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GREAT BARRIER REEF MARINE PARK AMENDMENT REGULATIONS 2003 (NO. 2) 2003 NO. 200
EXPLANATORY STATEMENTSTATUTORY RULES 2003 No. 200
ISSUED BY AUTHORITY OF THE MINISTER FOR THE ENVIRONMENT AND HERITAGE
Great Barrier Reef Marine Park Act 1975
Great Barrier Reef Marine Park Amendment Regulations 2003 (No. 2)
Subsection 66(1) of the Great Barrier Reef Marine Park Act 1975 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act nor with a zoning plan, prescribing all matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Paragraph 66(2)(n) of the Act provides that regulations may be made enabling a person who is alleged to have contravened a provision of the regulations to pay to the Great Barrier Reef Marine Park Authority (the Authority), as an alternative to prosecution, a stated penalty that is not more than one-fifth of the maximum penalty by which a contravention of that provision is otherwise punishable.
Subsection 66(11) of the Act provides that the regulations may prescribe penalties not exceeding a fine of 50 penalty units for offences against the regulations. (Pursuant to subsection 4AA(1) of the Crimes Act 1914 one penalty unit is equivalent to $110).
The purpose of the Regulations is to increase maximum penalties for specified offences against the Great Barrier Reef Marine Park Regulations 1983 (the principal Regulations) to 50 penalty units pursuant to subsection 66(11) of the Act, to provide that certain offences are offences are offences of strict liability and to enable, as an alternative to prosecution for specified offences, the payment of an infringement notice penalty pursuant to paragraph 66(2)(n) of the Act.
The offences for which the maximum penalties have been increased to 50 penalty units are set out in Attachment A. Maximum penalties of 50 penalty units are considered necessary to:
• reflect the seriousness of these offences in the Great Barrier Reef Marine Park and provide sufficient deterrent to protect its world heritage values;
• equate maximum penalties for the offences with penalties of 50 penalty units prescribed for other similarly serious offences against the principal Regulations (eg regulations 37B, 37H, 40A, 41 and 45A); and
• reduce the inconsistency in maximum penalties between these offences and comparable offences against the Marine Parks Regulation 1990 (Qld) which provides, in subsection 42(4), that "A person who commits an offence against this regulation is liable to a penalty not exceeding 100 penalty units."
The offences which the regulations make offences of strict liability relate to taking of live animals onto Commonwealth owned islands in the Marine Park, displaying a bareboat identification number in certain circumstances, altering or adding dates on receipts or tickets, record keeping, and the contravention of the enforcement provisions of Plans of Management.
The type of offences that are classified as infringement notice offences are set out in Attachment B. The advantages of enabling certain offences against the principal Regulations to be dealt with by infringement notice, include:
• the availability of the option of paying the infringement notice penalty as an alternative to prosecution for a person served with an infringement notice;
• reductions in the public expense and diversion of resources associated with prosecution;
• greater flexibility and efficiency in enforcement; and
• consistency with the Environment Protection and Biodiversity Conservation Act 1999 and the Queensland Marine Parks regime, both of which provide for infringement notices.
Details of the Regulations are set out in Attachment C.
The Regulations commence on gazettal.
Attachment A
The offences for which the maximum penalties have been increased to 50 penalty units are:
• subregulation 40(1) - this subregulation makes it an offence for a person to take, or have in his or her possession, a fish of a species listed in Schedule 5 that is more than 1200 millimetres in length;
• subregulation 41A(1) - this subregulation makes it an offence for a person to take or allow a living terrestrial animal onto an island, or part of an island, that is owned by the Commonwealth in the Marine Park;
• subregulation 46(1) - this subregulation makes it an offence for a person to deposit litter in the Marine Park;
• subregulation 48(1) - this subregulation makes it an offence for a person to misuse, or engage in conduct that results in damage to, a mooring installed in the Marine Park by the Authority;
• regulation 66C - this regulation makes it an offence for a person to display a bareboat identification number in certain circumstances;
• subregulation 84(1) - this subregulation makes it an offence for a person to alter the date on a receipt or ticket or add a date to a receipt or ticket that does not bear a date;
• subregulation 84(2) - this subregulation makes it an offence for a person to use as evidence for the purposes of regulation 83 a receipt or ticket that the permission holder knows has been altered (including altered by adding a date), or has reason to believe has been so altered;
• subregulations 106 (1), (2), (3), (4) - these subregulations create offences relating to the keeping of records for Environmental Management Charge purposes;
• subregulation 110(1) - this subregulation makes it an offence for a person to contravene Part 2 of the Shoalwater Bay (Dugong) Plan of Management;
• subregulation 113(1) - this subregulation makes it an offence for a person to contravene Part 2 of the Cairns Area Plan of Management; and
• subregulation 117(1) - this subregulation makes it an offence for a person to contravene Part 2 of the Whitsundays Plan of Management.
Attachment B
The types of offences that are classified as infringement notice offences are:
• subregulation 38(1) - offences relating to spearfishing;
• subregulation 40(1) - the taking of certain fishing the Marine Park;
• subregulation 41A(1) - certain animals not to be taken onto Commonwealth islands;
• subregulation 46(1) - littering in the Marine Park;
• subregulation 48(1) - damaging Authority moorings;
• subregulation 66C(1) - offence to display identification number on a bareboat;
• subregulations 84(1) and (2) - offences relating to the altering of tickets;
• subregulations 106(1), (2), (3) and (4) - offences relating to record keeping;
• subregulation 113(1) - offence to contravene Part 2 of the Cairns Area Plan of Management; and
• subregulation 117(1) - offence to contravene Part 2 of the Whitsundays Plan of Management.
Attachment C
Great Barrier Reef Marine Park Amendment Regulations 2003 (No. 2)
Regulation 1 provides that the name of the Regulations is the Great Barrier Reef Marine Park Amendment Regulations 2003 (No. 2).
Regulation 2 provides that the Regulations commence on gazettal.
Regulation 3 provides that Schedule 1 amends the Great Barrier Reef Marine Park Regulations 1983.
Schedule 1 - Amendments
Amendment 1 omits from the principal Regulations Division 5.3, consisting solely of regulation 38 -offences relating to spearfishing in unzoned area. Unzoned areas of the Marine Park are in the process of being zoned. Regulation 38 is replaced by Amendment 2 which inserts new regulation 38 - offences relating to spearfishing, and applies to the entire Marine Park.
Amendment 2 inserts in Part 6 of the principal Regulations new regulation 38.
New Regulation 38 - Offences relating to spearfishing
Subregulation (1) prohibits a person who is spearfishing in the Marine Park from using certain equipment specified in this regulation.
Subregulation (2) provides that an offence against subregulation (1) is an offence of strict liability.
Subregulation (3) provides defences in relation to the use of an underwater breathing apparatus.
Subregulation (4) provides defences in relation to the use of a power-head.
Subregulation (5) defines the terms "power-head" and "spearfishing".
Amendment 3 inserts new subregulation (3) into regulation 41A. New subregulation (3) provides that an offence against subregulation 41A(1) is an offence of strict liability. Subregulation 41A(1) makes it an offence for a person to take a living terrestrial animal onto an island, or part of an island, owned by the Commonwealth that is in the Marine Park.
Amendment 4 omits regulation 47 which Amendment 8 renders redundant by the insertion of Part 13A - Infringement Notices.
Amendment 5 renumbers regulation 66C as subregulation 66C(1) to allow for Amendment 6.
Amendment 6 inserts new subregulation (2) into regulation 66C. New subregulation 66C(2) provides that an offence against subregulation 66C(1) is an offence of strict liability. Subregulation 66C(1) makes it an offence for a person to display a bareboat identification number in certain circumstances.
Amendment 7 renumbers the current subregulation 84(3) as paragraph 84(3)(b) and inserts paragraph 84(3)(a) providing that an offence against subregulation 84(1) is an offence of strict liability. Subregulation 84(1) makes it an offence for a person to alter the date on a receipt or ticket, or add a date to a receipt or ticket that does not bear a date.
Amendment 8 inserts a new Part 13A into the principal Regulations. New Part 13A establishes a scheme enabling a person who is alleged to have contravened a provision of the regulations to pay to the Authority, as an alternative to prosecution, a stated penalty that is not more than one-fifth of the maximum penalty by which a contravention of that provision is otherwise punishable, pursuant to paragraph 66(2)(n) of the Act.
This amendment also inserts new regulations 122A -122P inclusive as follows:
New Regulation 122A - Purpose of Part 13A
Regulation 122A sets out the purpose of Part 13A.
New Regulation 122B - Interpretation
Regulation 122B defines certain key terms used in Part 13A.
New Regulation 122C - Infringement notices
Subregulation 122C(1) prescribes the circumstances in which an inspector may serve, or cause to be served, an infringement notice on a person; that is, where there are reasonable grounds for believing that the person has committed an offence against a provision mentioned in Schedule 10.
Subregulation (2) outlines the information that an infringement notice must contain.
Subregulation (3) allows an infringement notice to contain any other information considered necessary by an inspector or the Authority.
New Regulation 122D - Infringement notice penalty
Regulation 122D provides that the infringement notice penalty for an offence against a provision mentioned in column 2 of an item in Schedule 10 is the infringement notice penalty mentioned in column 3 of the item.
New Regulation 122E - Service of infringement notice
Subregulations 122E(1) and (2) provide the method of serving an infringement notice.
Subregulation 122E(3) provides that an infringement notice is of no effect if served on a person more than 12 months after the alleged commission of the offence by the person.
New Regulation 122F - Payment of penalty
Regulation 122F provides the period within which an infringement notice penalty must be paid.
New Regulation 122G - Extension of time to pay
Subregulation (1) allows a person on whom an infringement notice has been served to apply in writing to the Authority requesting an extension of time to pay the infringement notice penalty.
Subregulation (2) provides that if an application for an extension of time is received after 28 days after the date of service of the infringement notice, then an application requesting an extension of time must also include a statement outlining why the person could not deal with the notice within that period.
Subregulation (3) requires the Authority to grant or refuse the extension, provide the person with a written notice of the decision and, if the decision was to refuse the extension of time, state in the notice the reasons for the refusal and the period in which the infringement notice penalty must be paid.
New Regulation 122H - Matters for Authority to take into account
Regulation 122H enables a person served with an infringement notice to notify the Authority of any facts or matters that the person believes ought to be taken into account in relation to the alleged offence, in which case the period for payment of the infringement notice penalty is extended to the extent necessary to enable the Authority to consider those facts and matters and the Authority must make a decision under subregulation 1221(2).
New Regulation 122I - Withdrawal of infringement notices
Regulation 1221 sets out the circumstances in which the Authority may withdraw or refuse to withdraw an infringement notice.
Subregulation (1) allows the Authority to withdraw an infringement notice at its own initiative by giving notice of the withdrawal to the person before the end of 28 days after the day the infringement notice was served on the person or, if the Authority grants a further period for payment of the infringement notice, before the end of that period.
Subregulation (2) provides that if the Authority receives a notice from a person under regulation 122H, the Authority must make a decision to either withdraw or refuse to withdraw the infringement notice and give the person written notice of the decision in accordance with the requirements in subregulation (4).
Subregulation (3) outlines the matters that the Authority must consider when making a decision under subregulation (1) or (2).
Subregulation (4) outlines the information that a written notice of decision must contain where the Authority has made a decision to refuse to withdraw an infringement notice.
Subregulation (5) clarifies the situation where the person has paid the infringement notice penalty, and the Authority subsequently withdraws the infringement notice. In such circumstances, the Authority is required to refund to the person the amount paid.
New Regulation 122J - Effect of payment of infringement notice penalty
Subregulation (1) provides that payment of the infringement notice penalty in accordance with Part 13A discharges liability in respect of the offence without recording a conviction.
Subregulation (2) clarifies that if the infringement notice penalty is paid by cheque, the payment is taken not to have been made unless the cheque is honoured on presentation. This provision not only clarifies the situation if a cheque is dishonoured on presentation, but also confirms that liability under the infringement notice is not discharged until the total amount of the infringement notice is paid.
New Regulation 122K - Admissions under regulation 122H
Regulation 122K provides that evidence of an admission made by a person in a notice under regulation 122H is not admissible in proceedings against the person for the offence.
New Regulation 122L - Matter not to be taken into account in determining sentence
Subregulation (1) provides that this regulation applies if a person who is served with an infringement notice chooses not to pay the infringement notice penalty and is prosecuted for, and convicted of, the alleged offence mentioned in the infringement notice.
Subregulation (2) provides that where a person elects not to pay a infringement notice penalty and is convicted of the alleged offence, the court must not take into account in determining the penalty the fact that the person elected not to pay the infringement notice penalty.
New Regulation 122M - Evidence for hearing
Subregulation (1) provides for the signing of certificates by an inspector or the Authority as evidence of the facts stated in the certificate at the hearing of a prosecution for an offence mentioned in an infringement notice.
Subregulation (2) provides that a certificate that purports to have been signed by the Authority or an inspector is taken to have been signed by the Authority or the inspector unless the contrary is proved.
New Regulation 122N - Offences involving a vehicle - liability of owner
Subregulation (1) states that this regulation identifies who bears liability for the commission of an offence under these Regulations involving a vehicle.
Subregulation (2) provides that the owner of the vehicle at the time an offence is committed is taken to have committed the offence if the offence is committed by the person in charge of the vehicle.
Subregulation (3) provides a defence to subregulation (2) in that the owner of the vehicle is not liable for an offence if the vehicle was stolen or illegally taken at the time the offence was taken to have been committed, or if the owner provides to the Authority a statutory declaration stating that he or she was not in charge of the vehicle at the time of the alleged offence, and the name and address of the person who was in charge of the vehicle at that time.
Subregulation (4) provides that at the hearing of a prosecution of an owner for an offence involving a vehicle, a certificate signed by the Authority stating that the owner has not given to the Authority a statutory declaration relating to the offence is evidence of the matter so stated.
Subregulation (5) provides that, for the purposes of subregulation (4), a document that purports to have been signed by the Authority is to be taken to have been so signed unless the contrary is proved.
Subregulation (6) clarifies that this regulation does not affect the liability of a person who is not the owner of a vehicle involved in an offence against these regulations if the person would otherwise be liable for the offence.
New 122O - Copy of statutory declaration to be served
Subregulation (1) states the application of regulation 122O.
Subregulation (2) requires that a copy of the statutory declaration must be attached to the infringement notice served on the person named in the statutory declaration, or if the person named in the statutory declaration is to be prosecuted for the offence, then the statutory declaration must be attached to the summons for the offence when it is served on the person. However, if the person named in the statutory declaration is being prosecuted for the offence and the summons was served on that person before the statutory declaration was given, then the statutory declaration must be served on that person at least 3 days before the commencement of the hearing for the offence.
Subregulation (3) clarifies that the statutory declaration is admissible in evidence in a prosecution for the offence against the person and is evidence that the person was in charge of the vehicle at that time.
New Regulation 122P - Infringement notice not compulsory, etc
Regulation 122P provides that nothing in Part 13A is to be taken to:
a) require that a person be served with an infringement notice; or
b) affect the liability of a person to be prosecuted for an offence if an infringement notice is not served, or a decision is made to withdraw an infringement notice, or a person does not comply with an infringement notice; or
c) limit the penalty that may be imposed by a court for the offence; or
d) other than as provided in regulation 122J, affect any power under the Regulations or the Act that the Commonwealth or the Authority may exercise in relation to an alleged offence.
Amendment 9 amends the species name of a fish listed in Schedule 5 to account for a scientific reclassification.
Amendment 10 inserts Schedule 10 which sets out the offence provisions in respect of which an infringement notice may be issued and the infringement notice penalty applicable for each such provision.
Amendment 11 amends the maximum penalty for certain offence provisions to 50 penalty units pursuant to subsection 66(11) of the Act.