WHALING.

No. 10 of 1960.

An Act relating to Whaling.

[Assented to 13th May, 1960.]

BE it enacted by the Queen’s Most Excellent Majesty, the Senate, and the House of Representatives of the Commonwealth of Australia, as follows:—

Part I.—Preliminary.

Short title.

1. This Act may be cited as the Whaling Act 1960.

Commencement.

2. This Act shall come into operation on a date to be fixed by Proclamation.

Parts.

3. This Act is divided into Parts, as follows:—

Part I.—Preliminary (Sections 1-9).

Part II.—Regulation of Whaling (Sections 10-14).

Part III.—Offences (Sections 15-23).

Part IV.—Research and Development (Sections 24-26).

Part V—Miscellaneous (Sections 27-28).

Repeal.

4. The Whaling Act 1935 and the Whaling Act 1948 are repealed.

Interpretation.

5.—(1.) In this Act, unless the contrary intention appears—

“Australia” includes the Territories;

“Australian waters” means—

(a) Australian waters beyond territorial limits;

(b) the waters adjacent to a Territory and within territorial limits; and

(c) the waters adjacent to a Territory, being a Territory that is not part of the Commonwealth, and beyond territorial limits;

“baleen whale” means a whale other than a toothed whale;

“blue whale” means a whale of the genus and species Balaenoptera musculus or Sibbaldus musculus, that is to say, a whale of the kind known by the name of blue whale, Sibbald’s rorqual or sulphur bottom;

“factory” means a factory situated in Australia;

“factory ship” means a ship in or on which whales are treated, whether wholly or in part, but does not include a ship used solely for freezing or salting the meat and entrails of whales intended for human consumption or use as animal food;

“fin whale” means a whale of the genus and species Balaenoptera physalus, that is to say, a whale of the kind known by the name of common finback, common rorqual, finback, finner, fin whale, herring whale, razorback or true fin whale;

“gray whale” means a whale of the genus and species Rhachianectes glaucus, that is to say, a whale of the kind known by the name of California gray, devil fish, gray back, gray whale, hard head, mussel digger or rip sack;

“humpback whale” means a whale of the genus and species Megaptera nodosa or Megaptera novaeangliae, that is to say, a whale of the kind known by the name of bunch, hump whale, humpback, humpback whale, humpbacked whale or hunchbacked whale;

“land station” means a factory at which whales are treated;

“licence” means a licence granted under this Act;

“master”, in relation to a ship, includes any person in charge of the ship;

“minke whale” means a whale of the genus and species Balaenoptera acutorostrata, Balaenoptera davidsoni or Balaenoptera huttoni, that is to say, a whale of the kind known by the name of lesser rorqual, little piked whale, minke whale, pike-headed whale or sharp headed finner;

“officer” means—

(a) a person permanently or temporarily employed in the Public Service of the Commonwealth or of a Territory or by an authority of the Commonwealth and authorized by the Secretary to perform the duties of an officer under this Act;

(b) a person permanently or temporarily employed in the Public Service of a State and authorized by the Secretary to perform the duties of an officer under this Act in pursuance of an arrangement between the Commonwealth and the State;

(d) a member of the Defence Force;

“pilot”, in relation to an aircraft, means the person in charge or command of the aircraft;

“port” includes any place in or at which ships can obtain shelter or ship and unship goods;

“right whale” means a whale of the genus and species Balaena mysticetus, Eubalaena glacialis, Eubalaena australis or Neobalaena marginata, that is to say, a whale of the kind known by the name of Arctic right whale, Atlantic right whale, Biscayan right whale, bowhead, great polar whale, Greenland right whale, Greenland whale, Nordkaper, North Atlantic right whale, North Cape whale, Pacific right whale, pigmy right whale, Southern pigmy right whale or Southern right whale;

“sei whale” means a whale of the genus and species Balaenoptera borealis, that is to say, a whale of the kind known by the name of coalfish whale, pollack whale, Rudolphi’s rorqual or sei whale, and includes a whale of the genus and species Balaenoptera brydei, that is to say, a whale of the kind known by the name of Bryde’s whale;

“ship” includes every kind of vessel;

“sperm whale” means a whale of the genus and species Physeter catodon, that is to say, a whale of the kind known by the name of cachalot, pot whale, sperm whale or spermacet whale;

“take”, in relation to whales, means take, catch or capture, and “taking”, in relation to whales, has a corresponding meaning;

“Territory” means Territory of the Commonwealth;

“the Convention of 1946” means the International Convention for the Regulation of Whaling signed at Washington on the second day of December, One thousand nine hundred and forty-six;

“the International Whaling Conventions” means the Convention of 1946 and the Protocol to that Convention dated the nineteenth day of November, One thousand nine hundred and fifty-six, and includes any amendment of the Schedule to the Convention of 1946 made, whether before or after the commencement of this Act, in pursuance of Article V. of that Convention (including that Article as amended by the Protocol), being an amendment that has become effective with respect to the Government of the Commonwealth;

“the owner”, in relation to a ship or aircraft, includes—

(a) every person who is a co-owner of the ship or aircraft or of any part of or share in the ship or aircraft; and

(b) where a company or body corporate owns the ship or aircraft, or is a co-owner of the ship or aircraft or of a part of or share in the ship or aircraft—a person who is the manager or secretary of that company or body corporate;

“the Secretary” means the Secretary to the Department of Primary Industry;

“toothed whale” means a whale that has teeth in the jaws;

“treating”, in relation to whales, includes any operation of cutting up, or of extracting oil, whalebone or other products from, the carcases of whales, and “treat” and “treated”, in relation to whales, have corresponding meanings;

“waters to which this Act applies” means—

(a) Australian waters; and

(b) subject to section eight of this Act, all other waters;

“whale” means—

(a) a blue whale, fin whale, gray whale, humpback whale, right whale, sei whale or other baleen whale;

(b) a sperm whale; or

“whale catcher” means a ship (other than a factory ship) used for the purpose of hunting, taking, killing, towing, holding on to or scouting for whales or an aircraft used for such a purpose.

(2.) For the purposes of this Act, a ship or aircraft shall be deemed to be under the jurisdiction of the Commonwealth if—

(a) it is registered in Australia;

(b) its operations are based on a port or place in Australia; or

(c) it is within the territorial limits of the Commonwealth or of a Territory and is not a public ship or aircraft of a country other than Australia that is neither employed for the purposes of whaling nor otherwise employed in commercial operations.

Act to bind Crown.

6. This Act binds the Crown in right of the Commonwealth or of a State and any authority constituted by or under a law of the Commonwealth, a State or a Territory.

Extra-territorial operation of Act.

7. This Act applies both within and without the Commonwealth and extends to all the Territories.

Application of Act to State territorial waters.

8.—(1.) A reference in this Act to waters to which this Act applies shall be read as not including a reference to waters that are territorial waters of a State unless a Proclamation under the next succeeding sub-section is in force in respect of those waters.

(2.) The Governor-General may, by Proclamation, declare that this Act applies in respect of the territorial waters of a State or a specified part of those territorial waters.

Delegation.

9.—(1.) The Minister or the Secretary may, either generally or in relation to a matter or class of matters and either in relation to the whole or a part of Australia or in relation to the waters to which this Act applies or a part of those waters, by writing under his hand, delegate all or any of his powers and functions under this Act or the regulations, except this power of delegation.

(2.) A power or function so delegated may be exercised or performed by the delegate in accordance with the instrument of delegation.

(3.) A delegation under this section is revocable at will and does not prevent the exercise of a power or the performance of a function by the Minister or the Secretary.

Part II.—Regulation of Whaling.

Prohibition of certain acts by notice.

10.—(1.) Subject to sub-section (5.) of this section, the Minister may, by notice published in the Gazette, prohibit, either at all times or during a period specified in the notice—

(a) the taking or killing of whales, or whales of a species, kind or sex specified in the notice;

(b) the taking or killing of whales, or whales of a species, kind or sex specified in the notice, not exceeding a size so specified; or

(c) the taking or killing of whales, or whales of a species, kind or sex specified in the notice, by a method or equipment so specified.

(2.) A notice under the last preceding sub-section applies to the taking or killing of whales in any waters to which this Act applies unless the notice is expressed to apply only in relation to a part of those waters.

(3.) The power conferred by virtue of paragraph (a) of sub-section (1.) of this section extends to prohibiting the taking or killing of female whales, or female whales of a particular species or kind, when accompanied by calves or suckling whales.

(4.) A notice under this section may provide for exceptions to, and exemptions from, the prohibition contained in the notice and such an exception or exemption has effect subject to such conditions, if any, as are specified in the notice.

(5.) The powers conferred on the Minister by this section are, in relation to the taking or killing of whales in waters other than Australian waters, exercisable only to the extent necessary to give effect to the International Whaling Conventions.

Licences

11.—(1.) Subject to this section, the Secretary may, in his discretion, grant to a person, being the owner or charterer of a ship or aircraft, a licence to use that ship or aircraft as a whale catcher in, or in and over, the waters to which this Act applies or such of those waters as are specified in the Licence.

(2.) Subject to this section, the Secretary may, in his discretion, grant to a person, being the owner or charterer of a ship or the occupier of a factory, a licence to use that ship as a factory ship, or to use that factory as a land station, as the case may be, for the treating of whales taken or killed in the waters to which this Act applies or such of those waters as are specified in the licence.

(3.) A licence shall not be granted under either of the last two preceding sub-sections in respect of a ship that is not registered in Australia unless the ship is duly authorized by the Government of the country whose flag she flies to engage in taking and killing whales or in treating whales, as the case requires.

(4.) Subject to this section, a licence granted under this section remains in force for such period, not exceeding five years, as is specified in the licence.

(5.) The Secretary may, in his discretion, on the application of the holder of a licence granted under this section and of another person as proposed transferee, transfer the licence to that other person.

(6.) Such fees, if any, as are prescribed are payable in respect of the grant of a licence, or the transfer of a licence, under this section.

(7.) Where—

(a) the holder of a licence has been convicted of an offence against this Act or the regulations; or

(b) the Secretary is satisfied that there has been a contravention of, or failure to comply with, a condition of a licence granted under this section,

the Secretary may cancel the licence.

(8.) The Secretary may require an applicant for a licence or the holder of a licence to give security to his satisfaction for compliance with the conditions of the licence and with the requirements of this Act and the regulations and, if the applicant or holder fails to give that security, may refuse to grant the licence or may cancel the licence, as the case requires.

(9.) A register showing the licences granted under this section and in force from time to time shall be kept at such place as the Minister directs.

Conditions of licences.

12.—(1.) A licence granted under the last preceding section is subject to such conditions as are specified in the licence.

(2.) The conditions subject to which a licence is granted shall include such conditions as the Secretary considers necessary to give effect to the International Whaling Conventions, including conditions to ensure that there will be maximum utilization of the carcases of whales taken or treated by the holder of the licence.

(3.) Conditions that relate to the taking or killing of whales, or to whales taken or killed, in waters other than Australian waters shall not be specified in a licence except for the purpose of giving effect to the International Whaling Conventions.

Whaling inspectors.

13.—(1.) The Secretary may appoint persons to be whaling inspectors for the purposes of this section.

(2.) Subject to the next succeeding sub-section, not less than two whaling inspectors shall be maintained on board each factory ship in respect of which a licence under this Act is in force.

(3.) If a factory ship not registered in Australia carries whaling inspectors in accordance with the law of the country whose flag she flies, the Secretary may, by instrument in writing, exempt the ship from the operation of the last preceding sub-section.

(4.) A whaling inspector, or, if the Secretary thinks necessary, two or more whaling inspectors, shall be maintained at each land station in respect of which a licence under this Act is in force.

(5.) A whaling inspector maintained on board a factory ship or at a land station is entitled to remain on board the ship or upon the station premises and to be present at all operations in connexion with the treating of whales on board the ship or at the station.

(6.) The master of a ship on board which a whaling inspector is maintained under this section, and the occupier of a land station at which a whaling inspector is so maintained, shall provide the inspector with reasonable accommodation and subsistence.

Penalty: Two hundred and fifty pounds.

(7.) The Commonwealth shall pay to the owner, charterer or master of such a ship, or the occupier of such a land station, in respect of each whaling inspector who is provided with accommodation and subsistence on board the ship or at the station in pursuance of this section, such amount for each day on which that accommodation and subsistence is provided as is fixed by or under the regulations.

Powers of officers.

14.—(1.) For the purposes of this Act, an officer may—

(a) board a ship or aircraft under the jurisdiction of the Commonwealth which, or which he has reason to believe—

(i) is a factory ship or a whale catcher; or

(ii) has been, is being or is intended to be used for a purpose for which a factory ship or a whale catcher is used;

(b) enter a land station, or any premises which he has reason to believe have been used, are being used or are intended to be used for treating whales;

(c) inspect a ship, aircraft, land station or premises which he has boarded or entered in pursuance of this section and the plant and equipment in or on the ship, aircraft, land station or premises, and examine any whale, part of a whale or whale product in or on the ship, aircraft, land station or premises;

(d) require the master or pilot or a member of the crew (including a gunner) of any such ship or aircraft, or the occupier or any person employed in or in connexion with any such land station or premises, to produce to the officer such licences, records and other documents as the officer considers it necessary

to inspect for the purposes of this Act, and, subject to the next succeeding sub-section, to give to the officer such information concerning the ship, aircraft, land station or premises, or the persons on board the ship or aircraft or at the land station or on the premises, as the officer considers necessary for the purposes of this Act;

(e) take copies of, or extracts from, documents produced to him;

(f) seize, take, detain, remove and secure—

(i) any whale, part of a whale or product of a whale which the officer has reason to believe has been taken or killed in contravention of this Act; and

(ii) any equipment which the officer has reason to believe has been used in taking or killing a whale in contravention of this Act;

(g) where the officer has reason to believe that any whale, part of a whale, product of a whale or equipment that he is authorized to seize by virtue of the last preceding paragraph is on board a ship or aircraft under the jurisdiction of the Commonwealth, require the master or pilot of the ship or aircraft to bring the ship or aircraft to a port or place in Australia specified by the officer;

(h) sell any whale, part of a whale or product of a whale seized under this Act;

(i) without warrant, arrest a person who the officer has reason to believe has committed an offence against this Act; and

(j) require a person whom he reasonably suspects of having committed an offence against this Act or the regulations to state his name and place of abode.

(2.) A person is not obliged to comply with a requirement under paragraph (d) of the last preceding sub-section in so far as it requires him to give information that might incriminate him.

Part III.—Offences.

Contravention of notices.

15. A person shall not do an act prohibited by a notice for the time being in force under section ten of this Act.

Penalty: One thousand pounds.

Use of unlicensed ships and factories.

16.—(1.) Subject to the next succeeding sub-section, a ship or aircraft under the jurisdiction of the Commonwealth shall not be used for the purpose of hunting, taking, killing, towing, holding on to or scouting for whales in or over any waters to

which this Act applies unless the owner or charterer of the ship or aircraft is the holder of a licence granted under sub-section (1.) of section eleven of this Act authorizing the use of that ship or aircraft as a whale catcher in, or in and over, those waters.

(2.) The use of a factory ship in respect of which a licence under sub-section (2.) of section eleven of this Act is in force for the purpose of holding on to a whale shall be deemed not to be a contravention of the last preceding sub-section.

(3.) A ship under the jurisdiction of the Commonwealth or a factory shall not be used for treating whales taken or killed in any waters to which this Act applies unless the owner or charterer of the ship or the occupier of the factory is the holder of a licence granted under sub-section (2.) of section eleven of this Act authorizing the use of that ship as a factory ship or the use of that factory as a land station, as the case may be, for the treating of whales taken or killed in those waters.

(4.) Where a ship, aircraft or factory is used in contravention of a provision of this section—

(a) in the case of a ship—the owner and the master of the ship, or, if the ship is under charter, the charterer and the master of the ship;

(b) in the case of an aircraft—the owner and the pilot of the aircraft, or, if the aircraft is under charter, the charterer and the pilot of the aircraft; or

are each guilty of an offence against this Act punishable, upon conviction, by a penalty not exceeding One thousand pounds and, in addition, by a penalty not exceeding Five hundred pounds in respect of each whale proved to have been taken or killed by means of the ship or aircraft, or treated on the ship or at the factory, as the case may be, while the ship, aircraft or factory was used in contravention of a provision of this section.

Breach of conditions of licence.

17. A person who is the holder of a licence under section eleven of this Act shall not contravene, or fail to comply with, a condition of the licence.

Penalty: Two hundred and fifty pounds.

Possession, &c., of whales illegally killed.

18.—(1.) Where a whale, a part of a whale or a product of a whale, being a whale taken or killed in contravention of this Act, is found on a ship under the jurisdiction of the Commonwealth or in a factory or other premises, the owner and the master of the ship, or, if the ship is under charter, the charterer and the master of the ship, or the manager and the occupier of

the factory or other premises, as the case may be, are each guilty of an offence against this Act punishable, upon conviction, by a penalty not exceeding One thousand pounds.

(2.) It is a defence to a prosecution for an offence under the last preceding sub-section in respect of a whale, a part of a whale or a product of a whale found in a factory or other premises if the defendant proves that he was not aware, and had no reasonable grounds for believing, that the whale was taken or killed in contravention of this Act.

Forfeiture of equipment, &c.

19. Where a person is convicted of an offence against this Act in respect of the taking, killing or treating of a whale in contravention of this Act, the court by which he is convicted may order the forfeiture to the Commonwealth of—

(a) any equipment used in contravention of this Act in the taking or killing of the whale; or

(b) the whale, or any part or product of the whale, or the proceeds of the sale of the whale or of any part or product of the whale.

Unlicensed ships entering Australia.

20.—(1.) A ship designed and equipped for hunting, taking, killing, towing, holding on to or scouting for whales, or for treating whales, shall not be brought into a port in Australia unless—

(a) the owner or charterer of the ship is the holder of a licence in force under this Act authorizing the use of the ship as a whale catcher or as a factory ship, as the case may be; or

(b) the ship is duly authorized by the Government of the country whose flag she flies to engage in taking whales or in treating whales, as the case may be.

(2.) Where a ship is brought into a port in Australia in contravention of the last preceding sub-section, the owner and master, or, if the ship is under charter, the charterer and master, of the ship are each guilty of an offence against this Act punishable, upon conviction, by a penalty not exceeding One thousand pounds.

Remuneration of gunners and crew, &c.

21.—(1.) A person shall not engage another person for employment as—

(a) the master or a gunner or member of the crew of a whale catcher, being a ship, or of a factory ship; or

(b) the pilot or a member of the crew of a whale catcher, being an aircraft,

unless the terms of employment of the person so engaged are such that his remuneration is made dependent to a considerable extent upon such factors as the species, size and yield of whales taken and not merely upon the number of whales taken.

(2.) A person shall not engage another person for employment as—

(a) the master or a gunner or member of the crew of a whale catcher, being a ship; or

(b) the pilot or a member of the crew of a whale catcher, being an aircraft,

unless it is a term of employment of the person so engaged that no bonus or other remuneration is payable to him in respect of the taking of a whale that is milk-filled or lactating or the taking of which is prohibited by or under this Act.

(3.) The last two preceding sub-sections apply to—

(a) an engagement in Australia; and

(b) an engagement outside Australia for employment on a ship or aircraft that is registered in Australia or the operations of which are based on a port or place in Australia.

(4.) A person shall not pay to—

(a) the master or a gunner or member of the crew of a whale catcher, being a ship, under the jurisdiction of the Commonwealth; or

(b) the pilot or a member of the crew of a whale catcher, being an aircraft, under the jurisdiction of the Commonwealth,

a bonus or other remuneration in respect of the taking of a whale that is milk-filled or lactating or the taking of which is prohibited by or under this Act.

Penalty: Two hundred and fifty pounds.

Obstruction of officers, &c.

22. A person shall not—

(a) fail to facilitate by all reasonable means the boarding of a ship or aircraft or the entry of a land station or other premises by an officer in pursuance of the powers conferred on him by this Act;

(b) refuse to allow an inspection or examination to be made which is authorized by this Act;

(c) subject to sub-section (2.) of section fourteen of this Act, refuse or neglect to comply with a requirement made by an officer under sub-section (1.) of that section;

(d) when lawfully required to state his name and place of abode to an officer, state a false name or place of abode to the officer;

(e) when lawfully required by an officer to give information, give false or misleading information to the officer;

(f) assault, resist or obstruct an officer or a whaling inspector in the exercise of his powers under this Act;

(g) impersonate an officer; or

(h) in an application under this Act, make a statement or furnish information which is false or misleading in any particular.

Penalty: Five hundred pounds.

Punishment of offences.

23.—(1.) An offence against this Act may be prosecuted either summarily or upon indictment, but an offender is not liable to be punished more than once in respect of the same offence.

(2.) In summary proceedings against a person for an offence against this Act, the court shall not impose on that person, in respect of the offence, a penalty exceeding, or penalties exceeding in the aggregate, Five hundred pounds.

Part IV.—Research and Development.

Exploratory operations.

24. The Secretary may, subject to the directions of the Minister, cause operations to be carried out—

(a) for ascertaining whether whaling in particular Australian waters can be engaged in on a commercial basis; and

(b) for the development of whaling in Australian waters.

Investigations.

25. The Secretary may, subject to the directions of the Minister, cause investigations to be made into economic matters relating to whaling.

Permit for scientific purposes.

26.—(1.) The Minister may grant a permit to a person authorizing the taking or killing, or the treating, for purposes of scientific research, subject to such restrictions as to number and such other conditions as are specified in the permit, of whales the taking or killing, or the treating, of which is otherwise prohibited by or under this Act.

(2.) A person is not guilty of an offence against this Act or the regulations by reason of anything done by him which he is authorized to do by a permit in force under this section.

Part V.—Miscellaneous.

Jurisdiction of courts.

27.—(1.) Subject to the succeeding provisions of this section—

(a) the several courts of the States are invested with federal jurisdiction; and

(b) jurisdiction is conferred on the several courts of the Territories, with respect to offences against this Act or the regulations.

(2.) The jurisdiction invested in or conferred on courts by the last preceding sub-section is invested or conferred within the limits (other than limits having effect by reference to the places at which offences are committed) of their several

jurisdictions, whether those limits are as to subject-matter or otherwise, but subject to the conditions and restrictions specified in paragraphs (a), (b) and (c) of sub-section (2.) of section thirty-nine of the Judiciary Act 1903-1959.

(3.) The jurisdiction invested in, or conferred on, a court of summary jurisdiction by this section shall not be judicially exercised except by a Chief, Police, Stipendiary, Resident or Special Magistrate, or a District Officer or Assistant District Officer of a Territory.

(4.) The trial on indictment of an offence against this Act, not being an offence committed within a State, may be held in any State or Territory.

(5.) Subject to this Act, the laws of a State or Territory with respect to the arrest and custody of offenders or persons charged with offences and the procedure for—

(a) their summary conviction;

(b) their examination and commitment for trial on indictment;

(d) the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith,

and for holding accused persons to bail apply, so far as they are applicable, to a person who is charged in that State or Territory with an offence against this Act or the regulations.

(6.) Except as provided by this section, the Judiciary Act 1903-1959 applies in relation to offences against this Act or the regulations.

Regulations.

28.—(1.) Subject to the next succeeding sub-section, the Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act, and, in particular, making provision for or in relation to—

(a) the furnishing of statistics in relation to—

(i) the taking, killing and treating of whales;

(ii) the production of whale products by factory ships or land stations;

(iii) the number and classes of persons employed in the taking, killing and treating of whales; and

(iv) the plant and equipment used in the taking, killing and treating of whales;

(b) the marking of whales taken by whale catchers and the reporting by whale catchers of particulars concerning whales so taken;

(c) the keeping of records or information relating to the taking, killing and treating of whales and of particulars of whales taken, killed or treated;

(d) the manner in which whales are to be measured for the purposes of this Act; and

(e) the imposing of penalties not exceeding One hundred pounds for offences against the regulations.

(2.) The power to make regulations conferred by the last preceding sub-section is, in relation to the taking or killing of whales, and to whales taken or killed, in waters other than Australian waters, exercisable only to the extent necessary to give effect to the International Whaling Conventions.