(2A) Strict liability applies to paragraph (2)(c).
Note: For strict liability , see section 6.1 of the Criminal Code.
(3) An offence against subsection (1) or (2) 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.
(4) Subsections (1) and (2) do not apply to an action if:
(a) an approval of the taking of the action by the person is in operation under Part 9 for the purposes of this section; or
(b) Part 4 lets the person take the action without an approval under Part 9 for the purposes of this section; or
(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 this subsection. See subsection 13.3(3) of the Criminal Code.
20B Certain actions relating to listed migratory species not prohibited
A subsection of section 20 or 20A does not apply to an action, to the extent that it is covered by subsection 517A(7).
Subdivision E—Protection of the environment from nuclear actions
21 Requirement for approval of nuclear actions
(1) A constitutional corporation, the Commonwealth or Commonwealth agency must not take a nuclear action that has, will have or is likely to have a significant impact on the environment.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
(2) A person must not, for the purposes of trade or commerce:
(a) between Australia and another country; or
(b) between 2 States; or
(c) between a State and a Territory; or
(d) between 2 Territories;
take a nuclear action that has, will have or is likely to have a significant impact on the environment.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
(3) A person must not take in a Territory a nuclear action that has, will have or is likely to have a significant impact on the environment.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
(4) Subsections (1), (2) and (3) do not apply to an action if:
(a) an approval of the taking of the action by the constitutional corporation, Commonwealth agency, Commonwealth or person is in operation under Part 9 for the purposes of this section; or
(b) Part 4 lets the constitutional corporation, Commonwealth agency, Commonwealth 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).
22 What is a nuclear action?
(1) In this Act:
nuclear action means any of the following:
(a) establishing or significantly modifying a nuclear installation;
(b) transporting spent nuclear fuel or radioactive waste products arising from reprocessing;
(c) establishing or significantly modifying a facility for storing radioactive waste products arising from reprocessing;
(d) mining or milling uranium ore;
(e) establishing or significantly modifying a large‑scale disposal facility for radioactive waste;
(f) de‑commissioning or rehabilitating any facility or area in which an activity described in paragraph (a), (b), (c), (d) or (e) has been undertaken;
(g) any other action prescribed by the regulations.
nuclear installation means any of the following:
(a) a nuclear reactor for research or production of nuclear materials for industrial or medical use (including critical and sub‑critical assemblies);
(b) a plant for preparing or storing fuel for use in a nuclear reactor as described in paragraph (a);
(c) a nuclear waste storage or disposal facility with an activity that is greater than the activity level prescribed by regulations made for the purposes of this section;
(d) a facility for production of radioisotopes with an activity that is greater than the activity level prescribed by regulations made for the purposes of this section.
Note: A nuclear waste storage or disposal facility could include a facility for storing spent nuclear fuel, depending on the regulations.
radioactive waste means radioactive material for which no further use is foreseen.
reprocessing means a process or operation to extract radioactive isotopes from spent nuclear fuel for further use.
spent nuclear fuel means nuclear fuel that has been irradiated in a nuclear reactor core and permanently removed from the core.
(2) In this Act:
large‑scale disposal facility for radioactive waste means, if regulations are made for the purposes of this definition, a facility prescribed by the regulations.
22A Offences relating to nuclear actions
(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 a nuclear action; and
(b) the nuclear action results or will result in a significant impact on the environment.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2) 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 a nuclear action; and
(b) the nuclear action is likely to have a significant impact on the environment and the corporation or agency is reckless as to that fact.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(3) A person commits an offence if:
(a) the person takes a nuclear action; and
(b) the nuclear action is taken for the purposes of trade or commerce:
(i) between Australia and another country; or
(ii) between 2 States; or
(iii) between a State and a Territory; or
(iv) between 2 Territories; and
(c) the nuclear action results or will result in a significant impact on the environment.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(4) A person commits an offence if:
(a) the person takes a nuclear action; and
(b) the nuclear action is taken for the purposes of trade or commerce:
(i) between Australia and another country; or
(ii) between 2 States; or
(iii) between a State and a Territory; or
(iv) between 2 Territories; and
(c) the nuclear action is likely to have a significant impact on the environment and the person is reckless as to that fact.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(5) A person commits an offence if:
(a) the person takes a nuclear action; and
(b) the nuclear action is taken in a Territory; and
(c) the nuclear action results or will result in a significant impact on the environment.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(6) A person commits an offence if:
(a) the person takes a nuclear action; and
(b) the nuclear action is taken in a Territory; and
(c) the nuclear action is likely to have a significant impact on the environment and the person is reckless as to that fact.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(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.
(8) Subsections (1), (2), (3), (4), (5) and (6) do not apply to an action if:
(a) an approval of the taking of the action by the person is in operation under Part 9 for the purposes of this section; or
(b) Part 4 lets the person take the action without an approval under Part 9 for the purposes of this section; or
(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 this subsection. See subsection 13.3(3) of the Criminal Code.
Subdivision F—Marine environment
23 Requirement for approval of activities involving the marine environment
Actions in Commonwealth marine areas affecting the environment
(1) A person must not take in a Commonwealth marine area an action that has, will have or is likely to have a significant impact on the environment.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
Actions outside Commonwealth marine areas affecting those areas
(2) A person must not take outside a Commonwealth marine area but in the Australian jurisdiction an action that:
(a) has or will have a significant impact on the environment in a Commonwealth marine area; or
(b) is likely to have a significant impact on the environment in a Commonwealth marine area.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
Fishing in State or Territory waters managed by Commonwealth
(3) A person must not take in the coastal waters (as defined in the Fisheries Management Act 1991) of a State or the Northern Territory an action:
(a) that:
(i) is fishing (as defined in the Fisheries Management Act 1991); and
(ii) is included in the class of activities forming a fishery (as defined in that Act) that is managed under the law of the Commonwealth as a result of an agreement made under section 71 or 72 of that Act before the commencement of this section; and
(b) that:
(i) has or will have a significant impact on the environment in those coastal waters; or
(ii) is likely to have a significant impact on the environment in those coastal waters.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
Exceptions to prohibitions
(4) Subsection (1), (2) or (3) 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
(b) Part 4 lets the person take the action without an approval 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
(d) the person taking the action is the Commonwealth or a Commonwealth agency; 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.
Exception—fishing in Commonwealth waters managed by State
(5) Subsection (1) does not apply to an action if the action:
(a) is fishing (as defined in the Fisheries Management Act 1991); and
(b) is included in the class of activities forming a fishery (as defined in that Act) that is managed under the law of a State or the Northern Territory as a result of an agreement made under section 71 or 72 of that Act before the commencement of this section; and
(c) is permitted under a law of the State or Territory.
Exception—fishing outside Commonwealth marine areas
(6) Subsection (2) does not apply to an action that:
(a) is fishing (as defined in the Fisheries Management Act 1991); and
(b) is permitted under a law of a State or self‑governing Territory.
24 What is a Commonwealth marine area?
Each of the following is a Commonwealth marine area:
(a) any waters of the sea inside the seaward boundary of the exclusive economic zone, except:
(i) waters, rights in respect of which have been vested in a State by section 4 of the Coastal Waters (State Title) Act 1980 or in the Northern Territory by section 4 of the Coastal Waters (Northern Territory Title) Act 1980; and
(ii) waters within the limits of a State or the Northern Territory;
(b) the seabed under waters covered by paragraph (a);
(c) airspace over waters covered by paragraph (a);
(d) any waters over the continental shelf, except:
(i) waters, rights in respect of which have been vested in a State by section 4 of the Coastal Waters (State Title) Act 1980 or in the Northern Territory by section 4 of the Coastal Waters (Northern Territory Title) Act 1980; and
(ii) waters within the limits of a State or the Northern Territory; and
(iii) waters covered by paragraph (a);
(e) any seabed under waters covered by paragraph (d);
(f) any airspace over waters covered by paragraph (d);
(g) any other area of sea or seabed that is included in a Commonwealth reserve.
24A Offences relating to marine areas
Actions in Commonwealth marine areas affecting the environment
(1) A person commits an offence if:
(a) the person takes an action; and
(b) the action is taken in a Commonwealth marine area; and
(c) the action results or will result in a significant impact on the environment.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(1A) Strict liability applies to paragraph (1)(b).
Note: For strict liability, see section 6.1 of the Criminal Code.
Actions in Commonwealth marine areas likely to affect the environment
(2) A person commits an offence if:
(a) the person takes an action; and
(b) the action is taken in a Commonwealth marine area; and
(c) the action is likely to have a significant impact on the environment.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2A) Strict liability applies to paragraph (2)(b).
Note: For strict liability, see section 6.1 of the Criminal Code.
Actions outside Commonwealth marine areas affecting those areas
(3) A person commits an offence if:
(a) the person takes an action; and
(b) the action is taken outside a Commonwealth marine area but in the Australian jurisdiction; and
(c) the action results or will result in a significant impact on the environment in an area; and
(d) the area is a Commonwealth marine area.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(3A) Strict liability applies to paragraphs (3)(b) and (d).
Note: For strict liability, see section 6.1 of the Criminal Code.
Actions likely to affect environment in Commonwealth marine areas
(4) A person commits an offence if:
(a) the person takes an action; and
(b) the action is taken outside a Commonwealth marine area but in the Australian jurisdiction; and
(c) the action is likely to have a significant impact on the environment in an area; and
(d) the area is a Commonwealth marine area.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(4A) Strict liability applies to paragraphs (4)(b) and (d).
Note: For strict liability, see section 6.1 of the Criminal Code.
Fishing with impact in State or Territory waters managed by Commonwealth