House: House of Representatives Portfolio: Arts, Sport, the Environment and Territories

Purpose To create a scheme of wildlife inspectors who will have power to arrest without warrant, confiscate goods and search vehicles and premises and to clarify the current power of wardens to do these things.

Background The Australian National Parks and Wildlife Service (NPWS) has responsibility for managing parks and reserves established under the National Parks and Wildlife Conservation Act 1975 (the Principal Act). Under this Act, the Commonwealth may establish parks in the Uluru and Alligator Rivers regions of the Northern Territory, other Territories and costal areas without the agreement of the State or Territory in which the area is situated. Presently, the NPWS manages parks at Uluru, Kakadu, Norfolk Island, Christmas Island and is responsible for the management of marine environments under Commonwealth control, other than the Great Barrier Reef. The later area is managed by the Great Barrier Reef Marine Park Authority.

The maritime areas under the control of the NPWS cover an area greater than mainland Australia. However, the NPWS does not have control over fisheries in this area, which is vested in the Australian Fisheries Management Authority under the Fisheries Management Act 1991. The definition of `fish' under that Act excludes marine mammals and reptiles. As well, the protection of whales and dolphins is undertaken by inspectors, appointed under the Whale Protection Act 1980, who have powers of arrest and seizure under that Act. As a result, the NPWSs main functions in coastal waters relate to mammals, reptiles and birds. Specifically, the Regulations made under the Principal Act currently provide protection for sea snakes, seals and birds. In the second reading speech, the Minister states that turtles, crocodiles and dugongs will be added to this list.

Enforcement of the Principal Act is currently undertaken by wardens and rangers. Wardens currently have power to arrest without warrant and to confiscate goods that are reasonably believed to have been used in the commission of an offence against the Principal Act. Employees of Commonwealth, State and Territory governments may also be appointed as rangers or wardens and members of the Australian Federal Police and Territory police forces are made ex officio wardens by section 38 of the Principal Act. As a result, the protection afforded under the Principal Act is enforced in co- operation with members of relevant bodies in protected areas. In coastal waters, enforcement is often performed by fisheries inspectors.

A reason given for the introduction of this Bill in the second reading speech is to ensure that the provisions of the Principal Act are adequate to ensure the protection of marine mammals and reptiles. 1

Main Provisions A new section 38A will be inserted into the Principal Act by clause 6 to allow the appointment of officers and employees of the NPWS and members of relevant Commonwealth, State and Territory bodies as wildlife inspectors.

Clause 8 will repeal sections 40 to 44 of the Principal Act which deal with the powers of rangers and wardens, while clause 9 will insert a new Division 2 into Part IV of the Principal Act which will deal with the powers of wildlife inspectors, wardens and rangers.

Proposed section 44F provides that in relation to offences specified in their instrument of appointment, wildlife inspectors will have the same powers as wardens.

The powers conferred by proposed Division 2 may be exercised anywhere in relation to Australian nationals, aircraft, vessels or their crews. In other cases, they may be exercised in Australia, the Australian coastal sea, waters above the continental shelf in regard to offences committed there or in a park, reserve or conservation zone, or in the Australian fishing zone in relation to offences committed in that area (proposed section 40).

A warden may arrest a person without a warrant if they have reasonable grounds to believe that they have committed an offence against the Principal Act and that proceeding by summons would not be effective. Except for police officers in uniform, wardens must produce identification when making such an arrest (proposed section 41).

Seizure and forfeiture are dealt with in proposed section 42. Wardens may seize any vehicle, aircraft, vessel or article that they reasonably believe was used in the commission of an offence against the Principal Act. Seized goods may be retained for 60 days or,where proceedings have been initiated, until the proceedings are finalised. The Director of the NPWS may authorise the release of seized goods. If the person is convicted of an offence against the Principal Act, the court may order that the vehicle, etc. be forfeited to the Commonwealth. In making such an order the court is to have regard to the hardship that would be caused, the ordinary use of the vehicle etc. and the seriousness of the offence. In addition, the proposed section authorises the seizure of any plant or animal reasonably believed to have been involved in, or obtained from, the commission of an offence.

Vehicles, aircraft and vessels may be searched in two circumstances: * when a warden has reasonable grounds to believe that it contains evidence of an offence or anything in respect of which an offence has been committed; or

* where the vehicle etc. is in a park, reserve or conservation area and a search is reasonably necessary to determine if it contains evidence of an offence or anything in respect of which an offence has been committed. When conducting a search a warden may break open any container in which the warden believes, on reasonable grounds, there is evidence of an offence or anything in respect of which an offence has been committed (proposed section 43).

Where a warden is attempting to arrest someone or search a vehicle etc., proposed section 44E will give them power to pursue the person or vehicle etc. anywhere other than the territorial sea of another country.

Proposed section 44 will allow a warden to search land or premises if they have reasonable grounds to believe that there is on the land or premises evidence of an offence or anything in respect of which an offence has been committed. However, before the warden may enter the land, search or break open and search cupboards etc. they must have the consent of the occupier or a warrant.

The issue of warrants to search land or premises is dealt with in proposed section 44A, which provides that a warrant is not to be issued unless a magistrate is satisfied that there are reasonable grounds to do so on the information presented. Proposed section 44B allows for warrants to be granted by telephone or other electronic means.

A warden will be able to require a person to give their name and address where: * the vehicle etc. in which they were in was detained or searched;

* they were found on land or in premises that were entered or searched; or

* they were in a park, reserve or conservation zone and the warden had reasonable grounds to believe they had committed an offence.

As well, a warden may require a person to leave a park etc. where they have reasonable grounds for suspecting that they have committed an offence, or to produce a licence if suspected of doing something that requires a licence (clause 44D).

It will be an offence, with a maximum penalty of six months imprisonment, to obstruct a warden (proposed section 44H).

References1. House of representatives, hansard, 25 June 1992, p. 3991.

Bills Digest Service 13 August 1992 Parliamentary Research Service

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Commonwealth of Australia 1992

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Published by the Department of the Parliamentary Library, 1992.