Wildlife (Amendment) Act 2002

i Wildlife (Amendment) Act 2002 Act No. 3/2002 TABLE OF PROVISIONS Section Page 1. Purpose 1 2. Commencement 1 3. Definitions 2 4. Correction of reference 2 5. Repeal of section 74E 2 6. Insertion of new heading in Part X 2 7. Amendment of definition of "interfere" 2 8. Alteration of certain references in section 76 2 9. Grant of permits 3 10. Alteration of reference in section 79 3 11. Alteration of reference in section 80 3 12. Alteration of reference in section 81 3 13. Alteration of references in section 81A 3 14. Alteration and correction of references in section 81B 4 15. Alteration of reference in section 81C 4 16. Alteration and repeal of references in section 81D 4 17. Alteration and repeal of references in section 82 4 18. Insertion of new Division in Part X 5 Division 2—Further Offences and Tour Operator Permits 5 83. Offence to approach a whale at a certain distance 5 83A. Power of Secretary to grant whale sightseeing permit 5 83B. Offence to conduct whale swim tour 6 83C. Power of Secretary to grant whale swim tour permit 6 83D. Prohibition on Secretary granting more permits than specified in the Order 7 83E. Applications for whale sightseeing permits 7 83F. Power to make Orders for the granting of whale swim tour permits in whale swim tour areas 7 83G. Requirement to pay fee on grant of permit 9 83H. Conditions of whale sightseeing permits and whale swim tour permits 9 83I. Breach of condition an offence 9 83J. Power of authorised officer to give directions 9 83K. Variation of permits under this Division 10 83L. Suspension of permits under this Division 10 -- 1 of 17 -- Section Page ii 83M. Making submissions on suspension 11 83N. Power of Secretary to cancel permit 11 Division 3—Regulations and miscellaneous matters 12 19. Insertion of new section 13 90. Transitional provision, dolphin swim tour permits— Wildlife (Amendment) Act 2002 13 91. Transitional provision, dolphin sightseeing permits— Wildlife (Amendment) Act 2002 14 ═══════════════ ENDNOTES 15 -- 2 of 17 -- 1 Wildlife (Amendment) Act 2002 † [Assented to 26 March 2002] The Parliament of Victoria enacts as follows: 1. Purpose The purpose of this Act is to amend the Wildlife Act 1975 to make further provision for the conduct of whale tours and to make other minor amendments to that Act. 2. Commencement (1) Subject to sub-section (2), this Act comes into operation on a day or days to be proclaimed. (2) If a provision of this Act does not come into operation before 1 February 2003, it comes into operation on that day. Victoria No. 3 of 2002 -- 3 of 17 -- Act No. 3/2002 Wildlife (Amendment) Act 2002 2 3. Definitions In section 3(1) of the Wildlife Act 1975 insert the following definitions— ' "whale sightseeing permit" means a permit issued by the Secretary under section 83A; "whale swim tour permit" means a permit issued by the Secretary under section 83C;". 4. Correction of reference In section 20(1) of the Wildlife Act 1975, for "Part I" substitute "Part IIIA". 5. Repeal of section 74E Section 74E of the Wildlife Act 1975 is repealed. 6. Insertion of new heading in Part X In Part X of the Wildlife Act 1975, after the heading to the Part insert— "Division 1—General". 7. Amendment of definition of "interfere" In the definition of "interfere" in section 75(1) of the Wildlife Act 1975, omit "or approach a whale at a distance that is less than the prescribed minimum distance". 8. Alteration of certain references in section 76 (1) In the penalty at the foot of section 76(2A) of the Wildlife Act 1975, for "$100 000" substitute "1000 penalty units". (2) In section 76(3) of the Wildlife Act 1975, after "permit" insert "granted under section 78(1)". (3) In section 76(4)(a) of the Wildlife Act 1975, after "permit" insert "granted under section 78(1)". s. 3 -- 4 of 17 -- Act No. 3/2002 Wildlife (Amendment) Act 2002 3 9. Grant of permits (1) In section 78(1) of the Wildlife Act 1975, paragraph (g) is repealed. (2) In section 78 of the Wildlife Act 1975, sub- sections (3A) and (3C) are repealed. (3) In section 78(3B) of the Wildlife Act 1975— (a) for "Subject to sub-section (3A), the Secretary" substitute "The Secretary"; (b) for "permit under this Part" substitute "permit granted under sub-section (1)". 10. Alteration of reference in section 79 In section 79(1) of the Wildlife Act 1975, for "permit under this Part" substitute "permit granted under section 78(1)". 11. Alteration of reference in section 80 In section 80 of the Wildlife Act 1975, for "permit under this Part" substitute "permit granted under section 78(1)". 12. Alteration of reference in section 81 In section 81(1) of the Wildlife Act 1975, for "permit under this Part" substitute "permit granted under section 78(1)". 13. Alteration of references in section 81A In section 81A of the Wildlife Act 1975— (a) in sub-section (1) omit "or (g)"; (b) in sub-section (2) omit "or (g)". s. 9 -- 5 of 17 -- Act No. 3/2002 Wildlife (Amendment) Act 2002 4 14. Alteration and correction of references in section 81B (1) In section 81B(1) of the Wildlife Act 1975, for "permit" substitute "permit granted under section 78(1)". (2) In section 81B(2)(b) of the Wildlife Act 1975, for "80D" substitute "81C". 15. Alteration of reference in section 81C In section 81C(1) of the Wildlife Act 1975, for "permit" substitute "permit granted under section 78(1)". 16. Alteration and repeal of references in section 81D In section 81D of the Wildlife Act 1975— (a) in sub-section (1), for "permit under this Part" substitute "permit granted under section 78(1)"; (b) in sub-section (2) omit "or (g)"; (c) in sub-section (4) omit "or (g)"; (d) in sub-section (5) omit "or (g)". 17. Alteration and repeal of references in section 82 In section 82(1) of the Wildlife Act 1975— (a) in paragraph (b)— (i) for "permit granted under this Part" substitute "permit granted under section 78(1)"; (ii) omit "or (g)"; (b) in paragraph (c)— (i) for "permit granted under this Part" substitute "permit granted under section 78(1)"; (ii) omit "or (g)". s. 14 -- 6 of 17 -- Act No. 3/2002 Wildlife (Amendment) Act 2002 5 18. Insertion of new Division in Part X After section 82 of the Wildlife Act 1975 insert— "Division 2—Further Offences and Tour Operator Permits 83. Offence to approach a whale at a certain distance (1) A person must not approach a whale at a distance that is less than the prescribed minimum distance. Penalty: 20 penalty units. (2) Sub-section (1) does not apply to a person who is acting in accordance with— (a) a permit granted under section 83A; or (b) a permit granted under section 78(1) or 83C; or (c) a written authorisation given under section 28A. 83A. Power of Secretary to grant whale sightseeing permit (1) The Secretary may grant a permit to a natural person authorising the person to cause the vessel named in the permit to be operated so as to approach a whale at a distance that is less than the prescribed minimum distance. (2) A permit granted under sub-section (1)— (a) has effect for the period specified in the permit, which must not exceed 2 years; and (b) may specify the times and places at which the vessel may be operated under the permit. s. 18 -- 7 of 17 -- Act No. 3/2002 Wildlife (Amendment) Act 2002 6 (3) The Secretary may renew a whale sightseeing permit, on application from the holder of the permit, unless the Secretary is satisfied that— (a) the holder has been found guilty of an offence against this Act or the regulations; or (b) the holder has failed to comply with this Act or the regulations or the conditions of the permit. 83B. Offence to conduct whale swim tour A person must not, for profit, conduct an activity which involves persons being in the water to observe or swim with a whale, unless that person does so in accordance with a permit granted under section 83C. Penalty: 100 penalty units or 6 months imprisonment or both the fine and imprisonment. 83C. Power of Secretary to grant whale swim tour permit (1) The Secretary may grant a permit to a natural person authorising that person to conduct an activity for profit that involves persons being in the water to observe or swim with a whale from the vessel named in the permit. (2) The Secretary must not grant a permit under sub-section (1) unless the Secretary is satisfied that the applicant satisfies the criteria specified in the Order made under section 83F relating to the area in respect of which the permit is to be granted. s. 18 -- 8 of 17 -- Act No. 3/2002 Wildlife (Amendment) Act 2002 7 (3) A permit granted under sub-section (1)— (a) has effect for the period specified in the permit, which must not exceed 2 years; and (b) may specify the times and places at which an activity may be conducted under the permit. 83D. Prohibition on Secretary granting more permits than specified in the Order The Secretary must not grant more whale swim tour permits than the maximum number that may be granted under the Order made under section 83F for the area to which the Order relates. 83E. Applications for whale sightseeing permits A person seeking a whale sightseeing permit must apply to the Secretary for the permit and must lodge the fee prescribed for such a permit with the application. 83F. Power to make Orders for the granting of whale swim tour permits in whale swim tour areas (1) The Secretary may, by Order published in the Government Gazette proclaim an area to be a whale swim tour area. (2) An Order under sub-section (1) may— (a) invite applications for whale swim tour permits in the area; and (b) specify whether the fee to be paid for a whale swim tour permit in the area is to be determined by tender or is to be a fee prescribed by the regulations; and s. 18 -- 9 of 17 -- Act No. 3/2002 Wildlife (Amendment) Act 2002 8 (c) specify the maximum number of permits that may be granted in the area and the maximum number of activities that may be conducted each day under each permit and any other matters related to the conduct of activities under permits in the area; and (d) specify the procedures to be followed and the information that must be given in making an application for a permit; and (e) specify the date by which applications for such permits must be lodged with the Secretary; and (f) specify the criteria which will be used to assess applications; and (g) specify whether or not the holders of existing whale swim tour permits in the area may apply for permits specified in the Order. (3) The Secretary, in making a specification under sub-section (2)(c) as to the number of permits that may be granted in an area, must not fix a number of permits that is greater than the number the Secretary has determined to be ecologically sustainable for that area. (4) In making any specification under sub- section (2)(c), the Secretary must have regard to the best available information as to the effect that the conduct of activities has or is likely to have on individual whales or groups of whales in the area. s. 18 -- 10 of 17 -- Act No. 3/2002 Wildlife (Amendment) Act 2002 9 83G. Requirement to pay fee on grant of permit A person who is granted a whale swim tour permit must, on the grant of the permit, pay the fee determined by tender or prescribed by regulations (as the case requires) for the permit. 83H. Conditions of whale sightseeing permits and whale swim tour permits A permit granted under this Division is subject to— (a) any conditions, determined by the Secretary, that are specified or referred to in the permit; and (b) any conditions that are prescribed by regulations made under section 85A for permits of the category to which the permit belongs. 83I. Breach of condition an offence The holder of a permit granted under this Division must comply with the conditions of the permit. Penalty: 100 penalty units or 6 months imprisonment or both the fine and imprisonment. 83J. Power of authorised officer to give directions (1) An authorised officer may direct a person to cease immediately any activity being carried out under a permit granted under this Division, if the authorised officer reasonably believes that the activity is detrimental to the welfare of any whale. s. 18 -- 11 of 17 -- Act No. 3/2002 Wildlife (Amendment) Act 2002 10 (2) A person must comply with a direction given under sub-section (1). Penalty: 50 penalty units. 83K. Variation of permits under this Division (1) Upon application made in writing and upon payment of any prescribed fee, the Secretary may vary any permit granted under this Division in any respect, and a variation under this sub-section has effect on the Secretary making the variation. (2) If the Secretary is of the opinion that a permit under this Division should be varied, the Secretary may, of his or her own motion, vary the permit, and a variation under this sub-section has effect on the Secretary giving notice of the variation to the holder of the permit. (3) The Secretary must not vary a permit under this section unless the Secretary is satisfied that the holder of the permit continues to satisfy the criteria specified in the Order made under section 83F relating to the area in respect of which the permit is granted. 83L. Suspension of permits under this Division (1) If the Secretary is satisfied that there are reasonable grounds to do so, the Secretary may suspend a permit granted under this Division by notice in writing given to the holder of the permit. (2) A suspension under this section has effect— (a) from the time specified in the notice under sub-section (1), which must be after the day on which the notice is given; and s. 18 -- 12 of 17 -- Act No. 3/2002 Wildlife (Amendment) Act 2002 11 (b) subject to section 83M, for the period (not exceeding 90 days) specified in the notice. 83M. Making submissions on suspension (1) Immediately upon suspending a permit granted under this Division, the Secretary must allow the holder of the permit an opportunity to make written submissions. (2) Submissions must be made within the period specified in the notice of suspension. (3) On receiving any submissions under sub- section (2), the Secretary must review the decision to suspend the permit. (4) In carrying out a review under sub- section (3), the Secretary— (a) must have regard to the submissions; and (b) may decide to continue, revoke or amend the suspension. (5) The Secretary must notify the holder of the permit of the outcome of the review. 83N. Power of Secretary to cancel permit (1) The Secretary may cancel a permit granted under this Division if the Secretary is satisfied, on reasonable grounds, that— (a) the holder of the permit has been found guilty of an offence against this Act; or (b) the holder of the permit has breached a condition of the permit; or (c) the act or acts authorised by the permit adversely affects a population of a particular taxon of whale; or s. 18 -- 13 of 17 -- Act No. 3/2002 Wildlife (Amendment) Act 2002 12 (d) the holder of the permit has been convicted of an offence against a law of the Commonwealth or of a State or a Territory of the Commonwealth relating to fauna, to the preservation, conservation and protection of whales or to the living natural resources of the continental shelf of Australia. (2) Before cancelling a permit, the Secretary must— (a) notify the holder that he or she proposes to cancel the permit; and (b) allow the holder of the permit an opportunity to make either oral or written submissions. (3) Submissions under sub-section (2) must be made within the period specified in the notice. (4) In making a decision as to whether or not to cancel a permit, the Secretary must— (a) have regard to any submissions made under sub-section (2) within the period specified in the notice; and (b) must notify the holder of his or her decision. (5) The cancellation of a permit has effect from the time specified in the notice of the Secretary's decision under sub-section (4), which must be after the day on which the notice is given. Division 3—Regulations and miscellaneous matters". s. 18 -- 14 of 17 -- Act No. 3/2002 Wildlife (Amendment) Act 2002 13 19. Insertion of new section After section 89 of the Wildlife Act 1975 insert— '90. Transitional provision, dolphin swim tour permits—Wildlife (Amendment) Act 2002 (1) On and from the commencement of section 9 of the Wildlife (Amendment) Act 2002, a dolphin swim tour permit in force immediately before that commencement is— (a) deemed to be a whale swim tour permit, and, except as otherwise provided for in this section, Part X applies accordingly; and (b) deemed to continue in force, unless sooner suspended or cancelled in accordance with Part X, until the date on which the permit would have expired if section 9 of the Wildlife (Amendment) Act 2002 had not been enacted. (2) In this section "dolphin swim tour permit" means a permit— (a) that is issued under section 78(1)(g) as in force immediately before the commencement of section 9 of the Wildlife (Amendment) Act 2002; and (b) that authorised the conduct of activities involving persons being in the water for the purpose of observing or swimming with dolphins. s. 19 -- 15 of 17 -- Act No. 3/2002 Wildlife (Amendment) Act 2002 14 91. Transitional provision, dolphin sightseeing permits—Wildlife (Amendment) Act 2002 (1) On and from the commencement of section 9 of the Wildlife (Amendment) Act 2002, a dolphin sightseeing permit in force immediately before that commencement is— (a) deemed to be a whale sightseeing permit, and, except as otherwise provided for in this section, Part X applies accordingly; and (b) deemed to continue in force, unless sooner suspended or cancelled in accordance with Part X, until the date on which the permit would have expired if section 9 of the Wildlife (Amendment) Act 2002 had not been enacted. (2) In this section "dolphin sightseeing permit" means a permit issued under section 78(1)(g) as in force immediately before the commencement of section 9 of the Wildlife (Amendment) Act 2002 that— (a) authorised the conduct of activities involving persons being on vessels for the purpose of observing dolphins; and (b) did not authorise the conduct of activities involving persons being in the water for the purpose of observing or swimming with dolphins.'. ═══════════════ s. 19 -- 16 of 17 -- Act No. 3/2002 Wildlife (Amendment) Act 2002 15 ENDNOTES † Minister's second reading speech— Legislative Assembly: 8 November 2001 Legislative Council: 19 March 2002 The long title for the Bill for this Act was "to amend the Wildlife Act 1975 to make further provision for the conduct of whale tours and for other purposes." Endnotes -- 17 of 17 --