Document ID: chunk:federal_register_of_legislation:C2008C00459:clause:1_354a:p3
Version: federal_register_of_legislation:C2008C00459
Segment Type: clause
Provision Reference: sch 1 cl 354A (pt 3/4)
Character Range: 397724–400374

do not apply to an action that is covered by a usage right, or a right arising out of a usage right, to which section 359 applies.

Note 1: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.

Note 2: This exception might not apply in relation to actions taken in the Antarctic (see subsection (16)).

Exception for prior traditional use

 (13) Subsections (1), (3) and (5) do not apply to an action that is covered by section 359A.

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

Exception for actions approved under section 359B

 (14) Subsections (1), (3) and (5) do not apply to an action that is covered by an approval in force under subsection 359B(1). For this purpose, an action is covered by such an approval if:
 (a) a management plan is not in operation for the Commonwealth reserve; and
 (b) the action is, or is in the class of actions, specified in the approval; and
 (c) the action is taken in accordance with the approval by the person, or a person in the class of persons, specified in the approval in the area specified in the approval.

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

Actions in the Antarctic

 (15) Subsections (1), (3) and (5) do not apply to an action taken in the Antarctic if:
 (a) taking the action is an element of an offence under the Antarctic Treaty (Environment Protection) Act 1980; and
 (b) the person has a defence under that Act in relation to the offence.

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

 (16) The exceptions in subsections (8), (10) and (12) of this section do not apply in relation to an action taken in the Antarctic if taking the action is an element of an offence under the Antarctic Treaty (Environment Protection) Act 1980.

Note: Although the exception in subsection (9) can still apply, mining operations in the Antarctic are prohibited in any case under the Antarctic Treaty (Environment Protection) Act 1980. The exceptions in subsections (11) and (13) cannot apply to actions taken in the Antarctic.

Sentencing restriction for offences in the exclusive economic zone

 (17) A court must not impose a sentence of imprisonment on a person for an offence under subsection (1) or (5) if:
 (a) fishing (as defined in the Fisheries Management Act 1991) constituted a physical element of the offence; and
 (b) the