Act No. 194 of 1992 as amended This compilation was prepared on 25 February 2000



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Part 7; Administration and enforcement
- SECT 113

Outline of this Part

(1)

This Part is about the administration of this Act, and



confers certain powers of enforcement to ensure compliance

with this Act.

(2)

Division 1 is about the administrative responsibilities of



the Director of the ANPWS.

(3)


Division 2 enables officers to investigate offences under

this Act.

(4)

Division 3 enables the Federal Court, on the application



of the Director or interested persons, to grant

injunctions about contraventions of this Act.

Division 1;Administration

- SECT 114

General administration of Act

The Director has the general administration of this Act.

- SECT 115

Additional functions of Director

In addition to the functions of the Director under section 16 of

the National Parks and Wildlife Services Act 1975, the

Director has such additional functions as are conferred on

the Director under this Act.

- SECT 116

Delegation

Subject to any directions of the Minister, the Director may, by

written instrument, delegate to a staff member of the

ANPWS all or any of the Director's powers under this Act.

- SECT 117

Consultation with the Great Barrier Reef Marine Park

Authority

The Director must not perform any functions or exercise any

powers under this Act in a part of the Great Barrier Reef

Marine Park without first consulting the Great Barrier

Reef Marine Park Authority.

Division 2;Powers of officers
- SECT 118

Interpretation

In this Division, unless the contrary intention appears:

aircraft means a machine or apparatus that can derive support

in the atmosphere from the reactions 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 a human being), and includes:

(a)

eggs or parts of eggs; and



(b)

the skin, feathers, horns, flesh or any other part of

such an animal.

article includes a substance or a mixture of substances.

Australian aircraft means an aircraft that is in

Australian control or is registered under the Air

Navigation Regulations as an Australian aircraft.

Australian national means:

(a)

an Australian citizen; or



(b)

a body corporate established by or under a law of the

Commonwealth or of a State or Territory.

Australian vessel means a vessel that is registered under the

Shipping Registration Act 1981.

foreign vessel means a vessel other than an Australian

vessel.

hovercraft means a vehicle designed to be supported on a



cushion of air.

identity card in relation to an officer who is not a

member of a police force, means an identity card issued to

the officer under:

(a)

section 39 of the National Parks and Wildlife



Conservation Act 1975; or

(b)


section 45 of the Great Barrier Reef Marine Park Act

1975.


in Australian control means in the control or possession of one

or more of any of the following:

(a)

the Commonwealth (including an arm of the Defence



Force) or a State or Territory;

(b)


a corporation established for a public purpose by or

under a law of the Commonwealth or of a State or

Territory;

(c)


a company or other body corporate incorporated under

a law of a State or Territory, being a company or

other body corporate in which the Commonwealth has a

controlling interest.

officer means a person who is:

(a)


a warden for the purposes of the National Parks and

Wildlife Conservation Act 1975; or

(b)

an inspector for the purposes of the Great Barrier



Reef Marine Park Act 1975, other than a person who

may only exercise powers under Part VIIA of that Act.

plant means any member, alive or dead, of the plant kingdom or

of the fungus kingdom, and includes seeds and parts of a

plant.

seize includes secure against interference.



vehicle includes a hovercraft.

vessel means a ship, boat, raft or pontoon or any other

thing capable of carrying persons or goods through or on

water, but does not include a hovercraft.

- SECT 119

Extent of powers

(1)

The powers conferred by this Division may be exercised



anywhere within or outside Australia in relation to:

(a)


Australian nationals; or

(b)


Australian aircraft and Australian vessels; or

(c)


the members of the crew (including persons in charge)

of Australian aircraft and Australian vessels.

(2)

Subject to this section, the powers conferred by this



Division may be exercised (other than in relation to a

person, aircraft or vessel of a kind mentioned in

subsection (1)) anywhere:

(a)


in Australia; or

(b)


on or in the Australian coastal sea; or

(c)


on, or in the waters above, the continental shelf of

Australia; or

(d)

on or in the Australian fishing zone.



(3)

On, or in the waters above, the continental shelf of

Australia, the powers conferred by this Division may only

be exercised, as provided for in subsection (2), in

relation to an offence against this Act committed:

(a)


on, or in the waters above, the continental shelf of

Australia; or

(b)

in a park, reserve or conservation zone declared



under section 7 or 8A of the National Parks and

Wildlife Conservation Act 1975.

(4)

On or in the Australian fishing zone, the powers conferred



by this Division may only be exercised, as provided for in

subsection (2), in relation to an offence against this Act

committed on or in the Australian fishing zone.

(5)


Nothing in subsection (2), (3) or (4) affects the

operation of section 128.

- SECT 120

Arrest without warrant

(1)

An officer may, without warrant, arrest a person if the



officer has reasonable grounds to believe:

(a)


that the person has committed an offence against this

Act; and


(b)

that proceedings against the person by summons would

not be effective.

(2)


An officer (other than a member of a police force who is

in uniform) who arrests a person under subsection (1)

must:

(a)


in the case of a member of a police

force;produce, for inspection by the person,

written evidence of the fact that the officer is a

member of a police force; or

(b)

in any other case;produce the officer's identity



card for inspection by the person.

(3)


Nothing in this section prevents the arrest of a person

under any other law.

- SECT 121

Confiscation and forfeiture

(1)

If a court convicts a person of an offence against this



Act, the court may order the forfeiture to the

Commonwealth of any vehicle, aircraft, vessel or article

used or otherwise involved in the commission of the

offence.


(2)

In considering whether it is appropriate to make such an

order in respect of a vehicle, aircraft, vessel or

article, the court may have regard to:

(a)

any hardship that may reasonably be expected to be



caused to any person by the operation of such an

order; and

(b)

the use that is ordinarily made, or was intended to



be made, of the vehicle, aircraft, vessel or article;

and


(c)

the gravity of the offence concerned.

(3)

An officer may:



(a)

seize any vehicle, aircraft, vessel or article that

the officer reasonably believes to have been used or

otherwise involved in the commission of an offence

against this Act; and

(b)


retain it until:

(i)


the end of the period of 60 days after the

seizure; or

(ii)

if proceedings for an offence against this Act



in the commission of which it may have been used

or otherwise involved are instituted within that

period;the proceedings (including any

appeal to a court in relation to those

proceedings) are completed.

(4)


The Director may authorise a vehicle, aircraft, vessel or

article seized under subsection (3) to be released to its

owner, or to the person from whose possession it was

seized, either:

(a)

unconditionally; or



(b)

on such conditions as the Director thinks fit,

including conditions as to giving security for

payment of its value if it is forfeited.

(5)

A vehicle, aircraft, vessel or article forfeited under



this section may be sold or otherwise disposed of as the

Director thinks fit.

(6)

An officer may seize:



(a)

any animal or plant that the officer reasonably

believes to have been killed or taken in

contravention of this Act; or

(b)

any animal or plant that the officer reasonably



believes to have been used or otherwise involved in

the commission of an offence against this Act.

(7)

If an animal or plant has been seized under subsection



(6), the Director may cause it to be:

(a)


retained; or

(b)


sold or otherwise disposed of.

(8)


If an animal or plant seized under subsection (6) was not

killed or taken in contravention of this Act or used or

otherwise involved in the commission of an offence against

this Act, any person who has suffered loss or damage

because of the seizure is entitled to reasonable

compensation.

- SECT 122

Searches of vehicles, aircraft and vessels

(1)

This section applies in relation to a vehicle, aircraft or



vessel if:

(a)


an officer believes on reasonable grounds that there

is in or on the vehicle, aircraft or vessel:

(i)

anything in respect of which an offence against



this Act has been committed; or

(ii)


anything that may afford evidence about the

commission of an offence against this Act; or

(b)

the vehicle, aircraft or vessel is in a Commonwealth



area in which an interim conservation order or a

permanent conservation order is in force, and a

search of the vehicle, aircraft or vessel is

reasonably necessary for the purpose of ascertaining

whether there is in that vehicle, aircraft or vessel:

(i)


anything in respect of which an offence against

this Act has been committed; or

(ii)

anything that may afford evidence about the



commission of an offence against this Act.

(2)


The officer may:

(a)


stop and detain the vehicle or vessel, or detain the

aircraft, as the case requires; and

(b)

search the vehicle, aircraft or vessel; and



(c)

break open and search any compartment, container or

other receptacle, in or on the vehicle, vessel or

aircraft, in which the officer suspects on reasonable

grounds there to be anything of a kind referred to in

subsection (1); and

(d)

examine and seize:



(i)

anything in respect of which the officer

suspects on reasonable grounds an offence

against this Act has been committed; or

(ii)

anything that the officer suspects on reasonable



grounds may afford evidence about the commission

of an offence against this Act.

(3)

An officer (other than a member of a police force who is



in uniform) who stops or proposes to search or detain a

vehicle, aircraft or vessel must:

(a)

in the case of a member of a police



force;produce, for inspection by the person in

charge of the vehicle, aircraft or vessel, written

evidence of the fact that the officer is a member of

a police force; or

(b)

in any other case;produce the officer's identity



card for inspection by the person;

and, if the officer fails to do so, he or she is not authorised to

search or detain the vehicle, aircraft or vessel.

- SECT 123

Searches of land and premises

(1)


This section applies in relation to land or premises if:

(a)


an officer suspects on reasonable grounds that there

is on the land or premises:

(i)

anything in respect of which an offence against



this Act has been committed; or

(ii)


anything that may afford evidence about the

commission of an offence against this Act; or

(b)

the land or premises are in a Commonwealth area in



which an interim conservation order or a permanent

conservation order is in force, and a search of the

land or premises is reasonably necessary for the

purpose of ascertaining whether there is on the land

or premises:

(i)


anything in respect of which an offence against

this Act has been committed; or

(ii)

anything that may afford evidence about the



commission of an offence against this Act.

(2)


The officer may, with the consent of the owner or occupier

of the land or premises or under a warrant issued under

section 124:

(a)


enter the land or premises; and

(b)


search the land or premises; and

(c)


break open and search a cupboard, drawer, chest,

trunk, box, package or other receptacle, whether a

fixture or not, in which the officer suspects on

reasonable grounds there to be anything of a kind

referred to in subsection (1); and

(d)


examine and seize:

(i)


anything in respect of which the officer

suspects on reasonable grounds an offence

against this Act has been committed; or

(ii)


anything that the officer suspects on reasonable

grounds may afford evidence about the commission

of an offence against this Act.

(3)


An officer (other than a member of a police force who is

in uniform) who proposes to enter land or premises under

subsection (2) must:

(a)


in the case of a member of a police

force;produce, for inspection by the owner or

occupier of the land or premises, written evidence of

the fact that the officer is a member of a police

force; or

(b)


in any other case;produce the officer's identity

card for inspection by the owner or occupier;

and, if the officer fails to do so, he or she is not authorised to

enter the land or premises.

(4)

If the entry is under a warrant issued under section 124,



the officer is taken not to have complied with subsection

(3), unless he or she also produces the warrant for

inspection by the owner or occupier.

- SECT 124

Warrants for searches of land or premises

(1)


If:

(a)


an information on oath is laid before a magistrate

alleging that an officer suspects on reasonable

grounds that there may be, in or on land or premises:

(i)


anything in respect of which an offence against

this Act has been committed; or

(ii)

anything that may afford evidence about the



commission of an offence against this Act; and

(b)


the information sets out those grounds;

the magistrate may issue a search warrant authorising an officer named

in the warrant, with such assistance, and by such force, as is

necessary and reasonable, to enter the premises and exercise the

powers referred to in paragraphs 123(2)(b), (c) and (d) in respect of

the thing.

(2)

The magistrate must not issue the warrant unless:



(a)

the informant or some other person has given to the

magistrate, either orally or by affidavit, such

further information (if any) as the magistrate

requires concerning the grounds on which the issue of

the warrant is being sought; and

(b)

the magistrate is satisfied that there are reasonable



grounds for issuing the warrant.

(3)


There must be stated in the warrant:

(a)


the purpose for which the warrant is issued, and the

nature of the offence in relation to which the entry

and search are authorised; and

(b)


whether entry is authorised to be made at any time of

the day or night or during specified hours of the day

or night; and

(c)


a description of the kind of things to be seized; and

(d)


a day, not later than 7 days after the day of issue

of the warrant, upon which the warrant ceases to have

effect.

(4)


If, in the course of searching, under the warrant, for a

particular thing in relation to a particular offence, an

officer finds a thing that the officer believes on

reasonable grounds to be:

(a)

a thing that will afford evidence about the



commission of the offence, although not the thing

specified in the warrant; or

(b)

a thing that will afford evidence about the



commission of another offence under this Act;

and the officer believes, on reasonable grounds, that it is necessary

to seize that thing in order to prevent its concealment, loss or

destruction, or its use in committing, continuing or repeating the

offence or the other offence, the warrant is taken to authorise the

officer to seize that thing.

- SECT 125

Warrants may be granted by telephone etc.

(1)

If, because of circumstances of urgency, an officer thinks



it necessary to do so, the officer may apply for a warrant

under subsection 123(1) by telephone, telex, fax or other

electronic means under this section.

(2)


Before applying, the officer must prepare an information

of a kind referred to in subsection 124(1) that sets out

the grounds on which the issue of the warrant is being

sought, but may, if it is necessary to do so, make the

application before the information has been sworn.

(3)


If the magistrate to whom an application under subsection

(1) is made is satisfied:

(a)

after having considered the terms of the information



prepared under subsection (2); and

(b)


after having received such further information (if

any) as the magistrate requires concerning the

grounds on which the issue of the warrant is being

sought;


that there are reasonable grounds for issuing the warrant, the

magistrate must complete and sign such a search warrant as the

magistrate would issue under section 124 if the application had been

made under that section.

(4)

If the magistrate signs a warrant under subsection (3):



(a)

the magistrate must:

(i)

inform the officer of the terms of the warrant;



and

(ii)


inform the officer of the day on which and the

time at which the warrant was signed; and

(iii)

inform the officer of the day (not more than 7



days after the magistrate completes and signs

the warrant) on which the warrant ceases to have

effect; and

(iv)


record on the warrant the reasons for issuing

the warrant; and

(b)

the officer must:



(i)

complete a form of warrant in the same terms as

the warrant completed and signed by the

magistrate; and

(ii)

write on it the magistrate's name and the day on



which and the time at which the warrant was

signed.


(5)

The officer must, not later than the day after the date of

expiry or execution of the warrant, whichever is the

earlier, send to the magistrate:

(a)

the form of warrant completed by the officer; and



(b)

the information duly sworn in connection with the

warrant.

(6)


Upon receiving the documents referred to in subsection

(5), the magistrate must:

(a)

attach to them the warrant signed by the magistrate;



and

(b)


deal with the documents in the way in which the

magistrate would have dealt with the information if

the application for the warrant had been made under

section 124.

(7)

A form of warrant duly completed by an inspector under



subsection (4) is, if it is in accordance with the terms

of the warrant signed by the magistrate, authority for any

entry, search, seizure or other exercise of a power that

the warrant so signed authorises.

(8)

If:


(a)

it is material, in any proceedings, for a court to be

satisfied that an entry, search, seizure or other

exercise of power was authorised in accordance with

this section; and

(b)


the warrant signed by a magistrate under this section

authorising the entry, search, seizure or other

exercise of power is not produced in evidence;

the court is to assume, unless the contrary is proved, that the entry,

search, seizure or other exercise of power was not authorised by such

a warrant.

- SECT 126

Retention of things seized

(1)

If an officer seizes a thing under paragraph 122(2)(d) or



123(2)(d), the officer may retain it until:

(a)


the end of the period of 60 days after the seizure;

or

(b)



if proceedings for an offence against this Act in the

commission of which it may have been used or

otherwise involved, or in respect of which it may

afford evidence, are instituted within that

period;until the proceedings (including any

appeal to a court in relation to those proceedings)

are completed.

(2)


The Director may authorise a thing seized under paragraph

122(2)(d) or 123(2)(d) to be released to the owner, or to

the person from whose possession it was seized, either:

(a)


unconditionally; or

(b)


on such conditions as the Director thinks fit,

including conditions as to giving security for

payment of its value if it is forfeited.

- SECT 127

Officers may require certain information

(1)


An officer who:

(a)


detains or searches a vehicle, aircraft or vessel

under section122; or

(b)

enters or searches land or premises under section



123;

may require a person found in or on the vehicle, aircraft or vessel,

or on the land or premises, to state the person's full name and

address.


(2)

An officer who detains or searches a vessel under section

122 may require the person in charge of the vessel to give

the officer such information concerning:

(a)

the vessel and its crew; and



(b)

any person on board the vessel;

as the officer requests.

(3)


If an officer (other than a member of a police force who

is in uniform) makes a requirement of a person under this

section, the officer must:

(a)


in the case of a member of the police

force;produce, for inspection by that person,

written evidence of the fact that the officer is a

member of a police force; or

(b)

in any other case;produce the officer's identity



card for inspection by that person;

and, if the officer fails to do so, that person is not obliged to

comply with the requirement.

- SECT 128

Power to pursue persons and vessels

(1)


An officer may exercise, in relation to foreign vessels

and foreign nationals in any place, but not within the

territorial sea of another country, a power conferred on

the officer under section 122 if:

(a)

one or more officers (whether or not including the



officer exercising the power) have pursued the person

or vessel from a place within one of the areas

referred to in subsection 119(2) to such a place; and

(b)


the pursuit was not terminated or interrupted at any

time before the officer concerned arrived at such a

place with a view to exercising that power.

(2)


For the purposes of paragraph (1)(b), a pursuit of a

person or vessel is not taken to be terminated or

interrupted only because the officer or officers concerned

lose sight of the person or vessel.

(3)

A reference in subsection (2) to losing sight of a person



or vessel includes a reference to losing output from a

radar or other sensing device.

- SECT 129

Obstruction of officers etc.

A person must not:

(a)


without reasonable excuse, refuse or fail to comply

with a requirement made by an officer in the exercise

of powers under section 127; or

(b)


state a false name and address, or give false

information, to an officer when lawfully required by

the officer, in the exercise of powers under section

127, to state the person's full name and address, or

to give information, to the officer.

Penalty: Imprisonment for 6 months.

Division 3;Injunctions
- SECT 130

Injunctions granted on the application of the Director

(1)

If a person (other than a Commonwealth agency) has



engaged, is engaging or is proposing to engage in any

conduct in contravention of this Act, the Federal Court

may, on the application of the Director grant an

injunction:

(a)

restraining the person from engaging in the conduct;



and

(b)


if in the court's opinion it is desirable to do

so;requiring the person to do something.

(2)

If:


(a)

a person (other than a Commonwealth agency) has

refused or failed, or is refusing or failing, or is

proposing to refuse or fail, to do something; and

(b)

the refusal or failure was, is or would be a



contravention of this Act;

the Federal Court may, on the application of the Director, grant an

injunction requiring the person to do it.

- SECT 131

Injunctions granted on the application of interested

persons


(1)

If the Minister or the Director has engaged, is engaging

or is proposing to engage in any conduct in contravention

of this Act (other than Part 2 or Division 2 of Part 5),

the Federal Court may, on the application of an interested

person:


(a)

grant an injunction restraining the Minister or the

Director from engaging in the conduct; and

(b)


if in the court's opinion it is desirable to do

so;require the Commonwealth agency to do

something.

(2)


If:

(a)


the Minister or the Director has refused or failed,

or is refusing or failing, or is proposing to refuse

or fail, to do something; and

(b)


the refusal or failure was, is or would be a

contravention of this Act (other than Part 2);

the Federal Court may, on the application of an interested person,

grant an injunction requiring the Minister or the Director to do it.

(3)

In this section:



interested person means:

(a)


a person who has engaged in a series of activities

relating to the protection or conservation of, or

research into, listed native species or listed

ecological communities; or

(b)

subject to subsection (4), an organisation or



association (whether incorporated or not) whose

objects or purposes include, and whose activities

relate to, the protection or conservation of, or

research into, listed native species or listed

ecological communities.

(4)


Paragraph (3)(b) does not apply to an application if it

relates to something done:

(a)

before the organisation or association was formed; or



(b)

before the objects or purposes of the organisation or

association included the matter concerned; or

(c)


before the organisation or association engaged in

activities relating to the matter concerned.

- SECT 132

Interim injunctions

(1)

If an application is made to the court for an injunction



under section 130 or 131, the court may, before

considering the application, grant an interim injunction

restraining a person or a Commonwealth agency from

engaging in the conduct of a kind referred to in those

sections.

(2)


The court is not to require an applicant for an injunction

under section 130, as a condition of granting an interim

injunction, to give any undertakings as to damages.

- SECT 133

Discharge etc. of injunctions

The court may discharge or vary an injunction granted under this

Division.

- SECT 134

Certain limits on granting injunctions not to apply

(1)


The power of the court under this Division to grant an

injunction restraining a person or Commonwealth agency

from engaging in conduct of a particular kind may be

exercised:

(a)

if the court is satisfied that the person or



Commonwealth agency has engaged in conduct of that

kind;whether or not it appears to the court that

the person or Commonwealth agency intends to engage

again, or to continue to engage, in conduct of that

kind; or

(b)


if it appears to the court that, if an injunction is

not granted, it is likely that the person or

Commonwealth agency will engage in conduct of that

kind;whether the person or Commonwealth agency

has previously engaged in conduct of that kind and

whether or not there is an imminent danger of

substantial damage to any person if the person or

Commonwealth agency engages in conduct of that kind.

(2)

The power of the court to grant an injunction requiring a



person or Commonwealth agency to do a something may be

exercised:

(a)

if the court is satisfied that the person or



Commonwealth agency has refused or failed to do

it;whether or not it appears to the court that

the person or Commonwealth agency intends to refuse

or fail again, or to continue to refuse or fail, to

do it; or

(b)


if it appears to the court that, if an injunction is

not granted, it is likely that the person or

Commonwealth agency will refuse or fail to do

it;whether or not the person or Commonwealth

agency has previously refused or failed to do it and

whether or not there is an imminent danger of

substantial damage to any person if the person or

Commonwealth agency refuses or fails to do it.

- SECT 135

Other powers of the court unaffected

The powers conferred on the court under this Division are in

addition to, and not in derogation of, any other powers of

the court, whether conferred by this Act or otherwise.

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