1Adelaide Dolphin Sanctuary Act 2005

South Australia Adelaide Dolphin Sanctuary Act 2005 An Act to establish a sanctuary to protect the dolphin population of the Port Adelaide River estuary and Barker Inlet and its natural habitat; to provide for the protection and enhancement of the Port Adelaide River estuary and Barker Inlet; and for other purposes.

Contents Part 1—Preliminary 1 Short title 3 Interpretation 4 Interaction with other Acts 5 Related operational Acts 6 Act binds Crown Part 2—Objects of Act and statutory objectives 7 Objects 8 Objectives 9 Administration of Act to achieve objects and objectives Part 3—Adelaide Dolphin Sanctuary Division 1—Sanctuary 10 Establishment of Adelaide Dolphin Sanctuary Division 2—Adelaide Dolphin Sanctuary Management Plan 11 ADS Management Plan Division 3—Functions of Parks and Wilderness Council under this Act 17 Functions of Parks and Wilderness Council under this Act Division 4—Adelaide Dolphin Sanctuary Fund 22 ADS Fund 23 Accounts 24 Audit Part 4—Administration Division 1—Minister 25 Functions and powers of Minister 26 Annual report 27 Power of delegation Division 2—Authorised officers 28 Appointment of authorised officers 29 Powers of authorised officers 30 Hindering etc persons engaged in administration of Act 31 Protection from self-incrimination Part 5—General duty of care 32 General duty of care Part 6—Protection and other orders Division 1—Orders 33 Protection orders 34 Action on non-compliance with protection order 35 Reparation orders 36 Action on non-compliance with a reparation order 37 Reparation authorisations 38 Related matters Division 2—Registration of orders and effect of charges 39 Registration 40 Effect of charge Division 3—Appeals to ERD Court 41 Appeal Part 7—Provisions relating to official insignia 42 Interpretation 43 Declaration of logo 44 Protection of official insignia 45 Seizure and forfeiture of goods Part 8—Miscellaneous 46 Native title 47 Immunity provision 48 Continuing offence 49 Offences by bodies corporate 50 General defence 51 Criminal jurisdiction of ERD Court 52 Confidentiality 53 Service 54 Evidentiary provision 55 Regulations Schedule 1—Adelaide Dolphin Sanctuary 1 Adelaide Dolphin Sanctuary Legislative history

The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Adelaide Dolphin Sanctuary Act 2005. 3—Interpretation (1) In this Act, unless the contrary intention appears— activity includes the storage or possession of anything (including something in liquid or gaseous form); ADS Fund means the Adelaide Dolphin Sanctuary Fund established under Part 3 Division 4; ADS Management Plan means the Adelaide Dolphin Sanctuary Management Plan adopted under Part 3 Division 2; associate—see subsection (2); authorised officer—see section 28; business includes a business not carried on for profit or gain; business day means any day except— (a) a Saturday, Sunday or public holiday; or (b) a day which falls between 25 December and 1 January in the following year; council means a council within the meaning of the Local Government Act 1999; domestic activity means an activity other than an activity undertaken in the course of a business; domestic partner means a person who is a domestic partner within the meaning of the Family Relationships Act 1975, whether declared as such under that Act or not; ERD Court means the Environment, Resources and Development Court established under the Environment, Resources and Development Court Act 1993; general duty of care means the duty under section 32; implementation program—see section 26(2)(c); Parks and Wilderness Council means the Parks and Wilderness Council established under the National Parks and Wildlife Act 1972; place includes any land, water, premises or structure; public authority includes a Minister, statutory authority or council; public notice means a notice published in a newspaper circulating generally throughout the State; related operational Act—see section 5; Sanctuary means the Adelaide Dolphin Sanctuary established under section 10; spouse—a person is the spouse of another if they are legally married; statutory authorisation means an approval, consent, licence, permit or other authorisation granted or required under a related operational Act; statutory instrument means— (a) a plan, program or policy; or (b) any other instrument of a prescribed kind, prepared pursuant to the provisions of an Act; vehicle includes any— (a) vessel or craft; (b) plant or equipment designed to be moved or operated by a driver. (2) For the purposes of this Act, a person is an associate of another if— (a) they are partners; or (b) one is a spouse, domestic partner, parent or child of another; or (c) they are both trustees or beneficiaries of the same trust, or one is a trustee and the other is a beneficiary of the same trust; or (d) one is a body corporate or other entity (whether inside or outside Australia) and the other is a director or member of the governing body of the body corporate or other entity; or (e) one is a body corporate or other entity (whether inside or outside Australia) and the other is a person who has a legal or equitable interest in 5 per cent or more of the share capital of the body corporate or other entity; or (f) they are related bodies corporate within the meaning of the Corporations Act 2001 of the Commonwealth; or (g) a chain of relationships can be traced between them under any one or more of the above paragraphs. (3) For the purposes of subsection (2), a beneficiary of a trust includes an object of a discretionary trust. (4) A reference in this Act to the costs of any damage to the Sanctuary will be taken to include a reference to any costs associated with— (a) minimising, managing or containing any such damage; or (b) remedying any such damage; or (c) addressing any consequences resulting from any such damage; or (d) compensating for any loss or adverse impacts arising from any such damage. (5) For the purposes of this or any other Act, the Minister may, in assessing the costs or extent of any damage to the Sanctuary, apply any assumptions determined by the Minister to be reasonable in the circumstances. 4—Interaction with other Acts Except where the contrary intention is expressed in this or any other Act, this Act is in addition to and does not limit or derogate from the provisions of any other Act. 5—Related operational Acts For the purposes of this Act, the following are related operational Acts: (a) Aquaculture Act 2001; (b) Coast Protection Act 1972; (c) Development Act 1993; (d) Environment Protection Act 1993; (e) Fisheries Act 1982; (f) Harbors and Navigation Act 1993; (g) Historic Shipwrecks Act 1981; (h) Mining Act 1971; (i) National Parks and Wildlife Act 1972; (j) Native Vegetation Act 1991; (k) Petroleum Act 2000; (l) any other Act prescribed as a related operational Act by the regulations. 6—Act binds Crown (1) This Act binds the Crown in right of this State and also, so far as the legislative power of the State extends, the Crown in all its other capacities, but not so as to impose any criminal liability on the Crown. (2) Without limiting or derogating from subsection (1), all agencies and instrumentalities of the Crown must endeavour, as far as practicable, to act consistently with the ADS Management Plan. Part 2—Objects of Act and statutory objectives 7—Objects The objects of this Act are— (a) to protect the dolphin population of the Port Adelaide River estuary and Barker Inlet; and (b) to protect the natural habitat of that population. 8—Objectives (1) The following objectives will apply in connection with the operation of this Act: (a) the protection of the dolphin population of the Port Adelaide River estuary and Barker Inlet from direct physical harm is to be maintained and improved; (b) the key habitat features in the Port Adelaide River estuary and Barker Inlet that are necessary to sustain the dolphin population are to be maintained, protected and restored; (c) water quality within the Port Adelaide River estuary and Barker Inlet should be improved to a level that sustains the ecological processes, environmental values and productive capacity of the Port Adelaide River estuary and Barker Inlet; (d) the interests of the community are to be taken into account by recognising indigenous and other cultural, and historical, relationships with the Port Adelaide River estuary and Barker Inlet and surrounding areas, and by ensuring appropriate participation in processes associated with the management of the Port Adelaide River estuary and Barker Inlet; (e) public awareness of the importance of a healthy Port Adelaide River estuary and Barker Inlet to the economic, social and cultural prosperities of the local communities, and the community more generally, is to be promoted; (f) the principles of ecological sustainable development in relation to the use and management of the Port Adelaide River estuary and Barker Inlet are to be promoted. (2) For the purposes of subsection (1)(f), the following are declared to be principles of ecologically sustainable development: (a) that the use, development and protection of the environment should be managed in a way, and at a rate, that will enable people and communities to provide for their economic, social and physical well-being and for their health and safety while— (i) sustaining the potential of natural and physical resources to meet the reasonably foreseeable needs of future generations; and (ii) safeguarding the life-supporting capacity of air, water, land and ecosystems; and (iii) avoiding, remedying or mitigating any adverse effects of activities on the environment; (b) that proper weight should be given to both long and short term economic, environmental, social and equity considerations in deciding all matters relating to environmental protection, restoration and enhancement; (c) that, if there are threats of serious or irreversible environmental harm, lack of full scientific certainty should not be taken to justify the postponement of decisions or measures to prevent the environmental harm. 9—Administration of Act to achieve objects and objectives The Minister, the Parks and Wilderness Council, the ERD Court and other persons or bodies involved in the administration of this Act, and any other person or body required to consider the operation or application of this Act (whether acting under this Act or another Act), must act consistently with, and seek to further, the objects and objectives of this Act. Part 3—Adelaide Dolphin Sanctuary Division 1—Sanctuary 10—Establishment of Adelaide Dolphin Sanctuary (1) The Adelaide Dolphin Sanctuary is established. (2) The Sanctuary consists of the area defined in Schedule 1. (3) The Governor may alter the boundaries of the Sanctuary by regulation. (4) A regulation made under subsection (3) cannot take effect unless and until it has been laid before both Houses of Parliament and— (a) no motion for disallowance of the regulation is moved within the time for such a motion; or (b) every motion for disallowance of the regulation has been defeated or withdrawn, or has lapsed. Division 2—Adelaide Dolphin Sanctuary Management Plan 11—ADS Management Plan (1) The Minister must, within 12 months after the commencement of this Act, prepare a plan to be called the Adelaide Dolphin Sanctuary Management Plan. (2) The Plan must set out— (a) the proposals of the Minister in relation to the management of the Sanctuary; and (b) the priorities that the Minister will pursue in order to achieve the objects and objectives of this Act in relation to the Sanctuary. (3) The Minister must review the Plan at least once in every 7 years. (4) The Minister may amend the Plan at any time. (5) The Minister must, in relation to any proposal to create or amend the Plan— (a) prepare a draft of the proposal; and (b) seek the views of the Parks and Wilderness Council, all relevant Ministers and prescribed bodies in relation to the proposal; and (c) by public notice, give notice of the place or places at which copies of the draft are available for inspection (without charge) and purchase and invite interested persons to make written representations on the proposal within the period specified in the notice. (6) The Minister must make copies of all representations made by members of the public in response to a notice under subsection (5)(c) available for public inspection or purchase (except in the case of a representation that was made in confidence) and for that purpose the Minister must, by public notice, give notice of the place or places at which the copies are available. (7) Before adopting the Plan or an amendment to the Plan, the Minister must— (a) have regard to any views expressed by the Parks and Wilderness Council, relevant Ministers and prescribed bodies in relation to the proposal; and (b) consider all representations made by members of the public in response to a notice under subsection (5)(c), and the Minister may make such alterations to the draft as the Minister thinks necessary or desirable. (8) The Plan, and any amendment to the Plan, have no force or effect until adopted by the Minister. (9) The Minister must— (a) make reasonable provision for the publication of the Plan; and (b) ensure that copies of the Plan are reasonably available for inspection (without charge) and purchase by the public at a place or places determined by the Minister; and (c) ensure that public notice is given of any amendment to the Plan within a reasonable time after the amendment is made. (10) The Plan is an expression of policy and does not in itself affect rights or liabilities (whether of a substantive, procedural or other nature). (11) A failure of the Minister to comply with a requirement of this section cannot be taken to affect the validity of the Plan. (12) In this section— relevant Minister means a Minister responsible for the administration of a related operational Act. Division 3—Functions of Parks and Wilderness Council under this Act 17—Functions of Parks and Wilderness Council under this Act The function of the Parks and Wilderness Council is to advise the Minister on— (a) the preparation of the ADS Management Plan and any amendments to the Plan; and (b) the effectiveness of the ADS Management Plan in achieving the objects and objectives of this Act; and (c) the effectiveness of the implementation program; and (d) the application of money belonging to the ADS Fund; and (e) any matter referred to the Parks and Wilderness Council by the Minister; and (f) any matter connected with the administration of this Act on which the Parks and Wilderness Council believes it should advise the Minister. Division 4—Adelaide Dolphin Sanctuary Fund 22—ADS Fund (1) There will be a fund kept in a separate account at the Treasury to be called the Adelaide Dolphin Sanctuary Fund. (2) The ADS Fund will consist of— (a) any money provided by Parliament for the purposes of the fund; and (b) any money provided by the Government of the Commonwealth for the purposes of the fund; and (c) grants, gifts and bequests made to the Minister for payment into the fund; and (d) proceeds from sales by the Minister under section 45; and (e) any income arising from the investment of the fund under subsection (3); and (f) all other money that is required or authorised by or under this Act or any other law to be paid into the fund. (3) Any money in the ADS Fund that is not for the time being required for the purposes of this Act may be invested by the Minister after consultation with the Treasurer. (4) The Minister may apply any part of the ADS Fund— (a) for any purpose to further the objects or objectives of this Act; and (b) in payment of the expenses of administering the fund. (5) The Minister must, before applying money belonging to the fund in furtherance of the objects and objectives of this Act, have regard to any advice provided by the Parks and Wilderness Council in relation to the matter. 23—Accounts The Minister must cause proper accounts to be kept in relation to the ADS Fund. 24—Audit The Auditor-General may at any time, and must at least once in each year, audit the accounts of the ADS Fund. Part 4—Administration Division 1—Minister 25—Functions and powers of Minister (1) The Minister has the following functions under this Act: (a) to prepare and keep under review the ADS Management Plan; (b) to provide advice with respect to the approval of activities proposed to be undertaken within the Sanctuary or that may have a direct impact on the Sanctuary; (c) to consult with relevant persons, bodies or authorities, including indigenous peoples with an association with the Sanctuary, about the goals or outcomes that should be adopted or pursued in order to achieve or advance the objects and objectives of this Act; (d) as far as reasonably practicable and appropriate, to act to integrate the administration of this Act with the administration of other legislation that may affect the Sanctuary; (e) to institute, supervise or promote programs to protect, maintain or improve the Sanctuary; (f) to promote the undertaking of monitoring and research programs to collect data on the state of the Sanctuary and other relevant information, and to assess and apply other information relevant to the Sanctuary obtained from other programs or sources; (g) to promote public awareness of the importance of a healthy Port Adelaide River estuary and Barker Inlet; (h) to conduct or promote public education in relation to the protection, improvement or enhancement of the Sanctuary; (i) to keep the state of the Sanctuary under review; (j) to undertake the enforcement of the general duty of care; (k) such other functions as are assigned to the Minister by or under this or any other Act. (2) The administration of— (a) this Act; and (b) the Coast Protection Act 1972, must be committed to the same Minister. (3) The Minister has the power to do anything necessary, expedient or incidental to— (a) performing the functions of the Minister under this Act; or (b) administering this Act; or (c) furthering the objects and objectives of this Act. 26—Annual report (1) The Minister must on or before 30 September in each year prepare a report on the operation of this Act for the financial year ending on the preceding 30 June. (2) The annual report must include— (a) information on the extent to which the objects and objectives of this Act are being achieved; and (b) reports on the following matters for the preceding financial year: (i) the referral of matters to the Minister under any related operational Act; and (ii) the enforcement of the general duty of care; and (iii) action taken by the Minister or authorised officers under Part 6; and (c) a program setting out the Minister's proposals for the implementation of the ADS Management Plan during the current financial year. (3) The Minister must cause a copy of the report to be laid before both Houses of Parliament within 12 sitting days after the report is prepared. 27—Power of delegation (1) Minister may delegate to a body or person (including a person for the time being holding or acting in a specified office or position) a function or power of the Minister under this Act. (2) A delegation under this section— (a) must be by instrument in writing; and (b) may be absolute or conditional; and (c) does not derogate from the power of the Minister to act in any matter; and (d) is revocable at will. (3) A function or power delegated under this section may, if the instrument of delegation so provides, be further delegated. Division 2—Authorised officers 28—Appointment of authorised officers (1) The Minister may appoint persons to be authorised officers for the purposes of this Act. (2) Each police officer is an authorised officer for the purposes of this Act. (3) An appointment under subsection (1) may be made subject to conditions or limitations specified in the instrument of appointment. (4) An authorised officer appointed under subsection (1) must be issued with an identity card— (a) containing the person’s name and a photograph of the person; and (b) stating that the person is an authorised officer for the purposes of this Act; and (c) stating any limitations on the authorised officer’s authority. (5) An authorised officer must, at the request of a person in relation to whom the authorised officer intends to exercise any powers under this Act, produce for the inspection of the person his or her identity card. (6) If a person in possession of an identity card issued to the person under this section ceases to be an authorised officer, the person must forthwith return the identity card to the Minister. Maximum penalty: $250. 29—Powers of authorised officers (1) An authorised officer may, as may reasonably be required in connection with the administration, operation or enforcement of this Act— (a) enter any place; (b) inspect any place, including the stratum lying below the surface of any land, and water on or under any land, and inspect any works, plant or equipment; (c) enter and inspect any vehicle and for that purpose require a vehicle to stop, or to be presented for inspection at a place and time specified by the authorised officer, and board any vessel or craft; (d) give directions with respect to the stopping or movement of a vehicle, plant, equipment or other thing; (e) require a person apparently in charge of a vessel or craft to facilitate any boarding; (f) take measurements, including measurements of the flow of any water on or under any land or relating to any change in any aspect of the environment; (g) place any markers, pegs or other items or equipment in order to assist in environmental testing or monitoring; (h) take samples of any substance or thing from any place (including under any land), or vehicle, for analysis; (i) with the authority of a warrant issued by a magistrate, require any person to produce specified documents or documents of a specified kind, including a written record that reproduces in an understandable form information stored by computer, microfilm or other process; (j) examine, copy or take extracts from a document or information so produced or require a person to provide a copy of any such document or information; (k) take photographs, films, audio, video or other recordings; (l) examine or test any vehicle, plant, equipment, fitting or other thing, or cause or require it to be so examined or tested, or seize it or require its production for such examination or testing; (m) seize and retain anything that the authorised officer reasonably suspects has been used in, or may constitute evidence of, a contravention of this Act; (n) require a person who the authorised officer reasonably suspects has committed, is committing or is about to commit, a contravention of this Act to state the person’s full name and usual place of residence and to produce evidence of the person’s identity; (o) require a person who the authorised officer reasonably suspects has knowledge of matters in respect of which information is reasonably required for the administration, operation or enforcement of this Act to answer questions in relation to those matters; (p) give directions reasonably required in connection with the exercise of a power conferred by any of the above paragraphs or otherwise in connection with the administration, operation or enforcement of this Act; (q) exercise other prescribed powers. (2) An authorised officer must not exercise a power conferred by subsection (1) in respect of residential premises (but such a power may be exercised in respect of any vessel or craft). (3) An authorised officer in exercising powers under this section may be accompanied by such assistants as are reasonably required in the circumstances. (4) An authorised officer may, on the authority of a warrant issued by a magistrate, use force to enter any place or vehicle. (5) A magistrate must not issue a warrant under subsection (4) unless satisfied that there are reasonable grounds to believe— (a) that a contravention of this Act has been, is being, or is about to be, committed in or on a place or vehicle; or (b) that something may be found in or on a place or vehicle that has been used in, or constitutes evidence of, a contravention of this Act; or (c) that the circumstances require immediate action. (6) An application for the issue of a warrant under this section— (a) may be made either personally or by telephone; and (b) must be made in accordance with any procedures prescribed by the regulations. (7) If an authorised officer digs up any land under subsection (1), the authorised officer must, after taking such steps as the authorised officer thinks fit in the exercise of powers under that subsection, insofar as is reasonably practicable, take steps to ensure that the land is restored to such state as is reasonable in the circumstances. (8) An authorised officer must, in taking any action under this section, have regard to any request made by any indigenous peoples with an association with the Port Adelaide River estuary and Barker Inlet that the authorised officer (or authorised officers generally) not enter a specified area. (9) An authorised officer must, before exercising powers under this section in relation to a person, insofar as is reasonably practicable, provide to the person a copy of an information sheet that sets out information about the source and extent of the authorised officer's powers under this section, and about the action that may be taken against the person if he or she fails to comply with a requirement or direction of an authorised officer under this section. (10) For the purposes of subsection (9), an information sheet is a document approved by the Minister for the purposes of that subsection. 30—Hindering etc persons engaged in administration of Act (1) A person who— (a) without reasonable excuse hinders or obstructs an authorised officer or other person engaged in the administration of this Act; or (b) fails to answer a question put by an authorised officer to the best of his or her knowledge, information or belief; or (c) produces a document or record that he or she knows, or ought to know, is false or misleading in a material particular; or (d) fails without reasonable excuse to comply with a requirement or direction of an authorised officer under this Act; or (e) uses abusive, threatening or insulting language to an authorised officer, or a person assisting an authorised officer; or (f) falsely represents, by words or conduct, that he or she is an authorised officer, is guilty of an offence. Maximum penalty: (a) in the case of an offence against paragraph (a) or (e)—$5 000; (b) in any other case—$10 000. (2) A person (other than an authorised officer) who, without the permission of the Minister, removes, destroys or interferes with any marker, peg or other item or equipment placed under section 29(1)(g) is guilty of an offence. Maximum penalty: $5 000. 31—Protection from self-incrimination A person is not obliged to answer a question or to produce a document or record as required under this Part if to do so might tend to incriminate the person or make the person liable to a penalty. Part 5—General duty of care 32—General duty of care (1) A person must take all reasonable measures to prevent or minimise any harm to the Sanctuary through his or her actions or activities. (2) For the purposes of subsection (1)— (a) harm includes— (i) a risk of harm, and future harm; and (ii) anything declared by regulation to be harm to the Sanctuary; and (b) harm need not be permanent but must be more than transient or tenuous in nature; and (c) in determining what measures are required to be taken, regard must be had, amongst other things, to— (i) the nature of the harm; and (ii) the sensitivity of the environment that may be affected and the potential impact of the harm environmentally, socially and economically; and (iii) the practicality and financial implications of any alternative action, and the current state of technical and scientific knowledge; and (iv) any degrees of risk that may be involved; and (v) the significance of the Sanctuary to the State and to the environment and economy of the State; and (vi) the extent to which an act or activity may have a cumulative effect on the Sanctuary; and (vii) insofar as is reasonably practicable and relevant, any assessment of potential harm to the Sanctuary as a result of the relevant action or activity undertaken before a statutory authorisation (if any) was granted under a related operational Act, and the extent to which any such harm was intended to be prevented or minimised through the attachment of conditions to a statutory authorisation (if any) under a related operational Act. (3) A person will be taken not to be in breach of subsection (1) if the person is acting in circumstances prescribed by the regulations. (4) A person who breaches the duty created by subsection (1) is not, on account of the breach alone, guilty of an offence but— (a) compliance with the duty may be enforced by the issuing of a protection order under Part 6; and (b) a reparation order or reparation authorisation may be issued under that Part in respect of the breach of the duty. Part 6—Protection and other orders Division 1—Orders 33—Protection orders (1) The Minister may issue a protection order under this Division for the purpose of securing compliance with the general duty of care. (2) A protection order— (a) must be in the form of a written notice served on the person to whom the notice is issued; (b) must specify the person to whom it is issued (whether by name or a description sufficient to identify the person); (c) must state the grounds on which it is made with reasonable particularity; (d) may impose any requirement reasonably required for the purpose for which the order is issued including one or more of the following: (i) a requirement that the person discontinue, or not commence, a specified activity indefinitely or for a specified period or until further notice from the Minister; (ii) a requirement that the person not carry on a specified activity except at specified times or subject to specified conditions; (iii) a requirement that the person take specified action in a specified way, and within a specified period; (e) must state that the person may, within 14 days, appeal to the ERD Court against the order. (3) An authorised officer may, if of the opinion that urgent action is required for the protection of the Sanctuary, issue an emergency protection order imposing requirements of a kind referred to in subsection (2)(d) as reasonably required for the protection of the Sanctuary. (4) An emergency protection order may be issued orally but, in that event, the person to whom the order is issued must be advised forthwith of the person’s right to appeal to the ERD Court against the order. (5) If an emergency protection order is issued orally, the authorised officer who issued it must confirm it in writing at the earliest opportunity (and in any event within 2 business days) by written notice given to the person to whom it applies. (6) If an emergency protection order is issued, the order will cease to have effect on the expiration of 72 hours from the time of its issuing unless confirmed by a written protection order issued by the Minister and served on the relevant person. (7) The Minister may, by written notice served on a person to whom a protection order has been issued, vary or revoke the order. (8) A person to whom a protection order is issued must comply with the order. Maximum penalty: (a) if the order was issued in relation to a domestic activity for the purpose of securing  compliance with the general duty of care—$2 500; (b) in any other case—$120 000. Expiation fee: (a) if the order was issued in relation to a domestic activity for the purpose of securing compliance with the general duty of care—$250; (b) in any other case—$500. (9) A person must not hinder or obstruct a person complying with a protection order. Maximum penalty: $10  000. 34—Action on non-compliance with protection order (1) If the requirements of a protection order are not complied with, the Minister may take any action required by the order. (2) Action to be taken by the Minister under subsection (1) may be taken on the Minister’s behalf by an authorised officer or another person authorised by the Minister for the purpose. (3) A person taking action under this section may enter any relevant place or vehicle at any reasonable time. (4) The reasonable costs and expenses incurred by the Minister in taking action under this section may be recovered by the Minister as a debt from the person who failed to comply with the requirements of the protection order. (5) If an amount is recoverable from a person by the Minister under this section— (a) the Minister may, by notice in writing to the person, fix a period, being not less than 28 days from the date of the notice, within which the amount must be paid by the person, and, if the amount is not paid by the person within that period, the person is liable to pay interest charged at the prescribed rate per annum on the amount unpaid; and (b) the amount together with any interest charge so payable is until paid a charge in favour of the Minister on any land owned by the person in relation to which the protection order is registered under Division 2. 35—Reparation orders (1) If the Minister is satisfied that a person has caused harm to the Sanctuary by contravention of— (a) the general duty of care; or (b) a condition of a statutory authorisation that relates to an activity carried out within the Sanctuary, the Minister may issue a reparation order requiring the person— (c) to take specified action within a specified period to make good any resulting damage to the Sanctuary; or (d) to make a payment or payments into an approved account to enable action to be taken to address any resulting damage to the Sanctuary, or both. (2) A reparation order— (a) must be in the form of a written notice served on the person to whom it is issued; (b) must specify the person to whom it is issued (whether by name or a description sufficient to identify the person); (c) must state the grounds on which it is made with reasonable particularity; (d) may include requirements for action to be taken to prevent or mitigate further harm to the Sanctuary, or for a plan of action to be prepared to the satisfaction of the Minister; (e) may include requirements for specified tests or monitoring; (f) may include requirements for furnishing to the Minister specified results or reports; (g) may include requirements that the person to whom it is issued appoint or engage a person with specified qualifications to prepare a plan or report or to undertake tests or monitoring required by the order; (h) in the case of an order requiring payment into an approved account, may provide that payments must occur in accordance with a scheme specified by the Minister (either at the time of the making of the order or at a later time when the extent or impact of any action has been assessed or finally determined); (i) must state that the person may, within 14 days, appeal to the ERD Court against the order. (3) An authorised officer may, if of the opinion that urgent action is required to prevent or mitigate further harm, issue an emergency reparation order containing requirements of a kind referred to in subsection (2), other than a requirement for payment into an approved account. (4) An emergency reparation order may be issued orally, but, in that event, the person to whom it is issued must be advised forthwith of the person's right to appeal to the ERD Court against the order. (5) If an emergency reparation order is issued orally, the authorised officer who issued it must confirm it in writing at the earliest opportunity (and in any event within 2 business days) by written notice given to the person to whom it applies. (6) If an emergency reparation order is issued, the order will cease to have effect on the expiration of 72 hours from the time of its issuing unless confirmed by a written reparation order issued by the Minister and served on the relevant person. (7) The Minister or an authorised officer may, if of the opinion that it is reasonably necessary to do so in the circumstances, include in an emergency or other reparation order a requirement for an act or omission that might otherwise constitute a contravention of this Act and, in that event, a person incurs no criminal liability under this Act for compliance with the requirement. (8) The Minister may, by written notice served on a person to whom a reparation order has been issued, vary or revoke the order. (9) A person to whom a reparation order is issued must comply with the order. Maximum penalty: $50 000. 36—Action on non-compliance with a reparation order (1) If the requirements of a reparation order are not complied with, the Minister may take any action required by the order. (2) Action taken by the Minister under subsection (1) may be taken on the Minister's behalf by an authorised officer or another person authorised by the Minister for the purpose. (3) A person taking action under this section may enter any relevant place or vehicle at any reasonable time. (4) The reasonable costs and expenses incurred by the Minister in taking action under this section may be recovered by the Minister as a debt from the person who failed to comply with the requirements of the reparation order. (5) If an amount is recoverable from a person by the Minister under this section— (a) the Minister may, by notice in writing to the person, fix a period, being not less than 28 days from the date of the notice, within which the amount must be paid by the person, and, if the amount is not paid by the person within that period, the person is liable to pay interest charged at the prescribed rate per annum on the amount unpaid; and (b) the amount together with any interest charge so payable is until paid a charge in favour of the Minister on any land owned by the person in relation to which the reparation order is registered under Division 2. 37—Reparation authorisations (1) If the Minister is satisfied that a person has caused harm to the Sanctuary by contravention of— (a) the general duty of care; or (b) a condition of a statutory authorisation that relates to an activity carried out within the Sanctuary, the Minister may (whether or not a reparation order has been issued to the person) issue a reparation authorisation under which authorised officers or other persons authorised by the Minister for the purpose may take specified action on the Minister's behalf to make good any resulting damage to the Sanctuary. (2) A reparation authorisation— (a) must be in the form of a written notice; (b) must specify the person alleged to have caused the harm (whether by name or a description sufficient to identify the person); (c) must state the grounds on which it is made with reasonable particularity; (d) may include authorisation for action to be taken to prevent or mitigate further harm to the Sanctuary. (3) The Minister must, as soon as practicable after issuing a reparation authorisation, serve a copy of the authorisation on the person alleged to have caused the harm. (4) The Minister may, by notice in writing, vary or revoke a reparation authorisation and must, as soon as practicable after doing so, serve a copy of the notice on the person alleged to have caused the harm. (5) If a person other than an authorised officer is authorised to take action under subsection (1), the following provisions apply: (a) the Minister must issue the person with an instrument of authority; (b) the person may exercise such powers of an authorised officer as are reasonably required for the purpose of taking action under that subsection; (c) the provisions of this Act apply in relation to the exercise of such powers by the person in the same way as in relation to an authorised officer; (d) the person must produce the instrument of authority for the inspection of any person in relation to whom the person intends to exercise powers of an authorised officer. (6) A person taking action under a reparation authorisation may enter any relevant place or vehicle at any reasonable time. (7) The reasonable costs and expenses incurred by the Minister in taking action under a reparation authorisation may be recovered by the Minister as a debt from the person who caused the relevant harm. (8) If an amount is recoverable from a person by the Minister under this section— (a) the Minister may, by notice in writing to the person, fix a period, being not less than 28 days from the date of the notice, within which the amount must be paid by the person, and, if the amount is not paid by the person within that period, the person is liable to pay interest charged at the prescribed rate per annum on the amount unpaid; and (b) the amount together with any interest charge so payable is until paid a charge in favour of the Minister on any land owned by the person in relation to which the reparation authorisation is registered under Division 2. 38—Related matters (1) The Minister should, so far as is reasonably practicable, consult with any other public authority that may also have power to act with respect to the particular matter before the Minister issues a protection order, reparation order or reparation authorisation under this Division. (2) Subsection (1) does not apply— (a) where action is being taken under this Act as a matter of urgency; or (b) in any other circumstance of a prescribed kind. (3) A person cannot claim compensation from— (a) the Minister or the Crown; or (b) an authorised officer; or (c) a person acting under the authority of the Minister or an authorised officer, in respect of a requirement imposed under this Division, or on account of any act or omission undertaken or made in the exercise (or purported exercise) of a power under this Division. Division 2—Registration of orders and effect of charges 39—Registration (1) If— (a) the Minister issues an order or authorisation under Division 1; and (b) the order or authorisation is issued in relation to an activity carried out on land, or requires a person to take action on or in relation to land, the Minister may apply to the Registrar-General for the registration of the order or authorisation in relation to that land. (2) An application under this section must— (a) define the land to which it relates; and (b) comply with any requirement imposed by the Registrar-General for the purposes of this section. (3) The Registrar-General must on— (a) due application under subsection (2); and (b) lodgement of a copy of the relevant order or authorisation, register the order or authorisation in relation to the land by making such entries in any register book, memorial or other book or record in the Lands Titles Registration Office or in the General Registry Office as the Registrar-General thinks fit. (4) An order or authorisation registered under this section is binding on each owner and occupier from time to time of the land. (5) The Registrar-General must, on application by the Minister, cancel the registration of an order or authorisation in relation to land and make such endorsements to that effect in the appropriate register book, memorial or other book or record in respect of the land as the Registrar-General thinks fit. (6) The Minister may, if the Minister thinks fit, apply to the Registrar-General for cancellation of the registration of an order or authorisation under this section in relation to land, and must do so— (a) on revocation of the order or authorisation; or (b) in relation to— (i) an order— (A) on full compliance with the requirements of the order; (B) if the Minister has taken action under Division 1 to carry out the requirements of the order—on payment to the Minister of any amount recoverable by the Minister under that Division in relation to the action so taken; or (ii) an authorisation—on payment to the Minister of any amount recoverable by the Minister under Division 1 in relation to the action taken in pursuance of the authorisation. 40—Effect of charge A charge imposed on land under Division 1 has priority over— (a) any prior charge on the land (whether or not registered) that operates in favour of a person who is an associate of the owner of the land; and (b) any other charge on the land other than a charge registered prior to registration under this Division of the relevant order or authorisation in relation to the land. Division 3—Appeals to ERD Court 41—Appeal (1) A person to whom a protection order or reparation order has been issued under Division 1 may appeal to the ERD Court against the order or any variation of the order. (2) An appeal must be made in a manner and form determined by the Court, setting out the grounds of the appeal. (3) Subject to this section, an appeal must be made within 21 days after the order is issued or the variation is made. (4) The Court may, if it is satisfied that it is just and reasonable in the circumstances to do so, dispense with the requirement that an appeal be made within the period fixed by subsection (3). (5) Unless otherwise determined by the Court, an appeal must be referred in the first instance to a conference under section 16 of the Environment, Resources and Development Court Act 1993 (and the provisions of that Act will then apply in relation to that appeal). (6) Subject to subsection (7), the institution of an appeal does not affect the operation of the order to which the appeal relates or prevent the taking of action to implement the order. (7) The Court may, on application by a party to an appeal, make an order staying or otherwise affecting the operation or implementation of the whole or a part of an order if the Court is satisfied that it is appropriate to do so having regard to— (a) the possible consequences to the Sanctuary and the interests of any persons who may be affected by the appeal; and (b) the need to secure the effectiveness of the hearing and determination of the appeal. (8) An order under subsection (7)— (a) may be varied or revoked by the Court by further order; (b) is subject to such conditions as are specified in the order; (c) has effect until— (i) the end of the period of operation (if any) specified in the order; or (ii) the decision of the Court on the appeal comes into operation, whichever is the earlier. (9) The Court must not make an order under subsection (7) unless each party to the appeal has been given a reasonable opportunity to make submissions in relation to the matter. (10) The Court may, on hearing an appeal under this section— (a) confirm, vary or revoke the order appealed against; (b) order or direct a person or body to take such action as the Court thinks fit, or to refrain (either temporarily or permanently) from such action or activity as the Court thinks fit; (c) make any consequential or ancillary order or direction, or impose any condition, that it considers necessary or expedient. Part 7—Provisions relating to official insignia 42—Interpretation (1) In this Part— official insignia means— (a) a design declared by the Minister to be a logo for the purposes of this Part; or (b) the name “Adelaide Dolphin Sanctuary”, whether appearing or used in full or in an abbreviated form; or (c) a combination of a logo under paragraph (a) and that name. (2) For the purposes of this Part, goods will be taken to be marked with official insignia if the insignia is affixed or annexed to, marked on, or incorporated in or with— (a) the goods; or (b) any covering or container in which the goods are wholly or partly enclosed; or (c) anything placed in or attached to any such covering or container; or (d) anything that is attached to the goods or around which the goods are wrapped or wound. 43—Declaration of logo The Minister may, by notice in the Gazette— (a) declare a design to be a logo for the purposes of this Part; or (b) vary or revoke a declaration under paragraph (a). 44—Protection of official insignia (1) The Crown has a proprietary interest in all official insignia. (2) A person must not, without the consent of the Minister, in the course of a trade or business— (a) sell goods marked with official insignia; or (b) use official insignia for the purpose of promoting the sale of goods or services or the provision of any benefits. Maximum penalty: $20 000. (3) A person must not, without the consent of the Minister, assume a name or description that consists of, or includes, official insignia. Maximum penalty: $20 000. (4) A consent under this section— (a) may be given with or without conditions (including conditions requiring payment to the Minister); and (b) may be given generally by notice in the Gazette or by notice in writing addressed to an applicant for the consent; and (c) may be revoked by the Minister for breach of a condition by notice in writing given personally or by post to a person who has the benefit of the consent. (5) The Supreme Court may, on the application of the Minister, grant an injunction to restrain a breach of this section. (6) The court by which a person is convicted of an offence against this section may, on the application of the Minister, order the convicted person to pay compensation of an amount fixed by the court to the Minister. (7) Subsections (5) and (6) do not derogate from any civil remedy that may be available to the Minister apart from those subsections. 45—Seizure and forfeiture of goods (1) If— (a) goods apparently intended for a commercial purpose are marked with official insignia; and (b) an authorised officer suspects on reasonable grounds that the use of the insignia has not been authorised by the Minister, the authorised officer may seize those goods. (2) If goods have been seized under this section and— (a) proceedings are not instituted for an offence against section 44(2) in relation to the goods within 3 months of their seizure; or (b) after proceedings have been instituted and completed, the defendant is not convicted, the person from whom they were seized is entitled to recover— (c) the goods or, if they have been destroyed, compensation equal to the market value of the goods at the time of their seizure; and (d) compensation for any loss suffered by reason of the seizure of the goods. (3) An action for the payment of compensation under subsection (2) may be brought against the Minister in any court of competent jurisdiction. (4) The court by which a person is convicted of an offence against section 44(2) may order that goods to which the offence relates be forfeited to the Crown. (5) Any goods forfeited to the Crown may be sold or disposed of as the Minister thinks fit and, if sold, the proceeds of sale must be paid into the ADS Fund. Part 8—Miscellaneous 46—Native title (1) Nothing done under this Act will be taken to affect native title in any land or water. (2) However, subsection (1) does not apply if the effect is valid under a law of the State or the Native Title Act 1993 of the Commonwealth. 47—Immunity provision No act or omission undertaken or made by the Minister or any other person engaged in the administration of this Act, or by another person or body acting under the authority of the Minister, with a view to— (a) exercising or performing a power or function under this Act; or (b) protecting, restoring or enhancing the Sanctuary, or any aspect of the Sanctuary (including by exercising or performing any power or function under another Act); or (c) furthering the objectives of this Act (including by exercising or performing any power or function under another Act), gives rise to any liability (whether based on a statutory or common law duty to take care or otherwise) against the Minister, person or body, or the Crown. 48—Continuing offence (1) A person convicted of an offence against a provision of this Act in respect of a continuing act or omission— (a) is liable, in addition to the penalty otherwise applicable to the offence, to a penalty for each day during which the act or omission continued of not more than one-tenth of the maximum penalty prescribed for that offence; and (b) is, if the act or omission continues after the conviction, guilty of a further offence against the provision and liable, in addition to the penalty otherwise applicable to the further offence, to a penalty for each day during which the act or omission continued after the conviction of not more than one-tenth of the maximum penalty prescribed for the offence. (2) If an offence consists of an omission to do something that is required to be done, the omission will be taken to continue for as long as the thing required to be done remains undone after the end of the period for compliance with the requirement. 49—Offences by bodies corporate (1) If a body corporate commits an offence against this Act, each member of the governing body, and the manager, of the body corporate are guilty of an offence and liable to the same penalty as is prescribed for the principal offence where the offender is a natural person. (2) A person may be prosecuted and convicted of an offence under this section whether or not the body corporate has been prosecuted or convicted of the offence committed by the body corporate. 50—General defence It is a defence to a charge of an offence against this Act if the defendant proves that the alleged offence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence. 51—Criminal jurisdiction of ERD Court Offences constituted by this Act lie within the criminal jurisdiction of the ERD Court. 52—Confidentiality (1) A person engaged or formerly engaged in the administration of this Act must not divulge or communicate personal information obtained (whether by that person or otherwise) in the course of official duties except— (a) as required or authorised by or under this Act or any other Act or law; or (b) with the consent of the person to whom the information relates; or (c) in connection with the administration of this Act; or (d) to an agency or instrumentality of this State, the Commonwealth or another State or Territory of the Commonwealth for the purposes of the proper performance of its functions. Maximum penalty: $5 000. (2) Subsection (1) does not prevent disclosure of statistical or other data that could not reasonably be expected to lead to the identification of any person to whom it relates. (3) Information that has been disclosed under subsection (1) for a particular purpose must not be used for any other purpose by— (a) the person to whom the information was disclosed; or (b) any other person who gains access to the information (whether properly or improperly and whether directly or indirectly) as a result of that disclosure. Maximum penalty: $5 000. 53—Service (1) A notice, order or other document required to be given or sent to, or served on, a person for the purposes of this Act may— (a) be given to the person personally; or (b) be posted in an envelope addressed to the person at the person's last known residential or (in the case of a corporation) registered address; or (c) be left for the person at the person's last known residential or (in the case of a corporation) registered address with someone apparently over the age of 16 years; or (d) be transmitted by facsimile transmission or electronic mail to a facsimile number or electronic mail address (in which case the notice or document will be taken to have been given or served at the time of transmission). (2) Without limiting the effect of subsection (1), a notice, order or other document required to be given or sent to, or served on, a person for the purposes of this Act may, if the person is a company or registered body within the meaning of the Corporations Act 2001 of the Commonwealth, be served on the person in accordance with that Act. 54—Evidentiary provision In proceedings for an offence against this Act, an allegation in the complaint that a person was or was not at a specified time an authorised officer will be accepted as proved in the absence of proof to the contrary. 55—Regulations (1) The Governor may make such regulations as are contemplated by, or necessary or expedient for the purposes of, this Act. (2) Without limiting the generality of subsection (1), the regulations may— (a) create offences punishable by a fine not exceeding $5 000; (b) fix expiation fees for alleged offences against the regulations; (c) make provision facilitating proof of the commission of offences against the regulations. (3) The Governor may, by regulation, make additional provisions of a saving or transitional nature consequent on the enactment of the Statutes Amendment (Boards and Committees—Abolition and Reform) Act 2015. (4) A provision of a regulation made under subsection (3) may, if the regulation so provides, take effect from the commencement of this subsection or from a later day. (5) To the extent to which a provision takes effect under subsection (4) from a day earlier than the day of the regulation's publication in the Gazette, the provision does not operate to the disadvantage of a person by— (a) decreasing the person's rights; or (b) imposing liabilities on the person. Schedule 1—Adelaide Dolphin Sanctuary 1—Adelaide Dolphin Sanctuary The Port Adelaide River estuary and Barker Inlet including— (a) the subjacent land; and (b) the waters, rivers, creeks, inlets and drains to medium high water mark; and (c) the land within the area bounded as follows: