Commonwealth Consolidated Acts

GREAT BARRIER REEF MARINE PARK ACT 1975 - SECT 38BA

Conduct prohibited or done without required permission

  (1)   A person commits an offence if:

  (a)   the person engages in conduct; and

  (b)   the conduct is engaged in in a zone; and

  (c)   under the zoning plan for the zone, the conduct:

  (i)   is prohibited; or

  (ii)   requires permission; and

Note:   Prohibited is defined in subsection   3(1).

  (d)   if the conduct requires permission--the person is not authorised to engage in the conduct 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:

  (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 1:   For an aggravated offence, see also subsection   38GA(9).

Note 2:   See also Division   8.

  (2)   Strict liability applies to paragraphs   (1)(b), (c) and (d).

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

Conduct prohibited or done without required permission: strict liability

  (3)   A person commits an offence if:

  (a)   the person engages in conduct; and

  (b)   the conduct is engaged in in a zone; and

  (c)   under the zoning plan for the zone, the conduct:

  (i)   is prohibited; or

  (ii)   requires permission; and

Note:   Prohibited is defined in subsection   3(1).

  (d)   if the conduct requires permission--the person is not authorised to engage in the conduct 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:   60 penalty units.

Increased penalty for conduct involving a turtle or dugong

  (3A)   If:

  (a)   a person commits an offence against subsection   (3); and

  (b)   the conduct the person engaged in that constituted the offence resulted in the taking of or injury to an animal; and

  (c)   the animal is a member of a protected species; and

  (d)   the protected species is:

  (i)   a species in the genus Dugong (dugong); or

  (ii)   a species in the family Cheloniidae (marine turtles); or

  (iii)   the species Dermochelys coriacea (leatherback turtles);

then the number of penalty units set out in the penalty for the offence is tripled.

  (3B)   If the prosecution intends to prove an offence against subsection   (3) and rely on subsection   (3A), the charge must also allege which subparagraph of paragraph   (3A)(d) applies in relation to the animal.

  (4)   Strict liability applies to subsection   (3) and paragraphs   (3A)(b), (c) and (d).

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

Defence--prescribed circumstances

  (5)   Subsections   (1) and (3) do not apply if circumstances prescribed by the regulations for the purposes of this subsection exist in relation to the conduct. Any circumstances prescribed must relate to:

  (a)   conduct engaged in during the period of 120 days after the day on which the zoning plan, or an amendment of the zoning plan, commenced; or

  (b)   conduct engaged in after the end of that period if the person had applied for a permission for the purposes of the zoning plan during that period.

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