354A

Offences relating to activities that may only be carried on under management plan

Current

Causing death etc to native species or damage to heritage

(1)

A person commits an offence if:

(a)

the person takes an action; and

(b)

the action is taken in a Commonwealth reserve; and

(c)

the action:

(i)

results in the death, injury, taking, trade, keeping or moving of a member of a native species in the reserve; or

(ii)

results in damage to heritage in the reserve.

Penalty: Imprisonment for 2 years or 1,000 penalty units, or both.

Note 1:

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

Note 2:

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 this subsection.

(2)

Strict liability applies:

(a)

to paragraph (1)(b); and

(b)

to the physical element of circumstance in paragraph (1)(c), that the member of the native species or the heritage is in the reserve.

Note:

For strict liability, see section 6.1 of the Criminal Code.

Erection of buildings etc.

(3)

A person commits an offence if:

(a)

the person takes any of the following actions:

(i)

erecting a building or structure;

(ii)

carrying on an excavation;

(iii)

carrying out works; and

(b)

the action is taken in a Commonwealth reserve.

Penalty: Imprisonment for 2 years or 1,000 penalty units, or both.

Note 1:

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

Note 2:

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 this subsection.

(4)

Strict liability applies to paragraph (3)(b).

Note:

For strict liability, see section 6.1 of the Criminal Code.

Actions taken for commercial purposes

(5)

A person commits an offence if:

(a)

the person takes an action; and

(b)

the person takes the action for a commercial purpose; and

(c)

the action is taken in a Commonwealth reserve.

Penalty: Imprisonment for 2 years or 1,000 penalty units, or both.

Note 1:

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

Note 2:

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 this subsection.

(6)

Paragraph (5)(b) states the fault element for paragraph (5)(a).

(7)

Strict liability applies to paragraph (5)(c).

Note:

For strict liability, see section 6.1 of the Criminal Code.

Exception for actions in accordance with a management plan

(8)

Subsections (1), (3) and (5) do not apply to an action if the action is in accordance with a management plan in operation for the Commonwealth reserve in which the action is taken.

Note 1:

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

Note 2:

This exception might not apply in relation to actions taken in the Antarctic (see subsection (16)).

Exception for mining operations

(9)

Subsections (1), (3) and (5) do not apply to an action if the action is taken in the course of carrying on mining operations.

Note 1:

Mining operations are covered by sections 355, 355A and 387.

Note 2:

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

Exception for certain actions taken by the Director—actions in places other than Kakadu, Uluru or Jervis Bay

(10)

Subsections (1), (3) and (5) do not apply to an action taken by the Director if:

(a)

a management plan is not in operation for the Commonwealth reserve in which the action is taken; and

(b)

the action is not taken in the Kakadu region, the Uluru region or the Jervis Bay Territory; and

(c)

the Director takes the action for the purpose of:

(i)

preserving or protecting the reserve; or

(ii)

protecting or conserving biodiversity or heritage in the reserve; or

(iii)

controlling authorised scientific research; or

(iv)

protecting persons or property in the reserve; or

(v)

managing the effects of actions taken under a usage right described in section 359.

Note 1:

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

Note 2:

This exception might not apply in relation to actions taken in the Antarctic (see subsection (16)).

Exception for certain actions taken by the Director—conduct in Kakadu, Uluru or Jervis Bay

(11)

Subsections (1), (3) and (5) do not apply to an action taken by the Director in accordance with section 385.

Note:

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

Exception for prior usage rights

(12)

Subsections (1), (3) and (5) do not apply to an action that is covered by a usage right, or a right arising out of a usage right, to which section 359 applies.

Note 1:

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

Note 2:

This exception might not apply in relation to actions taken in the Antarctic (see subsection (16)).

Exception for prior traditional use

(13)

Subsections (1), (3) and (5) do not apply to an action that is covered by section 359A.

Note:

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

Exception for actions approved under section 359B

(14)

Subsections (1), (3) and (5) do not apply to an action that is covered by an approval in force under subsection 359B(1). For this purpose, an action is covered by such an approval if:

(a)

a management plan is not in operation for the Commonwealth reserve; and

(b)

the action is, or is in the class of actions, specified in the approval; and

(c)

the action is taken in accordance with the approval by the person, or a person in the class of persons, specified in the approval in the area specified in the approval.

Note:

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

Actions in the Antarctic

(15)

Subsections (1), (3) and (5) do not apply to an action taken in the Antarctic if:

(a)

taking the action is an element of an offence under the Antarctic Treaty (Environment Protection) Act 1980; and

(b)

the person has a defence under that Act in relation to the offence.

Note:

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

(16)

The exceptions in subsections (8), (10) and (12) of this section do not apply in relation to an action taken in the Antarctic if taking the action is an element of an offence under the Antarctic Treaty (Environment Protection) Act 1980.

Note:

Although the exception in subsection (9) can still apply, mining operations in the Antarctic are prohibited in any case under the Antarctic Treaty (Environment Protection) Act 1980. The exceptions in subsections (11) and (13) cannot apply to actions taken in the Antarctic.

Sentencing restriction for offences in the exclusive economic zone

(17)

A court must not impose a sentence of imprisonment on a person for an offence under subsection (1) or (5) if:

(a)

fishing (as defined in the Fisheries Management Act 1991) constituted a physical element of the offence; and

(b)

the fishing was done:

(i)

in the exclusive economic zone; and

(ii)

otherwise than from an Australian vessel (or a vessel declared to be an Australian boat under subsection 4(2) of the Fisheries Management Act 1991); and

(c)

at the time of the fishing, the person was not an Australian citizen or a person who held a permanent visa under the Migration Act 1958 and was domiciled in Australia or an external territory.

Section has effect despite other laws

(18)

Except as provided in this section, this section has effect despite any other law of the Commonwealth or of a State or Territory.

This Act’s bill:Explanatory memorandum Second reading speech

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