Note: Subsection 4B(2) of the Crimes Act 1914 lets a court that convicts an individual of an offence impose a fine instead of, or as well as, imprisonment. The maximum fine (in penalty units) the court can impose is 5 times the maximum term of imprisonment (in months).
496 Did an executive officer take reasonable steps to prevent contravention?
(1) For the purposes of sections 494 and 495, in determining whether an executive officer of a body corporate failed to take all reasonable steps to prevent the contravention, a court is to have regard to:
(a) what action (if any) the officer took directed towards ensuring the following (to the extent that the action is relevant to the contravention):
(i) that the body arranges regular professional assessments of the body’s compliance with this Act and the regulations;
(ii) that the body implements any appropriate recommendations arising from such an assessment;
(iii) that the body has an appropriate system established for managing the effects of the body’s activities on the environment;
(iv) that the body’s employees, agents and contractors have a reasonable knowledge and understanding of the requirements to comply with this Act and the regulations, in so far as those requirements affect the employees, agents or contractors concerned; and
(b) what action (if any) the officer took when he or she became aware that the body was contravening:
(i) this Act; or
(ii) the regulations; or
(iii) if the body contravened Part 3 or section 142 or 142A—any action management plan that was prepared by the body, and approved by the Minister, as required by a condition attached to an approval under Part 9 for the purposes of a provision of Part 3 of the body’s taking of an action.
(2) This section does not, by implication, limit the generality of sections 494 and 495.
Division 18A—Liability of landholders for other people’s actions
496A Who is a landholder?
For the purposes of this Division, a landholder, in relation to an area of land, is a person who is an owner, lessee or occupier of the area of land.
496B Civil penalties for landholders
(1) If:
(a) a person (the actor) takes an action on an area of land that is a contravention of:
(i) a provision of Part 3 that is a civil penalty provision; or
(ii) section 142; and
(b) a landholder in relation to the area of land knew that, or was reckless or negligent as to whether, the contravention would occur; and
(c) the landholder was in a position to influence the conduct of the actor in relation to the contravention; and
(d) the landholder failed to take all reasonable steps to prevent the contravention;
the landholder contravenes this subsection.
(2) Subsection (1) is a civil penalty provision. Under section 481, the Federal Court may order a landholder contravening subsection (1) to pay a pecuniary penalty not more than the pecuniary penalty the Court could order the landholder to pay, if the landholder had contravened the civil penalty provision contravened by the actor.
496C Criminal liability of landholders
(1) If:
(a) a person (the actor) takes an action on an area of land that contravenes:
(i) section 15A (Offences relating to declared World Heritage properties); or
(ii) section 15C (Offences relating to National Heritage places); or
(iii) section 17B (Offences relating to declared Ramsar wetlands); or
(iv) section 18A (Offences relating to threatened species etc.); or
(v) section 20A (Offences relating to listed migratory species); or
(vi) section 22A (Offences relating to nuclear actions); or
(vii) section 24A (Offences relating to marine areas); or
(viia) section 24E (Offences relating to water resources); or
(viii) section 27A (Offences relating to Commonwealth land); or
(ix) section 142A (Offence of breaching conditions on approval); and
(b) a landholder in relation to the area of land was reckless as to whether the contravention would occur; and
(c) the landholder was in a position to influence the conduct of the actor in relation to the contravention at the time when the contravention occurred; and
(d) the landholder failed to take all reasonable steps to prevent the contravention;
the landholder commits an offence.
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 the term specified in the provision contravened by the actor, a fine of the amount specified in that provision, or both.
Note: 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 the provision.
496D Did a landholder take reasonable steps to prevent a contravention?
(1) For the purposes of sections 496B and 496C, in determining whether a landholder failed to take all reasonable steps to prevent the contravention, a court is to have regard to:
(a) what action (if any) the landholder took directed towards ensuring that the actor had an appropriate system established for managing the effects of the actor’s activities on the environment; and
(b) what action (if any) the landholder took upon becoming aware that there was a substantial risk that the actor was contravening provisions of this Act referred to in subsection 496B(1) or 496C(1), as the case requires.
(2) This section does not, by implication, limit the generality of sections 496B and 496C.
Division 19—Infringement notices
497 Infringement notices
(1) The regulations may make provision enabling a person who is alleged to have committed an offence against section 142B or the regulations to pay a penalty to the Commonwealth as an alternative to prosecution.
(2) The penalty must not exceed one‑fifth of the maximum fine that a court could impose on the person as a penalty for that offence.
Division 20—Publicising contraventions
498 Minister may publicise contraventions of this Act or the regulations
(1) The Minister may publicise, in any way he or she thinks appropriate, a contravention of this Act or the regulations for which a person has been convicted or ordered to pay a pecuniary penalty.
(2) This Division does not:
(a) limit the Minister’s powers to publicise a contravention of this Act or the regulations; or
(b) prevent anyone else from publicising a contravention of this Act or the regulations; or
(c) affect any obligation (however imposed) on anyone to publicise a contravention of this Act or the regulations.
Division 21—Immunity of officers
498A Immunity of officers and assistants
(1) An authorised officer or ranger is not liable to any proceedings relating to an act done, or omitted to be done, in good faith in the exercise or purported exercise of any power conferred on the officer or ranger by this Part, Schedule 1 (in the case of an authorised officer) or regulations made for the purposes of this Part or Division 5 of Part 15.
(2) A person requested by an authorised officer or ranger to assist the officer or ranger in the exercise or purported exercise of any power conferred on the officer or ranger by this Part, by Schedule 1 (in the case of an authorised officer), or by regulations made for the purposes of this Part or Division 5 of Part 15, is not liable to any proceedings relating to an act done, or omitted to be done, in good faith for the purpose of assisting the officer or ranger.
Division 22—Conduct of directors, employees and agents
498B Conduct of directors, employees and agents
Bodies corporate—conduct
(1) Any conduct engaged in on behalf of a body corporate:
(a) by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of a director, employee or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, employee or agent;
is to be taken, for the purposes of this Act, to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct.
Bodies corporate—state of mind
(2) If, for the purposes of this Act, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by a person as mentioned in paragraph (1)(a) or (b); and
(b) that the person had that state of mind.
Persons other than bodies corporate—conduct
(3) Any conduct engaged in on behalf of a person other than a body corporate:
(a) by an employee or agent of the person within the scope of his or her actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of an employee or agent of the first‑mentioned person, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the employee or agent;
is to be taken, for the purposes of this Act, to have been engaged in also by the first‑mentioned person unless the first‑mentioned person establishes that the first‑mentioned person took reasonable precautions and exercised due diligence to avoid the conduct.
Persons other than bodies corporate—state of mind
(4) If, for the purposes of this Act, it is necessary to establish the state of mind of a person other than a body corporate in relation to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by a person as mentioned in paragraph (3)(a) or (b); and
(b) that the person had that state of mind.
Reasonable precautions
(5) For the purposes of subsection (1) or (3), in determining whether a body corporate or other person took reasonable precautions and exercised due diligence to avoid particular conduct, a court must have regard to what steps (if any) the body or person took directed towards ensuring the following (to the extent that the steps are relevant to the conduct):
(a) that the body or person arranges regular professional assessments of the body’s or person’s compliance with this Act and the regulations;
(b) that the body or person implements any appropriate recommendations arising from such an assessment;
(c) that the body or person has an appropriate system established for managing the effects of the body’s or person’s activities on the environment;
(d) that the directors of the body, or the employees or agents of the body or person, have a reasonable knowledge and understanding of the requirements to comply with this Act and the regulations, in so far as those requirements affect the directors, employees or agents concerned.
Meaning of state of mind
(6) A reference in subsection (2) or (4) to the state of mind of a person includes a reference to:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person’s reasons for the intention, opinion, belief or purpose.
Meaning of director
(7) A reference in this section to a director of a body corporate includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, of a State or of a Territory.
Meaning of engage in conduct
(8) A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct.
Disapplying Part 2.5 of Criminal Code
(9) Part 2.5 of the Criminal Code does not apply to an offence against this Act.
Note: Part 2.5 of the Criminal Code deals with corporate criminal responsibility.
Part 18—Remedying environmental damage
499 Commonwealth powers to remedy environmental damage
(1) This section applies if the Minister suspects that an act or omission constitutes a contravention of this Act or the regulations (whether or not the act or omission is an offence against this Act or the regulations).
(2) On behalf of the Commonwealth, the Minister may cause to be taken such steps as he or she thinks proper:
(a) to repair or remove any condition that arises from the act or omission and relates to:
(i) the environment; or
(ii) if the contravention was of a provision of Part 3—the matter protected by the provision; or
(b) to mitigate any damage that arises from the act or omission and relates to:
(i) the environment; or
(ii) if the contravention was of a provision of Part 3—the matter protected by the provision; or
(c) to prevent any damage that is likely to arise from the act or omission and relates to:
(i) the environment; or
(ii) if the contravention was of a provision of Part 3—the matter protected by the provision.
(3) If:
(a) a person provided false or misleading information in contravention of section 489; and
(b) as a result of the contravention the Minister granted an environmental authority to a person, or set conditions relating to the environmental authority, unaware of the certainty or likelihood of the action covered by the authority:
(i) resulting in damage to the environment or to a matter protected by a provision of Part 3; or
(ii) giving rise to a condition relating to the environment or to a matter protected by a provision of Part 3; and
(c) the action results in damage to the environment or gives rise to a condition relating to the environment;
then, for the purposes of this section and section 500, the damage or condition is taken to arise from the provision of false or misleading information in contravention of section 489.
(4) This section does not affect the exercise by the Commonwealth or the Minister of powers under another provision of this Act or under any other law.
500 Liability for loss or damage caused by contravention
(1) A person (the wrongdoer) who contravenes this Act or the regulations is liable to pay to another person (the affected party) who suffers loss or damage arising from the contravention an amount equal to the other person’s loss or damage.
(2) Without limiting the amount payable under subsection (1), the loss or damage a person suffers from a contravention of this Act or the regulations includes the expenses and liabilities (if any) reasonably incurred by the affected party to:
(a) repair or remove any condition that arises from the act or omission constituting the contravention and relates to:
(i) the environment; or
(ii) if the contravention was of a provision of Part 3—the matter protected by the provision; or
(b) mitigate any damage that arises from the act or omission constituting the contravention and relates to:
(i) the environment; or
(ii) if the contravention was of a provision of Part 3—the matter protected by the provision; or
(c) prevent any damage likely to arise from the act or omission constituting the contravention and relates to:
(i) the environment; or
(ii) if the contravention was of a provision of Part 3—the matter protected by the provision.
Note: This makes the person who contravenes the Act liable to pay the Commonwealth the expenses reasonably incurred in taking steps under section 499 in relation to the contravention.
(3) An amount payable under subsection (1) is a debt due to the affected party, recoverable in a court of competent jurisdiction.
(4) If 2 or more persons are liable under subsection (1) to pay an amount in respect of the same loss or damage, those persons are jointly and severally liable to pay the sum.
(5) A finding by a court in criminal proceedings or civil proceedings that the wrongdoer contravened this Act or the regulations is admissible as evidence of that fact in proceedings to recover an amount payable under subsection (1).
(6) This section applies:
(a) whether or not the contravention was an offence; and
(b) whether or not the provision contravened is a civil penalty provision.
(7) This section does not apply to a decision (or a failure to make a decision or conduct for the purposes of making a decision) purportedly under this Act or the regulations that contravenes this Act or the regulations.
501 Other powers not affected
This Division does not affect any other powers or rights under this Act, the regulations or any other law.
Part 19—Organisations
Division 1—Establishment and functions of the Threatened Species Scientific Committee
502 Establishment
(1) The Threatened Species Scientific Committee is established.
(2) The Minister is to determine in writing the composition of the Committee, including the qualifications of its members.
(3) The Minister is to appoint the members of the Committee on a part‑time basis, and must appoint one of the members to chair the Committee.
503 Functions of the Committee
The functions of the Committee are:
(a) to advise the Minister in accordance with Division 5 of Part 13 in relation to recovery plans, threat abatement plans and approved conservation advice; and
(b) to advise the Minister (on the Minister’s request or on the Committee’s initiative) on the amendment and updating of the lists established under Part 13; and
(c) to advise the Minister, at his or her request, on matters relating to the administration of this Act; and
(d) to give the Minister such other advice as is provided for in this Act; and
(e) to perform such other functions as are conferred on the Committee by this Act, the regulations or another law of the Commonwealth.
Division 2A—Indigenous Advisory Committee
505A Establishment
(1) The Indigenous Advisory Committee is established.
(2) The Minister is to determine in writing the composition of the Committee, including the qualifications of its members.
(3) A person may only be appointed as a member of the Committee if the person is an Indigenous person.
(4) The Minister is to appoint the members of the Committee on a part‑time basis.