An Act providing for the protection of the environment by
regulating dumping into the sea, incineration at sea and artificial reef
placements, and for related purposesÂ
1Â
Short title [see
Note 1]
                  This Act may be cited as the Environment
Protection (Sea Dumping) Act 1981.
2Â Commencement [see Note 1]
                  This Act shall come into operation on a
date to be fixed by Proclamation.
3Â
Repeal
                  The following Acts are repealed:
Beaches, Fishing Grounds and Sea Routes Protection Act
1932. Beaches, Fishing Grounds and Sea Routes Protection Act 1961.
4Â
Interpretation
            (1) In this Act, unless the contrary
intention appears:
Antarctic Treaty means the Treaty concerning Antarctica,
to which Australia is a party, done at Washington on 1 December 1959.
Note:Â Â Â Â Â Â Â Â Â The text of the Treaty is set out in the
Australian Treaty Series 1961 No. 12.
artificial reef means a structure or
formation placed on the seabed:
                    (a) for the purpose of increasing or
concentrating populations of marine plants and animals; or
                    (b) for the purpose of being used in
human recreational activities;
and includes anything prescribed by the regulations to be
an artificial reef for the purposes of this definition, but does not include
anything prescribed by the regulations not to be an artificial reef for the
purposes of this definition.
artificial reef permit means a
permit under section 19 for the placement of an artificial reef.
artificial reef placement means
the placement of any controlled material into the sea for the purpose of
creating an artificial reef, being a placement that is not contrary to the aims
of the Protocol.
Australian aircraft means an aircraft that:
                    (a) is owned by:
                             (i) the Commonwealth or an
authority of the Commonwealth;
                            (ii) a State or an
authority of a State;
                           (iii) the Northern Territory
or an authority of the Northern Territory; or
                           (iv) the Administration of Norfolk
Island; or
                    (b) is registered in Australia.
Australian vessel means a vessel that:
                    (a) is owned by:
                             (i) the Commonwealth or an
authority of the Commonwealth;
                            (ii) a State or an
authority of a State;
                           (iii) the Northern Territory
or an authority of the Northern Territory; or
                           (iv) the Administration of Norfolk
Island; or
                    (b) is registered in Australia or
flying the Australian flag.
Australian waters means:
                    (a) the territorial sea of Australia
and any sea that is on the landward side of the territorial sea of Australia,
other than any part of the sea that is within the limits of a State or of the
Northern Territory; or
                    (b) the territorial sea of an external
Territory and any sea that is on the landward side of that territorial sea; or
                    (c) the exclusive economic zone,
within the meaning of the Seas and Submerged Lands Act 1973, adjacent to
the coast of Australia or the coast of an external Territory; or
                    (d) any other area of sea that is above
the continental shelf of Australia or above the continental shelf of an
external Territory;
and includes any area of sea that is declared by the
regulations to be included in Australian waters for the purposes of this Act.
Note:Â Â Â Â Â Â Â Â Â Section 4A can affect the scope of the
definition of Australian waters.
coastal waters means:
                    (a) in relation to a State—that part
of the sea that is included in the coastal waters of the State within the
meaning of the Coastal Waters (State Powers) Act 1980; or
                    (b) in relation to the Northern
Territory—that part of the sea that is included in the coastal waters of the
Territory within the meaning of the Coastal Waters (Northern
Territory Powers) Act 1980.
continental shelf, in relation to Australia
or to an external Territory, has the same meaning as it has for the purposes of
the Seas and Submerged Lands Act 1973.
controlled material means:
                    (a) wastes or other matter (within the
meaning of the Protocol); and
                    (b) a vessel, aircraft or platform.
holder, in relation to a permit, means the
person to whom the permit has been granted.
inspector means:
                    (a) a person appointed as an inspector
under section 26; or
                    (b) a member of a police force, or an
officer of the Australian Customs Service, who is an inspector by force of
section 27.
offending craft, in relation to an offence
against section 10F, means:
                    (a) if the primary offence referred to
in section 10F is an offence against section 10A—any vessel, aircraft
or platform from which, or on which, the controlled material was dumped; or
                    (b) if the primary offence referred to
in section 10F is an offence against section 10B—the vessel or
platform on which the controlled material was incinerated; or
                    (c) if the primary offence referred to
in section 10F is an offence against section 10C—the vessel, aircraft
or platform on which the controlled material was loaded; or
                    (d) if the primary offence referred to
in section 10F is an offence against section 10D—any vessel, aircraft
or platform used to export the controlled material; or
                    (e) if the primary offence referred to
in section 10F is an offence against section 10E—any vessel, aircraft
or platform from which the artificial reef placement occurred.
offending material means:
                    (a) in relation to an offence against
section 10A—the controlled material that was dumped; or
                    (b) in relation to an offence against
section 10B—the controlled material that was incinerated; or
                    (c) in relation to an offence against
section 10C—the controlled material that was loaded; or
                    (d) in relation to an offence against
section 10D—the controlled material that was exported; or
                    (e) in relation to an offence against
section 10E—the controlled material that was placed for the purpose of
creating an artificial reef; or
                     (f) in relation to an offence against
section 10F—the offending material in relation to the primary offence
referred to in section 10F.
owner, in relation to a vessel, aircraft or
platform, includes:
                    (a) every person who is a co‑owner
of the vessel, aircraft or platform or of any part of, or any share in, the
vessel, aircraft or platform; and
                    (b) every person who has the use or
control (whether alone or jointly with another person or other persons) of the
vessel, aircraft or platform.
permit means a permit granted under section 19.
person in charge means:
                    (a) in relation to a vessel—the master
or other person in charge of the vessel;
                    (b) in relation to an aircraft—the
person in charge of the aircraft; or
                    (c) in relation to a platform—the
person in charge of the operations conducted on or from the platform.
platform includes any man‑made
structure at sea, whether floating or fixed to the seabed, but does not include
a vessel.
Protocol means the 1996 Protocol to the
Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other
Matter, 1972, done at London on 7 July 1996, as amended and in force for Australia
from time to time.
Note:Â Â Â Â Â Â Â Â Â The English text of the Protocol is set out in
Australian Treaty Series 2006 No. 11. In 2006, the text of a Protocol in
the Australian Treaty Series was accessible through the Australian Treaties
Library on the AustLII Internet site (www.austlii.edu.au).
radioactive material means material that has
an activity of more than 35 becquerels per gram.
seriously harmful material means:
                    (a) radioactive material; or
                    (b) any other material that is
prescribed by the regulations for the purposes of this paragraph.
Note:Â Â Â Â Â Â Â Â Â Subsection 41(3) places limitations on the
making of regulations for the purposes of paragraph (b) of this
definition.
territorial sea, in relation to Australia or
to an external Territory, has the same meaning as it has for the purposes of
the Seas and Submerged Lands Act 1973.
Torres Strait Treaty means the Treaty between
Australia and the Independent State of Papua New Guinea concerning
Sovereignty and Maritime Boundaries in the area between the two Countries,
including the area known as Torres Strait, and Related Matters done at Sydney
on 18 December 1978.
Note:Â Â Â Â Â Â Â Â Â The text of the Treaty is set out in
Australian Treaty Series 1985 No. 4.
            (2) A reference in this Act to an offence
shall be read as including a reference to an offence created by section 6,
7 or 7A of the Crimes Act 1914 in relation to this Act.
            (3) A reference in this Act to a member of
the Australian Federal Police or to a member of a police force shall be read as
including a reference to a special member of the Australian Federal Police.
            (4) Except so far as the contrary intention
appears, an expression that is used both in this Act and in the Protocol
(whether or not a particular meaning is assigned to it by the Protocol) has, in
this Act, the same meaning as in the Protocol.
            (5) For the purposes of this Act, where any
controlled material is disposed of from a vessel, an aircraft or a platform
into part of the seabed or its subsoil, that controlled material shall be taken
to have been disposed of into the sea above that part.
4AÂ
Application of Act in relation to certain waters that are subject to the Torres
Strait Treaty
            (1) For the purposes of this Act, Australian
waters does not include the top hat area unless a notice is in force
under subsection (2).
            (2) The Minister may, by notice in the Gazette,
declare that Papua New Guinea has notified Australia that Papua New Guinea
agrees to Australia’s exercise of jurisdiction under this Act in relation to
the top hat area.
Note:Â Â Â Â Â Â Â Â Â The notice can be revoked under subsection
33(3) of the Acts Interpretation Act 1901.
            (3) In this section:
top hat area means the area described in
Article 4.3 of the Torres Strait Treaty.
4BÂ
Application of Act in relation to certain waters that are subject to the
Australia‑Indonesia Delimitation Treaty
            (1) This section commences to have effect
when the Australia‑Indonesia Delimitation Treaty enters into force for Australia.
            (2) The Minister must not issue a permit in
relation to the overlap area unless:
                    (a) the Minister has first consulted
the Government of the Republic of Indonesia about issuing the permit; or
                    (b) a notice is in force under subsection (3)
and the issue of the permit is within the scope of the agreement to which the
notice relates.
            (3) The Minister may, by notice in the Gazette,
declare that the Government of the Republic of Indonesia has notified Australia
that the Government of the Republic of Indonesia agrees to the issue of permits
under this Act in relation to the overlap area, either generally or in
particular circumstances.
Note:Â Â Â Â Â Â Â Â Â The notice can be revoked under subsection
33(3) of the Acts Interpretation Act 1901.
            (4) An inspector must not exercise powers
under this Act in the overlap area in relation to:
                    (a) a vessel other than an Australian
vessel; or
                    (b) an aircraft other than an
Australian aircraft; or
                    (c) a platform, other than a platform
that is subject to Australia’s jurisdiction under paragraph 7(b) or (h) of the
Australia‑Indonesia Delimitation Treaty;
unless:
                    (d) the Minister has first consulted
the Government of the Republic of Indonesia about the exercise of powers by
inspectors in the overlap area in relation to that vessel, aircraft or
platform; or
                    (e) a notice is in force under subsection (5)
and the exercise of the powers is within the scope of the agreement to which
the notice relates.
            (5) The Minister may, by notice in the Gazette,
declare that the Government of the Republic of Indonesia has notified Australia
that the Government of the Republic of Indonesia agrees to the exercise by
inspectors of powers under this Act in the overlap area, either generally or in
particular circumstances.
Note:Â Â Â Â Â Â Â Â Â The notice can be revoked under subsection
33(3) of the Acts Interpretation Act 1901.
            (6) The validity of the exercise of a power
is not affected by a failure to comply with subsection (4).
            (7) In this section:
Australia‑Indonesia Delimitation Treaty
means the Treaty between the Government of Australia and the Government of the Republic
of Indonesia establishing an Exclusive Economic Zone Boundary and Certain
Seabed Boundaries done at Perth on 14 March 1997.
overlap area means the overlapping area
described in Article 7 of the Australia‑Indonesia Delimitation Treaty.
5Â
Exemption
                  This Act does not apply in relation to
the disposal or storage of controlled material (other than a vessel, aircraft
or platform) directly arising from, or related to, the exploration,
exploitation and associated off‑shore processing, of seabed mineral
resources.
6Â
Operation of Act
                  This Act applies both within and outside
Australia and extends to every external Territory.
7Â
Exemption for defence force vessels etc.
            (1) This Act does not apply in relation to a
vessel or aircraft belonging to the Australian Defence Force, when it is being
used:
                    (a) in a situation of armed conflict;
or
                    (b) in an emergency situation other
than a situation of armed conflict.
            (2) This Act does not apply in relation to a
vessel or aircraft belonging to the naval, military or air forces of a foreign
country.
8Â Act
to bind the Crown
            (1) This Act binds the Crown in right of the
Commonwealth, of each of the States, of the Northern Territory and of Norfolk
Island but nothing in this Act renders the Commonwealth, a State, the Northern
Territory or the Administration of Norfolk Island liable to be prosecuted for
an offence.
            (2) Subsection (1) does not affect any
liability of a person in charge of a vessel, aircraft or platform of which the
Commonwealth, a State, the Northern Territory or the Administration of Norfolk
Island is the owner to be prosecuted for an offence.
8AÂ Criminal
Code applies
                  Chapter 2 of the Criminal Code
applies to all offences against this Act.
9Â
Declaration by Minister in relation to coastal waters of State etc.
            (1) If the Minister is satisfied that the law
of a State makes provision for giving effect to the Protocol in relation to the
coastal waters of that State, the Minister may, by notice published in the Gazette,
make a declaration that limits the operation of this Act in relation to that
State and the coastal waters of that State. A declaration may be made in
relation to a State whether or not the Protocol extends to the whole of the
coastal waters of that State.
Note:Â Â Â Â Â Â Â Â Â Subsection 33(3) of the Acts Interpretation
Act 1901 allows the declaration to be revoked or amended.
            (2) However, this Act continues to apply in
relation to the State and its coastal waters in relation to the following
activities where they involve seriously harmful material:
                    (a) dumping or incineration at sea;
                    (b) loading for dumping or
incineration at sea;
                    (c) export for dumping or incineration
at sea;
                    (d) artificial reef placements.
            (3) A notice under this section is a
disallowable instrument for the purposes of section 46A of the Acts
Interpretation Act 1901.
            (4) In this section:
State includes the Northern Territory.
10AÂ
Dumping of controlled material
            (1) A person is guilty of an offence against
this section if, otherwise than in accordance with a permit, the person:
                    (a) dumps controlled material into
Australian waters from any vessel, aircraft or platform; or
                    (b) dumps controlled material into any
part of the sea from any Australian vessel or Australian aircraft; or
                    (c) dumps a vessel, aircraft or
platform into Australian waters; or
                    (d) dumps an Australian vessel or
Australian aircraft into any part of the sea.
            (2) An offence against this section is
punishable, on conviction, as follows:
                    (a) if it is proved that any of the
offending material is seriously harmful material—imprisonment for up to 10
years or a fine up to 2,000 penalty units, or both;
                    (b) if it is proved that any of the
offending material is not within Annex 1 to the Protocol—imprisonment for up to
2 years or a fine up to 500 penalty units, or both;
                    (c) in any other case—imprisonment for
up to 1 year or a fine up to 250 penalty units, or both.
10BÂ
Incineration of controlled material
            (1) A person is guilty of an offence against
this section if, otherwise than in accordance with a permit, the person incinerates
controlled material at sea:
                    (a) on a vessel or platform in
Australian waters; or
                    (b) on an Australian vessel in any
part of the sea.
            (2) An offence against this section is
punishable, on conviction, as follows:
                    (a) if it is proved that any of the
offending material is seriously harmful material—imprisonment for up to 10
years or a fine up to 2,000 penalty units, or both;
                    (b) if it is proved that any of the
offending material is not within Annex 1 to the Protocol—imprisonment for up to
2 years or a fine up to 500 penalty units, or both;
                    (c) in any other case—imprisonment for
up to 1 year or a fine up to 250 penalty units, or both.
10CÂ
Loading for the purpose of dumping or incineration
            (1) A person is guilty of an offence against
this section if, otherwise than in accordance with a permit, the person:
                    (a) loads controlled material on a
vessel, aircraft or platform in Australia or Australian waters:
                             (i) knowing that it will
be dumped into the sea or incinerated at sea; or
                            (ii) reckless as to whether
it will be dumped into the sea or incinerated at sea; or
                    (b) loads controlled material on any
Australian vessel or Australian aircraft:
                             (i) knowing that it will
be dumped into the sea or incinerated at sea; or
                            (ii) reckless as to whether
it will be dumped into the sea or incinerated at sea.
            (2) An offence against this section is
punishable, on conviction, as follows:
                    (a) if it is proved that any of the
offending material is seriously harmful material—imprisonment for up to 10
years or a fine up to 2,000 penalty units, or both;
                    (b) if it is proved that any of the
offending material is not within Annex 1 to the Protocol—imprisonment for up to
2 years or a fine up to 500 penalty units, or both;
                    (c) in any other case—imprisonment for
up to 1 year or a fine up to 250 penalty units, or both.
10DÂ
Export for the purpose of dumping or incineration
            (1) A person is guilty of an offence against
this section if the person exports controlled material from Australia to
another country:
                    (a) knowing that it will be dumped
into the sea or incinerated at sea; or
                    (b) reckless as to whether it will be
dumped into the sea or incinerated at sea.
            (2) An offence against this section is
punishable, on conviction, as follows:
                    (a) if it is proved that any of the offending
material is seriously harmful material—imprisonment for up to 10 years or a
fine up to 2,000 penalty units, or both;
                    (b) if it is proved that any of the
offending material is not within Annex 1 to the Protocol—imprisonment for up to
2 years or a fine up to 500 penalty units, or both;
                    (c) in any other case—imprisonment for
up to 1 year or a fine up to 250 penalty units, or both.
10EÂ
Placement of artificial reef
            (1) A person is guilty of an offence against
this section if, otherwise than in accordance with a permit, the person carries
out an artificial reef placement.
            (2) An offence against this section is
punishable, on conviction, as follows:
                    (a) if it is proved that any of the
offending material is seriously harmful material—imprisonment for up to 10
years or a fine up to 2,000 penalty units, or both;
                    (b) if it is proved that any of the
offending material is not within Annex 1 to the Protocol—imprisonment for up to
2 years or a fine up to 500 penalty units, or both;
                    (c) in any other case—imprisonment for
up to 1 year or a fine up to 250 penalty units, or both.
10FÂ
Offence by person responsible for offending craft or material
            (1) If an offence is committed against
section 10A, 10B, 10C, 10D or 10E (the primary offence),
then each person who is a responsible person in relation to the offending craft
or offending material is guilty of an offence against this section if the
person:
                    (a) knew that the offending craft or
offending material would be used in committing the primary offence, or was reckless
as to whether it would be used in committing the primary offence; and
                    (b) did not take reasonable steps to
prevent the use of the offending craft or offending material in committing the
primary offence.
            (2) Subsection (1) applies whether or
not any person has been charged with, or convicted of, the primary offence.
            (3) An offence against this section is
punishable, on conviction, as follows:
                    (a) if it is proved that any of the
offending material is seriously harmful material—imprisonment for up to 10
years or a fine up to 2,000 penalty units, or both;
                    (b) if it is proved that any of the
offending material is not within Annex 1 to the Protocol—imprisonment for up to
2 years or a fine up to 500 penalty units, or both;
                    (c) in any other case—imprisonment for
up to 1 year or a fine up to 250 penalty units, or both.
            (4) For the purposes of this section:
                    (a) each of the following persons is a
responsible person in relation to an offending craft:
                             (i) the owner of the
offending craft;
                            (ii) the person in charge
of the offending craft; and
                    (b) the owner of offending material is
a responsible person in relation to the offending material.
15Â
Exceptions to certain offences
            (1) Sections 10A and 10B do not apply in
relation to:
                    (a) dumping into waters that are not
Australian waters; or
                    (b) incineration at sea in waters that
are not Australian waters;
if the dumping or incineration is in accordance with a
permit granted in accordance with the Protocol by a party to the Protocol
(other than Australia).
            (2) Section 10C does not apply in
relation to loading for the purpose of:
                    (a) dumping into waters that are not
Australian waters; or
                    (b) incineration at sea in waters that
are not Australian waters;
if the loading is in accordance with a permit granted in accordance
with the Protocol by a party to the Protocol (other than Australia).
            (3) Section 10A, 10B, 10C, 10E or 36
does not apply if:
                    (a) the relevant conduct was necessary
to secure the safety of human life or of a vessel, aircraft or platform in a
case of force majeure caused by stress of weather; or
                    (b) the relevant conduct appeared to
be the only way of averting a threat to human life, or to the safety of a
vessel, aircraft or platform, and there was every probability that the damage
caused by the conduct would be less than would otherwise occur;
and, in either case:
                    (c) the relevant conduct was so
carried out as to minimise the likelihood of damage to human or marine life;
and
                    (d) a report of the relevant conduct,
setting out the prescribed information, was given to the Minister as soon as
practicable after the conduct occurred.
            (4) In a proceedings for an offence, the
defendant bears the evidential burden of proving an exception set out in this
section.
16Â
Restoration of environment
            (1) If the Minister considers that a
regulated occurrence is likely to:
                    (a) cause an obstruction, or
constitute a danger, to vessels; or
                    (b) result in harm to human or marine
life; or
                    (c) result in an interference with the
exercise of the sovereign rights of Australia as a coastal State:
                             (i) to explore the seabed
and subsoil beneath Australian waters; and
                            (ii) to exploit the natural
resources of the seabed and subsoil beneath Australian waters;
then the Minister may cause to be taken such steps as the
Minister considers proper to repair or remedy any condition, or to mitigate any
damage, arising from the occurrence.
            (2) In this section:
regulated occurrence means any of the
following:
                    (a) the dumping of controlled material
into Australian waters;
                    (b) the incineration at sea in
Australian waters of controlled material;
                    (c) an artificial reef placement in
Australian waters;
                    (d) a contravention of a condition of
a permit.
17Â
Liability for expenses incurred by the Commonwealth
            (1) Where:
                    (a) a person has been convicted of an
offence against section 10A, 10B, 10E, 10F or 36; and
                    (b) because the Minister has exercised
his or her powers under section 16, the Commonwealth has incurred expenses
or other liabilities in repairing or remedying any condition, or mitigating any
damage, arising from:
                             (i) if the offence is an
offence against section 10A, 10B, 10E or 36—the conduct that constituted
the offence; or
                            (ii) if the offence is an
offence against section 10F—the conduct that constituted the primary
offence referred to in that section;
a person so convicted is liable to pay to the Commonwealth
an amount equal to the total amount of those expenses and liabilities of the
Commonwealth and that amount may be recovered, as a debt due to the
Commonwealth by the person, by action in a court of competent jurisdiction.
            (2) Where 2 or more persons have been
convicted of offences referred to in subsection (1) in respect of the same
occurrence, the Commonwealth is not, by virtue of that subsection, entitled to
recover from those persons amounts that, in the aggregate, exceed the total
amount of the expenses and liabilities incurred by the Commonwealth, by reason
of the exercise by the Minister of his or her powers under section 16, as
a result of that occurrence.
            (3) Subject to subsection (4), where the
owner of a vessel, aircraft or platform:
                    (a) has been convicted of:
                             (i) an offence against
section 10A or 36 with respect to dumping from the vessel, aircraft or
platform; or
                            (ii) an offence against
section 10B or 36 with respect to incineration at sea on the vessel or
platform; or
                           (iii) an offence against
section 10E or 36 with respect to an artificial reef placement from the
vessel, aircraft or platform; or
                           (iv) an offence against
section 10F with respect to the vessel, aircraft or platform; and
                    (b) is
liable by virtue of subsection (1) of this section to pay an amount to the
Commonwealth in respect of that offence;
that amount is a charge upon the vessel, aircraft or
platform, as the case may be, and, in the case of a vessel or aircraft, the
vessel or aircraft may be detained by an inspector until the amount is paid or
security for the payment of the amount is provided to the satisfaction of the
Minister.
            (4) Subsection (3) does not entitle a
person to detain a vessel or aircraft unless the vessel or aircraft:
                    (a) is an Australian vessel or
Australian aircraft, as the case may be; or
                    (b) is in Australia or an external
Territory or in Australian waters.
            (5) If a
person:
                    (a) takes to sea any vessel that been
detained under subsection (3), before it is released from detention,
knowing that it is still under detention or being reckless as to whether it is
still under detention; or
                    (b) removes from Australia or an
external Territory any aircraft that has been detained under subsection (3),
before it is released from detention, knowing that it is still under detention
or being reckless as to whether it is still under detention;
the person is guilty of an offence punishable, on
conviction, by imprisonment for up to 2 years or a fine up to 120 penalty
units, or both.
            (6) If an offence (the primary offence)
is committed against subsection (5) in respect of taking a vessel to sea
or removing an aircraft from Australia or an external Territory, then each
person who is a responsible person in relation to the vessel or aircraft is
guilty of an offence against this subsection if the person:
                    (a) knew that the vessel or aircraft
would be used in committing the primary offence, or was reckless as to whether
it would be used in committing the primary offence; and
                    (b) did not take reasonable steps to
prevent the use of the vessel or aircraft in committing the primary offence.
            (7) Subsection (6) applies whether or
not any person has been charged with, or convicted of, the primary offence.
            (8) An offence against subsection (6) is
punishable, on conviction, by imprisonment for up to 2 years or a fine up to
120 penalty units, or both.
            (9) For the purposes of subsection (6),
each of the following persons is a responsible person in relation
to a vessel or aircraft:
                    (a) the owner of the vessel or
aircraft;
                    (b) the person in charge of the vessel
or aircraft.
18Â
Application for permit
            (1) A person may make an application to the
Minister for the grant of a permit required for the purposes of this Act.
            (2) An application for a permit shall be made
in accordance with the appropriate form approved by the Minister from time to
time.
            (3) Where an application is made for the
grant of a permit and the Minister requires further information for the purpose
of enabling him or her to deal with the application, he or she may, by notice
in writing served on the applicant not later than 60 days after the application
is made, require the applicant to furnish to the Minister, as specified in the
notice, a statement in writing setting out that further information and, if a
notice is so served, the application shall be deemed, for the purposes of
section 19, not to have been duly made until the statement is furnished.
            (4) Where, in his or her preliminary consideration
of an application for a permit for dumping or artificial reef placement, the
Minister forms the view that, in order to enable him or her to decide whether a
permit should be granted or not, or to formulate conditions that should be
imposed in respect of a permit if a permit is granted, it will be necessary for
research or analysis to be undertaken to determine the effect that the proposed
dumping or artificial reef placement may have on the marine environment, the
Minister, before giving further consideration to the application, may require
the applicant to enter into an agreement with the Commonwealth that includes
provisions of any, or all, of the following kinds:
                    (a) a provision that the applicant
will, at his or her own expense, undertake such research or analysis as is
specified in the agreement, being research or analysis relating to the effect
that the proposed dumping or artificial reef placement might have on the marine
environment;
                    (b) a provision that the applicant
will reimburse the Commonwealth the amount, as ascertained by the Minister, of
any expense incurred by the Commonwealth in undertaking research or analysis of
a kind referred to in paragraph (a);
                    (c) a provision that the applicant
will reimburse the Commonwealth the amount, as ascertained by the Minister, of
any expense incurred by the Commonwealth in supervising any research or
analysis undertaken by the applicant in accordance with the agreement;
                    (d) a provision that, if the applicant
fails, or neglects, to carry out any research or analysis as required by the
agreement:
                             (i) the Commonwealth may
undertake the necessary research or analysis, as the case may be; and
                            (ii) in that event, the
applicant will reimburse the Commonwealth the amount, as ascertained by the
Minister, of the expense incurred by the Commonwealth in connection with such
undertaking;
                    (e) a provision that the applicant is
to give a security to the Commonwealth for the payment of any amount that he or
she may become liable to pay to the Commonwealth under the agreement;
                     (f) a provision that the applicant
will report to the Minister the results of any research or analysis undertaken
by him or her in accordance with the agreement.
            (5) Where an applicant is required under subsection (4)
to enter into an agreement with the Commonwealth providing for the undertaking
of research or analysis as specified in the agreement, his or her application
shall be deemed, for the purposes of section 19, not to have been duly
made until the research or analysis, as the case may be, has been completed to
the satisfaction of the Minister.
19Â
Grant of permit
            (1) Subject to this section, the Minister
may, in his or her discretion, grant, or refuse to grant, a permit to a person
who has made an application in accordance with section 18.
            (2) The Minister must either grant or refuse
to grant the permit within 90 days after the application is made.
            (3) However, if Subdivision A of Division 4
of Part 11 of the Environment Protection and Biodiversity Conservation
Act 1999 applies in relation to the granting of the permit, the Minister
must grant or refuse to grant the permit within whichever of the following
periods ends later (or either of them if they end at the same time):
                    (a) 30 days after the day on which the
Minister receives advice given under section 163 of that Act;
                    (b) 90 days after the application is
made.
Note:Â Â Â Â Â Â Â Â Â Under Subdivision A of Division 4 of Part 11
of the Environment Protection and Biodiversity Conservation Act 1999,
certain persons must get advice from the Minister administering that
Subdivision before authorising an action. Under section 163 of that Act,
that Minister must give advice within 30 days after receiving a report of an
environmental assessment of the action.
            (4) Despite Subdivision A of Division 4
of Part 11 of the Environment Protection and Biodiversity Conservation
Act 1999, that Subdivision does not apply in relation to the granting of a
permit described in subsection (7) if the Minister is of the opinion
described in that subsection.
            (5) Subject to subsection (7), a permit
for dumping or loading for dumping:
                    (a) may only be granted for controlled
material that is within Annex 1 to the Protocol; and
                    (b) may only be granted in accordance
with Annex 2 to the Protocol.
            (6) Subject to subsection (7), a permit
cannot be granted for incineration at sea or loading for incineration at sea.
            (7) The Minister may grant a permit for
dumping, incineration at sea or loading for dumping or incineration at sea, of
any controlled material if, in the Minister’s opinion, there is an emergency
that:
                    (a) poses an unacceptable risk to
human health, safety, or the marine environment; and
                    (b) admits of no other feasible
solution.
            (8) A permit cannot be granted for an
artificial reef placement of seriously harmful material.
         (8A) In considering the granting of a permit,
the Minister must have regard to the following (so far as they are relevant):
                    (a) the Protocol;
                    (b) the Torres Strait Treaty;
                    (c) the Antarctic Treaty;
                    (d) any other treaty or convention to
which Australia is a party and that relates to dumping at sea or to Antarctica
or Antarctic resources.
            (9) Before granting a permit for dumping or
artificial reef placement, the Minister may require the applicant to enter into
an agreement with the Commonwealth that includes provisions of any, or all, of
the following kinds:
                    (a) in the case of a permit for
dumping or artificial reef placement—a provision that the applicant will, at
his or her own expense, undertake such research and monitoring as is specified
in the agreement, being research and monitoring relating to the consequences of
the release into the marine environment through the proposed dumping operation
or artificial reef placement of any contaminants;
                    (b) in the case of a permit for
dumping—a provision that the applicant will investigate, as specified in the
agreement, the possibility of avoiding or reducing the need for further dumping
by him or her;
                    (c) a provision that the applicant
will reimburse the Commonwealth the amount, as ascertained by the Minister, of
any expense incurred by the Commonwealth in undertaking research, monitoring or
investigation of a kind referred to in a preceding paragraph;
                    (d) a provision that the applicant
will reimburse the Commonwealth the amount, as ascertained by the Minister, of
any expense incurred by the Commonwealth in supervising any research,
monitoring or investigation undertaken by the applicant in accordance with the
agreement;
                    (e) a provision that, if the applicant
fails, or neglects, to carry out any research, monitoring or investigation as
required by the agreement:
                             (i) the Commonwealth may
undertake the necessary research, monitoring or investigation, as the case may
be; and
                            (ii) in that event, the
applicant will reimburse the Commonwealth the amount, as ascertained by the
Minister, of the expense incurred by the Commonwealth in connection with such
undertaking;
                     (f) a provision that the applicant is
to give a security to the Commonwealth for the payment of any amount that he or
she may become liable to pay to the Commonwealth under the agreement;
                    (g) a provision that the applicant
will report to the Minister the results of any research, monitoring or
investigation undertaken by him or her in accordance with the agreement.
20Â
Suspension and revocation of permits
            (1) The Minister may, at any time, by notice
in writing served on the holder of a permit, vary, suspend or revoke the permit
where he or she is satisfied that:
                    (a) a provision of this Act relating
to the permit or a condition imposed in respect of the permit has been
contravened; or
                    (b) it is necessary or expedient to do
so in order properly to regulate the activities with which this Act is
concerned.
            (2) A suspension of a permit may be of
indefinite duration or for a period specified in the notice.
            (3) Where proceedings for an offence in
relation to a permit are commenced during a period of suspension of the permit,
the suspension may be continued until the proceedings (including any appeal)
are completed.
            (4) During the period of suspension of a
permit, the permit has no force or effect, but the period of currency of the
permit continues to run.
            (5) The suspension of a permit does not
prevent its revocation.
            (6) The revocation or suspension of a permit
takes effect when notice of the revocation or suspension, as the case may be,
is served on the holder of the permit or on such later date (if any) as is
specified in the notice.
21Â
Conditions in respect of permits
            (1) The Minister may, when granting a permit
or at any time while a permit is in force, impose conditions in respect of the
permit and may, at any time, revoke, suspend or vary, or cancel a suspension
of, a condition so imposed.
            (2) A condition imposed in respect of a
permit, or a revocation, suspension or variation, or a cancellation of a
suspension, of such a condition, takes effect when notice of the condition or
of the revocation, suspension or variation or of the cancellation of the
suspension is served on the holder of the permit or on such later date (if any)
as is specified in the notice.
23Â
Applications to Minister to vary operation of permits
            (1) The holder of a permit may apply to the
Minister for:
                    (a) variation of the permit; or
                    (b) revocation, suspension or
variation of a condition of the permit.
            (2) The holder of a permit that is suspended
may make application to the Minister for the cancellation of that suspension.
            (3) The Minister shall, within 60 days after
the receipt of an application under subsection (1) or (2):
                    (a) if he or she is satisfied that the
application should be granted:
                             (i) revoke or suspend the
condition;
                            (ii) vary the permit or the
condition in accordance with the application; or
                           (iii) cancel
the suspension of the permit;
                           as the case may be; or
                    (b) if he or she is not so
satisfied—refuse to grant the application.
24Â
Applications for review
            (1) Applications may be made to the
Administrative Appeals Tribunal for review of decisions by the Minister under
section 19, 20, 21 or 23.
            (2) Subsection (1) does not apply in
relation to:
                    (a) a decision by the Minister under
section 19 in connection with an application for a permit where an inquiry
has been held under Part 8 of the Environment Protection and
Biodiversity Conservation Act 1999 (as it applies of its own force or
because of Subdivision A of Division 4 of Part 11 of that Act) in
relation to the conduct in respect of which the application is made; or
                    (b) a decision by the Minister under
subsection 19(7) granting, or refusing to grant, a permit.
25Â
Matters to be published in Gazette
                  The Minister
shall cause to be published in the Gazette particulars of the following:
                    (a) applications for permits;
                    (b) permits granted and any conditions
imposed in respect of those permits;
                    (c) refusals to grant permits;
                    (d) any revocation, variation, suspension,
or cancellation of the suspension, of a permit;
                    (e) any revocation, suspension or
variation, or any cancellation of a suspension, of a condition imposed in
respect of a permit;
                     (f) the reasons for a decision by the
Minister under subsection 19(7) granting, or refusing to grant, a permit.
26Â
Appointment of inspectors
                  The Minister may, by instrument in
writing, appoint a person as an inspector.
27Â
Inspectors ex officio
                  The following persons are inspectors, by
force of this section:
                    (a) members of the Australian Federal
Police or of the police force of a Territory;
                    (b) officers of the Australian Customs
Service.
28Â
Identity cards
            (1) The Minister may cause to be issued to an
inspector, other than a member of a police force or an officer of the
Australian Customs Service, an identity card in a form approved by the
Minister.
            (2) Where a
person in possession of an identity card issued to him or her under subsection (1)
ceases to be an inspector, he or she shall forthwith return the identity card
to the Minister.
Penalty:Â One penalty unit.
29Â
Boarding of vessels etc. by inspectors
            (1) This section applies to the following:
                    (a) any Australian vessel or
Australian aircraft;
                    (b) any vessel, aircraft or platform
that is in Australia or an external Territory;
                    (c) any vessel or platform that is in
Australian waters;
                    (d) any aircraft that is capable of
landing on water and is in Australian waters.
            (2) An inspector may, with such assistance as
he or she thinks necessary, board any vessel, aircraft or platform to which
this section applies for the purpose of exercising the functions of an
inspector in accordance with section 31 if he or she believes on
reasonable grounds that there is in, or on, that vessel, aircraft or platform:
                    (a) any controlled material that is to
be dumped into the sea or incinerated at sea; or
                   (aa) any controlled material that is to
be placed as part of an artificial reef placement; or
                    (b) any
matter or thing that may afford evidence as to the commission of an offence
against this Act;
and, in the case of a vessel or aircraft, may, for that
purpose, stop and detain that vessel or aircraft.
            (3) An inspector may require any person on
board a vessel, aircraft or platform to which this section applies whom he or
she finds committing, or whom he or she suspects on reasonable grounds of
having committed, an offence against this Act to state his or her full name and
usual place of residence.
            (4) Where an inspector believes on reasonable
grounds that a vessel to which this section applies and that is in Australian
waters has been used or otherwise involved in the commission of an offence
against this Act, he or she may bring, or require the person in charge of the
vessel to bring, the vessel to the nearest port in Australia or an external
Territory to which it is safe and practicable to bring the vessel.
            (5) An inspector may, for the purposes of
this Act, require the person in charge of a vessel, aircraft or platform to
which this section applies to give information concerning the vessel, aircraft
or platform and her crew and any other person on board the vessel, aircraft or
platform.
            (6) Where an
inspector (other than a member of a police force, or officer of the Australian
Customs Service, who is in uniform) boards a vessel, aircraft or platform to
which this section applies, he or she shall:
                    (a) in the case of a member of a
police force—produce, for inspection by the person in charge of that vessel,
aircraft or platform, written evidence of the fact that he or she is a member
of that police force; or
                   (aa) in the case of an officer of the
Australian Customs Service—produce, for inspection by the person in charge of
that vessel, aircraft or platform, written evidence of the fact that the
officer is an officer of the Australian Customs Service; or
                    (b) in
any other case—produce his or her identity card for inspection by that person;
and, if he or she fails to do so, he or she is not
authorized to remain, or to require any person assisting him or her to remain,
on board that vessel, aircraft or platform or to detain that vessel or
aircraft.
            (7) Where an inspector (other than a member
of a police force, or officer of the Australian Customs Service, who is in
uniform) makes a requirement of a person under this section, the inspector shall:
                    (a) in the case of a member of a
police force—produce, for inspection by that person, written evidence of the
fact that he or she is a member of that police force; or
                   (aa) in the case of an officer of the
Australian Customs Service—produce, for inspection by that person, written
evidence of the fact that the officer is an officer of the Australian Customs
Service; or
                    (b) in
any other case—produce his or her identity card for inspection by that person;
and, if he or she fails to do so, that person is not
obliged to comply with the requirement.
            (8) A person who, without reasonable excuse,
fails to comply with a requirement made of him or her by an inspector under
this section is guilty of an offence punishable on conviction by a fine not
exceeding 20 penalty units.
30Â
Access to premises
            (1) An inspector may, with the consent of the
occupier of any premises, enter the premises for the purpose of exercising the
functions of an inspector in accordance with section 31.
            (2) Where an inspector has reason to believe
that there is on premises:
                    (a) any controlled material that is to
be dumped into the sea or incinerated at sea; or
                   (aa) any controlled material that is to
be placed as part of an artificial reef placement; or
                    (b) any
matter or thing that may afford evidence as to the commission of an offence
against this Act;
the inspector may make application to a magistrate for a
warrant authorizing the inspector to enter the premises for the purpose of
exercising the functions of an inspector in accordance with section 31.
            (3) If, on an application under subsection (2),
the magistrate is satisfied, by information on oath or affirmation:
                    (a) that there is reasonable ground
for believing that there is on the premises to which the application relates:
                             (i) any controlled
material that is to be dumped into the sea or incinerated at sea; or
                           (ia) any controlled material
that is to be placed as part of an artificial reef placement; or
                            (ii) any matter or thing
that may afford evidence as to the commission of an offence against this Act;
and
                    (b) that
the issue of the warrant is reasonably required for the purposes of this Act;
the magistrate may grant a warrant authorizing the
inspector, with such assistance as he or she thinks necessary, to enter the
premises, during such hours of the day or night as the warrant specifies or, if
the warrant so specifies, at any time, if necessary by force, for the purpose
of exercising the functions of an inspector in accordance with section 31.
            (4) Where an inspector has entered any
premises in pursuance of subsection (1) or in pursuance of a warrant
granted under subsection (3), he or she may exercise the functions of an
inspector in accordance with section 31.
30AÂ
Warrants may be granted by telephone or other electronic means
            (1) An application to a magistrate for a
warrant under section 30 may be made by telephone, facsimile or other
electronic means:
                    (a) in an urgent case; or
                    (b) if the delay that would occur if
an application were made in person would frustrate the effective execution of
the warrant.
            (2) The magistrate may require voice
communication to the extent that it is practicable in the circumstances.
            (3) An application under this section must
include all information required to be provided in an ordinary application for
a warrant under section 30, but the application may, if necessary, be made
before the information is sworn or affirmed.
            (4) If the magistrate is satisfied:
                    (a) after having considered the
information mentioned in subsection (3); and
                    (b) after having received any further
information that the magistrate requires about the grounds on which the issue
of the warrant is being sought;
that there are reasonable grounds for issuing the warrant,
the magistrate may complete and sign the same form of warrant as would be
issued under section 30.
            (5) If the magistrate signs a warrant under subsection (4):
                    (a) the magistrate must notify the
inspector, by telephone, facsimile or other electronic means, of the terms of
the warrant and the date on which and the time at which it was signed, and
write on it the reasons for granting it; and
                    (b) the inspector must complete a form
of warrant in the terms notified to the inspector by the magistrate and write
on it the name of the magistrate and the date on which and the time at which it
was signed.
            (6) If the inspector completes a form of
warrant under subsection (5), the inspector must, not later than the day
after the day on which the warrant ceased to be in force or was executed,
whichever is the earlier, give or send to the magistrate the form of warrant
completed by the inspector and, if the information mentioned in subsection (3)
was not sworn or affirmed, that information duly sworn or affirmed.
            (7) The magistrate must attach to the
documents provided under subsection (6) the warrant signed by the
magistrate.
            (8) A form of warrant that has been duly
completed by the inspector under subsection (5), and is in accordance with
the terms of the warrant signed by the magistrate, has the same authority as
the warrant signed by the magistrate.
            (9) If:
                    (a) it is material, in any
proceedings, for a court to be satisfied that an exercise of power was
authorised under this section; and
                    (b) the warrant signed by the
magistrate under this section authorising the exercise of power is not produced
in evidence;
the court must assume, unless the contrary is proved, that
the exercise of power was not authorised by such a warrant.
31Â
Functions of inspector
            (1) The functions of an inspector who boards
a vessel, aircraft or platform under section 29 or enters premises under
section 30 are as follows:
                    (a) to search for, and take possession
of, any matter or thing that may afford evidence as to the commission of an
offence against this Act;
                    (b) to search for, inspect, takes
extracts from and make copies of any document that relates to:
                             (i) the loading, dumping
or incineration at sea of any controlled material; or
                            (ii) the export of any
controlled material that is to be dumped into the sea or incinerated at sea; or
                           (iii) any controlled
material that is to be placed as part of an artificial reef placement;
                    (c) to inspect, and take samples of:
                             (i) any controlled
material; or
                            (ii) any controlled
material that is to be placed as part of an artificial reef placement;
                    (d) to observe:
                             (i) the loading on a
vessel, aircraft or platform of any controlled material that is to be dumped
into the sea or incinerated at sea; or
                            (ii) the dumping into the
sea, or the incineration at sea, of any controlled material; or
                           (iii) an artificial reef placement.
            (2) For the purposes of carrying out his or
her functions under subsection (1), an inspector may break open any hold
or compartment, or any container or other receptacle, on a vessel, aircraft or
platform or on any premises.
32Â
Powers of arrest of inspectors
            (1) An inspector may, without warrant, arrest
any person, if the inspector believes on reasonable grounds that:
                    (a) the person is committing or has
committed an offence against this Act; and
                    (b) proceedings against the person by
summons would not be effective.
            (2) Where an inspector (other than a member
of a police force, or officer of the Australian Customs Service, who is in
uniform) arrests a person under subsection (1), the inspector shall:
                    (a) in the case of a member of a
police force—produce, for inspection by that person, written evidence of the
fact that he or she is a member of that police force; or
                   (aa) in the case of an officer of the
Australian Customs Service—produce, for inspection by that person, written
evidence of the fact that the officer is an officer of the Australian Customs
Service; or
                    (b) in any other case—produce his or
her identity card for inspection by that person.
            (3) Where a person is arrested under subsection (1),
an inspector shall forthwith bring the person, or cause him or her to be
brought, before a magistrate or other proper authority to be dealt with in
accordance with law.
            (4) Nothing in this section prevents the
arrest of a person in accordance with any other law.
33Â
Injunction
            (1) A prescribed court of a State or
Territory may:
                    (a) upon application by the Attorney‑General
or by an interested person, grant an injunction restraining a person from
engaging in conduct that constitutes, or would constitute, an offence against
section 10A, 10B, 10C, 10D or 10E; and
                    (b) make any order incidental or
supplementary to an order made on an application under paragraph (a),
including an order as to costs.
            (2) The reference in paragraph (1)(a) to
an interested person shall be read as including a reference to a person whose
use or enjoyment of any part of the sea, or of the air space above, or of the
seabed or subsoil beneath, any part of the sea, is, or is likely to be,
adversely affected by the conduct concerned.
            (3) The reference in paragraph (1)(a) to
engaging in conduct shall be read as including a reference to:
                    (a) doing, refusing to do or
refraining from doing, any act or thing; or
                    (b) causing or permitting another
person to do, refuse to do or refrain from doing, any act or thing.
            (4) Each prescribed court of a State is
invested with federal jurisdiction, and jurisdiction is conferred, to the
extent that the Constitution permits, on each prescribed court of a Territory,
to hear and to determine proceedings instituted in that court under this
section.
            (5) In this section, prescribed court,
in relation to a State or Territory, means a court of the State or Territory
that is declared by the regulations to be a prescribed court in relation to the
State or Territory, as the case may be, for the purposes of this section.
34Â
Delegation
            (1) The Minister may, either generally or as
otherwise provided by the instrument of delegation, by writing signed by him or
her, delegate to a person all or any of his or her powers under this Act, other
than this power of delegation.
            (2) A power so delegated, when exercised by
the delegate, shall, for the purposes of this Act, be deemed to have been
exercised by the Minister.
            (3) A delegation under this section does not
prevent the exercise of a power by the Minister.
35Â False
statements
            (1) A person who, in, or in connection with,
an application for a permit:
                    (a) makes a statement that, to his or
her knowledge, is false or misleading in a material particular; or
                    (b) furnishes
to an officer or other person doing duty in relation to this Act a document
that, to the knowledge of the first‑mentioned person, contains
information that is false or misleading in a material particular;
is guilty of an offence against this subsection
punishable, on conviction by imprisonment for a term not exceeding 2 years.
            (2) A person who:
                    (a) makes to an inspector doing duty
in relation to this Act a statement that, to the knowledge of the person, is
false or misleading in a material particular; or
                    (b) furnishes
to an inspector doing duty in relation to this Act a document that, to the
knowledge of the person, contains information that is false or misleading in a
material particular;
is guilty of an offence against this subsection
punishable, on conviction, by imprisonment for up to 1 year or a fine up to 60 penalty
units, or both.
36Â
Compliance with conditions of permit
            (1) The holder of a permit is guilty of an
offence against this section if:
                    (a) the holder does an act that
constitutes a contravention of a condition imposed in respect of the permit;
and
                    (b) at the time of that act, the
holder knows of the existence of that condition, or is reckless as to the
existence of that condition.
            (2) An offence against this section is
punishable, on conviction, by imprisonment for up to 1 year or a fine up to 250
penalty units, or both.
            (3) In this section:
act includes omission.
37Â
Indictable offences
            (1) An offence against section 10A, 10B,
10C, 10D, 10E or 10F or subsection 17(5), 35(1), 35(2) or 36(1) is an
indictable offence.
            (2) Even though an offence referred to in subsection (1)
is an indictable offence, a court of summary jurisdiction may hear and
determine proceedings for such an offence if:
                    (a) the court is satisfied that it is
proper to do so; and
                    (b) the defendant and the prosecutor
consent.
            (3) The penalty that a court of summary
jurisdiction may impose for an offence against section 10A, 10B, 10C, 10D,
10E or 10F is as follows:
                    (a) if it is proved that any of the
offending material is seriously harmful material—imprisonment for up to 2 years
or a fine up to 240 penalty units, or both;
                    (b) if it is proved that any of the
offending material is not within Annex 1 to the Protocol—imprisonment for up to
1 year or a fine up to 120 penalty units, or both;
                    (c) in any other case—imprisonment for
up to 6 months or a fine up to 60 penalty units, or both.
            (4) The penalty that a court of summary
jurisdiction may impose for an offence against subsection 17(5) or 35(1) is
imprisonment for up to 1 year or a fine up to 60 penalty units, or both.
            (5) The penalty that a court of summary
jurisdiction may impose for an offence against subsection 35(2) is imprisonment
for up to 6 months or a fine up to 30 penalty units, or both.
            (6) The penalty that a court of summary
jurisdiction may impose for an offence against subsection 36(1) is imprisonment
for up to 6 months or a fine up to 60 penalty units, or both.
37AÂ No
time limit for prosecution
                  A prosecution for an offence against
this Act may be brought at any time.
38Â
Evidence
            (1) In any proceedings for an offence against
this Act:
                    (a) any record kept in pursuance of
the regulations is admissible as prima facie evidence of the facts
stated in the record;
                    (b) a copy of an entry in such a
record, being a copy certified by the person by whom the record is required to
be kept to be a true copy of the entry, is admissible as prima facie evidence
of the facts stated in the entry; and
                    (c) a document purporting to be a
record kept in pursuance of the regulations, or purporting to be such a
certified copy as is referred to in paragraph (b), shall, unless the
contrary is established, be deemed to be such a record or certified copy, as
the case may be.
            (2) In any proceedings for an offence against
this Act, evidence of the result of finding out a distance or position by means
of an electronic, optical or other device ordinarily used for finding out such
a distance or position is prima facie evidence of the distance or
position.
            (3) In any proceedings for an offence against
this Act, evidence by an inspector that he or she believes that a place or area
is within Australian waters is prima facie evidence that the place or
area is within Australian waters.
            (4) The Minister may give a certificate
stating any of the following:
                    (a) that a permit was granted to a
specified person on a specified day;
                    (b) that a specified permit contained
specified terms;
                   (ba) that a specified permit was
revoked, suspended or varied on a specified day;
                   (bb) that the suspension of a specified
permit was cancelled on a specified day;
                    (c) that specified conditions were
imposed in respect of a specified permit;
                    (d) that a specified condition imposed
in respect of a specified permit was revoked, suspended or varied on a
specified day;
                    (e) that the suspension of a specified
condition imposed in respect of a specified permit was cancelled on a specified
day;
                     (f) that
a specified notice containing specified terms was served on the holder of a
specified permit on a specified day;
                    (g) that Australian waters did, or did
not, at a particular time include the top hat area referred to in section 4A;
and the certificate is prima facie evidence of the
matters stated in it.
39Â
Evidence of analyst
            (1) The Minister may appoint a person to be
an analyst for the purposes of this Act.
            (2) Subject to
subsection (4), a certificate signed by an analyst appointed under subsection (1)
setting out, in relation to a substance, one or more of the following:
                    (a) that he or she is appointed as the
analyst under subsection (1);
                    (b) when and from whom the substance
was received;
                    (c) what labels or other means of
identification accompanied the substance when it was received;
                    (d) what container the substance was
in when it was received;
                    (e) a description, including the
weight, of the substance when it was received;
                     (f) the name of any method used to
analyse the substance or any portion of it;
                    (g) the results of any such analysis;
                    (h) how the substance was dealt with
after handling by the analyst, including details of:
                             (i) the quantity of the
substance retained after analysis; and
                            (ii) names of any person to
whom any of the retained substance was given after analysis; and
                           (iii) measures
taken to secure any retained quantity of the substance after analysis;
is admissible in any proceeding for an offence against
this Act as prima facie evidence of the matters in the certificate and
the correctness of the results of the analysis.
            (3) For the purposes of this section, a
document purporting to be a certificate referred to in subsection (2)
shall, unless the contrary is established, be deemed to be such a certificate
and to have been duly given.
            (4) A certificate shall not be admitted in
evidence in pursuance of subsection (2) in proceedings for an offence
unless the person charged with the offence has been given a copy of the
certificate together with reasonable notice of the intention to produce the
certificate as evidence in the proceedings.
40Â
Fees
            (1) The regulations may prescribe the fees to
be paid in respect of an application for a permit or of any other application
under this Act.
            (2) A fee prescribed in respect of an
application under this Act shall be paid when the application is made or at
such other time (if any) as is prescribed and, if the fee is not so paid, the
application shall be deemed not to be duly made.
            (3) The Minister may, if he or she considers
it necessary or desirable to do so, waive or remit the payment of any fee
payable in respect of an application and, if he or she does so, subsection (2)
does not apply in relation to that application.
            (4) The Minister may, if he or she considers
it necessary or desirable to do so, waive or remit the payment of part of any
fee payable in respect of an application and, if the Minister does so, the fee
prescribed in respect of the application shall, for the purposes of subsection (2),
be taken to be reduced by the amount waived or remitted.
41Â Â
Regulations
            (1) The Governor‑General may make
regulations, not inconsistent with this Act, prescribing all matters required
or permitted by this Act to be prescribed, or necessary or convenient to be
prescribed for carrying out or giving effect to this Act and, in particular:
                    (a) providing for the manner of
service of notices under this Act; and
                    (b) providing for the imposition of
penalties not exceeding 10 penalty units.
            (2) Regulations under subsection (1) may
declare that a specified area of sea on the seaward side of the territorial sea
of Australia or the territorial sea of an external Territory is included in
Australian waters for the purposes of this Act.
            (3) Before the
Governor‑General makes a regulation prescribing material for the purposes
of paragraph (b) of the definition of seriously harmful material
in subsection 4(1), the Minister must be satisfied that the material is capable
of causing serious harm to the marine environment.
            (4) The
Minister may be satisfied that material is capable of causing serious harm to
the marine environment even though there is no conclusive evidence to prove a
causal relationship between the input of the material into the marine
environment and serious harm to the marine environment.
            (5) For the
purposes of subsection (3), the Minister must have regard to the principle
that material should be prescribed as seriously harmful material if there is
reason to believe that the material is likely to cause serious harm to the
marine environment even though there is no conclusive evidence to prove a
causal relationship between the input of the material into the marine
environment and serious harm to the marine environment.