(3) The Secretary need not give a notice under subsection (2) about a thing if, after making such inquiries as the Secretary thinks appropriate, the Secretary does not, within 20 days after dealing with the thing, have sufficient information to enable the notice to be given.
(4) If a thing is dealt with in accordance with subsection (1), the owner of the thing may bring an action against the Commonwealth in a court of competent jurisdiction for the recovery of the market value of the thing at the time it was so dealt with. The action must be brought on the ground that the thing was not used or otherwise involved in the commission of an offence against this Act or the regulations.
449A Disposal of seized items if Secretary cannot locate or identify person entitled etc.
(1) This section applies to a thing that is seized under this Part if:
(a) apart from this section, the thing is required to be returned or delivered to a person (or reasonable steps are required to be taken for the return or delivery to a person of the thing); and
(b) one or more of the following applies:
(i) the Secretary is satisfied that reasonable steps have been taken to locate or identify the person, but those steps have not succeeded;
(ii) the Secretary is satisfied that reasonable steps have been taken to return or deliver the thing to the person, but those steps have not succeeded;
(iii) the Secretary is otherwise satisfied that it is not practicable to return or deliver the thing to the person.
(2) The Secretary may dispose of the thing in such manner as the Secretary considers appropriate.
Subdivision BA—Release of seized items to owner etc.
449BA Release of seized items to owner etc.
(1) If a thing is seized under this Part, the Secretary may authorise the thing, or anything in, on or attached to the thing, to be released to its owner, or to the person from whose possession it was seized, either:
(a) unconditionally; or
(b) on such conditions as the Secretary thinks fit (including conditions about the giving of security for giving payment of its value if it is forfeited).
(2) A person commits an offence if:
(a) a thing is released to the person under subsection (1) subject to a condition; and
(b) the person engages in conduct; and
(c) the conduct contravenes the condition.
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
(3) Absolute liability applies to paragraph (2)(a).
Note: For absolute liability, see section 6.2 of the Criminal Code.
449BB How this Part applies in relation to things released conditionally
(1) This section applies if a thing, or anything in, on or attached to a thing, seized under this Part is released on conditions to a person under section 449BA. The provision of this Part under which the seizure was made is the seizure provision, and the thing that is released is the released thing.
(2) Subject to this section, the provisions of this Part that apply in relation to things seized under the seizure provision continue to apply to the released thing as if it had not been released.
(3) A reference in a provision of this Part to the return or delivery of the released thing to a person is, if the person is the person to whom the thing has been released, taken to be a reference to making the release of the thing to the person unconditional.
(4) The regulations may specify modifications of provisions of this Part that are to have effect in relation to things to which this section applies. However, regulations must not:
(a) increase, or have the effect of increasing, the maximum penalty for any offence; or
(b) widen, or have the effect of widening, the scope of any offence.
Subdivision C—Forfeiture of seized items
450 Court‑ordered forfeiture: order by court dealing with offence proceedings
(1) If a court convicts a person of an offence against an environmental law, the court may order the forfeiture to the Commonwealth of any thing used or otherwise involved in the commission of the offence.
(1A) If a court convicts a person of an offence against Part 13A, the court must order the forfeiture to the Commonwealth of any specimen used or otherwise involved in the commission of the offence.
Note: Part 13A deals with the international movement of wildlife specimens.
(2) A court may make an order under subsection (1) or (1A) even if the thing or specimen has been seized under this Act or taken into possession under section 406AA or Schedule 1.
(3) If:
(a) a specimen is seized under this Part; and
(b) either:
(i) a court finds a person not guilty of an offence against an environmental law in relation to the specimen; or
(ii) a proceeding in a court for such an offence in relation to the specimen is discontinued or dismissed; and
(c) the court is satisfied that there are reasonable grounds for suspecting that, if the specimen were released to the person from whom it was seized or to its owner, the possession of the specimen by that person would contravene a provision of an environmental law;
the court may order the forfeiture to the Commonwealth of the specimen.
(4) A reference in this section to an offence against an environmental law does not include an offence against Part VIIA of the Great Barrier Reef Marine Park Act 1975 (compulsory pilotage).
450A Court‑ordered forfeiture: other situations
(1) A court may, on the application of the Secretary, order the forfeiture to the Commonwealth of a thing that is seized under this Part if the court is satisfied that the thing has been used or otherwise involved in the commission of an offence against an environmental law.
(2) Without limiting subsection (1), a court may, on the application of the Secretary, order the forfeiture to the Commonwealth of a specimen if:
(a) the specimen was seized under this Part; and
(b) either:
(i) a court has found a person not guilty of an offence against an environmental law in relation to the specimen; or
(ii) a proceeding in a court for such an offence in relation to the specimen has been discontinued or dismissed; and
(c) the court to which the Secretary applies is satisfied that there are reasonable grounds for suspecting that, if the specimen were released to the person from whom it was seized or to its owner, the possession of the specimen by that person would contravene a provision of an environmental law.
(3) A reference in this section to an offence against an environmental law does not include an offence against Part VIIA of the Great Barrier Reef Marine Park Act 1975 (compulsory pilotage).
450B Forfeiture of seized items by consent etc.
(1) If:
(a) a thing is seized under this Part; and
(b) the owner of the thing agrees to transfer ownership of the thing to the Commonwealth, either:
(i) unconditionally; or
(ii) in the event that a future contingency happens; and
(c) if subparagraph (b)(ii) applies—that contingency happens;
then:
(d) the thing becomes the property of the Commonwealth; and
(e) the provisions of this Part relating to forfeiture apply as if the thing had been forfeited to the Commonwealth under this Act.
(2) If:
(a) a thing is seized under this Part; and
(b) the owner of the thing agrees to transfer ownership of the thing to the Commonwealth in the event that a future contingency happens;
the Secretary may retain the thing:
(c) until the thing becomes the property of the Commonwealth; or
(d) if the thing does not become the property of the Commonwealth—until the end of the last day on which that contingency could happen.
(3) Subsection (2) has effect despite anything in section 438, 444G, 446, 456AB or 456AC.
451 Dealings in forfeited items
(1) A thing forfeited to the Commonwealth under this Act becomes the property of the Commonwealth.
(2) A thing forfeited to the Commonwealth under this Act is to be dealt with in such manner as the Secretary considers appropriate.
(3) Without limiting subsection (2), the Secretary may sell a thing forfeited to the Commonwealth under this Act.
(4) The Secretary must not sell a specimen forfeited to the Commonwealth under this Act unless, in the opinion of the Secretary, the buyer will use the specimen for scientific or educational purposes.
452 Delivery of forfeited items to the Commonwealth
(1) If:
(a) a thing is forfeited to the Commonwealth under this Act; and
(b) the thing has not been dealt with under section 451; and
(c) the thing is in the possession, custody or control of a person other than:
(i) the Commonwealth; or
(ii) an agency of the Commonwealth; and
(d) the Secretary requests the person to deliver the thing to the Secretary;
the person must deliver the thing to the Secretary.
(2) A person must not contravene subsection (1).
Penalty: Imprisonment for 2 years.
Subdivision F—Keeping of organisms or specimens that have been seized
453 Keeping of organisms or specimens retained under this Part
If a person is authorised under this Part to retain an organism or specimen, the person may do so by causing the organism or specimen to be taken to, and kept at, a place approved by the Secretary for the purpose of keeping organisms or specimens seized under this Division.
454 Recovery of costs of storing or keeping organisms or specimens
(1) If an organism or specimen is seized under this Division, the owner is liable to pay to the Commonwealth an amount equal to the sum of the following costs:
(a) reasonable costs incurred by the Commonwealth in relation to the custody of the organism or specimen;
(b) reasonable costs incurred by the Commonwealth in transporting the organism or specimen;
(c) reasonable costs incurred by the Commonwealth in maintaining the organism or specimen.
(2) If:
(a) an organism or specimen is seized under this Division; and
(b) the organism or specimen is disposed of;
the owner is liable to pay to the Commonwealth an amount equal to the reasonable costs incurred by the Commonwealth in disposing of the organism or specimen.
(3) An amount payable by a person under this section is a debt due by the person to the Commonwealth.
(4) An amount payable by a person to the Commonwealth under this section may be recovered by action in a court of competent jurisdiction.
(5) The Secretary may remit an amount payable by a person under this section.
(6) In addition to its effect apart from this subsection, this section also has the effect it would have if a liability under this section were, by express provision, confined to the case of an organism or specimen that:
(a) is forfeited to the Commonwealth under this Act; or
(b) would have been forfeited to the Commonwealth under this Act if it had not been disposed of.
Subdivision G—Rescuing things
455 Rescuing things
A person commits an offence punishable upon conviction by imprisonment for a term not exceeding 2 years if:
(a) the person rescues any thing; and
(b) the thing has been, or is about to be, seized under this Act.
456 Breaking or destroying things or documents to prevent seizure etc.
A person must not:
(a) stave, break or destroy any thing in order to prevent the seizure of a thing, the securing of a thing, or the proof of any offence under an environmental law; or
(b) destroy any documents relating to any thing in order to prevent the seizure of a thing, the securing of a thing, or the proof of any offence under an environmental law.
Penalty: Imprisonment for 2 years.
Subdivision H—Seizure of cages or containers
456AA Power to seize cages or containers containing seizable things
(1) This section applies if:
(a) an authorised officer has power to seize a thing (a seizable thing) under another provision of this Part; and
(b) the seizable thing is in a cage or container; and
(c) the authorised officer considers that it is not reasonably practicable to seize the seizable thing without also seizing the cage or container.
(2) For the purpose of seizing the seizable thing and despite any other provision of this Part, the authorised officer may seize the cage or container containing the seizable thing (whether or not the cage or container also contains any other thing).
(3) The seizure of the seizable thing is taken to occur under the provision mentioned in paragraph (1)(a) (not under this section).
Note: The provisions governing the retention and return of the seizable thing are therefore the provisions that usually govern the seizure of a thing under the provision mentioned in paragraph (1)(a).
(4) If:
(a) an authorised officer seizes a cage or container; and
(b) the seizure of the cage or container is authorised by this section, and is also authorised by another provision of this Part;
then the seizure is taken be under this section, rather than under that other provision (subject to subsection 456AB(5)).
456AB Retention of seized cage or container
(1) This section applies to a cage or container that is seized under section 456AA because it contains a seizable thing.
(2) The cage or container may be retained for so long as an authorised officer considers that it is reasonably necessary to retain it for the purpose of housing the seizable thing.
(3) As soon as practicable after the end of the period during which the cage or container may be retained under subsection (2), the Secretary must cause reasonable steps to be taken to return the cage or container to the person from whom it was seized (or to the owner if that person is not entitled to possess it).
(4) Subsection (3) does not apply if:
(a) the seizure was also authorised by another provision of this Part (the other seizure provision), as mentioned in subsection 456AA(4)); or
(b) the cage or container is forfeited or forfeitable to the Commonwealth; or
(c) the cage or container has been dealt with under this Part, or as otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory), in a way that means the Secretary is not in a position to cause reasonable steps to be taken to return the cage or container; or
(d) the Commonwealth, the Secretary or an authorised officer is otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory) to retain, destroy, dispose of or otherwise deal with the cage or container.
(5) If, because of paragraph (4)(a), the cage or container does not have to be returned at the end of the period referred to in subsection (3), this Part then applies in relation to the cage or container as if, at the end of that period, it had been seized under the other seizure provision.
456AC Retention of non‑seizable things contained in seized cages or containers
(1) This section applies if:
(a) a cage or container is seized under section 456AA because it contains a seizable thing; and
(b) the cage or container also contains a thing (a non‑seizable thing) that is not a seizable thing.
(2) The non‑seizable thing may be retained until it is reasonably practicable to return the thing to the person from whom it was seized (or to the owner if that person is not entitled to possess it).
(3) As soon as practicable after the end of the period during which the non‑seizable thing may be retained under subsection (2), the Secretary must cause reasonable steps to be taken to return the thing to the person from whom it was seized (or to the owner if that person is not entitled to possess it).
(4) Subsection (3) does not apply if:
(a) the non‑seizable thing is forfeited or forfeitable to the Commonwealth; or
(b) the non‑seizable thing has been dealt with under this Part, or as otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory), in a way that means the Secretary is not in a position to cause reasonable steps to be taken to return the thing; or
(c) the Commonwealth, the Secretary or an authorised officer is otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory) to retain, destroy, dispose of or otherwise deal with the non‑seizable thing.
Division 12—Environmental audits
458 Directed environmental audits
(1) The Minister may, by written notice given to the holder of an environmental authority, require the holder to carry out an environmental audit if the Minister believes or suspects on reasonable grounds:
(a) that the holder has contravened, or is likely to contravene, a condition of the authority; or
(b) the impacts that the action authorised by the authority has, has had or is likely to have on the matter dealt with by the provision for which the authority authorises the action are significantly greater than was indicated in the information available to the Minister when the authority was granted.
(2) The notice must specify:
(a) the matters to be covered by the audit; and
(b) the form of the audit report and the kinds of particulars it is to contain; and
(c) the date on or before which the report must be given to the Minister.
(3) Without limiting the matters that may be specified under paragraph (2)(a), those matters may include all or any of the following:
(a) an evaluation of the nature of the environment that is or will be affected by the holder’s activities; and
(b) an assessment of the risks to the environment resulting from the activities; and
(c) an assessment of the holder’s existing capacity to comply with the authority and the requirements of this Act and the regulations in carrying on the activities; and
(d) an assessment of what the holder will need to do, or continue to do, so to comply.
(4) For the purposes of this Act, an environmental authority is:
(a) an approval under Part 9; or
(b) a permit issued under Chapter 5.
459 Appointment of auditor and carrying out of audit
(1) If the Minister gives the holder of an environmental authority a notice under section 458, the holder must appoint an environmental auditor and arrange for the auditor to carry out an environmental audit in accordance with the notice.