38DDDischarging waste: offence

#### 38DD Discharging waste: offence Discharging waste (1) A person commits an offence if: (a) the person discharges waste; and (b) the waste is discharged in the Marine Park; and (c) the person is not authorised to discharge the waste by: (i) a permission granted under the regulations for the purposes of this section; or (ii) an authority given in accordance with a condition of a permission referred to in subparagraph (i). Penalty: (a) for an aggravated offence—imprisonment for 3 years or 2,000 penalty units, or both; or (b) in any other case—1,000 penalty units. > Note: See also Division 8. (2) The fault element for paragraph (1)(a) is negligence. > Note: For negligence, see section 5.5 of the Criminal Code. (3) Strict liability applies to paragraphs (1)(b) and (c). > Note: For strict liability, see section 6.1 of the Criminal Code. Discharging waste: strict liability (4) A person commits an offence if: (a) the person discharges waste; and (b) the waste is discharged from a vessel; and (c) the waste is discharged in the Marine Park; and (d) the person is not authorised to discharge the waste by: (i) a permission granted under the regulations for the purposes of this section; or (ii) an authority given in accordance with a condition of a permission referred to in subparagraph (i). Penalty: 500 penalty units. (5) Strict liability applies to subsection (4). > Note: For strict liability, see section 6.1 of the Criminal Code. Defence—prescribed circumstances (6) Subsections (1) and (4) do not apply if circumstances prescribed by the regulations for the purposes of this subsection exist in relation to the discharge. Any circumstances prescribed must be circumstances that relate to the discharge of sewage from vessels. > Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code. Defence—certain discharges of fish from vessels and aircraft (7) Subsections (1) and (4) do not apply to the discharge of waste from a vessel or aircraft if: (a) the waste is fresh fish, or parts of fresh fish, caught in the Marine Park; and (b) the waste is not discharged in a part of the Marine Park specified in the regulations for the purposes of this paragraph. > Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code. Defence—certain discharges from vessels, aircraft and platforms (8) Subsections (1) and (4) do not apply to the discharge of waste from a vessel, aircraft or platform if any of the following apply in relation to the discharge: (a) it was for the purpose of securing the safety of the vessel, aircraft or platform; (b) it was for the purpose of saving life at sea; (c) it was for the purpose of combating a specific incident of pollution in order to minimise the damage from pollution and had been approved by: (i) a prescribed officer within the meaning of subsection 3(2) of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983; or (ii) the Authority under section 38DE. > Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code. Defence—discharge in zone where discharges do not require permission (9) Subsections (1) and (4) do not apply in relation to the discharge of waste in a zone if the discharge of waste is for a purpose for which, under the zoning plan for the zone, the zone may be used or entered without permission. > Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.