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Contents (1995 - 101)
Threatened Species Conservation Act 1995 No 101
Repealed version for 18 August 2017 to 24 August 2017 (accessed 20 October 2017 at 07:14)
Part 9B
Part 9B Criminal and other proceedings
Division 1 Proceedings for offences generally
141E   Proceedings for offences
(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.
(2)  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 or the maximum penalty provided by this Act or the regulations in respect of the offence, whichever is the lesser.
Division 2 Restraining orders
141F   Restraint 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.
Division 3 Court orders in connection with offences
141G   Operation of Division
(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.
141H   Orders generally
(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.
141I   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)  to retire, in accordance with Part 7A, 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 Chief Executive 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.
141J   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.
141K   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.
141L   Orders regarding costs and expenses of investigation
(1)  The court may, if it appears to the court that the Chief Executive or a person employed in the Office has reasonably incurred costs and expenses during the investigation of the offence, order the offender to pay to the Chief Executive 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.
141M   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.
141N   Additional orders
(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 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.
The Local Court is not authorised to make an order referred to in paragraph (c).
(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.
141O   Offence
A person who fails to comply with an order under this Division (except an order under section 141J or 141L) 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.
Note.
 An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 152.