Actions in Commonwealth marine areas affecting the environment

(1)

A person is guilty of an offence if:

(a)

the person takes an action; and

(b)

the action is taken in a Commonwealth marine area; and

(c)

the action results or will result in a significant impact on the environment.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Actions in Commonwealth marine areas likely to affect the environment

(2)

A person is guilty of an offence if:

(a)

the person takes an action; and

(b)

the action is taken in a Commonwealth marine area; and

(c)

the action is likely to have a significant impact on the environment and the person is reckless as to that fact.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Actions outside Commonwealth marine areas affecting those areas

(3)

A person is guilty of an offence if:

(a)

the person takes an action; and

(b)

the action is taken outside a Commonwealth marine area but in the Australian jurisdiction; and

(c)

the action results or will result in a significant impact on the environment in a Commonwealth marine area.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Actions likely to affect environment in Commonwealth marine areas

(4)

A person is guilty of an offence if:

(a)

the person takes an action; and

(b)

the action is taken outside a Commonwealth marine area but in the Australian jurisdiction; and

(c)

the action is likely to have a significant impact on the environment in a Commonwealth marine area and the person is reckless as to that fact.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Fishing with impact in State or Territory waters managed by Commonwealth

(5)

A person is guilty of an offence if:

(a)

the person takes an action that:

(i)

is fishing (as defined in the Fisheries Management Act 1991 ); and

(ii)

is included in the class of activities forming a fishery (as defined in that Act) that is managed under the law of the Commonwealth as a result of an agreement made under section 71 or 72 of that Act before the commencement of this section; and

(b)

the action is taken in the coastal waters (as defined in the Fisheries Management Act 1991 ) of a State or the Northern Territory; and

(c)

the action results or will result in a significant impact on the environment in those coastal waters.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Fishing with likely impact in State or Territory waters managed by Commonwealth

(6)

A person is guilty of an offence if:

(a)

the person takes an action that:

(i)

is fishing (as defined in the Fisheries Management Act 1991 ); and

(ii)

is included in the class of activities forming a fishery (as defined in that Act) that is managed under the law of the Commonwealth as a result of an agreement made under section 71 or 72 of that Act before the commencement of this section; and

(b)

the action is taken in the coastal waters (as defined in the Fisheries Management Act 1991 ) of a State or the Northern Territory; and

(c)

the action is likely to have a significant impact on the environment in those coastal waters and the person is reckless as to that fact.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Penalties

(7)

An offence against subsection (1), (2), (3), (4), (5) or (6) is punishable on conviction by imprisonment for a term not more than 7 years, a fine not more than 420 penalty units, or both.

Note 1: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.

Note 2: An executive officer of a body corporate convicted of an offence against this section may also be guilty of an offence against section 495.

Defences—general

(8)

Subsection (1), (2), (3), (4), (5) or (6) 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 this section; or

(b)

Part 4 lets the person take the action without an approval under Part 9 for the purposes of this section; 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 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 .

Defence—fishing in Commonwealth waters managed by State

(9)

Subsections (1) and (2) do not apply to an action if the action:

(a)

is fishing (as defined in the Fisheries Management Act 1991 ); and

(b)

is included in the class of activities forming a fishery (as defined in that Act) that is managed under the law of a State or the Northern Territory as a result of an agreement made under section 71 or 72 of that Act before the commencement of this section; and

(c)

is permitted under a law of the State or Territory.

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—fishing outside Commonwealth marine areas

(10)

Subsections (3) and (4) do not apply to an action that:

(a)

is fishing (as defined in the Fisheries Management Act 1991 ); and

(b)

is permitted under a law of a State or self-governing Territory.

Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code .

Subdivision G—Additional matters of national environmental significance