2008 The Parliament of the Commonwealth of Australia HOUSE OF REPRESENTATIVES Presented and read a first time Great Barrier Reef Marine Park and Other Legislation Amendment Bill 2008 No. , 2008 (Environment, Heritage and the Arts) A Bill for an Act to amend the law in relation to the Great Barrier Reef Marine Park, and for related purposes [Page Break] 1 Short title ........................................................................................... 1 2 Commencement ................................................................................. 1 3 Schedule(s) ........................................................................................ 2 Schedule 1--Objects and application 3 Great Barrier Reef Marine Park Act 1975 3 Great Barrier Reef Marine Park (Environmental Management Charge--Excise) Act 1993 10 Great Barrier Reef Marine Park (Environmental Management Charge--General) Act 1993 11 Schedule 2--Matters relating to the Great Barrier Reef Marine Park Authority 12 Great Barrier Reef Marine Park Act 1975 12 Schedule 3--Proclaiming the Marine Park, zoning plans and plans of management 14 Part 1--Amendment of the Environment Protection and Biodiversity Conservation Act 1999 14 Environment Protection and Biodiversity Conservation Act 1999 14 Part 2--Amendment of the Great Barrier Reef Marine Park Act 1975 15 Great Barrier Reef Marine Park Act 1975 15 Part 3--Amendment of the Legislative Instruments Act 2003 29 Legislative Instruments Act 2003 29 Part 4--Transitional, application and saving provisions 30 Schedule 4--Environmental impact assessments 32 Part 1--Amendment of the Environment Protection and Biodiversity Conservation Act 1999 32 Environment Protection and Biodiversity Conservation Act 1999 32 Part 2--Amendment of the Great Barrier Reef Marine Park Act 1975 43 Great Barrier Reef Marine Park Act 1975 43 [Page Break] Schedule 5--Investigation and enforcement 48 Part 1--Amendment of the Environment Protection and Biodiversity Conservation Act 1999 48 Environment Protection and Biodiversity Conservation Act 1999 48 Part 2--Amendment of the Great Barrier Reef Marine Park Act 1975 62 Great Barrier Reef Marine Park Act 1975 62 Part 3--Transitional, application and saving provisions 110 Schedule 6--Offences and civil penalties 113 Part 1--Amendments 113 Great Barrier Reef Marine Park Act 1975 113 Part 2--Transitional, application and saving provisions 146 [Page Break] 2 Great Barrier Reef Marine Park, and for related 3 purposes 4 The Parliament of Australia enacts: 5 1 Short title 6 This Act may be cited as the Great Barrier Reef Marine Park and 7 Other Legislation Amendment Act 2008. 8 2 Commencement 9 (1) Each provision of this Act specified in column 1 of the table 10 commences, or is taken to have commenced, in accordance with 11 column 2 of the table. Any other statement in column 2 has effect 12 according to its terms. 13 Great Barrier Reef Marine Park and Other Legislation Amendment Bill 2008 No. , 2008 1 [Page Break] Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 The day on which this Act receives the and anything in Royal Assent. this Act not elsewhere covered by this table 2. Schedules 1, 2 The day after this Act receives the Royal and 3 Assent. 3. Schedules 4, 5 A single day to be fixed by Proclamation. and 6 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. 1 Note: This table relates only to the provisions of this Act as originally 2 passed by both Houses of the Parliament and assented to. It will not be 3 expanded to deal with provisions inserted in this Act after assent. 4 (2) Column 3 of the table contains additional information that is not 5 part of this Act. Information in this column may be added to or 6 edited in any published version of this Act. 7 3 Schedule(s) 8 Each Act that is specified in a Schedule to this Act is amended or 9 repealed as set out in the applicable items in the Schedule 10 concerned, and any other item in a Schedule to this Act has effect 11 according to its terms. [Page Break] 2 Schedule 1--Objects and application 3 4 Great Barrier Reef Marine Park Act 1975 5 1 After section 2 6 Insert: 7 2A Objects of this Act 8 (1) The main object of this Act is to provide for the long term 9 protection and conservation of the environment, biodiversity and 10 heritage values of the Great Barrier Reef Region. 11 (2) The other objects of this Act are to do the following, so far as is 12 consistent with the main object: 13 (a) allow ecologically sustainable use of the Great Barrier Reef 14 Region for purposes including the following: 15 (i) public enjoyment and appreciation; 16 (ii) public education about and understanding of the Region; 17 (iii) recreational, economic and cultural activities; 18 (iv) research in relation to the natural, social, economic and 19 cultural systems and value of the Great Barrier Reef 20 Region; 21 (b) encourage engagement in the protection and management of 22 the Great Barrier Reef Region by interested persons and 23 groups, including Queensland and local governments, 24 communities, Indigenous persons, business and industry; 25 (c) assist in meeting Australia's international responsibilities in 26 relation to the environment and protection of world heritage 27 (especially Australia's responsibilities under the World 28 Heritage Convention). 29 (3) In order to achieve its objects, this Act: 30 (a) provides for the establishment, control, care and development 31 of the Great Barrier Reef Marine Park; and 32 (b) establishes the Great Barrier Reef Marine Park Authority; 33 and 34 (c) provides for zoning plans and plans of management; and [Page Break] 2 Great Barrier Reef Marine Park in ways consistent with 3 ecosystem-based management and the principles of 4 ecologically sustainable use; and 5 (e) facilitates partnership with traditional owners in management 6 of marine resources; and 7 (f) facilitates a collaborative approach to management of the 8 Great Barrier Reef World Heritage area with the Queensland 9 government. 10 2 Subsection 3(1) (definition of Australian coastal sea) 11 Repeal the definition. 12 3 Subsection 3(1) 13 Insert: 14 Australian jurisdiction has the meaning given by subsection 5(4). 15 4 Subsection 3(1) 16 Insert: 17 continental shelf has the same meaning as in the Seas and 18 Submerged Lands Act 1973. 19 5 Subsection 3(1) (definition of continental shelf of Australia) 20 Repeal the definition. 21 6 Subsection 3(1) (definition of Director) 22 Repeal the definition. 23 7 Subsection 3(1) (definition of ecological community) 24 Repeal the definition. 25 8 Subsection 3(1) 26 Insert: 27 ecologically sustainable use has the meaning given by 28 section 3AA. 29 9 Subsection 3(1) [Page Break] 2 ecosystem-based management means an integrated approach to 3 managing an ecosystem and matters affecting that ecosystem, with 4 the main object being to maintain ecological processes, 5 biodiversity and functioning biological communities. 6 10 Subsection 3(1) 7 Insert: 8 exclusive economic zone has the same meaning as in the Seas and 9 Submerged Lands Act 1973. 10 11 Subsection 3(1) 11 Insert: 12 Indigenous person means a person who is: 13 (a) a member of the Aboriginal race of Australia; or 14 (b) a descendant of an Indigenous inhabitant of the Torres Strait 15 Islands. 16 12 Subsection 3(1) 17 Insert: 18 precautionary principle means the principle that lack of full 19 scientific certainty should not be used as a reason for postponing a 20 measure to prevent degradation of the environment where there are 21 threats of serious or irreversible environmental damage. 22 13 Subsection 3(1) 23 Insert: 24 principles of ecologically sustainable use has the meaning given 25 by section 3AB. 26 14 Subsection 3(1) (definition of right) 27 Repeal the definition. 28 15 Subsection 3(1) (definition of species) 29 Repeal the definition. [Page Break] 2 Insert: 3 traditional owner means an Indigenous person: 4 (a) who is recognised in the Indigenous community or by a 5 relevant representative Aboriginal or Torres Strait Islander 6 body: 7 (i) as having spiritual or cultural affiliations with a site or 8 area in the Marine Park; or 9 (ii) as holding native title in relation to that site or area; and 10 (b) who is entitled to undertake activities under Aboriginal or 11 Torres Strait Islander custom or tradition in that site or area. 12 17 After subsection 3(1) 13 Insert: 14 (1A) In this Act, the following terms have the same meaning as in the 15 Environment Protection and Biodiversity Conservation Act 1999: 16 approved conservation advice 17 Australian aircraft 18 Australian IUCN reserve management principles 19 Australian vessel 20 biodiversity 21 bioregional plan 22 cetacean 23 critical habitat 24 ecological community 25 ecosystem 26 environment 27 heritage value 28 IUCN category [Page Break] 2 listed marine species 3 listed migratory species 4 listed threatened ecological community 5 listed threatened species 6 recovery plan 7 species 8 threat abatement plan 9 wildlife conservation plan 10 World Heritage Convention 11 world heritage values 12 18 After section 3 13 Insert: 14 3AA Ecologically sustainable use 15 For the purposes of this Act, ecologically sustainable use of the 16 Great Barrier Reef Region or its natural resources is use of the 17 Region or resources: 18 (a) that is consistent with: 19 (i) protecting and conserving the environment, biodiversity 20 and heritage values of the Great Barrier Reef Region; 21 and 22 (ii) ecosystem-based management; and 23 (b) that is within the capacity of the Region and its natural 24 resources to sustain natural processes while maintaining the 25 life-support systems of nature and ensuring that the benefit of 26 the use to the present generation does not diminish the 27 potential to meet the needs and aspirations of future 28 generations. [Page Break] 2 For the purposes of this Act, the following principles are principles 3 of ecologically sustainable use: 4 (a) decision-making processes should effectively integrate both 5 long-term and short-term environmental, economic, social 6 and equitable considerations; 7 (b) the precautionary principle; 8 (c) the principle of inter-generational equity--that the present 9 generation should ensure that the health, diversity and 10 productivity of the environment is maintained or enhanced 11 for the benefit of future generations; 12 (d) the conservation of biodiversity and ecological integrity 13 should be a fundamental consideration in decision-making; 14 (e) improved valuation, pricing and incentive mechanisms 15 should be promoted. 16 19 Subsection 4(2) 17 Repeal the subsection. 18 Note: The heading to section 4 is replaced by the heading "Act to bind Crown". 19 20 Section 5 20 Repeal the section, substitute: 21 5 Application of Act 22 Extension to external Territories 23 (1) This Act extends to every external Territory. 24 Limited extraterritorial application 25 (2) This Act applies to acts, omissions, matters and things in the 26 Australian jurisdiction, and does not apply to acts, omissions, 27 matters and things outside the Australian jurisdiction except so far 28 as the contrary intention applies. 29 Application to everyone in Australia and exclusive economic zone 30 (3) A provision of this Act that has effect in relation to a place that is 31 within the outer limits of the exclusive economic zone of Australia [Page Break] 2 Territory), or that is on or in the continental shelf of Australia, 3 applies in relation to the following: 4 (a) all persons (including persons who are not Australian 5 citizens); 6 (b) all vessels (including vessels that are not Australian vessels); 7 (c) all aircraft (including aircraft that are not Australian aircraft); 8 (d) all platforms. 9 Note: A reference to Australia or to an external Territory generally includes 10 a reference to the coastal sea of Australia or the Territory (as 11 appropriate). See section 15B of the Acts Interpretation Act 1901. 12 Definition of Australian jurisdiction 13 (4) In this Act: 14 Australian jurisdiction means: 15 (a) the land, waters, seabed and airspace in, under or above: 16 (i) Australia; or 17 (ii) an external Territory; or 18 (iii) the exclusive economic zone of Australia; or 19 (b) the continental shelf of Australia. 20 Note: A reference to Australia or to an external Territory generally includes 21 a reference to the coastal sea of Australia or the Territory (as 22 appropriate). See section 15B of the Acts Interpretation Act 1901. 23 21 At the end of section 7 24 Add: 25 (3) In managing the Marine Park and performing its other functions, 26 the Authority must have regard to, and seek to act in a way that is 27 consistent with: 28 (a) the objects of this Act in section 2A; and 29 (b) the principles of ecologically sustainable use; and 30 (c) the protection of the world heritage values of the Great 31 Barrier Reef World Heritage Area. 32 (4) The Authority may prepare and publish plans and policies about: 33 (a) the way in which the Authority intends to manage the Marine 34 Park or perform its other functions; and [Page Break] 2 zoning plan applies: 3 (i) in relation to persons generally or a class of persons; or 4 (ii) in relation to persons generally, or a class of persons, in 5 relation to particular circumstances. 6 (5) A plan or policy prepared under subsection (4) is not a legislative 7 instrument. 8 22 Section 39Z 9 Repeal the section. 10 23 Subsections 54(6) and 65(1) 11 Repeal the subsections. 12 24 Subsection 65(2) 13 Omit "(2)". 14 25 At the end of section 66 15 Add: 16 (13) Despite subsection 14(2) of the Legislative Instruments Act 2003, 17 the regulations may make provision in relation to a matter by 18 applying, adopting or incorporating any matter contained in an 19 instrument or other writing as in force or existing from time to 20 time. 21 Great Barrier Reef Marine Park (Environmental 22 Management Charge--Excise) Act 1993 23 26 Section 3 24 Repeal the section, substitute: 25 3 Application of the Great Barrier Reef Marine Park Act 1975 26 Sections 4 and 5 of the Great Barrier Reef Marine Park Act 1975 27 apply in relation to this Act in a corresponding way to the way in 28 which they apply in relation to that Act. [Page Break] 2 Management Charge--General) Act 1993 3 27 Section 3 4 Repeal the section, substitute: 5 3 Application of the Great Barrier Reef Marine Park Act 1975 6 Sections 4 and 5 of the Great Barrier Reef Marine Park Act 1975 7 apply in relation to this Act in a corresponding way to the way in 8 which they apply in relation to that Act. [Page Break] 2 Schedule 2--Matters relating to the Great 3 Barrier Reef Marine Park Authority 4 5 Great Barrier Reef Marine Park Act 1975 6 1 After subsection 10(6) 7 Insert: 8 (6A) At least one member must be an Indigenous person with 9 knowledge of, or experience concerning, indigenous issues relating 10 to the Marine Park. 11 2 At the end of subsection 17(1) 12 Add: 13 Note: See also section 33B of the Acts Interpretation Act 1901. 14 3 Subsection 17(8) 15 Repeal the subsection, substitute: 16 (8) If only 2 members are present at a meeting of the Authority and 17 they differ on a question arising at the meeting, a decision on the 18 question must be deferred: 19 (a) until a meeting at which at least 3 members are present; or 20 (b) for decision under section 18. 21 4 At the end of Part III 22 Add: 23 18 Decisions without meetings 24 (1) The Authority is taken to have made a decision at a meeting if: 25 (a) without meeting, a majority of the members entitled to vote 26 on the proposed decision indicate agreement with the 27 decision; and 28 (b) that agreement is indicated in accordance with the method 29 determined by the Authority under subsection (2); and [Page Break] 2 reasonable efforts were made to inform all the members of 3 the proposed decision. 4 (2) Subsection (1) applies only if the Authority: 5 (a) has determined that it may make decisions of that kind 6 without a meeting; and 7 (b) has determined the method by which members are to indicate 8 agreement with proposed decisions. 9 (3) For the purposes of paragraph (1)(a), a member is not entitled to 10 vote on a proposed decision if the member would not have been 11 entitled to vote on that decision if the matter had been considered 12 at a meeting of the Authority. 13 (4) The Authority must keep a record of decisions made in accordance 14 with this section. [Page Break] 2 Schedule 3--Proclaiming the Marine Park, 3 zoning plans and plans of 4 management 5 Part 1--Amendment of the Environment Protection 6 and Biodiversity Conservation Act 1999 7 Environment Protection and Biodiversity Conservation Act 8 1999 9 1 At the end of section 321 10 Add: 11 (3) Subsection (2) does not apply in relation to so much of a property 12 as is in the Great Barrier Reef Marine Park. 13 Note: A zoning plan must be prepared under the Great Barrier Reef Marine 14 Park Act 1975 for areas that are part of the Great Barrier Reef Marine 15 Park. In preparing a zoning plan, regard must be had to the Australian 16 World Heritage management principles. 17 2 After subsection 324X(2) 18 Insert: 19 (2A) Subsection (2) does not apply in relation to so much of a place as is 20 in the Great Barrier Reef Marine Park. 21 Note: A zoning plan must be prepared under the Great Barrier Reef Marine 22 Park Act 1975 for areas that are part of the Great Barrier Reef Marine 23 Park. In preparing a zoning plan, regard must be had to the National 24 Heritage management principles. [Page Break] 2 Part 2--Amendment of the Great Barrier Reef Marine 3 Park Act 1975 4 Great Barrier Reef Marine Park Act 1975 5 3 Subsection 3(1) 6 Insert: 7 community group having a special interest has a meaning affected 8 by section 39V. 9 4 Subsection 3(1) (definition of plan of management) 10 Omit "under section 39ZD", substitute "in accordance with Part VB". 11 5 Subsection 3(1) 12 Insert: 13 public notice means a notice published: 14 (a) in the Gazette; and 15 (b) in a newspaper circulating generally in Queensland; and 16 (c) on the website of the Authority; and 17 (d) in such other manner (if any) as the Authority considers 18 appropriate. 19 6 Subsection 3(1) (at the end of the definition of zone) 20 Add "(whether designated in the plan as a zone, area or some other 21 designation)". 22 7 Subsection 3(1) (definition of zoning plan) 23 Omit "in pursuance of section 32", substitute "in accordance with 24 Division 2 of Part V". 25 8 Subsection 3(3) 26 Repeal the subsection. 27 9 Paragraph 7(1)(c) 28 Before "Part V", insert "Division 2 of". [Page Break] 2 Insert: 3 Division 1--Great Barrier Reef Marine Park 4 11 At the end of subsection 31(1) 5 Add: 6 Note: A Proclamation under subsection (1) is a legislative instrument but is 7 not subject to disallowance or sunsetting (see item 23 of the table in 8 subsection 44(2), and item 22 of the table in subsection 54(2), of the 9 Legislative Instruments Act 2003). 10 12 Subsection 31(3) 11 Omit "subsection (4)", substitute "subsections (4) and (5)". 12 13 At the end of subsection 31(3) 13 Add: 14 Note: A Proclamation under subsection (3) is a legislative instrument but is 15 not subject to disallowance or sunsetting (see item 23 of the table in 16 subsection 44(2), and item 22 of the table in subsection 54(2), of the 17 Legislative Instruments Act 2003). 18 14 At the end of section 31 19 Add: 20 (6) Before preparing the report, the Authority must, by public notice: 21 (a) state that the area is proposed to be included in the Marine 22 Park; and 23 (b) state the boundaries of the area; and 24 (c) state any name or other designation proposed for the area; 25 and 26 (d) invite the public to make comments in connection with the 27 proposal by the date specified in the notice (which must be at 28 least 60 days after the date the notice is published in the 29 Gazette); and 30 (e) specify the address to which comments must be sent. 31 (7) The Authority must include in the report any comments made in 32 accordance with the notice and the Authority's views on the 33 comments. [Page Break] 2 Repeal the sections, substitute: 3 Division 2--Zoning plans 4 32 Objects of Division 5 (1) The objects of this Division are: 6 (a) to regulate the use of the Marine Park so as to: 7 (i) protect the ecosystem within the Great Barrier Reef 8 Region; and 9 (ii) ensure the use is ecologically sustainable use; and 10 (iii) manage competing usage demands; and 11 (b) to protect areas in the Marine Park that are of high 12 conservation value; and 13 (c) to protect and conserve the biodiversity of the Marine Park, 14 including ecosystems, habitats, populations and genes; and 15 (d) to regulate activities that exploit the resources of the Great 16 Barrier Reef Region so as to: 17 (i) minimise the adverse effect of those activities on the 18 Great Barrier Reef; and 19 (ii) ensure the ecologically sustainable use of the resources; 20 and 21 (e) to protect the world heritage values of the Great Barrier Reef 22 World Heritage Area; and 23 (f) to provide for the ecologically sustainable use of marine 24 resources by traditional owners consistent with their 25 traditional practices; and 26 (g) to reserve some areas of the Great Barrier Reef Region for 27 public enjoyment and appreciation; and 28 (h) to preserve some areas of the Great Barrier Reef Region in a 29 natural state, undisturbed except for the purposes of scientific 30 research that cannot be undertaken elsewhere in the Marine 31 Park. 32 (2) To achieve these objects, this Division provides for the preparation 33 of zoning plans in respect of areas in the Marine Park. [Page Break] 2 As soon as practicable after an area has been declared under 3 section 31 to be part of the Marine Park, the Authority must 4 prepare a zoning plan in respect of the area. 5 32B Content of zoning plans 6 (1) A zoning plan prepared in respect of an area must provide that, for 7 the purposes of this Act, the area: 8 (a) constitutes a single zone; or 9 (b) is divided into 2 or more zones described in the plan. 10 (2) The plan must do the following in relation to the zone or each of 11 the zones: 12 (a) give the zone a name or other designation; 13 (b) make provision with respect to the purposes for which the 14 zone may be used or entered; 15 (c) designate an IUCN category for the zone, or each part of the 16 zone. 17 32C Notice of intention to prepare zoning plan 18 (1) Before preparing a zoning plan in respect of an area, the Authority 19 must, by public notice: 20 (a) state that it intends to prepare a zoning plan in respect of the 21 area; and 22 (b) invite the public to make comments in connection with the 23 proposed plan by the date specified in the notice (which must 24 be at least 3 months after the date the notice is published in 25 the Gazette); and 26 (c) specify the address to which comments must be sent; and 27 (d) specify that the following are publicly available and how a 28 copy may be obtained: 29 (i) principles approved under section 34; 30 (ii) a statement prepared under subsection 35(1). 31 (2) The Authority must consider any comments made in accordance 32 with the notice. 33 16 Subsection 34(9) [Page Break] 2 Act 2003". 3 17 After section 35 4 Insert: 5 35A Matters to which Authority must have regard when preparing 6 zoning plans 7 (1) The Authority must, in preparing a zoning plan in respect of an 8 area (the zoning plan area), have regard to the following: 9 (a) the objects of this Division; 10 (b) the principles approved under section 34 relating to the 11 preparation of the plan; 12 (c) any reports that have been given to the Minister under 13 section 54; 14 (d) any matter protected by a provision of Part 3 of the 15 Environment Protection and Biodiversity Conservation Act 16 1999 that is relevant to the zoning plan area; 17 (e) any approved conservation advice, bioregional plan, recovery 18 plan, threat abatement plan or wildlife conservation plan that 19 is relevant to the zoning plan area; 20 (f) any value, plan or principle referred to in Part 15 of the 21 Environment Protection and Biodiversity Conservation Act 22 1999 that relates to a property, place, wetland or other area 23 that is in the zoning plan area; 24 (g) any habitat in the zoning plan area that is critical habitat; 25 (h) any plan made under the Marine Parks Act 2004 of 26 Queensland or the Nature Conservation Act 1992 of 27 Queensland that is relevant to the zoning plan area; 28 (i) any other matter prescribed by the regulations for the 29 purposes of this paragraph. 30 (2) In designating an IUCN category in relation to a zone for the 31 purposes of paragraph 32B(2)(c), the Authority must have regard 32 to: 33 (a) the purposes for which the zone may be used or entered; and 34 (b) the Australian IUCN Reserve Management Principles for the 35 category. [Page Break] 2 (1) When the Authority has prepared a zoning plan in respect of an 3 area, it must, by public notice: 4 (a) state that a zoning plan has been prepared in respect of the 5 area; and 6 (b) invite the public to make comments in connection with the 7 plan by the date specified in the notice (which must be at 8 least 3 months after the date the notice is published in the 9 Gazette); and 10 (c) specify the address or addresses at which copies of the plan 11 may be inspected or purchased; and 12 (d) specify the address to which comments must be sent; and 13 (e) specify that a statement prepared under subsection 35(2) is 14 publicly available and how a copy may be obtained. 15 (2) The Authority must consider any comments made in accordance 16 with the notice and, if it thinks fit, alter the plan accordingly. 17 35C Zoning plans must be submitted to Minister 18 Submission to Minister 19 (1) When the Authority has prepared a zoning plan in respect of an 20 area, it must submit to the Minister: 21 (a) the plan; and 22 (b) if comments have been made in accordance with a notice 23 under section 35B in connection with the plan--those 24 comments, together with the Authority's views on those 25 comments. 26 Plan may be accepted or referred 27 (2) The Minister may: 28 (a) accept the plan; or 29 (b) refer the plan to the Authority, together with the Minister's 30 suggestions, for further consideration. [Page Break] 2 (3) If the plan is referred to the Authority, it must, as soon as 3 practicable after receiving the plan, further consider the plan, 4 having regard to the Minister's suggestions. 5 (4) The Authority must then submit the plan again, with or without 6 alterations, to the Minister, together with its views on the 7 Minister's suggestions. 8 (5) When the plan is again submitted to the Minister, the Minister 9 must, as soon as practicable after receiving the plan: 10 (a) accept the plan; or 11 (b) accept the plan after making such alterations as the Minister 12 thinks fit. 13 (6) If the Minister alters the plan under subsection (5), the Minister 14 must prepare a report: 15 (a) specifying the alterations; and 16 (b) setting out any views expressed by the Authority in respect of 17 the matters to which the alterations relate. 18 (7) The report must accompany the plan when it is laid before both 19 Houses of the Parliament under section 38 of the Legislative 20 Instruments Act 2003. 21 Matters to which Minister must have regard 22 (8) In deciding whether to accept a zoning plan under this section, the 23 Minister must have regard to the obligations of Australia under 24 international law, including obligations under any agreement or 25 arrangement between Australia and another country or countries. 26 35D Zoning plans are legislative instruments 27 A zoning plan prepared by the Authority and accepted by the 28 Minister is a legislative instrument made by the Minister on the 29 day on which the plan is accepted, but neither section 42 30 (disallowance) nor Part 6 (sunsetting) of the Legislative 31 Instruments Act 2003 applies to the plan. [Page Break] 2 (1) If notice of a motion to disallow a zoning plan is given in a House 3 of the Parliament within 15 sitting days of that House after a copy 4 of the plan was laid before that House, the House may, within 15 5 sitting days of that House after the giving of that notice, pass a 6 resolution, in pursuance of the motion, disallowing the plan. 7 Note: A zoning plan is a legislative instrument (see section 35D) and must 8 be laid before each House of the Parliament under section 38 of the 9 Legislative Instruments Act 2003. 10 (2) If: 11 (a) notice of a motion to disallow a zoning plan is given in a 12 House of the Parliament within 15 sitting days of that House 13 after a copy of the plan was laid before that House; and 14 (b) before the end of 15 sitting days of that House after the 15 giving of that notice of motion, the House of Representatives 16 is dissolved or expires, or the Parliament is prorogued; and 17 (c) at the time of the dissolution, expiry or prorogation, as the 18 case may be: 19 (i) the notice has not been withdrawn and the motion has 20 not been called on; or 21 (ii) the motion has been called on, moved and (where 22 relevant) seconded and has not been withdrawn or 23 otherwise disposed of; 24 the plan is taken, for the purposes of this section, to have been laid 25 before the first-mentioned House on the first sitting day of that 26 first-mentioned House after the dissolution, expiry or prorogation, 27 as the case may be. 28 (3) If either House of the Parliament passes a resolution in accordance 29 with subsection (1) disallowing a zoning plan: 30 (a) the Minister must direct the Authority to prepare a fresh plan; 31 and 32 (b) the Authority must prepare a fresh plan in accordance with 33 this Division. 34 35F Commencement of zoning plans 35 (1) If: [Page Break] 2 Parliament under section 38 of the Legislative Instruments 3 Act 2003; and 4 (b) neither House of the Parliament passes a resolution in 5 accordance with subsection 35E(1) disallowing the plan; 6 the Minister must, as soon as practicable after the end of the last 7 day on which a resolution disallowing the plan could have been 8 passed, state, by public notice, that the plan is to come into 9 operation on the date specified in the notice (which must not be 10 earlier than the date the notice is published in the Gazette). 11 (2) The plan comes into operation on the date specified in the notice. 12 (3) The notice: 13 (a) must specify an address or addresses at which copies of the 14 plan may be inspected or purchased; and 15 (b) may contain: 16 (i) a description of the zone or zones to which the plan 17 relates; and 18 (ii) any other particulars of the plan. 19 35G Statement about operational principles 20 Within 60 days after the day on which a notice under section 35F is 21 published in the Gazette in relation to a zoning plan, the Authority 22 must make publicly available a report that contains a statement of 23 how the Authority, in preparing the plan, had regard to the 24 principles approved under section 34 relating to the preparation of 25 the plan. 26 18 Subsection 37(2) 27 Omit "subsection 32(2)", substitute "section 32C". 28 19 Subsection 37(2) (note) 29 Omit "Subsection 32(2)", substitute "Section 32C". 30 20 After subsection 37(2) 31 Insert: [Page Break] 2 (2A) An amendment of a zoning plan, prepared by the Authority and 3 accepted by the Minister, is a legislative instrument made by the 4 Minister on the day on which the amendment is accepted, but 5 neither section 42 (disallowance) nor Part 6 (sunsetting) of the 6 Legislative Instruments Act 2003 applies to the amendment. 7 21 Subsection 37(4) 8 Omit "subsection 32(2)", substitute "section 32C". 9 22 Subsection 37(4) (note) 10 Omit "Subsection 32(2)", substitute "Section 32C". 11 23 After subsection 37(4) 12 Insert: 13 Revocation is a legislative instrument 14 (4A) A revocation of a zoning plan, prepared by the Authority and 15 accepted by the Minister, is a legislative instrument made by the 16 Minister on the day on which the revocation is accepted, but 17 neither section 42 (disallowance) nor Part 6 (sunsetting) of the 18 Legislative Instruments Act 2003 applies to the revocation. 19 24 Subsection 37(8) 20 Omit "to 35", substitute "to 35C and 35E to 35G". 21 Note: The heading to subsection 37(8) is altered by omitting "35" and substituting "35C and 22 35E to 35G". 23 25 Subsection 37(8) 24 Omit "section 32", substitute "this Division". 25 26 Subsection 37(9) 26 Omit "subsection 32(2)", substitute "section 32C". 27 27 Subsection 37A(2) 28 Omit "Subsections 33(1) to (3) and (5) and (6)", substitute "Subsections 29 35E(1) and (2) and section 35F". 30 28 Subsection 37A(2) [Page Break] 2 29 At the end of section 37A 3 Add: 4 (3) An amendment of a zoning plan, prepared by the Authority and 5 approved by the Minister, is a legislative instrument made by the 6 Minister on the day on which the amendment is approved, but 7 neither section 42 (disallowance) nor Part 6 (sunsetting) of the 8 Legislative Instruments Act 2003 applies to the amendment. 9 30 After section 37A 10 Insert: 11 Division 3--Offences etc. 12 31 Subsection 39V(1) 13 Omit "(1) A reference in this Part to a community group having a 14 special interest", substitute "A reference in this Act to a community 15 group having a special interest". 16 32 Subsection 39V(2) 17 Repeal the subsection. 18 33 At the end of section 39W 19 Add: 20 (3) Plans of management prepared in accordance with this Part may set 21 out: 22 (a) policies and strategies in relation to management of the 23 matters referred to in section 39X; and 24 (b) enforcement provisions (see subsection 39ZD(5)). 25 34 Paragraphs 39ZB(1)(c) and (d) 26 Repeal the paragraphs, substitute: 27 (c) invite the public to make comments in relation to matters to 28 be included in the plan by the date specified in the notice 29 (which must be at least 1 month after the date the notice is 30 published in the Gazette); and 31 (d) specify the address to which comments must be sent. [Page Break] 2 Repeal the subsections, substitute: 3 (2) The Authority must take into account any comments made in 4 accordance with the notice. 5 36 Subsection 39ZD(1) 6 Omit "submissions", substitute "comments". 7 37 Subsection 39ZD(2) 8 Repeal the subsection, substitute: 9 (1A) The Authority must, in preparing the plan of management, have 10 regard to the following: 11 (a) any key threatening process that is relevant to the area, 12 species or ecological community to which the plan relates; 13 (b) any critical habitat that is in the area, or that is relevant to the 14 species or ecological community, to which the plan relates; 15 (c) if the plan relates to a listed threatened species or a listed 16 threatened ecological community--any approved 17 conservation advice, recovery plan, threat abatement plan or 18 wildlife conservation plan that is relevant to the species or 19 ecological community; 20 (d) any plan made under the Marine Parks Act 2004 of 21 Queensland or the Nature Conservation Act 1992 of 22 Queensland that is relevant to the area, species or ecological 23 community to which the plan relates. 24 (2) The plan of management must not be inconsistent with any of the 25 following: 26 (a) a provision of this Act; 27 (b) a provision of a zoning plan in force for the area, or in force 28 for an area relevant to the species or ecological community, 29 to which the plan of management relates; 30 (c) if the plan of management relates to a listed threatened 31 species or a listed threatened ecological community--a 32 recovery plan or threat abatement plan that is relevant to the 33 species or ecological community. 34 38 Paragraph 39ZE(1)(c) [Page Break] 2 (c) invite the public to make comments in connection with the 3 plan by the date specified in the notice (which must be at 4 least 1 month after the date the notice is published in the 5 Gazette); and 6 39 Subparagraph 39ZE(1)(d)(ii) 7 Omit "submissions may", substitute "comments must". 8 40 Subsection 39ZE(2) 9 Repeal the subsection. 10 41 Subsection 39ZE(3) 11 Omit "submissions so made", substitute "comments made in accordance 12 with the notice". 13 42 Section 39ZF 14 Repeal the section, substitute: 15 39ZF Plans of management are legislative instruments 16 A plan of management made under subsection 39ZE(3) is a 17 legislative instrument. 18 Note: A plan of management is not subject to sunsetting (see item 22 of the 19 table in subsection 54(2) of the Legislative Instruments Act 2003). 20 43 Subsection 39ZG(2) 21 Omit "to 39ZF", substitute "and 39ZE". 22 44 Paragraph 39ZG(3)(a) 23 Omit "submissions", substitute "comments". 24 45 At the end of section 39ZG 25 Add: 26 (4) An amendment of a plan of management made in accordance with 27 this section is a legislative instrument. 28 Note: An amendment of a plan of management is not subject to sunsetting 29 (see item 22 of the table in subsection 54(2) of the Legislative 30 Instruments Act 2003). [Page Break] 2 Repeal the subsections, substitute: 3 (1) The Authority may, by legislative instrument, revoke a plan of 4 management. 5 Note: A revocation of a plan of management is not subject to sunsetting (see 6 item 22 of the table in subsection 54(2) of the Legislative Instruments 7 Act 2003). 8 47 Section 39ZI 9 Repeal the section, substitute: 10 39ZI Authority to comply with management plans 11 (1) While a plan of management is in force in relation to an area of the 12 Marine Park, the Authority must perform its functions and exercise 13 its powers in relation to the area in accordance with that plan and 14 not otherwise. 15 (2) While a plan of management is in force in relation to a species 16 within the Marine Park or within an area of the Marine Park, the 17 Authority must perform its functions and exercise its powers in 18 relation to the species, or in relation to the species within the area, 19 in accordance with that plan and not otherwise. 20 (3) While a plan of management is in force in relation to an ecological 21 community within the Marine Park or within an area of the Marine 22 Park, the Authority must perform its functions and exercise its 23 powers in relation to the community, or in relation to the 24 community within the area, in accordance with that plan and not 25 otherwise. [Page Break] 2 Part 3--Amendment of the Legislative Instruments 3 Act 2003 4 Legislative Instruments Act 2003 5 48 Subsection 54(2) (table item 22) 6 Omit "zoning plans prepared under section 32 of that Act, instruments 7 made under section 37 of that Act amending or revoking such zoning 8 plans,". [Page Break] 2 Part 4--Transitional, application and saving 3 provisions 4 49 Zoning plans in force under Part V of the Great Barrier 5 Reef Marine Park Act 1975 6 (1) This item applies if, immediately before the commencement of this 7 Schedule, a zoning plan was in force under Part V of the Great Barrier 8 Reef Marine Park Act 1975. 9 (2) Despite the amendments made by this Schedule, the zoning plan 10 continues in force after the commencement of this Schedule as if the 11 plan had been prepared in accordance with Division 2 of Part V of the 12 Great Barrier Reef Marine Park Act 1975, as that Division is in force 13 immediately after the commencement of this Schedule. 14 (3) Despite subsection 37(1) of the Great Barrier Reef Marine Park Act 15 1975, and subject to subsection 35A(2) of that Act as in force 16 immediately after the commencement of this Schedule, the Authority 17 may, with the Minister's approval, amend the zoning plan for the 18 purpose of designating an IUCN category for each zone, or each part of 19 a zone, described in the plan. 20 (4) Subsections 37A(2) and (3) of the Great Barrier Reef Marine Park Act 21 1975, as in force immediately after the commencement of this Schedule, 22 apply to an amendment under subitem (3) in the same way as they apply 23 to amendments under subsection 37A(1) of that Act. 24 50 Plans of management in force under Part VB of the Great 25 Barrier Reef Marine Park Act 1975 26 (1) This item applies if, immediately before the commencement of this 27 Schedule, a plan of management was in force under Part VB of the 28 Great Barrier Reef Marine Park Act 1975. 29 (2) Despite the amendments made by this Schedule, the plan of 30 management continues in force after the commencement of this 31 Schedule as if the plan had been prepared in accordance with Part VB 32 of the Great Barrier Reef Marine Park Act 1975, as that Part is in force 33 immediately after the commencement of this Schedule. [Page Break] 2 Great Barrier Reef Marine Park Act 1975 3 (1) This item applies if, before the commencement of this Schedule: 4 (a) a plan of management, or an amendment of a plan of 5 management, was prepared under Part VB of the Great 6 Barrier Reef Marine Park Act 1975; and 7 (b) a notice under subsection 39ZE(1) of that Act was given in 8 relation to the plan or amendment; and 9 (c) the plan or amendment had not yet come into force. 10 (2) Despite the amendments made by this Schedule: 11 (a) Part VB of the Great Barrier Reef Marine Park Act 1975 12 continues to apply in relation to the preparation and coming 13 into force of the plan or amendment as if those amendments 14 had not been made; and 15 (b) after the plan or amendment comes into force, it is taken to 16 be, and continues in force as if it were, a plan or amendment 17 prepared in accordance with Part VB of the Great Barrier 18 Reef Marine Park Act 1975, as that Part is in force 19 immediately after the commencement of this Schedule. 20 52 Plans of management etc. being prepared under Part VB 21 of the Great Barrier Reef Marine Park Act 1975 22 (1) If, before the commencement of this Schedule: 23 (a) a plan of management, or an amendment of a plan of 24 management, was being prepared under Part VB of the Great 25 Barrier Reef Marine Park Act 1975; but 26 (b) a notice under subsection 39ZE(1) of that Act had not been 27 given in relation to the plan or amendment; 28 the amendments made by this Schedule apply in relation to the plan or 29 amendment. 30 (2) This item does not limit the application that the amendments made by 31 this Schedule have apart from this item. [Page Break] 2 Schedule 4--Environmental impact 3 assessments 4 Part 1--Amendment of the Environment Protection 5 and Biodiversity Conservation Act 1999 6 Environment Protection and Biodiversity Conservation Act 7 1999 8 1 Section 11 (simplified outline) 9 Omit "or a plan for managing the Great Barrier Reef", substitute "or it 10 is for a purpose for which, under a zoning plan for a zone made under 11 the Great Barrier Reef Marine Park Act 1975, the zone may be used or 12 entered without permission". 13 2 After Subdivision F of Division 1 of Part 3 14 Insert: 15 Subdivision FA--Great Barrier Reef Marine Park 16 24B Requirement for approval of activities in the Great Barrier 17 Reef Marine Park 18 Actions in Great Barrier Reef Marine Park affecting the 19 environment 20 (1) A person must not take in the Great Barrier Reef Marine Park an 21 action that has, will have or is likely to have, a significant impact 22 on the environment. 23 Civil penalty: 24 (a) for an individual--5,000 penalty units; 25 (b) for a body corporate--50,000 penalty units. 26 Actions outside Great Barrier Reef Marine Park affecting the 27 environment in the Marine Park 28 (2) A person must not take outside the Great Barrier Reef Marine Park 29 but in the Australian jurisdiction an action that: [Page Break] 2 the Great Barrier Reef Marine Park; or 3 (b) is likely to have a significant impact on the environment in 4 the Great Barrier Reef Marine Park. 5 Civil penalty: 6 (a) for an individual--5,000 penalty units; 7 (b) for a body corporate--50,000 penalty units. 8 Exceptions to prohibition 9 (3) Subsection (1) or (2) does not apply to an action if: 10 (a) an approval of the taking of the action by the person is in 11 operation under Part 9 for the purposes of the subsection; or 12 (b) Part 4 lets the person take the action without an approval 13 under Part 9 for the purposes of the subsection; or 14 (c) there is in force a decision of the Minister under Division 2 15 of Part 7 that the subsection is not a controlling provision for 16 the action and, if the decision was made because the Minister 17 believed the action would be taken in a manner specified in 18 the notice of the decision under section 77, the action is taken 19 in that manner; or 20 (d) the person taking the action is the Commonwealth or a 21 Commonwealth agency; or 22 (e) the action is an action described in subsection 160(2) (which 23 describes actions whose authorisation is subject to a special 24 environmental assessment process). 25 Note: Section 28 regulates actions by the Commonwealth or a 26 Commonwealth agency with a significant impact on the environment. 27 24C Offences relating to Great Barrier Reef Marine Park 28 Actions in Great Barrier Reef Marine Park affecting the 29 environment 30 (1) A person commits an offence if: 31 (a) the person takes an action; and 32 (b) the action is taken in the Great Barrier Reef Marine Park; and 33 (c) the action results or will result in a significant impact on the 34 environment. [Page Break] 2 (2) Strict liability applies to paragraph (1)(b). 3 Note: For strict liability, see section 6.1 of the Criminal Code. 4 Actions in Great Barrier Reef Marine Park likely to affect the 5 environment 6 (3) A person commits an offence if: 7 (a) the person takes an action; and 8 (b) the action is taken in the Great Barrier Reef Marine Park; and 9 (c) the action is likely to have a significant impact on the 10 environment. 11 Penalty: Imprisonment for 7 years or 420 penalty units, or both. 12 (4) Strict liability applies to paragraph (3)(b). 13 Note: For strict liability, see section 6.1 of the Criminal Code. 14 Actions outside Great Barrier Reef Marine Park affecting 15 environment in the Marine Park 16 (5) A person commits an offence if: 17 (a) the person takes an action; and 18 (b) the action is taken outside the Great Barrier Reef Marine 19 Park but in the Australian jurisdiction; and 20 (c) the action results in or will result in a significant impact on 21 the environment in an area; and 22 (d) the area is the Great Barrier Reef Marine Park. 23 Penalty: Imprisonment for 7 years or 420 penalty units, or both. 24 (6) Strict liability applies to paragraphs (5)(b) and (d). 25 Note: For strict liability, see section 6.1 of the Criminal Code. 26 Actions outside Great Barrier Reef Marine Park likely to affect 27 environment in the Marine Park 28 (7) A person commits an offence if: 29 (a) the person takes an action; and 30 (b) the action is taken outside the Great Barrier Reef Marine 31 Park but in the Australian jurisdiction; and [Page Break] 2 environment in an area; and 3 (d) the area is the Great Barrier Reef Marine Park. 4 Penalty: Imprisonment for 7 years or 420 penalty units, or both. 5 (8) Strict liability applies to paragraphs (7)(b) and (d). 6 Note: For strict liability, see section 6.1 of the Criminal Code. 7 Defences 8 (9) Subsection (1), (3), (5) or (7) does not apply to an action if: 9 (a) an approval of the taking of the action by the person is in 10 operation under Part 9 for the purposes of the subsection; or 11 (b) Part 4 lets the person take the action without an approval 12 under Part 9 for the purposes of the subsection; or 13 (c) there is in force a decision of the Minister under Division 2 14 of Part 7 that the subsection is not a controlling provision for 15 the action and, if the decision was made because the Minister 16 believed the action would be taken in a manner specified in 17 the notice of the decision under section 77, the action is taken 18 in that manner; or 19 (d) the person taking the action is the Commonwealth or a 20 Commonwealth agency; or 21 (e) the action is an action described in subsection 160(2) (which 22 describes actions whose authorisation is subject to a special 23 environmental assessment process). 24 Note: The defendant bears an evidential burden in relation to the matters in 25 this subsection. See subsection 13.3(3) of the Criminal Code. 26 3 Paragraph 25AA(2)(g) 27 Omit "(6).", substitute "(6);". 28 4 After paragraph 25AA(2)(g) 29 Insert: 30 (h) subsections 24C(1), (3), (5) and (7). 31 5 After paragraph 25AA(3)(g) 32 Insert: 33 (ga) subsections 24B(1) and (2); [Page Break] 2 After "areas", insert "or in the Great Barrier Reef Marine Park". 3 7 Subsection 30(3) (note) 4 After "area", insert "or the Great Barrier Reef Marine Park". 5 8 Section 34 (after table item 13C) 6 Insert: 13D subsection the environment 24B(1) 13E subsection the environment in the Great Barrier Reef 24B(2) Marine Park 13F subsections the environment 24C(1) and (3) 13G subsections the environment in the Great Barrier Reef 24C(5) and Marine Park (7) 7 9 Paragraph 43(a) 8 Omit "the Great Barrier Reef Marine Park established by the Great 9 Barrier Reef Marine Park Act 1975", substitute "a zone (within the 10 meaning of the Great Barrier Reef Marine Park Act 1975) of the Great 11 Barrier Reef Marine Park". 12 Note: The heading to section 43 is altered by omitting "permission" and substituting "zoning 13 plan". 14 10 Paragraph 43(b) 15 Repeal the paragraph, substitute: 16 (b) it is for a purpose for which, under the zoning plan for the 17 zone made under the Great Barrier Reef Marine Park Act 18 1975, the zone may be used or entered without permission. 19 11 After subsection 49(1) 20 Insert: 21 (1A) A provision of a bilateral agreement does not have any effect in 22 relation to an action in the Great Barrier Reef Marine Park, unless 23 the agreement expressly provides otherwise. [Page Break] 2 bilateral agreements". 3 12 After section 73 4 Insert: 5 73A Informing Great Barrier Reef Marine Park Authority of 6 proposal affecting Great Barrier Reef Marine Park 7 If: 8 (a) a proposal to take an action is referred to the Minister; and 9 (b) the action, or a component of the action, is to be taken in the 10 Great Barrier Reef Marine Park; 11 the Minister must, as soon as practicable after receiving the 12 referral, give a copy of the referral to the Great Barrier Reef 13 Marine Park Authority. 14 13 Subsection 74(1B) 15 After "24A,", insert "24B, 24C,". 16 14 Subsection 74(1B) (note) 17 After "24A,", insert "24B, 24C,". 18 15 After subsection 75(2A) 19 Insert: 20 (2AA) For the purposes of subsection (2), if the provision of Part 3 is 21 subsection 24B(1) or 24C(1) or (3), then the impacts of the action 22 on the matter protected by that provision are only those impacts 23 that the part of the action that is taken in the Great Barrier Reef 24 Marine Park: 25 (a) has or will have; or 26 (b) is likely to have; 27 on the matter. 28 16 At the end of section 82 29 Add: 30 (5) For the purposes of subsections (1) and (2), if subsection 24B(1) or 31 24C(1) or (3) is or would be a controlling provision for the action, 32 then the impacts of the action on the matter protected by that [Page Break] 2 taken in the Great Barrier Reef Marine Park: 3 (a) has or will have; or 4 (b) is likely to have; 5 on the matter. 6 17 Subsection 83(1) (note 3) 7 After "areas", insert "or in the Great Barrier Reef Marine Park". 8 18 After subsection 97(3) 9 Insert: 10 (3A) Tailored guidelines may also provide for the draft report to include 11 information about other certain and likely impacts of the action if: 12 (a) the referral of the proposal to take the action is, because of 13 section 37AB of the Great Barrier Reef Marine Park Act 14 1975, taken to be an application for a permission for the 15 purposes of that Act; and 16 (b) the Great Barrier Reef Marine Park Authority has asked the 17 Minister to ensure that the draft report includes information 18 about those other impacts for the purposes of deciding 19 whether to grant the permission. 20 19 Paragraph 97(4)(a) 21 After "(3)", insert "or (3A)". 22 20 After subsection 102(3) 23 Insert: 24 (3A) Tailored guidelines may also provide for the draft statement to 25 include information about other certain and likely impacts of an 26 action if: 27 (a) the referral of the proposal to take the action is, because of 28 section 37AB of the Great Barrier Reef Marine Park Act 29 1975, taken to be an application for a permission for the 30 purposes of that Act; and 31 (b) the Great Barrier Reef Marine Park Authority has asked the 32 Minister to ensure that the draft statement includes 33 information about those other impacts for the purposes of 34 deciding whether to grant the permission. [Page Break] 2 After "(3)", insert "or (3A)". 3 22 Paragraph 107(3)(b) 4 Before "may", insert "if subsection (4) or (4A) applies--". 5 23 Subsection 107(4) 6 Omit "However, the Minister may specify other certain or likely 7 impacts of the action only", substitute "For the purposes of 8 paragraph (3)(b), the Minister may specify other certain or likely 9 impacts of the action". 10 24 After subsection 107(4) 11 Insert: 12 (4A) For the purposes of paragraph (3)(b), the Minister may specify 13 other certain or likely impacts of the action if: 14 (a) the referral of the proposal to take the action is, because of 15 section 37AB of the Great Barrier Reef Marine Park Act 16 1975, taken to be an application for a permission for the 17 purposes of that Act; and 18 (b) the Great Barrier Reef Marine Park Authority has asked the 19 Minister to ensure that the report includes information about 20 those other impacts for the purposes of deciding whether to 21 grant the permission. 22 25 Subsection 158A(1) (at the end of paragraph (h) of the 23 definition of listing event) 24 Add: 25 (v) the Great Barrier Reef Marine Park; 26 26 Paragraph 231(ba) 27 Omit "(2) or", substitute "(2),". 28 27 Paragraph 231(ba) 29 After "or (4)", insert ", 24B(1) or (2) or 24C(1), (3), (5) or (7)". 30 28 Subparagraph 231(bb)(i) 31 Omit "(2) or", substitute "(2),". [Page Break] 2 After "or (4)", insert ", 24B(1) or (2) or 24C(1), (3), (5) or (7)". 3 30 Subparagraph 231(bc)(i) 4 Omit "(2) or", substitute "(2),". 5 31 Subparagraph 231(bc)(i) 6 After "or (4)", insert ", 24B(1) or (2) or 24C(1), (3), (5) or (7)". 7 32 Paragraph 255(c) 8 After "or (4),", insert "24B(1) or (2) or 24C(1), (3), (5) or (7),". 9 33 Subparagraph 255(d)(i) 10 After "or (4),", insert "24B(1) or (2) or 24C(1), (3), (5) or (7),". 11 34 Subparagraph 255(da)(i) 12 After "or (4),", insert "24B(1) or (2) or 24C(1), (3), (5) or (7),". 13 35 At the end of Part 20 14 Add: 15 515AA Delegation by Minister in relation to Great Barrier Reef 16 Marine Park 17 (1) The Minister may, by signed instrument, delegate any or all of his 18 or her powers or functions to which subsection (2) applies to: 19 (a) the Great Barrier Reef Marine Park Authority; or 20 (b) the Chairperson of the Great Barrier Reef Marine Park 21 Authority; or 22 (c) a member of the staff of the Great Barrier Reef Marine Park 23 Authority. 24 (2) For the purposes of subsection (1), this subsection applies to a 25 power or function if: 26 (a) the exercise of the power or performance of the function 27 relates (including in a way described in subsection 7(1A) of 28 the Great Barrier Reef Marine Park Act 1975) to the Great 29 Barrier Reef Marine Park; or [Page Break] 2 incidental to a matter that relates (including in a way 3 described in subsection 7(1A) of the Great Barrier Reef 4 Marine Park Act 1975) to the Great Barrier Reef Marine 5 Park. 6 Note: If a power or function is delegated to the Great Barrier Reef Marine 7 Park Authority under this section, the Authority may sub-delegate the 8 power or function under section 47 of the Great Barrier Reef Marine 9 Park Act 1975. 10 (3) Despite subsection (1), the Minister must not delegate under that 11 subsection a power or function under Part 17 (Enforcement) to a 12 person mentioned in paragraph (1)(c) unless the person: 13 (a) is an SES employee or an acting SES employee; or 14 (b) holds, or is acting in, an Executive Level 1 or 2, or 15 equivalent, position. 16 (4) In exercising a power or performing a function under a delegation, 17 the delegate must comply with any directions of the Minister. 18 (5) This section does not limit the Minister's power of delegation 19 under section 515. 20 515AB Delegation by Secretary in relation to Great Barrier Reef 21 Marine Park 22 (1) The Secretary may, by signed instrument, delegate any or all of his 23 or her powers or functions to which subsection (2) applies to: 24 (a) the Great Barrier Reef Marine Park Authority; or 25 (b) the Chairperson of the Great Barrier Reef Marine Park 26 Authority; or 27 (c) a member of the staff of the Great Barrier Reef Marine Park 28 Authority. 29 (2) For the purposes of subsection (1), this subsection applies to a 30 power or function if: 31 (a) the exercise of the power or performance of the function 32 relates (including in a way described in subsection 7(1A) of 33 the Great Barrier Reef Marine Park Act 1975) to the Great 34 Barrier Reef Marine Park; or 35 (b) the exercise of the power or performance of the function is 36 incidental to a matter that relates (including in a way [Page Break] 2 Marine Park Act 1975) to the Great Barrier Reef Marine 3 Park. 4 Note: If a power or function is delegated to the Great Barrier Reef Marine 5 Park Authority under this section, the Authority may sub-delegate the 6 power or function under section 47 of the Great Barrier Reef Marine 7 Park Act 1975. 8 (3) Despite subsection (1), the Secretary must not delegate under that 9 subsection a power or function under Part 17 (Enforcement) to a 10 person mentioned in paragraph (1)(c) unless the person: 11 (a) is an SES employee or an acting SES employee; or 12 (b) holds, or is acting in, an Executive Level 1 or 2, or 13 equivalent, position. 14 (4) In exercising a power or performing a function under a delegation, 15 the delegate must comply with any directions of the Secretary. 16 (5) This section does not limit the Secretary's power of delegation 17 under section 515. 18 36 Section 528 19 Insert: 20 Great Barrier Reef Marine Park means the Great Barrier Reef 21 Marine Park established under the Great Barrier Reef Marine Park 22 Act 1975. 23 37 Section 528 24 Insert: 25 Great Barrier Reef Marine Park Authority means the Great 26 Barrier Reef Marine Park Authority established by the Great 27 Barrier Reef Marine Park Act 1975. [Page Break] 2 Part 2--Amendment of the Great Barrier Reef Marine 3 Park Act 1975 4 Great Barrier Reef Marine Park Act 1975 5 38 Subparagraph 7(1)(d)(i) 6 Omit "by this Act", substitute "under this or any other Act". 7 39 After paragraph 7(1)(d) 8 Insert: 9 (daa) to exercise any powers, and perform any functions, relating 10 to the Marine Park that have been delegated to the Authority 11 under this or any other Act; 12 40 Subsection 7(1A) 13 Omit "or (cd)", substitute ", (cd), (d) or (daa)". 14 41 Section 38 15 Repeal the section, substitute: 16 Division 4--Relationship with the Environment Protection 17 and Biodiversity Conservation Act 1999 18 37AB Actions affected by the Environment Protection and 19 Biodiversity Conservation Act 1999 20 (1) If: 21 (a) a proposal to take an action is referred to the Minister under 22 Division 1 of Part 7 of the Environment Protection and 23 Biodiversity Conservation Act 1999; and 24 (b) the action, or a component of the action, involves doing a 25 thing that would be an offence against this Act if done 26 without a permission under the regulations; 27 the referral is taken to be an application made in accordance with 28 the regulations for that permission. 29 Note: A subsequent decision under the Environment Protection and 30 Biodiversity Conservation Act 1999 that the action is not a controlled [Page Break] 2 because of subsection (1). 3 (2) The Authority, or an agency that has responsibility under a zoning 4 plan for granting permissions, must not grant a person permission 5 under the regulations to do a thing if: 6 (a) the thing is, or is part of, an action that is a controlled action 7 for the purposes of the Environment Protection and 8 Biodiversity Conservation Act 1999; and 9 (b) the Minister has not decided under Part 9 of the Environment 10 Protection and Biodiversity Conservation Act 1999 to 11 approve the taking of the action by the person for the 12 purposes of each provision that is, for the purposes of that 13 Act, a controlling provision for the action. 14 37AC Great Barrier Reef Region not to be reserved under the 15 Environment Protection and Biodiversity Conservation Act 16 1999 17 The Governor-General must not make a Proclamation under 18 section 344 of the Environment Protection and Biodiversity 19 Conservation Act 1999 declaring an area in the Great Barrier Reef 20 Region to be a Commonwealth reserve under that Act. [Page Break] 2 Part 3--Transitional, application and saving 3 provisions 4 42 Application of amendments 5 (1) The amendments made by this Schedule do not apply in relation to an 6 action that is an exempt action under this item. 7 (2) An action is an exempt action if, immediately before the amendments 8 commenced, an approval to take the action was in operation under 9 Part 9 of the Environment Protection and Biodiversity Conservation Act 10 1999. 11 (3) An action is an exempt action if, immediately before the amendments 12 commenced: 13 (a) a person was taking the action; and 14 (b) Part 4 of the Environment Protection and Biodiversity 15 Conservation Act 1999 let the person take the action without 16 an approval under Part 9 of that Act. 17 (4) An action is an exempt action if, immediately before the amendments 18 commenced: 19 (a) there was in force a decision of the Minister under Division 2 20 of Part 7 of the Environment Protection and Biodiversity 21 Conservation Act 1999 that the action is not a controlled 22 action; and 23 (b) the action was not an action the taking of which would be an 24 offence under the Great Barrier Reef Marine Park Act 1975 25 if taken without a permission having been granted under 26 regulations made under that Act. 27 (5) An action that was the subject of an active referral (see item 43) at the 28 time the amendments commenced is an exempt action: 29 (a) from the time the amendments commence until the time the 30 action ceases to be the subject of an active referral; and 31 (b) if the action ceases to be the subject of an active referral 32 because an approval of the taking of the action starts to 33 operate under Part 9 of the Environment Protection and 34 Biodiversity Conservation Act 1999 as a result of the 35 referral--for so long as the approval is in operation. [Page Break] 2 the time the amendments commenced is an exempt action: 3 (a) from the time the amendments commenced until the time the 4 action ceases to be the subject of an active application; and 5 (b) if the action ceases to be the subject of an active application 6 because a permission to take the action is granted in 7 accordance with regulations made under the Great Barrier 8 Reef Marine Park Act 1975 as a result of the application--for 9 so long as the permission has effect. 10 43 Actions that are the subject of an active referral 11 For the purposes of subitem 42(5), an action is, at any particular time, 12 the subject of an active referral if, at that time: 13 (a) a proposal to take the action has been referred to the Minister 14 under Division 1 of Part 7 of the Environment Protection and 15 Biodiversity Conservation Act 1999; and 16 (b) the referral has not been withdrawn under section 170C of 17 that Act; and 18 (c) the Minister has not decided under subsection 74A(1) of that 19 Act not to accept the referral; and 20 (d) provisions of Chapter 4 of that Act are not stopped by 21 Division 1A of Part 7 of that Act from applying in relation to 22 the referral; and 23 (e) provisions of Chapter 4 of that Act are not stopped by 24 section 155 of that Act from applying because of the referral 25 in relation to the action (or a larger action of which the action 26 is a component); and 27 (f) the Minister has not decided that the action (or a larger action 28 of which the action is a component) is not a controlled action 29 for the purposes of that Act; and 30 (g) no decision is in operation under Part 9 of that Act approving 31 or not approving the taking of the action (or a larger action of 32 which the action is a component). 33 44 Actions that are the subject of an active application 34 For the purposes of subitem 42(6), an action is, at any particular time, 35 the subject of an active application if, at that time: 36 (a) an application for permission to take the action has been 37 made in accordance with regulations made under the Great 38 Barrier Reef Marine Park Act 1975; and [Page Break] 2 (c) the application has not been rejected; and 3 (d) the application has not lapsed; and 4 (e) the Great Barrier Reef Marine Park Authority has neither 5 granted nor refused the permission. [Page Break] 2 Schedule 5--Investigation and enforcement 3 Part 1--Amendment of the Environment Protection 4 and Biodiversity Conservation Act 1999 5 Environment Protection and Biodiversity Conservation Act 6 1999 7 1 Paragraph 397(1)(b) 8 Omit "section 43", substitute "subsection 43(1)". 9 2 Subsection 399(1) 10 Omit ", (except a member of a police force or an officer of Customs),". 11 3 After subsection 399(1) 12 Insert: 13 (1A) Subsection (1) does not apply in relation to an inspector who is: 14 (a) a member of a police force; or 15 (b) an inspector by force of paragraph 397(1)(b); or 16 (c) an officer of Customs. 17 4 At the end of section 399 18 Add: 19 (4) For the purposes of this Act, a requirement for a person who is an 20 inspector by force of paragraph 397(1)(b) to produce his or her 21 identity card is satisfied if the person shows his or her identity card 22 issued under section 45 of the Great Barrier Reef Marine Park Act 23 1975. 24 5 After Subdivision BA of Division 1 of Part 17 25 Insert: [Page Break] 2 relation to Great Barrier Reef Marine Park 3 399B Certain powers to be exercised only by certain authorised 4 officers 5 (1) The powers of an authorised officer in relation to: 6 (a) an offence against an environmental law that is the Great 7 Barrier Reef Marine Park Act 1975 or regulations made 8 under that Act; or 9 (b) an environmental penalty provision that is a civil penalty 10 provision of that Act; or 11 (c) a thing that may be done for the purposes of that Act; 12 may only be exercised by an authorised officer who is an inspector 13 by force of paragraph 397(1)(a) or (b). 14 (2) To avoid doubt, an authorised officer who is an inspector by force 15 of paragraph 397(1)(a) or (b) and also by force of paragraph 16 397(1)(c) is an authorised officer who may exercise the powers 17 referred to in subsection (1). 18 6 Subsection 403(2) 19 Omit "this Act or the regulations, in relation to a contravention of a civil 20 penalty provision", substitute "an environmental law, in relation to a 21 contravention of an environmental penalty provision". 22 7 Subsection 403(3) 23 Omit "this Act or the regulations", substitute "an environmental law". 24 8 Paragraph 403(4)(a) 25 Omit "this Act or the regulations", substitute "an environmental law". 26 9 Subsection 403(5) 27 Repeal the subsection, substitute: 28 (5) An authorised officer may, for the purposes of this Act or the Great 29 Barrier Reef Marine Park Act 1975 (other than Part VIIA of that 30 Act (compulsory pilotage)), require the person in charge of a 31 vehicle, vessel, aircraft or platform to which this section applies to 32 give information concerning any or all of the following: [Page Break] 2 (b) the crew or any other person on board the vehicle, vessel, 3 aircraft or platform; 4 (c) in the case of a vessel--any dory being operated in 5 association with the vessel; 6 (d) in the case of a vessel--any person operating a dory in 7 association with the vessel. 8 10 After subsection 403(5B) 9 Insert: 10 (5C) A reference in this section to an offence against an environmental 11 law does not include an offence against Part VIIA of the Great 12 Barrier Reef Marine Park Act 1975 (compulsory pilotage). 13 11 Paragraph 406(1)(b) 14 Omit "this Act or the regulations, in relation to a contravention of a civil 15 penalty provision", substitute "an environmental law, in relation to a 16 contravention of an environmental penalty provision". 17 12 Subparagraph 406(1)(ba)(iv) 18 Omit "this Act or the regulations, in relation to a contravention of a civil 19 penalty provision", substitute "an environmental law, in relation to a 20 contravention of an environmental penalty provision". 21 13 Paragraph 406(1)(c) 22 Omit "this Act or the regulations, in relation to a contravention of a civil 23 penalty provision", substitute "an environmental law, in relation to a 24 contravention of an environmental penalty provision". 25 14 Paragraph 406(2)(a) 26 Omit "the Act or the regulations", substitute "an environmental law". 27 15 Paragraph 406(2)(b) 28 Omit "a civil penalty provision", substitute "an environmental penalty 29 provision". 30 16 Paragraph 406(2)(b) 31 Omit "the civil penalty provision" (wherever occurring), substitute "the 32 environmental penalty provision". [Page Break] 2 Repeal the subsections. 3 18 After section 406A 4 Insert: 5 406AA Taking things into possession 6 (1) This section applies if, in conducting a search referred to in 7 paragraph 406(1)(a) or (ba), an authorised officer or a person who 8 conducts a search because of subsection 406A(2) finds: 9 (a) an eligible seizable item; or 10 (b) a thing that may be evidential material in relation to an 11 offence against an environmental law, in relation to a 12 contravention of an environmental penalty provision or in 13 relation to both. 14 (2) An authorised officer may: 15 (a) take possession of the item or thing; and 16 (b) keep the item or thing for so long as he or she thinks 17 necessary for the purposes of this Act or the Great Barrier 18 Reef Marine Park Act 1975. 19 (3) A person who conducts a search because of subsection 406A(2) 20 must take possession of the item or thing and give it to an 21 authorised officer. 22 (4) An authorised officer who is given an item or thing under 23 subsection (3) may keep it for so long as he or she thinks necessary 24 for the purposes of this Act or the Great Barrier Reef Marine Park 25 Act 1975. 26 (5) If: 27 (a) an authorised officer is keeping an item or thing under 28 subsection (2) or (4); and 29 (b) the item or thing was found in conducting a search of a 30 person under paragraph 406(1)(ba); and 31 (c) the person is detained under Schedule 1; 32 the authorised officer may continue to keep the item or thing for so 33 long as he or she thinks necessary for the purposes of this Act, the [Page Break] 2 1958. 3 Note: Once the person ceases to be detained under Schedule 1, the person 4 will generally need to be detained under the Migration Act 1958 while 5 he or she is in the migration zone (because his or her enforcement visa 6 under that Act will cease to have effect). Subsection (5) ensures the 7 officer can keep the item or thing while the person is detained under 8 this Act or that Act. 9 19 Section 406B 10 Omit "406A", substitute "406AA". 11 20 Subsection 407A(12) (paragraph (b) of the definition of 12 relevant material) 13 Omit "this Act or the regulations", substitute "an environmental law". 14 21 Subsections 408(1) and (2) and 409(2) 15 Omit "this Act or the regulations", substitute "an environmental law". 16 22 Subsections 413(1) and (2) 17 Omit "this Act or the regulations, in relation to a contravention of a civil 18 penalty provision", substitute "an environmental law, in relation to a 19 contravention of an environmental penalty provision". 20 23 Paragraph 414(1)(a) 21 Omit "civil", substitute "environmental". 22 24 Subparagraph 414(2)(a)(i) 23 Omit "a civil", substitute "an environmental". 24 25 Subparagraph 414(2)(a)(ii) 25 Omit "another offence against this Act", substitute "another offence 26 against an environmental law". 27 26 Subparagraph 414(2)(a)(iii) 28 Omit "a civil", substitute "an environmental". 29 27 Paragraph 414(2)(a) [Page Break] 2 contravening a civil penalty provision", substitute "committing an 3 offence against an environmental law or in contravening an 4 environmental penalty provision". 5 28 Subparagraph 414(2)(b)(i) 6 Omit "this Act or the regulations, in relation to a contravention of a civil 7 penalty provision", substitute "an environmental law, in relation to a 8 contravention of an environmental penalty provision". 9 29 Subparagraph 414(4)(a)(i) 10 Omit "a civil", substitute "an environmental". 11 30 Subparagraph 414(4)(a)(ii) 12 Omit "another offence against this Act", substitute "another offence 13 against an environmental law". 14 31 Subparagraph 414(4)(a)(iii) 15 Omit "a civil", substitute "an environmental". 16 32 Paragraph 414(4)(a) 17 Omit "committing an offence against this Act or the regulations or in 18 contravening a civil penalty provision", substitute "committing an 19 offence against an environmental law or in contravening an 20 environmental penalty provision". 21 33 Subparagraph 417(1)(d)(i) 22 Omit "a civil", substitute "an environmental". 23 34 Subparagraph 417(1)(d)(ii) 24 Omit "another offence against this Act", substitute "another offence 25 against an environmental law". 26 35 Subparagraph 417(1)(d)(iii) 27 Omit "a civil", substitute "an environmental". 28 36 Paragraph 417(1)(d) [Page Break] 2 contravening a civil penalty provision", substitute "committing an 3 offence against an environmental law or in contravening an 4 environmental penalty provision". 5 37 Subparagraph 417(1)(f)(i) 6 Omit "this Act or the regulations, in relation to a contravention of a civil 7 penalty provision", substitute "an environmental law, in relation to a 8 contravention of an environmental penalty provision". 9 38 Subparagraph 417(2)(c)(i) 10 Omit "a civil", substitute "an environmental". 11 39 Subparagraph 417(2)(c)(ii) 12 Omit "another offence against this Act", substitute "another offence 13 against an environmental law". 14 40 Subparagraph 417(2)(c)(iii) 15 Omit "a civil", substitute "an environmental". 16 41 Paragraph 417(2)(c) 17 Omit "committing an offence against this Act or the regulations or in 18 contravening a civil penalty provision", substitute "committing an 19 offence against an environmental law or in contravening an 20 environmental penalty provision". 21 42 Subsections 422(1) and (2) 22 Omit "this Act or the regulations, in relation to a contravention of a civil 23 penalty provision", substitute "an environmental law, in relation to a 24 contravention of an environmental penalty provision". 25 43 Paragraph 422(4)(a) 26 Omit "this Act or the regulations, in relation to a contravention of a civil 27 penalty provision", substitute "an environmental law, in relation to a 28 contravention of an environmental penalty provision". 29 44 Paragraph 430(1)(a) 30 Omit "this Act or the regulations", substitute "an environmental law". 31 45 At the end of section 430 [Page Break] 2 (4) A reference in this section to an offence against an environmental 3 law does not include an offence against Part VIIA of the Great 4 Barrier Reef Marine Park Act 1975 (compulsory pilotage). 5 46 Section 431 6 Omit "this Act or the regulations", substitute "an environmental law". 7 47 Section 432 8 Omit "this Act or the regulations" (wherever occurring), substitute "an 9 environmental law". 10 48 Paragraph 432(aa) 11 Omit "a civil", substitute "an environmental". 12 49 Section 433 13 Omit "this Act or the regulations" (wherever occurring), substitute "an 14 environmental law". 15 50 Paragraph 433(aa) 16 Omit "a civil", substitute "an environmental". 17 51 Subsection 444(1) 18 Omit "this Act or the regulations", substitute "an environmental law". 19 52 Subdivision A of Division 10 of Part 17 (heading) 20 Repeal the heading, substitute: 21 Subdivision AB--Seizure of things (other than specimens 22 involved in a contravention of Part 13A) 23 53 Subsection 445(1) 24 Omit "this Act or the regulations, in relation to contravention of a civil 25 penalty provision", substitute "an environmental law, in relation to a 26 contravention of an environmental penalty provision". 27 54 After subsection 445(3) 28 Insert: [Page Break] 2 law does not include an offence against Part VIIA of the Great 3 Barrier Reef Marine Park Act 1975 (compulsory pilotage). 4 55 Paragraph 446(3)(a) 5 Omit "this Act or the regulations has been committed, or whether a civil 6 penalty provision", substitute "an environmental law has been 7 committed, or whether an environmental penalty provision". 8 56 Paragraph 446(3)(b) 9 Omit "this Act or the regulations, or of a contravention of a civil penalty 10 provision", substitute "an environmental law, or of a contravention of 11 an environmental penalty provision". 12 57 After Subdivision A of Division 10 of Part 17 13 Insert: 14 Subdivision AC--Direction to deliver seizable items 15 447 Direction to deliver seizable items 16 (1) An authorised officer may direct a person to deliver to the officer, 17 or to another person specified in the direction, a thing that the 18 officer is authorised to seize under a warrant issued under 19 Division 4 or under section 445. 20 (2) The direction must: 21 (a) be in writing; and 22 (b) be given to the person who is directed to deliver the thing, 23 who must be: 24 (i) if the thing is a vessel--the person in charge of the 25 vessel, or the vessel's owner; or 26 (ii) if the thing is an aircraft--the person in charge of the 27 aircraft; or 28 (iii) otherwise--the person in possession of the thing; and 29 (c) specify the place at which the delivery is to occur; and 30 (d) specify the period within which the delivery is to occur. 31 (3) A person must not fail to comply with a direction under this 32 section. [Page Break] 2 (4) This Part applies to a thing delivered in compliance with a 3 direction under this section as if the thing had been seized under 4 the warrant or section that authorised the officer to seize the thing. 5 (5) A direction made under subsection (1) is not a legislative 6 instrument. 7 58 Section 449BA 8 Before "If", insert "(1)". 9 59 At the end of section 449BA 10 Add: 11 (2) A person commits an offence if: 12 (a) a thing is released to the person under subsection (1) subject 13 to a condition; and 14 (b) the person engages in conduct; and 15 (c) the conduct contravenes the condition. 16 Penalty: Imprisonment for 12 months or 60 penalty units, or both. 17 (3) Absolute liability applies to paragraph (2)(a). 18 Note: For absolute liability, see section 6.2 of the Criminal Code. 19 60 Subsection 450(1) 20 Omit "this Act or the regulations", substitute "an environmental law". 21 61 Subsection 450(2) 22 Omit "406A", substitute "406AA". 23 62 Subparagraph 450(3)(b)(i) 24 Omit "this Act or the regulations", substitute "an environmental law". 25 63 Paragraph 450(3)(c) 26 Omit "this Act or the regulations", substitute "an environmental law". 27 64 At the end of section 450 28 Add: [Page Break] 2 law does not include an offence against Part VIIA of the Great 3 Barrier Reef Marine Park Act 1975 (compulsory pilotage). 4 65 Subsection 450A(1) 5 Omit "this Act or the regulations", substitute "an environmental law". 6 66 Subparagraph 450A(2)(b)(i) 7 Omit "this Act or the regulations", substitute "an environmental law". 8 67 Paragraph 450A(2)(c) 9 Omit "this Act or the regulations", substitute "an environmental law". 10 68 At the end of section 450A 11 Add: 12 (3) A reference in this section to an offence against an environmental 13 law does not include an offence against Part VIIA of the Great 14 Barrier Reef Marine Park Act 1975 (compulsory pilotage). 15 69 Paragraphs 456(a) and (b) 16 Omit "this Act", substitute "an environmental law". 17 70 Paragraph 486E(1)(a) 18 Omit "this Act or the regulations", substitute "an environmental law". 19 71 Paragraph 486E(1)(b) 20 Omit "a civil", substitute "an environmental". 21 72 Subsection 486E(2) (definition of official) 22 Repeal the definition, substitute: 23 official means any of the following: 24 (a) the Minister; 25 (b) an officer or employee in the Department; 26 (c) the Director; 27 (d) the Chairperson of the Great Barrier Reef Marine Park 28 Authority; [Page Break] 2 Authority. 3 73 Paragraph 486H(a) 4 Omit "this Act or the regulations", substitute "an environmental law". 5 74 Paragraph 486H(b) 6 Omit "a civil", substitute "an environmental". 7 75 Section 528 8 Insert: 9 dory means: 10 (a) a vessel in relation to which a licence or other permission 11 (however described and whether or not in force) has been 12 granted under a law of the Commonwealth, a State or a 13 Territory authorising the vessel to be used in association with 14 a primary commercial fishing vessel; or 15 (b) a vessel that is used in association with a primary commercial 16 fishing vessel. 17 Note: A dory might also be known as a tender commercial fishing vessel. 18 76 Section 528 19 Insert: 20 environmental law means: 21 (a) this Act; or 22 (b) the regulations; or 23 (c) the Great Barrier Reef Marine Park Act 1975; or 24 (d) regulations made under the Great Barrier Reef Marine Park 25 Act 1975. 26 77 Section 528 27 Insert: 28 environmental penalty provision means: 29 (a) a civil penalty provision under this Act; or 30 (b) a civil penalty provision under the Great Barrier Reef Marine 31 Park Act 1975. [Page Break] 2 Insert: 3 primary commercial fishing vessel means: 4 (a) a vessel in relation to which a licence or other permission 5 (however described and whether or not in force) has been 6 granted under a law of the Commonwealth, a State or a 7 Territory authorising the vessel to be used to take fish for 8 commercial purposes; or 9 (b) a vessel that is used to take fish for commercial purposes. 10 79 Subclause 8(1) of Schedule 1 11 Omit "this Act or the regulations", substitute "an environmental law". 12 80 Subclause 10(1) of Schedule 1 13 Omit "this Act or the regulations", substitute "an environmental law". 14 81 Subparagraph 15(2)(b)(i) of Schedule 1 15 Omit "this Act or the regulations", substitute "an environmental law". 16 82 Paragraph 15(3)(b) of Schedule 1 17 After "this Act", insert ", the Great Barrier Reef Marine Park Act 18 1975". 19 83 Subparagraph 17(3)(c)(i) of Schedule 1 20 After "the Director,", insert "the Chairperson of the Great Barrier Reef 21 Marine Park Authority". 22 84 Paragraph 19(1)(a) of Schedule 1 23 Omit "this Act or the regulations", substitute "an environmental law". 24 85 Paragraph 26(3)(f) of Schedule 1 25 Omit "this Act or the regulations", substitute "an environmental law". 26 86 Paragraph 38(3)(b) of Schedule 1 27 After "the Director", insert ", the Chairperson of the Great Barrier Reef 28 Marine Park Authority". 29 87 Subclause 38(4) of Schedule 1 [Page Break] 1 2 Part 2--Amendment of the Great Barrier Reef Marine 3 Park Act 1975 4 Great Barrier Reef Marine Park Act 1975 5 88 Subsection 3(1) 6 Insert: 7 civil penalty provision has the meaning given by section 61AID. 8 89 Subsection 3(1) 9 Insert: 10 class vessel monitoring direction has the meaning given by 11 subsection 61AAA(7). 12 90 Subsection 3(1) 13 Insert: 14 declaration of contravention means a declaration made under 15 section 61AIA. 16 91 Subsection 3(1) 17 Insert: 18 emergency direction has the meaning given by subsection 19 61ACA(2). 20 92 Subsection 3(1) 21 Insert: 22 enforceable direction has the meaning given by subsection 23 61ADA(2). 24 93 Subsection 3(1) (definition of evidential material) 25 Repeal the definition. 26 94 Subsection 3(1) 27 Insert: [Page Break] 2 whatever name called and whether or not a director of the body, 3 who is concerned in, or takes part in, the management of the body. 4 95 Subsection 3(1) 5 Insert: 6 Federal Court means the Federal Court of Australia. 7 96 Subsection 3(1) (definition of frisk search) 8 Repeal the definition. 9 97 Subsection 3(1) 10 Insert: 11 individual vessel monitoring direction has the meaning given by 12 subsection 61AAA(2). 13 98 Subsection 3(1) (paragraph (a) of the definition of 14 inspector) 15 Omit "section 43", substitute "subsection 43(1)". 16 99 Subsection 3(1) (definition of ordinary search) 17 Repeal the definition. 18 100 Subsection 3(1) 19 Insert: 20 pecuniary penalty order means an order referred to in subsection 21 61AIC(2). 22 101 Subsection 3(1) 23 Insert: 24 penalty unit has the meaning given by section 4AA of the Crimes 25 Act 1914. 26 102 Subsection 3(1) 27 Insert: [Page Break] 2 61AHA(1). 3 103 Subsection 3(1) 4 Insert: 5 reviewable decision has the meaning given by subsection 64(3). 6 104 Subsection 3(1) (definition of seizable item) 7 Repeal the definition. 8 105 Subsection 3(1) 9 Insert: 10 vessel monitoring direction means an individual vessel monitoring 11 direction or a class vessel monitoring direction. 12 106 Subsection 3(1) 13 Insert: 14 vessel monitoring system means a system in which vessels are 15 fitted with an electronic device that can provide information about 16 the vessels' course or position, or other such information. 17 107 Subsection 3(10) 18 Repeal the subsection, substitute: 19 (10) If the owner of a vessel does not operate the vessel, a reference in 20 this Act to the owner of the vessel includes a reference to a person 21 who is a party to an agreement with the owner under which the 22 person, or the person and the owner, may determine the activities 23 for which the vessel is used. 24 108 At the end of subsection 4(1A) 25 Add "or to be subject to civil proceedings for a contravention of a civil 26 penalty provision". 27 109 Section 4A (note 1) 28 Omit "subsection 64(8)", substitute "subsection 61ANA(8)". 29 110 Division 3 of Part V (heading) [Page Break] 2 Division 3--Duty to prevent or minimise harm to 3 environment in Marine Park 4 37AA Duty to prevent or minimise harm to environment in Marine 5 Park 6 (1) A person who uses or enters the Marine Park must take all 7 reasonable steps to prevent or minimise harm to the environment in 8 the Marine Park that might or will be caused by the person's use or 9 entry. 10 Note: The Minister may accept an enforceable undertaking under 11 section 61ABA, or make an enforceable direction under 12 section 61ADA, in relation to a contravention of this duty. 13 (2) For the purposes of subsection (1), harm includes the following: 14 (a) any adverse effect; 15 (b) direct or indirect harm; 16 (c) harm to which the person's use or entry has contributed, to 17 any extent (whether or not other matters have contributed to 18 the harm). 19 (3) In determining whether all reasonable steps have been taken, have 20 regard to the following: 21 (a) the nature of the harm to the environment that might or will 22 result from the person's use or entry; 23 (b) the risk of harm from the person's use or entry; 24 (c) the sensitivity of the environment that might or will be 25 affected by the person's use or entry; 26 (d) if the person is using or entering a zone--any objectives 27 specified for the zone in its zoning plan; 28 (e) the practicalities, including cost, of steps that will prevent or 29 minimise the harm; 30 (f) whether or not the person's use or entry complies with the 31 laws applying in the Marine Park in relation to the 32 environment or natural resources; 33 (g) whether or not the person's use or entry complies with any 34 relevant code of practice, standard or guideline; [Page Break] 2 any conditions of a permission granted under the regulations 3 for the purposes of a zoning plan or a provision of this Act. 4 111 Section 39I 5 Repeal the section. 6 112 Subsections 39K(4) and 39PA(3) 7 Repeal the subsections. 8 113 Subsection 39S(4) 9 Repeal the subsection, substitute: 10 (4) If an inspector (other than a member of a police force who is in 11 uniform) stops or detains an aircraft or vessel under subsection (1), 12 the inspector must produce for inspection by the person in charge 13 of the aircraft or vessel: 14 (a) if the inspector is a member of a police force--written 15 evidence of the fact that the inspector is a member of that 16 police force; or 17 (b) in any other case--the inspector's identity card. 18 (5) An inspector who does not comply with subsection (4) is not 19 authorised to search or detain the aircraft or vessel. 20 114 After subsection 39T(1) 21 Insert: 22 (1A) An inspector is not entitled to enter premises under subsection (1), 23 or exercise any powers referred to in subsection (3) in relation to 24 an entry under subsection (1), if: 25 (a) the occupier of the premises has required the inspector to 26 produce written identification for inspection by the occupier; 27 and 28 (b) the inspector fails to produce: 29 (i) if the inspector is a member of a police force--written 30 evidence of the fact that the inspector is a member of 31 that police force; or 32 (ii) in any other case--the inspector's identity card for 33 inspection by the occupier. [Page Break] 2 Insert: 3 (2A) If an inspector is executing a warrant under subsection (2) and the 4 occupier of the premises, or another person who apparently 5 represents the occupier, is present, the inspector must: 6 (a) identify himself or herself to that person; and 7 (b) make available to that person a copy of the warrant (which 8 need not be signed). 9 116 Subsection 39T(5) 10 Insert: 11 occupier of premises means the person apparently in charge of the 12 premises. 13 117 Section 42 14 Repeal the section. 15 118 Section 43 16 Before "The", insert "(1)". 17 119 At the end of section 43 18 Add: 19 ; and (c) specify the powers that the person may exercise as an 20 inspector under the Environment Protection and Biodiversity 21 Conservation Act 1999. 22 Note: Inspectors have powers under the Environment Protection and 23 Biodiversity Conservation Act 1999 to enforce this Act. 24 (2) Despite paragraph (1)(a), the Authority must not appoint an officer 25 or employee of an Agency (within the meaning of the Public 26 Service Act 1999) that is not the Department or the Authority to be 27 an inspector unless: 28 (a) an arrangement in respect of the officer or employee is in 29 force under subsection 43A(1); and 30 (b) the powers specified for the officer or employee for the 31 purposes of paragraphs (1)(b) and (c) are limited in a way 32 that is consistent with any limitation set out in the 33 arrangement. [Page Break] 2 or employee of a Commonwealth authority (within the meaning of 3 the Commonwealth Authorities and Companies Act 1997) to be an 4 inspector unless: 5 (a) an arrangement in respect of the officer or employee is in 6 force under subsection 43A(2); and 7 (b) the powers specified for the officer or employee for the 8 purposes of paragraphs (1)(b) and (c) are limited in a way 9 that is consistent with any limitation set out in the 10 arrangement. 11 (4) Despite paragraph (1)(a), the Authority must not appoint: 12 (a) an officer or employee of Queensland or of an authority of 13 Queensland (including a local government body); or 14 (b) a member of the police force of Queensland; 15 to be an inspector unless: 16 (c) an arrangement in respect of the officer, employee or 17 member is in force under subsection 43A(3); and 18 (d) the powers specified for the officer, employee or member for 19 the purposes of paragraphs (1)(b) and (c) are limited in a way 20 that is consistent with any limitation set out in the 21 arrangement. 22 120 After section 43 23 Insert: 24 43A Arrangements for certain persons to be inspectors 25 Arrangements with Agency Heads 26 (1) The Authority may enter into an arrangement with an Agency 27 Head (within the meaning of the Public Service Act 1999) for 28 officers or employees of the Agency Head's Agency (within the 29 meaning of the Public Service Act 1999) to be appointed as 30 inspectors under subsection 43(1) of this Act. 31 Note: An arrangement must be in force before an officer or employee can be 32 appointed as an inspector (except for employees of the Department 33 and the Authority) (see subsection 43(2)). [Page Break] 2 (2) The Authority may enter into an arrangement with a 3 Commonwealth authority (within the meaning of the 4 Commonwealth Authorities and Companies Act 1997) for officers 5 or employees of the authority to be appointed as inspectors under 6 subsection 43(1) of this Act. 7 Note: An arrangement must be in force before an officer or employee can be 8 appointed as an inspector (see subsection 43(3)). 9 Arrangements with Queensland 10 (3) The Minister may enter into an arrangement with the appropriate 11 Minister of Queensland for: 12 (a) officers or employees of Queensland or of an authority of 13 Queensland (including a local government body); or 14 (b) members of the police force of Queensland; 15 to be appointed as inspectors under subsection 43(1) of this Act. 16 Note: An arrangement must be in force before an officer, employee or 17 member can be appointed as an inspector (see subsection 43(4)). 18 Limits on powers 19 (4) An arrangement under this section for persons to be appointed as 20 inspectors may specify that the persons' powers as inspectors are to 21 be limited in the way set out in the arrangement. 22 121 At the end of section 44 23 Add: 24 Note: Inspectors have powers under the Environment Protection and 25 Biodiversity Conservation Act 1999 to enforce this Act. 26 122 Sections 45A to 48A 27 Repeal the sections, substitute: 28 46 Delegation by Minister 29 (1) The Minister may, by signed writing, delegate to the Authority any 30 or all of the Minister's powers or functions under this Act, other 31 than a power or function under: 32 (a) subsection 31(4) or (5); or [Page Break] 2 (c) subsection 35C(2), (5) or (6); or 3 (d) subsection 37(2) or (4); or 4 (e) subsection 37A(1); or 5 (f) subsection 54(4); or 6 (g) paragraph 61ACA(4)(a); or 7 (h) section 61ADE. 8 (2) In exercising a power or performing a function under the 9 delegation, the Authority must comply with any directions of the 10 Minister. 11 47 Delegation by Authority 12 (1) The Authority may, by writing under its common seal, delegate 13 any or all of its powers or functions under this Act to any of the 14 following: 15 (a) the Chairperson; 16 (b) an employee of the Department or of the Authority; 17 (c) an officer or employee of an Agency (within the meaning of 18 the Public Service Act 1999) in respect of whom an 19 arrangement is in force under subsection 48A(1); 20 (d) an officer or employee of a Commonwealth authority (within 21 the meaning of the Commonwealth Authorities and 22 Companies Act 1997) in respect of whom an arrangement is 23 in force under subsection 48A(2); 24 (e) an officer or employee of Queensland, or of an authority of 25 Queensland (including a local government body), in respect 26 of whom an arrangement is in force under subsection 48A(3). 27 (2) The Authority may, by writing under its common seal, 28 sub-delegate to a person mentioned in subsection (1) a power or 29 function delegated to the Authority under this or any other Act. 30 (3) Despite subsection (1) or (2), the Authority must not delegate or 31 sub-delegate under that subsection a power or function under 32 Part VAA (Offences and penalties) or Part VIII (Enforcement) of 33 this Act or under Part 17 (Enforcement) of the Environment 34 Protection and Biodiversity Conservation Act 1999 to a person 35 mentioned in paragraph (1)(b), (c), (d) or (e) unless the person: 36 (a) is an SES employee or an acting SES employee; or [Page Break] 2 equivalent, position; or 3 (c) is of equivalent rank to an APS employee who: 4 (i) is an SES employee or acting SES employee; or 5 (ii) holds, or is acting in, an Executive Level 1 or 2, or 6 equivalent, position. 7 (4) Sections 34AA, 34AB and 34A of the Acts Interpretation Act 1901 8 apply to a sub-delegation under subsection (2) in the same way as 9 they apply to a delegation. 10 (5) In exercising powers or performing functions under a delegation, 11 the delegate must comply with any directions of the Authority. 12 (6) In exercising powers or performing functions under a 13 sub-delegation, the sub-delegate must comply with any directions 14 of the Authority. 15 (7) If the Authority is subject to a direction in relation to the exercise 16 of a power or the performance of a function sub-delegated under 17 this section, the Authority must give a corresponding direction to 18 the sub-delegate. 19 48 Delegation by Chairperson 20 (1) The Chairperson may, by signed writing, sub-delegate a power or 21 function delegated to the Chairperson under this or any other Act to 22 a member of the staff of the Authority. However, this subsection 23 does not allow the Chairperson to sub-delegate a power or function 24 that has been sub-delegated to the Chairperson. 25 (2) Despite subsection (1), the Chairperson must not sub-delegate 26 under that subsection a power or function under Part VAA 27 (Offences and penalties) or Part VIII (Enforcement) of this Act or 28 under Part 17 (Enforcement) of the Environment Protection and 29 Biodiversity Conservation Act 1999 unless the member of staff: 30 (i) is an SES employee or an acting SES employee; or 31 (ii) holds, or is acting in, an Executive Level 1 or 2, or 32 equivalent, position.6666 33 (3) Sections 34AA, 34AB and 34A of the Acts Interpretation Act 1901 34 apply to a sub-delegation under subsection (1) in the same way as 35 they apply to a delegation. [Page Break] 2 sub-delegation, the sub-delegate must comply with any directions 3 of the Chairperson. 4 (5) If the Chairperson is subject to a direction in relation to the 5 exercise of a power or the performance of a function sub-delegated 6 under this section, the Chairperson must give a corresponding 7 direction to the sub-delegate. 8 48A Arrangements for certain delegations 9 Arrangements with Agency Heads 10 (1) The Authority may enter into an arrangement with an Agency 11 Head (within the meaning of the Public Service Act 1999) in 12 relation to officers or employees of the Agency Head's Agency 13 (within the meaning of the Public Service Act 1999) for the 14 purposes of allowing powers or functions to be delegated or 15 sub-delegated under section 47 to the officers or employees. 16 Note: An arrangement must be in force before a power or function can be 17 delegated to an officer or employee, except for employees of the 18 Department and the Authority (see paragraphs 47(1)(b) and (c)). 19 Arrangements with Commonwealth authorities 20 (2) The Authority may enter into an arrangement with a 21 Commonwealth authority (within the meaning of the 22 Commonwealth Authorities and Companies Act 1997) in relation to 23 officers or employees of the authority for the purposes of allowing 24 powers or functions to be delegated or sub-delegated under 25 section 47 to the officers or employees. 26 Note: An arrangement must be in force before a power or function can be 27 delegated to an officer or employee (see paragraph 47(1)(d)). 28 Arrangements with Queensland 29 (3) The Minister may enter into an arrangement with an appropriate 30 Minister of Queensland in relation to officers or employees of 31 Queensland or of an authority of Queensland (including a local 32 government body) for the purposes of allowing powers or functions 33 to be delegated or sub-delegated under section 47 to the officers or 34 employees. [Page Break] 2 delegated to an officer or employee (see paragraph 47(1)(e)). 3 123 Paragraph 53(2)(a) 4 Omit "61A(4)", substitute "46(2)". 5 124 Part VIII (heading) 6 Repeal the heading, substitute: 7 Part VIII--Enforcement 8 125 Section 61 9 Repeal the section, substitute: 10 Division 1--Enforcement powers 11 Subdivision A--Vessel monitoring directions 12 61AAA Making vessel monitoring directions 13 Application of this section 14 (1) This section applies in relation to a vessel that is required by a law 15 of the Commonwealth, a State or a Territory to be equipped with a 16 vessel monitoring system. 17 Directions for individual vessels 18 (2) The Authority may, in writing, make a direction (an individual 19 vessel monitoring direction) requiring one of the persons 20 responsible, or one of the kinds of persons responsible, for a 21 particular vessel to provide the Authority, or cause the Authority to 22 be provided, with the information specified for the vessel in the 23 direction (which must be information of a kind provided by the 24 vessel monitoring system in relation to the operation of the vessel 25 in the Marine Park). 26 Note: For responsible, see subsection (10). 27 (3) A copy of an individual vessel monitoring direction must be given 28 to the person, or each of the persons, to whom it applies. [Page Break] 2 (a) takes effect: 3 (i) on the day (if any) specified in the direction (which 4 must not be earlier than the day on which a copy of the 5 direction is first given to a person to whom it applies); 6 or 7 (ii) if no day is specified--on the day on which a copy of 8 the direction is first given to a person to whom it 9 applies; and 10 (b) continues in effect for the period specified in the direction. 11 (5) The Authority may vary or revoke an individual vessel monitoring 12 direction: 13 (a) in the same manner as an individual vessel monitoring 14 direction may be made; and 15 (b) subject to the same conditions as apply to the making of an 16 individual vessel monitoring direction. 17 (6) An individual vessel monitoring direction is not a legislative 18 instrument. 19 Directions for classes of vessels 20 (7) The Authority may, by legislative instrument, make a direction (a 21 class vessel monitoring direction) requiring one of the kinds of 22 persons responsible for a vessel belonging to a particular class of 23 vessels to provide the Authority, or cause the Authority to be 24 provided, with the information specified for the vessel in the 25 direction (which must be information of a kind provided by the 26 vessel monitoring system in relation to the operation of the vessel 27 in the Marine Park). 28 Note: For responsible, see subsection (10). 29 (8) The Authority may vary or revoke a class vessel monitoring 30 direction: 31 (a) in the same manner as a class vessel monitoring direction 32 may be made; and 33 (b) subject to the same conditions as apply to the making of a 34 class vessel monitoring direction. [Page Break] 2 (9) A vessel monitoring direction may require the specified 3 information to be provided: 4 (a) before the end of a specified period; or 5 (b) at specified intervals, either during a specified period or 6 indefinitely; or 7 (c) continuously, either during a specified period or indefinitely; 8 or 9 (d) in any other way the Authority considers appropriate. 10 Persons responsible for a vessel 11 (10) For the purposes of subsections (2) and (7), each of the following 12 persons is responsible for a vessel: 13 (a) an owner of the vessel; 14 (b) a person who, under a law of the Commonwealth, a State or a 15 Territory, holds a licence or other permission (however 16 described and including one that is suspended) in relation to 17 the vessel that requires the vessel to be fitted with a vessel 18 monitoring system; 19 (c) a person specified in the regulations for the purposes of this 20 paragraph. 21 61AAB Use and disclosure of vessel monitoring information 22 (1) This section applies in relation to information that was obtained by 23 the Authority under a vessel monitoring direction and was not 24 publicly available at the time the Authority obtained it. 25 (2) The Authority must not disclose the information unless the 26 disclosure is for one or more of the following purposes: 27 (a) administering this Act, including performing duties or 28 functions, or exercising powers, under this Act; 29 (b) managing the Marine Park; 30 (c) proceedings in relation to enforcement of this Act, including 31 proceedings: 32 (i) for an injunction; or 33 (ii) by way of prosecution for an offence; or 34 (iii) for the making of a declaration of contravention of a 35 civil penalty provision; or [Page Break] 2 (v) for the making of any other court order in relation to an 3 instrument made under this Act; 4 (d) other law enforcement purposes; 5 (e) matters relating to reconsideration or review of a decision 6 made under this Act; 7 (f) a purpose for which the information is required by law to be 8 disclosed. 9 61AAC Failure to comply with vessel monitoring direction: offence 10 (1) A person commits an offence if: 11 (a) the person is a kind of person responsible (within the 12 meaning of subsection 61AAA(10)) for a vessel; and 13 (b) a vessel monitoring direction applies for the vessel; and 14 (c) the direction applies to the person, or to that kind of person; 15 and 16 (d) if the direction is an individual vessel monitoring direction-- 17 a copy of the direction has been given to the person; and 18 (e) the direction is not complied with. 19 Penalty: 500 penalty units. 20 (2) Strict liability applies to paragraphs (1)(a) and (d). 21 Note: For strict liability, see section 6.1 of the Criminal Code. 22 (3) Absolute liability applies to paragraphs (1)(b) and (c). 23 Note: For absolute liability, see section 6.2 of the Criminal Code. 24 61AAD Failure to comply with vessel monitoring direction: civil 25 penalty provision 26 If: 27 (a) a person is a kind of person responsible (within the meaning 28 of subsection 61AAA(10)) for a vessel; and 29 (b) a vessel monitoring direction applies for the vessel; and 30 (c) the direction applies to the person, or to that kind of person; 31 and 32 (d) if the direction is an individual vessel monitoring direction-- 33 a copy of the direction has been given to the person; [Page Break] 2 with. 3 Civil penalty: 4 (a) for an individual--250 penalty units; or 5 (b) for a body corporate--2,500 penalty units. 6 Subdivision B--Enforceable undertakings 7 61ABA Acceptance of undertaking 8 (1) This section applies if the Minister considers that a person has 9 contravened: 10 (a) the duty in section 37AA to prevent or minimise harm to the 11 environment in the Marine Park; or 12 (b) a civil penalty provision. 13 (2) The Minister may accept a written undertaking given by the person 14 in relation to the contravention, in which the person undertakes to 15 do any or all of the following: 16 (a) take specified actions to prevent, repair or mitigate harm of a 17 specified kind in the Great Barrier Reef Region; 18 (b) take specified actions to ensure that the person does not 19 engage, or is unlikely to engage, in conduct that contravenes 20 the duty in section 37AA or a civil penalty provision; 21 (c) pay a specified amount to the Commonwealth, to be used for 22 the purpose of taking actions referred to in paragraph (a) or 23 (b). 24 (3) The undertaking must be expressed to be an undertaking under this 25 section. 26 (4) The person may withdraw or vary the undertaking at any time, but 27 only with the consent of the Minister. 28 (5) The Minister may, by notice in writing given to the person, cancel 29 the undertaking. 30 (6) The undertaking may be published on either or both of the 31 following: 32 (a) the website of the Authority; 33 (b) the website of the Department. [Page Break] 2 (1) If: 3 (a) a person has given an undertaking under section 61ABA; and 4 (b) the undertaking has not been withdrawn or cancelled; and 5 (c) the Minister considers that the person has breached the 6 undertaking; 7 the Minister may apply to the Federal Court for an order under 8 subsection (2). 9 (2) If the Federal Court is satisfied that the person has breached the 10 undertaking, the Court may make one or more of the following 11 orders: 12 (a) an order directing the person to comply with the undertaking; 13 (b) any other order that the Court considers appropriate. 14 Subdivision C--Emergency directions 15 61ACA Making emergency directions 16 Application of this section 17 (1) This section applies if the Authority is satisfied that circumstances 18 exist amounting to an emergency that poses a serious risk to the 19 environment in the Marine Park. 20 Emergency directions 21 (2) The Authority may make a direction (an emergency direction) 22 requiring a particular person, persons of a particular class, or 23 persons generally, to take, or not to take, specified action for the 24 purposes of avoiding, mitigating or eliminating the risk. 25 (3) An emergency direction that applies to a particular person does not 26 have to be in writing, but must be communicated to the person to 27 whom it applies. An emergency direction other than a direction that 28 applies to a particular person must be in writing and a copy of the 29 direction must be published on the website of the Authority as soon 30 as practicable after the direction is made. [Page Break] 2 (4) The Authority must not make an emergency direction unless: 3 (a) the Minister has consented to the making of the direction; 4 and 5 (b) the Authority is satisfied that the direction is necessary and 6 appropriate for the purposes of avoiding, mitigating or 7 eliminating the risk; and 8 (c) if the circumstances include an incident involving a vessel-- 9 the Authority is satisfied that the direction is not inconsistent 10 with Articles III and V of the International Convention 11 Relating to Intervention on the High Seas in Cases of Oil 12 Pollution Casualties, done at Brussels on 29 November 1969 13 [1984] ATS 4. 14 Note: The text of the Convention is set out in Australian Treaty Series 15 1984 No. 4. In 2008, the text of a Convention in the Australian 16 Treaty Series was accessible through the Australian Treaties 17 Library on the AustLII Internet site (www.austlii.edu.au). 18 Examples of emergency directions 19 (5) The following are examples of emergency directions the Authority 20 may make: 21 (a) a direction regulating or prohibiting the entry or use of a 22 vessel, vehicle or aircraft in the Marine Park or a part of the 23 Marine Park; 24 (b) a direction that a person remove a vessel, vehicle or aircraft 25 from the Marine Park or a part of the Marine Park; 26 (c) a direction that a person responsible for abandoned, stranded, 27 sunk or wrecked property take any action reasonably 28 necessary to avoid, mitigate or eliminate risk arising from the 29 presence of the property in the Marine Park. 30 When emergency directions have effect 31 (6) An emergency direction: 32 (a) takes effect on the day the direction is made; and 33 (b) continues in effect until the earlier of: 34 (i) the end of the period (if any) specified in the direction 35 (which must end no later than 2 months after the day the 36 direction is made); or [Page Break] 2 made. 3 Variation and revocation 4 (7) The Authority may vary or revoke an emergency direction: 5 (a) in the same manner as an emergency direction may be made; 6 and 7 (b) subject to the conditions that apply to the making of an 8 emergency direction (for this purpose, subsection (1) and 9 paragraph (4)(b) are not conditions); and 10 (c) subject to the Authority being satisfied that the variation or 11 revocation would not be inconsistent with the purposes of 12 avoiding, mitigating or eliminating the risk in relation to 13 which the direction was made. 14 Emergency directions are not legislative instruments 15 (8) If a direction under subsection (2) is made in writing, the direction 16 is not a legislative instrument. 17 61ACB Failure to comply with emergency direction: offence 18 (1) A person commits an offence if: 19 (a) an emergency direction applies to the person; and 20 (b) if the direction applies to a particular person--the direction 21 was communicated to the person; and 22 (c) if the direction applies to a class of persons or to persons 23 generally--the direction has been published on the website of 24 the Authority; and 25 (d) the person fails to comply with the direction. 26 Penalty: 500 penalty units. 27 (2) Absolute liability applies to paragraph (1)(a). 28 Note: For absolute liability, see section 6.2 of the Criminal Code. 29 (3) Strict liability applies to paragraphs (1)(b) and (c). 30 Note: For strict liability, see section 6.1 of the Criminal Code. 31 (4) It is a defence to a prosecution for an offence against subsection (1) 32 if it is proved: [Page Break] 2 to save life at sea; or 3 (b) that compliance with the direction was not possible; or 4 (c) if the direction requires a thing to be done before a particular 5 time--that compliance with the direction was not possible 6 before that time and the direction was complied with as soon 7 as possible after that time. 8 Note: The defendant bears a legal burden in relation to the matters in this 9 subsection. See section 13.4 of the Criminal Code. 10 Subdivision D--Enforceable directions 11 61ADA Making enforceable directions 12 Application of this section 13 (1) This section applies if the Minister is satisfied: 14 (a) that a person has engaged, is engaging, or is likely to engage, 15 in conduct that: 16 (i) constitutes or would constitute an offence against this 17 Act; or 18 (ii) contravenes or would contravene a civil penalty 19 provision; or 20 (iii) contravenes or would contravene the duty in 21 section 37AA to prevent or minimise harm to the 22 environment in the Marine Park; and 23 (b) that it would be in the public interest to make a direction 24 under this section for either or both of the following 25 purposes: 26 (i) ensuring the person's future compliance with this Act; 27 (ii) preventing, repairing or mitigating harm to the 28 environment in the Marine Park that has been, might be 29 or will be caused by the person's conduct. 30 Enforceable directions 31 (2) The Minister may, in writing, make a direction (an enforceable 32 direction) requiring the person to take or not to take specified 33 action for either or both of the purposes referred to in 34 subparagraphs (1)(b)(i) and (ii). [Page Break] 2 Examples of enforceable directions 3 (4) The following are examples of enforceable directions the Minister 4 may make: 5 (a) a direction that the person stop, or not start, a specified 6 activity (whether indefinitely or for a specified period); 7 (b) a direction that a person undertake a specified activity; 8 (c) a direction that a person undertake a specified activity in a 9 specified way; 10 (d) a direction that a person prepare and comply with a plan of 11 action, for compliance with this Act or for preventing, 12 repairing or mitigating harm to the environment, that is 13 satisfactory to the Minister; 14 (e) a direction that a person arrange for monitoring or auditing of 15 either or both of the following: 16 (i) the person's compliance with this Act; 17 (ii) the effects on the environment in the Marine Park of the 18 person's activities; 19 and provide the results to the Minister. 20 Variation and revocation 21 (5) The Minister may vary or revoke an enforceable direction: 22 (a) in the same manner as an enforceable direction may be made; 23 and 24 (b) subject to the conditions that apply to the making of an 25 enforceable direction (for this purpose, subsection (1) is not a 26 condition); and 27 (c) subject to the Minister being satisfied that it would be in the 28 public interest to vary or revoke the direction; and 29 (d) subject to the Minister being satisfied that the variation or 30 revocation would not be inconsistent with the following 31 purposes: 32 (i) ensuring the person's future compliance with this Act; 33 (ii) preventing, repairing or mitigating harm to the 34 environment in the Marine Park that has been, might be 35 or will be caused by the conduct the person engaged in 36 referred to in subsection (1). [Page Break] 2 (6) An enforceable direction is not a legislative instrument. 3 61ADB Content of enforceable direction 4 An enforceable direction must: 5 (a) state the name of the person to whom it applies; and 6 (b) set out brief details of the conduct to which it applies; and 7 (c) specify whichever of the following apply: 8 (i) the offence referred to in subparagraph 61ADA(1)(a)(i); 9 (ii) the provision referred to in subparagraph 10 61ADA(1)(a)(ii); 11 (iii) the duty in section 37AA to prevent or minimise harm 12 to the environment in the Marine Park; and 13 (d) specify the action that the person is to take or not take; and 14 (e) set out the effect of section 61ADE (Ministerial 15 reconsideration of enforceable direction); and 16 (f) set out the effect of section 61ADH (failure to comply with 17 enforceable direction); and 18 (g) if the direction relates to conduct that a person has engaged in 19 that constitutes an offence or contravention--be given less 20 than 6 years after the offence or contravention occurs. 21 61ADC Notifying owners and occupiers of land 22 (1) Before the Minister makes an enforceable direction that requires an 23 action to be taken on land that is not owned or occupied by the 24 person the Minister proposes the direction will apply to, the 25 Minister must: 26 (a) take all practicable steps to identify each person who is an 27 owner or occupier of the land or any part of it; and 28 (b) take all practicable steps to advise each person identified of 29 the enforceable direction the Minister proposes to make; and 30 (c) give persons advised at least 28 days to comment in writing 31 to the Minister on the proposed enforceable direction. 32 (2) The Minister must take any comments into account in deciding 33 whether to make the proposed enforceable direction. [Page Break] 2 the Minister must take all practicable steps to advise each person 3 identified for the purposes of paragraph (1)(a) that the direction has 4 been made. 5 61ADD When enforceable directions have effect 6 (1) An enforceable direction takes effect: 7 (a) on the day (if any) specified in the direction (which must not 8 be earlier than the day on which a copy of the direction is 9 given to the person to whom it applies); or 10 (b) if no day is specified--on the day on which a copy of the 11 direction is given to the person to whom it applies. 12 (2) An enforceable direction continues in effect: 13 (a) for the period (if any) specified in the direction; or 14 (b) until set aside by the Federal Court under section 61ADF or 15 revoked by the Minister under subsection 61ADA(5). 16 61ADE Ministerial reconsideration of enforceable direction 17 (1) A person to whom an enforceable direction is given may, no later 18 than 20 days after: 19 (a) the day on which the person is given a copy of the direction; 20 or 21 (b) the day on which the Minister varies the direction under 22 subsection 61ADA(5); 23 apply in writing to the Minister for reconsideration of the decision 24 to make or vary the direction. 25 (2) On receipt of the application, the Minister must: 26 (a) reconsider the decision; and 27 (b) affirm or vary it, or set it aside and substitute a new decision. 28 (3) The Minister may take into account information and comments 29 from any source the Minister considers appropriate in deciding 30 what action to take in relation to the application. 31 (4) The Minister must: 32 (a) advise the person of the Minister's decision in relation to the 33 application; and [Page Break] 2 the purposes of paragraph 61ADC(1)(a) of the Minister's 3 decision in relation to the application. 4 61ADF Application to Federal Court 5 (1) A person to whom an enforceable direction applies may apply to 6 the Federal Court to have the direction set aside, as long as the 7 application is made within 28 days after any of the following: 8 (a) the day on which the person is given a copy of the direction; 9 (b) the day on which the Minister affirms or varies the direction 10 under section 61ADE; 11 (c) the day on which the Minister varies the direction under 12 subsection 61ADA(5). 13 (2) On application under subsection (1), the Federal Court must set 14 aside the enforceable direction if the Court is satisfied that: 15 (a) the person did not engage in, or was not likely to engage in, 16 the conduct referred to in subsection 61ADA(1); or 17 (b) the conduct did not or would not constitute the offence 18 specified in the direction; or 19 (c) the conduct did not or would not contravene the civil penalty 20 provision specified in the direction; or 21 (d) the conduct did not or would not contravene the duty in 22 section 37AA; or 23 (e) taking or not taking the action specified in the direction is not 24 a reasonable measure for the purposes of: 25 (i) ensuring the person's future compliance with this Act; 26 or 27 (ii) preventing, repairing or mitigating harm to the 28 environment in the Marine Park that has been, might be 29 or will be caused by the person's conduct. 30 (3) In considering whether taking or not taking an action is a 31 reasonable measure for the purposes referred to in paragraph (2)(e), 32 the Federal Court must have regard to the following: 33 (a) the nature and extent of the conduct referred to in subsection 34 61ADA(1); 35 (b) the nature and extent of the harm to the environment that has 36 been, might be or will be caused by the conduct; [Page Break] 2 conduct; 3 (d) whether the person has previously been found by a court in 4 proceedings under this Act or under any other law of the 5 Commonwealth or a State or Territory to have engaged in 6 any similar conduct; 7 (e) the cost to the person of taking or not taking the action; 8 (f) any benefit (whether or not financial) that the person has 9 obtained or might obtain as a result of engaging in the 10 conduct. 11 The Federal Court may also have regard to any other matters it 12 considers relevant. 13 (4) The Federal Court must not set aside the enforceable direction 14 unless it is satisfied as mentioned in subsection (2). 15 61ADG Enforcement of direction by Federal Court 16 (1) If the Minister considers that the person to whom an enforceable 17 direction applies has failed to comply with the direction, the 18 Minister may apply to the Federal Court for an order under 19 subsection (2). 20 (2) If the Federal Court is satisfied that the person has failed to comply 21 with the direction, the Court may make any one or more of the 22 following orders: 23 (a) an order directing the person to comply with the direction; 24 (b) any other order the Court considers appropriate. 25 61ADH Failure to comply with enforceable direction: civil penalty 26 provision 27 A person to whom an enforceable direction applies must comply 28 with the direction. 29 Civil penalty: 30 (a) for an individual--600 penalty units; or 31 (b) for a body corporate--6,000 penalty units. [Page Break] 2 61AEA Directions limiting access to Marine Park 3 Application of this section 4 (1) This section applies in relation to a person if at least 3 strikes 5 against the person have occurred within the last 10 years. For this 6 purpose: 7 (a) there is a strike against a person if the person has been 8 convicted of an offence against this Act or a declaration of 9 contravention of a civil penalty provision has been made 10 against the person; and 11 (b) the strike occurs on the date the person is convicted of the 12 offence or the date of the declaration of contravention. 13 Directions limiting access to Marine Park 14 (2) The Minister may, in writing, make a direction: 15 (a) prohibiting the person from entering and using the Marine 16 Park; or 17 (b) imposing conditions on the person's entry to and use of the 18 Marine Park. 19 (3) A copy of the direction must be given to the person. 20 Relevant matters 21 (4) In deciding whether to make a direction under subsection (2), the 22 Minister must have regard to: 23 (a) the nature of the conduct involved in the strikes to which the 24 direction relates; and 25 (b) the objects of ensuring the person's future compliance with 26 this Act and preventing harm to the environment in the 27 Marine Park. 28 (5) The Minister must not make a direction under subsection (2) that is 29 inconsistent with the obligations of Australia under international 30 law, including obligations under any agreement or arrangement 31 between Australia and another country or countries. [Page Break] 2 (6) A direction made under subsection (2): 3 (a) takes effect: 4 (i) on the day (if any) specified in the direction (which 5 must not be earlier than the day on which a copy of the 6 direction is given to the person); or 7 (ii) if no day is specified--on the day a copy of the 8 direction is given to the person; and 9 (b) continues in effect for the period specified in the direction 10 (which must be no longer than 10 years after the strike that 11 occurred most recently before the direction takes effect). 12 Variation and revocation 13 (7) The Minister may vary or revoke a direction under subsection (2): 14 (a) in the same manner as a direction under that subsection may 15 be made; and 16 (b) subject to the same conditions as apply to the making of a 17 direction under subsection (2) (for this purpose, 18 subsection (1) is not a condition). 19 Directions are not legislative instruments 20 (8) A direction made under subsection (2) is not a legislative 21 instrument. 22 61AEB Failure to comply with direction: offence 23 (1) A person commits an offence if: 24 (a) a direction under subsection 61AEA(2) applies to the person; 25 and 26 (b) the person fails to comply with the direction. 27 Penalty: 500 penalty units. 28 (2) Absolute liability applies to paragraph (1)(a). 29 Note: For absolute liability, see section 6.2 of the Criminal Code. 30 (3) The fault element for paragraph (1)(b) is negligence. 31 Note: For negligence, see section 5.5 of the Criminal Code. [Page Break] 2 61AFA Publicising offences and contraventions 3 (1) The Minister or the Authority may publicise, in any way the 4 Minister or Authority thinks appropriate, any or all of the 5 following: 6 (a) an offence against this Act of which a person has been 7 convicted; 8 (b) a contravention of a civil penalty provision in respect of 9 which a declaration of contravention has been made against a 10 person or for which a person has been required to pay a 11 pecuniary penalty; 12 (c) a penalty imposed on a person for an offence or 13 contravention of a civil penalty provision. 14 (2) This section does not: 15 (a) limit the Minister's or Authority's powers to publicise an 16 offence against or contravention of this Act; or 17 (b) prevent anyone else from publicising an offence against or 18 contravention of this Act; or 19 (c) affect any obligation (however imposed) on anyone to 20 publicise an offence against or contravention of this Act. 21 Subdivision G--Injunctions 22 61AGA Injunctions 23 (1) If a person has done, is doing or is proposing to do an act that: 24 (a) constitutes or would constitute an offence against this Act; or 25 (b) contravenes or would contravene a civil penalty provision; 26 the Federal Court or the Supreme Court of Queensland may, on 27 application by the Minister, the Authority or by a person whose 28 interests have been, are or would be affected by the action, grant an 29 injunction, on terms the Court considers appropriate: 30 (c) restraining the person from doing the act; and 31 (d) if, in the Court's opinion, it is desirable to do so--requiring 32 the person to do an act (including prevent, repair or mitigate 33 harm to the environment in the Marine Park). 34 (2) If a person: [Page Break] 2 refuse or fail to do an act; and 3 (b) that refusal or failure constitutes or would constitute: 4 (i) an offence against this Act; or 5 (ii) a contravention of a civil penalty provision; 6 the Federal Court or the Supreme Court of Queensland may, on 7 application by the Minister, the Authority or by a person whose 8 interests have been, are or would be affected by the refusal or 9 failure, grant an injunction, on terms the Court considers 10 appropriate, requiring the person to do the act. 11 (3) Before deciding to grant an injunction under this section, the Court 12 may grant an interim injunction: 13 (a) restraining a person from doing an act; or 14 (b) requiring a person to do an act. 15 (4) The Court may discharge or vary an injunction granted under this 16 section. 17 (5) The Court may grant an injunction under subsection (1) restraining 18 a person from doing an act: 19 (a) whether or not it appears to the Court that the person intends 20 to do again, or to continue to do, an act of that kind; and 21 (b) whether or not the person has previously done an act of that 22 kind; and 23 (c) whether or not there is an imminent danger of substantial 24 harm to a person or to the environment in the Marine Park if 25 the person does an act of that kind. 26 (6) The Court may grant an injunction under subsection (2) requiring a 27 person to do an act: 28 (a) whether or not it appears to the Court that the person intends 29 to refuse or fail, or to continue to refuse or fail, to do the act; 30 and 31 (b) whether or not the person has previously refused or failed to 32 do the act; and 33 (c) whether or not there is an imminent danger of substantial 34 harm to a person or to the environment in the Marine Park if 35 the person refuses or fails to do the act. [Page Break] 2 61AHA Remediation orders 3 (1) If a person has engaged or is engaging in conduct that constitutes: 4 (a) an offence against this Act; or 5 (b) a contravention of a civil penalty provision; 6 the Federal Court may, on application by the Minister, make an 7 order (a remediation order) requiring the person to take action to 8 prevent, repair or mitigate harm to the environment in the Marine 9 Park that has been, might be or will be caused by the conduct. 10 (2) In considering whether to grant a remediation order, the Federal 11 Court must have regard to the following: 12 (a) the nature and extent of the conduct referred to in 13 subsection (1); 14 (b) the nature and extent of the harm to the environment in the 15 Marine Park that has been, might be or will be caused by the 16 conduct; 17 (c) the circumstances in which the person engaged in the 18 conduct; 19 (d) if the harm was, might be or will be caused in a zone--any 20 objectives specified for the zone in its zoning plan; 21 (e) whether the person has previously been found by a court in 22 proceedings under this Act or under any other law of the 23 Commonwealth or a State or Territory to have engaged in 24 any similar conduct; 25 (f) the cost to the person of taking the action; 26 (g) any benefit (whether or not financial) that the person has 27 obtained or might obtain as a result of engaging in the 28 conduct. 29 (3) A remediation order may specify the action that a person is to take 30 in general terms (for example, requiring the person to take 31 whatever action is necessary to prevent, repair or mitigate the 32 harm) or in particular terms. 33 (4) If the Federal Court makes a remediation order, it may also make 34 an order requiring the person to provide security for the due taking 35 of the required action. [Page Break] 2 The Federal Court may vary or discharge a remediation order on 3 application by the Minister. 4 Subdivision I--Civil penalty provisions 5 61AIA Declarations of contravention 6 (1) The Authority may, on behalf of the Commonwealth, apply for a 7 declaration of contravention under this section in relation to a 8 contravention of a civil penalty provision by a person. 9 (2) If the Federal Court is satisfied that the person has contravened the 10 civil penalty provision, the Court must make a declaration of 11 contravention. 12 Note: Once a declaration is made, the Authority can seek a pecuniary 13 penalty order (see section 61AIC). 14 (3) The declaration of contravention must specify the following: 15 (a) that the Federal Court made the declaration; 16 (b) the civil penalty provision that was contravened; 17 (c) if the contravention was an aggravated contravention--the 18 applicable aggravating circumstance under section 38GB; 19 (d) the person who contravened the civil penalty provision; 20 (e) the conduct that constituted the contravention. 21 (4) Proceedings for a declaration of contravention may be started no 22 later than 6 years after the contravention. 23 61AIB Declaration of contravention is conclusive evidence 24 A declaration of contravention is conclusive evidence of the 25 matters referred to in subsection 61AIA(3). 26 61AIC Pecuniary penalty for contravening civil penalty provision 27 Application for order 28 (1) No later than 6 years after a contravention of a civil penalty 29 provision by a person, the Authority may, on behalf of the 30 Commonwealth, apply to the Federal Court for an order that the [Page Break] 2 contravention. 3 Court may order person to pay pecuniary penalty 4 (2) If the Federal Court has made a declaration of contravention 5 against the person under section 61AIA, the Court may order the 6 person to pay to the Commonwealth for the contravention the 7 pecuniary penalty that the Court determines is appropriate (but not 8 more than the relevant amount specified for the provision). 9 Determining amount of pecuniary penalty 10 (3) In determining the pecuniary penalty, the Federal Court must have 11 regard to all relevant matters, including: 12 (a) the nature and extent of the contravention; and 13 (b) the nature and extent of any loss or damage suffered as a 14 result of the contravention; and 15 (c) the nature and extent of any harm to the environment that has 16 been, might be or will be caused by the contravention; and 17 (d) if any harm caused by the contravention was, might be or 18 will be caused in a zone--any objectives specified for the 19 zone in its zoning plan; and 20 (e) the circumstances in which the contravention took place; and 21 (f) whether the person has previously been found by a court in 22 proceedings under this Act or under any other law of the 23 Commonwealth or a State or Territory to have engaged in 24 any similar conduct; and 25 (g) any benefit (whether or not financial) obtained by the person 26 directly or indirectly as a result of the contravention. 27 Conduct contravening more than one civil penalty provision 28 (4) If conduct constitutes a contravention of 2 or more civil penalty 29 provisions, proceedings may be instituted under this Act against a 30 person in relation to the contravention of any one or more of those 31 provisions. However, the person is not liable to more than one 32 pecuniary penalty under this section in respect of the same conduct. [Page Break] 2 For the purposes of this Act, a subsection of this Act (or a section 3 of this Act that is not divided into subsections) is a civil penalty 4 provision if: 5 (a) the words "civil penalty" and one or more amounts in penalty 6 units are set out at the foot of the subsection (or section) 7 (whether or not any other amount is set out); or 8 (b) another provision of this Act specifies that the subsection (or 9 section) is a civil penalty provision. 10 61AIE Contravening a civil penalty provision is not an offence 11 A contravention of a civil penalty provision is not an offence. 12 61AIF Persons involved in contravening civil penalty provision 13 (1) A person must not: 14 (a) aid, abet, counsel or procure a contravention of a civil 15 penalty provision; or 16 (b) induce (by threats, promises or otherwise) a contravention of 17 a civil penalty provision; or 18 (c) be in any way directly or indirectly knowingly concerned in, 19 or party to, a contravention of a civil penalty provision; or 20 (d) conspire to contravene a civil penalty provision. 21 (2) A person who contravenes subsection (1) in relation to a civil 22 penalty provision is, for the purposes of: 23 (a) this Act; and 24 (b) Part 17 of the Environment Protection and Biodiversity 25 Conservation Act 1999, so far as that Part applies in relation 26 to contraventions of civil penalty provisions of this Act; 27 taken to have contravened the civil penalty provision. 28 61AIG Recovery of a pecuniary penalty 29 If the Federal Court orders a person to pay a pecuniary penalty: 30 (a) the penalty is payable to the Commonwealth; and 31 (b) the Commonwealth may enforce the order as if it were a 32 judgment of the Court. [Page Break] 2 contravention and civil penalty orders 3 The Federal Court must apply the rules of evidence and procedure 4 for civil matters when hearing proceedings for: 5 (a) a declaration of contravention; or 6 (b) a pecuniary penalty order. 7 61AII Civil proceedings after criminal proceedings 8 The Federal Court must not make a declaration of contravention or 9 a pecuniary penalty order against a person for a contravention of a 10 civil penalty provision if the person has been convicted of an 11 offence constituted by conduct that is substantially the same as the 12 conduct constituting the contravention. 13 61AIJ Criminal proceedings during civil proceedings 14 (1) Proceedings for a declaration of contravention or a pecuniary 15 penalty order against a person for a contravention of a civil penalty 16 provision are stayed if: 17 (a) criminal proceedings are started or have already been started 18 against the person for an offence; and 19 (b) the offence is constituted by conduct that is substantially the 20 same as the conduct alleged to constitute the contravention. 21 (2) The proceedings for the declaration or order may be resumed if the 22 person is not convicted of the offence. Otherwise, the proceedings 23 for the order are dismissed. 24 61AIK Criminal proceedings after civil proceedings 25 Criminal proceedings may be started against a person for conduct 26 that is substantially the same as conduct constituting a 27 contravention of a civil penalty provision regardless of whether: 28 (a) a declaration of contravention has been made against the 29 person; or 30 (b) a pecuniary penalty order has been made against the person. [Page Break] 2 criminal proceedings 3 Evidence of information given or evidence of production of 4 documents by an individual is not admissible in criminal 5 proceedings against the individual if: 6 (a) the individual previously gave the evidence or produced the 7 documents in proceedings for a pecuniary penalty order 8 against the individual for a contravention of a civil penalty 9 provision (whether or not the order was made); and 10 (b) the conduct alleged to constitute the offence is substantially 11 the same as the conduct that was claimed to constitute the 12 contravention. 13 However, this does not apply to a criminal proceeding in respect of 14 the falsity of the evidence given by the individual in the 15 proceedings for the pecuniary penalty order. 16 Subdivision J--Court order to pay amount equivalent to 17 avoided charge 18 61AJA Order to pay amount equivalent to avoided charge 19 (1) This section applies if: 20 (a) a court convicts a person of an offence against this Act or 21 orders a person to pay a pecuniary penalty for a 22 contravention of a civil penalty provision; and 23 (b) the person would not have committed the offence or 24 contravention if the conduct constituting the offence or 25 contravention had been authorised by a permission granted 26 under the regulations for the purposes of a zoning plan or a 27 provision of this Act; and 28 (c) the permission would have been a chargeable permission. 29 (2) In addition to any fine or sentence of imprisonment imposed on the 30 person for the offence or contravention, the court may, on 31 application by the Authority, order the person to pay to the 32 Authority, on behalf of the Commonwealth, a penalty of an amount 33 determined by the court under subsection (3). 34 (3) In determining the penalty, the court must have regard to the 35 amount of charge that would have been payable if the person had [Page Break] 2 paragraph (1)(c) at all times when the person engaged in conduct 3 constituting the offence or contravention (whether or not the person 4 was convicted, or ordered to pay a pecuniary penalty, in respect of 5 each particular instance of the conduct). 6 (4) To avoid doubt, the total of the penalties that may be payable by a 7 person in relation to an offence or contravention of a civil penalty 8 provision may, because of this section, exceed the maximum 9 penalty set out at the foot of the offence or civil penalty provision. 10 Subdivision K--Publicity orders 11 61AKA Publicity orders 12 A court that: 13 (a) convicts a person of an offence against this Act; or 14 (b) makes a declaration of contravention against a person, or 15 imposes a pecuniary penalty on a person, for a contravention 16 of a civil penalty provision; 17 may make an order that the person take action specified in the 18 order to publicise either or both of the following: 19 (c) the offence or contravention; 20 (d) any penalty imposed. 21 Division 2--Other enforcement-related matters 22 Subdivision A--Infringement notices 23 61ALA Infringement notices 24 (1) The regulations may make provision enabling a person who is 25 alleged to have committed: 26 (a) an offence against: 27 (i) subsection 38BA(3); or 28 (ii) subsection 38EA(4); or 29 (b) an offence against the regulations; 30 to pay a specified penalty to the Commonwealth as an alternative 31 to prosecution. [Page Break] 2 maximum fine that a court could impose on the person for that 3 offence. 4 Subdivision B--Evidentiary matters 5 61AMA Content of evidentiary certificate 6 If the Chairperson has reason to believe that any of the following is 7 the case, the Chairperson may issue a written certificate to that 8 effect: 9 (a) that a specified document is a copy of a permission, authority 10 or notice under this Act; 11 (b) that on a specified day, or during a specified period, a 12 specified person was or was not authorised to engage in 13 conduct by a specified permission granted under the 14 regulations or specified authority given in accordance with 15 such a permission; 16 (c) that on a specified day, a specified person was given a 17 specified notice, order or direction under this Act; 18 (d) that a specified fee or charge under this Act is payable by a 19 specified person; 20 (e) that a specified fee or charge under this Act payable by a 21 specified person has not been paid by a specified day; 22 (f) that a specified location at which, or specified area of waters 23 in which, a person, animal, plant, aircraft, vessel or platform 24 is alleged to have been at a specified time is in the Great 25 Barrier Reef Region, the Marine Park or in a specified zone; 26 (g) that specified information obtained from the vessel 27 monitoring system of a vessel shows that the vessel was, at a 28 specified time, at a specified location or in a specified area of 29 waters; 30 (h) that specified information obtained from the vessel 31 monitoring system of a vessel shows that the vessel was, at a 32 specified time, travelling at a specified speed. 33 61AMB Evidentiary effect of certificate 34 (1) In any proceedings: 35 (a) in relation to an offence against this Act; or [Page Break] 2 (c) for an injunction under section 61AGA; or 3 (d) to set aside an enforceable direction under section 61ADF; 4 a certificate under section 61AMA is prima facie evidence of the 5 matters in the certificate. 6 (2) A document purporting to be a certificate under section 61AMA 7 must, unless the contrary is proved, be taken to be such a certificate 8 and to have been properly issued. 9 (3) A certificate must not be admitted in evidence under subsection (1) 10 in proceedings in relation to an offence unless the person charged, 11 or a solicitor who has appeared for the person in those proceedings, 12 has, at least 14 days before the certificate is sought to be admitted, 13 been given a copy of the certificate together with reasonable 14 evidence of the intention to produce the certificate as evidence in 15 the proceedings. 16 (4) Subject to subsection (5), if a certificate is admitted in evidence 17 under subsection (1) in proceedings in relation to an offence, the 18 person charged with the offence may require the Chairperson to be 19 called as a witness for the prosecution and cross-examined as if he 20 or she had given evidence of the matters stated in the certificate. 21 (5) Subsection (4) does not entitle the person charged to require the 22 Chairperson to be called as a witness for the prosecution unless the 23 court, by order, allows the person charged to require the 24 Chairperson to be so called. 25 (6) The Authority may certify that a document is a copy of a certificate 26 under section 61AMA. 27 (7) This section applies to the certified copy as if it were the original. 28 61AMC Varying or revoking certificate 29 (1) The Chairperson may vary a certificate under section 61AMA as 30 long as the variation is of a minor nature. 31 (2) If a certificate is varied, the Chairperson must give the person 32 concerned a written notice setting out the terms of the variation. 33 (3) The Chairperson may revoke a certificate under section 61AMA. [Page Break] 2 concerned a written notice stating that the certificate has been 3 revoked. 4 61AMD Offences and contraventions in relation to fishing 5 (1) This section applies in relation to an offence against this Act, or a 6 contravention of a civil penalty provision, constituted by conduct 7 that is fishing, if the fishing involved a primary commercial fishing 8 vessel or a dory. 9 (2) In determining, in the case of an offence or contravention involving 10 a primary commercial fishing vessel: 11 (a) the penalty, or the amount of a penalty, to be imposed on a 12 person for the offence or contravention; or 13 (b) whether the forfeiture of a thing used in the offence should be 14 ordered under Division 10 of Part 17 of the Environment 15 Protection and Biodiversity Conservation Act 1999; 16 all fish on board the primary commercial fishing vessel at the time 17 the vessel was apprehended in relation to the offence or 18 contravention are taken to be fish in relation to which the offence 19 or contravention was committed. 20 (3) In determining, in the case of an offence or contravention involving 21 a dory: 22 (a) the penalty, or the amount of a penalty, to be imposed on a 23 person for the offence or contravention; or 24 (b) whether the forfeiture of a thing used in the offence should be 25 ordered; 26 all fish: 27 (c) on board the dory at the time the dory was apprehended in 28 relation to the offence or contravention; and 29 (d) on board the primary commercial fishing vessel, in 30 association with which the dory is used, at the time the vessel 31 was apprehended in relation to the offence or contravention; 32 are taken to be fish in relation to which the offence or 33 contravention was committed. [Page Break] 2 61ANA Conduct of directors, employees and agents 3 Bodies corporate--conduct 4 (1) Any conduct engaged in on behalf of a body corporate: 5 (a) by a director, employee or agent of the body corporate within 6 the scope of his or her actual or apparent authority; or 7 (b) by any other person at the direction or with the consent or 8 agreement (whether express or implied) of a director, 9 employee or agent of the body corporate, where the giving of 10 the direction, consent or agreement is within the scope of the 11 actual or apparent authority of the director, employee or 12 agent; 13 is taken, for the purposes of this Act, to have been engaged in also 14 by the body corporate unless the body corporate establishes that the 15 body corporate took reasonable precautions and exercised due 16 diligence to avoid the conduct. 17 Bodies corporate--state of mind 18 (2) If, for the purposes of this Act, it is necessary to establish the state 19 of mind of a body corporate in relation to particular conduct, it is 20 sufficient to show: 21 (a) that the conduct was engaged in by a director, employee, 22 agent or other person as mentioned in paragraph (1)(a) or (b); 23 and 24 (b) that the director, employee, agent or other person had that 25 state of mind. 26 Persons other than bodies corporate--conduct 27 (3) Any conduct engaged in on behalf of a person other than a body 28 corporate: 29 (a) by an employee or agent of the person within the scope of his 30 or her actual or apparent authority; or 31 (b) by any other person at the direction or with the consent or 32 agreement (whether express or implied) of an employee or 33 agent of the first-mentioned person, where the giving of the [Page Break] 2 actual or apparent authority of the employee or agent; 3 is taken, for the purposes of this Act, to have been engaged in also 4 by the first-mentioned person unless the first-mentioned person 5 establishes that the first-mentioned person took reasonable 6 precautions and exercised due diligence to avoid the conduct. 7 Persons other than bodies corporate--state of mind 8 (4) If, for the purposes of this Act, it is necessary to establish the state 9 of mind of a person other than a body corporate in relation to 10 particular conduct, it is sufficient to show: 11 (a) that the conduct was engaged in by an employee, agent or 12 other person as mentioned in paragraph (3)(a) or (b); and 13 (b) that the employee, agent or other person had that state of 14 mind. 15 Reasonable precautions 16 (5) For the purposes of subsection (1) or (3), in determining whether a 17 body corporate or other person took reasonable precautions and 18 exercised due diligence to avoid particular conduct, a court must 19 have regard to what steps (if any) the body or person took directed 20 towards ensuring the following (to the extent that the steps are 21 relevant to the conduct): 22 (a) that the body or person regularly assesses, or arranges for 23 regular assessments of, the body's or person's compliance 24 with this Act; 25 (b) that the body or person implements any appropriate 26 recommendations arising from such an assessment; 27 (c) that the directors of the body, or the employees or agents of 28 the body or person, have a reasonable knowledge and 29 understanding of the requirements to comply with this Act, in 30 so far as those requirements affect the directors, employees 31 or agents concerned; 32 (d) that the body or person regularly assesses, or arranges for 33 regular assessments of, the effects of the body's or person's 34 activities on the environment in the Marine Park; 35 (e) that the body or person has an appropriate system established 36 for managing those effects. [Page Break] 2 (6) A reference in subsection (2) or (4) to the state of mind of a person 3 includes a reference to: 4 (a) the knowledge, intention, opinion, belief or purpose of the 5 person; and 6 (b) the person's reasons for the intention, opinion, belief or 7 purpose. 8 Meaning of director 9 (7) A reference in this section to a director of a body corporate 10 includes a reference to a constituent member of a body corporate 11 incorporated for a public purpose by a law of the Commonwealth, 12 of a State or of a Territory. 13 Disapplying Part 2.5 of Criminal Code 14 (8) Part 2.5 of the Criminal Code does not apply to an offence against 15 this Act. 16 Note: Part 2.5 of the Criminal Code deals with corporate criminal 17 responsibility. 18 Subdivision D--Liability of executive officers for bodies 19 corporate 20 61AOA Criminal liability of executive officers of bodies corporate 21 (1) If: 22 (a) a body corporate commits an offence against Part VAA 23 (other than Division 6); and 24 (b) an executive officer of the body was reckless as to whether 25 the offence would be committed; and 26 (c) the officer was in a position to influence the conduct of the 27 body in relation to the offence; and 28 (d) the officer failed to take all reasonable steps to prevent the 29 offence being committed; 30 the officer commits an offence. 31 (2) An offence against subsection (1) is punishable on conviction by: 32 (a) imprisonment for a term not exceeding the term specified for 33 the offence committed by the body corporate; or [Page Break] 2 committed by the body corporate--a pecuniary penalty not 3 exceeding the pecuniary penalty specified for the offence 4 committed by the body corporate. 5 61AOB Civil penalties for executive officers of bodies corporate 6 (1) If: 7 (a) a body corporate contravenes a civil penalty provision; and 8 (b) an executive officer of the body knew that, or was reckless or 9 negligent as to whether, the contravention would occur; and 10 (c) the officer was in a position to influence the conduct of the 11 body in relation to the contravention; and 12 (d) the officer failed to take all reasonable steps to prevent the 13 contravention; 14 the officer contravenes this subsection. 15 (2) Subsection (1) is a civil penalty provision. Under section 61AIC, 16 the Federal Court may order a person contravening subsection (1) 17 to pay a pecuniary penalty not more than the pecuniary penalty the 18 Court could order an individual to pay for contravening the civil 19 penalty provision contravened by the body corporate. 20 61AOC Reasonable steps to prevent offence or contravention 21 (1) For the purposes of sections 61AOA and 61AOB, in determining 22 whether an executive officer of a body corporate failed to take all 23 reasonable steps to prevent the offence or contravention, a court 24 must have regard to: 25 (a) what action (if any) the officer took directed towards 26 ensuring the following (to the extent that the action is 27 relevant to the offence or contravention): 28 (i) that the body regularly assesses, or arranges for regular 29 assessments of, the body's compliance with this Act; 30 (ii) that the body implements any appropriate 31 recommendations arising from such an assessment; 32 (iii) that the body's employees, agents and contractors have 33 a reasonable knowledge and understanding of the 34 requirements to comply with this Act, in so far as those 35 requirements affect the employees, agents or contractors 36 concerned; [Page Break] 2 assessments of, the effects of the body's activities on the 3 environment in the Marine Park; 4 (v) that the body has an appropriate system established for 5 managing those effects; and 6 (b) what action (if any) the officer took when he or she became 7 aware that the body was committing an offence against, or 8 contravening, this Act. 9 (2) This section does not, by implication, limit the generality of 10 sections 61AOA and 61AOB. 11 Subdivision E--Miscellaneous 12 61APA Powers of Federal Court 13 The powers conferred on the Federal Court by this Part are in 14 addition to (and do not limit) any other powers of the Court. 15 126 Subsection 61A(1) 16 After "against this Act", insert "or a contravention of a civil penalty 17 provision". 18 127 Subsection 61A(2) 19 Omit "section 38H", substitute "section 38DC". 20 128 Subsection 61A(2) 21 After "an order", insert "or direction". 22 129 Subsections 61A(3) and (4) 23 Repeal the subsections. 24 130 After subsection 61B(1) 25 Insert: 26 (1A) Subject to this section, if: 27 (a) a declaration of contravention has been made against a 28 person in relation to a contravention of a civil penalty 29 provision; and [Page Break] 2 other liabilities in relation to: 3 (i) if the contravention is a contravention of subsection 4 61AIF(1)--rectifying the act or omission constituting 5 the contravention of the civil penalty provision to which 6 that contravention relates; or 7 (ii) in any other case--rectifying the act or omission 8 constituting the contravention; 9 the person against whom the declaration is made is liable to pay to 10 the Commonwealth or to the Authority, as the case requires, an 11 amount equal to the total amount of those expenses and liabilities 12 of the Commonwealth or the Authority. 13 131 Subsection 61B(2) 14 After "subsection (1)", insert "or (1A)". 15 132 After subsection 61B(5) 16 Insert: 17 (5A) If the Federal Court makes a declaration of contravention against a 18 person for a contravention of a civil penalty provision, the Court 19 may (whether or not the Court makes a pecuniary penalty order 20 against the person in respect of the contravention) order the person 21 to pay an amount that the person is liable to pay under this section. 22 133 Subsection 61B(6) 23 After "subsection (5)" (wherever occurring), insert "or (5A)". 24 134 Paragraph 61B(7)(b) 25 Omit "38K or 38L", substitute "38FA or 38FD". 26 135 Subsection 61B(9) 27 After "offence against this Act", insert "or a contravention of a civil 28 penalty provision". 29 136 Paragraph 61B(9)(a) 30 Omit "section 38H", substitute "section 38DC". 31 137 Paragraph 61B(9)(a) 32 After "an order", insert "or direction". [Page Break] 2 Omit "or 61B(5)", substitute ", section 61AJA or subsection 61B(5) or 3 (5A)". 4 139 Section 62 5 Repeal the section. 6 140 Section 64 7 Repeal the section, substitute: 8 Part IX--Miscellaneous 9 10 64 Reconsideration of decisions 11 (1) A person who is affected by a reviewable decision made by the 12 Minister may request the Minister, in writing, to reconsider the 13 decision. 14 (2) A person who is affected by a reviewable decision made by the 15 Authority may request the Authority, in writing, to reconsider the 16 decision. 17 (3) For the purposes of this Act, each of the following decisions is a 18 reviewable decision: 19 (a) a decision by the Authority to make an emergency direction 20 under subsection 61ACA(2) or to vary such a direction; 21 (b) a decision by the Minister to make a direction under 22 subsection 61AEA(2) (directions limiting access to the 23 Marine Park), or to vary such a direction; 24 (c) a decision by the Minister prescribed by the regulations for 25 the purposes of this paragraph; 26 (d) a decision by the Authority prescribed by the regulations for 27 the purposes of this paragraph. 28 (4) After receiving a request, the Minister or Authority must: 29 (a) reconsider the decision; and 30 (b) affirm or vary it, or set it aside and substitute a new decision. 31 (5) The regulations may prescribe any or all of the following: 32 (a) time limits for making requests under this section; [Page Break] 2 (c) time limits for reconsidering decisions under this section; 3 (d) when a decision on reconsideration takes effect. 4 (6) In this section: 5 decision has the same meaning as in the Administrative Appeals 6 Tribunal Act 1975. 7 64A Review of decisions by AAT 8 If a reviewable decision made by the Minister or the Authority has 9 been reconsidered under subsection 64(4), application may be 10 made to the AAT for review of the decision as affirmed, varied or 11 substituted on reconsideration. 12 Note: Sections 39M and 59G provide for review of certain other decisions 13 by the AAT. 14 141 After section 65 15 Insert: 16 65A Appropriation of Consolidated Revenue Fund 17 (1) The Consolidated Revenue Fund is appropriated for the following 18 purposes: 19 (a) making refunds of amounts in accordance with regulations 20 made for the purposes of paragraph 39K(1)(c); 21 (b) making payments of interest, or other amounts, derived from 22 the custody or banking of collected amounts in accordance 23 with regulations made for the purposes of paragraph 24 39PA(1)(d). 25 (2) If an amount (the Commonwealth amount) is received by the 26 Commonwealth under section 39DA, subsection 39FA(2), 27 section 39FD or 39H or subsection 61AJA(2), an amount equal to 28 the Commonwealth amount is appropriated out of the Consolidated 29 Revenue Fund for the purpose of the performance of the functions 30 of the Authority. 31 (3) If the Commonwealth refunds the whole or part of a 32 Commonwealth amount, the amount appropriated under 33 subsection (2) is reduced by the amount of the refund. [Page Break] 2 Act 1997 is a standing appropriation for repayments of amounts 3 received by the Commonwealth. 4 142 Subsection 66(2) 5 After "subsection (1), regulations", insert "to do any or all of the 6 following". 7 143 Paragraph 66(2)(n) 8 Repeal the paragraph. 9 144 Paragraph 66(2)(ua) 10 Omit "issued; and", substitute "issued;". 11 145 After paragraph 66(2)(ua) 12 Insert: 13 (ub) providing for the use of a vessel monitoring system on 14 vessels in the Marine Park and for the use and disclosure of 15 information provided by the vessel monitoring system; 16 (uc) regulating fishing (of any kind, including commercial 17 fishing) in the Marine Park; 18 (ud) regulating camping and other activities on islands in the 19 Marine Park; 20 (ue) providing for the protection and conservation of protected 21 species in the Marine Park; 22 146 After subsection 66(2) 23 Insert: 24 (2A) Without limiting subsection (1), the regulations may prescribe 25 measures for the management of the discharge of sewage from 26 vessels in the Marine Park. [Page Break] 2 Part 3--Transitional, application and saving 3 provisions 4 147 Section 42 of the Great Barrier Reef Marine Park Act 1975 5 (1) This item applies if, immediately before the commencement of this 6 Schedule, an arrangement under section 42 of the Great Barrier Reef 7 Marine Park Act 1975 was in force in respect of a person. 8 (2) Despite the repeal of section 42 by this Schedule, the arrangement in 9 respect of the person continues in force after the commencement of this 10 Schedule as if the arrangement had been made under section 48A as 11 inserted by this Act. 12 (3) Subitem (2) applies even if the person is not a person in respect of 13 whom an arrangement under section 48A could be made. 14 148 Section 46D of the Great Barrier Reef Marine Park Act 15 1975 16 Despite the repeal of section 46D of the Great Barrier Reef Marine 17 Park Act 1975 by this Schedule, that section continues to apply after the 18 commencement of this Schedule in relation to a thing seized before the 19 commencement of this Schedule under section 46A or 46B of that Act. 20 149 Section 47 of the Great Barrier Reef Marine Park Act 1975 21 (1) Despite the repeal of section 47 of the Great Barrier Reef Marine Park 22 Act 1975 by this Schedule, subsections 47(3), (4) and (9) continue to 23 apply after the commencement of this Schedule in relation to a vessel, 24 aircraft or article seized before the commencement of this Schedule 25 under subsection 47(2). 26 (2) Despite the repeal of section 47 of the Great Barrier Reef Marine Park 27 Act 1975 by this Schedule, subsections 47(7), (8) and (9) continue to 28 apply after the commencement of this Schedule in relation to an animal 29 or plant seized before the commencement of this Schedule under 30 subsection 47(6). 31 150 Section 47B of the Great Barrier Reef Marine Park Act 32 1975 [Page Break] 2 Schedule, an inspector within the meaning of the Great Barrier Reef 3 Marine Park Act 1975 was authorised to seize a vessel or aircraft, or an 4 article, animal or plant, under that Act. 5 (2) After the commencement of this Schedule, the inspector may give a 6 direction under section 447 of the Environment Protection and 7 Biodiversity Conservation Act 1999 in relation to the vessel, aircraft, 8 article, animal or plant, as if the inspector were authorised to seize the 9 vessel, aircraft, article, animal or plant under a warrant issued under 10 Division 4 of Part 17 or under section 445 of that Act. 11 151 Section 48AB of the Great Barrier Reef Marine Park Act 12 1975 13 Despite the repeal of section 48AB of the Great Barrier Reef Marine 14 Park Act 1975 by this Schedule, that section continues to apply after the 15 commencement of this Schedule in relation to a weapon or other thing 16 seized before the commencement of this Schedule under that section. 17 152 Directions limiting access to the Marine Park 18 For the purposes of section 61AEA of the Great Barrier Reef Marine 19 Park Act 1975, as inserted by this Schedule, a reference to a strike 20 against a person includes a reference to a strike against a person that 21 occurred before the commencement of this Schedule. 22 153 Delegations under section 61 of the Great Barrier Reef 23 Marine Park Act 1975 24 Despite the repeal of section 61 of the Great Barrier Reef Marine Park 25 Act 1975 by this Schedule: 26 (a) a delegation to a person that was, immediately before the 27 commencement of this Schedule, in force under that section 28 continues in force after that commencement as if it had been 29 made under section 47 of the Great Barrier Reef Marine 30 Park Act 1975 as inserted by this Schedule; and 31 (b) a direction to a delegate that was, immediately before the 32 commencement of this Schedule, in force under that section 33 continues in force after that commencement as if it had been 34 made under section 47 of the Great Barrier Reef Marine 35 Park Act 1975 as inserted by this Schedule. [Page Break] 2 Reef Marine Park Act 1975 3 Despite the repeal of subsections 61A(3) and (4) of the Great Barrier 4 Reef Marine Park Act 1975 by this Schedule: 5 (a) a delegation to the Authority that was, immediately before 6 the commencement of this Schedule, in force under 7 subsection 61A(3) continues in force after that 8 commencement as if it had been made under subsection 46(1) 9 of the Great Barrier Reef Marine Park Act 1975 as inserted 10 by this Schedule; and 11 (b) a direction to the Authority that was, immediately before the 12 commencement of this Schedule, in force under subsection 13 61A(4) continues in force after that commencement as if it 14 had been made under subsection 46(2) of the Great Barrier 15 Reef Marine Park Act 1975 as inserted by this Schedule. 16 155 Averments under section 62 of the Great Barrier Reef 17 Marine Park Act 1975 18 Despite the repeal of section 62 of the Great Barrier Reef Marine Park 19 Act 1975 by this Schedule, that section continues to apply after the 20 commencement of this Schedule in relation to an averment made before 21 the commencement of this Schedule. 22 156 Section 64 of the Great Barrier Reef Marine Park Act 1975 23 Despite the repeal of section 64 of the Great Barrier Reef Marine Park 24 Act 1975 by this Schedule, that section continues to apply after the 25 commencement of this Schedule in relation to conduct engaged in, or 26 taken by subsection 64(2) of that Act to have been engaged in, before 27 the commencement of this Schedule. 28 157 Regulations in relation to infringement notices 29 The repeal of paragraph 66(2)(n) of the Great Barrier Reef Marine Park 30 Act 1975 by this Schedule does not affect the validity of any regulations 31 in force immediately before the commencement of this Schedule in 32 relation to the matters referred to in that paragraph. [Page Break] 2 Schedule 6--Offences and civil penalties 3 Part 1--Amendments 4 Great Barrier Reef Marine Park Act 1975 5 1 Subsection 3(1) 6 Insert: 7 aggravated contravention has the meaning given by section 38GB. 8 2 Subsection 3(1) 9 Insert: 10 aggravated offence has the meaning given by section 38GA. 11 3 Subsection 3(1) 12 Insert: 13 Australian resident means: 14 (a) a person who holds a permanent visa (as defined in the 15 Migration Act 1958) that is in effect; or 16 (b) a New Zealand citizen who is usually resident in Australia or 17 a Territory and who holds a special category visa (as defined 18 in the Migration Act 1958) that is in effect; or 19 (c) any other person who is usually resident in Australia or a 20 Territory and whose continued presence in Australia or a 21 Territory is not subject to a limitation as to time imposed by 22 law. 23 4 Subsection 3(1) 24 Insert: 25 conduct has the same meaning as in the Criminal Code. 26 5 Subsection 3(1) 27 Insert: [Page Break] 2 the release is caused, and includes any escape, disposal, depositing, 3 spilling, leaking, pumping, emitting or emptying of the waste. 4 6 Subsection 3(1) 5 Insert: 6 dory means: 7 (a) a vessel in relation to which a licence or other permission 8 (however described and whether or not in force) has been 9 granted under a law of the Commonwealth, a State or a 10 Territory authorising the vessel to be used in association with 11 a primary commercial fishing vessel; or 12 (b) a vessel that is used in association with a primary commercial 13 fishing vessel. 14 Note: A dory might also be known as a tender commercial fishing vessel. 15 7 Subsection 3(1) 16 Insert: 17 engage in conduct has the same meaning as in the Criminal Code. 18 8 Subsection 3(1) 19 Insert: 20 fish includes all species of bony fish, sharks, rays, crustaceans, 21 molluscs and other marine organisms, but does not include marine 22 mammals or marine reptiles. 23 9 Subsection 3(1) 24 Insert: 25 fishing means any of the following: 26 (a) searching for, or taking, fish; 27 (b) attempting to search for, or take, fish; 28 (c) engaging in any other activities that can reasonably be 29 expected to result in the locating of, or taking of, fish; 30 (d) placing, searching for or recovering fish aggregating devices 31 or associated electronic equipment such as radio beacons; 32 (e) any operations at sea directly in support of, or in preparation 33 for, any activity described in this definition; [Page Break] 2 except flights in emergencies involving the health or safety of 3 crew members or the safety of a launch, vessel or floating 4 craft of any description. 5 10 Subsection 3(1) 6 Insert: 7 minerals means minerals in any form, whether solid, liquid or 8 gaseous and whether organic or inorganic. 9 11 Subsection 3(1) 10 Insert: 11 mining operations: 12 (a) means operations or activities connected with, or incidental 13 to, the mining or recovery of minerals; and 14 (b) includes prospecting for or exploring for minerals. 15 12 Subsection 3(1) (definition of operations for the recovery 16 of minerals) 17 Repeal the definition. 18 13 Subsection 3(1) (definition of owner) 19 After "owner", insert ", in relation to a vessel,". 20 14 Subsection 3(1) 21 Insert: 22 primary commercial fishing vessel means: 23 (a) a vessel in relation to which a licence or other permission 24 (however described and whether or not in force) has been 25 granted under a law of the Commonwealth, a State or a 26 Territory authorising the vessel to be used to take fish for 27 commercial purposes; or 28 (b) a vessel that is used to take fish for commercial purposes. 29 15 Subsection 3(1) 30 Insert: 31 prohibited: conduct in a zone is prohibited if the conduct is neither: [Page Break] 2 the zone may be used or entered without permission; nor 3 (b) for a purpose that, under the zoning plan for the zone, 4 requires permission. 5 16 Subsection 3(1) 6 Insert: 7 protected species means any of the following: 8 (a) a cetacean; 9 (b) a listed marine species, a listed migratory species, a listed 10 threatened ecological community, or a listed threatened 11 species; 12 (c) a species of marine mammal, bird or reptile that is prescribed 13 as endangered wildlife, vulnerable wildlife or rare wildlife 14 under the Nature Conservation Act 1992 of Queensland; 15 (d) a species declared by the regulations to be a protected species 16 for the purposes of this definition; 17 (e) a species declared by the regulations to be a strictly protected 18 species for the purposes of this definition. 19 17 Subsection 3(1) 20 Insert: 21 reef includes bommie fields, reef slopes, moats and ramparts. 22 18 Subsection 3(1) 23 Insert: 24 take, in relation to an animal or plant, includes remove, gather, 25 catch, capture, kill, destroy, dredge for, raise, carry away, bring 26 ashore, interfere with and obtain. 27 19 Subsection 3(1) 28 Insert: 29 territorial sea has the same meaning as in the Seas and Submerged 30 Lands Act 1973. 31 20 Subsection 3(1) 32 Insert: [Page Break] 2 (a) oil within the meaning of Part II of the Protection of the Sea 3 (Prevention of Pollution from Ships) Act 1983; 4 (b) noxious liquid substances within the meaning of Part III of 5 that Act; 6 (c) packaged harmful substances within the meaning of Part IIIA 7 of that Act; 8 (d) sewage within the meaning of Part IIIB of that Act; 9 (e) garbage within the meaning of Part IIIC of that Act; 10 (f) mixtures where the oil content is greater than 15 parts in 11 1,000,000 parts; 12 (g) any other matter that is declared by the regulations to be 13 waste for the purposes of this definition. 14 21 Subsection 3(9) 15 Omit "either". 16 22 After paragraph 3(9)(a) 17 Insert: 18 (aa) under a law of a State or Territory; or 19 23 Subsection 3A(10) 20 Omit "38B(2)", substitute "38BA(5) and regulations made for the 21 purposes of that subsection". 22 24 Sections 38A to 39 23 Repeal the sections, substitute: 24 Part VAA--Offences and penalties in relation to 25 Great Barrier Reef Marine Park and 26 Region 27 Division 1--Conduct in Great Barrier Reef Region 28 38AA Mining or drilling in Great Barrier Reef Region: offence 29 (1) A person commits an offence if: 30 (a) the person engages in conduct; and [Page Break] 2 (c) the conduct is engaged in in the Great Barrier Reef Region; 3 and 4 (d) the person is not authorised to engage in the conduct by: 5 (i) a permission granted under the regulations for the 6 purposes of this section; or 7 (ii) an authority given in accordance with a condition of a 8 permission referred to in subparagraph (i). 9 Penalty: 10 (a) for an aggravated offence--imprisonment for 3 years or 11 2,000 penalty units, or both; or 12 (b) in any other case--1,000 penalty units. 13 Note: See also Division 8. 14 (2) Strict liability applies to paragraphs (1)(c) and (d). 15 Note: For strict liability, see section 6.1 of the Criminal Code. 16 (3) The Authority must not grant a person permission to engage in 17 conduct for the purposes of this section unless the Authority is 18 satisfied that the conduct is for the purpose of research or 19 investigations relevant to the conservation of the Marine Park. 20 (4) Subsection (1) does not apply if: 21 (a) the person is the Authority; and 22 (b) the Authority is engaging in the conduct for the purpose of 23 research or investigations relevant to the conservation of the 24 Marine Park. 25 (5) This section applies despite any other law of the Commonwealth, a 26 State or a Territory. 27 38AB Mining or drilling in Great Barrier Reef Region: civil penalty 28 provision 29 (1) A person must not engage in mining operations in the Great Barrier 30 Reef Region unless the person is authorised to engage in the 31 operations by: 32 (a) a permission granted under the regulations for the purposes 33 of section 38AA; or [Page Break] 2 permission referred to in paragraph (a). 3 Civil penalty: 4 (a) for an aggravated contravention by an individual--5,000 5 penalty units; or 6 (b) for an individual in any other case--2,000 penalty units; or 7 (c) for an aggravated contravention by a body corporate--50,000 8 penalty units; or 9 (d) for a body corporate in any other case--20,000 penalty units. 10 (2) Subsection (1) does not apply if: 11 (a) the person is the Authority; and 12 (b) the Authority is engaging in the operations for the purpose of 13 research or investigations relevant to the conservation of the 14 Marine Park. 15 Division 2--Conduct in Marine Park zones 16 38BA Conduct in zone: offence 17 Conduct prohibited or done without required permission 18 (1) A person commits an offence if: 19 (a) the person engages in conduct; and 20 (b) the conduct is engaged in in a zone; and 21 (c) under the zoning plan for the zone, the conduct: 22 (i) is prohibited; or 23 (ii) requires permission; and 24 Note: Prohibited is defined in subsection 3(1). 25 (d) if the conduct requires permission--the person is not 26 authorised to engage in the conduct by: 27 (i) a permission granted under the regulations for the 28 purposes of the zoning plan; or 29 (ii) an authority given in accordance with a condition of a 30 permission referred to in subparagraph (i). 31 Penalty: 32 (a) for an aggravated offence--imprisonment for 3 years or 33 2,000 penalty units, or both; or [Page Break] 2 Note: See also Division 8. 3 (2) Strict liability applies to paragraphs (1)(b), (c) and (d). 4 Note: For strict liability, see section 6.1 of the Criminal Code. 5 Conduct prohibited or done without required permission: strict 6 liability 7 (3) A person commits an offence if: 8 (a) the person engages in conduct; and 9 (b) the conduct is engaged in in a zone; and 10 (c) under the zoning plan for the zone, the conduct: 11 (i) is prohibited; or 12 (ii) requires permission; and 13 Note: Prohibited is defined in subsection 3(1). 14 (d) if the conduct requires permission--the person is not 15 authorised to engage in the conduct by: 16 (i) a permission granted under the regulations for the 17 purposes of the zoning plan; or 18 (ii) an authority given in accordance with a condition of a 19 permission referred to in subparagraph (i). 20 Penalty: 60 penalty units. 21 (4) Strict liability applies to subsection (3). 22 Note: For strict liability, see section 6.1 of the Criminal Code. 23 Defence--prescribed circumstances 24 (5) Subsections (1) and (3) do not apply if circumstances prescribed by 25 the regulations for the purposes of this subsection exist in relation 26 to the conduct. Any circumstances prescribed must relate to: 27 (a) conduct engaged in during the period of 120 days after the 28 day on which the zoning plan, or an amendment of the 29 zoning plan, commenced; or 30 (b) conduct engaged in after the end of that period if the person 31 had applied for a permission for the purposes of the zoning 32 plan during that period. 33 Note: The defendant bears an evidential burden in relation to the matters in 34 this subsection. See subsection 13.3(3) of the Criminal Code. [Page Break] 2 (1) A person must not engage in conduct in a zone that is prohibited 3 under the zoning plan for the zone. 4 Note: Prohibited is defined in subsection 3(1). 5 Civil penalty: 6 (a) for an aggravated contravention by an individual--5,000 7 penalty units; or 8 (b) for an individual in any other case--2,000 penalty units; or 9 (c) for an aggravated contravention by a body corporate--50,000 10 penalty units; or 11 (d) for a body corporate in any other case--20,000 penalty units. 12 (2) A person must not engage in conduct in a zone if: 13 (a) under the zoning plan for the zone, the conduct requires 14 permission; and 15 (b) the person is not authorised to engage in the conduct by: 16 (i) a permission granted under the regulations for the 17 purposes of the zoning plan; or 18 (ii) an authority given in accordance with a condition of a 19 permission referred to in subparagraph (i). 20 Civil penalty: 21 (a) for an aggravated contravention by an individual--5,000 22 penalty units; or 23 (b) for an individual in any other case--2,000 penalty units; or 24 (c) for an aggravated contravention by a body corporate--50,000 25 penalty units; or 26 (d) for a body corporate in any other case--20,000 penalty units. 27 (3) Subsections (1) and (2) do not apply if circumstances prescribed 28 for the purposes of subsection 38BA(5) exist in relation to the 29 conduct. 30 38BC Conduct in zone without required notice: offence 31 (1) A person commits an offence if: 32 (a) the person engages in conduct; and 33 (b) the conduct is engaged in in a zone; and [Page Break] 2 given to a specified body before the conduct is engaged in; 3 and 4 (d) the person failed to give the specified body notice in 5 accordance with the zoning plan before engaging in the 6 conduct. 7 Penalty: 200 penalty units. 8 (2) Strict liability applies to paragraphs (1)(b) and (c). 9 Note: For strict liability, see section 6.1 of the Criminal Code. 10 (3) The fault element for paragraph (1)(d) is negligence. 11 Note: For negligence, see section 5.5 of the Criminal Code. 12 38BD Operation of fishing vessel in zone: offence 13 Operation of a fishing vessel prohibited or done without 14 permission 15 (1) A person commits an offence if: 16 (a) the person operates a vessel; and 17 (b) the person does so in a zone; and 18 (c) the vessel is a primary commercial fishing vessel; and 19 (d) the vessel is an Australian vessel; and 20 (e) the vessel is authorised, under a law of the Commonwealth or 21 of a State (including by a licence granted under such a law), 22 to fish using a particular fishing method or particular fishing 23 apparatus; and 24 (f) under the zoning plan for the zone, fishing using that method 25 or apparatus: 26 (i) is prohibited; or 27 (ii) requires permission; and 28 Note: Prohibited is defined in subsection 3(1). 29 (g) if it requires permission--the person is not authorised to fish 30 using that method or apparatus by: 31 (i) a permission granted under the regulations for the 32 purposes of the zoning plan; or 33 (ii) an authority given in accordance with a condition of a 34 permission referred to in subparagraph (i). [Page Break] 2 (2) Strict liability applies to paragraphs (1)(b), (c), (f) and (g). 3 Note: For strict liability, see section 6.1 of the Criminal Code. 4 (3) Absolute liability applies to paragraphs (1)(d) and (e). 5 Note: For absolute liability, see section 6.2 of the Criminal Code. 6 Defence--vessel is transiting or anchoring 7 (4) Subsection (1) does not apply if: 8 (a) the vessel is transiting through the zone; or 9 (b) the vessel is anchored in the zone; or 10 (c) the vessel is transiting to a place where the vessel is to anchor 11 or transiting from a place where the vessel has been 12 anchored. 13 Note: The defendant bears an evidential burden in relation to the matters in 14 this subsection. See subsection 13.3(3) of the Criminal Code. 15 (5) For the purposes of subsection (4), a vessel is only transiting if: 16 (a) the vessel is taking the most direct practicable route: 17 (i) through the zone to a destination outside the zone; or 18 (ii) to or from a place of anchor; and 19 (b) the vessel is maintaining a speed of at least 5 knots. 20 Defence--emergency or unavoidable accident 21 (6) Subsection (1) does not apply if: 22 (a) the operation of the vessel in the zone: 23 (i) is reasonably necessary to deal with an emergency 24 involving a serious threat to human life or property; or 25 (ii) is a result of an unavoidable accident, other than an 26 accident caused by reckless or negligent behaviour; and 27 (b) the Authority is notified of the operation, and the emergency 28 or accident, no more than 48 hours after the vessel was first 29 operated in the zone. 30 Note: The defendant bears an evidential burden in relation to the matters in 31 this subsection. See subsection 13.3(3) of the Criminal Code. [Page Break] 2 38CA Conduct in unzoned area: offence 3 (1) A person commits an offence if the person engages in any of the 4 following conduct in the unzoned area: 5 (a) building, assembling or fixing in position: 6 (i) a building or similar structure; or 7 (ii) a pontoon or other floating structure; or 8 (iii) a walkway, mooring facility or similar structure; or 9 (iv) a device for catching marine animals; 10 (b) operating a vessel (see subsection (3)) with provision for 11 more than 8 sleeping berths in the one vicinity for more than: 12 (i) 14 consecutive days; or 13 (ii) 30 days in any period of 60 days; 14 (c) carrying out reclamation work, beach protection work, road 15 building work or any other work; 16 (d) constructing a landing area; 17 (e) constructing a farming facility; 18 (f) conducting operations in or on, or maintaining: 19 (i) a building or similar structure; or 20 (ii) a pontoon or other floating structure; or 21 (iii) a walkway, mooring facility or similar structure; 22 (g) maintaining a device for catching marine animals; 23 (h) demolishing or removing: 24 (i) a building or similar structure; or 25 (ii) a pontoon or other floating structure; or 26 (iii) a walkway, mooring facility or similar structure; 27 and the person is not authorised to engage in the conduct by: 28 (i) a permission granted under the regulations for the purposes 29 of this section; or 30 (j) an authority given in accordance with a condition of a 31 permission referred to in paragraph (i). 32 Penalty: 33 (a) for an aggravated offence--imprisonment for 3 years or 34 2,000 penalty units, or both; or 35 (b) in any other case--1,000 penalty units. [Page Break] 2 (2) Strict liability applies to the physical element of circumstance in 3 subsection (1), that the person engages in the conduct in the 4 unzoned area. 5 Note: For strict liability, see section 6.1 of the Criminal Code. 6 (3) The references in subsection (1) and section 38CB to operating a 7 vessel include references to the following: 8 (a) conducting operations in or on the vessel; 9 (b) using the vessel as a base for carrying on other activities; 10 (c) carrying out maintenance of the vessel. 11 38CB Conduct in unzoned area: civil penalty provision 12 A person must not engage in any of the following conduct in the 13 unzoned area: 14 (a) building, assembling or fixing in position: 15 (i) a building or similar structure; or 16 (ii) a pontoon or other floating structure; or 17 (iii) a walkway, mooring facility or similar structure; or 18 (iv) a device for catching marine animals; 19 (b) operating a vessel (see subsection 38CA(3)) with provision 20 for more than 8 sleeping berths in the one vicinity for more 21 than: 22 (i) 14 consecutive days; or 23 (ii) 30 days in any period of 60 days; 24 (c) carrying out reclamation work, beach protection work, road 25 building work or any other work; 26 (d) constructing a landing area; 27 (e) constructing a farming facility; 28 (f) conducting operations in or on, or maintaining: 29 (i) a building or similar structure; or 30 (ii) a pontoon or other floating structure; or 31 (iii) a walkway, mooring facility or similar structure; 32 (g) maintaining a device for catching marine animals; 33 (h) demolishing or removing: 34 (i) a building or similar structure; or 35 (ii) a pontoon or other floating structure; or [Page Break] 2 unless the person is authorised to engage in the conduct by: 3 (i) a permission granted under the regulations for the purposes 4 of section 38CA; or 5 (j) an authority given in accordance with a condition of a 6 permission referred to in paragraph (i). 7 Civil penalty: 8 (a) for an aggravated contravention by an individual--20,000 9 penalty units; or 10 (b) for an individual in any other case--2,000 penalty units; or 11 (c) for an aggravated contravention by a body corporate--50,000 12 penalty units; or 13 (d) for a body corporate in any other case--5,000 penalty units. 14 Division 4--Conduct in Marine Park generally 15 38DA Vessel causing damage in Marine Park: offence 16 (1) A person commits an offence if: 17 (a) the person is in charge of a vessel; and 18 (b) the vessel is in the Marine Park; and 19 (c) the person's charge of the vessel results in, or is likely to 20 result in, the vessel causing damage to the environment in the 21 Marine Park. 22 Penalty: 23 (a) for an aggravated offence--imprisonment for 3 years or 24 2,000 penalty units, or both; or 25 (b) in any other case--1,000 penalty units. 26 Note: See also Division 8. 27 (2) Strict liability applies to paragraph (1)(b). 28 Note: For strict liability, see section 6.1 of the Criminal Code. 29 (3) The fault element for paragraph (1)(c) is negligence. 30 Note: For negligence, see section 5.5 of the Criminal Code. [Page Break] 2 A person who is in charge of a vessel that is in the Marine Park 3 must ensure that the person's charge of the vessel does not result 4 in, and is not likely to result in, the vessel causing damage to the 5 environment in the Marine Park. 6 Civil penalty: 7 (a) for an aggravated contravention by an individual--20,000 8 penalty units; or 9 (b) for an individual in any other case--2,000 penalty units; or 10 (c) for an aggravated contravention by a body corporate--50,000 11 penalty units; or 12 (d) for a body corporate in any other case--5,000 penalty units. 13 38DC Contravening order or direction: offence 14 (1) A person commits an offence if: 15 (a) the Authority or another body gives the person an order or 16 direction under the regulations; and 17 (b) the order or direction is of a kind declared by the regulations 18 to be an order or direction to which this section applies; and 19 (c) the person engages in conduct; and 20 (d) the conduct contravenes the order or direction. 21 Penalty: 500 penalty units. 22 (2) Absolute liability applies to paragraphs (1)(a) and (b). 23 Note: For absolute liability, see section 6.2 of the Criminal Code. 24 (3) The fault element for paragraph (1)(d) is negligence. 25 Note: For negligence, see section 5.5 of the Criminal Code. 26 38DD Discharging waste: offence 27 Discharging waste 28 (1) A person commits an offence if: 29 (a) the person discharges waste; and 30 (b) the waste is discharged in the Marine Park; and 31 (c) the person is not authorised to discharge the waste by: [Page Break] 2 purposes of this section; or 3 (ii) an authority given in accordance with a condition of a 4 permission referred to in subparagraph (i). 5 Penalty: 6 (a) for an aggravated offence--imprisonment for 3 years or 7 2,000 penalty units, or both; or 8 (b) in any other case--1,000 penalty units. 9 Note: See also Division 8. 10 (2) The fault element for paragraph (1)(a) is negligence. 11 Note: For negligence, see section 5.5 of the Criminal Code. 12 (3) Strict liability applies to paragraphs (1)(b) and (c). 13 Note: For strict liability, see section 6.1 of the Criminal Code. 14 Discharging waste: strict liability 15 (4) A person commits an offence if: 16 (a) the person discharges waste; and 17 (b) the waste is discharged from a vessel; and 18 (c) the waste is discharged in the Marine Park; and 19 (d) the person is not authorised to discharge the waste by: 20 (i) a permission granted under the regulations for the 21 purposes of this section; or 22 (ii) an authority given in accordance with a condition of a 23 permission referred to in subparagraph (i). 24 Penalty: 500 penalty units. 25 (5) Strict liability applies to subsection (4). 26 Note: For strict liability, see section 6.1 of the Criminal Code. 27 Defence--prescribed circumstances 28 (6) Subsections (1) and (4) do not apply if circumstances prescribed by 29 the regulations for the purposes of this subsection exist in relation 30 to the discharge. Any circumstances prescribed must be 31 circumstances that relate to the discharge of sewage from vessels. [Page Break] 2 this subsection. See subsection 13.3(3) of the Criminal Code. 3 Defence--certain discharges of fish from vessels and aircraft 4 (7) Subsections (1) and (4) do not apply to the discharge of waste from 5 a vessel or aircraft if: 6 (a) the waste is fresh fish, or parts of fresh fish, caught in the 7 Marine Park; and 8 (b) the waste is not discharged in a part of the Marine Park 9 specified in the regulations for the purposes of this 10 paragraph. 11 Note: The defendant bears an evidential burden in relation to the matters in 12 this subsection. See subsection 13.3(3) of the Criminal Code. 13 Defence--certain discharges from vessels, aircraft and platforms 14 (8) Subsections (1) and (4) do not apply to the discharge of waste from 15 a vessel, aircraft or platform if any of the following apply in 16 relation to the discharge: 17 (a) it was for the purpose of securing the safety of the vessel, 18 aircraft or platform; 19 (b) it was for the purpose of saving life at sea; 20 (c) it was for the purpose of combating a specific incident of 21 pollution in order to minimise the damage from pollution and 22 had been approved by: 23 (i) a prescribed officer within the meaning of subsection 24 3(2) of the Protection of the Sea (Prevention of 25 Pollution from Ships) Act 1983; or 26 (ii) the Authority under section 38DE. 27 Note: The defendant bears an evidential burden in relation to the matters in 28 this subsection. See subsection 13.3(3) of the Criminal Code. 29 Defence--discharge in zone where discharges do not require 30 permission 31 (9) Subsections (1) and (4) do not apply in relation to the discharge of 32 waste in a zone if the discharge of waste is for a purpose for which, 33 under the zoning plan for the zone, the zone may be used or 34 entered without permission. 35 Note: The defendant bears an evidential burden in relation to the matters in 36 this subsection. See subsection 13.3(3) of the Criminal Code. [Page Break] 2 For the purposes of subparagraphs 38DD(8)(c)(ii), 38EA(7)(c)(ii) 3 and 38EB(3)(c)(ii), the Authority may approve a proposed 4 discharge of waste from a vessel, aircraft or platform if the 5 Authority is satisfied that the discharge is for the purpose of 6 combating a specific incident of pollution in order to minimise the 7 damage from pollution. 8 Division 5--Conduct contravening conditions 9 38EA Conduct contravening condition of permission or authority: 10 offence 11 Contravening condition of permission or authority 12 (1) A person commits an offence if: 13 (a) the person is authorised to do something by: 14 (i) a permission granted under the regulations for the 15 purposes of a provision of this Act or of a zoning plan; 16 or 17 (ii) an authority given in accordance with a condition of a 18 permission referred to in subparagraph (i); and 19 (b) the permission is subject to a condition; and 20 (c) the person engages in conduct; and 21 (d) the conduct contravenes the condition. 22 Penalty: 23 (a) for an aggravated offence--1,000 penalty units; or 24 (b) in any other case--500 penalty units. 25 (2) Absolute liability applies to paragraphs (1)(a) and (b). 26 Note: For absolute liability, see section 6.2 of the Criminal Code. 27 (3) The fault element for paragraph (1)(d) is negligence. 28 Note: For negligence, see section 5.5 of the Criminal Code. 29 Contravening condition of permission or authority: strict liability 30 (4) A person commits an offence if: 31 (a) the person is authorised to do something by: [Page Break] 2 purposes of a provision of this Act or of a zoning plan; 3 or 4 (ii) an authority given in accordance with a condition of a 5 permission referred to in subparagraph (i); and 6 (b) the permission is subject to a condition; and 7 (c) the person engages in conduct; and 8 (d) the conduct contravenes the condition. 9 Penalty: 60 penalty units. 10 (5) Strict liability applies to subsection (4). 11 Note: For strict liability, see section 6.1 of the Criminal Code. 12 Defence--certain discharges of fish from vessels and aircraft 13 (6) Subsections (1) and (4) do not apply to the discharge of waste from 14 a vessel or aircraft if: 15 (a) the waste is fresh fish, or parts of fresh fish, caught in the 16 Marine Park; and 17 (b) the waste is not discharged in a part of the Marine Park 18 specified in the regulations for the purposes of this 19 paragraph. 20 Note: The defendant bears an evidential burden in relation to the matters in 21 this subsection. See subsection 13.3(3) of the Criminal Code. 22 Defence--certain discharges from vessels, aircraft and platforms 23 (7) Subsections (1) and (4) do not apply to the discharge of waste from 24 a vessel, aircraft or platform if any of the following apply in 25 relation to the discharge: 26 (a) it was for the purpose of securing the safety of the vessel, 27 aircraft or platform; 28 (b) it was for the purpose of saving life at sea; 29 (c) it was for the purpose of combating a specific incident of 30 pollution in order to minimise the damage from pollution and 31 had been approved by: 32 (i) a prescribed officer within the meaning of subsection 33 3(2) of the Protection of the Sea (Prevention of 34 Pollution from Ships) Act 1983; or 35 (ii) the Authority under section 38DE. [Page Break] 2 this subsection. See subsection 13.3(3) of the Criminal Code. 3 38EB Conduct contravening condition of permission or authority: 4 civil penalty provision 5 (1) A person who is authorised to do something by: 6 (a) a permission granted under the regulations for the purposes 7 of a provision of this Act or of a zoning plan; or 8 (b) an authority given in accordance with a condition of a 9 permission referred to in paragraph (a); 10 must not engage in conduct that contravenes a condition of the 11 permission. 12 Civil penalty: 13 (a) for an aggravated contravention by an individual--2,000 14 penalty units; or 15 (b) for an individual in any other case--1,000 penalty units; or 16 (c) for an aggravated contravention by a body corporate--20,000 17 penalty units; or 18 (d) for a body corporate in any other case--10,000 penalty units. 19 (2) Subsection (1) does not apply to the discharge of waste from a 20 vessel or aircraft if: 21 (a) the waste is fresh fish, or parts of fresh fish, caught in the 22 Marine Park; and 23 (b) the waste is not discharged in a part of the Marine Park 24 specified in the regulations for the purposes of this 25 paragraph. 26 (3) Subsection (1) does not apply to the discharge of waste from a 27 vessel, aircraft or platform if any of the following apply: 28 (a) it was for the purpose of securing the safety of the vessel, 29 aircraft or platform; 30 (b) it was for the purpose of saving life at sea; 31 (c) it was for the purpose of combating a specific incident of 32 pollution in order to minimise the damage from pollution and 33 had been approved by: 34 (i) a prescribed officer within the meaning of subsection 35 3(2) of the Protection of the Sea (Prevention of 36 Pollution from Ships) Act 1983; or [Page Break] 2 Division 6--Collective and vicarious liability 3 38FA Liability for vessel, aircraft or platform used in committing 4 offence: offence 5 (1) A person commits an offence if: 6 (a) a person is responsible (see subsection (4)) for a vessel, 7 aircraft or platform; and 8 (b) the vessel, aircraft or platform is used in committing an 9 offence against a provision of another Division of this Part; 10 and 11 (c) the person failed to take all reasonable steps and to exercise 12 due diligence to prevent the vessel, aircraft or platform being 13 used in committing the offence. 14 Penalty: The penalty for which the person would have been liable 15 had the person committed the offence referred to in 16 paragraph (1)(b). 17 Note: See also Division 8. 18 (2) Strict liability applies to paragraphs (1)(a) and (b). 19 Note: For strict liability, see section 6.1 of the Criminal Code. 20 (3) In determining whether the person took all reasonable steps and 21 exercised due diligence for the purposes of paragraph (1)(c), have 22 regard to: 23 (a) any steps the person took to become satisfied that this Act 24 would be complied with; and 25 (b) if the person was, or should have been, aware that there was a 26 risk that the vessel, aircraft or platform would be used in 27 committing an offence--any steps the person took to reduce 28 or remove that risk. 29 (4) For the purposes of paragraph (1)(a), each of the following persons 30 is responsible for the vessel, aircraft or platform: 31 (a) the master of the vessel or the person in charge of the aircraft 32 or platform; 33 (b) the owner or a co-owner, or an owner of any part of or share 34 in, the vessel, aircraft or platform; [Page Break] 2 paragraph (a) or (b) under which the party, or the party and 3 the other person, may determine the activities for which the 4 vessel, aircraft or platform is used; 5 (d) in relation to a primary commercial fishing vessel used in 6 committing an offence constituted by conduct that is fishing: 7 (i) a person who, under a law of the Commonwealth, a 8 State or Territory, holds a licence or other permission 9 (however described and including one that is suspended) 10 permitting the vessel to be used to take fish for 11 commercial purposes; and 12 (ii) a person who, under a law of the Commonwealth, a 13 State or Territory, holds a licence or other permission 14 (however described and including one that is suspended) 15 permitting the person to be in charge of the vessel's 16 fishing operations; 17 (e) in relation to a dory used in committing an offence 18 constituted by conduct that is fishing: 19 (i) the master of the primary commercial fishing vessel in 20 association with which the dory is used; and 21 (ii) a person who, under a law of the Commonwealth, a 22 State or a Territory, holds a licence or other permission 23 (however described and including one that is suspended) 24 permitting the dory to be used in association with a 25 primary commercial fishing vessel; and 26 (iii) a person who, under a law of the Commonwealth, a 27 State or a Territory, holds a licence or other permission 28 (however described and including one that is suspended) 29 permitting the primary commercial fishing vessel in 30 association with which the dory is used to be used to 31 take fish for commercial purposes; and 32 (iv) a person who, under a law of the Commonwealth, a 33 State or a Territory, holds a licence or other permission 34 (however described and including one that is suspended) 35 permitting the person to be in charge of the fishing 36 operations of the primary commercial fishing vessel in 37 association with which the dory is used. 38 38FB Liability for ship used in committing offence: offence 39 (1) A person commits an offence if: [Page Break] 2 (b) the vessel is used in committing an offence against a 3 provision of another Division of this Part; and 4 (c) the conduct constituting the offence is engaged in in a zone; 5 and 6 (d) the vessel is a ship within the meaning of the zoning plan for 7 the zone. 8 Penalty: 500 penalty units. 9 (2) Strict liability applies to subsection (1). 10 Note: For strict liability, see section 6.1 of the Criminal Code. 11 38FC Liability for vessel causing damage in Marine Park: offence 12 (1) A person commits an offence if: 13 (a) the person is an owner of or the master of a vessel; and 14 (b) the vessel is used in committing an offence against 15 section 38DA (vessel causing damage in Marine Park) or 16 38DD (discharging waste). 17 Penalty: 500 penalty units. 18 (2) Strict liability applies to subsection (1). 19 Note: For strict liability, see section 6.1 of the Criminal Code. 20 38FD Liability of permission holder for conduct contravening 21 permission: offence 22 (1) A person commits an offence if: 23 (a) the person gives another person authority to engage in 24 conduct; and 25 (b) the authority is given in accordance with a permission 26 granted under the regulations for the purposes of a provision 27 of this Act or of a zoning plan; and 28 (c) the permission is subject to a condition; and 29 (d) the other person commits an offence against section 38EA 30 involving a contravention of the condition; and 31 (e) the person failed to take all reasonable steps and to exercise 32 due diligence to prevent the other person contravening the 33 condition. [Page Break] 2 had the person committed the offence referred to in 3 paragraph (1)(d). 4 (2) Strict liability applies to paragraphs (1)(a), (b), (c) and (d). 5 Note: For strict liability, see section 6.1 of the Criminal Code. 6 (3) In determining whether the person took all reasonable steps and 7 exercised due diligence for the purposes of paragraph (1)(e), have 8 regard to: 9 (a) any steps the person took to become satisfied that the 10 conditions of the permission would be complied with; and 11 (b) if the person was, or should have been, aware that there was a 12 risk that the other person would contravene a condition of the 13 permission--any steps the person took to reduce or remove 14 that risk. 15 Division 7--Aggravated offences and contraventions 16 38GA Aggravated offences 17 (1) A person commits an aggravated offence against a provision of 18 this Part if the conduct the person engaged in that constituted the 19 offence: 20 (a) was fishing that involved a primary commercial fishing 21 vessel or a dory; or 22 (b) was navigating a vessel that is a ship within the meaning of 23 the zoning plan for the zone in which the vessel was being 24 navigated; or 25 (c) resulted in: 26 (i) the taking of or injury to an animal or plant that is a 27 member of a protected species; or 28 (ii) serious harm to the environment in the Marine Park (see 29 subsection (7)); or 30 (d) had the potential to result in serious harm to the environment 31 in the Marine Park (see subsection (8)); or 32 (e) was done for a commercial purpose. 33 (2) If the prosecution intends to prove an aggravated offence, the 34 charge must allege the relevant aggravated offence. [Page Break] 2 prove the following: 3 (a) if paragraph (1)(a) applies--that the defendant was reckless 4 as to whether the conduct he or she engaged in was fishing; 5 (b) if paragraph (1)(b) applies--that the defendant was reckless 6 as to whether the conduct he or she engaged in was 7 navigating a vessel; 8 (c) if paragraph (1)(c) applies--that the defendant was reckless 9 as to whether the conduct he or she engaged in had the result 10 referred to in paragraph (1)(c); 11 (d) if paragraph (1)(d) applies--that the defendant was reckless 12 as to whether the conduct he or she engaged in had the 13 potential to result in serious harm to the environment in the 14 Marine Park; 15 (e) if paragraph (1)(e) applies--that the defendant intended to 16 engage in the conduct for a commercial purpose. 17 (4) Strict liability applies to: 18 (a) if paragraph (1)(a) applies--the physical element of 19 circumstance, that the fishing involved a primary commercial 20 fishing vessel or a dory; and 21 (b) if paragraph (1)(b) applies--the physical element of 22 circumstance, that the vessel is a ship within the meaning of 23 the zoning plan for the zone in which it was being navigated; 24 and 25 (c) if subparagraph (1)(c)(i) applies--the physical element of 26 circumstance, that the animal or plant is a member of a 27 protected species. 28 Note: For strict liability, see section 6.1 of the Criminal Code. 29 (5) If, in a prosecution for an aggravated offence against a provision of 30 this Part, the trier of fact: 31 (a) is not satisfied that the defendant has committed an 32 aggravated offence against that provision; and 33 (b) is satisfied beyond reasonable doubt that the defendant has 34 committed an offence against that provision; 35 the trier of fact may find the defendant not guilty of the aggravated 36 offence but guilty of an offence against that provision. 37 (6) For the purposes of paragraph (1)(b), navigate includes moor, or 38 anchor, in the course of navigation. [Page Break] 2 conduct has resulted in serious harm to the environment in the 3 Marine Park, have regard to the following: 4 (a) the harm; 5 (b) the size of the affected environment; 6 (c) the sensitivity of the affected environment; 7 (d) the significance of the affected environment; 8 (e) the management objectives contained in the zoning plan for 9 the zone in which the person engaged in the conduct; 10 (f) whether the harm is irreversible; 11 (g) the measures required to remedy the harm. 12 (8) In determining for the purposes of paragraph (1)(d) whether 13 conduct had the potential to result in serious harm to the 14 environment in the Marine Park, have regard to the potential for 15 the conduct to result in serious harm for the purposes of 16 subparagraph (1)(c)(ii). 17 38GB Aggravated contraventions 18 (1) A contravention of a civil penalty provision by a person is an 19 aggravated contravention if the conduct the person engaged in that 20 constituted the contravention: 21 (a) was fishing that involved a primary commercial fishing 22 vessel or a dory; or 23 (b) was navigating a vessel that is a ship within the meaning of 24 the zoning plan for the zone in which the vessel is being 25 navigated; or 26 (c) resulted in: 27 (i) the taking of or injury to an animal or plant that is a 28 member of a protected species; or 29 (ii) serious harm to the environment in the Marine Park; or 30 (d) had the potential to result in serious harm to the environment 31 in the Marine Park; or 32 (e) was done for a commercial purpose. 33 (2) If the Authority, on behalf of the Commonwealth, intends to prove 34 that the person has committed an aggravated contravention, the 35 Authority's application to the Federal Court under section 61AIA [Page Break] 2 aggravated contravention. 3 (3) If, in proceedings for a declaration of contravention in relation to 4 an aggravated contravention of a provision of this Part, the Federal 5 Court: 6 (a) is not satisfied that the person has committed an aggravated 7 contravention against that provision; and 8 (b) is satisfied beyond reasonable doubt that the person has 9 contravened that provision; 10 the Federal Court may make a pecuniary penalty order against the 11 person not for the aggravated contravention but for the 12 contravention of that provision. 13 (4) Subsection 38GA(6) (about navigation) also applies for the 14 purposes of paragraph (1)(b). 15 (5) Subsections 38GA(7) and (8) (about serious harm) also apply for 16 the purposes of subparagraph (1)(c)(ii) and paragraph (1)(d). 17 Division 8--Miscellaneous 18 38HA Commencement of certain prosecutions: time limit 19 (1) A prosecution of an individual for an offence against a provision of 20 this Part, the maximum penalty for which: 21 (a) does not include a term of imprisonment (otherwise than 22 because of section 38HC, 38HD, 38HE or 38HF); or 23 (b) includes a term of imprisonment of 6 months or less; 24 may be commenced at any time within 2 years of the commission 25 of the offence. 26 Note: Subsection (1) extends by a year the deadline that would otherwise 27 apply to these offences under section 15B of the Crimes Act 1914. For 28 offences with a maximum penalty of more than 6 months' 29 imprisonment, section 15B of that Act means that there is no deadline. 30 (2) A prosecution of a body corporate for an offence against a 31 provision of this Part, the maximum penalty for which is a fine of 32 150 penalty units or less, may be commenced at any time within 2 33 years of commission of the offence. 34 Note: Subsection (2) extends by a year the deadline that would otherwise 35 apply to these offences under section 15B of the Crimes Act 1914. For [Page Break] 2 section 15B of that Act means that there is no deadline. 3 (3) In applying subsection 15B(1) of the Crimes Act 1914 to an 4 offence against a provision of this Part, disregard the effect of 5 sections 38HC, 38HD, 38HE and 38HF. 6 38HB Commencement of certain prosecutions: Attorney-General's 7 consent 8 (1) Proceedings for an offence committed by a person against a 9 provision of Division 6 of this Part must not be commenced 10 without the Attorney-General's written consent if the person is not 11 an Australian citizen, an Australian resident or a body corporate 12 incorporated by or under a law of the Commonwealth or of a State 13 or Territory. 14 (2) In deciding whether to consent for the purposes of this section, the 15 Attorney-General must have regard to the obligations of Australia 16 under international law, including obligations under any agreement 17 or arrangement between Australia and another country or countries. 18 38HC Conduct in the exclusive economic zone: offences other than 19 Division 6 offences 20 (1) This section applies in relation to an offence committed by a 21 person against a provision of this Part (other than a provision of 22 Division 6) if: 23 (a) the conduct constituting the offence occurs in the exclusive 24 economic zone of Australia; and 25 (b) none of the following apply: 26 (i) the person is an Australian citizen, an Australian 27 resident or a body corporate incorporated by or under a 28 law of the Commonwealth or of a State or Territory; 29 (ii) an Australian vessel is used in committing the offence; 30 (iii) an Australian aircraft is used in committing the offence; 31 (iv) a platform located in the Great Barrier Reef Region is 32 used in committing the offence; and 33 (c) the penalty set out at the foot of the provision for an offence 34 against the provision includes imprisonment. [Page Break] 2 for the offence committed by the person does not include 3 imprisonment. 4 38HD Conduct in the exclusive economic zone: Division 6 offences 5 (1) This section applies in relation to an offence (a vicarious liability 6 offence) committed by a person against a provision of Division 6 7 of this Part if: 8 (a) the conduct constituting the offence (the underlying offence) 9 to which the vicarious liability offence relates occurs in the 10 exclusive economic zone of Australia; and 11 (b) the person is not an Australian citizen, an Australian resident 12 or a body corporate incorporated by or under a law of the 13 Commonwealth or of a State or Territory; and 14 (c) the penalty set out at the foot of the provision for an offence 15 against the provision includes imprisonment. 16 (2) Despite the penalty set out at the foot of the provision, the penalty 17 for the offence committed by the person does not include 18 imprisonment. 19 38HE Conduct in the territorial sea: offences other than Division 6 20 offences 21 (1) This section applies in relation to an offence committed by a 22 person against a provision of this Part (other than a provision of 23 Division 6) if: 24 (a) the result of the conduct constituting the offence is pollution 25 of the marine environment (however described); and 26 (b) the conduct occurs in the territorial sea of Australia; and 27 (c) none of the following apply: 28 (i) the person is an Australian citizen, an Australian 29 resident or a body corporate incorporated by or under a 30 law of the Commonwealth or of a State or Territory; 31 (ii) an Australian vessel is used in committing the offence; 32 (iii) an Australian aircraft is used in committing the offence; 33 (iv) a platform located in the Great Barrier Reef Region is 34 used in committing the offence; and 35 (d) the penalty set out at the foot of the provision for an offence 36 against that provision includes imprisonment. [Page Break] 2 for the offence committed by the person only includes 3 imprisonment if the prosecution proves that: 4 (a) the person intended to engage in the conduct that constituted 5 the offence; and 6 (b) the pollution is serious. 7 38HF Conduct in the territorial sea: Division 6 offences 8 (1) This section applies in relation to an offence (a vicarious liability 9 offence) committed by a person against a provision of Division 6 10 of this Part if: 11 (a) the result of the conduct constituting the offence (the 12 underlying offence) to which the vicarious liability offence 13 relates is pollution of the marine environment (however 14 described); and 15 (b) the conduct constituting the underlying offence occurs in the 16 territorial sea of Australia; and 17 (c) the person is not an Australian citizen, an Australian resident 18 or a body corporate incorporated by or under a law of the 19 Commonwealth or of a State or Territory; and 20 (d) the penalty set out at the foot of the provision for an offence 21 against that provision includes imprisonment. 22 (2) Despite the penalty set out at the foot of the provision, the penalty 23 for the offence committed by the person only includes 24 imprisonment if the prosecution proves that: 25 (a) the person who engaged in the conduct that constituted the 26 underlying offence intended to engage in that conduct; and 27 (b) the pollution is serious. 28 25 After subsection 39FA(1) 29 Insert: 30 Civil penalty for failing to collect charge 31 (1A) A holder of a chargeable permission must not fail to collect charge 32 from a visitor if: 33 (a) the holder provides a service to the visitor under the 34 permission; and [Page Break] 2 permission. 3 Civil penalty: 4 (a) for an individual--100 penalty units; or 5 (b) for a body corporate--500 penalty units. 6 26 Subsection 39FA(2) 7 Omit "subsection (1)", substitute "subsections (1) and (1A)". 8 27 At the end of subsection 39FA(5) 9 Add "or for a contravention of subsection (1A)". 10 28 Subsection 39FA(6) 11 After "subsection (1)", insert "or a court makes a declaration of 12 contravention against a person for a contravention of subsection (1A)". 13 29 At the end of subsection 39FA(7) 14 Add "or the amount of any pecuniary penalty order made against the 15 person for the contravention of subsection (1A)". 16 30 After subsection 39FB(2) 17 Insert: 18 Civil penalty for failing to pay collected amount on time 19 (2A) A holder of a chargeable permission must not fail to pay a 20 collected amount to the Authority before or on the day it is due and 21 payable. 22 Civil penalty: 23 (a) for an individual--20 penalty units; or 24 (b) for a body corporate--100 penalty units. 25 Note: The following heading to subsection 39FB(1) is inserted "Offence for failing to pay 26 collected amount on time". 27 31 Subsection 39FB(3) 28 After "subsection (1)", insert "or a court makes a declaration of 29 contravention against a person for a contravention of subsection (2A)". [Page Break] 2 collected amount on time". 3 32 At the end of subsection 39FB(4) 4 Add "or the amount of any pecuniary penalty order made against the 5 person for the contravention of subsection (2A)". 6 33 At the end of Division 2A of Part VA 7 Add: 8 39FF False or misleading representation in relation to tourism 9 services: offence 10 (1) A person commits an offence if: 11 (a) the person makes a false or misleading representation; and 12 (b) the person is reckless as to whether the representation is false 13 or misleading; and 14 (c) the representation relates to: 15 (i) a person's liability to pay a tax, charge or fee (however 16 described) imposed by the Commonwealth for purposes 17 connected with use of or entry to the Marine Park; or 18 (ii) the amount of any such tax, charge or fee; and 19 (d) the representation is made in the course of providing a 20 tourism-related service (see subsection (3)). 21 Penalty: 1,000 penalty units. 22 (2) In a prosecution for an offence against subsection (1), it is not 23 necessary to prove that the representation expressly refers to the 24 Marine Park or to an imposition by the Commonwealth. 25 (3) For the purposes of subsection (1), a tourism-related service 26 means: 27 (a) a service provided on a commercial basis to or for the benefit 28 of tourists, or in relation to tourism, in Australia; and 29 (b) any action incidental to such a service (for example, 30 advertising a service). 31 34 Subsections 39G(1), (1A) and (1B) 32 Repeal the subsections, substitute: [Page Break] 2 unpaid after the time when it became due for payment, the person 3 is liable to pay, by way of penalty, an amount (the late payment 4 penalty) equal to: 5 (a) the amount worked out at the rate of 20% per annum of the 6 amount unpaid, as at the time the amount unpaid became due 7 for payment; or 8 (b) if the amount worked out under paragraph (a) is less than 9 $250--$250. 10 (1A) If a collected amount payable by a person remains unpaid after the 11 time when it became due for payment, the person is liable to pay, 12 by way of penalty, an amount (the late payment penalty) equal to: 13 (a) the amount worked out at the rate of 20% per annum of the 14 amount unpaid, as at the time the amount unpaid became due 15 for payment; or 16 (b) if the amount worked out under paragraph (a) is less than 17 $250--$250. 18 (1B) If a penalty amount payable by a person remains unpaid after the 19 time when it became due for payment, the person is liable to pay, 20 by way of penalty, an amount (the late payment penalty) equal to: 21 (a) the amount worked out at the rate of 20% per annum of the 22 amount unpaid, as at the time the amount unpaid became due 23 for payment; or 24 (b) if the amount worked out under paragraph (a) is less than 25 $250--$250. [Page Break] 2 Part 2--Transitional, application and saving 3 provisions 4 35 Definition 5 In this Part: 6 Marine Park regulations means regulations made under the Great 7 Barrier Reef Marine Park Act 1975. 8 36 Mining or drilling in Great Barrier Reef Region 9 (sections 38AA and 38AB) 10 A reference in section 38AA or 38AB of the Great Barrier Reef Marine 11 Park Act 1975, as in force after the commencement of this Schedule, to 12 a permission granted under the regulations for the purposes of 13 section 38AA includes a reference to an approval that meets the 14 following conditions: 15 (a) the approval was given by the Authority under subsection 16 38(3) of the Great Barrier Reef Marine Park Act 1975 as in 17 force before the commencement of this Schedule; 18 (b) either: 19 (i) the approval was in force immediately before the 20 commencement of this Schedule; or 21 (ii) if, at the time this Schedule commenced, the approval 22 was suspended--the suspension has been removed 23 under Marine Park regulations; 24 (c) the approval is not suspended under Marine Park regulations; 25 (d) the approval has not expired or been revoked under Marine 26 Park regulations. 27 37 Conduct in zone (sections 38BA and 38BB) 28 A reference in section 38BA or 38BB of the Great Barrier Reef Marine 29 Park Act 1975, as in force after the commencement of this Act, to a 30 permission granted under the regulations for the purposes of the zoning 31 plan includes a reference to a permission that meets the following 32 conditions: 33 (a) the permission was granted or transferred to a person under 34 Marine Park regulations before the commencement of this 35 Schedule; [Page Break] 2 of this Schedule, a permission of a kind declared by Marine 3 Park regulations to be a permission to which section 38B, 4 38CB or 38MA of the Great Barrier Reef Marine Park Act 5 1975 applied; 6 (c) either: 7 (i) the permission was in force immediately before the 8 commencement of this Schedule; or 9 (ii) if, at the time this Schedule commenced, the permission 10 was suspended--the suspension has been removed 11 under Marine Park regulations; 12 (d) the permission is not suspended under Marine Park 13 regulations; 14 (e) the permission has not expired or been revoked under Marine 15 Park regulations. 16 38 Conduct in unzoned area (sections 38CA and 38CB) 17 A reference in section 38CA or 38CB of the Great Barrier Reef Marine 18 Park Act 1975, as in force after the commencement of this Schedule, to 19 a permission granted under the regulations for the purposes of 20 section 38CA includes a reference to a permission that meets the 21 following conditions: 22 (a) the permission was granted or transferred to a person under 23 Marine Park regulations before the commencement of this 24 Schedule; 25 (b) the permission was, immediately before the commencement 26 of this Schedule, a permission of a kind declared by Marine 27 Park regulations to be a permission to which section 38F of 28 the Great Barrier Reef Marine Park Act 1975 applied; 29 (c) either: 30 (i) the permission was in force immediately before the 31 commencement of this Schedule; or 32 (ii) if, at the time this Schedule commenced, the permission 33 was suspended--the suspension has been removed 34 under Marine Park regulations; 35 (d) the permission is not suspended under Marine Park 36 regulations; 37 (e) the permission has not expired or been revoked under Marine 38 Park regulations. [Page Break] 2 (1) A reference in section 38DC of the Great Barrier Reef Marine Park Act 3 1975, as in force after the commencement of this Schedule, to an order 4 or direction of a kind declared by the regulations to be an order or 5 direction to which section 38DC applies includes a reference to an order 6 that meets the following conditions: 7 (a) the order was given before the commencement of this 8 Schedule; 9 (b) the order was, immediately before the commencement of this 10 Schedule, an order of a kind declared by the regulations to be 11 an order to which section 38H of the Great Barrier Reef 12 Marine Park Act 1975 applied; 13 (c) the order was in force immediately before the 14 commencement of this Schedule; 15 (d) the order has not expired or been revoked. 16 (2) A reference in section 38DC of the Great Barrier Reef Marine Park Act 17 1975, as in force after the commencement of this Schedule, to an order 18 or direction of a kind declared by the regulations to be an order or 19 direction to which section 38DC applies includes a reference to a 20 direction that meets the following conditions: 21 (a) the direction was given before the commencement of this 22 Schedule; 23 (b) the direction was, immediately before the commencement of 24 this Schedule, a direction of a kind declared by Marine Park 25 regulations to be a direction to which section 38E of the 26 Great Barrier Reef Marine Park Act 1975 applied; 27 (c) the direction was in force immediately before the 28 commencement of this Schedule; 29 (d) the direction has not expired or been revoked. 30 40 Discharging waste (section 38DD) 31 A reference in section 38DD of the Great Barrier Reef Marine Park Act 32 1975, as in force after the commencement of this Schedule, to a 33 permission granted under the regulations for the purposes of that section 34 includes a reference to a permission that meets the following conditions: 35 (a) the permission was granted or transferred to a person under 36 Marine Park regulations before the commencement of this 37 Schedule; [Page Break] 2 of this Schedule, a permission of a kind declared by Marine 3 Park regulations to be a permission to which section 38B or 4 38J of that Act applied; 5 (c) either: 6 (i) the permission was in force immediately before the 7 commencement of this Schedule; or 8 (ii) if, at the time this Schedule commenced, the permission 9 was suspended--the suspension has been removed 10 under Marine Park regulations; 11 (d) the permission is not suspended under Marine Park 12 regulations; 13 (e) the permission has not expired or been revoked under Marine 14 Park regulations. 15 41 Conduct contravening condition of permission or 16 authority (sections 38EA and 38EB) 17 A reference in section 38EA or 38EB of the Great Barrier Reef Marine 18 Park Act 1975, as in force after the commencement of this Schedule, to 19 a permission granted under the regulations for the purposes of a 20 provision of the Great Barrier Reef Marine Park Act 1975 or of a 21 zoning plan includes a reference to a permission that meets the 22 conditions in item 27, 28, 29 or 31. 23 42 Liability of permission holder for conduct contravening 24 permission (section 38FD) 25 A reference in section 38FD of the Great Barrier Reef Marine Park Act 26 1975, as in force after the commencement of this Schedule, to a 27 permission granted under the regulations for the purposes of a provision 28 of the Great Barrier Reef Marine Park Act 1975 or of a zoning plan 29 includes a reference to a permission that meets the conditions in 30 item 27, 28, 29 or 31.