Killing or injuring a cetacean (1) A person commits an offense if: (a) the person takes an action; and (b) the action results in the death or injury of a cetacean; and (c) the cetacean is in: (i) the Australian Whale Sanctuary (but not the coastal waters, or a part of the coastal waters, of a State or the Northern Territory for which a declaration under section 228 is in force); or

(ii) waters beyond the outer limits of the Australian Whale Sanctuary.

Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2: This section does not apply in the circumstances described in section 231. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code .

(1A) Strict liability applies to paragraph (1)(c).

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

(2) The offense is punishable on conviction by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty units, or both.

The Fisheries Management (Heard Island and McDonald Islands Fishery) Regulations 2002 outline fish product disposal requirements for Southern Ocean fisheries. Other fisheries' requirements relating to abandoned or discarded gear, fish or fish product are contained in license/permit conditions specific to each fishery.

For the definition of international fisheries management measure in subsection 4(1) of the Act: (a) Schedule1 prescribes measures to give effect to measures established by CCAMLR; and (b) Schedule 2 prescribes measures to give effect to measures established by IOTC; and (c) Schedule 3 prescribes measures to give effect to measures established by WCPFC; and (d) Schedule 3A prescribes measures to give effect to measures established by CCSBT; and (e) Schedule 3B prescribes measures to give effect to measures established by SPRFMO.

Fisheries Management (International Agreements) Regulations 2009 expressly includes a range of RFMO obligations, as updated from time to time.

11. For the purposes of this article, a serious violation means: (a) fishing without a valid license, authorization or permit issued by the flag State in accordance with article 18, paragraph 3(a); (b) failing to maintain accurate records of catch and catch-related data, as required by the relevant subregional or regional fisheries management organization or arrangement, or serious misreporting of catch, contrary to the catch reporting requirements of such organization or arrangement; (c) fishing in a closed area, fishing during a closed season or fishing without, or after attainment of, a quota established by the relevant subregional or regional fisheries management organization or arrangement; (d) directed fishing for a stock which is subject to a moratorium or for which fishing is prohibited; (e) using prohibited fishing gear; (f) falsifying or concealing the markings, identity or registration of a fishing vessel; (g) concealing, tampering with or disposing of evidence relating to an investigation; (h) multiple violations which together constitute a serious disregard of conservation and management measures; or (i) such other violations as may be specified in procedures established by the relevant subregional or regional fisheries management organization or arrangement.

Regulation etc. of certain practices (1) For the purpose of conserving the marine environment, the regulations may prohibit, or make provision for the regulation of, the engaging in specified activities, or the use of specified practices, by: (a) persons engaged in fishing in the AFZ; and (b) Australian boats, and persons on Australian boats, engaged in fishing outside the AFZ. (2) Without limiting the generality of subsection (1), regulations may be made in relation to: (a) the employment of specified fishing practices or methods; and (b) the use of specified fishing equipment; and (c) the taking, and treatment of, by-catches, and the making of returns in relation to by-catches taken; and (d) littering at sea.

Regulation etc. of certain practices (1) For the purpose of conserving the marine environment, the regulations may prohibit, or make provision for the regulation of, the engaging in specified activities, or the use of specified practices, by: (a) persons engaged in fishing in the AFZ; and (b) Australian boats, and persons on Australian boats, engaged in fishing outside the AFZ. (2) Without limiting the generality of subsection (1), regulations may be made in relation to: (a) the employment of specified fishing practices or methods; and (b) the use of specified fishing equipment; and (c) the taking, and treatment of, by-catches, and (d) littering at sea.

Driftnet fishing (1) A person must not engage in driftnet fishing activities in the AFZ. Penalty: 500 penalty units. (1A) In subsection (1), strict liability applies to the physical element of circumstance, that the relevant conduct is engaged in within the AFZ. Note: For strict liability, see section 6.1 of the Criminal Code. (2) An Australian citizen must not engage in driftnet fishing activities outside the AFZ. Penalty: 500 penalty units. (3) A body corporate that is incorporated in Australia or carries on activities mainly in Australia must not engage in driftnet fishing activities outside the AFZ. Penalty: 2,500 penalty units. (4) A person must not, outside the AFZ, engage in driftnet fishing activities from an Australian boat. Penalty: 500 penalty units. (4A) In subsections (2), (3) and (4), strict liability applies to the physical element of circumstance, that the relevant conduct is engaged in outside the AFZ. Note: For strict liability, see section 6.1 of the Criminal Code. (5) In subsection (1): driftnet means a gillnet or other net or a combination of nets that is more than 2.5 kilometres in length, or such shorter length as is prescribed, the purpose of which is to enmesh, entrap or entangle fish by drifting on the surface of or in the water driftnet fishing activities means: (a) taking fish with the use of a driftnet; or (b) engaging in any other activity that can reasonably be expected to result in the taking of fish with the use of a driftnet, including searching for and locating fish to be taken by that method; or (c) any operations at sea in support of, or in preparation for any activity described in this definition, including operations of placing, searching for or recovering fish aggregating devices or associated electronic equipment such as radio beacons; or (d) aircraft use relating to the activities described in this definition except for flights in emergencies involving the health or safety of crew members or the safety of a boat; or (e) transporting, transhipping and processing any driftnet catch, and co-operation in the provision of food, fuel and other supplies for boats equipped for or engaged in driftnet fishing.

14. Regulation etc. of certain practices (1) For the purpose of conserving the marine environment, the regulations may prohibit, or make provision for the regulation of, the engaging in specified activities, or the use of specified practices, by: (a) persons engaged in fishing in the AFZ; and (b) Australian boats, and persons on Australian boats, engaged in fishing outside the AFZ. (2) Without limiting the generality of subsection (1), regulations may be made in relation to: (a) the employment of specified fishing practices or methods; and (b) the use of specified fishing equipment; and (c) the taking, and treatment of, by-catches, and the making of returns in relation to by-catches taken; and (d) littering at sea.

15. Prohibition against certain fishing (1) A person must not (otherwise than in accordance with the terms of a scientific permit): (a) in the AFZ, take black cod (Epinephelus daemelii); or (b) in the AFZ, or in a part of the AFZ specified in the regulations, take prescribed fish. Penalty: 125 penalty units. (2) A person on an Australian boat must not, outside the AFZ, take a prescribed fish. Penalty: 125 penalty units. (3) It is a defense to a prosecution for an offense against this section if the person charged satisfies the court that, upon becoming aware of the taking of the fish, he or she took steps immediately to return the fish to its natural environment. (4) An offense under this section is an offense of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code.

AFMA to meet international fisheries management organization and Fish Stocks Agreement obligations Boat involved in contravening international fisheries management measure (1) AFMA must not authorize under this Part the use of an Australian-flagged boat for fishing on the high seas for a conserved fish stock during the period specified in subsection (2), if: (a) a court has convicted a person of an offense described in subsection (3) involving the use of the boat; and (b) the court has ordered the person to pay a fine for the offense (whether or not the person has also been sentenced to imprisonment for the offense); and (c) the court has not ordered the forfeiture of the boat.

Period for which AFMA must not authorise use of boat (2) The period starts when the person is ordered to pay the fine and ends when one of the following events occurs: (a) the person pays the fine; (b) a penalty is imposed on the person for failure to pay the fine; (c) the court orders the forfeiture of the boat (for the offense or another offense); (d) the conviction of the person for the offense for which the person was ordered to pay the fine is quashed.

Offenses that prevent AFMA authorizing use of boat (3) Subsection (1) limits authorization of the use of a boat involved in any of the following offenses: (a) an offense against subsection 95(5) constituted by one of the following acts or omissions that contravenes a condition of a fishing concession or scientific permit that authorizes fishing for a conserved fish stock on the high seas or contravenes a provision of a temporary order relating to fishing for a conserved fish stock on the high seas: (i) fishing for the conserved fish stock at a particular time, in a particular place or with particular equipment; (ii) failing to maintain accurate records of catch; (iii) failing to provide an accurate return of fish taken, carried, transhipped or processed; (iv) taking, carrying, transhipping or processing more fish than authorized by the concession, permit or order; (v) changing or hiding the markings of the boat; (b) an offense against section 105A involving a fish from a conserved fish stock and a boat; (ba) an offense against section 105AA or 105AB; (c) an offense against section 105B involving a boat equipped for fishing for a conserved fish stock; (d) an offense against section 107 relating to a document, statement, return or information about catch of a conserved fish stock; (e) an offense against a prescribed provision of this Act or the regulations that is constituted by a prescribed act or omission relating to a conserved fish stock.

AFMA to meet international fisheries management organization and Fish Stocks Agreement obligations Boat involved in contravening international fisheries management measure (1) AFMA must not authorize under this Part the use of an Australian-flagged boat for fishing on the high seas for a conserved fish stock during the period specified in subsection (2), if: (a) a court has convicted a person of an offense described in subsection (3) involving the use of the boat; and (b) the court has ordered the person to pay a fine for the offense (whether or not the person has also been sentenced to imprisonment for the offense); and (c) the court has not ordered the forfeiture of the boat.

Period for which AFMA must not authorise use of boat (2) The period starts when the person is ordered to pay the fine and ends when one of the following events occurs: (a) the person pays the fine; (b) a penalty is imposed on the person for failure to pay the fine; (c) the court orders the forfeiture of the boat (for the offense or another offense); (d) the conviction of the person for the offense for which the person was ordered to pay the fine is quashed.

Offenses that prevent AFMA authorizing use of boat (3) Subsection (1) limits authorization of the use of a boat involved in any of the following offenses: (a) an offense against subsection 95(5) constituted by one of the following acts or omissions that contravenes a condition of a fishing concession or scientific permit that authorizes fishing for a conserved fish stock on the high seas or contravenes a provision of a temporary order relating to fishing for a conserved fish stock on the high seas: (i) fishing for the conserved fish stock at a particular time, in a particular place or with particular equipment; (ii) failing to maintain accurate records of catch; (iii) failing to provide an accurate return of fish taken, carried, transhipped or processed; (iv) taking, carrying, transhipping or processing more fish than authorized by the concession, permit or order; (v) changing or hiding the markings of the boat; (b) an offense against section 105A involving a fish from a conserved fish stock and a boat; (ba) an offense against section 105AA or 105AB; (c) an offense against section 105B involving a boat equipped for fishing for a conserved fish stock; (d) an offense against section 107 relating to a document, statement, return or information about catch of a conserved fish stock; (e) an offense against a prescribed provision of this Act or the regulations that is constituted by a prescribed act or omission relating to a conserved fish stock.

Contravention on high seas—strict liability (1) A person commits an offense if: (a) the person uses a boat for fishing; and (b) the person contravenes an international fisheries management measure in relation to the fishing; and (c) the boat is on the high seas; and (d) the boat is a foreign boat. Penalty: 60 penalty units. (2) Strict liability applies to subsection (1). Note: For strict liability, see section 6.1 of the Criminal Code. (3) Subsection (1) does not apply if the act that contravenes the international fisheries management measure is fishing that is authorized by an authorization (however described) issued under the law of the country of nationality of the boat. Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

offenses in places beyond the AFZ Subdivision A—Australian-flagged boats beyond the AFZ 105A. Australian-flagged boat with fish on high seas (1) A person commits an offense if: (a) the person intentionally has a fish in his or her possession or control; and (b) the fish is on an Australian-flagged boat on the high seas and the person is reckless as to that fact; and (c) the taking of the fish is not authorized by a fishing concession or scientific permit and the person is reckless as to that fact. (2) The offense is punishable on conviction by a fine not more than 500 penalty units.

105AA. Person fishing for conserved fish stock on high seas without a concession—strict liability (1) A person commits an offense if: (a) the person uses a boat for fishing; and (b) the fishing is for a conserved fish stock; and (c) the boat is an Australian-flagged boat; and (d) the boat is on the high seas in a part of the conservation area for the fish stock; and (e) the fishing is not authorised by a fishing concession. (2) The offense is punishable on conviction by a fine of not more than 60 penalty units. (3) An offense under this section is an offense of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code.

105AB. Person fishing for conserved fish stock on high seas without a concession (1) A person commits an offense if: (a) the person uses a boat for fishing; and (b) the fishing is for a conserved fish stock; and (c) the boat is an Australian-flagged boat; and (d) the boat is on the high seas in a part of the conservation area for the fish stock; and (e) the fishing is not authorized by a fishing concession. (2) The offense is punishable on conviction by a fine of not more than 500 penalty units.

105B. Australian-flagged boat on high seas equipped for fishing (1) A person commits an offense if: (a) a person intentionally has in his or her possession or charge an Australian-flagged boat; and (b) the boat is equipped with nets, traps or other equipment for fishing and the person is reckless as to that fact; and (c) the boat is at a place on the high seas and the person is reckless as to that fact. (2) The offense is punishable on conviction by a fine not more than 500 penalty units. (3) Subsection (1) does not apply if: (a) the person holds a fishing concession or scientific permit authorizing the boat to be at that location equipped with nets, traps or other equipment for fishing; or (b) the person is acting on behalf of the holder of such a concession or permit; or (c) the boat is engaged solely in the ordinary course of trade of carrying cargo between: (i) Australia and a foreign country; or (ii) Australia and an external Territory; or (iii) an external Territory and a foreign country; or (iv) 2 external Territories; or (d) the person has a reasonable excuse. Note: Even if subsection (1) does not apply because the person holds, or acts for the holder of, a fishing concession or scientific permit, the person will commit an offense under section 95 if the person contravenes a condition of the concession or permit. (4) The only burden of proof that a defendant bears in respect of subsection (3) is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter in question existed.

105C. Australian-flagged boat fishing in foreign waters (1) A person commits an offense if: (a) the person intentionally uses an Australian-flagged boat for fishing; and (b) the boat is in the exclusive economic zone, territorial sea, archipelagic waters (as defined in the United Nations Convention on the Law of the Sea) or internal waters of a foreign country and the person is reckless as to that fact; and (c) the law of the country requires the person to have an authorization (however described) given under the law of the country for the fishing and the person is reckless as to that fact. (2) The offense is punishable on conviction by a fine not more than 500 penalty units. (3) Subsection (1) does not apply if the person has an authorization (however described) issued under the law of the country for the fishing. (4) The only burden of proof that a defendant bears in respect of subsection (3) is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter in question existed. (5) If the person has been convicted or acquitted in the foreign country of an offense involving the fishing, the person cannot be convicted of an offense under this section involving the fishing.

105D. Authorizing foreign officials’ action affecting Australian-flagged boats Boarding boats suspected of illegal fishing in foreign waters (1) On behalf of Australia, AFMA may authorize officials of a foreign country that is party to the Fish Stocks Agreement or that participates in an international fisheries management organization to board and inspect an Australian-flagged boat on the high seas if: (a) AFMA or Australia has received a request from the appropriate authority of the foreign country for that country’s officials to board and inspect the boat; and (b) AFMA has reasonable grounds to believe that the boat has been used for fishing in the exclusive economic zone, territorial sea, archipelagic waters (as defined in the United Nations Convention on the Law of the Sea) or internal waters of the foreign country without an authorization (however described) given under the law of that country; and (c) AFMA is satisfied that the boarding and inspection will be carried out in accordance with the Fish Stocks Agreement or measures established by the international fisheries management organisation.

Investigating breach of international fisheries management measures (2) On behalf of Australia, AFMA may authorize an authority of a foreign country that is party to the Fish Stocks Agreement or that participates in an international fisheries management organization to investigate an alleged contravention of an international fisheries management measure involving an Australian-flagged boat if: (a) an official of the foreign country has boarded the boat on the high seas in an area covered by the international fisheries management organization; and (b) the appropriate authority of the foreign country has notified AFMA or Australia that the official has reasonable grounds for believing that the boat has been used in contravention of the international fisheries management measure; and (c) AFMA is satisfied that the investigation will be carried out in accordance with the Fish Stocks Agreement or measures established by the international fisheries management organization.

Revocation of authorization by AFMA (3) AFMA may revoke an authorization AFMA has given under this section.

Form of authorization or revocation by AFMA (4) An authorization, or revocation of an authorization, by AFMA must be in writing or by electronic transmission. However, an authorization or revocation cannot be made by electronic transmission of an oral message.

Enforcement action for breach of international fisheries management measures (5) On behalf of Australia, the Attorney-General may authorize in writing an authority of a foreign country to take specified action to enforce a law of the foreign country against a contravention of an international fisheries management measure on the high seas involving an Australian-flagged boat if: (a) AFMA has authorized an authority of the foreign country under subsection (2) to investigate the alleged contravention; and (b) the appropriate authority of the foreign country has communicated the results of the investigation to Australia; and (c) the Attorney-General is satisfied that the action will be taken in accordance with the Fish Stocks Agreement or measures established by the international fisheries management organization.

Revocation of authorisation by Attorney-General (6) The Attorney-General may revoke in writing an authorization he or she has given under this section.

Subdivision B—Using foreign boat to contravene international fisheries management measure

105E. Contravention on high seas—strict liability (1) A person commits an offense if: (a) the person uses a boat for fishing; and (b) the person contravenes an international fisheries management measure in relation to the fishing; and (c) the boat is on the high seas; and (d) the boat is a foreign boat. Penalty: 60 penalty units. (2) Strict liability applies to subsection (1). Note: For strict liability, see section 6.1 of the Criminal Code. (3) Subsection (1) does not apply if the act that contravenes the international fisheries management measure is fishing that is authorized by an authorization (however described) issued under the law of the country of nationality of the boat. Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

105EA. Contravention on high seas (1) A person commits an offense if: (a) the person uses a boat for fishing; and (b) the person contravenes an international fisheries management measure in relation to the fishing; and (c) the boat is on the high seas; and (d) the boat is a foreign boat. Penalty: 500 penalty units. (2) Strict liability applies to paragraphs (1)(c) and (d). Note: For strict liability, see section 6.1 of the Criminal Code. (3) Subsection (1) does not apply if the act that contravenes the international fisheries management measure is fishing that is authorized by an authorization (however described) issued under the law of the country of nationality of the boat. Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

105F. Australian national on foreign boat in foreign waters—strict liability (1) A person commits an offense if: (a) the person uses a boat for fishing; and (b) the person is an Australian national; and (c) the person contravenes an international fisheries management measure in relation to the fishing; and (d) the boat is in the exclusive economic zone, territorial sea, archipelagic waters (as defined in the United Nations Convention on the Law of the Sea) or internal waters of a foreign country; and (e) the boat is a foreign boat. Penalty: 60 penalty units. (2) Strict liability applies to subsection (1). Note: For strict liability, see section 6.1 of the Criminal Code. (3) Subsection (1) does not apply if the act that contravenes the international fisheries management measure is fishing that is authorized by an authorization (however described) issued under the law of the country covered by paragraph (1)(d). Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

105FA. Australian national on foreign boat in foreign waters (1) A person commits an offense if: (a) the person uses a boat for fishing; and (b) the person is an Australian national; and (c) the person contravenes an international fisheries management measure in relation to the fishing; and (d) the boat is in the exclusive economic zone, territorial sea, archipelagic waters (as defined in the United Nations Convention on the Law of the Sea) or internal waters of a foreign country; and (e) the boat is a foreign boat. Penalty: 500 penalty units. (2) Strict liability applies to paragraphs (1)(d) and (e). Note: For strict liability, see section 6.1 of the Criminal Code. (3) Subsection (1) does not apply if the act that contravenes the international fisheries management measure is fishing that is authorized by an authorization (however described) issued under the law of the country covered by paragraph (1)(d). Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

Subdivision C—Unauthorized foreign boat on high seas 105H. Unauthorized fishing—strict liability (1) A person commits an offense if: (a) the person uses a boat for fishing; and (b) the boat is a foreign boat; and (c) the boat is on the high seas; and (d) a law of the country of nationality of the boat requires the fishing to be authorized (however described); and (e) the fishing is not so authorized. Penalty: 60 penalty units. (2) Strict liability applies to subsection (1). Note: For strict liability, see section 6.1 of the Criminal Code.

105I. Unauthorized fishing (1) A person commits an offense if: (a) the person uses a boat for fishing; and (b) the boat is a foreign boat; and (c) the boat is on the high seas; and (d) a law of the country of nationality of the boat requires the fishing to be authorized (however described); and (e) the fishing is not so authorized. Penalty: 500 penalty units.

If a fish of a species mentioned in an item of the following table is taken and retained during a trip, the concession holder must ensure that none of the parts of the fish mentioned in the item are removed from the carcass before the fish is landed and disposed of in accordance with any requirements under the Act.

Species:

1. Any any species of shark other than the following: (a) angel shark (family Squantinidae); (b) ray; (c) skate; (d) spurdog (of denus Squalus) Parts of fish that must not be removed: The following: (a) the caudal lobe; (b) a dorsal, pectoral or caudal fin

2. Any species of: (a) angel shark (family Squantinidae); or (b) dogfish (family Squalidae) Parts of fish that must not be removed: A doral or caudal fin

3. Any species of banjo shark (of genus Trygonorrhina) Parts of fish that must not be removed: The following: (a) the skin; (b) a fillet; (c) a pectoral fin; (d) the tail

For the purposes of section 42B of the Act, this Division sets out conditions that apply to fishing concessions.

70. No interaction with protected organism The concession holder must ensure that, as far as practicable, there is no interaction with a protected organism during a trip.

71. Reporting interaction with protected organism If there is an interaction with a protected organism during a trip and an observer is on board the nominated boat, the concession holder must ensure that the interaction is reported to the observer as soon as practicable. Note: The concession holder may have an additional obligation to record the interaction in a logbook kept in accordance with a determination made under section 42 of the Act.

72. Requirements if protected organism is injured by interaction (1) If during a trip: (a) there is an interaction with a protected organism; and (b) the interaction injures the organism; the concession holder must ensure that the organism is given as much assistance as is practicable. (2) If an observer is on board the nominated boat, the concession holder must ensure that the injury is reported to the observer as soon as practicable. Note: The concession holder may have an additional obligation to record the injury in a logbook kept in accordance with a determination made under section 42 of the Act.

73. Requirements if protected organism killed by interaction (1) If during a trip: (a) there is an interaction with a protected organism; and (b) the interaction results in the death of the organism; and (c) an observer is on board the nominated boat; the concession holder must ensure that the death is reported to the observer as soon as practicable. Note: The concession holder may have an additional obligation to record the death in a logbook kept in accordance with a determination made under section 42 of the Act. (2) If during a trip: (a) there is an interaction with a protected organism; and (b) the interaction results in the death of the organism; and (c) it is necessary to discharge the organism’s carcass; the concession holder must ensure that the carcass is discharged from the boat in a way that does not attract birds or mammals to the boat.