(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) 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.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(5A) Strict liability applies to paragraph (5)(b).
Note: For strict liability, see section 6.1 of the Criminal Code.
Fishing with likely impact in State or Territory waters managed by Commonwealth
(6) A person commits an offence if:
(a) the person takes an action 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) 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.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(6A) Strict liability applies to paragraph (6)(b).
Note: For strict liability, see section 6.1 of the Criminal Code.
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
(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 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:
(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.
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:
(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.
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.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
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.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
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
(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.
24C Offences relating to Great Barrier Reef Marine Park
Actions in Great Barrier Reef Marine Park affecting the environment
(1) A person commits an offence if:
(a) the person takes an action; and
(b) the action is taken in the Great Barrier Reef Marine Park; and
(c) the action results or will result in a significant impact on the environment.
Penalty: Imprisonment for 7 years or 420 penalty units, or both.
(2) Strict liability applies to paragraph (1)(b).
Note: For strict liability, see section 6.1 of the Criminal Code.
Actions in Great Barrier Reef Marine Park likely to affect the environment
(3) A person commits an offence if:
(a) the person takes an action; and
(b) the action is taken in the Great Barrier Reef Marine Park; and
(c) the action is likely to have a significant impact on the environment.
Penalty: Imprisonment for 7 years or 420 penalty units, or both.
(4) Strict liability applies to paragraph (3)(b).
Note: For strict liability, see section 6.1 of the Criminal Code.
Actions outside Great Barrier Reef Marine Park affecting environment in the Marine Park
(5) A person commits an offence if:
(a) the person takes an action; and
(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.
Penalty: Imprisonment for 7 years or 420 penalty units, or both.
(6) Strict liability applies to paragraphs (5)(b) and (d).
Note: For strict liability, see section 6.1 of the Criminal Code.
Actions outside Great Barrier Reef Marine Park likely to affect environment in the Marine Park
(7) A person commits an offence if:
(a) the person takes an action; and
(b) the action is taken outside the Great Barrier Reef Marine Park 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 the Great Barrier Reef Marine Park.
Penalty: Imprisonment for 7 years or 420 penalty units, or both.
(8) Strict liability applies to paragraphs (7)(b) and (d).
Note: For strict liability, see section 6.1 of the Criminal Code.
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
(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: 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:
(a) the action involves:
(i) unconventional gas development; or
(ii) large coal mining development; and
(b) the action:
(i) has or will have a significant impact on a water resource; or
(ii) is likely to have a significant impact on a water resource.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
(2) A person must not take an action if:
(a) the action involves:
(i) unconventional gas development; or
(ii) large coal mining development; and
(b) the 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 Territory; or
(iv) between 2 Territories; and
(c) the action:
(i) has or will have a significant impact on a water resource; or
(ii) is likely to have a significant impact on a water resource.
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 an action if:
(a) the action involves:
(i) unconventional gas development; or
(ii) large coal mining development; and
(b) the action is taken in:
(i) a Commonwealth area; or
(ii) a Territory; and
(c) the action:
(i) has or will have a significant impact on a water resource; or
(ii) is likely to have a significant impact on a water resource.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
(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:
(i) unconventional gas development; or
(ii) large coal mining development; and
(b) the action:
(i) results or will result in a significant impact on a water resource; or
(ii) is likely to have a significant impact on a water resource.
Penalty: Imprisonment for 7 years or 420 penalty units, or both.
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.
(2) A person commits an offence if:
(a) the person takes an action involving:
(i) unconventional gas development; or
(ii) large coal mining development; and
(b) the 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 Territory; or
(iv) between 2 Territories; and
(c) the action:
(i) has or will have a significant impact on a water resource; or
(ii) is likely to have a significant impact on a water resource.
Penalty: Imprisonment for 7 years or 420 penalty units, or both.
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.
(3) A person commits an offence if:
(a) the person takes an action involving:
(i) unconventional gas development; or
(ii) large coal mining development; and
(b) the action is taken in:
(i) a Commonwealth area; or
(ii) a Territory; and
(c) the action:
(i) has or will have a significant impact on a water resource; or
(ii) is likely to have a significant impact on a water resource.
Penalty: Imprisonment for 7 years or 420 penalty units, or both.
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.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
(2) Subsection (1) 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
(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