(1) A contravention of a civil penalty provision by a person is an aggravated contravention if the conduct the person engaged in that constituted the contravention:
(a) was fishing that involved a primary commercial fishing vessel or a dory; or
(b) was navigating a vessel that is a ship within the meaning of the zoning plan for the zone in which the vessel is being navigated; or
(c) resulted in:
(i) the taking of or injury to an animal or plant that is a member of a protected species; or
(ii) serious harm to the environment in the Marine Park; or
(d) had the potential to result in serious harm to the environment in the Marine Park; or
(e) was done for a commercial purpose.
Note: For subparagraph (c)(i), see also subsection (6).
(2) If the Authority, on behalf of the Commonwealth, intends to prove that the person has committed an aggravated contravention, the Authority's application to the Federal Court under section 61AIA in relation to the contravention must specify the relevant aggravated contravention.
(3) If, in proceedings for a declaration of contravention in relation to an aggravated contravention of a provision of this Part, the Federal Court:
(a) is not satisfied that the person has committed an aggravated contravention against that provision; and
(b) is satisfied beyond reasonable doubt that the person has contravened that provision;
the Federal Court may make a pecuniary penalty order against the person not for the aggravated contravention but for the contravention of that provision.
(4) Subsection 38GA(6) (about navigation) also applies for the purposes of paragraph (1)(b).
(5) Subsections 38GA(7) and (8) (about serious harm) also apply for the purposes of subparagraph (1)(c)(ii) and paragraph (1)(d).
(a) an individual or a body corporate contravenes subsection 38BB(1) or (2); and
(b) the contravention is an aggravated contravention in relation to an animal because of subparagraph (1)(c)(i) of this section; and
(c) the animal is a member of:
(i) a species in the genus Dugong (dugong); or
(ii) a species in the family Cheloniidae (marine turtles); or
(iii) the species Dermochelys coriacea (leatherback turtles);
then the number of penalty units set out in the relevant penalty for the aggravated contravention is tripled.
(7) If the Authority, on behalf of the Commonwealth, intends to prove that the person has committed an aggravated contravention and rely on subsection (6), the Authority's application to the Federal Court under section 61AIA in relation to the contravention must also specify which subparagraph of paragraph (6)(c) applies in relation to the animal.