2) A reference in section 38DC of the
Great Barrier Reef Marine Park Act 1975 , as in force after the commencement of this Schedule, to an order or direction of a kind declared by the regulations to be an order or direction to which section 38DC applies includes a reference to a direction that meets the following conditions:
(a) the direction was given before the commencement of this Schedule;
(b) the direction was, immediately before the commencement of this Schedule, a direction of a kind declared by Marine Park regulations to be a direction to which section 38E of the
Great Barrier Reef Marine Park Act 1975 applied;(c) the direction was in force immediately before the commencement of this Schedule;
(d) the direction has not expired or been revoked.
A reference in section 38DD of the
Great Barrier Reef Marine Park Act 1975 , as in force after the commencement of this Schedule, to a permission granted under the regulations for the purposes of that section includes a reference to a permission that meets the following conditions:
(a) the permission was granted or transferred to a person under Marine Park regulations before the commencement of this Schedule;
(b) the permission was, immediately before the commencement of this Schedule, a permission of a kind declared by Marine Park regulations to be a permission to which section 38B or 38J of that Act applied;
(c) either:
(i) the permission was in force immediately before the commencement of this Schedule; or
(ii) if, at the time this Schedule commenced, the permission was suspended—the suspension has been removed under Marine Park regulations;
(d) the permission is not suspended under Marine Park regulations;
(e) the permission has not expired or been revoked under Marine Park regulations.
41
Conduct contravening condition of permission or authority (sections 38EA and 38EB) A reference in section 38EA or 38EB of the
Great Barrier Reef Marine Park Act 1975 , as in force after the commencement of this Schedule, to a permission granted under the regulations for the purposes of a provision of theGreat Barrier Reef Marine Park Act 1975 or of a zoning plan includes a reference to a permission that meets the conditions in item 27, 28, 29 or 31.
42
Liability of permission holder for conduct contravening permission (section 38FD) A reference in section 38FD of the
Great Barrier Reef Marine Park Act 1975 , as in force after the commencement of this Schedule, to a permission granted under the regulations for the purposes of a provision of theGreat Barrier Reef Marine Park Act 1975 or of a zoning plan includes a reference to a permission that meets the conditions in item 27, 28, 29 or 31.
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