(1) A person may, in accordance with the regulations, apply to the Minister for a permit to be issued under section 238.
(2) The application must be accompanied by the fee prescribed by the regulations (if any).
(3) As soon as practicable after receiving the application, the Minister must cause to be published on the internet:
(a) details of the application; and
(b) an invitation for anyone to give the Minister comments within 10 business days (measured in Canberra) on whether the permit should be issued.
Note: If the action is also the subject of a referral under Division 1 of Part 7 and the referral is made at the same time as the application, the application and invitation for comments that must be published under this subsection may be published together with the referral and invitation for comments that must be published under subsection 74(3).
238 Minister may issue permits
(1) Subject to subsections (3) to (4), the Minister may, on application by a person under section 237, issue a permit to the person.
(2) A permit authorises its holder to take an action specified in the permit without breaching sections 229, 229A, 229B, 229C, 229D and 230.
(3) The Minister must not issue the permit unless satisfied that:
(a) the specified action will contribute significantly to the conservation of cetaceans; or
(b) if the specified action will interfere with cetaceans, the interference is incidental to, and not the purpose of, the taking of the action and:
(i) the taking of the action will not adversely affect the conservation status of a species of cetacean or a population of that species; and
(ii) the taking of the action is not inconsistent with a recovery plan or wildlife conservation plan that is in force for a species of cetacean; and
(iii) the holder of the permit will take all reasonable steps to minimise the interference with cetaceans; or
(c) the specified action is whale watching (other than whale watching covered by paragraph 231(aa)) and:
(i) the whale watching is carried out in accordance with the regulations (if any) made for the purposes of this section; or
(ii) the whale watching will not adversely affect the conservation status of a species of cetacean or a population of that species, and is not inconsistent with a recovery plan or wildlife conservation plan that is in force for a species of cetacean.
(3AA) If the specified action would or could relate to a species of cetacean that is a listed threatened species, the Minister must, in deciding whether to issue the permit, have regard to any approved conservation advice for the species of cetacean.
(3A) In making a decision on the application, the Minister must consider the comments (if any) received:
(a) in response to the invitation under subsection 237(3) for anyone to give the Minister comments on whether the permit should be issued; and
(b) within the period specified in the invitation.
(4) The Minister must not grant a permit authorising its holder to kill a cetacean or to take a cetacean for live display.
(5) In this Act:
whale watching means any activity conducted for the purpose of observing a cetacean, including but not limited to being in the water for the purposes of observing or swimming with a cetacean, or otherwise interacting with a cetacean.
239 Conditions of permits
(1) A permit is subject to such conditions as are specified in the permit or as are imposed under subsection (2).
(2) The Minister may, in accordance with the regulations:
(a) vary or revoke a condition of a permit; or
(b) impose further conditions of a permit.
240 Contravening conditions of a permit
The holder of a permit commits an offence punishable upon conviction by a fine not exceeding 300 penalty units if:
(a) he or she does, or fails to do, an act or thing; and
(b) doing, or failing to do, the act or thing results in a contravention of a condition of the permit.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
241 Authorities under permits
(1) Subject to subsection (2), the holder of a permit may give to a person written authority to take for or on behalf of the holder any action authorised by the permit. The authority may be given generally or as otherwise provided by the instrument of authority.
(2) The holder of a permit must not give an authority unless:
(a) the permit contains a condition permitting the holder to do so; and
(b) the authority is given in accordance with any requirements set out in the condition.
(3) A permit is, for the purposes of this Act, taken to authorise the taking of a particular action by a person if the taking of that action by the person is authorised by an authority given by the holder of the permit.
(4) The giving of an authority does not prevent the taking of any action by the holder of the permit.
(5) Except as provided in this section, a permit does not authorise the taking of any action by a person for or on behalf of the holder of the permit.
(6) A person who gives an authority must give to the Minister written notice of it within 14 days after giving the authority.
242 Transfer of permits
On the application, in accordance with the regulations, of the holder of a permit, the Minister may, in accordance with the regulations, transfer the permit to another person.
243 Suspension or cancellation of permits
The Minister may, in accordance with the regulations:
(a) suspend a permit for a specified period; or
(b) cancel a permit.
243A Review of decisions about permits
(1) Subject to subsection (2), an application may be made to the Administrative Review Tribunal for review of a decision:
(a) to issue or refuse a permit; or
(b) to specify, vary or revoke a condition of a permit; or
(c) to impose a further condition of a permit; or
(d) to transfer or refuse to transfer a permit; or
(e) to suspend or cancel a permit.
(2) Subsection (1) does not apply to a decision made personally by the Minister (but the subsection does apply to a decision made by a delegate of the Minister).
244 Fees
Such fees as are prescribed (if any) are payable in respect of the following:
(a) the grant or the transfer of a permit;
(b) the variation or revocation of a condition of a permit;
(c) the imposition of a further condition of a permit.
Subdivision G—Miscellaneous
245 Minister may accredit plans, regimes or policies
(1) The Minister may, by instrument in writing, accredit for the purposes of this Division:
(a) a plan of management within the meaning of section 17 of the Fisheries Management Act 1991; or
(b) a plan of management within the meaning of section 15A of the Torres Strait Fisheries Act 1984; or
(c) a plan of management, or a policy, regime or any other arrangement, for a fishery, that is:
(i) made by a State or self‑governing Territory; and
(ii) in force under a law of the State or self‑governing Territory; or
(d) a regime determined in writing by the Australian Fisheries Management Authority under the Fisheries Administration Act 1991 for managing a fishery for which a plan of management (within the meaning of section 17 of the Fisheries Management Act 1991) is not in force; or
(e) a policy formulated by the Protected Zone Joint Authority under paragraph 34(b) of the Torres Strait Fisheries Act 1984 for managing a fishery for which a plan of management (within the meaning of section 15A of the Torres Strait Fisheries Act 1984) is not in force;
if the Minister is satisfied that:
(f) the plan, regime or policy requires persons engaged in fishing under the plan, regime or policy to take all reasonable steps to ensure that cetaceans are not killed or injured as a result of the fishing; and
(g) the fishery to which the plan, regime or policy relates does not, or is not likely to, adversely affect the conservation status of a species of cetacean or a population of that species.
Note 1: The Minister may accredit a plan, regime or policy subject to conditions (see section 303AA).
Note 2: If a plan, regime or policy that is accredited under this section is, or is proposed to be, amended, the Minister may determine under section 303AB that the plan, regime or policy as amended is, for the purposes of this Act, taken to be accredited under subsection (1) of this section.
(2) An instrument under subsection (1) is not a legislative instrument.
246 Vesting of whales in Commonwealth
(1) If:
(a) a cetacean is:
(i) in the Australian Whale Sanctuary, other than 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) in waters beyond the outer limits of the Australian Whale Sanctuary; and
(a) a person kills, injures or takes the cetacean, whether or not in contravention of this Division;
the cetacean vests, by force of this section, in the Commonwealth.
(2) The Commonwealth is not liable in any action, suit or proceedings in respect of any matter relating to a cetacean at any time before the taking of possession of the cetacean by the Commonwealth.
247 Regulations
The regulations may:
(a) provide for the transportation, treatment and disposal of cetaceans killed, injured or taken in contravention of this Division; and
(b) provide for the methods or equipment by which cetaceans may be killed, taken or interfered with otherwise than in contravention of this Division; and
(c) provide for the gathering and dissemination of information relating to cetaceans; and
(d) provide for the protection and conservation of cetaceans; and
(e) provide for any matter incidental to or connected with any of the above paragraphs.
Division 4—Listed marine species
Subdivision A—Listing
248 Listed marine species
(1) The Minister must, by legislative instrument, establish a list of marine species for the purposes of this Part.
(2) The list, as first established, must contain only the following:
(a) all species in the Family Hydrophiidae (sea‑snakes);
(b) all species in the Family Laticaudidae (sea‑snakes);
(c) all species in the Family Otariidae (eared seals);
(d) all species in the Family Phocidae (“true” seals);
(e) all species in the Genus Crocodylus (crocodiles);
(f) all species in the Genus Dugong (dugong);
(g) all species in the Family Cheloniidae (marine turtles);
(h) the species Dermochelys coriacea (leatherback turtles);
(i) all species in the Family Syngnathidae (seahorses, sea‑dragons and pipefish);
(j) all species in the Family Solenostomidae (ghost pipefish);
(k) all species in the Class Aves (birds) that occur naturally in Commonwealth marine areas.
(3) The Minister must establish the list within 30 days after the commencement of this Act.
(4) The Minister must cause a notice summarising the information contained in the instrument to be published in accordance with the regulations (if any).
249 Minister may amend list
(1) Subject to this Subdivision, the Minister may, by legislative instrument, amend the list by:
(a) including or deleting items from the list; or
(b) correcting an inaccuracy or updating the name of a marine species.
(2) Amendments of a list that delete items from the list take effect on the first day the amendments are no longer liable to be disallowed, or to be taken to have been disallowed, under section 42 of the Legislation Act 2003.
(3) Section 42 (disallowance) of the Legislation Act 2003 does not apply to a legislative instrument to which paragraph (1)(b) of this section applies.
(4) When an instrument is laid before each House of the Parliament in accordance with Part 2 of Chapter 3 of the Legislation Act 2003, the Minister must cause a statement to be laid before each House with the instrument explaining:
(a) in the case of an item that has been included in the list by the instrument—why the item was so included; or
(b) in the case of an item that has been deleted from the list by the instrument—why the item was so deleted.
(5) The Minister must cause a notice summarising the information contained in an amendment under subsection (1) to be published in accordance with the regulations (if any).
250 Adding marine species to the list
(1) The Minister must not add a marine species to the list unless:
(a) the Minister is satisfied that it is necessary to include the species in the list in order to ensure the long‑term conservation of the species; and
(b) the species occurs naturally in a Commonwealth marine area.
(2) Before adding a marine species to the list, the Minister must consult with each Minister who has an interest in a Commonwealth marine area where the species occurs naturally.
251 Minister must consider advice from Scientific Committee
(1) In deciding whether to add an item to, or delete an item from, the list, the Minister must, in accordance with the regulations (if any), obtain and consider advice from the Scientific Committee on the scientific aspects of the addition or deletion of the item concerned.
(2) The Minister must:
(a) decide whether to add an item to, or delete an item from, the list; and
(b) if the Minister decides to add or delete the item—amend the list accordingly under subsection 249(1);
within 90 days after receiving the Scientific Committee’s advice on the addition or deletion of the item.
(3) A member of the Scientific Committee has a duty not to disclose to any other person the advice, or any information relating to the advice, before the end of that period of 90 days unless the disclosure:
(a) is for the official purposes of the Scientific Committee; or
(b) relates to an addition or deletion included in an amendment of the list that has already been registered as a legislative instrument under the Legislation Act 2003.
Note: Amendments of the list to add or delete an item are legislative instruments (see section 249).
252 Minister to make lists available to the public
The Minister must, in accordance with the regulations (if any), make copies of up‑to‑date lists available for purchase, for a reasonable price, at a prescribed place in each State and self‑governing Territory.
Subdivision B—Permit system
253 Subdivision does not apply to members of certain species and cetaceans
This Subdivision does not apply to a member of a listed marine species that is a member of a listed migratory species, a member of a listed threatened species or a cetacean.
254 Killing or injuring member of listed marine species
(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 member of a species; and
(c) the member is a member of a listed marine species; and
(d) the member is in or on a Commonwealth area.
Penalty:
(a) in the case of an aggravated offence—imprisonment for 2 years or 3,000 penalty units, or both;
(b) in any other case—imprisonment for 2 years or 1,000 penalty units, or both.
Note 1: For the extra element of an aggravated offence, see section 254F.
Note 2: This section does not apply in the circumstances described in section 255. 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)(c) and (d).
Note: For strict liability, see section 6.1 of the Criminal Code.
254A Strict liability for killing or injuring member of listed marine species
(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 member of a marine species; and
(c) the member is a member of a listed marine species; and
(d) the member is in or on a Commonwealth area.
Penalty:
(a) in the case of an aggravated offence—1,500 penalty units;
(b) in any other case—500 penalty units.
Note 1: For the extra element of an aggravated offence, see section 254F.
Note 2: This section does not apply in the circumstances described in section 255. 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), (c) and (d).
Note: For strict liability, see section 6.1 of the Criminal Code.
254B Taking etc. member of listed marine species
(1) A person commits an offence if:
(a) the person takes, trades, keeps or moves a member of a species; and
(b) the member is a member of a listed marine species; and
(c) the member is in or on a Commonwealth area.
Penalty:
(a) in the case of an aggravated offence—imprisonment for 2 years or 3,000 penalty units, or both;
(b) in any other case—imprisonment for 2 years or 1,000 penalty units, or both.
Note 1: For the extra element of an aggravated offence, see section 254F.
Note 2: This section does not apply in the circumstances described in section 255. 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)(b) and (c).
Note: For strict liability, see section 6.1 of the Criminal Code.
254C Strict liability for taking etc. member of listed marine species
(1) A person commits an offence if:
(a) the person takes, trades, keeps or moves a member of a marine species; and
(b) the member is a member of a listed marine species; and
(c) the member is in or on a Commonwealth area.
Penalty:
(a) in the case of an aggravated offence—1,500 penalty units;
(b) in any other case—500 penalty units.
Note 1: For the extra element of an aggravated offence, see section 254F.
Note 2: This section does not apply in the circumstances described in section 255. 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.
254D Trading etc. member of listed marine species taken in Commonwealth area