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Great Barrier Reef Marine Park Amendment Act 1988

Authoritative Version
  • - C2004A03698
  • No longer in force
Act No. 105 of 1988 as made
An Act to amend the Great Barrier Reef Marine Park Act 1975, and for related purposes
Date of Assent 06 Dec 1988
Date of repeal 10 Dec 2015
Repealed by Amending Acts 1980 to 1989 Repeal Act 2015

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Great Barrier Reef Marine Park Amendment Act 1988

No. 105 of 1988

table of provisions

Section

1.        Short title etc.

2.        Commencement

3.        Interpretation

4.        Operation of Act

5.        Functions of Authority

6.        Insertion of new section:

7a.         Provision of assistance to other institutions and persons

7.        Remuneration and allowances of members of Authority

8.        Termination of appointment of members of Authority

9.        Insertion of new section:

16a.       Disclosure of interests of members

10.        Remuneration and allowances of members of Committee

11.        Termination of appointment of members of Committee

12.        Insertion of new section:

27a.       Disclosure of interests of members

13.        Zoning plans


 

TABLE OF PROVISIONS—continued

Section

14.        Insertion of new sections:

38a.       Zones to be used only for permitted purposes

38b.        Permission requirements to be observed—zoned area

38c.        Contravening conditions of permission or authority—zoned area

38d.       Notification requirements to be observed—zoned area

38e.        Contravening directions—zoned area

38f.        Certain activities prohibited in the unzoned area

38g.       Contravening conditions of permission or authority—unzoned area

38h.       Removal of property

38j.        Offence relating to the discharge of waste

38k.        Offences involving the use of vessels or aircraft

38m.       Prosecution of offences

38n.       Injunctions

15.        Staff of Authority

16.        Arrest without warrant

17.        Insertion of new section:

46a.       Searches of arrested persons

18.        Confiscation and forfeiture

19.        General powers of inspectors

20.        Insertion of new section:

48a.       Limitation on exercise of powers—location

21.        Assaulting etc. inspector

22.        Repeal of section 50

23.        Insertion of new section:

53a.       Investment of money

24.        Repeal of section 55 and substitution of new section:

55.        Application of Division 3 of Part XI of the Audit Act 1901

25.        Repeal of sections 57, 58 and 60

26.        Insertion of new sections:

61a.       Restoration of environment etc.

61b.        Liability for expenses incurred by the Commonwealth or the Authority resulting from contravention of this Act

61c.        Enforcement of orders for payment

27.        Jurisdiction of courts

28.        Repeal of section 64 and substitution of new section:

64.          Conduct of directors, servants and agents

29.        Regulations

30.        Amendments relating to special zones

31.        Transitional

32.        Transitional—regulations relating to transferred offences

SCHEDULE

AMENDMENTS RELATING TO SPECIAL ZONES

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Great Barrier Reef Marine Park Amendment Act 1988

No. 105 of 1988

 

An Act to amend the Great Barrier Reef Marine Park Act 1975, and for related purposes

[Assented to 6 December 1988]

BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:

Short title etc.

1. (1) This Act may be cited as the Great Barrier Reef Marine Park Amendment Act 1988.

(2) In this Act, “Principal Act” means the Great Barrier Reef Marine Park Act 19751.

Commencement

2. (1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.

(2) Section 14, paragraph 29 (e) and section 32 commence on a day to be fixed by Proclamation.


Interpretation

3. Section 3 of the Principal Act is amended by inserting in subsection (1) the following definitions:

“ ‘environmental management’ means:

(a) environmental management;

(b) natural resource management;

(c) park management (including aquarium management and zoo management); or

(d) any similar matter;

‘farming facility’ means a facility for the farming of marine resources;

‘landing area’ means an area for the landing of aircraft;

‘mitigate’, in relation to damage, includes prevent further damage;

‘unzoned area’ means that part (if any) of the Marine Park in respect of which no zoning plan is in force;”.

Operation of Act

4. Section 4 of the Principal Act is amended:

(a) by omitting from subsection (1) “or of any State” and substituting “, of each of the States, of the Northern Territory and of Norfolk Island”;

(b) by inserting after subsection (1) the following subsection:

“(1a) Nothing in this Act renders the Crown in right of the Commonwealth, of a State, of the Northern Territory or of Norfolk Island liable to be prosecuted for an offence.”.

Functions of Authority

5. Section 7 of the Principal Act is amended:

(a) by omitting “and” from the end of paragraph (1) (d);

(b) by inserting after paragraph (1) (d) the following paragraph:

“(da) to provide assistance to other institutions and persons in accordance with section 7a; and”;

(c) by omitting from subsection (3) “section 60” and substituting “section 63m of the Audit Act 1901”;

(d) by inserting in subsection (3) “of this section” after “subsection (2)”.

6. After section 7 of the Principal Act the following section is inserted:

Provision of assistance to other institutions and persons

“7a. (1) Subject to this section, the Authority may, at the request of another institution or person, provide assistance to the institution or person in matters relating to environmental management.

“(2) The assistance may be provided by the Authority acting by itself or in co-operation with other institutions and persons.


 

“(3) Without limiting the generality of the assistance that may be provided, the assistance may take any of the following forms:

(a) the carrying out of research or investigations;

(b) the provision of educational, advisory or informational services;

(c) the making available of facilities.

“(4) The Authority shall not perform a function that the Authority has only because of this section unless the Minister has approved, in writing, the provision of the assistance concerned.

“(5) The Minister shall not give an approval under subsection (4) unless the Minister is satisfied that the provision of the assistance concerned is not likely to affect adversely the performance of the functions of the Authority conferred by other provisions of this Act.

“(6) An approval under subsection (4) may be given subject to conditions or restrictions set out in the instrument of approval (including conditions requiring the charging of fees).

“(7) Nothing in this section limits the functions that may be conferred on the Authority by the regulations.”.

Remuneration and allowances of members of Authority

7. Section 12 of the Principal Act is amended by omitting from subsection (3) “1973-1974” and substituting “1973.

Termination of appointment of members of Authority

8. Section 16 of the Principal Act is amended:

(a) by omitting paragraph (2) (e) and substituting the following paragraph:

“(e) fails, without reasonable excuse, to comply with the member’s obligations under section 16a;”;

(b) by omitting subsections (3) and (4).

9. After section 16 of the Principal Act the following section is inserted:

Disclosure of interests of members

“16a. (1) A member who has a direct or indirect pecuniary interest in a matter being considered or about to be considered by the Authority shall, as soon as practicable after the relevant facts have come to the knowledge of the member, disclose the nature of the member’s interest at a meeting of the Authority.

“(2) A disclosure under subsection (1) shall be recorded in the minutes of the meeting of the Authority and the member shall not, unless the Minister otherwise determines:

(a) be present during any deliberation of the Authority with respect to that matter; or


 

(b) take part in any decision of the Authority with respect to that matter.

“(3) The Chairman shall give written notice to the Minister of all direct and indirect pecuniary interests that the Chairman has or may have in any business or in any body corporate carrying on a business.

“(4) This section applies in relation to a person acting as Chairman or as a part-time member.”.

Remuneration and allowances of members of Committee

10. Section 24 of the Principal Act is amended by omitting from subsection (3) “1973-1974” and substituting “1973.

Termination of appointment of members of Committee

11. Section 27 of the Principal Act is amended:

(a) by omitting from subsections (3a) and (4) “to comply with his obligations under subsection (5)” and substituting “, without reasonable excuse, to comply with the member’s obligations under section 27a”;

(b) by omitting subsection (5).

12. After section 27 of the Principal Act the following section is inserted:

Disclosure of interests of members

“27a. (1) A member of the Committee who has a direct or indirect pecuniary interest in a matter being considered or about to be considered by the Committee shall, as soon as practicable after the relevant facts have come to the knowledge of the member, disclose the nature of the member’s interest at a meeting of the Committee.

“(2) A disclosure under subsection (1) shall be recorded in the minutes of the meeting of the Committee and the member shall not, unless the Minister otherwise determines:

(a) be present during any deliberation of the Committee with respect to that matter; or

(b) take part in any decision of the Committee with respect to that matter.”.

Zoning plans

13. Section 32 of the Principal Act is amended by inserting after subsection (7) the following subsection:

“(7a) Nothing in this Act shall be taken as implying that the responsible agency within the meaning of a plan must be an agency other than the Authority.”.

14. After section 38 of the Principal Act the following sections are inserted:


 

Zones to be used only for permitted purposes

“38a. A person shall not use or enter a zone for a purpose other than a purpose that is permitted under the zoning plan that relates to that zone.

Penalty:

(a) if the offender is a natural person—$10,000; or

(b) if the offender is a body corporate—$50,000.

Permission requirements to be observed—zoned area

“38b. (1) Where, under a zoning plan, a zone may not be used or entered for a particular purpose except with the permission of:

(a) the responsible agency within the meaning of the plan; or

(b) the Authority;

a person shall not use or enter the zone for that purpose unless:

(c) the use or entry is authorised by a permission granted to the person under the regulations, being a permission of a kind declared by the regulations to be a permission to which this section applies; or

(d) the use or entry is authorised by an authority given to the person in accordance with a condition to which such a permission is subject.

Penalty:

(e) if the offender is a natural person—$10,000; or

(f) if the offender is a body corporate—$50,000.

“(2) Subsection (1) does not apply in such circumstances as are prescribed, being circumstances relating to:

(a) conduct engaged in during:

(i) the period of 120 days after the day on which the zoning plan concerned comes into operation; or

(ii) the period of 120 days after the day on which an amendment of the zoning plan concerned comes into operation; or

(b) conduct engaged in by a person after the end of that period where the person applied for permission of a kind referred to in subsection (1) during that period.

Contravening conditions of permission or authority—zoned area

“38c. Where a permission or authority referred to in section 38b is subject to conditions, a person to whom those conditions apply shall not contravene those conditions.

Penalty:

(a) if the offender is a natural person—$10,000; or

(b) if the offender is a body corporate—$50,000.

Notification requirements to be observed—zoned area

“38d. Where, under a zoning plan, a zone may not be used or entered for a particular purpose except after notification to:

(a) the responsible agency within the meaning of the plan; or


 

(b) the Authority;

a person shall not use or enter the zone for that purpose unless the person has notified the Authority that the person proposes to use or enter the zone for that purpose.

Penalty:

(c) if the offender is a natural person—$10,000; or

(d) if the offender is a body corporate—$50,000.

Contravening directions—zoned area

“38e. A person shall not contravene a direction given to the person by the Authority under the regulations, being a direction:

(a) that is declared by the regulations to be a direction to which this section applies;

(b) that is in respect of the person’s use of, or entry to, a zone;

(c) that is reasonably necessary for the protection or preservation of the Marine Park or property or things in the Marine Park; and

(d) that does not require the person to remove a structure, landing area, farming facility, vessel, aircraft or other thing that is in the Marine Park.

Penalty:

(e) if the offender is a natural person—$10,000; or

(f) if the offender is a body corporate—$50,000.

Certain activities prohibited in the unzoned area

“38f. (1) A person shall not carry on any of the following activities in the unzoned area:

(a) the building, assembling or fixing in position of:

(i) buildings or similar structures;

(ii) pontoons or other floating structures;

(iii) walkways, mooring facilities or similar structures; or

(iv) devices for catching marine animals;

(b) the operating in the one vicinity for more than:

(i) 14 consecutive days; or

(ii) 30 days in any period of 60 days;

of vessels with provision for more than 8 sleeping berths;

(c) the carrying out of reclamation works, beach protection works, road building works or any other works;

(d) the construction of landing areas;

(e) the construction of farming facilities;

(f) the conduct of operations in or upon, or the maintenance of:

(i) buildings or similar structures;

(ii) pontoons or other floating structures; or

(iii) walkways, mooring facilities or similar structures;


 

(g) the maintenance of any device for catching marine animals;

(h) the demolition or removal of any:

(i) buildings or similar structures;

(ii) pontoons or other floating structures; or

(iii) walkways, mooring facilities or similar structures;

unless:

(j) the carrying on of the activity is authorised by a permission granted to the person under the regulations, being a permission of a kind declared by the regulations to be a permission to which this section applies; or

(k) the carrying on of the activity is authorised by an authority given to the person in accordance with a condition to which such a permission is subject.

Penalty:

(m) if the offender is a natural person—$10,000; or

(n) if the offender is a body corporate—$50,000.

“(2) The reference in subsection (1) to the operating of a vessel includes a reference to:

(a) the conduct of operations in or upon the vessel;

(b) the use of the vessel as a base for carrying on other activities; and

(c) the carrying out of maintenance of the vessel.

Contravening conditions of permission or authority—unzoned area

“38g. Where a permission or authority referred to in section 38f is subject to conditions, a person to whom those conditions apply shall not contravene those conditions.

Penalty:

(a) if the offender is a natural person—$10,000; or

(b) if the offender is a body corporate—$50,000.

Removal of property

“38h. A person shall not contravene an order under the regulations, being an order:

(a) that is declared by the regulations to be an order to which this section applies; and

(b) that requires the person to remove a structure, landing area, farming facility, vessel, aircraft or other thing that is in the Marine Park.

Penalty:

(c) if the offender is a natural person—$10,000; or

(d) if the offender is a body corporate—$50,000.


 

Offence relating to the discharge of waste

“38j. (1) A person shall not discharge waste in the Marine Park unless the discharge is authorised by a permission granted to the person under the regulations, being a permission of a kind declared by the regulations to be a permission to which this section applies.

“(2) Where a permission referred to in subsection (1) is subject to conditions, a person to whom those conditions apply shall not contravene those conditions.

“(3) This section does not apply to the discharging of waste in a zone where the relevant zoning plan makes provision for the zone to be used or entered for that purpose.

“(4) This section does not apply to the discharge from a vessel or aircraft of:

(a) human waste where the vessel or aircraft, as the case may be, does not contain a storage tank of a kind designed for the storage of human waste;

(b) offal from a fish caught within the Marine Park; or

(c) biodegradable waste (other than waste to which paragraph (a) or (b) applies) where the aircraft or vessel, as the case may be, is more than 500 metres seawards from the seaward edge of the nearest reef.

“(5) A person who contravenes subsection (1) or (2) is guilty of an offence punishable on conviction:

(a) if the offender is a natural person—by a fine not exceeding $50,000; or

(b) if the offender is a body corporate—by a fine not exceeding $250,000.

“(6) In this section:

‘discharge’ includes deposit or dispose of;

‘reef includes bommie fields, reef slopes, moats and ramparts.

Offences involving the use of vessels or aircraft

“38k. (1) Where:

(a) by use of a vessel or aircraft, an offence is committed against any of sections 38a to 38j (inclusive); and

(b) the person in charge of the vessel or aircraft:

(i) knew, or had reasonable grounds to suspect, that the vessel or aircraft would be used in committing the offence; and

(ii) did not take reasonable steps to prevent the use of the vessel or aircraft in committing the offence;

the person is guilty of an offence.

“(2) A reference in subsection (1) to the person in charge of a vessel or aircraft, in relation to an offence, is a reference to the person who is the


 

master or other person in charge of the vessel, or the person in charge of the aircraft, at the time the offence is committed.

“(3) Where:

(a) by use of a vessel or aircraft, an offence is committed against any of sections 38a to 38j (inclusive); and

(b) an owner of the vessel or aircraft:

(i) knew, or had reasonable grounds to suspect, that the vessel or aircraft would be used in committing the offence; and

(ii) did not take reasonable steps to prevent the use of the vessel or aircraft in committing the offence;

that owner is guilty of an offence.

“(4) A reference in subsection (3) to an owner of a vessel or aircraft, in relation to an offence, is a reference to a person who is:

(a) the owner of;

(b) a co-owner of; or

(c) an owner of any part of or share in;

the vessel or aircraft at the time the offence is committed.

“(5) An offence against this section is punishable on conviction by:

(a) if the offender is a natural person—a fine not exceeding $10,000; or

(b) if the offender is a body corporate—a fine not exceeding $50,000.

Prosecution of offences

“38m. (1) An offence against any of sections 38a to 38k (inclusive) is an indictable offence.

“(2) Notwithstanding that an offence referred to in subsection (1) is an indictable offence, a court of summary jurisdiction may hear and determine proceedings in respect of such an offence if:

(a) the court is satisfied that it is proper to do so; and

(b) the defendant and the prosecutor consent.

“(3) Where, in accordance with subsection (2), a court of summary jurisdiction convicts a person of an offence referred to in subsection (1), the penalty that the court may impose is:

(a) if the offender is a natural person—a fine not exceeding $2,000; or

(b) if the offender is a body corporate—a fine not exceeding $10,000.

Injunctions

“38n. (1) Where a person has engaged, is engaging or is proposing to engage in conduct that constitutes or would constitute a contravention of any of sections 38 to 38k (inclusive), the Supreme Court of a State or Territory may, on the application of:

(a) the Authority; or


 

(b) any person whose interests have been, are or would be affected by the conduct;

grant an injunction in such terms as the court determines to be appropriate.

“(2) Where a person has refused or failed, is refusing or failing, or is proposing to refuse or fail, to do an act or thing that the person is required to do by any of sections 38 to 38k (inclusive), the Supreme Court of a State or Territory may, on the application of:

(a) the Authority; or

(b) any person whose interests have been, are or would be affected by the refusal or failure to do that act or thing;

grant an injunction in such terms as the court determines to be appropriate.

“(3) Where in the opinion of the court it is desirable to do so, the court may grant an interim injunction pending determination of an application under subsection (1) or (2).

“(4) The court may rescind or vary an injunction granted under this section.

“(5) The power of the court to grant an injunction restraining a person from engaging in conduct may be exercised:

(a) whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind;

(b) whether or not the person has previously engaged in conduct of that kind; and

(c) whether or not there is an imminent danger of substantial damage if the person engages in conduct of that kind.

“(6) The power of the court to grant an injunction requiring a person to do an act or thing may be exercised:

(a) whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing;

(b) whether or not the person has previously refused or failed to do that act or thing; and

(c) whether or not there is an imminent danger of substantial damage if the person refuses or fails to do that act or thing.

“(7) A reference in this section to conduct that constitutes a contravention of any of sections 38 to 38k (inclusive) includes a reference to conduct that constitutes:

(a) attempting to contravene such a provision;

(b) aiding, abetting, counselling or procuring a person to contravene such a provision;

(c) inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene such a provision;

(d) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or


 

(e) conspiring with others to contravene such a provision.”.

Staff of Authority

15. Section 40 of the Principal Act is amended by omitting from subsection (1) “1922-1975” and substituting “1922.

Arrest without warrant

16. Section 46 of the Principal Act is amended by omitting from subsection (1) “in the Marine Park,”.

17. After section 46 of the Principal Act the following section is inserted:

Searches of arrested persons

“46a. (1) An inspector may, upon lawfully taking a person into custody in respect of an offence against this Act, search the person, the clothing the person is wearing and any property under the immediate control of the person if the inspector believes on reasonable grounds that it is necessary to do so:

(a) for the purpose of ascertaining whether there is concealed on the person, in the clothing of the person or in that property a weapon or other thing capable of being used to:

(i) inflict death or bodily injury; or

(ii) assist the person to escape from custody; or

(b) for the purpose of preventing the concealment, loss or destruction of evidence of, or relating to, the offence.

“(2) A search under this section of a person or the clothing that a person is wearing shall be conducted by:

(a) an inspector of the same sex as the person; or

(b) in a case where an inspector of the same sex as the person is not available to conduct this search—any other person who is of the same sex and is requested by an inspector to conduct the search.

“(3) An inspector who conducts a search under this section shall not use more force, or subject a person to greater indignity, than is reasonable and necessary in order to conduct the search.

“(4) The inspector may seize:

(a) any weapon or other thing of a kind referred to in paragraph (1) (a) found in the course of the search; or

(b) any thing found in the course of the search that the inspector has reasonable grounds to believe is a thing:

(i) with respect to which an offence against this Act has been committed;

(ii) that will afford evidence of a commission of an offence against this Act; or

(iii) that was used, or intended to be used, for the purpose of committing an offence against this Act.


 

“(5) An inspector may retain a weapon or thing seized under subsection (4):

(a) if a prosecution for an offence against this Act in the commission of which the weapon or thing may have been used or otherwise involved is instituted within the period of 60 days after the seizure—until the prosecution is terminated; or

(b) in any other case—until the end of the period of 60 days after the seizure.

“(6) Nothing in this section shall be taken to affect the search of a person, or the seizure of property, in accordance with another provision of this Act or in accordance with any other law.”.

Confiscation and forfeiture

18. Section 47 of the Principal Act is amended:

(a) by inserting in subsections (1), (2), (3), (4), (5) and (9) aircraft” after “vessel”;

(b) by inserting after subsection (4) the following subsection:

“(4a) Subsections (3) and (4) do not apply to an article seized under section 46a.”.

General powers of inspectors

19. Section 48 of the Principal Act is amended:

(a) by omitting from subsections (1) and (2) “, in the Marine Park”;

(b) by omitting from subsections (1) and (3) “a vessel” (wherever occurring) and substituting “an aircraft or vessel”;

(c) by omitting from subsection (1) “that vessel” and substituting “that aircraft or vessel”;

(d) by omitting “or” from the end of paragraph (1) (a);

(e) by adding “or” at the end of paragraph (1) (b);

(f) by inserting after paragraph (1) (b) the following paragraph:

“(c) anything that was used, or intended to be used, for the purpose of committing an offence against this Act;”;

(g) by inserting in paragraph (2) (c) “permission,” before “permit” (first occurring);

(h) by inserting in paragraph (2) (c) “, permission” before “or permit”;

(j) by inserting in subsection (3) “aircraft or” before “vessel” (second and third occurring).

20. After section 48 of the Principal Act the following section is inserted:

Limitation on exercise of powers—location

“48a. (1) Subject to this section, a power conferred on an inspector under subsection 46 (1) or 48 (1) or (2) may only be exercised within the Marine Park.

“(2) An inspector may exercise, with respect to:


 

(a) a person;

(b) an aircraft; or

(c) a vessel;

at a place that is outside the Marine Park, a power conferred on the inspector under subsection 46 (1) or 48 (1) or (2) if:

(d) in a case where the inspector concerned is not a member of a police force—the inspector believes on reasonable grounds that it is not reasonably practicable for an inspector who is a member of a police force to exercise that power;

(e) one or more inspectors (whether or not including the inspector exercising the power) have pursued the person, aircraft or vessel from a place within the Marine Park to that first-mentioned place; and

(f) the pursuit was not terminated or substantially interrupted at any time before the inspector concerned arrived at that first-mentioned place with a view to exercising that power.

“(3) For the purposes of subsection (2), a pursuit of a person, aircraft or vessel shall not be taken to be terminated or substantially interrupted only because the inspector or inspectors concerned lose sight of the person, aircraft or vessel.

“(4) A reference in subsection (3) to losing sight of a person includes a reference to losing output from a radar or other sensing device.”.

Assaulting etc. inspector

21. Section 49 of the Principal Act is amended:

(a) by omitting all the words after “guilty of an offence” and substituting “and is punishable on conviction by a fine not exceeding $5,000 or imprisonment for a period not exceeding 2 years, or both”;

(b) by adding at the end the following subsections:

“(2) An offence against subsection (1) is an indictable offence.

“(3) Notwithstanding that an offence against subsection (1) is an indictable offence, a court of summary jurisdiction may hear and determine proceedings in respect of such an offence if:

(a) the court is satisfied that it is proper to do so; and

(b) the defendant and the prosecutor consent.

“(4) Where, in accordance with subsection (3), a court of summary jurisdiction convicts a person of an offence against subsection (1), the penalty that the court may impose is a fine not exceeding $2,000 or imprisonment for a period not exceeding 12 months, or both.”.


 

Repeal of section 50

22. Section 50 of the Principal Act is repealed.

23. After section 53 of the Principal Act the following section is inserted:

Investment of money

“53a. Money of the Authority not immediately required for the purposes of the Authority may be invested:

(a) on deposit with an approved bank within the meaning of section 63e of the Audit Act 1901;

(b) in Commonwealth securities; or

(c) in any other manner approved by the Treasurer.”.

24. Section 55 of the Principal Act is repealed and the following section is substituted:

Application of Division 3 of Part XI of the Audit Act 1901

“55. (1) The Authority is a public authority to which Division 3 of Part XI of the Audit Act 1901 applies.

“(2) A reference in section 63k of the Audit Act 1901 (insofar as that section applies in relation to the Authority) to the moneys of the Authority includes a reference to money referred to in section 54a or 54b of this Act.”.

Repeal of sections 57, 58 and 60

25. Sections 57, 58 and 60 of the Principal Act are repealed.

26. After section 61 of the Principal Act the following sections are inserted:

Restoration of environment etc.

“61a. (1) Where the Minister believes on reasonable grounds that an act or omission constitutes an offence against this Act, the Minister may cause to be taken such steps as the Minister thinks proper:

(a) to repair or remedy any condition arising from that act or omission;

(b) to mitigate any damage arising from that act or omission; or

(c) to prevent any damage likely to arise from that act or omission.

“(2) Where the Minister believes on reasonable grounds that an act or omission constitutes an offence against section 38h in relation to an order relating to the removal of a structure, landing area, farming facility, vessel, aircraft or other thing, the Minister may cause to be taken such steps as the Minister thinks proper:

(a) to remove that structure, landing area, farming facility, vessel, aircraft or other thing;

(b) to repair or remedy any condition arising from that removal;

(c) to mitigate any damage arising from that removal; or


 

(d) to prevent any damage likely to arise from that removal.

“(3) The Minister may, by writing, delegate to the Authority or to the Chairman all or any of his or her powers under this section.

“(4) The Authority and the Chairman are, in the exercise of a power delegated under subsection (3), subject to the directions of the Minister.

“(5) The Authority shall include in each report prepared under section 63m of the Audit Act 1901 particulars of any directions given by the Minister under subsection (4) of this section during the period to which the report relates.

“(6) This section does not authorise the doing of an act or thing outside the Marine Park unless the doing of the act or thing affects the Marine Park.

“(7) Nothing in this section shall be taken to affect the exercise by the Commonwealth or the Authority of powers in accordance with another provision of this Act or in accordance with any other law.

Liability for expenses incurred by the Commonwealth or the Authority resulting from contravention of this Act

“61b. (1) Subject to this section, where:

(a) a person has been convicted of an offence against this Act; and

(b) the Commonwealth or the Authority has incurred expenses or other liabilities in relation to:

(i) if the offence is an ancillary offence—rectifying the act or omission constituting the primary offence to which the ancillary offence relates; or

(ii) in any other case—rectifying the act or omission constituting the offence;

the person convicted is liable to pay to the Commonwealth or to the Authority, as the case requires, an amount equal to the total amount of those expenses and liabilities of the Commonwealth or the Authority.

“(2) Where, apart from this subsection, 2 or more persons would be liable to pay an amount under subsection (1) in respect of the same expenses and liabilities, those persons are jointly and severally liable to pay to the Commonwealth or to the Authority, as the case requires, an amount equal to the total amount of those expenses and liabilities.

“(3) Where:

(a) apart from this subsection, a person is liable to pay an amount under this section in respect of expenses or liabilities incurred by the Commonwealth or the Authority in relation to rectifying an act or omission; and

(b) the total amount of those expenses or liabilities exceeds the amount that was reasonable for the Commonwealth or the Authority to incur in relation to rectifying the act or omission;


 

the person is not liable to pay the amount of the excess.

“(4) An amount payable under this section may be recovered, as a debt due to the Commonwealth or to the Authority, as the case requires, by the person, by action in a court of competent jurisdiction.

“(5) Where a person is convicted before a court of an offence against this Act, the court may (whether or not it has imposed a penalty on the person) order the person to pay an amount that the person is liable to pay under this section.

“(6) A recovery under subsection (4), or the making of an order under subsection (5), in respect of an expense or liability incurred in relation to rectifying an act or omission does not prevent a recovery under subsection (4), or the making of an order under subsection (5), in respect of another expense or liability incurred in relation to rectifying that act or omission.

“(7) For the purposes of this section, where a person is convicted of:

(a) an offence against:

(i) section 6 or 7a of the Crimes Act 1914; or

(ii) subsection 86 (1) of that Act by virtue of paragraph (a) of that subsection; or

(b) an offence against section 38k;

the following provisions have effect:

(c) the person shall be taken to have been convicted of an ancillary offence;

(d) the offence in relation to which the ancillary offence was committed shall be taken to be the primary offence to which the ancillary offence relates.

“(8) For the purposes of this section, where a person is convicted of an offence against this Act because of section 5 of the Crimes Act 1914:

(a) the person shall be taken to have been convicted of an ancillary offence; and

(b) the offence the commission of which the person aided, abetted, counselled, procured, or was knowingly concerned in, or party to, shall be taken to be the primary offence to which the ancillary offence relates.

“(9) A reference in this section to rectifying an act or omission constituting an offence against this Act is a reference:

(a) in the case of an offence against section 38h in relation to an order relating to the removal of a structure, landing area, farming facility, aircraft, vessel or other thing—to the taking of steps (whether in the exercise of powers conferred by section 61a, by another provision of this Act or by another law):

(i) to remove that structure, landing area, farming facility, vessel, aircraft or other thing;

(ii) to repair or remedy any condition arising from that removal;

(iii) to mitigate any damage arising from that removal; or

(iv) to prevent any damage likely to arise from that removal; and

(b) in all cases—to the taking of steps (whether in the exercise of powers conferred by section 61a, by another provision of this Act or by another law):

(i) to repair or remedy any condition arising from that act or omission;

(ii) to mitigate any damage arising from that act or omission; or

(iii) to prevent any damage likely to arise from that act or omission.

“(10) A reference in this section to a conviction of a person of an offence includes a reference to the making of an order under section 19b of the Crimes Act 1914 in relation to the person in respect of the offence.

Enforcement of orders for payment

“61c. (1) Where:

(a) under subsection 61b (5), a court orders a person to pay an amount; and

(b) the court has civil jurisdiction to the extent of the amount;

the order is enforceable in all respects as a final judgment of the court in favour of the Commonwealth or the Authority, as the case requires.

“(2) Where:

(a) under subsection 61b (5), a court orders a person to pay an amount; and

(b) the court:

(i) does not have civil jurisdiction; or

(ii) has civil jurisdiction, but does not have civil jurisdiction to the extent of the amount;

a proper officer of the court shall issue to the Minister or the Authority, as the case requires, a certificate in the prescribed form containing the prescribed particulars.

“(3) The certificate may, in a prescribed manner and subject to the prescribed conditions (if any), be registered in a court having civil jurisdiction to the extent of the amount ordered to be paid to the Commonwealth or the Authority, as the case requires.

“(4) Upon registration under subsection (3), the certificate is enforceable in all respects as a final judgment of the court in favour of the Commonwealth or the Authority, as the case requires.

“(5) The cost of registration of the certificate and other proceedings under this section shall, subject to the prescribed conditions (if any), be deemed to be payable under the certificate.”.


 

Jurisdiction of courts

27. Section 63 of the Principal Act is amended by omitting from subsection (1) “1903-1973” and substituting “1903.

28. Section 64 of the Principal Act is repealed and the following section is substituted:

Conduct of directors, servants and agents

“64. (1) Where it is necessary, for the purposes of this Act, to establish the state of mind of a body corporate in respect of conduct engaged in, or deemed by subsection (2) to have been engaged in, by the body corporate, it is sufficient to show that a director, servant or agent of the body corporate, being a director, servant or agent by whom the conduct was engaged in within the scope of his or her actual or apparent authority, had that state of mind.

“(2) Any conduct engaged in on behalf of a body corporate:

(a) by a director, servant 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, servant 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, servant or agent;

shall be deemed, for the purposes of this Act, to have been engaged in by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct.

“(3) Where it is necessary, for the purposes of this Act, to establish the state of mind of a person in relation to conduct deemed by subsection (4) to have been engaged in by the person, it is sufficient to show that a servant or agent of the person, being a servant or agent by whom the conduct was engaged in within the scope of his or her actual or apparent authority, had that state of mind.

“(4) Conduct engaged in on behalf of a person other than a body corporate:

(a) by a servant 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 a servant 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 servant or agent;

shall be deemed, for the purposes of this Act, to have been engaged in 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.

“(5) A reference in this section to the state of mind of person includes a reference to the knowledge, intention, opinion, belief or purpose of the person and the reasons for the intention, opinion, belief or purpose.

“(6) 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.

“(7) A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct.”.

Regulations

29. Section 66 of the Principal Act is amended:

(a) by omitting from paragraphs (2) (m) and (n) “the regulations” and substituting “this Act”;

(b) by inserting in paragraph (2) (u) “grant or” before “issue”.

(c) by inserting in paragraph (2) (u) “permissions,” before “permits” (wherever occurring);

(d) by inserting in paragraph (2) (u) “granted or” before “issued”;

(e) by omitting subsection (11) and substituting the following subsection:

“(11) The regulations may prescribe penalties not exceeding a fine of $5,000 for offences against the regulations.”.

Amendments relating to special zones

30. The Principal Act is amended as set out in the Schedule.

Transitional

31. An act or thing done before the commencement of this section by the Authority under section 55, 57, 58 or 60 of the Principal Act has effect, after the commencement of this section, as if it had been done by the Authority under the corresponding provision of Division 3 of Part XI of the Audit Act 1901.

Transitional—regulations relating to transferred offences

32. Regulations made for the purposes of section 38b, 38e, 38f, 38h or 38j of the Principal Act as amended by this Act may declare a permission, direction or order granted or given under the regulations before the commencement of this section to be a direction, permission or order to which the section concerned applies.

——————

SCHEDULE                                      Section 30

AMENDMENTS RELATING TO SPECIAL ZONES

Subsection 3 (1) (definitions of “park”, “plan of management” and “special zone”):

Omit the definitions.

Subsection 32 (5):

Omit the subsection.

Subsection 32 (6):

Omit “other than a special zone,”.

Sections 34 and 35:

Repeal the sections.

Subsection 36 (1):

Omit “, other than a special zone,”.

Subsection 36 (2):

Omit “or a plan of management”.

Subsection 37 (1):

Omit “Subject to subsection (3), the”, substitute “The”.

Subsection 37 (2):

Omit “Subject to subsection (5), a”, substitute “A”.

Subsections 37 (3), (4), (5), (6), (7), (8) and (9):

Omit the subsections.

Subsection 48 (1):

Omit “, other than in a special zone,”.

Subsection 48 (2):

Omit “, other than in a special zone”.

Section 51:

Repeal the section.

Paragraph 66 (3) (a):

Omit “other than special zones”.

Paragraphs 66 (3) (c) and (d):

Omit “, other than a special zone”.

Subsection 66 (4):

Omit the subsection.

NOTE

1. No. 85, 1975, as amended. For previous amendments, see Nos. 36 and 140, 1978; No. 155, 1979; No. 70, 1980; No. 80, 1982; No. 97, 1983; No. 65, 1984; and Nos. 65, 166 and 193, 1985.

 

[Minister’s second reading speech made in—

Senate on 1 September 1988

House of Representatives on 28 November 1988]