Part 15 Criminal and other proceedings
Division 1 Proceedings for offences generally
(1) Proceedings for an offence under this Act or the regulations may be dealt with:(a) summarily before the Local Court, or(b) summarily before the Land and Environment Court.(1AA), (1BB) (Repealed)(1A) The maximum pecuniary penalty that the Local Court may impose in respect of an offence against this Act or the regulations is 200 penalty units (including any daily penalty, any additional penalty as provided by section 98, 99, 118 or 118A or any further penalty for a second or subsequent offence) or the maximum penalty provided by this Act or the regulations in respect of the offence, whichever is the lesser.(1B) (Repealed)(2) Where the penalty is a daily penalty it may be recovered either under a separate court attendance notice, summons or application for each day or under a court attendance notice, summons or application for the sum of the daily penalties.(3) Where any person is convicted of an offence against this Act or the regulations and the Judge or Magistrate before whom the person was convicted makes an order under the Criminal Procedure Act 1986 for the payment by the defendant of costs, those costs shall be paid into the Fund.
190 Time within which proceedings may be commenced
(1) Proceedings for an offence under this Act or the regulations may be commenced:(a) within but not later than 2 years after the date on which the offence is alleged to have been committed, or(b) within but not later than 2 years after the date on which evidence of the alleged offence first came to the attention of any authorised officer.(2) If subsection (1) (b) is relied on for the purpose of commencing proceedings for an offence, the court attendance notice, summons or application must contain particulars of the date on which evidence of the offence first came to the attention of any authorised officer and need not contain particulars of the date on which the offence was committed. The date on which evidence first came to the attention of any authorised officer is the date specified in the court attendance notice, summons or application, unless the contrary is established.(3) This section applies despite anything in the Criminal Procedure Act 1986 or any other Act.(4) In this section, evidence of an offence means evidence of any act or omission constituting the offence.
191 Authority to take proceedings
(1) Subject to subsection (1A), any legal proceedings for an offence against, or to recover any charge, fee or money due under, this Act or the regulations or the Threatened Species Conservation Act 1995 or the regulations under that Act may only be taken by a police officer, the Director-General or by a person duly authorised by the Director-General in that behalf, either generally or in any particular case.(1A) Proceedings for an offence under this Act may be instituted in the Land and Environment Court in its summary jurisdiction only by the following persons:(a) the Director-General,(b) an officer of the Service authorised by the Director-General for the purposes of this section.(2) In any proceedings referred to in this section the production of an authority purporting to be signed by the Director-General shall be evidence of the authority without proof of the Director-General’s signature.
192 Penalty notice for certain offences
Editorial note. See also Part 3 of the Fines Act 1996.(1) In this section:owner has the same meaning as in section 159.
prescribed offence means an offence prescribed for the purposes of this section and includes a parking offence within the meaning of section 159.
prescribed person means:
(a) a police officer, or(b) an officer of the Service, or(c) a person, or a person belonging to a class of persons, prescribed for the purposes of this section.(1A) In this section, a reference to this Act or the regulations includes a reference to the Threatened Species Conservation Act 1995 or the regulations made under that Act.(2) Where it appears to a prescribed person that any other person has committed any prescribed offence against this Act or the regulations or is, by virtue of section 159, guilty of such an offence, the prescribed person may serve a notice on that other person to the effect that, if that other person does not desire to have the matter determined by a court, he or she may pay to a person specified in the notice at the place and within the time so specified the amount of the penalty prescribed for the offence if dealt with under this section.(3) A notice under subsection (2) may be served:(a) where the offence is a parking offence within the meaning of section 159 or an offence of which a person is guilty by virtue of that section:(i) in the manner provided by section 174, or(ii) by addressing the notice to the owner of the vehicle to which the offence relates, without naming that owner or stating his or her address, and leaving it on, or attaching it to, the vehicle, or(b) in any other case—in the manner provided by section 174.(4) Where the amount of penalty prescribed for an alleged offence is paid pursuant to this section, no person shall be liable for any further proceedings for the alleged offence.(5) Payment of a penalty pursuant to this section is not an admission of liability for the purpose of any action or proceedings and does not in any way affect or prejudice any civil claim, action or proceedings arising out of the same occurrence.(6) The regulations may:(a) prescribe an offence as a prescribed offence for the purposes of this section by specifying the offence or by reference to the provision creating the offence,(b) prescribe the amount of penalty payable under this section for each prescribed offence, and(c) for the purposes of this section, prescribe different amounts of penalties for different offences or classes of offences, or for offences or classes of offences having regard to the circumstances thereof.(7) No amount of penalty prescribed under this section for any offence shall exceed any maximum amount of penalty which could be imposed for the offence by a court.(8) The provisions of this section are supplemental to, and do not derogate from, any other provisions of this or any other Act in relation to proceedings that may be taken in respect of prescribed offences.(9) A prescribed person belonging to the same class of prescribed person as the person by whom a penalty notice has been served:(a) may withdraw the notice within 28 days after the date on which the notice was served, and(b) must withdraw the notice immediately if directed to do so by the Director-General.(10) The following provisions have effect in relation to an alleged offence if a penalty notice for the alleged offence is withdrawn in accordance with subsection (9):(a) The amount that was payable under the notice ceases to be payable.(b) Any amount that has been paid under the notice is repayable to the person by whom it was paid.(c) Further penalty notices and proceedings in respect of the alleged offence may be taken against any person (including the person on whom the notice was served) as if the notice had never been served.
193 Restraint etc of breaches of Act or regulations
(1) Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act or the regulations, whether or not any right of that person has been or may be infringed by or as a consequence of that breach.(2) Proceedings under this section may be brought by a person on the person’s own behalf or on behalf of the person and other persons (with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings.(3) Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings.(4) In this section, breach includes a threatened or apprehended breach.
194 Sentencing—matters to be considered in imposing penalty
(1) In imposing a penalty for an offence under this Act or the regulations, the court is to take into consideration the following (so far as they are relevant):(a) the extent of the harm caused or likely to be caused by the commission of the offence,(b) the significance of the reserved land, Aboriginal object or place, threatened species or endangered species, population or ecological community (if any) that was harmed, or likely to be harmed, by the commission of the offence,(c) the practical measures that may be taken to prevent, control, abate or mitigate that harm,(d) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused by the commission of the offence,(e) the extent to which the person who committed the offence had control over the causes that gave rise to the offence,(f) in relation to an offence concerning an Aboriginal object or place or an Aboriginal area—the views of Aboriginal persons who have an association with the object, place or area concerned,(g) whether, in committing the offence, the person was complying with an order or direction from an employer or supervising employee,(h) whether the offence was committed for commercial gain.(2) The court may take into consideration other matters that it considers relevant.
(1) A person who is guilty of an offence because the person contravenes a requirement made by or under this Act or the regulations (whether the requirement is imposed by a notice or otherwise) to do or cease to do something (whether or not within a specified period or before a particular time):(a) continues, until the requirement is complied with and despite the fact that any specified period has expired or time has passed, to be liable to comply with the requirement, and(b) is guilty of a continuing offence for each day the contravention continues.(2) This section does not apply to an offence if the relevant provision of this Act or the regulations does not provide for a penalty for a continuing offence.(3) This section does not apply to the extent that a requirement of a notice is revoked.
196 Onus of proof of reasonable excuse or lawful excuse
In any proceedings under this Act, the onus of proving that a person had a reasonable excuse or lawful excuse (as referred to in any provision of this Act or the regulations) lies with the defendant.
197 Evidentiary provisions etc
(1) An allegation, in a court attendance notice, summons or application in respect of an offence against this Act or the regulations, that any lands in question form part of a national park, historic site, state conservation area, regional park, nature reserve, karst conservation reserve, Aboriginal area, Aboriginal place or wildlife refuge shall be sufficient without proof of the matter so alleged unless the defendant proves to the contrary.(2) An allegation, in a court attendance notice, summons or application in respect of an offence against this Act or the regulations, that a standard, sign, symbol, notice or device was erected, displayed or marked with the authority of the Director-General, or that a standard, sign, symbol, notice or device was erected, displayed, marked, interfered with, altered or removed without the authority of the Director-General, shall be accepted by the court as evidence of the truth of the allegation, unless the defendant proves to the contrary.(2A) An allegation, in a court attendance notice, summons or application in respect of an offence against this Act or the regulations, that an animal or plant is a member of a species, population or ecological community specified in that court attendance notice, summons or application is sufficient proof of the matter so alleged unless the defendant proves to the contrary.(3) In any proceedings for an offence against this Act or the regulations, a certificate purporting to be signed by the officer for the time being in charge of the records kept under the law for the time being in force in any part of the Commonwealth relating to the ownership of motor vehicles and naming the owner of a motor vehicle as shown on those records shall be prima facie evidence of the name of the owner of the motor vehicle.(4) In any prosecution under this Act, any allegation in any court attendance notice, summons or application that any person is unlicensed or acting without permission or authority need not be proved, and that person shall be deemed to be unlicensed or acting without permission or authority, as the case may be, until the contrary is proved by the production of a licence, permit or authority or otherwise.(5) In any proceedings for an offence against this Act or the regulations, a certificate purporting to be signed by the Director-General and certifying:(a) that any person was or was not, on a date or within a period specified therein, the holder of any specified licence, certificate, consent, authority or other thing issued or granted by instrument in writing under this Act, or(b) that, on a date or within a period so specified, any such licence, certificate, consent, authority or other thing:shall be prima facie evidence of the matter or matters so certified.(i) related to any specified premises,(ii) was subject to any specified conditions or restrictions, or(iii) was, to any specified extent, unconditional or unrestricted,(6) In any proceedings for an offence against this Act or the regulations, a certificate purporting to be signed by the Director-General and certifying:(a) that an amount specified therein is the amount of any charge, cost or expense incurred as specified therein by reason of the offence, or(b) that an amount specified therein is the amount of any loss or damage sustained, as specified therein, as a result of the offence,shall be prima facie evidence of the matter or matters so certified.(7) In any proceedings, a certificate purporting to be signed by the Director-General and certifying that at a time, or during a period, specified in the certificate:(a) a conservation agreement relating to land so specified was in force, and(b) the agreement contained the terms specified in the certificate,shall be prima facie evidence of the matter or matters so certified.(8) In any proceedings, a document purporting to be certified by the Director-General or the Registrar-General as a copy of a conservation agreement registered under section 69F shall be prima facie evidence of the agreement.(9) A copy of any declaration or map of critical habitat published in the Gazette, being a copy purporting to be certified by the Director-General, as being a true copy of the declaration or map so published, is admissible in any legal proceedings and is evidence of the matter or matters contained in the declaration or map.(10) In any proceedings, a certificate purporting to be signed by the Director-General of the Department of Industry and Investment (or a person authorised by that Director-General for the purposes of this subsection) stating that at a time, or during a period, specified in the certificate a specified animal was an animal that is a pest within the meaning of Part 11 of the Rural Lands Protection Act 1998 is evidence of the matter or matters stated in the certificate.(11) In any proceedings, a certificate purporting to be signed by the Director-General stating that at a time, or during a period, specified in the certificate a specified animal was an animal whose impact is listed in Schedule 3 to the Threatened Species Conservation Act 1995 as a key threatening process is evidence of the matter or matters stated in the certificate.
Division 3 Court orders in connection with offences
(1) Application to proved offences
This Division applies where a court finds an offence under this Act or the regulations proved.(2) Meaning of proved offences
Without limiting the generality of subsection (1), a court finds an offence proved if:(a) the court convicts the offender of the offence, or(b) the court makes an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 against the offender in relation to the offence (in which case any order under this Division is not a punishment for the purposes of that section).(3) Definitions
In this Division:the court means the court that finds the offence proved.
the offender means the person who is found to have committed the offence.
(1) Orders may be made
One or more orders may be made under this Division against the offender.(2) Orders are additional
Orders may be made under this Division in addition to any penalty that may be imposed or any other action that may be taken in relation to the offence.(3) Other action not required
Orders may be made under this Division regardless of whether any penalty is imposed, or other action taken, in relation to the offence.
200 Orders for restoration and prevention
(1) The court may order the offender to take such steps as are specified in the order, within such time as is so specified (or such further time as the court on application may allow):(a) to prevent, control, abate or mitigate any harm caused by the commission of the offence, or(b) in relation to an offence under Part 8A involving damage to any critical habitat or habitat of a threatened species, an endangered population or an endangered ecological community—to retire, in accordance with Part 7A of the Threatened Species Conservation Act 1995, biodiversity credits of a number and class (if applicable) specified in the order and, if the offender does not hold sufficient biodiversity credits to comply with the direction, to acquire the necessary biodiversity credits for the purpose of retiring them, or(c) to make good any resulting damage, or(d) to prevent the continuance or recurrence of the offence.(2) The court may order the offender to provide security to the court or to the Director-General for the performance of any obligation imposed under this section.(3) An order under subsection (2) must specify:(a) the amount of the security required to be provided, and(b) the kind of security required to be provided, and(c) the manner and form in which the security is to be provided.(4) In this section:biodiversity credit has the same meaning as it has in Part 7A of the Threatened Species Conservation Act 1995.
harm has its ordinary meaning.
201 Orders for costs, expenses and compensation at time offence proved
(1) The court may, if it appears to the court that:(a) a public authority has incurred costs and expenses in connection with:(i) the prevention, control, abatement or mitigation of any harm caused by the commission of the offence, or(ii) making good any resulting damage, or(b) a person (including a public authority) has, by reason of the commission of the offence, suffered loss of or damage to property or has incurred costs and expenses in preventing or mitigating, or in attempting to prevent or mitigate, any such loss or damage,order the offender to pay to the public authority or person the costs and expenses so incurred, or compensation for the loss or damage so suffered, as the case may be, in such amount as is fixed by the order.(2) An order made by the Land and Environment Court under subsection (1) is enforceable as if it were an order made by the Court in Class 4 proceedings under the Land and Environment Court Act 1979.(3) The Local Court may not make an order under subsection (1) for the payment of an amount that exceeds the amount for which an order may be made by the court when exercising jurisdiction under the Civil Procedure Act 2005. An order made by the court is enforceable as if it were an order made by the court when exercising jurisdiction under that Act.
202 Recovery of costs, expenses and compensation after offence proved
(1) If, after the court finds the offence proved:(a) a public authority has incurred costs and expenses in connection with:(i) the prevention, control, abatement or mitigation of any harm caused by the commission of the offence, or(ii) making good any resulting damage, or(b) a person (including a public authority) has, by reason of the commission of the offence, suffered loss of or damage to property or has incurred costs and expenses in preventing or mitigating, or in attempting to prevent or mitigate, any such loss or damage,the person or public authority may recover from the offender the costs and expenses incurred or the amount of the loss or damage in the Land and Environment Court.(2) The amount of any such costs and expenses (but not the amount of any such loss or damage) may be recovered as a debt.
203 Orders regarding costs and expenses of investigation
(1) The court may, if it appears to the court that an officer of the Service has reasonably incurred costs and expenses during the investigation of the offence, order the offender to pay to the Director-General the costs and expenses so incurred in such amount as is fixed by the order.(2) An order made by the Land and Environment Court under subsection (1) is enforceable as if it were an order made by the Court in Class 4 proceedings under the Land and Environment Court Act 1979.(3) An order made by the Local Court under subsection (1) is enforceable as if it were an order made by the court when exercising jurisdiction under the Civil Procedure Act 2005.(4) In this section, costs and expenses, in relation to the investigation of an offence, means the costs and expenses:(a) in taking any sample or conducting any inspection, examination, test, measurement or analysis, or(b) of transporting, storing or disposing of evidence,during the investigation of the offence.
204 Orders regarding monetary benefits
(1) The court may order the offender to pay, as part of the penalty for committing the offence, an additional penalty of an amount the court is satisfied, on the balance of probabilities, represents the amount of any monetary benefits acquired by the offender, or accrued or accruing to the offender, as a result of the commission of the offence.(2) The amount of an additional penalty for an offence is not subject to any maximum amount of penalty provided elsewhere by or under this Act.(3) In this section:monetary benefits means monetary, financial or economic benefits.
the court does not include the Local Court.
(1) Orders
The court may do any one or more of the following:(a) order the offender to take specified action to publicise the offence (including the circumstances of the offence) and its environmental and other consequences and any other orders made against the person,(b) order the offender to take specified action to notify specified persons or classes of persons of the offence (including the circumstances of the offence) and its consequences and of any orders made against the person (including, for example, the publication in an annual report or any other notice to shareholders of a company or the notification of persons aggrieved or affected by the offender’s conduct),(c) order the offender to carry out a specified project for the restoration or enhancement of the environment in a public place or for the public benefit,(d) order the offender to pay a specified amount to the Environmental Trust established under the Environmental Trust Act 1998, or a specified organisation, for the purposes of a specified project for the restoration or enhancement of the environment or for general environmental purposes,(e) order the offender to attend, or to cause an employee or employees or a contractor or contractors of the offender to attend, a training or other course specified by the court,(f) order the offender to establish, for employees or contractors of the offender, a training course of a kind specified by the court.The Local Court is not authorised to make an order referred to in paragraph (c) or (d).
(2) Machinery
The court may, in an order under this section, fix a period for compliance and impose any other requirements the court considers necessary or expedient for enforcement of the order.(3) Failure to publicise or notify
If the offender fails to comply with an order under subsection (1) (a) or (b), the prosecutor or a person authorised by the prosecutor may take action to carry out the order as far as may be practicable, including action to publicise or notify:(a) the original contravention, its consequences, and any other penalties imposed on the offender, and(b) the failure to comply with the order.(4) Cost of publicising or notifying
The reasonable cost of taking action referred to in subsection (3) is recoverable by the prosecutor or person taking the action, in a court of competent jurisdiction, as a debt from the offender.
A person who fails to comply with an order under this Division (except an order under section 201 or 203) is guilty of an offence.Maximum penalty:
(a) in the case of a corporation—1,100 penalty units for each day the offence continues, or(b) in the case of an individual—550 penalty units for each day the offence continues.