An Ordinance relating to the protection and management of the
environment and wildlife of Heard Island and the McDonald Islands
1 Short
title [see Note 1]
This Ordinance may be cited as the Environment Protection and Management Ordinance 1987.
2 Repeal
The Nature Conservation Ordinance 1980 is
repealed.
3 Purpose
of Ordinance
The purpose of this Ordinance is to preserve and
manage the Territory so as to protect the environment and the indigenous
wildlife of the Territory.
4 Interpretation
In this Ordinance, unless the contrary intention
appears:
aircraft means a machine or apparatus that
can derive support in the atmosphere from the reaction of the air or from
buoyancy, but does not include a hovercraft.
animal means any member, alive or dead, of
the animal kingdom (other than man) and includes:
(a) an embryo, an egg or a sperm of an animal;
and
(b) the skin, feathers, horns, shell or any other
part of an animal.
environment includes:
(a) ecosystems and their constituent parts; and
(b) natural and physical resources; and
(c) the qualities and characteristics of
locations, places and areas; and
(d) heritage value of places and things; and
(e) the social, economic and cultural aspects of
a thing mentioned in paragraph (a), (b), (c) or (d).
inspector means a person appointed under
subsection 20 (1) or mentioned in subsection 20 (5).
organism means:
(a) any plant or animal; or
(b) any virus, bacterium or yeast, alive or dead.
permit means a permit granted under
section 15.
plant means any member, alive or dead, of the
plant kingdom or the fungus kingdom and includes:
(a) a seed, spore or cutting; and
(b) any other part of a plant.
take includes:
(a) in relation to an animal — catch,
capture or trap; and
(b) in relation to a plant — pick, gather or
cut.
vehicle includes a hovercraft.
vessel means a vessel or boat of any
description and includes any floating structure, but does not include a
hovercraft.
5 Application
This Ordinance and the regulations shall be read as
being in addition to, and not in derogation of or in substitution for, the Migratory
Birds Ordinance 1980 or the Endangered Species Ordinance 1980.
5A Application
of the Criminal Code
Chapter 2 of the Criminal Code applies to
offences against this Ordinance.
Note Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
6 Ordinance
to bind the Crown
(1) This Ordinance binds the Crown in right of the
Commonwealth, of each of the States, of the Australian Capital Territory, of
the Northern Territory and of Norfolk Island.
(2) Nothing in this Ordinance renders the Commonwealth
or a State or Territory liable to be prosecuted for an offence.
(3) Subsection (2) does not affect any liability of
any servant or agent of the Commonwealth or of a State or Territory to be
prosecuted for an offence.
12 Access
to the Territory
(1) Subject to subsection (2), a person who enters
the Territory is guilty of an offence punishable, on conviction, by a fine not
exceeding:
(a) in the case of a natural person — 100
penalty units or imprisonment for 5 years of both; or
(b) in the case of a body corporate — 500
penalty units.
(2) A person may enter the Territory:
(a) in accordance with a permit; or
(b) during the course of an emergency, involving
possible loss of human life or injury to persons, or risk to the safety of an
aircraft, a vehicle or a vessel; or
(c) in the performance of the duties of that
person as an inspector.
Note A defendant bears an evidential
burden in relation to the matters mentioned in subsection (2) (see
section 13.3 of the Criminal Code).
13 Introduction
of diseased organism or live poultry
A person who brings into the Territory:
(a) any diseased organism; or
(b) live poultry;
is guilty of an offence punishable, on conviction, by a fine not
exceeding:
(c) in the case of a natural person — 100
penalty units or imprisonment for 5 years or both; or
(d) in the case of a body corporate — 500
penalty units.
14 Activities
for which a permit is required
(1) Subject to subsection (2), a person must not:
(a) bring any organism into the Territory; or
(b) bring any dead poultry or poultry products
into the Territory; or
(c) take any organism in the Territory; or
(d) engage in conduct that results in death or
injury to, or interference with, any organism in the Territory; or
(e) remove from the Territory any organism
indigenous to the Territory; or
(f) land an
aircraft, drive a vehicle or sail a vessel in the Territory; or
(g) leave any equipment, material or refuse in
the Territory; or
(h) remove any soil or other geological matter
from the Territory; or
(i) introduce any soil or other geological
matter to the Territory; or
(j) engage in conduct that results in
interference to any soil or other geological matter in the Territory; or
(k) collect any material in the Territory; or
(l) engage in conduct that results in a living
organism that has been introduced into the Territory escaping in the Territory;
or
(m) engage in conduct that results in
interference to any buildings, historical relics, equipment, supplies or survey
markers in the Territory; or
(n) engage in conduct that results in
interference to the conduct of a scientific experiment that is the subject of a
permit in the Territory.
Penalty:
(a) in the case of an individual — 100
penalty units or imprisonment for 5 years, or both; or
(b) in the case of a body corporate — 500
penalty units.
(2) A person does not commit an offence under
subsection (1) if the activity in question:
(a) was done to avoid possible loss of human
life or injury to persons, or risk to the safety of an aircraft, a vehicle or a
vessel; or
(b) was done in accordance with a permit granted
under this Ordinance, the Endangered Species Ordinance 1980 or the Migratory
Birds Ordinance 1980.
Note A defendant bears an evidential
burden in relation to the matters mentioned in subsection (2) (see section
13.3 of the Criminal Code).
15A Applications
for permits
(1) A person may apply to the Minister for a permit to:
(a) enter a specified part of the Territory; and
(b) carry out a specified activity that would
otherwise be prohibited by subsection 14 (1).
(2) The application for the permit must be in a form
approved by the Minister for the purposes of this subsection.
(3) An application by a body corporate, or by a person
on behalf of an expedition or an association, must specify:
(a) in the case of an expedition — the name
of every person who is a member of the expedition; and
(b) in the case of a body corporate or an
association — the name of every person authorised by the body corporate or
association to act on its behalf in the Territory.
15 Granting
of permits
(1) Subject to subsection (3) and section 16, the
Minister may grant a permit, in writing, to a person to:
(a) enter a specified part of the Territory; and
(b) carry out a specified activity that would
otherwise be prohibited by subsection 14 (1).
(2) Subject to subsection (3) and section 16, the
Minister may decide that a permit is subject to conditions, including the
condition that the person who is granted the permit may authorise another
person to enter the Territory and carry out an activity in accordance with the
permit.
(3) In deciding whether to grant a permit, and in deciding
the conditions subject to which a permit is to be granted, the Minister must
consider:
(a) the need to protect the environment of the
Territory; and
(b) the safety of persons, aircraft, vehicles and
vessels in the Territory.
(4) If the Minister grants a permit, the permit must
include the following information:
(a) the activities to be carried out under the
permit, including particulars of any specimen to which the permit relates;
(b) the part of the Territory to which entry is
permitted;
(c) the conditions to which the permit is
subject;
(d) the name of the person to whom the permit is
granted;
(e) the days on which the permit starts and
expires;
(f) any other information that the Minister
decides should be set out.
(5) A permit granted to a body corporate, or a person
on behalf of an expedition or an association, may be expressed to apply to:
(a) all of the persons mentioned in the
application under subsection 15A (3); or
(b) only those persons specified in the permit.
(6) The regulations may prescribe fees, not exceeding
$50, payable for the grant of a permit.
16A Authorities
under permits
(1) This section applies to a person named in a permit
granted under subsection 15 (1).
(2) The person may authorise, in writing, another person
to enter a specified part of the Territory and carry out a specified activity
in the Territory in accordance with the permit only if:
(a) the permit contains a condition allowing the
person to make such an authorisation; and
(b) the authorisation is given in accordance with
any requirements set out in that condition and any other conditions contained
in the permit.
(3) A permit is taken to authorise a person to enter the
Territory and carry out an activity if the person is authorised to do so by an
authorisation given to that person by a person named in the permit.
(4) If a person named in the permit gives an
authorisation under subsection (2), the person giving the authorisation is
not prevented from entering the Territory and carrying out activities under the
permit.
(5) A person who gives an authorisation must give to the
Minister written notice of the authorisation within 14 days after giving the
authorisation.
(6) A person who does not comply with subsection (5)
commits an offence.
Penalty: 20 penalty units.
16 Restrictions
applicable to permits
(1) Subject to subsection (2), a permit shall not
authorise a person to take, injure or otherwise interfere with any organism, or
collect any material, unless the Minister is satisfied that:
(a) the number of organisms of any species that
may be taken or killed in that year by virtue of that permit and all other
permits granted under section 15 will be replaced in the immediately succeeding
breeding season by natural reproduction; and
(b) the activities authorised by the permit will
be carried on to the extent only that they are necessary for providing
specimens for scientific research, public education (including display in
museums, zoological gardens or other educational or cultural institutions) or
other educational or cultural purposes as the Minister thinks fit; and
(c) the interference with such organisms or the
collecting of material does not endanger the continued presence in the
Territory of any indigenous species of organism in its natural state or form
and does not detract significantly from the scientific, historic or scenic
value of the Territory.
(2) Nothing in subsection (1) shall prevent the granting
of a permit authorising a person to collect or take material for the purpose of
ensuring the preservation of that material or to permit its restoration.
17 Register
of permits
(1) As soon as practicable after the commencement of
this section, the Minister must establish a register of permits that includes
the following for each permit granted under section 15 after the register is
established:
(a) a copy of the permit;
(b) the name of any person authorised under
section 16A to enter the Territory and carry out activities under the permit;
(c) any other information that the Minister
decides should be included.
(2) The Minister may decide that some or all of the
information contained in a permit must not be included in the register if the
disclosure of the information:
(a) could adversely affect the commercial
interests of a person who has been granted a permit under this Ordinance; or
(b) could result in a risk to the environment of
the Territory; or
(c) would not be in the national interest.
(3) Without limiting the matters the Minister may
consider in deciding what is in the national interest, the Minister may
consider the need to keep details about surveillance and enforcement activities
in the Southern Ocean confidential.
(4) The Minister must ensure that the register is:
(a) updated as soon as practicable after each
permit is granted or varied; and
(b) accessible to the public through the
Internet.
Note The register may be accessed from
the Department’s website for the Territory of Heard Island and McDonald Islands
at http://www.heardisland.aq.
(5) If a permit expires, the Minister must ensure that:
(a) the details of the permit are retained on
the register; and
(b) the register is updated as soon as
practicable after the permit expires to state that the permit is no longer in
force.
(6) The Minister must ensure that the register includes
a statement to the effect that, subject to the Administrative Appeals
Tribunal Act 1975, an application may be made to the Administrative Appeals
Tribunal for the review of the Minister’s decision to grant a permit by or on
behalf of a person whose interests are affected by the decision.
18 Contravening
conditions of permits
A person who is named in a permit, or
who has been authorised under section 16A, commits an offence if the person
engages in conduct that contravenes a condition of the permit.
Penalty:
(a) in the case of an individual — 50
penalty units or imprisonment for 2 years, or both; or
(b) in the case of a body corporate — 250
penalty units.
19 Suspension
or revocation of permits
The Minister may:
(a) by notice in writing served personally or by
post on the holder; or
(b) by notice as prescribed; or
(c) by transmitting a message by radio to the
holder of a permit who is travelling on an aircraft or vessel, or is in the
Territory;
vary, suspend or revoke a permit, or vary, remove or impose a
further condition on a permit where:
(d) a provision of this Ordinance relating to the
permit, or a condition of the permit, has been contravened; or
(e) it is necessary or expedient to do so in
order to protect:
(i) the environment of the Territory;
or
(ii) the safety of any person,
aircraft, vehicle or vessel.
19A Delegation
of powers
The Minister may, by signed instrument, delegate
any or all of his or her powers under this Ordinance, other than the power to
make regulations under section 26, to the following:
(a) the Director of the Australian Antarctic
Division of the Department;
(b) an SES employee, or acting SES employee, in
the Australian Antarctic Division of the Department;
(c) an APS employee who holds, or is acting in,
an Executive Level 2 or equivalent position in the Australian Antarctic
Division of the Department.
20 Inspectors
Appointment of inspectors and issue of identity cards
(1) The Minister may, by instrument, appoint persons to
be inspectors for the purposes of this Ordinance.
(2) An inspector shall, subject to this Ordinance,
perform such duties for the purposes of this Ordinance as the Minister directs.
(3) The Minister must issue an identity card to a person
appointed under subsection (1).
(4) The identify card must be in a form approved by the
Minister and it must bear a photograph of the holder and a statement to the
effect that the person is an inspector for the purposes of this Ordinance.
Inspectors not requiring appointment or identity card
(5) The following are taken to be inspectors for the
purposes of this Ordinance:
(a) a member of the Australian Federal Police;
(b) a member of the police force of a Territory.
(6) Subsection (3) does not apply to an inspector
mentioned in subsection (5).
21 Return
of inspectors’ identity cards
(1) If a person:
(a) has been issued with an identity card under
subsection 20 (3); and
(b) ceases to be an inspector;
the person must immediately return the identity card to the
Minister.
Penalty: 2 penalty units.
(2) An offence under
subsection (1) is an offence of strict liability.
Note For strict liability,
see section 6.1 of the Criminal Code.
22 Seizure
and forfeiture
(1) Where a court convicts a person of an offence
against this Ordinance the court may order the forfeiture to the Commonwealth
of any aircraft, vehicle, vessel or article used or otherwise involved in the
commission of the offence.
(2) An inspector may seize any aircraft, vehicle, vessel
or article that the inspector believes on reasonable grounds to have been used
or otherwise involved in the commission of an offence against this Ordinance
and may retain it until the expiration of a period of 60 days after the
seizure, or, if proceedings for an offence against this Ordinance in the
commission of which it may have been used or otherwise involved are instituted
within that period, until the proceedings are terminated.
(3) The Minister may authorise any aircraft, vehicle,
vessel or article seized under subsection (2) or anything in, on or
attached to any such aircraft, vehicle or vessel to be released to its owner,
or to the person from whose possession it was seized, either unconditionally or
on such conditions as are reasonable in the circumstances, including conditions
as to the giving of security for payment of its value if it is forfeited.
(4) Any aircraft, vehicle, vessel or article forfeited
under this section may be sold or otherwise disposed of as the Minister thinks
fit.
(5) An inspector may seize any organisms in respect of
which the inspector believes on reasonable grounds that an offence against this
Ordinance has been committed.
(6) The Minister may cause any organisms seized under
subsection (5) to be retained or disposed of and, if an offence against
this Ordinance was not committed in respect of them, any person who has
suffered loss or damage by reason of the seizure is entitled to reasonable
compensation the amount of which shall be determined by the Minister.
23 Review
of decisions
(1) An application may be made to the Administrative
Appeals Tribunal for a review of a decision of the Minister made under
section 15 or 19 or subsection 22 (3) or (6).
(2) Where the Minister makes a decision that is reviewable
under subsection (1), the Minister shall by notice, served in accordance
with subsection (2A), notify the applicant or permit holder, as the case
may be, of the decision.
(2A) A notice under subsection (2) shall be served on
the applicant or permit holder, as the case may be, within 28 days of the
making of the decision to which it relates, and may be served:
(a) personally; or
(b) by post; or
(c) if the person to be served is not present in
a State or internal Territory, by radio, telephone or other electronic means.
(3) A notice referred to in subsection (2) shall
set out the decision and the findings on material questions of fact, referring
to the evidence or other material on which those findings were based and giving
reasons for the decision and shall include a statement to the effect that,
subject to the Administrative Appeals Tribunal Act 1975, the person to
whom the notice is addressed is entitled to apply to the Administrative Appeals
Tribunal for a review of the decision.
(4) The validity of a decision referred to in
section 15 or 19 or subsection 22 (3) or (6) shall not be taken
to be affected by a failure to include in a notice for the purpose of
subsection (2) a statement in accordance with subsection (3).
24 Liability
of Minister
Nothing in paragraph 15 (3) (b) or
subparagraph 19 (e) (ii) shall cause the Minister or the
Commonwealth to be held liable at the suit of any person, if the Minister or
the Commonwealth would not have been held liable in the absence of that
paragraph or subparagraph.
25 Prosecution
of offences
(1) An offence against section 12, 13, 14 or 18 is
an indictable offence.
(2) Notwithstanding that an offence is expressed by
subsection (1) to be an indictable offence, a court of summary
jurisdiction may hear and determine proceedings in respect of such an offence
if the court is satisfied that it is proper to do so and the defendant and the
prosecutor consent.
(3) Where, in accordance with subsection (2), a
court of summary jurisdiction convicts a person of an offence, the penalty that
the court may impose is:
(a) in the case of an offence against
section 12, 13 or 14:
(i) if the offender is a natural
person — a fine not exceeding 20 penalty units or imprisonment for a
period not exceeding 12 months, or both; or
(ii) if the offender is a body
corporate — a fine not exceeding 100 penalty units; or
(b) in the case of an offence against
section 18:
(i) if the offender is a natural
person — a fine not exceeding 10 penalty units or imprisonment for a
period not exceeding 6 months or both; or
(ii) if the offender is a body
corporate — a fine not exceeding 50 penalty units.
26 Regulations
(1) The Minister may make regulations, not inconsistent
with this Ordinance, prescribing all matters required or permitted by this
Ordinance to be prescribed, or necessary or convenient to be prescribed for
carrying out or giving effect to this Ordinance.
(2) Without limiting the generality of
subsection (1), regulations may be made:
(a) providing for functions and powers to be conferred,
and duties to be imposed, upon inspectors; and
(b) providing, in respect of an offence against a
provision of the regulations, for a penalty not exceeding 10 penalty units.