Commonwealth Numbered Regulations

ENVIRONMENT AND HERITAGE LEGISLATION AMENDMENT (APPLICATION OF CRIMINAL CODE) REGULATIONS 2002 (NO. 1) 2002 NO. 8 - SCHEDULE 6

(regulation 8)

[1] Subregulations 38 (1) to (3)

substitute

(1) A person must not use:

(a)

an underwater breathing apparatus that is not a snorkel; or

(b)

a power-head;

for spearfishing in an unzoned area.

Penalty:
10 penalty units.

(2)

However, it is a defence to a prosecution under subregulation (1) if:

(a)

the person uses a power-head with the intention of protecting himself or herself, or any other person, from attack by a shark; or

(b)

the person uses the underwater breathing apparatus or power-head:

(i)

for scientific research; and

(ii)

in accordance with the written permission of the Authority, given for the purposes of this regulation.

Note
A defendant bears an evidential burden in relation to the matters mentioned in subregulation (2) (see section 13.3 of the Criminal Code ).

[2] Subregulation 40 (1)

substitute

(1)

A person must not take, or have in his or her possession, a fish of a species listed in Schedule 5 that is more than 1 200 millimetres in length.

Penalty:
10 penalty units.

(1A)

However, it is a defence to a prosecution under subregulation (1) if the person is acting in accordance with the written permission of the Authority.

Note
A defendant bears an evidential burden in relation to whether or not he or she was acting in accordance with the written permission of the Authority (see section 13.3 of the Criminal Code ).

(1B)

An offence under subregulation (1) is an offence of strict liability.

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

[3] Subregulation 40 (3)

substitute

(3) In this regulation:
"take", in relation to a fish, means:

(a)

gather, catch, capture or obtain the fish by any means; or

(b)

engage in conduct that results in the death or destruction of the fish.

[4] Subregulation 41 (2)

omit everything before subparagraph (a) (i), insert

(2)

However, it is a defence to a prosecution under this regulation in relation to a tender commercial fishing vessel if the vessel:

(a)

is engaged in:

[5] Paragraph 41 (2) (b)

omit

that

[6] After subregulation 41 (4), including the penalty

insert

(5)

An offence under subregulation (4) is an offence of strict liability.

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

[7] Regulation 41A

substitute

41A Certain animals not to be taken onto Commonwealth islands
(1) A person must not:
(a) take a living terrestrial animal onto an island, or part of an island, that is:

(i)

owned by the Commonwealth; and

(ii)

within the Marine Park; or

(b) allow a living terrestrial animal to enter upon an island, or part of an island, that is:

(i)

owned by the Commonwealth; and

(ii)

within the Marine Park.

Penalty:
10 penalty units.

(2)

However, it is a defence to a prosecution under subregulation (1) if:

(a)

the person is a blind person and the animal is the person's guide dog; or

(b)

the person has the written permission of the Authority to take the animal onto, or allow the animal to enter upon, the island or part of an island.

Note
A defendant bears an evidential burden in relation to the matters mentioned in subregulation (2) (see section 13.3 of the Criminal Code ).

[8] Subregulation 45A (2)

omit everything before paragraph (a), insert

(2)

However, it is a defence to a prosecution under subregulation (1) if the sewage is discharged:

[9] Regulation 46

substitute

46 Littering prohibited

(1)

A person must not deposit litter in the Marine Park.

Penalty:
2 penalty units.

(2)

An offence under subregulation (1) is an offence of strict liability.

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

[10] Regulation 48

substitute

48 Authority moorings

(1)

A person must not remove or misuse, or engage in conduct that results in damage to, a mooring installed in the Marine Park by the Authority.

Penalty:
10 penalty units.

(2)

However, it is a defence to a prosecution under subregulation (1) if the person has a reasonable excuse.

Note
A defendant bears an evidential burden in relation to whether or not he or she had a reasonable excuse (see section 13.3 of the Criminal Code ).

(3)

An offence under subregulation (1) is an offence of strict liability.

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

[11] After subregulation 84 (2), including the penalty

insert

(3)

For the purposes of an offence under subregulation (2), strict liability applies to the physical element of whether, if the receipt or ticket is being used as evidence, the evidence is evidence for regulation 83.

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

[12] Subregulation 106 (1), at the foot

insert

Penalty:
10 penalty units.

[13] Subregulation 106 (2), at the foot

insert

Penalty:
10 penalty units.

[14] Subregulation 106 (3), at the foot

insert

Penalty:
10 penalty units.

[15] Subregulation 106 (4)

omit

for the purpose of

insert

to enable

[16] After subregulation 106 (4), including the penalty

insert

(5)

A offence under subregulation (1), (2), (3) or (4) is an offence of strict liability.

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

[17] After subregulation 110 (1), including the penalty

insert

(2)

An offence under subregulation (1) is an offence of strict liability.

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

[18] Subregulation 113 (1)

substitute

(1)

A person must not contravene a provision of Part 2 of the Plan.

Penalty:
10 penalty units.

[19] Subregulation 113 (2), at the foot

insert

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

[20] Subregulation 113 (3)

substitute

(3)

It is a defence to a prosecution under subregulation (1) if the person is acting in accordance with an authorisation or as permitted by subregulation 29 (3).

Note
A defendant bears an evidential burden in relation to the matter mentioned in subregulation (3) (see section 13.3 of the Criminal Code ).

[21] Subregulation 117 (1)

substitute

(1)

A person must not contravene a provision of Part 2 of the Plan.

Penalty:
10 penalty units

[22] Subregulation 117 (2), at the foot

insert

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

[23] Subregulation 117 (3)

substitute

(3)

It is a defence to a prosecution under subregulation (1) if the person is acting in accordance with an authorisation or as permitted by subregulation 29 (3).

Note
A defendant bears an evidential burden in relation to the matter mentioned in subregulation (3) (see section 13.3 of the Criminal Code ).