Document ID: chunk:federal_register_of_legislation:C2008A00125:clause:6_38bd:p1
Version: federal_register_of_legislation:C2008A00125
Segment Type: clause
Provision Reference: sch 6 cl 38BD (pt 1/2)
Character Range: 177582–180249

38BD  Operation of fishing vessel in zone: offence

Operation of a fishing vessel prohibited or done without permission

 (1) A person commits an offence if:
 (a) the person operates a vessel; and
 (b) the person does so in a zone; and
 (c) the vessel is a primary commercial fishing vessel; and
 (d) the vessel is an Australian vessel; and
 (e) the vessel is authorised, under a law of the Commonwealth or of a State (including by a licence granted under such a law), to fish using a particular fishing method or particular fishing apparatus; and
 (f) under the zoning plan for the zone, fishing using that method or apparatus:
 (i) is prohibited; or
 (ii) requires permission; and

Note: Prohibited is defined in subsection 3(1).
 (g) if it requires permission—the person is not authorised to fish using that method or apparatus by:
 (i) a permission granted under the regulations for the purposes of the zoning plan; or
 (ii) an authority given in accordance with a condition of a permission referred to in subparagraph (i).

Penalty: 500 penalty units.

 (2) Strict liability applies to paragraphs (1)(b), (c), (f) and (g).

Note: For strict liability, see section 6.1 of the Criminal Code.

 (3) Absolute liability applies to paragraphs (1)(d) and (e).

Note: For absolute liability, see section 6.2 of the Criminal Code.

Defence—vessel is transiting or anchoring

 (4) Subsection (1) does not apply if:
 (a) the vessel is transiting through the zone; or
 (b) the vessel is anchored in the zone; or
 (c) the vessel is transiting to a place where the vessel is to anchor or transiting from a place where the vessel has been anchored.

Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.

 (5) For the purposes of subsection (4), a vessel is only transiting if:
 (a) the vessel is taking the most direct practicable route:
 (i) through the zone to a destination outside the zone; or
 (ii) to or from a place of anchor; and
 (b) the vessel is maintaining a speed of at least 5 knots.

Defence—emergency or unavoidable accident

 (6) Subsection (1) does not apply if:
 (a) the operation of the vessel in the zone:
 (i) is reasonably necessary to deal with an emergency involving a serious threat to human life or property; or
 (ii) is a result of an unavoidable accident, other than an accident caused by reckless or negligent behaviour; and
 (b) the Authority is notified of the operation, and the emergency or accident, no more than 48 hours after the vessel was first operated in the zone.

Note: The defendant bears an evidential burden in relation to the matters in this