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Contents (1974 - 80)
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National Parks and Wildlife Act 1974 No 80
Current version for 26 October 2018 to date (accessed 12 November 2019 at 10:12)
Part 15 Division 2
Division 2 General provisions
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
(b1)  the Chairperson of the Environment Protection Authority, or
(b2)  a member of staff of the Environment Protection Authority, 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 Chief Executive.
(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.
195   Continuing offences
(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 Chief Executive, or that a standard, sign, symbol, notice or device was erected, displayed, marked, interfered with, altered or removed without the authority of the Chief Executive, 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 Chief Executive 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:
(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,
shall be prima facie evidence of the matter or matters so certified.
(6)  In any proceedings for an offence against this Act or the regulations, a certificate purporting to be signed by the Chief Executive 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 Chief Executive 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 Chief Executive 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 Chief Executive, 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)    (Repealed)
(11)  In any proceedings, a certificate purporting to be signed by the Chief Executive 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.
Note.
 See the Biosecurity Act 2015 for certification of matters under that Act.