(c) so much of the coastal waters of a State or the Northern Territory as are prescribed waters.
Note: This subsection is subject to subsection 5(3).
226 Prescribed waters
(1) The regulations may declare the whole, or a specified part, of the coastal waters of a State or the Northern Territory to be prescribed waters.
(2) Before the Governor‑General makes a regulation under subsection (1), the Minister must obtain the agreement of the relevant Minister of the State or the Northern Territory.
227 Coastal waters
(1) Section 15B of the Acts Interpretation Act 1901 does not apply in relation to this Division.
(2) The coastal waters of a State or the Northern Territory are:
(a) the part or parts of the territorial sea that are:
(i) within 3 nautical miles of the baseline of the territorial sea; and
(ii) adjacent to that State or Territory; and
(b) any marine or tidal waters that are inside that baseline and are adjacent to that State or Territory but are not within the limits of a State or that Territory.
Note: Generally the baseline is the lowest astronomical tide along the coast but it also includes lines enclosing bays and indentations that are not bays and straight baselines that depart from the coast.
(3) Any part of the territorial sea that is adjacent to the Jervis Bay Territory is, for the purposes of subsection (2), taken to be adjacent to New South Wales.
228 Minister may make declaration for coastal waters
(1) If the Minister is satisfied that a law of a State or the Northern Territory adequately protects cetaceans in the coastal waters, or a part of the coastal waters, of the State or Territory, the Minister may make a declaration accordingly, whether or not those coastal waters or that part are prescribed waters.
(2) A declaration must be in writing.
228A Important cetacean habitat areas
(1) The Minister may, by legislative instrument, declare a specified area in the Australian Whale Sanctuary to be an important cetacean habitat area.
(2) The regulations may specify criteria to be applied by the Minister in determining whether to declare an area to be an important cetacean habitat area. If regulations are made for the purposes of this section, the Minister may declare an area to be an important cetacean habitat area only if he or she is satisfied that the area meets the criteria prescribed by the regulations.
Subdivision C—Offences
229 Killing or injuring a cetacean
(1) A person commits an offence if:
(a) the person takes an action; and
(b) the action results in the death or injury of a cetacean; and
(c) the cetacean is in:
(i) the Australian Whale Sanctuary (but not the coastal waters, or a part of the coastal waters, of a State or the Northern Territory for which a declaration under section 228 is in force); or
(ii) waters beyond the outer limits of the Australian Whale Sanctuary.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances described in section 231. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.
(1A) Strict liability applies to paragraph (1)(c).
Note: For strict liability, see section 6.1 of the Criminal Code.
(2) The offence is punishable on conviction by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty units, or both.
229A Strict liability for killing or injuring a cetacean
(1) A person commits an offence if:
(a) the person takes an action; and
(b) the action results in the death or injury of a cetacean; and
(c) the cetacean is in:
(i) the Australian Whale Sanctuary (but not the coastal waters, or a part of the coastal waters, of a State or the Northern Territory for which a declaration under section 228 is in force); or
(ii) waters beyond the outer limits of the Australian Whale Sanctuary.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances described in section 231. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.
(2) Strict liability applies to paragraphs (1)(a), (b) and (c).
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction by a fine not exceeding 500 penalty units.
229B Intentionally taking etc. a cetacean
(1) A person commits an offence if:
(a) the person takes, trades, keeps, moves or interferes with a cetacean; and
(b) the cetacean is in:
(i) the Australian Whale Sanctuary (but not the coastal waters, or a part of the coastal waters, of a State or the Northern Territory for which a declaration under section 228 is in force); or
(ii) waters beyond the outer limits of the Australian Whale Sanctuary.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances described in section 231. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.
(2) Strict liability applies to paragraph (1)(b).
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty units, or both.
(4) In this Act:
interfere with a cetacean includes harass, chase, herd, tag, mark or brand the cetacean.
trade a cetacean:
(a) includes:
(i) buy the cetacean, agree to receive it under an agreement to buy, agree to accept it under such an agreement or acquire it by barter; or
(ii) sell the cetacean, offer it for sale, agree to sell it, have it in possession for the purpose of sale, deliver it for the purpose of sale, receive it for the purpose of sale or dispose of it by barter for the purpose of gain or advancement; or
(iii) cause or allow any of the acts referred to in subparagraph (i) or (ii) to be done; but
(b) does not include export the cetacean from Australia or an external Territory or import it into Australia or an external Territory.
Note: For provisions relating to export or import, see Part 13A.
229C Strict liability for taking etc. a cetacean
(1) A person commits an offence if:
(a) the person takes, trades, keeps, moves or interferes with a cetacean; and
(b) the cetacean is in:
(i) the Australian Whale Sanctuary (but not the coastal waters, or a part of the coastal waters, of a State or the Northern Territory for which a declaration under section 228 is in force); or
(ii) waters beyond the outer limits of the Australian Whale Sanctuary.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances described in section 231. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.
(2) Strict liability applies to paragraphs (1)(a) and (b).
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction by a fine not exceeding 500 penalty units.
229D Treating cetaceans
Treating unlawfully killed or taken cetaceans
(1) A person commits an offence if:
(a) the person treats a cetacean; and
(b) the cetacean has been:
(i) killed in contravention of section 229 or 229A; or
(ii) taken in contravention of section 229B or 229C.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances described in section 231. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.
(2) An offence against subsection (1) is punishable on conviction by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty units, or both.
Treating unlawfully imported cetaceans
(2A) A person commits an offence if:
(a) the person treats a cetacean; and
(b) the cetacean has been unlawfully imported.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: 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.
(2B) An offence against subsection (2A) is punishable on conviction by imprisonment for not more than 5 years or a fine not exceeding 1,000 penalty units, or both.
(3) In this Act:
treat a cetacean means divide or cut up, or extract any product from, the cetacean.
230 Possession of cetaceans
Possession of unlawfully killed cetaceans
(1) A person commits an offence if:
(a) the person has in his or her possession:
(i) a cetacean; or
(ii) a part of a cetacean; or
(iii) a product derived from a cetacean; and
(b) the cetacean has been:
(i) killed in contravention of section 229 or 229A; or
(ii) taken in contravention of section 229B or 229C.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2) An offence against subsection (1) is punishable on conviction by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty units, or both.
Possession of unlawfully imported cetaceans
(3) A person commits an offence if:
(a) the person has in his or her possession:
(i) a cetacean; or
(ii) a part of a cetacean; or
(iii) a product derived from a cetacean; and
(b) the cetacean, part or product, as the case may be, has been unlawfully imported.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: 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.
(4) An offence against subsection (3) is punishable on conviction by imprisonment for not more than 5 years or a fine not exceeding 1,000 penalty units, or both.
231 Certain actions are not offences
Sections 229, 229A, 229B, 229C, 229D and 230 do not apply to:
(a) an action authorised by a permit that was issued under section 238 and is in force; or
(aa) an action that is whale watching carried out in accordance with regulations referred to in paragraph 238(3)(c), but only if:
(i) the whale watching is not carried out for a commercial purpose; or
(ii) the whale watching is carried out in an area that is not an important cetacean habitat area; or
(b) an action provided for by, and taken in accordance with, a recovery plan, or a wildlife conservation plan, made or adopted under Division 5 and in force; or
(ba) an action that is covered by an approval in operation under Part 9 for the purposes of subsection 23(1) or (2), 24A(1), (2), (3) or (4), 24B(1) or (2) or 24C(1), (3), (5) or (7); or
(bb) an action that:
(i) is one of a class of actions declared by the Minister under section 33 not to require an approval under Part 9 for the purposes of subsection 23(1) or (2), 24A(1), (2), (3) or (4), 24B(1) or (2) or 24C(1), (3), (5) or (7); and
(ii) is taken in accordance with a management arrangement or an authorisation process that is an accredited management arrangement or an accredited authorisation process for the purposes of the declaration; or
(bc) an action that:
(i) is an action, or one of a class of actions, declared by the Minister under section 37A not to require an approval under Part 9 for the purposes of subsection 23(1) or (2), 24A(1), (2), (3) or (4), 24B(1) or (2) or 24C(1), (3), (5) or (7); and
(ii) is taken in accordance with the bioregional plan to which the declaration relates; or
(c) an action that is taken in a humane manner and is reasonably necessary to relieve or prevent suffering of a cetacean; or
(d) an action that is reasonably necessary to prevent a risk to human health; or
(e) an action by a Commonwealth agency, or an agency of a State or of a self‑governing Territory, that is reasonably necessary for the purposes of law enforcement; or
(f) an action that is reasonably necessary to deal with an emergency involving a serious threat to human life or property; or
(g) an action that occurs as a result of an unavoidable accident, other than an accident caused by negligent or reckless behaviour; or
(ga) an action that is taken in accordance with a permit issued under regulations made under the Great Barrier Reef Marine Park Act 1975 and in force; or
(h) an action provided for by, and taken in accordance with, a plan or regime that is accredited under section 245; or
(i) an action provided for by, and done in accordance with, a conservation agreement in force under Part 14; or
(j) an action taken in a Commonwealth reserve in accordance with a management plan made under Part 15 and in operation for the reserve; or
(k) an action that consists of the transit of a cetacean through a Commonwealth area in circumstances where the cetacean was:
(i) obtained from an area that is not a Commonwealth area; or
(ii) taken from a Commonwealth area in circumstances covered by paragraph (a), (ba), (bb), (bc), (ga), (h), (i) or (j).
Note: A defendant bears an evidential burden in relation to the matters in this section. See subsection 13.3(3) of the Criminal Code.
232 Action to be taken on killing etc. cetaceans
(1) This section applies to an action taken by a person if all of the following conditions are met:
(a) the person’s action:
(i) results in the injury or death of a cetacean, or consists of taking a cetacean, in the Australian Whale Sanctuary (but not the coastal waters, or a part of the coastal waters of a State or the Northern Territory for which a declaration under section 228 is in force) or in waters beyond the outer limits of the Australian Whale Sanctuary; or
(ii) consists of treating a cetacean killed, injured or taken in contravention of section 229, 229A, 229B or 229C;
(b) the person’s action does not constitute an offence against section 229, 229A, 229B, 229C or 229D;
(c) the person’s action is not an action that the person was authorised by a permit to take.
Note 1: Section 231 sets out most of the circumstances in which an action described in paragraph (1)(a) will not be an offence against section 229, 229A, 229B, 229C or 229D.
Note 2: A person is authorised by a permit to take an action if the person is the holder of the permit or the person is given an authority under section 241 by the holder of the permit to take the action.
Note 3: The conditions of a permit may require the holder of the permit to give certain notices.
(2) Within 7 days of becoming aware of the action, the person must notify the Secretary in writing, by telephone or by use of any other electronic equipment:
(a) that the action was taken; and
(b) of other particulars (if any) about the action that are prescribed by the regulations.
(3) An example of the particulars about the action that the regulations may prescribe is the time and place of taking the action. This does not limit the particulars the regulations may prescribe.
(4) Subsection (2) does not apply if:
(a) the person, or any other person or body, is required by or under a law of the Commonwealth to notify the Secretary of the action; or
(b) the action is in a class of actions:
(i) that are specified in an agreement or arrangement between the Secretary and a Commonwealth agency, or an agency of a State or self‑governing Territory; and
(ii) that the agreement or arrangement provides are to be notified to the Secretary by the agency.
Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.
(5) A person commits an offence punishable on conviction by a fine not exceeding 100 penalty units if the person:
(a) fails to do an act; and
(b) the failing to do the act results in a contravention of subsection (2).
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Subdivision E—Miscellaneous offences
236 Offences relating to foreign whaling vessels
(1) The master of a foreign whaling vessel commits an offence if the vessel is brought into a port in Australia or an external Territory and the master has not obtained the written permission of the Minister for the vessel to be brought into the port.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) An offence against subsection (1) is punishable on conviction by a fine not exceeding 500 penalty units.
(4) Subsection (1) does not apply if:
(a) the vessel is brought into the port in accordance with a prescribed agreement between Australia and any other country or countries; or
(b) the vessel is brought into the port under the direction of a person exercising powers under a law of the Commonwealth or of a State; or
(c) an unforeseen emergency renders it necessary to bring the vessel into the port in order to secure the safety of the vessel or human life.
Note: A defendant bears an evidential burden in relation to the matters in subsection (4). See subsection 13.3(3) of the Criminal Code.
(5) In this Act:
foreign whaling vessel means a vessel, other than an Australian vessel, designed, equipped or used for:
(a) killing, taking, treating or carrying cetaceans; or
(b) supporting the operations of a vessel or vessels designed, equipped or used for killing, taking, treating or carrying cetaceans.
master, in relation to a foreign whaling vessel, means the person (other than a ship’s pilot) in charge or command of the vessel.