24AOffences relating to marine areas

24A  Offences relating to marine areas Actions in Commonwealth marine areas affecting the environment  (b) the action is taken in a Commonwealth marine area; and  (1A) Strict liability applies to paragraph (1)(b). Actions in Commonwealth marine areas likely to affect the environment  (b) the action is taken in a Commonwealth marine area; and  (2A) Strict liability applies to paragraph (2)(b). Actions outside Commonwealth marine areas affecting those areas  (b) the action is taken outside a Commonwealth marine area but in the Australian jurisdiction; and  (c) the action results or will result in a significant impact on the environment in an area; and  (d) the area is a Commonwealth marine area.  (3A) Strict liability applies to paragraphs (3)(b) and (d). Actions likely to affect environment in Commonwealth marine areas  (b) the action is taken outside a Commonwealth marine area but in the Australian jurisdiction; and  (d) the area is a Commonwealth marine area.  (4A) Strict liability applies to paragraphs (4)(b) and (d). Fishing with impact in State or Territory waters managed by Commonwealth  (a) the person takes an action that:  (ii) is included in the class of activities forming a fishery (as defined in that Act) that is managed under the law of the Commonwealth as a result of an agreement made under section 71 or 72 of that Act before the commencement of this section; and  (b) the action is taken in the coastal waters (as defined in the Fisheries Management Act 1991) of a State or the Northern Territory; and  (c) the action results or will result in a significant impact on the environment in those coastal waters.  (5A) Strict liability applies to paragraph (5)(b). Fishing with likely impact in State or Territory waters managed by Commonwealth  (a) the person takes an action that:  (ii) is included in the class of activities forming a fishery (as defined in that Act) that is managed under the law of the Commonwealth as a result of an agreement made under section 71 or 72 of that Act before the commencement of this section; and  (b) the action is taken in the coastal waters (as defined in the Fisheries Management Act 1991) of a State or the Northern Territory; and  (c) the action is likely to have a significant impact on the environment in those coastal waters.  (6A) Strict liability applies to paragraph (6)(b). Penalties  (7) An offence against subsection (1), (2), (3), (4), (5) or (6) is punishable on conviction by imprisonment for a term not more than 7 years, a fine not more than 420 penalty units, or both. Note 1: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection. Note 2: An executive officer of a body corporate convicted of an offence against this section may also commit an offence against section 495. Note 3: If a person takes an action on land that contravenes this section, a landholder may commit an offence against section 496C. Defences—general  (8) Subsection (1), (2), (3), (4), (5) or (6) does not apply to an action if:  (a) an approval of the taking of the action by the person is in operation under Part 9 for the purposes of this section; or  (ba) there is in force a determination under section 79E that the action may continue to be taken and the action is taken in accordance with the conditions (if any) specified in the determination; or  (c) there is in force a decision of the Minister under Division 2 of Part 7 that the subsection is not a controlling provision for the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or  (d) the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process). Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code. Defence—fishing in Commonwealth waters managed by State  (9) Subsections (1) and (2) do not apply to an action if the action:  (b) is included in the class of activities forming a fishery (as defined in that Act) that is managed under the law of a State or the Northern Territory as a result of an agreement made under section 71 or 72 of that Act before the commencement of this section; and  (c) is permitted under a law of the State or Territory. Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code. Defence—fishing outside Commonwealth marine areas  (10) Subsections (3) and (4) do not apply to an action that:  (b) is permitted under a law of a State or self‑governing Territory. Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code. Subdivision FA—Great Barrier Reef Marine Park 24B  Requirement for approval of activities in the Great Barrier Reef Marine Park Actions in Great Barrier Reef Marine Park affecting the environment  (1) A person must not take in the Great Barrier Reef Marine Park an action that has, will have or is likely to have, a significant impact on the environment. Actions outside Great Barrier Reef Marine Park affecting the environment in the Marine Park  (2) A person must not take outside the Great Barrier Reef Marine Park but in the Australian jurisdiction an action that:  (a) has or will have a significant impact on the environment in the Great Barrier Reef Marine Park; or  (b) is likely to have a significant impact on the environment in the Great Barrier Reef Marine Park. Exceptions to prohibition  (3) Subsection (1) or (2) does not apply to an action if:  (a) an approval of the taking of the action by the person is in operation under Part 9 for the purposes of the subsection; or  (ba) there is in force a determination under section 79E that the action may continue to be taken and the action is taken in accordance with the conditions (if any) specified in the determination; or  (c) there is in force a decision of the Minister under Division 2 of Part 7 that the subsection is not a controlling provision for the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or  (e) the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process). Note: Section 28 regulates actions by the Commonwealth or a Commonwealth agency with a significant impact on the environment. 24C  Offences relating to Great Barrier Reef Marine Park Actions in Great Barrier Reef Marine Park affecting the environment  (b) the action is taken in the Great Barrier Reef Marine Park; and  (2) Strict liability applies to paragraph (1)(b). Actions in Great Barrier Reef Marine Park likely to affect the environment  (b) the action is taken in the Great Barrier Reef Marine Park; and  (4) Strict liability applies to paragraph (3)(b). Actions outside Great Barrier Reef Marine Park affecting environment in the Marine Park  (b) the action is taken outside the Great Barrier Reef Marine Park but in the Australian jurisdiction; and  (c) the action results in or will result in a significant impact on the environment in an area; and  (d) the area is the Great Barrier Reef Marine Park.  (6) Strict liability applies to paragraphs (5)(b) and (d). Actions outside Great Barrier Reef Marine Park likely to affect environment in the Marine Park  (7) A person commits an offence if:  (b) the action is taken outside the Great Barrier Reef Marine Park but in the Australian jurisdiction; and  (d) the area is the Great Barrier Reef Marine Park.  (8) Strict liability applies to paragraphs (7)(b) and (d). Defences  (9) Subsection (1), (3), (5) or (7) does not apply to an action if:  (a) an approval of the taking of the action by the person is in operation under Part 9 for the purposes of the subsection; or  (ba) there is in force a determination under section 79E that the action may continue to be taken and the action is taken in accordance with the conditions (if any) specified in the determination; or  (c) there is in force a decision of the Minister under Division 2 of Part 7 that the subsection is not a controlling provision for the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or  (e) the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process). Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code. Subdivision FB—Protection of water resources from unconventional gas development and large coal mining development 24D  Requirement for approval of developments with a significant impact on water resources  (1) A constitutional corporation, the Commonwealth or a Commonwealth agency must not take an action if:  (b) the action:  (2) A person must not take an action if:  (3) A person must not take an action if:  (4) Subsections (1) to (3) do not apply to an action if:  (a) an approval of the taking of the action by the constitutional corporation, Commonwealth, Commonwealth agency or person is in operation under Part 9 for the purposes of this section; or  (b) Part 4 lets the constitutional corporation, Commonwealth, Commonwealth agency or person take the action without an approval under Part 9 for the purposes of this section; or  (ba) there is in force a determination under section 79E that the action may continue to be taken and the action is taken in accordance with the conditions (if any) specified in the determination; or  (c) there is in force a decision of the Minister under Division 2 of Part 7 that this section is not a controlling provision for the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or  (d) the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process).  (5) A person who wishes to rely on subsection (4) in proceedings for a contravention of a civil penalty provision bears an evidential burden in relation to the matters in that subsection. 24E  Offences relating to water resources  (1) A constitutional corporation, or a Commonwealth agency that does not enjoy the immunities of the Commonwealth, commits an offence if:  (a) the corporation or agency takes an action involving:  (b) the action:  (i) results or will result in a significant impact on a water resource; or Note 1: An executive officer of a body corporate convicted of an offence against this subsection may also commit an offence against section 495. Note 2: If a person takes an action on land that contravenes this subsection, a landholder may commit an offence against section 496C.  (a) the person takes an action involving: Note 1: An executive officer of a body corporate convicted of an offence against this subsection may also commit an offence against section 495. Note 2: If a person takes an action on land that contravenes this subsection, a landholder may commit an offence against section 496C.  (a) the person takes an action involving: Note 1: An executive officer of a body corporate convicted of an offence against this subsection may also commit an offence against section 495. Note 2: If a person takes an action on land that contravenes this subsection, a landholder may commit an offence against section 496C.  (4) Subsections (1) to (3) do not apply to an action if:  (a) an approval of the taking of the action by the constitutional corporation, Commonwealth agency or person is in operation under Part 9 for the purposes of this section; or  (b) Part 4 lets the constitutional corporation, Commonwealth agency or person take the action without an approval under Part 9 for the purposes of this section; or  (ba) there is in force a determination under section 79E that the action may continue to be taken and the action is taken in accordance with the conditions (if any) specified in the determination; or  (c) there is in force a decision of the Minister under Division 2 of Part 7 that this section is not a controlling provision for the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or  (d) the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process). Note: The defendant bears an evidential burden in relation to the matters in subsection (4). See subsection 13.3(3) of the Criminal Code. Subdivision G—Additional matters of national environmental significance 25  Requirement for approval of prescribed actions  (1) A person must not take an action that is prescribed by the regulations for the purposes of this subsection.  (a) an approval of the taking of the action by the person is in operation under Part 9 for the purposes of this section; or  (ba) there is in force a determination under section 79E that the action may continue to be taken and the action is taken in accordance with the conditions (if any) specified in the determination; or  (c) there is in force a decision of the Minister under Division 2 of Part 7 that this section is not a controlling provision for the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or  (d) the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process).  (3) Before the Governor‑General makes regulations prescribing an action for the purposes of subsection (1), the Minister (the Environment Minister) must:  (a) inform the appropriate Minister of each State and self‑governing Territory of the proposal to prescribe:  (i) the action; and  (ii) a thing as matter protected by this section in relation to the action; and  (b) invite the appropriate Minister of each State and self‑governing Territory to give the Environment Minister comments on the proposal within a specified period of at least 28 days; and  (c) consider the comments (if any); and  (d) if comments have been given as described in paragraph (b)—take all reasonable steps to consult the appropriate Minister of each State and self‑governing Territory with a view to agreeing on:  (i) the action to be prescribed; and  (ii) the thing to be prescribed as matter protected by this section in relation to the action. Note: Section 34 provides that the matter protected by this section is a thing prescribed by the regulations in relation to the action.  (3A) To avoid doubt, regulations may be made for the purposes of this section even if no agreement is reached on the matters described in paragraph (3)(d).  (4) The regulations may prescribe different things as matter protected by this section in relation to different actions prescribed for the purposes of subsection (1).  (5) This section applies only to actions:  (a) taken in a Territory or a place acquired by the Commonwealth for public purposes (within the meaning of section 52 of the Constitution); or  (b) taken in a Commonwealth marine area; or  (c) taken for the purpose of trade or commerce:  (d) taken by a constitutional corporation; or  (e) whose regulation is appropriate and adapted to give effect to Australia’s obligations under an agreement with one or more other countries.  (6) Regulations prescribing an action whose regulation is appropriate and adapted to give effect to Australia’s obligations under an agreement with one or more countries must specify the agreement. Subdivision H—Actions that are taken to be covered by this Division 25A  Actions that are taken to be covered by this Division  (1) The regulations may provide that a specified action is taken to be an action to which a specified regulatory provision applies. Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.  (2) To avoid doubt, if, as a result of a regulation made for the purposes of subsection (1), a regulatory provision applies to an action, the action is taken to be described in the provision.  (3) Regulations made for the purposes of subsection (1) may only specify actions:  (a) taken in a Territory; or  (b) taken in a Commonwealth marine area; or  (c) taken for the purpose of trade or commerce:  (d) taken by a constitutional corporation; or  (e) whose regulation is appropriate and adapted to give effect to Australia’s obligations under an agreement with one or more other countries.  (4) Regulations specifying an action whose regulation is appropriate and adapted to give effect to Australia’s obligations under an agreement with one or more countries must specify the agreement. regulatory provision means:  (a) a civil penalty provision set out in this Division; or  (b) a provision of this Division that creates an offence. Subdivision HA—Limitation on liability for actions of third parties 25AA  Limitation on liability for actions of third parties  (1) A provision mentioned in subsection (2) or (3) does not apply to an action (the primary action) if:  (a) a person (the primary person) takes the action; and  (b) as a consequence of the primary action, another person (the secondary person) takes another action (the secondary action); and  (c) the secondary action is not taken at the direction or request of the primary person; and  (d) the significant impact referred to in the provision is a consequence of the secondary action. Defence to offences  (2) For the purposes of subsection (1), the following provisions do not apply to the primary action:  (a) subsections 15A(1) and (2);  (b) subsections 15C(1) to (10);  (c) subsections 17B(1) and (2);  (d) subsections 18A(1) and (2);  (e) subsections 20A(1) and (2);  (f) subsections 22A(1) to (6);  (g) subsections 24A(1) to (6);  (h) subsections 24C(1), (3), (5) and (7);  (i) subsections 24E(1) to (3). Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code. Exception to civil penalties  (3) For the purposes of subsection (1), the following provisions do not apply to the primary action:  (a) subsection 12(1);  (b) subsections 15B(1) to (5) and (7);  (c) subsection 16(1);  (d) subsections 18(1) to (6);  (e) subsection 20(1);  (f) subsections 21(1) to (3);  (g) subsections 23(1) to (3);  (ga) subsections 24B(1) and (2);  (gb) subsections 24D(1) to (3);  (h) subsection 25(1). Subdivision I—Evidentiary certificates