Environment Protection and Biodiversity Conservation Act 1999

This section applies to an action taken by a person if all of the following conditions are met:

the person’s action:

results in the injury or death of a cetacean, or consists of taking a cetacean, in the Australian Whale Sanctuary (but not the coastal waters, or a part of the coastal waters of a State or the Northern Territory for which a declaration under section 228 is in force) or in waters beyond the outer limits of the Australian Whale Sanctuary; or

consists of treating a cetacean killed, injured or taken in contravention of section 229, 229A, 229B or 229C;

the person’s action does not constitute an offence against section 229, 229A, 229B, 229C or 229D;

the person’s action is not an action that the person was authorised by a permit to take.

Section 231 sets out most of the circumstances in which an action described in paragraph (1)(a) will not be an offence against section 229, 229A, 229B, 229C or 229D.

A person is authorised by a permit to take an action if the person is the holder of the permit or the person is given an authority under section 241 by the holder of the permit to take the action.

The conditions of a permit may require the holder of the permit to give certain notices.

Within 7 days of becoming aware of the action, the person must notify the CEO in writing, by telephone or by use of any other electronic equipment:

that the action was taken; and

of other particulars (if any) about the action that are prescribed by the regulations.

An example of the particulars about the action that the regulations may prescribe is the time and place of taking the action. This does not limit the particulars the regulations may prescribe.

Subsection (2) does not apply if:

the person, or any other person or body, is required by or under a law of the Commonwealth to notify the CEO of the action; or

the action is in a class of actions:

that is specified in an agreement or arrangement between the Secretary, or CEO, and a Commonwealth agency or an agency of a State or self‑governing Territory; and

that the agreement or arrangement provides are to be notified to the CEO by the agency.

The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.

A person commits an offence punishable on conviction by a fine not exceeding 100 penalty units if the person:

fails to do an act; and

the failing to do the act results in a contravention of subsection (2).

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.