(a) the person 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 has been taken 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.
254E Strict liability for trading etc. member of listed marine species taken in Commonwealth area
(1) A person commits an offence if:
(a) the person 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 has been taken 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.
254F Aggravated offence—member of listed marine species that is a dugong or turtle
(1) For the purposes of this Subdivision, an offence against section 254, 254A, 254B, 254C, 254D or 254E (the underlying offence) is an aggravated offence if the member to which the underlying offence relates is a member of a listed marine species mentioned in paragraph 248(2)(f), (g) or (h).
Note: Dugong, marine turtles and leatherback turtles are the listed marine species mentioned in paragraphs 248(2)(f), (g) and (h).
(2) If the prosecution intends to prove an aggravated offence, the charge must allege the relevant aggravated offence.
(3) Strict liability applies to the physical element of circumstance, that the member is a listed marine species mentioned in paragraph 248(2)(f), (g) or (h).
Note: For strict liability, see section 6.1 of the Criminal Code.
255 Certain actions are not offences
Sections 254, 254A, 254B, 254C, 254D and 254E do not apply to:
(a) an action authorised by a permit that was issued under section 258 and is in force; or
(b) an action provided for by, and taken in accordance with, a wildlife conservation plan made under Division 5 and in force; or
(c) 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), 26(1) or (2) or 27A(1), (2), (3) or (4); or
(d) 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), 26(1) or (2) or 27A(1), (2), (3) or (4); 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
(da) 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), 26(1) or (2) or 27A(1), (2), (3) or (4); and
(ii) is taken in accordance with the bioregional plan to which the declaration relates; or
(db) in the case of sections 254B, 254C, 254D and 254E—an action that is trading, keeping or moving a member of a listed marine species, if:
(i) when the member of the species was taken, the species was not a listed marine species; and
(ii) the trading, keeping or moving of the member of the species occurs during the period of 6 months that started when the species became a listed marine species; or
(e) an action that is taken in a humane manner and is reasonably necessary to relieve or prevent suffering by an animal; or
(f) an action that is reasonably necessary to prevent a risk to human health; or
(g) 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
(h) an action that is reasonably necessary to deal with an emergency involving a serious threat to human life or property; or
(i) an action that occurs as a result of an unavoidable accident, other than an accident caused by negligent or reckless behaviour; or
(j) an action taken in accordance with a permit issued under regulations made under the Great Barrier Reef Marine Park Act 1975 and in force; or
(k) an action provided for by, and taken in accordance with, a plan or regime that is accredited under section 265; or
(l) an action, to the extent that it is covered by subsection 517A(7); or
(m) an action provided for by, and done in accordance with, a conservation agreement in force under Part 14; or
(n) an action taken in a Commonwealth reserve in accordance with a management plan made under Part 15 and in operation for the reserve; or
(o) an action provided for by, and taken in accordance with, a traditional use of marine resources agreement that:
(i) was made and accredited in accordance with regulations made under the Great Barrier Reef Marine Park Act 1975; and
(ii) is in force; or
(p) an action that is taken in accordance with a permit that:
(i) was issued under the Antarctic Treaty (Environment Protection) Act 1980 or under regulations made under that Act; and
(ii) is in force; or
(q) an action that consists of the transit of a member through a Commonwealth area in circumstances where the member 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), (c), (d), (da), (db), (j), (k), (l), (m), (n), (o) or (p).
Note: A defendant bears an evidential burden in relation to the matters in this section. See subsection 13.3(3) of the Criminal Code.
256 Failing to notify taking etc. of listed marine wildlife
(1) This section applies to an action taken by a person if all of the following conditions are met:
(a) the person’s action either:
(i) results in the death or injury of a member of a listed marine species that is in or on a Commonwealth area; or
(ii) consists of, or involves, trading, taking, keeping or moving a member of a listed marine species that is in or on a Commonwealth area;
(b) the person’s action does not constitute an offence against section 254, 254A, 254B, 254C, 254D or 254E, otherwise than because of paragraph 255(db);
(c) the person’s action is not an action that the person was authorised by a permit to take.
Note 1: Section 255 sets out most of the circumstances in which an action described in paragraph (1)(a) will not be an offence against section 254, 254A, 254B, 254C, 254D or 254E.
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 261 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 is 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 is 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 a 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.
257 Application for permits
(1) A person may, in accordance with the regulations, apply to the Minister for a permit to be issued under section 258.
(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).
258 Minister may issue permits
(1) Subject to subsection (3), the Minister may, on application by a person under section 257, issue a permit to the person.
(2) A permit authorises its holder to take the actions specified in the permit without breaching section 254, 254A, 254B, 254C, 254D or 254E.
(3) The Minister must not issue the permit unless satisfied that:
(a) the specified action will significantly contribute to the conservation of the listed marine species concerned or other listed marine species; or
(b) the impact of the specified action on a member of the listed marine species concerned 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 that species or a population of that species; and
(ii) the taking of the action is not inconsistent with a wildlife conservation plan for that species that is in force; and
(iii) the holder of the permit will take all reasonable steps to minimise the impact of the action on that species; or
(c) the specified action is of particular significance to indigenous tradition and will not adversely affect the conservation status of the listed marine species concerned; or
(d) the specified action is necessary in order to control pathogens and is conducted in a way that will, so far as is practicable, keep to a minimum any impact on the listed marine species concerned.
(4) In making a decision on the application, the Minister must consider the comments (if any) received:
(a) in response to the invitation under subsection 257(3) for anyone to give the Minister comments on whether the permit should be issued; and
(b) within the period specified in the invitation.
259 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.
260 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.
261 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.
262 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.
263 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.
263A 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).
264 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 C—Miscellaneous
265 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 members of listed marine species 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 listed marine species 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.
266 Regulations
The regulations may:
(a) provide for the transportation, treatment and disposal of members of listed marine species killed, injured or taken in contravention of this Division; and
(b) provide for the methods or equipment by which members of listed marine species may be killed or taken otherwise than in contravention of this Division; and
(c) provide for the gathering and dissemination of information relating to listed marine species; and
(d) provide for the protection and conservation of listed marine species; and
(e) provide for any matter incidental to or connected with any of the above paragraphs.
Commonwealth Coat of Arms of Australia
Environment Protection and Biodiversity Conservation Act 1999