38BDOperation of fishing vessel in zone: offence

#### 38BD Operation of fishing vessel in zone: offence Operation of a fishing vessel prohibited or done without permission (1) A person commits an offence if: (a) the person operates a vessel; and (b) the person does so in a zone; and (c) the vessel is a primary commercial fishing vessel; and (d) the vessel is an Australian vessel; and (e) the vessel is authorised, under a law of the Commonwealth or of a State (including by a licence granted under such a law), to fish using a particular fishing method or particular fishing apparatus; and (f) under the zoning plan for the zone, fishing using that method or apparatus: (i) is prohibited; or (ii) requires permission; and Note: Prohibited is defined in subsection 3(1). (g) if it requires permission—the person is not authorised to fish using that method or apparatus by: (i) a permission granted under the regulations for the purposes of the zoning plan; or (ii) an authority given in accordance with a condition of a permission referred to in subparagraph (i). Penalty: 500 penalty units. (2) Strict liability applies to paragraphs (1)(b), (c), (f) and (g). > Note: For strict liability, see section 6.1 of the Criminal Code. (3) Absolute liability applies to paragraphs (1)(d) and (e). > Note: For absolute liability, see section 6.2 of the Criminal Code. Defence—vessel is transiting or anchoring (4) Subsection (1) does not apply if: (a) the vessel is transiting through the zone; or (b) the vessel is anchored in the zone; or (c) the vessel is transiting to a place where the vessel is to anchor or transiting from a place where the vessel has been anchored. > 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) For the purposes of subsection (4), a vessel is only transiting if: (a) the vessel is taking the most direct practicable route: (i) through the zone to a destination outside the zone; or (ii) to or from a place of anchor; and (b) the vessel is maintaining a speed of at least 5 knots. Defence—emergency or unavoidable accident (6) Subsection (1) does not apply if: (a) the operation of the vessel in the zone: (i) is reasonably necessary to deal with an emergency involving a serious threat to human life or property; or (ii) is a result of an unavoidable accident, other than an accident caused by reckless or negligent behaviour; and (b) the Authority is notified of the operation, and the emergency or accident, no more than 48 hours after the vessel was first operated in the zone. > Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.