Chapter 5—Conservation of biodiversity and heritage
Part 13—Species and communities
Division 5—Conservation advice, recovery plans, threat abatement plans and wildlife conservation plans
Subdivision AA—Approved conservation advice
266B Approved conservation advice for listed threatened species and listed threatened ecological communities
Minister to ensure there is approved conservation advice
(1) The Minister must ensure that there is approved conservation advice for each listed threatened species (except one that is extinct or that is a conservation dependent species), and each listed threatened ecological community, at all times while the species or community continues to be listed.
(2) For this purpose, approved conservation advice is a document, approved in writing by the Minister (and as changed from time to time in accordance with subsection (3)), that contains:
(a) a statement that sets out:
(i) the grounds on which the species or community is eligible to be included in the category in which it is listed; and
(ii) the main factors that are the cause of it being so eligible; and
(b) either:
(i) information about what could appropriately be done to stop the decline of, or support the recovery of, the species or community; or
(ii) a statement to the effect that there is nothing that could appropriately be done to stop the decline of, or support the recovery of, the species or community.
Changing approved conservation advice
(3) The Minister may, in writing, approve changes to approved conservation advice.
Consultation with Scientific Committee
(4) If the Minister proposes to approve a document as approved conservation advice, the Minister must consult the Scientific Committee about the document, unless its content is substantially the same as material that the Committee has previously provided to the Minister.
(5) If the Minister proposes to approve a change to approved conservation advice, the Minister must consult the Scientific Committee about the change, unless the change is substantially the same as a change that the Scientific Committee has previously advised the Minister should be made.
Publication requirements
(6) If the Minister approves a document as approved conservation advice, the Minister must:
(a) within 10 days of the approval of the document, publish the approved conservation advice on the internet; and
(b) comply with any other publication requirements of the regulations.
(7) If the Minister approves a change to approved conservation advice, the Minister must:
(a) within 10 days of the approval of the change, publish the advice, as changed, on the internet; and
(b) comply with any other publication requirements of the regulations.
Instruments of approval are not legislative instruments
(8) An instrument of approval under subsection (2) or (3) is not a legislative instrument.
Subdivision A—Recovery plans and threat abatement plans
267 Simplified outline of this Subdivision
The following is a simplified outline of this Subdivision:
Recovery plans for listed threatened species and ecological communities and threat abatement plans for key threatening processes bind the Commonwealth and Commonwealth agencies.
The Minister need ensure that a recovery plan is in force for a listed threatened species or ecological community only if the Minister decides to have a recovery plan. The Minister must decide whether to have a recovery plan for the species or community within 90 days after it becomes listed. The Minister may, at any other time, decide whether to have such a plan.
The Minister need ensure a threat abatement plan is in force for a key threatening process only if the Minister decides that a plan is a feasible, effective and efficient way of abating the process. The Minister must consult before making such a decision.
A recovery plan or threat abatement plan can be made by the Minister alone or jointly with relevant States and Territories, or the Minister can adopt a State or Territory plan. There must be public consultation and advice from the Scientific Committee about the plan, regardless of how it is made or adopted.
268 Compliance with recovery plans and threat abatement plans
A Commonwealth agency must not take any action that contravenes a recovery plan or a threat abatement plan.
269 Implementing recovery and threat abatement plans
(1) Subject to subsection (2), the Commonwealth must implement a recovery plan or threat abatement plan to the extent to which it applies in Commonwealth areas.
(2) If a recovery plan or a threat abatement plan applies outside Commonwealth areas in a particular State or self‑governing Territory, the Commonwealth must seek the co‑operation of the State or Territory with a view to implementing the plan jointly with the State or Territory to the extent to which the plan applies in the State or Territory.
269AA Decision whether to have a recovery plan
Minister has an initial obligation and then a discretion
(1) The Minister must decide whether to have a recovery plan for a listed threatened species (except one that is extinct or that is a conservation dependent species) or a listed threatened ecological community within 90 days after the species or community becomes listed. The Minister may, at any other time, decide whether to have a recovery plan for the species or community.
(2) In this section:
(a) the decision that the Minister is required by subsection (1) to make in relation to the species or community within the 90 day period referred to in that subsection is the initial recovery plan decision; and
(b) any subsequent decision that the Minister makes under subsection (1) in relation to the species or community is a subsequent recovery plan decision.
Making the initial recovery plan decision
(3) In making the initial recovery plan decision, the Minister must have regard to the recommendation (the initial recommendation) made by the Scientific Committee as mentioned in paragraph 189(1B)(c) in relation to the species or community.
Making a subsequent recovery plan decision (unless subsection (5) applies)
(4) In making a subsequent recovery plan decision in relation to the species or community, other than a decision to which subsection (5) applies:
(a) the Minister must have regard to the initial recommendation in relation to the species or community; and
(b) the Minister must have regard to any advice subsequently provided to the Minister by the Scientific Committee about whether there should be a recovery plan for the species or community.
Changing from a decision to have a recovery plan to a decision not to have a recovery plan—additional requirements
(5) If, at a time when a decision to have a recovery plan for the species or community is in force (whether or not the plan has yet been made), the Minister is proposing to make a subsequent recovery plan decision that there should not be a recovery plan for the species or community:
(a) the Minister must ask the Scientific Committee for advice relating to the proposed decision; and
(b) the Minister must publish a notice inviting comments on the proposed decision in accordance with subsection (7); and
(c) the Minister must, in deciding whether to make the proposed decision, take account of:
(i) any advice provided by the Scientific Committee in relation to the proposed decision; and
(ii) subject to subsection (6), the comments the Minister receives in response to the notice referred to in paragraph (b).
(6) The Minister is not required to take a comment referred to in subparagraph (5)(c)(ii) into account if:
(a) the Minister does not receive the comment until after the cut‑off date specified in the notice under paragraph (5)(b); or
(b) the Minister considers that regulations referred to in paragraph (8)(b) have not been complied with in relation to the comment.
(7) The notice referred to in paragraph (5)(b):
(a) must be published in accordance with the regulations referred to in paragraph (8)(a); and
(b) must set out the decision the Minister proposed to make; and
(c) must invite people to make comments, to the Minister, about the proposed decision; and
(d) must specify the date (the cut‑off date) by which comments must be received, which must be at least 30 business days after the notice has been published as required by paragraph (a); and
(e) must specify, or refer to, the manner and form requirements that, under regulations referred to in paragraph (8)(b), apply to making comments; and
(f) may also include any other information that the Minister considers appropriate.
(8) The regulations must provide for the following:
(a) how a notice referred to in paragraph (5)(b) is to be published;
(b) the manner and form for making comments.
General publication requirements
(9) The Minister must publish the following:
(a) the Minister’s initial recovery plan decision, and the reasons for it;
(b) each subsequent recovery plan decision (if any), and the reasons for it.
The regulations may specify how the publication is to be made. Subject to any such regulations, the publication must be made in a way that the Minister considers appropriate.
Note: This subsection must be complied with, even if the Minister has already published notice of the proposed decision in accordance with subsections (5) and (7).
Decisions not legislative instruments
(10) An instrument making a decision under subsection (1) is not a legislative instrument.
269A Making or adopting a recovery plan
Application
(1) This section applies only if the Minister’s most recent decision under section 269AA in relation to a listed threatened species (except one that is extinct or that is a conservation dependent species) or a listed threatened ecological community is to have a recovery plan for the species or community.
Note: Subsection 273(1) sets a deadline of 3 years from the decision for ensuring that a recovery plan is in force for the species or community. Subsection 273(2) allows that period to be extended.
Making a plan
(2) The Minister may make a written recovery plan for the purposes of the protection, conservation and management of:
(a) a listed threatened species (except one that is extinct or is a conservation dependent species); or
(b) a listed threatened ecological community.
Making a plan jointly with a State or Territory
(3) The Minister may make a written recovery plan for the purposes of the protection, conservation and management of a listed threatened species (except one that is extinct or is a conservation dependent species) or a listed threatened ecological community jointly with one or more of the States and self‑governing Territories in which the species or community occurs, or with agencies of one or more of those States and Territories.
Content of a plan
(4) The Minister must not make a recovery plan under subsection (2) or (3) unless the plan meets the requirements of section 270.
Prerequisites to making a plan
(5) Before making a recovery plan under subsection (2) or (3) for a listed threatened species or listed threatened ecological community, the Minister must:
(a) consult the appropriate Minister of each State and self‑governing Territory in which the species or community occurs, and in which actions that the plan would provide for would occur, with a view to:
(i) taking the views of each of those States and Territories into account in making the plan under subsection (2); or
(ii) making the plan jointly under subsection (3);
unless the species or community occurs only in a Commonwealth area; and
(b) consider the advice of the Scientific Committee given under section 274; and
(c) consult about the plan and consider comments in accordance with sections 275 and 276.
Limits on making a plan
(6) The Minister must not make a recovery plan under subsection (2) for a species or ecological community that occurs wholly or partly outside a Commonwealth area unless the Minister is satisfied that it is not reasonably practicable, within the period of 3 years referred to in subsection 273(1), to make the plan under subsection (3) of this section with each State or Territory:
(a) in which the species or community occurs; and
(b) in which actions that the plan would provide for would occur, if the plan were made under subsection (2) of this section.
Adopting a State or Territory plan
(7) The Minister may, by instrument in writing, adopt as a recovery plan a plan made by a State, a self‑governing Territory or an agency of a State or self‑governing Territory (whether or not the plan is in force in the State or Territory). The Minister may adopt the plan with such modifications as are specified in the instrument. This subsection has effect subject to section 277.
Note: Section 277 requires that:
(a) an adopted plan have the content required for a recovery plan by section 270; and
(b) there has been adequate consultation in making the plan adopted; and
(c) the Minister consult the Scientific Committee about the content of the plan.
Effect of adopting a plan
(8) A plan adopted under subsection (7) has effect as if it had been made under subsection (2) (whether it was adopted with modifications or not).
270 Content of recovery plans
(1) A recovery plan must provide for the research and management actions necessary to stop the decline of, and support the recovery of, the listed threatened species or listed threatened ecological community concerned so that its chances of long‑term survival in nature are maximised.
(2) In particular, a recovery plan must (subject to subsection (2A)):
(a) state the objectives to be achieved (for example, removing a species or community from a list, or indefinite protection of existing populations of a species or community); and
(b) state criteria against which achievement of the objectives is to be measured (for example, a specified number and distribution of viable populations of a species or community, or the abatement of threats to a species or community); and
(c) specify the actions needed to achieve the objectives; and
(ca) identify threats to the species or community; and
(d) identify the habitats that are critical to the survival of the species or community concerned and the actions needed to protect those habitats; and
(e) identify any populations of the species or community concerned that are under particular pressure of survival and the actions needed to protect those populations; and
(f) state the estimated duration and cost of the recovery process; and
(g) identify:
(i) interests that will be affected by the plan’s implementation; and
(ii) organisations or persons who will be involved in evaluating the performance of the recovery plan; and
(h) specify any major benefits to native species or ecological communities (other than those to which the plan relates) that will be affected by the plan’s implementation; and
(j) meet prescribed criteria (if any) and contain provisions of a prescribed kind (if any).
(2A) A recovery plan need only address the matters mentioned in paragraphs (2)(d), (e), (f), (g) and (h) to the extent to which it is practicable to do so.
(3) In making a recovery plan, regard must be had to:
(a) the objects of this Act; and
(b) the most efficient and effective use of the resources that are allocated for the conservation of species and ecological communities; and
(c) minimising any significant adverse social and economic impacts, consistently with the principles of ecologically sustainable development; and
(d) meeting Australia’s obligations under international agreements between Australia and one or more countries relevant to the species or ecological community to which the plan relates; and
(e) the role and interests of indigenous people in the conservation of Australia’s biodiversity.
270A Decision whether to have a threat abatement plan
Decision
(1) The Minister may at any time decide whether to have a threat abatement plan for a threatening process in the list of key threatening processes established under section 183. The Minister must do so:
(a) within 90 days of the threatening process being included in the list; and
(b) within 5 years of the last decision whether to have a threat abatement plan for the process, if that decision was not to have a threat abatement plan for the process.
Basis for decision
(2) The Minister must decide to have a threat abatement plan for the process if he or she believes that having and implementing a threat abatement plan is a feasible, effective and efficient way to abate the process. The Minister must decide not to have a threat abatement plan if he or she does not believe that.
Consultation before making a decision
(3) Before making a decision under this section, the Minister must:
(a) request the Scientific Committee to give advice within a specified period; and
(b) take reasonable steps to request any Commonwealth agency, any State, any self‑governing Territory, and any agency of a State or self‑governing Territory, that would be affected by or interested in abatement of the process to give advice within a specified period;
on the feasibility, effectiveness or efficiency of having and implementing a threat abatement plan to abate the process.
Consulting others
(4) Subsection (3) does not prevent the Minister from requesting any other person or body to give advice within a specified period on the feasibility, effectiveness or efficiency of having and implementing a threat abatement plan to abate the process.
Request may be made before listing
(5) A request for advice on the feasibility, effectiveness or efficiency of having and implementing a threat abatement plan to abate the process may be made before or after the process is included in the list of key threatening processes established under section 183.
Time for giving advice
(6) The Minister must not make a decision whether to have a threat abatement plan for the process before the end of the period within which he or she has requested a person or body to give advice on the feasibility, effectiveness or efficiency of having and implementing a threat abatement plan to abate the process.
Considering views expressed in consultation
(7) When the Minister is making a decision under this section, he or she must consider the advice that a person or body gave on request within the period specified in the request.
Publishing decision and reasons
(8) The Minister must publish in accordance with the regulations (if any):
(a) a decision whether or not to have a threat abatement plan for a key threatening process; and
(b) the Minister’s reasons for the decision.
Special rules for processes included in original list
(9) Subsections (3), (4), (5), (6) and (7) do not apply in relation to a decision about a process included in the list under section 183 as first established.
270B Making or adopting a threat abatement plan
Application
(1) This section applies only if the Minister’s most recent decision under section 270A in relation to a key threatening process is to have a threat abatement plan for the process.
Note: Section 273 sets a deadline of 3 years from the decision for ensuring that a threat abatement plan is in force for the process.
Making a plan
(2) The Minister may make a written threat abatement plan for the purposes of reducing the effect of the process.
Making a plan jointly with a State or Territory
(3) The Minister may make a written threat abatement plan for the purposes of reducing the effect of the process, jointly with the States and self‑governing Territories in which the process occurs or with agencies of those States and Territories.
Content of a plan
(4) The Minister must not make a threat abatement plan under subsection (2) or (3) unless the plan meets the requirements of section 271.
Prerequisites to making a plan
(5) Before making a threat abatement plan for the process under subsection (2) or (3), the Minister must:
(a) consult the appropriate Minister of each State and self‑governing Territory in which the process occurs, with a view to:
(i) taking the views of each of those States and Territories into account in making the plan under subsection (2); or
(ii) making the plan jointly under subsection (3);
unless the process occurs only in a Commonwealth area; and
(b) consider the advice of the Scientific Committee given under section 274; and
(c) consult about the plan and consider comments in accordance with sections 275 and 276.
Limits on making a plan
(6) The Minister must not make a threat abatement plan under subsection (2) for a process that occurs wholly or partly outside a Commonwealth area unless the Minister is satisfied that it is not reasonably practicable to make the plan:
(a) jointly with each of the States and self‑governing Territories in which the process occurs; and
(b) within 3 years of the decision to have the plan.
Adopting a State or Territory plan
(7) The Minister may, by instrument in writing, adopt as a threat abatement plan for the process a plan made by a State, a self‑governing Territory or an agency of a State or self‑governing Territory (whether or not the plan is in force in the State or Territory). The Minister may adopt the plan with such modifications as are specified in the instrument. This subsection has effect subject to section 277.
Note: Section 277 requires that:
(a) an adopted plan have the content required for a threat abatement plan by section 271; and
(b) there has been adequate consultation in making the plan adopted; and
(c) the Minister consult the Scientific Committee about the content of the plan.
Effect of adopting a plan
(8) A plan adopted under subsection (7) has effect as if it had been made under subsection (2), whether it was adopted with modifications or not.
271 Content of threat abatement plans
(1) A threat abatement plan must provide for the research, management and other actions necessary to reduce the key threatening process concerned to an acceptable level in order to maximise the chances of the long‑term survival in nature of native species and ecological communities affected by the process.
(2) In particular, a threat abatement plan must:
(a) state the objectives to be achieved; and
(b) state criteria against which achievement of the objectives is to be measured; and
(c) specify the actions needed to achieve the objectives; and
(g) meet prescribed criteria (if any) and contain provisions of a prescribed kind (if any).
(3) In making a threat abatement plan, regard must be had to:
(a) the objects of this Act; and
(b) the most efficient and effective use of the resources that are allocated for the conservation of species and ecological communities; and
(c) minimising any significant adverse social and economic impacts consistently with the principles of ecologically sustainable development; and
(d) meeting Australia’s obligations under international agreements between Australia and one or more countries relevant to the species or ecological community threatened by the key threatening process that is the subject of the plan; and
(e) the role and interests of indigenous people in the conservation of Australia’s biodiversity.
(4) A threat abatement plan may:
(a) state the estimated duration and cost of the threat abatement process; and
(b) identify organisations or persons who will be involved in evaluating the performance of the threat abatement plan; and
(c) specify any major ecological matters (other than the species or communities threatened by the key threatening process that is the subject of the plan) that will be affected by the plan’s implementation.
(5) Subsection (4) does not limit the matters that a threat abatement plan may include.
272 Eradication of non‑native species
If:
(a) the actions specified under paragraph 270(2)(c) in a recovery plan, or under paragraph 271(2)(c) in a threat abatement plan, include the eradication of a non‑native species; and
(b) the species is threatened in a country in which its native habitat occurs;
the recovery plan, or threat abatement plan, must require the Commonwealth to offer to provide stock of the species to that country before the eradication proceeds.
273 Ensuring plans are in force
When a plan comes into force
(1A) A recovery plan or a threat abatement plan comes into force on the day on which it is made or adopted, or on a later day specified by the Minister in writing.
Deadline for recovery plan
(1) Subject to subsection (2), a recovery plan for a listed threatened species or a listed threatened ecological community must be made and in force within 3 years of the decision under section 269AA to have the plan.
(2) The Minister may, in writing, extend the period within which a recovery plan must be made. Only one extension can be granted for the making of the plan, and the period of the extension must not be more than 3 years.
Ensuring recovery plan is in force
(3) Once the first recovery plan for a listed threatened species or a listed threatened ecological community is in force, the Minister must exercise his or her powers under this Subdivision to ensure that a recovery plan is in force for the species or community until the Minister decides under section 269AA not to have a recovery plan for the species or community.
Note: The Minister may revoke a recovery plan for a listed threatened species or a listed threatened ecological community if the Minister decides under section 269AA not to have a recovery plan for the species or community. See section 283A.
Deadline for threat abatement plan
(4) A threat abatement plan for a key threatening process must be made and in force within 3 years of the decision under section 270A to have the plan.
Ensuring threat abatement plan is in force
(5) Once the first threat abatement plan for a key threatening process is in force, the Minister must exercise his or her powers under this Subdivision to ensure that a threat abatement plan is in force for the process until the Minister decides under section 270A not to have a threat abatement plan for the process.
Note: The Minister may revoke a threat abatement plan for a key threatening process if the Minister decides under section 270A not to have a threat abatement plan for the process. See section 283A.
274 Scientific Committee to advise on plans
(1) The Minister must obtain and consider the advice of the Scientific Committee on:
(a) the content of recovery and threat abatement plans; and
(b) the times within which, and the order in which, such plans should be made.
(2) In giving advice about a recovery plan, the Scientific Committee must take into account the following matters:
(a) the degree of threat to the survival in nature of the species or ecological community in question;
(b) the potential for the species or community to recover;
(c) the genetic distinctiveness of the species or community;
(d) the importance of the species or community to the ecosystem;
(e) the value to humanity of the species or community;
(f) the efficient and effective use of the resources allocated to the conservation of species and ecological communities.
(3) In giving advice about a threat abatement plan, the Scientific Committee must take into account the following matters:
(a) the degree of threat that the key threatening process in question poses to the survival in nature of species and ecological communities;
(b) the potential of species and ecological communities so threatened to recover;
(c) the efficient and effective use of the resources allocated to the conservation of species and ecological communities.
275 Consultation on plans
(1) Before making a recovery plan or threat abatement plan under this Subdivision, the Minister must:
(a) take reasonable steps to ensure that copies of the proposed plan are available for purchase, for a reasonable price, at prescribed places in each State and self‑governing territory; and
(b) give a copy of it, together with a notice of a kind referred to in subsection (2), to the Scientific Committee; and
(c) cause the notice to be published:
(i) in the Gazette; and
(ii) in a daily newspaper that circulates generally in each State, and self‑governing Territory, in which the relevant listed threatened native species, listed threatened ecological community or key threatening process occurs; and
(iii) in any other way required by the regulations (if any).
(2) The notice must:
(a) specify the places where copies of the proposed plan may be purchased; and
(b) invite persons to make written comments about the proposed plan; and
(c) specify:
(i) an address for lodgment of comments; and
(ii) a day by which comments must be made.
(3) The day specified must not be a day occurring within 3 months after the notice is published in the Gazette.
276 Consideration of comments
The Minister:
(a) must, in accordance with the regulations (if any), consider all comments on a proposed recovery plan or threat abatement plan made in response to an invitation under section 275; and
(b) may revise the plan to take account of those comments.
277 Adoption of State plans
(1) The Minister must not adopt a plan as a recovery plan or a threat abatement plan under this Subdivision unless:
(a) the Minister is satisfied that an appropriate level of consultation has been undertaken in making the plan; and
(b) the plan meets the requirements of section 270 or 271, as the case requires.
(2) Before adopting a plan, the Minister must obtain and consider advice from the Scientific Committee on the content of the plan.
278 Publication of plans
(1) As soon as practicable after the Minister makes or adopts a recovery plan or a threat abatement plan under this Subdivision, the Minister must:
(a) make copies of the plan available for purchase, for a reasonable price, at a prescribed place in each State and self‑governing Territory; and
(b) give notice of the making or adopting of each such plan; and
(c) publish the notice:
(i) in the Gazette; and
(ii) in a daily newspaper that circulates generally in each State, and self‑governing Territory; and
(iii) in any other way required by the regulations (if any).
(2) The notice must:
(a) state that the Minister has made or adopted the plan; and
(b) specify the day on which the plan comes into force; and
(c) specify the places where copies of the plan may be purchased.
279 Variation of plans by the Minister
(1) The Minister may, at any time, review a recovery plan or threat abatement plan that has been made or adopted under this Subdivision and consider whether a variation of it is necessary.
(2) Each plan must be reviewed by the Minister at intervals of not longer than 5 years.
(3) If the Minister considers that a variation of a plan is necessary, the Minister may, subject to subsections (4), (5), (6) and (7), vary the plan.
(4) The Minister must not vary a plan, unless the plan, as so varied, continues to meet the requirements of section 270 or 271, as the case requires.
(5) Before varying a plan, the Minister must obtain and consider advice from the Scientific Committee on the content of the variation.
(6) If the Minister has made a plan jointly with, or adopted a plan that has been made by, a State or self‑governing Territory, or an agency of a State or self‑governing Territory, the Minister must seek the co‑operation of that State or Territory, or that agency, with a view to varying the plan.
(7) Sections 275, 276 and 278 apply to the variation of a plan in the same way that those sections apply to the making of a recovery plan or threat abatement plan.
280 Variation by a State or Territory of joint plans and plans adopted by the Minister
(1) If a State or self‑governing Territory varies a plan that:
(a) the Minister has made jointly with the State or self‑governing Territory, or an agency of the State or Territory; or
(b) has been adopted by the Minister as a recovery plan or a threat abatement plan;
the variation is of no effect for the purposes of this Act unless it is approved by the Minister.
(2) Before approving a variation, the Minister must obtain and consider advice from the Scientific Committee on the content of the variation.
(3) The Minister must not approve a variation unless satisfied that:
(a) an appropriate level of consultation was undertaken in varying the plan; and
(b) the plan, as so varied, continues to meet the requirements of section 270 or 271, as the case requires.
(4) If the Minister approves a variation of a plan, the plan has effect as so varied on and after the date of the approval, or such later date as the Minister determines in writing.
(5) Section 278 applies to the variation of a plan in the same way that it applies to the making of a recovery plan or threat abatement plan.
281 Commonwealth assistance
(1) The Commonwealth may give to a State or self‑governing Territory, or to an agency of a State or a self‑governing Territory, financial assistance, and any other assistance, to make or implement a recovery plan or a threat abatement plan.
(2) The Commonwealth may give to a person (other than a State or a self‑governing Territory, or an agency of a State or Territory) financial assistance, and any other assistance, to implement a recovery plan or a threat abatement plan.
(3) The giving of assistance may be made subject to such conditions as the Minister thinks fit. The Minister is to have regard to the advice of the Scientific Committee under section 282 before determining those conditions.
282 Scientific Committee to advise on assistance
(1) The Scientific Committee is to advise the Minister on the conditions (if any) to which the giving of assistance under section 281 should be subject.
(2) In giving advice about assistance for making or implementing a recovery plan, the Scientific Committee must take into account the following matters:
(a) the degree of threat to the survival in nature of the species or ecological community in question;
(b) the potential for the species or community to recover;
(c) the genetic distinctiveness of the species or community;
(d) the importance of the species or community to the ecosystem;
(e) the value to humanity of the species or community;
(f) the efficient and effective use of the resources allocated to the conservation of species and ecological communities.
(3) In giving advice about assistance for making or implementing a threat abatement plan, the Scientific Committee must take into account the following matters:
(a) the degree of threat that the key threatening process in question poses to the survival in nature of species and ecological communities;
(b) the potential of species and ecological communities so threatened to recover;
(c) the efficient and effective use of the resources allocated to the conservation of species and ecological communities.
283 Plans may cover more than one species etc.
(1) A recovery plan made or adopted under this Subdivision may deal with one or more listed threatened species and/or one or more listed ecological communities.
(2) A threat abatement plan made or adopted under this Subdivision may deal with one or more key threatening processes.
283A Revoking a plan
(1) The Minister may, by legislative instrument:
(a) revoke a recovery plan for a listed threatened species or a listed threatened ecological community if the Minister decides under section 269AA not to have a recovery plan for the species or community; or
(b) revoke a threat abatement plan for a key threatening process if the Minister decides under section 270A not to have a threat abatement plan for the process.
(2) The Minister must publish in accordance with the regulations (if any):
(a) the instrument revoking the plan; and
(b) the Minister’s reasons for revoking the plan.
284 Reports on preparation and implementation of plans
The Secretary must include in each annual report a report on the making and adoption under this Subdivision of each recovery plan and threat abatement plan during the year to which the report relates.
Subdivision B—Wildlife conservation plans
285 Wildlife conservation plans
(1) Subject to this section, the Minister may make, by instrument in writing, and implement a wildlife conservation plan for the purposes of the protection, conservation and management of the following:
(a) a listed migratory species that occurs in Australia or an external Territory;
(b) a listed marine species that occurs in Australia or an external Territory;
(c) a species of cetacean that occurs in the Australian Whale Sanctuary;
(d) a conservation dependent species.
(2) The Minister must not make a wildlife conservation plan for a species that is a listed threatened species (except a conservation dependent species).
(3) Subject to section 292, the Minister may, by instrument in writing, adopt a plan that has been made by a State or a self‑governing Territory, or by an agency of a State or self‑governing Territory, as a wildlife conservation plan. The Minister may adopt a plan with such modifications as are specified in the instrument.
(4) A plan, as modified and adopted under subsection (2), has effect as if the plan had been made by the Minister under subsection (1).
(5) The Minister must seek the co‑operation of the States and self‑governing Territories in which:
(a) a listed migratory species occurs; or
(b) a listed marine species occurs; or
(c) a species of cetacean occurs; or
(d) a conservation dependent species occurs;
with a view to making and implementing jointly with those States and Territories, or agencies of those States or Territories, a joint wildlife conservation plan unless the species occurs only in a Commonwealth area.
(6) Before making a wildlife conservation plan under subsection (1) or (5), the Minister must:
(a) consider the advice of the Scientific Committee given under section 289; and
(b) consult about the plan in accordance with sections 290 and 291.
(7) A wildlife conservation plan comes into force on the day on which it is made or adopted, or on such later day as the Minister specifies in writing.
286 Acting in accordance with wildlife conservation plans
A Commonwealth agency must take all reasonable steps to act in accordance with a wildlife conservation plan.
287 Content of wildlife conservation plans
(1) A wildlife conservation plan must provide for the research and management actions necessary to support survival of the migratory species, marine species, species of cetacean or conservation dependent species concerned.
(2) In particular, a wildlife conservation plan must:
(a) state the objectives to be achieved; and
(b) state criteria against which achievement of the objectives is to be measured; and
(c) specify the actions needed to achieve the objectives; and
(d) identify the habitats of the species concerned and the actions needed to protect those habitats; and
(e) identify:
(i) interests that will be affected by the plan’s implementation; and
(ii) organisations or persons who will be involved in evaluating the performance of the plan; and
(f) specify any major benefits to migratory species, marine species, species of cetacean or conservation dependent species (other than those to which the plan relates) that will be affected by the plan’s implementation; and
(g) meet prescribed criteria (if any) and contain provisions of a prescribed kind (if any).
(3) In making a wildlife conservation plan, regard must be had to:
(a) the objects of this Act; and
(b) the most efficient and effective use of the resources that are allocated for the conservation of migratory species, marine species, species of cetacean and conservation dependent species; and
(c) minimising any significant adverse social and economic impacts, consistently with the principles of ecologically sustainable development; and
(d) meeting Australia’s obligations under international agreements between Australia and one or more countries relevant to the migratory species, marine species, species of cetacean or conservation dependent species to which the plan relates; and
(e) the role and interests of indigenous people in the conservation of Australia’s biodiversity.
288 Eradication of non‑native species
If:
(a) the actions specified under section 287 in a wildlife conservation plan include the eradication of a non‑native species; and
(b) the species is threatened in a country in which its native habitat occurs;
the wildlife conservation plan must require the Commonwealth to offer to provide stock of the species to that country before the eradication proceeds.
289 Scientific Committee to advise on scheduling of plans
(1) The Minister may seek advice from the Scientific Committee on the need for wildlife conservation plans and the order in which they should be made.
(1A) The Scientific Committee may advise the Minister on its own initiative to make a wildlife conservation plan for a specified species described in subsection 285(1).
(2) In giving advice under subsection (1) or (1A), the Scientific Committee must take into account the resources available for making plans.
(3) Before making a plan, the Minister must obtain and consider advice from the Scientific Committee on the content of the plan.
290 Consultation on plans
(1) Before making a wildlife conservation plan under subsection 285(1) or (5), the Minister must:
(a) take reasonable steps to ensure that copies of the proposed plan are available for purchase, for a reasonable price, at prescribed places in each State and self‑governing Territory; and
(b) give a copy of it, together with a notice of a kind referred to in subsection (2), to the Scientific Committee; and
(c) cause the notice to be published:
(i) in the Gazette; and
(ii) in a daily newspaper that circulates generally in each State, and self‑governing Territory; and
(iii) in any other way required by the regulations (if any).
(2) The notice must:
(a) specify the places where copies of the proposed plan may be purchased; and
(b) invite persons to make written comments about the proposed plan; and
(c) specify:
(i) an address for lodgment of comments; and
(ii) a day by which comments must be made.
(3) The day specified must not be a day occurring within 3 months after the notice is published in the Gazette.
291 Consideration of comments
The Minister:
(a) must, in accordance with the regulations (if any), consider all comments on a proposed wildlife conservation plan made in response to an invitation under section 290; and
(b) may revise the plan to take account of those comments.
292 Adoption of State plans
(1) The Minister must not adopt a plan as a wildlife conservation plan under subsection 285(3) unless:
(a) the Minister is satisfied that an appropriate level of consultation has been undertaken in making the plan; and
(b) the plan meets the requirements of section 287.
(2) Before adopting a plan, the Minister must obtain and consider advice from the Scientific Committee on the content of the plan.
293 Publication, review and variation of plans
(1) As soon as practicable after the Minister makes or adopts a wildlife conservation plan under section 285, the Minister must:
(a) make copies of the plan available for purchase, for a reasonable price, at a prescribed place in each State and self‑governing Territory; and
(b) give notice of the making or adoption of each such plan; and
(c) publish the notice:
(i) in the Gazette; and
(ii) in a daily newspaper that circulates generally in each State, and self‑governing Territory; and
(iii) in any other way required by the regulations (if any).
(2) The notice must:
(a) state that the Minister has made or adopted the plan; and
(b) specify the day on which the plan comes into force; and
(c) specify the places where copies of the plan may be purchased.
294 Variation of plans by the Minister
(1) The Minister may, at any time, review a wildlife conservation plan that has been made or adopted under section 285 and consider whether a variation of it is necessary.
(2) Each plan must be reviewed by the Minister at intervals of not longer than 5 years.
(3) If the Minister considers that a variation of a plan is necessary, the Minister may, subject to subsections (4), (5), (6) and (7) vary the plan.
(4) The Minister must not vary a plan, unless the plan, as so varied, continues to meet the requirements of section 287.
(5) Before varying a plan, the Minister must obtain and consider advice from the Scientific Committee on the content of the variation.
(6) If the Minister has made a plan jointly with, or adopted a plan that has been made by, a State or self‑governing Territory, or an agency of a State or self‑governing Territory, the Minister must seek the co‑operation of that State or Territory, or that agency, with a view to varying the plan.
(7) Sections 290, 291 and 293 apply to the variation of a plan in the same way that those sections apply to the making of a wildlife conservation plan.
295 Variation by a State or Territory of joint plans and plans adopted by the Minister
(1) If a State or self‑governing Territory varies a plan that:
(a) the Minister has made jointly with the State or self‑governing Territory, or an agency of the State or Territory; or
(b) has been adopted by the Minister as a wildlife conservation plan;
the variation is of no effect for the purposes of this Act unless it is approved by the Minister.
(2) Before approving a variation, the Minister must obtain and consider advice from the Scientific Committee on the content of the variation.
(3) The Minister must not approve a variation under subsection (1) unless satisfied:
(a) an appropriate level of consultation was undertaken in varying the plan; and
(b) the plan, as so varied, continues to meet the requirements of section 287.
(4) If the Minister approves a variation of a plan, the plan has effect as so varied on and after the date of the approval, or such later date as the Minister determines in writing.
(5) Section 293 applies to the variation of a plan in the same way that it applies to the making of a wildlife conservation plan.
296 Commonwealth assistance
(1) The Commonwealth may give to a State or self‑governing Territory, or to an agency of a State or a self‑governing Territory, financial assistance, and any other assistance, to make a wildlife conservation plan.
(2) The Commonwealth may give to a person (other than a State or a self‑governing Territory, or an agency of a State or Territory) financial assistance, and any other assistance, to implement a wildlife conservation plan.
(3) The giving of assistance may be made subject to such conditions as the Minister thinks fit.
297 Plans may cover more than one species etc.
A wildlife conservation plan made or adopted under this Subdivision may deal with all or any of the following:
(a) one or more listed migratory species;
(b) one or more listed marine species;
(c) one or more species of cetacean;
(d) one or more conservation dependent species.
298 Reports on preparation and implementation of plans
The Secretary must include in each annual report a report on the making and adoption under section 285 of each wildlife conservation plan during the year to which the report relates.
Subdivision C—Miscellaneous
299 Wildlife conservation plans cease to have effect
If:
(a) a wildlife conservation plan is in force for all or any of the following:
(i) a listed migratory species;
(ii) a listed marine species;
(iii) a species of cetacean; and
(b) the species becomes a listed threatened species (except a conservation dependent species);
the wildlife conservation plan ceases to have effect in relation to the species on and from the day on which the species becomes a listed threatened species as mentioned in paragraph (b).
300 Document may contain more than one plan
(1) All or any of the plans made under this Division may be included in the same document.
(2) All or any of the plans adopted under this Division may be included in the same instrument of adoption.
300A State and Territory laws not affected
Sections 269A, 270A, 270B, 273 and 285 do not exclude or limit the concurrent operation of a law of a State or self‑governing Territory.
300B Assistance from the Scientific Committee
(1) The Minister may, at any time, ask the Scientific Committee to provide the Minister with a statement, information or advice for the purpose of assisting the Minister in the performance or exercise of the Minister’s functions or powers under section 266B, 269AA or 270A.
(2) The Scientific Committee may, at any time, provide the Minister with a statement, information or advice for the purpose of assisting the Minister in the performance or exercise of the Minister’s functions or powers under section 266B, 269AA or 270A (whether or not the Committee is acting in response to a request under subsection (1) of this section).
Division 6—Access to biological resources
301 Control of access to biological resources
(1) The regulations may provide for the control of access to biological resources in Commonwealth areas.
(2) Without limiting subsection (1), the regulations may contain provisions about all or any of the following:
(a) the equitable sharing of the benefits arising from the use of biological resources in Commonwealth areas;
(b) the facilitation of access to such resources;
(c) the right to deny access to such resources;
(d) the granting of access to such resources and the terms and conditions of such access.
Division 6A—Control of non‑native species
301A Regulations for control of non‑native species
The regulations may:
(a) provide for the establishment and maintenance of a list of species, other than native species, whose members:
(i) do or may threaten biodiversity in the Australian jurisdiction; or
(ii) would be likely to threaten biodiversity in the Australian jurisdiction if they were brought into the Australian jurisdiction; and
(b) regulate or prohibit the bringing into the Australian jurisdiction of members of a species included in the list mentioned in paragraph (a); and
(c) regulate or prohibit trade in members of a species included in the list mentioned in paragraph (a):
(i) between Australia and another country; or
(ii) between 2 States; or
(iii) between 2 Territories; or
(iv) between a State and a Territory; or
(v) by a constitutional corporation; and
(d) regulate and prohibit actions:
(i) involving or affecting members of a species included in the list mentioned in paragraph (a); and
(ii) whose regulation or prohibition is appropriate and adapted to give effect to Australia’s obligations under an agreement with one or more other countries; and
(e) provide for the making and implementation of plans to reduce, eliminate or prevent the impacts of members of species included in the list mentioned in paragraph (a) on biodiversity in the Australian jurisdiction.
Division 7—Aid for conservation of species in foreign countries
302 Aid for conservation of species in foreign countries
On behalf of the Commonwealth, the Minister may give financial assistance to the governments of foreign countries and organisations in foreign countries to help the recovery and conservation, in those countries, of species covered by international agreements to which Australia is a party.
Division 8—Miscellaneous
303 Regulations
(1) The regulations may make provision for the conservation of biodiversity in Commonwealth areas.
(2) In particular, the regulations may prohibit or regulate actions affecting a member of a native species in a Commonwealth area. This does not limit subsection (1).
303A Exemptions from this Part
(1) A person proposing to take an action that would contravene a provision of this Part apart from this section may apply in writing to the Minister for an exemption from the provision.
(2) The Minister must decide within 20 business days of receiving the application whether or not to grant the exemption.
(3) The Minister may, by written notice, exempt a specified person from the application of a specified provision of this Part in relation to a specified action.
(4) The Minister may do so only if he or she is satisfied that it is in the national interest that the provision not apply in relation to the person or the action.
(5) In determining the national interest, the Minister may consider Australia’s defence or security or a national emergency. This does not limit the matters the Minister may consider.
(6) A provision specified in the notice does not apply in relation to the specified person or action on or after the day specified in the notice. The Minister must not specify a day earlier than the day the notice is made.
(7) Within 10 business days after making the notice, the Minister must:
(a) publish a copy of the notice and his or her reasons for granting the exemption in accordance with the regulations; and
(b) give a copy of the notice to the person specified in the notice.
303AA Conditions relating to accreditation of plans, regimes and policies
(1) This section applies to an accreditation of a plan, regime or policy under section 208A, 222A, 245 or 265.
(2) The Minister may accredit a plan, regime or policy under that section even though he or she considers that the plan, regime or policy should be accredited only:
(a) during a particular period; or
(b) while certain circumstances exist; or
(c) while a certain condition is complied with.
In such a case, the instrument of accreditation is to specify the period, circumstances or condition.
(3) If an accreditation specifies a particular period as mentioned in subsection (2), the accreditation ceases to be in force at the end of that period.
(4) If an accreditation specifies circumstances as mentioned in subsection (2), the Minister must, in writing, revoke the accreditation if he or she is satisfied that those circumstances have ceased to exist.
(5) The Minister may, in writing, vary an accreditation by:
(a) specifying one or more conditions (or further conditions) to which the accreditation is subject; or
(b) revoking or varying a condition:
(i) specified in the instrument of accreditation; or
(ii) specified under paragraph (a).
(6) A condition may relate to reporting or monitoring.
(7) The Minister must, in writing, revoke an accreditation if he or she is satisfied that a condition of the accreditation has been contravened.
303AB Amended policies, regimes or plans taken to be accredited
(1) If:
(a) a plan, regime or policy is accredited under section 208A, 222A, 245 or 265; and
(b) the plan, regime or policy is amended, or is proposed to be amended; and
(c) the Minister is satisfied that the amendments are, or will be, minor; and
(d) the Minister is satisfied that the plan, regime or policy as amended meets, or will meet, the requirements of subsection 208A(1), 222A(1), 245(1) or 265(1) (as the case may be);
the Minister may, by instrument in writing, determine that this subsection applies to the amendments.
(2) If the Minister makes a determination under subsection (1), the plan, regime or policy as amended is, for the purposes of this Act, taken to be accredited under subsection 208A(1), 222A(2), 245(1) or 265(1) (as the case may be).
(3) A determination under subsection (1) of this section is not a legislative instrument.
Part 13A—International movement of wildlife specimens
Division 1—Introduction
303BA Objects of Part
(1) The objects of this Part are as follows:
(a) to ensure that Australia complies with its obligations under CITES and the Biodiversity Convention;
(b) to protect wildlife that may be adversely affected by trade;
(c) to promote the conservation of biodiversity in Australia and other countries;
(d) to ensure that any commercial utilisation of Australian native wildlife for the purposes of export is managed in an ecologically sustainable way;
(e) to promote the humane treatment of wildlife;
(f) to ensure ethical conduct during any research associated with the utilisation of wildlife;
(h) to ensure that the precautionary principle is taken into account in making decisions relating to the utilisation of wildlife.
Note: CITES means the Convention on International Trade in Endangered Species—see section 528.
(2) In order to achieve its objects, this Part includes special provisions to conserve the biodiversity of Australian native wildlife.
303BAA Certain indigenous rights not affected
To avoid doubt, nothing in this Part prevents an indigenous person from continuing in accordance with law the traditional use of an area for:
(a) hunting (except for the purposes of sale); or
(b) food gathering (except for the purposes of sale); or
(c) ceremonial or religious purposes.
303BB Simplified outline
The following is a simplified outline of this Part:
• This Part sets up a system for regulating the international movement of wildlife specimens.
• A CITES specimen is a specimen of a species included in Appendix I, II or III to the Convention on International Trade in Endangered Species (CITES).
• It is an offence to export or import a CITES specimen unless:
(a) the exporter or importer holds a permit; or
(b) an exemption applies.
• A regulated native specimen is a specimen of a native species subject to export control under this Part.
• It is an offence to export a regulated native specimen unless:
(a) the exporter holds a permit; or
(b) an exemption applies.
• A regulated live specimen is a live specimen of a species subject to import control under this Part.
• It is an offence to import a regulated live specimen unless the importer holds a permit.
• It is an offence to possess a specimen that was imported in contravention of this Part.
303BC Definitions
In this Part, unless the contrary intention appears:
eligible listed threatened species means a listed threatened species other than a species in the conservation dependent category.
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
export means:
(a) export from Australia or from an external Territory; or
(b) export from the sea;
but does not include:
(c) export from Australia to an external Territory; or
(d) export from an external Territory to Australia; or
(e) export from an external Territory to another external Territory.
export from the sea, in relation to a specimen, means take in a Commonwealth marine area and then take out of that area to another country without bringing into Australia or into an external Territory.
import means:
(a) import into Australia or into an external Territory; or
(b) import by way of introduction from the sea;
but does not include:
(c) import into Australia from an external Territory; or
(d) import into an external Territory from Australia; or
(e) import into an external Territory from another external Territory.
import by way of introduction from the sea, in relation to a specimen, means take in the marine environment not under the jurisdiction of any country and then bring into Australia or into an external Territory without having been imported into any other country.
marine environment means the sea, and includes:
(a) the air space above the sea; and
(b) the seabed and subsoil beneath the sea.
recipient means:
(a) in relation to a specimen that is exported—the person in the country to which the specimen is exported who is to have the care and custody of the specimen after the export; and
(b) in relation to a specimen that is imported into Australia or into an external Territory—the person in Australia or that Territory, as the case may be, who is to have the care and custody of the specimen after the import.
relevant CITES authority, in relation to a country, means:
(a) if the country is a party to CITES—a Management Authority of that country; or
(b) if the country is not a party to CITES—a competent authority of that country within the meaning of Article X of CITES.
sender, in relation to a specimen that is imported into Australia or an external Territory, means the person in the country from which the specimen is imported who exports it from that country to Australia or to that Territory, as the case may be.
take includes:
(a) in relation to an animal—harvest, catch, capture, trap and kill; and
(b) in relation to a plant specimen—harvest, pick, gather and cut.
trade means trade within the ordinary meaning of that expression.
Note: See also section 528.
Division 2—CITES species
Subdivision A—CITES species and CITES specimens
303CA Listing of CITES species
(1) The Minister must, by legislative instrument, establish a list of CITES species for the purposes of this Act.
(2) The Minister must ensure that the list is established on the commencement of this section.
Note: See section 4 of the Acts Interpretation Act 1901.
(3) The list must include all species from time to time included in any of Appendices I, II and III to CITES. The list must not include any other species.
(4) For each species included in the list, there is to be a notation:
(a) describing the specimens belonging to that species that are included in a particular Appendix to CITES; and
(b) identifying the Appendix in which the species is included; and
(c) identifying the date on which the provisions of CITES first applied to the specimens.
(5) A description mentioned in paragraph (4)(a):
(a) may cover all specimens that belong to the species; or
(b) may cover specified kinds of specimens that belong to the species; or
(c) may state that the inclusion of a specimen in a particular Appendix to CITES is subject to restrictions or conditions.
(6) A restriction or condition mentioned in paragraph (5)(c) may:
(a) impose a quantitative limit in relation to the export or import of a specimen; or
(b) relate to the imposition of a quota in relation to the export or import of specimens; or
(c) relate to a particular population of a species; or
(d) reflect any other restriction or condition set out in the relevant Appendix to CITES.
(7) Subsection (6) does not limit paragraph (5)(c).
(8) A notation in the list is to be consistent with CITES.
(9) The Minister may, by legislative instrument:
(a) correct an inaccuracy or update the name of a species; or
(b) amend the list, as necessary, so that it includes all species required to be included in the list under subsection (3); or
(c) amend the list, as necessary, so that the notations in the list are consistent with CITES.
(11) For the purposes of this section, it is to be assumed that the definition of specimen in CITES includes a reference to a thing that is a specimen for the purposes of this Act.
Note: See also section 303CB.
303CB Stricter domestic measures
(1) The Minister may, by legislative instrument, declare that the list referred to in section 303CA has effect as if it were modified as set out in the declaration.
Note: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.
(2) The Minister must not make a declaration under subsection (1) unless:
(a) the modification has the effect of treating a specified specimen that is included in Appendix II to CITES as if the specimen were included in Appendix I to CITES; or
(b) the modification has the effect of broadening the range of specimens included in a specified Appendix to CITES in relation to a specified species; or
(c) the modification has the effect of decreasing a quantitative limit in relation to the export or import of a specimen; or
(d) the modification has the effect of treating a specified specimen that is not included in Appendix I, II or III to CITES as if the specimen were included in Appendix I to CITES; or
(e) the modification has the effect of treating a specified specimen that is not included in Appendix I, II or III to CITES as if the specimen were included in Appendix II to CITES.
(5) A reference in this Act to the list referred to in section 303CA is a reference to that list as modified under this section.
Subdivision B—Offences and permit system
303CC Exports of CITES specimens
(1) A person commits an offence if:
(a) the person exports a specimen; and
(b) the specimen is a CITES specimen.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
Authorised export—permit
(2) Subsection (1) does not apply if the specimen is exported in accordance with a permit that was issued under section 303CG, 303GB or 303GC and is in force.
Authorised export—CITES exemptions
(3) Subsection (1) does not apply if the export of the specimen is an export that, in accordance with a determination made by the Minister under the regulations, is taken to be part of a registered, non‑commercial exchange of scientific specimens between scientific organisations.
(4) Subsection (1) does not apply if the Minister issues a certificate under subsection (5) in relation to the specimen.
(5) If the Minister is satisfied that a specimen was acquired before the provisions of CITES applied to the specimen, the Minister may issue a certificate to that effect.
(6) Subsection (1) does not apply if the export of the specimen is an export that, under the regulations, is taken to be an export of a personal or household effect.
Note 1: See paragraph 3 of Article VII of CITES.
Note 2: The defendant bears an evidential burden in relation to the matters in subsections (2), (3), (4) and (6) (see subsection 13.3(3) of the Criminal Code).
303CD Imports of CITES specimens
(1) A person commits an offence if:
(a) the person imports a specimen; and
(b) the specimen is a CITES specimen.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
Authorised import—permit
(2) Subsection (1) does not apply if the specimen is imported in accordance with a permit that was issued under section 303CG, 303GB or 303GC and is in force.
Authorised import—CITES exemptions
(3) Subsection (1) does not apply if the import of the specimen is an import that, under the regulations, is taken to be an import of a personal or household effect.
Note: See paragraph 3 of Article VII of CITES.
(4) Subsection (1) does not apply if:
(a) the specimen is a CITES II specimen; and
(b) the specimen is not a live specimen; and
(c) the specimen belongs to a species that is not specified in the regulations; and
(d) in a case where a quantitative limit is applicable to the specimen under a notation in the list referred to in section 303CA—the quantity of the specimen does not exceed that limit; and
(e) the specimen is within the personal baggage of a person entering Australia or an external Territory; and
(f) the specimen is not intended for sale or for any other commercial purpose; and
(g) both:
(i) the country from which the specimen is proposed to be imported has a relevant CITES authority; and
(ii) permission to export the specimen from that country has been given by a relevant CITES authority of that country.
(5) Subsection (1) does not apply if the import of the specimen is an import that, in accordance with a determination made by the Minister under the regulations, is taken to be part of a registered, non‑commercial exchange of scientific specimens between scientific organisations.
(6) Subsection (1) does not apply if:
(a) the country from which the specimen is proposed to be imported has a relevant CITES authority; and
(b) a relevant CITES authority of that country has issued a certificate under paragraph 2 of Article VII of CITES in respect of the specimen.
Note 1: Paragraph 2 of Article VII of CITES deals with a specimen that was acquired before the provisions of CITES applied to the specimen.
Note 2: The defendant bears an evidential burden in relation to the matters in subsections (2), (3), (4), (5) and (6) (see subsection 13.3(3) of the Criminal Code).
303CE Applications for permits
(1) A person may, in accordance with the regulations, apply to the Minister for a permit to be issued under section 303CG.
(2) The application must be accompanied by the fee (if any) prescribed by the regulations.
303CF Further information
(1) The Minister may, within 40 business days after the application is made, request the applicant to give the Minister, within the period specified in the request, further information for the purpose of enabling the Minister to deal with the application.
(2) The Minister may refuse to consider the application until the applicant gives the Minister the information in accordance with the request.
303CG Minister may issue permits
(1) The Minister may, on application made by a person under section 303CE, issue a permit to the person. This subsection has effect subject to subsection (3).
(2) A permit authorises its holder to take the action or actions specified in the permit, in the permitted period, without breaching section 303CC, 303CD, 303DD or 303EK.
(2A) For the purpose of subsection (2), the permitted period is the period specified in the permit as the period during which the action or actions specified in the permit may be taken. The period so specified must start on the date of issue of the permit and end not later than 6 months after that date.
(3) The Minister must not issue a permit unless the Minister is satisfied that:
(a) the action or actions specified in the permit will not be detrimental to, or contribute to trade which is detrimental to:
(i) the survival of any taxon to which the specimen belongs; or
(ii) the recovery in nature of any taxon to which the specimen belongs; or
(iii) any relevant ecosystem (for example, detriment to habitat or biodiversity); and
(b) the specimen was not obtained in contravention of, and the action or actions specified in the permit would not involve the contravention of, any law of the Commonwealth, of a State or of a Territory; and
(c) if the specimen is a live specimen that belongs to a taxon specified in the regulations—the conditions that, under the regulations, are applicable to the welfare of the specimen have been, or are likely to be, complied with; and
(d) if any restriction or condition is applicable to the specimen under a notation in the list referred to in section 303CA—that restriction or condition has been, or is likely to be, complied with; and
(e) if the permit authorises the export of a CITES specimen:
(i) the proposed export would be an eligible non‑commercial purpose export (within the meaning of section 303FA); or
(ii) the relevant conditions set out in the table in section 303CH have been met; and
(f) if the permit authorises the import of a CITES specimen:
(i) the proposed import would be an eligible non‑commercial purpose import (within the meaning of section 303FB); or
(ii) the relevant conditions set out in the table in section 303CH have been met; and
(g) if:
(i) the permit authorises the import of a CITES II specimen; and
(ii) the proposed import would be an eligible non‑commercial purpose import (within the meaning of section 303FB);
the country from which the specimen is proposed to be imported has a relevant CITES authority and permission to export the specimen from that country has been given by a relevant CITES authority of that country; and
(h) if the permit authorises the export of a CITES specimen that is a regulated native specimen—the conditions set out in subsection 303DG(4) have been met; and
(i) if the permit authorises the import of a CITES specimen that is a regulated live specimen—the conditions set out in subsection 303EN(3) have been met.
(4) Subsection (3) does not apply in relation to a permit to export from Australia or an external Territory a specimen (other than a live animal) that has been imported into Australia or that Territory, as the case may be.
(5) The Minister must not issue a permit to export a specimen (other than a live animal) that has been imported into Australia or an external Territory, unless the Minister is satisfied that:
(a) the specimen was lawfully imported (section 303GY); and
(b) if the specimen is a CITES I specimen:
(i) the country to which the specimen is proposed to be exported has a relevant CITES authority; and
(ii) permission to import that specimen into that country has been given by a relevant CITES authority of that country.
(6) This section has effect subject to section 303GA.
Note: Section 303GA deals with controlled actions, and actions for which a non‑Part 13A permit is required.
303CH Specific conditions relating to the export or import of CITES specimens for commercial purposes
(1) The following table sets out the conditions mentioned in paragraphs 303CG(3)(e) and (f):
Specific conditions |
Item | Category of specimen | Action | Specific conditions |
1 | CITES I | Import | (a) the proposed import would be an import from an approved CITES‑registered captive breeding program in accordance with section 303FK; or (b) the specimen is, or is derived from, a plant that was artificially propagated (section 527C). |
2 | CITES I | Export | (a) the specimen is not a live native mammal, a live native amphibian, a live native reptile or a live native bird; and (b) the country to which the specimen is proposed to be exported has a relevant CITES authority, and permission to import that specimen into that country has been given by a relevant CITES authority of that country; and (c) the proposed export would be an export from: (i) an approved CITES‑registered captive breeding program in accordance with section 303FK; or (ii) an approved artificial propagation program in accordance with section 303FL. |
3 | CITES II | Import | (a) for any specimen—the country from which the specimen is proposed to be imported has a relevant CITES authority and permission to export the specimen from that country has been given by a relevant CITES authority of that country; and (b) for a specimen that: (i) is specified by the Minister under subsection (2) as a declared specimen; and (ii) is not, or is not derived from, an animal that was bred in captivity (section 527B); and (iii) is not, or is not derived from, a plant that was artificially propagated (section 527C); the proposed import of the specimen would be an import from an approved commercial import program in accordance with section 303FU. |
4 | CITES II | Export | (a) the specimen is not a live native mammal, a live native amphibian, a live native reptile or a live native bird; and (b) the proposed export of the specimen would be: (i) an export from an approved captive breeding program in accordance with section 303FK; or (ii) an export from an approved artificial propagation program in accordance with section 303FL; or (iia) an export from an approved cultivation program in accordance with section 303FLA; or (iii) an export in accordance with an approved wildlife trade operation (section 303FN); or (iv) an export in accordance with an approved wildlife trade management plan (section 303FO). |
5 | CITES III | Import | The country from which the specimen is proposed to be imported has a relevant CITES authority, and permission to export the specimen from that country has been given by a relevant CITES authority of that country. |
6 | CITES III | Export | (a) the specimen is not a live native mammal, a live native amphibian, a live native reptile or a live native bird; and (b) the proposed export of the specimen would be: (i) an export from an approved captive breeding program in accordance with section 303FK; or (ii) an export from an approved artificial propagation program in accordance with section 303FL; or (iia) an export from an approved cultivation program in accordance with section 303FLA; or (iii) an export in accordance with an approved wildlife trade operation (section 303FN); or (iv) an export in accordance with an approved wildlife trade management plan (section 303FO). |
(2) The Minister may, by notifiable instrument, specify a specimen as a declared specimen for the purposes of subparagraph (b)(i) of item 3 of the table in subsection (1).
Note: Notifiable instruments must be registered under the Legislation Act 2003, but they are not subject to parliamentary scrutiny or sunsetting under that Act.
303CI Time limit for making permit decision
If an application for a permit is made under section 303CE, the Minister must either issue, or refuse to issue, the permit within 40 business days after whichever is the latest of the following days:
(a) the day on which the application is made;
(b) if a request for further information in relation to the application is made under section 303CF—the day on which the applicant complies with the request;
(c) if section 303GA applies to the application—the day that is applicable under subsection 303GA(2).
303CJ Duration of permits
A permit under section 303CG:
(a) comes into force on the date on which it is issued; and
(b) unless it is sooner cancelled, remains in force until all of the following periods have ended:
(i) the permitted period (within the meaning of subsection 303CG(2A));
(ii) each period for which one or more conditions of the permit are expressed to apply.
303CK Register of applications and decisions
(1) As soon as practicable after the commencement of this section, the Minister must cause to be established a register that sets out:
(a) prescribed particulars of applications made under section 303CE after the establishment of the register; and
(b) prescribed particulars of decisions made by the Minister under section 303CG after the establishment of the register.
(2) The register may be maintained by electronic means.
(3) The register is to be made available for inspection on the internet.
Subdivision C—Application of CITES
303CL Application of CITES—Management Authority and Scientific Authority
For the purposes of the application of CITES to Australia:
(a) the Minister is the Management Authority; and
(b) the Secretary is the Scientific Authority.
303CM Interpretation of CITES provisions
(1) Except so far as the contrary intention appears, an expression that:
(a) is used in the CITES provisions without definition; and
(b) is used in CITES (whether or not it is defined in, or a particular meaning is assigned to it by, CITES);
has, in the CITES provisions, the same meaning as it has in CITES.
(2) For the purposes of subsection (1), the CITES provisions consist of:
(a) this Division; and
(b) any other provision of this Act in so far as that other provision relates to, or to permits under, this Division.
303CN Resolutions of the Conference of the Parties to CITES
(1) In making a decision under this Part in relation to a CITES specimen, the Minister may have regard to a relevant resolution of the Conference of the Parties under Article XI of CITES.
(2) Subsection (1) applies to a resolution, whether made before or after the commencement of this section.
Division 3—Exports of regulated native specimens
Subdivision A—Regulated native specimens
303DA Regulated native specimens
For the purposes of this Act, a regulated native specimen is a specimen that:
(a) is, or is derived from, a native animal or a native plant; and
(b) is not included in the list referred to in section 303DB.
303DB Listing of exempt native specimens
(1) The Minister must, by legislative instrument, establish a list of exempt native specimens.
(2) For each specimen included in the list, there is to be a notation that states whether the inclusion of the specimen in the list is subject to restrictions or conditions and, if so, the nature of those restrictions or conditions.
(3) A restriction or condition mentioned in subsection (2) may:
(a) consist of a quantitative limit in relation to the export of the specimen; or
(b) relate to the circumstances of the export of the specimen; or
(c) relate to the source of the specimen; or
(d) relate to the circumstances in which the specimen was taken or, if the specimen is derived from another specimen that was taken, the circumstances in which the other specimen was taken; or
(e) relate to an expiry date for the inclusion of the specimen on the list.
(4) Subsection (3) does not limit subsection (2).
(5) The list, as first established, must:
(a) contain the specimens referred to in Part I of Schedule 4 to the Wildlife Protection (Regulation of Exports and Imports) Act 1982, as in force immediately before the commencement of this section; and
(b) reflect the restrictions and conditions that are applicable to the inclusion of those specimens in that Part of that Schedule.
(6) The list must not include a specimen that belongs to an eligible listed threatened species unless:
(a) the Minister is satisfied that the export of the specimen will not:
(i) adversely affect the conservation status of the species concerned; and
(ii) be inconsistent with any recovery plan or wildlife conservation plan for that species; and
(aa) the Minister has had regard to any approved conservation advice for that species; and
(b) the inclusion of the specimen on the list is subject to a restriction or condition to the effect that:
(i) the specimen must be, or be derived from, a plant that was artificially propagated (section 527C); and
(ii) the specimen was propagated in an operation that has derived its stock in a way that did not breach a law of the Commonwealth, a State or a Territory.
303DC Minister may amend list
(1) The Minister may, by legislative instrument, amend the list referred to in section 303DB by:
(a) doing any of the following:
(i) including items in the list;
(ii) deleting items from the list;
(iii) imposing a condition or restriction to which the inclusion of a specimen in the list is subject;
(iv) varying or revoking a condition or restriction to which the inclusion of a specimen in the list is subject; or
(b) correcting an inaccuracy or updating the name of a species.
(1A) In deciding whether to amend the list referred to in section 303DB to include a specimen derived from a commercial fishery, the Minister must rely primarily on the outcomes of any assessment in relation to the fishery carried out for the purposes of Division 1 or 2 of Part 10.
(1B) Subsection (1A) does not apply to an amendment mentioned in paragraph (1)(b).
(1C) Subsection (1A) does not limit the matters that may be taken into account in deciding whether to amend the list referred to in section 303DB to include a specimen derived from a commercial fishery.
(1D) In this section:
fishery has the same meaning as in section 303FN.
(2) For the purposes of paragraph (1)(b), correcting an inaccuracy includes ensuring that the list complies with subsection 303DB(5).
(3) Before amending the list referred to in section 303DB as mentioned in paragraph (1)(a) of this section, the Minister:
(a) must consult such other Minister or Ministers as the Minister considers appropriate; and
(b) must consult such other Minister or Ministers of each State and self‑governing Territory as the Minister considers appropriate; and
(c) may consult such other persons and organisations as the Minister considers appropriate.
(4) Section 42 (disallowance) of the Legislation Act 2003 does not apply to a legislative instrument to which paragraph (1)(b) of this section applies.
Subdivision B—Offence and permit system
303DD Exports of regulated native specimens
(1) A person commits an offence if:
(a) the person exports a specimen; and
(b) the specimen is a regulated native specimen.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
Exemption—permit
(2) Subsection (1) does not apply if the specimen is exported in accordance with a permit that was issued under section 303CG, 303DG, 303GB or 303GC and is in force.
Exemption—accredited wildlife trade management plan
(3) Subsection (1) does not apply if:
(a) the export of the specimen would be an export in accordance with an accredited wildlife trade management plan (section 303FP); and
(b) the specimen is not a live native mammal, a live native reptile, a live native amphibian or a live native bird; and
(ba) either:
(i) the specimen is not a live terrestrial invertebrate, or a live freshwater fish, prescribed by the regulations for the purposes of this subparagraph; or
(ii) the export is an export from an approved aquaculture program in accordance with section 303FM; and
(c) the specimen is not a CITES specimen; and
(d) the specimen does not belong to an eligible listed threatened species.
Exemption—exchange of scientific specimens
(4) Subsection (1) does not apply if the export of the specimen is an export that, in accordance with a determination made by the Minister under the regulations, is taken to be part of a registered, non‑commercial exchange of scientific specimens between scientific organisations.
Note: The defendant bears an evidential burden in relation to the matters in subsections (2), (3) and (4) (see subsection 13.3(3) of the Criminal Code).
303DE Applications for permits
(1) A person may, in accordance with the regulations, apply to the Minister for a permit to be issued under section 303DG.
(2) The application must be accompanied by the fee (if any) prescribed by the regulations.
303DF Further information
(1) The Minister may, within 40 business days after the application is made, request the applicant to give the Minister, within the period specified in the request, further information for the purpose of enabling the Minister to deal with the application.
(2) The Minister may refuse to consider the application until the applicant gives the Minister the information in accordance with the request.
303DG Minister may issue permits
(1) The Minister may, on application made by a person under section 303DE, issue a permit to the person. This subsection has effect subject to subsections (3) to (4A).
(2) A permit authorises its holder to take the action or actions specified in the permit, in the permitted period, without breaching section 303DD.
(2A) For the purpose of subsection (2), the permitted period is the period specified in the permit as the period during which the action or actions specified in the permit may be taken. The period so specified must start on the date of issue of the permit and end not later than 3 years after that date.
(3) The Minister must not issue a permit authorising the export of a live native mammal, a live native reptile, a live native amphibian or a live native bird unless the Minister is satisfied that the proposed export would be an eligible non‑commercial purpose export (within the meaning of section 303FA).
(3A) The Minister must not issue a permit authorising the export of a live terrestrial invertebrate, or a live freshwater fish, prescribed by the regulations for the purposes of paragraph 303DD(3)(ba) unless the Minister is satisfied that:
(a) the proposed export would be an eligible non‑commercial purpose export (within the meaning of section 303FA); or
(b) the proposed export would be an export from an approved aquaculture program in accordance with section 303FM.
(4) The Minister must not issue a permit unless the Minister is satisfied that:
(a) the export of the specimen will not be detrimental to, or contribute to trade which is detrimental to:
(i) the survival of any taxon to which the specimen belongs; or
(ii) any relevant ecosystem (for example, detriment to habitat or biodiversity); and
(b) if the specimen is a live specimen that belongs to a taxon specified in the regulations—the conditions that, under the regulations, are applicable to the welfare of the specimen have been, or are likely to be, complied with; and
(c) the specimen was not obtained in contravention of, and the export would not involve the contravention of, any law of the Commonwealth, of a State or of a Territory; and
(d) if the specimen belongs to an eligible listed threatened species—the export of the specimen is covered by subsection (7) or (8), and the export would not be inconsistent with any recovery plan for that species; and
(e) if the specimen does not belong to an eligible listed threatened species:
(i) the proposed export would be an eligible non‑commercial purpose export (within the meaning of section 303FA); or
(ii) the proposed export would be an eligible commercial purpose export (within the meaning of section 303FJ).
(4A) If the Minister is considering whether to issue a permit relating to a specimen that belongs to a particular eligible listed threatened species, the Minister must, in deciding whether to issue the permit, have regard to any approved conservation advice for the species.
(5) Subsection (4) does not apply in relation to a permit to export from Australia or an external Territory a specimen (other than a live animal) that has been imported into Australia or that Territory, as the case may be.
(6) The Minister must not issue a permit to export from Australia or an external Territory a specimen (other than a live animal) that has been imported into Australia or that Territory, as the case may be, unless the Minister is satisfied that the specimen was lawfully imported (section 303GY).
Eligible listed threatened species
(7) This subsection covers the export of a specimen if:
(a) the export of the specimen would be an export from an approved captive breeding program in accordance with section 303FK; or
(b) the export of the specimen would be an export from an approved artificial propagation program in accordance with section 303FL; or
(ba) the export of the specimen would be an export from an approved cultivation program in accordance with section 303FLA; or
(c) the export of the specimen would be an export from an approved aquaculture program in accordance with section 303FM;
and the export of the specimen will not adversely affect the conservation status of the species concerned.
Note: See also subsection (3).
(8) This subsection covers the export of a specimen if:
(a) the export of the specimen would be an export for the purposes of research in accordance with section 303FC; or
(b) the export of the specimen would be an export for the purposes of education in accordance with section 303FD; or
(c) the export of the specimen would be an export for the purposes of exhibition in accordance with section 303FE; or
(d) the export of the specimen would be an export for the purposes of conservation breeding or propagation in accordance with section 303FF.
Section has effect subject to section 303GA
(9) This section has effect subject to section 303GA.
Note: Section 303GA deals with controlled actions, and actions for which a non‑Part 13A permit is required.
303DH Time limit for making permit decision
If an application for a permit is made under section 303DE, the Minister must either issue, or refuse to issue, the permit within 40 business days after whichever is the latest of the following days:
(a) the day on which the application is made;
(b) if a request for further information in relation to the application is made under section 303DF—the day on which the applicant complies with the request;
(c) if section 303GA applies to the application—the day that is applicable under subsection 303GA(2).
303DI Duration of permits
A permit under section 303DG:
(a) comes into force on the date on which it is issued; and
(b) unless it is sooner cancelled, remains in force until all of the following periods have ended:
(i) the permitted period (within the meaning of subsection 303DG(2A));
(ii) each period for which one or more conditions of the permit are expressed to apply.
303DJ Register of applications and decisions
(1) As soon as practicable after the commencement of this section, the Minister must cause to be established a register that sets out:
(a) prescribed particulars of applications made under section 303DE after the establishment of the register; and
(b) prescribed particulars of decisions made by the Minister under section 303DG after the establishment of the register.
(2) The register may be maintained by electronic means.
(3) The register is to be made available for inspection on the internet.
Division 4—Imports of regulated live specimens
Subdivision A—Regulated live specimens
303EA Regulated live specimens
For the purposes of this Act, a regulated live specimen is a specimen that:
(a) is a live animal or a live plant; and
(b) is not included in Part 1 of the list referred to in section 303EB.
303EB Listing of specimens suitable for live import
(1) The Minister must, by legislative instrument, establish a list of specimens that are taken to be suitable for live import.
(2) The list is to be divided into 2 Parts, as follows:
(a) Part 1 is to be a list of unregulated specimens;
(b) Part 2 is to be a list of allowable regulated specimens.
(3) The list may only contain specimens that are live animals or live plants.
(4) Part 1 of the list, as first established, must contain only the specimens referred to in Part I of Schedule 5 or Part I of Schedule 6 to the Wildlife Protection (Regulation of Exports and Imports) Act 1982, as in force immediately before the commencement of this section.
(5) Part 1 of the list must not contain a CITES specimen.
(6) Part 1 of the list is taken to include a live plant the introduction of which into Australia is in accordance with the Quarantine Act 1908.
(7) For each specimen included in Part 2 of the list (except a specimen referred to in subsection (11A)), there is to be a notation that states whether the inclusion of the specimen in that part of the list is subject to restrictions or conditions and, if so, the nature of those restrictions or conditions.
(8) A restriction or condition referred to in subsection (7) may:
(a) consist of a quantitative limit in relation to the import of the specimen; or
(b) relate to the circumstances of the import of the specimen; or
(c) relate to the source of the specimen; or
(d) relate to the circumstances in which the specimen was taken.
(9) Subsection (8) does not limit subsection (7).
(10) Part 2 of the list, as first established, must contain only specimens that were, at any time before the commencement of this section, the subject of an import permit granted under the Wildlife Protection (Regulation of Exports and Imports) Act 1982.
(11) For the purposes of subsection (10), a specimen is taken to have been the subject of an import permit if, and only if, the specimen was identified in the permit at the species or sub‑species level.
(11A) Part 2 of the list is taken to include a live plant that:
(a) is a CITES specimen; and
(b) is introduced into Australia in accordance with the Quarantine Act 1908.
303EC Minister may amend list
(1) The Minister may, by legislative instrument, amend the list referred to in section 303EB by:
(a) doing any of the following:
(i) including items in a particular part of the list;
(ii) deleting items from a particular part of the list;
(iii) imposing a restriction or condition to which the inclusion of a specimen in Part 2 of the list is subject;
(iv) varying or revoking a restriction or condition to which the inclusion of a specimen in Part 2 of the list is subject; or
(b) correcting an inaccuracy or updating the name of a species.
(2) For the purposes of paragraph (1)(b), correcting an inaccuracy includes ensuring that the list complies with subsections 303EB(4) and (10).
(3) Before amending the list referred to in section 303EB as mentioned in paragraph (1)(a) of this section, the Minister:
(a) must consult such other Minister or Ministers as the Minister considers appropriate; and
(b) must consult such other Minister or Ministers of each State and self‑governing Territory as the Minister considers appropriate; and
(c) may consult such other persons and organisations as the Minister considers appropriate.
(5) The Minister must not amend the list referred to in section 303EB by including an item in the list, unless:
(a) the amendment is made following consideration of a relevant report under section 303ED or 303EE; or
(b) the amendment is made following consideration of a relevant review under section 303EJ.
(6) Section 42 (disallowance) of the Legislation Act 2003 does not apply to a legislative instrument to which paragraph (1)(b) of this section applies.
Subdivision B—Assessments relating to the amendment of the list of specimens suitable for import
303ED Amendment of list on the Minister’s own initiative
(1) The Minister may formulate a proposal for the list referred to in section 303EB to be amended by including an item.
(2) Unless subsection (3) applies, the Minister must:
(a) cause to be conducted an assessment of the potential impacts on the environment of the proposed amendment; and
(b) cause to be prepared a report on those impacts.
The report must be prepared in accordance with section 303EF and be given to the Minister.
(3) This subsection applies if:
(a) Biosecurity Australia has prepared a report (whether before or after the amendment was proposed) on the potential impacts on the environment if the specimen were to be imported; and
(b) the report is of a type specified in regulations made for the purposes of this paragraph; and
(c) the report is given to the Minister; and
(d) the Minister determines that subsection (2) does not apply to the proposed amendment.
(4) A determination made under paragraph (3)(d) is not a legislative instrument.
303EE Application for amendment of list
(1) A person may, in accordance with the regulations, apply to the Minister for the list referred to in section 303EB to be amended by including an item.
(2) The Minister must not consider the application unless either subsection (3) or (4) applies to the proposed amendment.
(3) This subsection applies to the proposed amendment if:
(a) subsection (4) does not apply to the proposed amendment; and
(b) an assessment is made of the potential impacts on the environment of the proposed amendment; and
(c) a report on those impacts is given to the Minister.
The report must be prepared in accordance with section 303EF.
(4) This subsection applies to the proposed amendment if:
(a) Biosecurity Australia has prepared a report (whether before or after the amendment was proposed) on the potential impacts on the environment if the specimen were to be imported; and
(b) the report is of a type specified in regulations made for the purposes of this paragraph; and
(c) the report has been given to the Minister; and
(d) the Minister determines that subsection (3) does not apply to the proposed amendment.
(5) A determination made under paragraph (4)(d) is not a legislative instrument.
303EF Requirement for assessments
(1) The assessment under subsection 303ED(2) or 303EE(3) must provide for:
(a) if the Minister determines that this paragraph applies—the preparation of terms of reference for a report on the relevant impacts; or
(b) if the Minister determines that this paragraph applies—all of the following:
(i) the preparation of draft terms of reference for a report on the relevant impacts;
(ii) the publication of the draft terms of reference for public comment for a period of at least 10 business days that is specified by the Minister;
(iii) the finalisation of the terms of reference, to the Minister’s satisfaction, taking into account the comments (if any) received on the draft terms of reference.
(2) The assessment must also provide for:
(a) the preparation of a draft of a report on the relevant impacts; and
(b) the publication of the draft report for public comment for a period of at least 20 business days that is specified by the Minister; and
(c) the finalisation of the report, taking into account the comments (if any) received after publication of the draft report; and
(d) any other matter prescribed by the regulations.
(3) A determination made under paragraph (1)(a) or (b) is not a legislative instrument.
303EG Timing of decision about proposed amendment
(1) If the Minister receives a report under section 303ED or 303EE in relation to a proposed amendment, the Minister must decide whether or not to make the proposed amendment within:
(a) 30 business days; or
(b) if the Minister, by writing, specifies a longer period—that longer period;
after the first business day after the day on which the report was received.
Notice of extension of time
(2) If the Minister specifies a longer period for the purposes of subsection (1), he or she must:
(a) if section 303EE applies—give a copy of the specification to the applicant; and
(b) publish the specification in accordance with the regulations.
303EH Requesting further information
(1) If:
(a) section 303EE applies; and
(b) the Minister believes on reasonable grounds that he or she does not have enough information to make an informed decision whether or not to make the proposed amendment;
the Minister may request the applicant to give the Minister, within the period specified in the request, information relevant to making the decision.
(2) The Minister may refuse to consider the application until the applicant gives the Minister the information in accordance with the request.
303EI Notice of refusal of proposed amendment
If section 303EE applies and the Minister refuses to make the proposed amendment, the Minister must give the applicant notice of the refusal.
303EJ Reviews
If, following consideration of a relevant report under section 303ED or 303EE, the Minister has made a decision to include, or refusing to include, an item in the list referred to in section 303EB, the Minister may review that decision at any time during the period of 5 years after the decision was made.
Subdivision C—Offence and permit system
303EK Imports of regulated live specimens
(1) A person commits an offence if:
(a) the person imports a specimen; and
(b) the specimen is a regulated live specimen.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
Exemption—permit
(2) Subsection (1) does not apply if:
(a) the specimen is included in Part 2 of the list referred to in section 303EB; and
(b) the specimen is imported in accordance with a permit that was issued under section 303CG, 303EN, 303GB or 303GC and is in force.
Exemption—testing permit
(3) Subsection (1) does not apply if the specimen is imported in accordance with a permit that was issued under section 303GD and is in force.
Note: The defendant bears an evidential burden in relation to the matters in subsections (2) and (3) (see subsection 13.3(3) of the Criminal Code).
303EL Applications for permits
(1) A person may, in accordance with the regulations, apply to the Minister for a permit to be issued under section 303EN.
(2) The application must be accompanied by the fee (if any) prescribed by the regulations.
303EM Further information
(1) The Minister may, within 40 business days after the application is made, request the applicant to give the Minister, within the period specified in the request, further information for the purpose of enabling the Minister to deal with the application.
(2) The Minister may refuse to consider the application until the applicant gives the Minister the information in accordance with the request.
303EN Minister may issue permits
(1) The Minister may, on application made by a person under section 303EL, issue a permit to the person. This subsection has effect subject to subsection (3).
(2) A permit authorises its holder to take the action or actions specified in the permit, in the permitted period, without breaching section 303EK.
(2A) For the purpose of subsection (2), the permitted period is the period specified in the permit as the period during which the action or actions specified in the permit may be taken. The period so specified must start on the date of issue of the permit and end not later than 3 years after that date.
(3) The Minister must not issue a permit unless the Minister is satisfied that:
(a) the proposed import would not be:
(i) likely to threaten the conservation status of a species or ecological community; or
(ii) likely to threaten biodiversity; and
(b) the specimen is included in Part 2 of the list referred to in section 303EB; and
(c) if any restriction or condition is applicable to the specimen under a notation in Part 2 of the list referred to in section 303EB—that restriction or condition has been, or is likely to be, complied with; and
(d) the specimen was not obtained in contravention of, and the import would not involve the contravention of, any law of the Commonwealth, of a State or of a Territory; and
(e) if the specimen belongs to a taxon specified in the regulations—the conditions that, under the regulations, are applicable to the welfare of the specimen have been, or are likely to be, complied with.
(4) This section has effect subject to section 303GA.
Note: Section 303GA deals with controlled actions, and actions for which a non‑Part 13A permit is required.
303EO Time limit for making permit decision
If an application for a permit is made under section 303EL, the Minister must either issue, or refuse to issue, the permit within 40 business days after whichever is the latest of the following days:
(a) the day on which the application is made;
(b) if a request for further information in relation to the application is made under section 303EM—the day on which the applicant complies with the request;
(c) if section 303GA applies to the application—the day that is applicable under subsection 303GA(2).
303EP Duration of permits
A permit under section 303EN:
(a) comes into force on the date on which it is issued; and
(b) unless it is sooner cancelled, remains in force until all of the following periods have ended:
(i) the permitted period (within the meaning of subsection 303EN(2A));
(ii) each period for which one or more conditions of the permit are expressed to apply.
303EQ Register of applications and decisions
(1) As soon as practicable after the commencement of this section, the Minister must cause to be established a register that sets out:
(a) prescribed particulars of applications made under section 303EL after the establishment of the register; and
(b) prescribed particulars of decisions made by the Minister under section 303EN after the establishment of the register.
(2) The register may be maintained by electronic means.
(3) The register is to be made available for inspection on the internet.
Subdivision D—Marking of certain specimens for the purposes of identification
303ER Object
The object of this Subdivision is:
(a) to comply with Australia’s obligations under:
(i) the Biodiversity Convention; and
(ii) CITES; and
(b) otherwise to further the protection and conservation of the wild fauna and flora of Australia and of other countries;
by requiring the marking of certain live specimens for the purposes of identification.
Note: See Article 8 of the Biodiversity Convention.
303ES Specimens to which Subdivision applies
This Subdivision applies to a regulated live specimen if:
(a) the specimen has been imported in accordance with:
(i) a permit under this Division; or
(ii) a permit or authority under the Wildlife Protection (Regulation of Exports and Imports) Act 1982; or
(b) the specimen is the progeny of a specimen referred to in paragraph (a).
303ET Extended meaning of marking
A reference in this Subdivision to the marking of a specimen includes a reference to the following:
(a) in the case of a live plant:
(i) the marking or labelling of a container in which the plant is kept or in which the plant is growing; and
(ii) the placement of a label or tag on the plant;
(b) in the case of a live animal:
(i) the implantation of a scannable device in the animal; and
(ii) the placement of a band on any part of the animal; and
(iii) the placement (whether by piercing or otherwise) of a tag or ring on any part of the animal; and
(iv) the marking or labelling of a container within which the animal is kept.
303EU Secretary may make determinations about marking of specimens
Determinations
(1) The Secretary may, by legislative instrument, make a determination about the marking of specified kinds of specimens for the purposes of identification.
Matters that may be covered by determination
(2) Without limiting subsection (1), a determination by the Secretary under that subsection may:
(a) require specimens to be marked; and
(b) deal with the manner in which specimens are to be marked; and
(c) deal with the times at which marking is to occur; and
(d) deal with the removal or destruction of marks; and
(e) deal with the replacement or modification of marks; and
(f) require that marking be carried out by persons approved in writing by the Secretary under that determination; and
(g) deal with the circumstances in which marks may be, or are required to be, rendered useless; and
(h) in the case of a mark that consists of a label, tag, band or device:
(i) set out specifications relating to the label, tag, band or device; and
(ii) require that any destruction or removal of the label, tag, band or device be carried out by a person approved in writing by the Secretary under that determination.
Marking of animals not to involve undue pain etc.
(3) In the case of a live animal, a determination under subsection (1) must not require marking that involves:
(a) undue pain or distress to the animal; or
(b) undue risk of the death of the animal.
Marking of plants not to involve undue risk of death
(4) In the case of a live plant, a determination under subsection (1) must not require marking that involves undue risk of the death of the plant.
303EV Offences
Owner to ensure specimens marked etc.
(1) If a determination under section 303EU applies to a specimen, the owner of the specimen must comply with the determination.
Person not to remove or interfere with mark etc.
(2) A person contravenes this subsection if:
(a) a specimen is marked in accordance with a determination under section 303EU; and
(b) the person engages in conduct; and
(c) the conduct causes the removal of the mark or interference with the mark, or renders the mark unusable.
Offence
(3) A person who contravenes subsection (1) or (2) commits an offence punishable on conviction by a fine not exceeding 120 penalty units.
(4) Subsection (2) does not apply if the person engages in the conduct in accordance with a determination under section 303EU.
Note: The defendant bears an evidential burden in relation to the matter in subsection (4). See subsection 13.3(3) of the Criminal Code.
(5) In subsections (1) and (2), strict liability applies to the circumstance that a determination was made under section 303EU.
Note: For strict liability, see section 6.1 of the Criminal Code.
303EW This Subdivision does not limit conditions of permits
This Subdivision does not limit section 303GE (which deals with conditions of permits).
Division 5—Concepts relating to permit criteria
Subdivision A—Non‑commercial purpose exports and imports
303FA Eligible non‑commercial purpose exports
For the purposes of this Part, the export of a specimen is an eligible non‑commercial purpose export if, and only if:
(a) the export of the specimen would be an export for the purposes of research in accordance with section 303FC; or
(b) the export of the specimen would be an export for the purposes of education in accordance with section 303FD; or
(c) the export of the specimen would be an export for the purposes of exhibition in accordance with section 303FE; or
(d) the export of the specimen would be an export for the purposes of conservation breeding or propagation in accordance with section 303FF; or
(e) the export of the specimen would be an export of a household pet in accordance with section 303FG; or
(f) the export of the specimen would be an export of a personal item in accordance with section 303FH; or
(g) the export of a specimen would be an export for the purposes of a travelling exhibition in accordance with section 303FI.
303FB Eligible non‑commercial purpose imports
For the purposes of this Part, the import of a specimen is an eligible non‑commercial purpose import if, and only if:
(a) the import of the specimen would be an import for the purposes of research in accordance with section 303FC; or
(b) the import of the specimen would be an import for the purposes of education in accordance with section 303FD; or
(c) the import of the specimen would be an import for the purposes of exhibition in accordance with section 303FE; or
(d) the import of the specimen would be an import for the purposes of conservation breeding or propagation in accordance with section 303FF; or
(e) the import of the specimen would be an import of a household pet in accordance with section 303FG; or
(f) the import of the specimen would be an import of a personal item in accordance with section 303FH; or
(g) the import of a specimen would be an import for the purposes of a travelling exhibition in accordance with section 303FI.
303FC Export or import for the purposes of research
(1) The export of a specimen is an export for the purposes of research in accordance with this section if:
(a) the specimen will be used for the purpose of scientific research; and
(b) the objects of the research are covered by any or all of the following subparagraphs:
(i) the acquisition of a better understanding, and/or increased knowledge, of a taxon to which the specimen belongs;
(ii) the conservation of biodiversity;
(iii) the maintenance and/or improvement of human health; and
(c) the export is not primarily for commercial purposes; and
(d) such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.
(2) The import of a specimen is an import for the purposes of research in accordance with this section if:
(a) the specimen will be used for the purpose of scientific research; and
(b) the objects of the research are covered by any or all of the following subparagraphs:
(i) the acquisition of a better understanding, and/or increased knowledge, of a taxon to which the specimen belongs;
(ii) the conservation of biodiversity;
(iii) the maintenance and/or improvement of human health; and
(c) the import is not primarily for commercial purposes; and
(d) such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.
303FD Export or import for the purposes of education
(1) The export of a specimen is an export for the purposes of education in accordance with this section if:
(a) the specimen will be used for the purpose of education or training; and
(b) the export is not primarily for commercial purposes; and
(c) such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.
(2) The import of a specimen is an import for the purposes of education in accordance with this section if:
(a) the specimen will be used for the purpose of education or training; and
(b) the import is not primarily for commercial purposes; and
(c) such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.
303FE Export or import for the purposes of exhibition
(1) The export of a specimen is an export for the purposes of exhibition in accordance with this section if:
(a) the specimen will be used for the purpose of an exhibition; and
(b) the export is not primarily for commercial purposes; and
(c) such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.
(2) The import of a specimen is an import for the purposes of exhibition in accordance with this section if:
(a) the specimen will be used for the purpose of an exhibition; and
(b) the import is not primarily for commercial purposes; and
(c) such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.
(3) In this section:
exhibition includes a zoo or menagerie.
303FF Export or import for conservation breeding or propagation
(1) The export of a specimen is an export for the purposes of conservation breeding or propagation in accordance with this section if:
(a) the specimen is a live animal or a live plant; and
(b) the specimen is for use in a program the object of which is the establishment and/or maintenance of a breeding population; and
(c) the program is a program that, under the regulations, is taken to be an approved co‑operative conservation program; and
(d) the export is not primarily for commercial purposes; and
(e) such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.
(2) The import of a specimen is an import for the purposes of conservation breeding or propagation in accordance with this section if:
(a) the specimen is a live animal or a live plant; and
(b) the specimen is for use in a program the object of which is the establishment and/or maintenance of a breeding population; and
(c) the program is a program that, under the regulations, is taken to be an approved co‑operative conservation program; and
(d) the import is not primarily for commercial purposes; and
(e) such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.
303FG Export or import of household pets
Export of live native animals
(1) The export of a live native animal (other than a CITES specimen) is an export of a household pet in accordance with this section if:
(a) the animal is included in the list referred to in subsection (4); and
(b) the export is not primarily for commercial purposes; and
(c) such other conditions as are specified in the regulations have been, or are likely to be, satisfied.
Export of live CITES specimens
(2) The export of a CITES specimen is an export of a household pet in accordance with this section if:
(a) the specimen is a live animal; and
(b) if the animal is a native animal—the animal is included in the list referred to in subsection (4); and
(c) the export is not primarily for commercial purposes; and
(d) such other conditions as are specified in the regulations have been, or are likely to be, satisfied.
Import of live animals
(3) The import of a live animal is an import of a household pet in accordance with this section if:
(a) the conditions specified in the regulations have been, or are likely to be, satisfied; and
(b) the import is not primarily for commercial purposes; and
(c) the animal is included in Part 2 of the list referred to in section 303EB.
Listing of native household pet animals
(4) The Minister must, by legislative instrument, establish a list of native household pet animals.
(5) The list, as first established, must contain the animals referred to in Schedule 7 to the Wildlife Protection (Regulation of Exports and Imports) Act 1982, as in force immediately before the commencement of this section.
(6) The Minister may, by legislative instrument, amend the list referred to in subsection (4) by:
(a) including or deleting items from the list; or
(b) correcting an inaccuracy or updating the name of a species.
(7) Section 42 (disallowance) of the Legislation Act 2003 does not apply to a legislative instrument to which paragraph (6)(b) of this section applies.
303FH Export or import of personal items
(1) The export of a specimen is an export of a personal item in accordance with this section if:
(a) the specimen is not a live specimen; and
(b) the export is not primarily for commercial purposes; and
(c) the conditions specified in the regulations have been, or are likely to be, satisfied.
(2) The import of a specimen is an import of a personal item in accordance with this section if:
(a) the specimen is not a live specimen; and
(b) the import is not primarily for commercial purposes; and
(c) the conditions specified in the regulations have been, or are likely to be, satisfied.
303FI Export or import for the purposes of a travelling exhibition
(1) The export of a specimen is an export for the purposes of a travelling exhibition in accordance with this section if:
(a) the export is not primarily for commercial purposes; and
(b) the conditions specified in the regulations have been, or are likely to be, satisfied.
(2) The import of a specimen is an import for the purposes of a travelling exhibition in accordance with this section if:
(a) the import is not primarily for commercial purposes; and
(b) the conditions specified in the regulations have been, or are likely to be, satisfied.
Subdivision B—Commercial purpose exports and imports
303FJ Eligible commercial purpose exports
For the purposes of this Part, the export of a specimen is an eligible commercial purpose export if, and only if:
(a) the export of the specimen would be an export from an approved captive breeding program in accordance with section 303FK; or
(b) the export of the specimen would be an export from an approved artificial propagation program in accordance with section 303FL; or
(ba) the export of the specimen would be an export from an approved cultivation program in accordance with section 303FLA; or
(c) the export of the specimen would be an export from an approved aquaculture program in accordance with section 303FM; or
(d) the export of the specimen would be an export in accordance with an approved wildlife trade operation (section 303FN); or
(e) the export of the specimen would be an export in accordance with an approved wildlife trade management plan (section 303FO).
Note: See also subsection 303DD(3), which deals with accredited wildlife trade management plans.
303FK Export or import from an approved captive breeding program
(1) The export of a specimen is an export from an approved captive breeding program in accordance with this section if the specimen was sourced from a program that, under the regulations, is taken to be an approved captive breeding program.
(2) The export of a specimen is an export from an approved CITES‑registered captive breeding program in accordance with this section if the specimen was sourced from a program that, under the regulations, is taken to be an approved CITES‑registered captive breeding program.
(3) The import of a specimen is an import from an approved CITES‑registered captive breeding program in accordance with this section if the specimen was sourced from a program that, under the regulations, is taken to be an approved CITES‑registered captive breeding program.
303FL Export from an approved artificial propagation program
The export of a specimen is an export from an approved artificial propagation program in accordance with this section if the specimen was sourced from a program that, under the regulations, is taken to be an approved artificial propagation program.
303FLA Export from an approved cultivation program
The export of a specimen is an export from an approved cultivation program in accordance with this section if the specimen was sourced from a program that, under the regulations, is taken to be an approved cultivation program.
303FM Export from an approved aquaculture program
The export of a specimen is an export from an approved aquaculture program in accordance with this section if the specimen was sourced from a program that, under the regulations, is taken to be an approved aquaculture program.
303FN Approved wildlife trade operation
(1) The export of a specimen is an export in accordance with an approved wildlife trade operation if the specimen is, or is derived from, a specimen that was taken in accordance with a wildlife trade operation declared by a declaration in force under subsection (2) to be an approved wildlife trade operation.
(2) The Minister may, by instrument published in the Gazette, declare that a specified wildlife trade operation is an approved wildlife trade operation for the purposes of this section.
(3) The Minister must not declare an operation under subsection (2) unless the Minister is satisfied that:
(a) the operation is consistent with the objects of this Part; and
(b) the operation will not be detrimental to:
(i) the survival of a taxon to which the operation relates; or
(ii) the conservation status of a taxon to which the operation relates; and
(ba) the operation will not be likely to threaten any relevant ecosystem including (but not limited to) any habitat or biodiversity; and
(c) if the operation relates to the taking of live specimens that belong to a taxon specified in the regulations—the conditions that, under the regulations, are applicable to the welfare of the specimens are likely to be complied with; and
(d) such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.
(4) In deciding whether to declare an operation under subsection (2), the Minister must have regard to:
(a) the significance of the impact of the operation on an ecosystem (for example, an impact on habitat or biodiversity); and
(b) the effectiveness of the management arrangements for the operation (including monitoring procedures).
(5) In deciding whether to declare an operation under subsection (2), the Minister must have regard to:
(a) whether legislation relating to the protection, conservation or management of the specimens to which the operation relates is in force in the State or Territory concerned; and
(b) whether the legislation applies throughout the State or Territory concerned; and
(c) whether, in the opinion of the Minister, the legislation is effective.
(6) A declaration under subsection (2) ceases to be in force at the beginning of the third anniversary of the day on which the declaration took effect. However, this rule does not apply if a period of less than 3 years is specified in the declaration in accordance with subsection 303FT(4).
(7) If a declaration ceases to be in force, this Act does not prevent the Minister from making a fresh declaration under subsection (2).
(8) A fresh declaration may be made during the 90‑day period before the time when the current declaration ceases to be in force.
(9) A fresh declaration that is made during that 90‑day period takes effect immediately after the end of that period.
(10) For the purposes of this section, an operation is a wildlife trade operation if, and only if, the operation is an operation for the taking of specimens and:
(a) the operation is an operation that, under the regulations, is taken to be a market‑testing operation; or
(b) the operation is an operation that, under the regulations, is taken to be a small‑scale operation; or
(c) the operation is an operation that, under the regulations, is taken to be a developmental operation; or
(d) the operation is a commercial fishery; or
(e) the operation is an operation that, under the regulations, is taken to be a provisional operation; or
(f) the operation is an operation of a kind specified in the regulations.
(10A) In deciding whether to declare that a commercial fishery is an approved wildlife trade operation for the purposes of this section, the Minister must rely primarily on the outcomes of any assessment in relation to the fishery carried out for the purposes of Division 1 or 2 of Part 10.
(10B) Subsection (10A) does not limit the matters that may be taken into account in deciding whether to declare that a fishery is an approved wildlife trade operation for the purposes of this section.
(11) In this section:
fish includes all species of bony fish, sharks, rays, crustaceans, molluscs and other marine organisms, but does not include marine mammals or marine reptiles.
fishery means a class of activities by way of fishing, including activities identified by reference to all or any of the following:
(a) a species or type of fish;
(b) a description of fish by reference to sex or any other characteristic;
(c) an area of waters or of seabed;
(d) a method of fishing;
(e) a class of vessels;
(f) a class of persons;
(g) a purpose of activities.
303FO Approved wildlife trade management plan
(1) The export of a specimen is an export in accordance with an approved wildlife trade management plan if the specimen is, or is derived from, a specimen that was taken in accordance with a plan declared by a declaration in force under subsection (2) to be an approved wildlife trade management plan.
(2) The Minister may, by instrument published in the Gazette, declare that a specified plan is an approved wildlife trade management plan for the purposes of this section.
(3) The Minister must not declare a plan under subsection (2) unless the Minister is satisfied that:
(a) the plan is consistent with the objects of this Part; and
(b) there has been an assessment of the environmental impact of the activities covered by the plan, including (but not limited to) an assessment of:
(i) the status of the species to which the plan relates in the wild; and
(ii) the extent of the habitat of the species to which the plan relates; and
(iii) the threats to the species to which the plan relates; and
(iv) the impacts of the activities covered by the plan on the habitat or relevant ecosystems; and
(c) the plan includes management controls directed towards ensuring that the impacts of the activities covered by the plan on:
(i) a taxon to which the plan relates; and
(ii) any taxa that may be affected by activities covered by the plan; and
(iii) any relevant ecosystem (for example, impacts on habitat or biodiversity);
are ecologically sustainable; and
(d) the activities covered by the plan will not be detrimental to:
(i) the survival of a taxon to which the plan relates; or
(ii) the conservation status of a taxon to which the plan relates; or
(iii) any relevant ecosystem (for example, detriment to habitat or biodiversity); and
(e) the plan includes measures:
(i) to mitigate and/or minimise the environmental impact of the activities covered by the plan; and
(ii) to monitor the environmental impact of the activities covered by the plan; and
(iii) to respond to changes in the environmental impact of the activities covered by the plan; and
(f) if the plan relates to the taking of live specimens that belong to a taxon specified in the regulations—the conditions that, under the regulations, are applicable to the welfare of the specimens are likely to be complied with; and
(g) such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.
(4) In deciding whether to declare a plan under subsection (2), the Minister must have regard to:
(a) whether legislation relating to the protection, conservation or management of the specimens to which the plan relates is in force in the State or Territory concerned; and
(b) whether the legislation applies throughout the State or Territory concerned; and
(c) whether, in the opinion of the Minister, the legislation is effective.
(5) A declaration under subsection (2) ceases to be in force at the beginning of the fifth anniversary of the day on which the declaration took effect. However, this rule does not apply if a period of less than 5 years is specified in the declaration in accordance with subsection 303FT(4).
(6) If a declaration ceases to be in force, this Act does not prevent the Minister from making a fresh declaration under subsection (2).
(7) A fresh declaration may be made during the 90‑day period before the time when the current declaration ceases to be in force.
(8) A fresh declaration that is made during that 90‑day period takes effect immediately after the end of that period.
303FP Accredited wildlife trade management plan
(1) The export of a specimen is an export in accordance with an accredited wildlife trade management plan if the specimen is, or is derived from, a specimen that was taken in accordance with a plan declared by a declaration in force under subsection (2) to be an accredited wildlife trade management plan.
(2) The Minister may, by instrument published in the Gazette, declare that a specified plan is an accredited wildlife trade management plan for the purposes of this section.
(3) The Minister must not declare a plan under subsection (2) unless the Minister is satisfied that:
(a) the plan is in force under a law of the Commonwealth or of a State or Territory; and
(b) the conditions set out in subsection 303FO(3) have been met in relation to the plan; and
(c) the plan imposes limits in relation to the taking of specimens; and
(d) the compliance and enforcement measures relating to the plan are likely to be effective in preventing specimens taken in breach of the plan from being traded or exported; and
(e) the plan provides for the monitoring of:
(i) the taking of specimens under the plan; and
(ii) the export of specimens taken under the plan; and
(iii) the status of the species to which the plan relates in the wild; and
(iv) the impacts of the activities under the plan on the habitat of the species to which the plan relates; and
(f) the plan provides for statistical reports about specimens taken under the plan to be given to the Minister on a regular basis; and
(g) such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.
(4) A declaration under subsection (2) ceases to be in force at the beginning of the fifth anniversary of the day on which the declaration took effect. However, this rule does not apply if a period of less than 5 years is specified in the declaration in accordance with subsection 303FT(4).
(5) If a declaration ceases to be in force, this Act does not prevent the Minister from making a fresh declaration under subsection (2).
(6) A fresh declaration may be made during the 90‑day period before the time when the current declaration ceases to be in force.
(7) A fresh declaration that is made during that 90‑day period takes effect immediately after the end of that period.
(8) The Minister must publish on the internet copies of reports given as mentioned in paragraph (3)(f).
(9) The Minister is not required to comply with subsection (8) to the extent to which compliance could reasonably be expected to:
(a) prejudice substantially the commercial interests of a person; or
(b) be detrimental to:
(i) the survival of a taxon to which the plan relates; or
(ii) the conservation status of a taxon to which the plan relates.
303FQ Consultation with State and Territory agencies
Before making a declaration under section 303FO or 303FP, the Minister must consult a relevant agency of each State and self‑governing Territory affected by the declaration.
303FR Public consultation
(1) Before making a declaration under section 303FN, 303FO or 303FP, the Minister must cause to be published on the internet a notice:
(a) setting out the proposal to make the declaration; and
(b) setting out sufficient information to enable persons and organisations to consider adequately the merits of the proposal; and
(c) inviting persons and organisations to give the Minister, within the period specified in the notice, written comments about the proposal.
(2) A period specified in a notice under subsection (1) must not be shorter than 20 business days after the date on which the notice was published on the internet.
(3) In making a decision about whether to make a declaration under section 303FN, 303FO or 303FP, the Minister must consider any comments about the proposal to make the declaration that were given in response to an invitation under subsection (1).
303FRA Assessments
(1) The regulations may prescribe an assessment process that is to be used for the purposes of sections 303FN, 303FO and 303FP to assess the potential impacts on the environment of:
(a) a wildlife trade operation; or
(b) the activities covered by a plan;
where the operation is, or the activities are, likely to have a significant impact on the environment.
(2) If regulations made for the purposes of subsection (1) apply to a wildlife trade operation or to a plan, the Minister must not declare:
(a) the operation under subsection 303FN(2); or
(b) the plan under subsection 303FO(2) or 303FP(2);
unless the assessment process prescribed by those regulations has been followed in relation to the assessment of the operation or plan, as the case may be.
(3) Without limiting subsection (1), regulations made for the purposes of that subsection may make provision for:
(a) the application of Part 8 (except sections 82, 83 and 84) and the other provisions of this Act (so far as they relate to that Part) in relation to the assessment process, subject to such modifications as are specified in the regulations; and
(b) exemptions from the assessment process.
(4) In this section:
wildlife trade operation has the same meaning as in subsection 303FN(10), but does not include an operation mentioned in paragraph 303FN(10)(d).
303FS Register of declarations
(1) The Minister must cause to be maintained a register that sets out declarations made under section 303FN, 303FO or 303FP.
(2) The register may be maintained by electronic means.
(3) The register is to be made available for inspection on the internet.
303FT Additional provisions relating to declarations
(1) This section applies to a declaration under section 303FN, 303FO or 303FP.
(2) A declaration may be made:
(a) on the Minister’s own initiative; or
(b) on written application being made to the Minister.
(3) The Minister may make a declaration about a plan or operation even though he or she considers that the plan or operation should be the subject of the declaration only to the extent that the plan or operation relates to a particular class of specimens. In such a case:
(a) the instrument of declaration is to specify that class of specimens; and
(b) the plan or operation is covered by the declaration only to the extent that the plan or operation relates to that class of specimens.
(4) The Minister may make a declaration about a plan or operation even though he or she considers that the plan or operation should be the subject of the declaration only:
(a) during a particular period; or
(b) while certain circumstances exist; or
(c) while a certain condition is complied with.
In such a case, the instrument of declaration is to specify the period, circumstances or condition.
(5) If a declaration specifies a particular period as mentioned in subsection (4), the declaration ceases to be in force at the end of that period.
(6) If a declaration specifies circumstances as mentioned in subsection (4), the Minister must, by instrument published in the Gazette, revoke the declaration if he or she is satisfied that those circumstances have ceased to exist.
(7) The Minister may, by instrument published in the Gazette, vary a declaration by:
(a) specifying one or more conditions (or further conditions) to which the declaration is subject; or
(b) revoking or varying a condition:
(i) specified in the instrument of declaration; or
(ii) specified under paragraph (a).
(8) A condition may relate to reporting or monitoring.
(9) The Minister must, by instrument published in the Gazette, revoke a declaration if he or she is satisfied that a condition of the declaration has been contravened.
(10) The Minister may, by instrument published in the Gazette, revoke a declaration at any time.
(11) A copy of an instrument under section 303FN, 303FO or 303FP or this section is to be made available for inspection on the internet.
303FU Approved commercial import program
The import of a specimen is an import from an approved commercial import program in accordance with this section if the specimen is sourced from a program that, under the regulations, is taken to be an approved commercial import program.
Division 6—Miscellaneous
303GA Permit decision—controlled action, and action for which a non‑Part 13A permit is required
(1) This section applies if:
(a) an application is made under section 303CE, 303DE or 303EL for a permit (the first permit) to authorise the taking of an action (the proposed action); and
(b) the Minister considers that:
(i) the proposed action may be or is a controlled action; or
(ii) the proposed action is related to an action (the related action) that may be or is a controlled action; or
(iii) the proposed action is an action for which a non‑Part 13A permit is required; or
(iv) the proposed action is related to an action (the related action) that is an action for which a non‑Part 13A permit is required.
Deferral of decision
(2) The Minister must neither issue, nor refuse to issue, the first permit before whichever is the latest of the following days:
(a) if subparagraph (1)(b)(i) applies—the day on which the Minister makes a decision under section 75 about whether the proposed action is a controlled action;
(b) if subparagraph (1)(b)(i) applies and the Minister makes a decision under section 75 that the proposed action is a controlled action—the day on which the Minister makes a decision under section 133 approving, or refusing to approve, the taking of the controlled action;
(c) if subparagraph (1)(b)(ii) applies—the day on which the Minister makes a decision under section 75 about whether the related action is a controlled action;
(d) if subparagraph (1)(b)(ii) applies and the Minister makes a decision under section 75 that the related action is a controlled action—the day on which the Minister makes a decision under section 133 approving, or refusing to approve, the taking of the controlled action;
(e) if subparagraph (1)(b)(iii) applies—the day on which a decision is made to issue, or to refuse to issue, the non‑Part 13A permit referred to in that subparagraph;
(f) if subparagraph (1)(b)(iv) applies—the day on which a decision is made to issue, or to refuse to issue, the non‑Part 13A permit referred to in that subparagraph.
Refusal of permit
(3) The Minister must not issue the first permit if:
(a) subparagraph (1)(b)(i) applies; and
(b) the Minister makes a decision under section 75 that the proposed action is a controlled action; and
(c) the Minister makes a decision under section 133 refusing to approve the taking of the controlled action.
(4) The Minister must not issue the first permit if:
(a) subparagraph (1)(b)(ii) applies; and
(b) the Minister makes a decision under section 75 that the related action is a controlled action; and
(c) the Minister makes a decision under section 133 refusing to approve the taking of the controlled action.
(5) The Minister must not issue the first permit if:
(a) subparagraph (1)(b)(iii) applies; and
(b) a decision is made to refuse to issue the non‑Part 13A permit referred to in that subparagraph.
(6) The Minister must not issue the first permit if:
(a) subparagraph (1)(b)(iv) applies; and
(b) a decision is made to refuse to issue the non‑Part 13A permit referred to in that subparagraph.
Action for which a non‑Part 13A permit is required
(7) For the purposes of this section, an action that a person proposes to take is an action for which a non‑Part 13A permit is required if the taking of the action by the person without a non‑Part 13A permit would be prohibited by this Act or the regulations if it were assumed that this Part had not been enacted.
(8) For the purposes of this section, a non‑Part 13A permit is a permit issued under this Act (other than this Part) or the regulations.
Related action
(9) For the purposes of this section, if a specimen was taken, the action of exporting or importing the specimen is related to:
(a) that taking; and
(b) any action that affected the specimen after that taking and before that export or import.
(10) For the purposes of this section, if a specimen is derived from a specimen that was taken, the action of exporting or importing the first‑mentioned specimen is related to:
(a) that taking; and
(b) any action that affected the first‑mentioned specimen, or either of those specimens, after that taking and before that export or import.
303GB Exceptional circumstances permit
(1) If:
(a) the Minister is considering an application by a person for a permit to be issued under section 303CG, 303DG or 303EN in relation to a specimen; and
(b) under this Part, the Minister is precluded from issuing that permit unless the Minister is satisfied in relation to a matter; and
(c) even though the Minister is not satisfied in relation to that matter, the Minister is satisfied that:
(i) the export or import of the specimen, as the case may be, would not be contrary to the objects of this Part; and
(ii) exceptional circumstances exist that justify the proposed export or import of the specimen; and
(iii) the export or import of the specimen, as the case may be, would not adversely affect biodiversity;
the Minister may issue a permit to the person.
(1A) The Minister must not issue a permit under this section unless the grant of that permit would not be contrary to CITES.
(2) A permit under this section authorises the holder of the permit to take the action or actions specified in the permit, in the permitted period, without breaching section 303CC, 303CD, 303DD or 303EK.
(2A) For the purpose of subsection (2), the permitted period is the period specified in the permit as the period during which the action or actions specified in the permit may be taken. The period so specified must start on the date of issue of the permit and end not later than:
(a) if the permit relates to a CITES specimen—6 months after that date; or
(b) if the permit relates to a specimen other than a CITES specimen—12 months after that date.
Duration of permit
(3) A permit under this section:
(a) comes into force on the date on which it is issued; and
(b) unless it is sooner cancelled, remains in force until all of the following periods have ended:
(i) the permitted period (within the meaning of subsection (2A));
(ii) each period for which one or more conditions of the permit are expressed to apply.
Further information
(5) The Minister may, within 40 business days after an application is made as mentioned in subsection (1), request the applicant to give the Minister, within the period specified in the request, further information for the purpose of enabling the Minister to deal with the application.
(6) The Minister may refuse to consider the application until the applicant gives the Minister the information in accordance with the request.
Public consultation
(7) Before issuing a permit under this section, the Minister must cause to be published on the internet a notice:
(a) setting out the proposal to issue the permit; and
(b) setting out sufficient information to enable persons and organisations to consider adequately the merits of the proposal; and
(c) inviting persons and organisations to give the Minister, within the period specified in the notice, written comments about the proposal.
(8) A period specified in a notice under subsection (7) must not be shorter than 5 business days after the date on which the notice was published on the internet.
(9) In making a decision under subsection (1) about whether to issue a permit, the Minister must consider any comments about the proposal to issue the permit that were given in response to an invitation under subsection (7).
303GC Permit authorising the Secretary to export or import specimens
(1) The Secretary may apply to the Minister for a permit to be issued under subsection (2).
(2) The Minister may, on application made by the Secretary under subsection (1), issue a permit to the Secretary. This subsection has effect subject to subsections (4) and (5).
(3) A permit under subsection (2) authorises the Secretary to take the action or actions specified in the permit, in the permitted period, without breaching section 303CC, 303CD, 303DD or 303EK.
(3A) For the purpose of subsection (3), the permitted period is the period specified in the permit as the period during which the action or actions specified in the permit may be taken. The period so specified must start on the date of issue of the permit and end not later than 12 months after that date.
(4) The Minister must not issue a permit under this section to export a specimen unless the Minister is satisfied that:
(a) both:
(i) the recipient of the specimen will be a relevant CITES authority of a country; and
(ii) the specimen will be used by that relevant CITES authority for the purpose of the identification of a specimen and/or for the purpose of education or training; or
(b) both:
(i) the specimen has been seized under this Act; and
(ii) the specimen will be used to facilitate investigations in or outside Australia in relation to trade relating to wildlife.
(5) The Minister must not issue a permit under this section to import a specimen unless the Minister is satisfied that:
(a) the specimen will be used by the Secretary for the purposes of the identification of a specimen; or
(b) both:
(i) the sender of the specimen will be a relevant CITES authority of a country; and
(ii) the specimen will be used for the purpose of the identification of a specimen and/or for the purpose of education or training; or
(c) the specimen was exported from Australia in contravention of:
(i) this Part; or
(ii) the Wildlife Protection (Regulation of Exports and Imports) Act 1982; or
(d) the specimen will be used to facilitate investigations in or outside Australia in relation to trade relating to wildlife.
(6) A permit under this section:
(a) comes into force on the date on which it is issued; and
(b) unless it is sooner cancelled, remains in force until all of the following periods have ended:
(i) the permitted period (within the meaning of subsection (3A));
(ii) each period for which one or more conditions of the permit are expressed to apply.
303GD Testing permit—section 303EE assessments
Applications for permits
(1) A person may, in accordance with the regulations, apply to the Minister for a permit to be issued under subsection (5).
(2) The application must be accompanied by the fee (if any) prescribed by the regulations.
Further information
(3) The Minister may, within 40 business days after the application is made, request the person to give the Minister, within the period specified in the request, further information for the purpose of enabling the Minister to deal with the application.
(4) The Minister may refuse to consider the application until the person gives the Minister the information in accordance with the request.
Minister may issue permits
(5) The Minister may, on application made by a person under subsection (1), issue a permit to the person. This subsection has effect subject to subsections (7) and (8).
(6) A permit authorises its holder to take the action or actions specified in the permit, in the permitted period, without breaching section 303EK.
(6A) For the purpose of subsection (6), the permitted period is the period specified in the permit as the period during which the action or actions specified in the permit may be taken. The period so specified must start on the date of issue of the permit and end not later than 6 months after that date.
(7) The Minister must not issue a permit to a person unless the Minister is satisfied that:
(a) the person has made an application to the Minister under section 303EE for the list referred to in section 303EB to be amended by including an item; and
(b) if the proposed amendment were made, the specimen would be covered by the item; and
(c) the specimen is not a CITES specimen; and
(d) if an assessment is to be made under subsection 303EE(3) of the potential impacts on the environment of the proposed amendment—the terms of reference for a report on the assessment have been:
(i) prepared as mentioned in paragraph 303EF(1)(a); or
(ii) finalised as mentioned in subparagraph 303EF(1)(b)(iii); and
(e) the person proposes to conduct tests on the specimen in Australia in order to obtain information for the assessment; and
(f) the information is required for the assessment; and
(g) it is not reasonably practicable for the person to obtain the information without conducting the tests in Australia; and
(h) the tests will be conducted in a controlled environment.
(8) The Minister must not issue a permit under this section unless the permit is subject to one or more conditions about holding the specimen in quarantine.
Duration of permit
(9) A permit under this section:
(a) comes into force on the date on which it is issued; and
(b) unless it is sooner cancelled, remains in force until all of the following periods have ended:
(i) the permitted period (within the meaning of subsection (6A));
(ii) each period for which one or more conditions of the permit are expressed to apply.
Investigations
(10) A reference in this section to tests on the specimen includes a reference to investigations relating to the specimen.
303GE Conditions of permits
(1) This section applies to a permit issued under this Part.
(2) A permit is subject to such conditions as are specified in the permit or as are imposed under subsection (3).
(3) The Minister may, in accordance with the regulations:
(a) vary or revoke a condition of a permit; or
(b) impose further conditions of a permit.
(4) The Minister’s powers under subsection (3) may be exercised:
(a) on the Minister’s own initiative; or
(b) on the application of the holder of the permit concerned.
(5) If a permit authorises its holder to take a particular action, a condition of the permit may require the holder to do, or not do, an act or thing before, at or after the time when the action takes place.
(5A) Without limiting subsection (5), a condition of a permit may be expressed to apply for a period that will not end until after the export or import of a specimen under the permit has occurred, including for example:
(a) a period the length of which is known when the condition is imposed (such as a period that is expressed as a specified number of years); or
(b) a period the length of which is unknown when the condition is imposed (such as a period that is expressed as the life of the specimen, or the life of progeny of the specimen).
Note: Conditions may, for example, relate to how a specimen, and its progeny, are kept or dealt with during their lifetimes.
(6) If a person is given an authority under section 303GG by the holder of a permit, subsections (5) and (5A) apply to the person in a corresponding way to the way in which they apply to the holder of the permit.
(7) Subsections (4), (5), (5A) and (6) are to be disregarded in determining the meaning of a provision of this Act (other than a provision of this Part) that relates to conditions of permits issued otherwise than under this Part.
303GF Contravening conditions of a permit
(1) This section applies to a permit issued under this Part.
(2) A person commits an offence if:
(a) the person is:
(i) the holder of a permit; or
(ii) a person to whom an authority under section 303GG has been given by the holder of a permit; and
(b) the person engages in conduct; and
(c) the conduct results in a contravention of a condition of the permit.
Penalty: 300 penalty units.
(3) The holder of a permit commits an offence if:
(a) the person is:
(i) the holder of a permit; or
(ii) a person to whom an authority under section 303GG has been given by the holder of a permit; and
(b) the person engages in conduct; and
(c) the conduct results in a contravention of a condition of the permit; and
(d) the condition relates to:
(i) the sale or other disposal of a live animal or a live plant; or
(ii) the sale or other disposal of the progeny of a live animal or a live plant; or
(iii) the release from captivity of a live animal; or
(iv) the release from captivity of the progeny of a live animal; or
(v) the escape of a live plant.
Penalty: 600 penalty units.
(4) For the purposes of subsection (3), a person is taken to have released an animal from captivity if:
(a) that animal has escaped from captivity; and
(b) either:
(i) the person allowed the animal to escape; or
(ii) the person failed to take all reasonable measures to prevent the animal from escaping.
(4A) For the purposes of subsection (3), a person is taken to have allowed a plant to escape if:
(a) the plant has grown or propagated in the wild; and
(b) either:
(i) the person allowed the plant to escape; or
(ii) the person failed to take all reasonable measures to prevent the plant from growing or propagating in the wild.
(5) In subsections (2) and (3), strict liability applies to the circumstance that the person was given an authority under section 303GG.
Note: For strict liability, see section 6.1 of the Criminal Code.
303GG Authorities under permits
(1) This section applies to a permit issued under this Part.
(2) Except as provided in this section, a permit does not authorise the taking of any action by a person for or on behalf of the holder of the permit.
(3) Subject to subsection (4), the holder of a permit may give a person written authority to take for or on behalf of the holder any action authorised by the permit. The authority may be given generally or as otherwise provided by the instrument of authority.
(4) The holder of a permit must not give an authority unless:
(a) the permit contains a condition permitting the holder to do so; and
(b) the authority is given in accordance with any requirements set out in the condition.
(5) A permit is, for the purposes of this Act, taken to authorise the taking of a particular action by a person if the taking of that action by the person is authorised by an authority given by the holder of the permit.
(6) The giving of an authority does not prevent the taking of any action by the holder of the permit.
(7) A person who gives an authority must give to the Minister written notice of it within 14 days after giving the authority.
303GH Transfer of permits
(1) This section applies to a permit issued under this Part.
(2) On the application, in accordance with the regulations, of the holder of a permit, the Minister may, in accordance with the regulations, transfer the permit to another person.
(3) In deciding whether to transfer the permit to another person, the Minister must consider whether the transferee is a suitable person to hold the permit, having regard to the matters set out in the regulations.
303GI Suspension or cancellation of permits
(1) This section applies to a permit issued under this Part.
(2) The Minister may, in accordance with the regulations:
(a) suspend a permit for a specified period; or
(b) cancel a permit.
303GJ Review of decisions
(1) Subject to subsection (2), an application may be made to the Administrative Appeals Tribunal for review of a decision:
(a) to issue or refuse a permit; or
(b) to specify, vary or revoke a condition of a permit; or
(c) to impose a further condition of a permit; or
(d) to transfer or refuse to transfer a permit; or
(e) to suspend or cancel a permit; or
(f) to issue or refuse a certificate under subsection 303CC(5); or
(g) of the Secretary under a determination in force under section 303EU; or
(h) to make or refuse a declaration under section 303FN, 303FO or 303FP; or
(i) to vary or revoke a declaration under section 303FN, 303FO or 303FP.
(2) Subsection (1) does not apply to a decision made personally by the Minister (but the subsection does apply to a decision made by a delegate of the Minister).
(3) In this section:
permit means a permit under this Part.
303GK Permit to be produced
Export permit
(1) For the purposes of this Part, if the holder of a permit to export a specimen exports that specimen, he or she is not to be taken to have exported that specimen in accordance with that permit unless, before exporting the specimen, he or she:
(a) produced the permit, or caused the permit to be produced, to an authorised officer doing duty in relation to the export of the specimen; or
(b) received written notice from the Secretary authorising the export of the specimen without the production of the permit.
(2) The Secretary must not give the notice referred to in paragraph (1)(b) unless he or she:
(a) is satisfied that the production of the permit is impracticable; and
(b) endorses a copy of the permit to show that the notice is being given; and
(c) makes that copy available to an authorised officer doing duty in relation to the export of the specimen.
Import permit
(3) For the purposes of this Part, if the holder of a permit to import a specimen imports that specimen, he or she is not to be taken to have imported that specimen in accordance with that permit unless, before or within a reasonable time after importing the specimen, he or she produced the permit, or caused the permit to be produced, to an authorised officer doing duty in relation to the import of the specimen.
Authorities under section 303GG
(4) If a person is given an authority under section 303GG by the holder of a permit, this section applies to the person in a corresponding way to the way in which it applies to the holder of the permit.
303GL Pre‑CITES certificate to be produced
Export certificate
(1) If a person exports a specimen and wishes to rely on a certificate issued under subsection 303CC(5), he or she is not entitled to rely on that certificate unless, before exporting the specimen, he or she:
(a) produced the certificate, or caused the certificate to be produced, to an authorised officer doing duty in relation to the export of the specimen; or
(b) received written notice from the Secretary authorising the export of the specimen without the production of the certificate.
(2) The Secretary must not give the notice referred to in paragraph (1)(b) unless he or she:
(a) is satisfied that the production of the certificate is impracticable; and
(b) endorses a copy of the certificate to show that the notice is being given; and
(c) makes that copy available to an authorised officer doing duty in relation to the export of the specimen.
Import certificate
(3) If a person imports a specimen and wishes to rely on a certificate referred to in paragraph 303CD(6)(b), he or she is not entitled to rely on the certificate unless, before or within a reasonable time after importing the specimen, he or she produced the certificate, or caused the certificate to be produced, to an authorised officer doing duty in relation to the import of the specimen.
303GM Fees
(1) This section applies to a permit under this Part.
(2) Such fees (if any) as are prescribed are payable in respect of the following:
(a) the issue or the transfer of a permit;
(b) the variation or revocation of a condition of a permit;
(c) the imposition of a further condition of a permit.
303GN Possession of illegally imported specimens
Object
(1) The object of this section is:
(a) to comply with Australia’s obligations under:
(i) the Biodiversity Convention; and
(ii) CITES; and
(b) to otherwise further the objects of this Part;
by prohibiting the possession of illegally imported specimens and the progeny of such specimens.
Note: See Article 8 of the Biodiversity Convention.
Possession of CITES specimens and unlisted regulated live specimens
(2) A person commits an offence if:
(a) the person has in the person’s possession, in the Australian jurisdiction, a specimen; and
(b) the specimen is:
(i) a CITES specimen; or
(ii) a regulated live specimen that is not included in the list referred to in section 303EB;
and the person is reckless as to that fact; and
(c) the specimen does not belong to a native species.
Penalty: Imprisonment for 5 years or 1,000 penalty units, or both.
(3) Subsection (2) does not apply if:
(a) the specimen was lawfully imported; or
(b) the specimen was not imported, but all of the specimens of which it is the progeny were lawfully imported.
Note 1: For lawfully imported, see section 303GY.
Note 2: The defendant bears an evidential burden in relation to the matters in subsection (3) (see subsection 13.3(3) of the Criminal Code).
(4) Subsection (2) does not apply if the specimen was neither imported, nor the progeny of any other specimen that was imported.
Note: The defendant bears an evidential burden in relation to the matters in subsection (4) (see subsection 13.3(3) of the Criminal Code).
(5) Subsection (2) does not apply if the defendant has a reasonable excuse.
Note: The defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code).
Possession of listed regulated live specimens
(6) A person commits an offence if:
(a) the person has in the person’s possession, in the Australian jurisdiction, a specimen; and
(b) the specimen is a regulated live specimen that is included in Part 2 of the list referred to in section 303EB, and the person is reckless as to that fact; and
(c) the specimen does not belong to a native species; and
(d) either:
(i) the specimen was unlawfully imported; or
(ii) the specimen was not imported, but any of the specimens of which it is the progeny was unlawfully imported.
Penalty: Imprisonment for 5 years or 1,000 penalty units, or both.
(7) Subsection (6) does not apply if the defendant has a reasonable excuse.
Note: The defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).
Unlawfully imported
(8) For the purposes of this section, a specimen is unlawfully imported if, and only if, it was imported, but was not lawfully imported (section 303GY).
303GO Regulations relating to welfare
(1) This section applies to regulations made for the purposes of paragraph 303CG(3)(c), 303DG(4)(b), 303EN(3)(e), 303FN(3)(c) or 303FO(3)(f).
(2) The conditions specified in those regulations in relation to a live animal may:
(a) deal with the welfare of the animal:
(i) when the animal is taken; or
(ii) when the animal is being held after it has been taken; or
(iii) when the animal is being prepared or shipped; or
(iv) when the animal is under the control of the proposed recipient; and
(b) may deal with eliminating or minimising the risk of:
(i) injury to the animal; or
(ii) adverse effects on the health of the animal; or
(iii) cruel treatment of the animal.
(3) The conditions specified in those regulations in relation to a live plant may:
(a) deal with the welfare of the plant:
(i) when the plant is taken; or
(ii) when the plant is being held after it has been taken; or
(iii) when the plant is being prepared or shipped; or
(iv) when the plant is under the control of the proposed recipient; and
(b) may deal with eliminating or minimising the risk of:
(i) injury to the plant; or
(ii) adverse effects on the health of the plant.
(4) Subsections (2) and (3) do not limit paragraph 303CG(3)(c), 303DG(4)(b), 303EN(3)(e), 303FN(3)(c) or 303FO(3)(f).
303GP Cruelty—export or import of animals
(1) A person commits an offence if:
(a) the person exports or imports a live animal in a manner that subjects the animal to cruel treatment; and
(b) the person knows that, or is reckless as to whether, the export or import subjects the animal to cruel treatment; and
(c) the animal is a CITES specimen; and
(d) the person contravenes section 303CC or 303CD in relation to the export or import of the animal.
Penalty: Imprisonment for 2 years.
(2) A person commits an offence if:
(a) the person exports a live animal in a manner that subjects the animal to cruel treatment; and
(b) the person knows that, or is reckless as to whether, the export subjects the animal to cruel treatment; and
(c) the animal is a regulated native specimen; and
(d) the person contravenes section 303DD in relation to the export of the animal.
Penalty: Imprisonment for 2 years.
(3) A person commits an offence if:
(a) the person imports a live animal in a manner that subjects the animal to cruel treatment; and
(b) the person knows that, or is reckless as to whether, the import subjects the animal to cruel treatment; and
(c) the animal is a regulated live specimen; and
(d) the person contravenes section 303EK in relation to the import of the animal.
Penalty: Imprisonment for 2 years.
(4) This section does not limit section 303GE.
303GQ Imports of specimens contrary to the laws of a foreign country
(1) A person must not intentionally import a specimen if the person knows that:
(a) the specimen was exported from a foreign country; and
(b) at the time the specimen was exported, the export of the specimen was prohibited by a law of the foreign country that corresponds to this Part.
Penalty: Imprisonment for 5 years.
(2) A prosecution must not be instituted for an offence against this section unless a relevant CITES authority of the foreign country has requested:
(a) the investigation of the offence; or
(b) assistance in relation to a class of offences in which the offence is included.
303GR Evidence
(1) In any proceedings for an offence against this Part:
(a) any record kept in accordance with the regulations or another law of the Commonwealth or a law of a State or Territory is admissible as prima facie evidence of the facts stated in the record; and
(b) a copy of an entry in such a record, being a copy certified by the person by whom the record is kept to be a true copy of the entry, is admissible as prima facie evidence of the facts stated in the entry; and
(c) a document purporting to be a record kept in accordance with the regulations or another law of the Commonwealth, or a law of a State or Territory, or purporting to be such a certified copy as is referred to in paragraph (b), is taken, unless the contrary is established, to be such a record or certified copy, as the case may be.
(2) If, in any proceedings for an offence against this Part, a record referred to in paragraph (1)(a) is tendered as prima facie evidence of a fact stated in the record, the person alleged to have committed the offence may require the person who kept that record to be called as a witness for the prosecution in the proceedings.
303GS Evidence of examiner
(1) The Minister may, by writing, appoint appropriately qualified persons to be examiners for the purposes of this Part.
(2) Subject to subsection (4), a certificate signed by an examiner appointed under subsection (1) setting out, in relation to a substance, matter, specimen or thing, one or more of the following:
(a) that he or she is appointed as the examiner under subsection (1);
(b) when and from whom the substance, matter, specimen or thing was received;
(c) what labels or other means of identification accompanied the substance, matter, specimen or thing when it was received;
(d) what container held the substance, matter, specimen or thing when it was received;
(e) a description, including the weight, of the substance, matter, specimen or thing when it was received;
(f) the name of any method used to analyse the substance, matter, specimen or thing or any portion of it;
(g) the results of any such analysis;
(h) how the substance, matter, specimen or thing was dealt with after handling by the examiner, including details of:
(i) the quantity of the substance, matter, specimen or thing retained after analysis; and
(ii) names of any persons to whom any of the substance, matter, specimen or thing was given after analysis; and
(iii) measures taken to secure any retained quantity of the substance, matter, specimen or thing after analysis;
is admissible in any proceeding for an offence against this Part as prima facie evidence of the matters in the certificate and the correctness of the results of the analysis.
(3) For the purposes of this section, a document purporting to be a certificate referred to in subsection (2) is taken to be such a certificate unless the contrary is established.
(4) A certificate is not to be admitted in evidence in accordance with subsection (2) in proceedings for an offence against this Part unless:
(a) the person charged with the offence; or
(b) a solicitor who has appeared for the person in those proceedings;
has, at least 14 days before the certificate is sought to be admitted, been given a copy of the certificate together with reasonable notice of the intention to produce the certificate as evidence in the proceedings.
(5) Subject to subsection (6), if, under subsection (2), a certificate is admitted in evidence in proceedings for an offence against this Part, the person charged with the offence may require the person giving the certificate to be called as a witness for the prosecution and cross‑examined as if he or she had given evidence of the matters stated in the certificate.
(6) Subsection (5) does not entitle the person charged to require the person giving a certificate to be called as a witness for the prosecution unless:
(a) the prosecutor has been given at least 4 days notice of the person’s intention to require the examiner to be so called; or
(b) the court, by order, allows the person charged to require the person giving the certificate to be so called.
(7) Any evidence given in support, or in rebuttal, of a matter stated in a certificate given under subsection (2) must be considered on its merits and the credibility and probative value of such evidence must be neither increased nor diminished by reason of this section.
303GT Protection of witness
(1) A witness for the prosecution in any proceedings for an offence against this Part is not to be compelled to disclose:
(a) the fact that the witness received any information; or
(b) the nature of any information received by the witness; or
(c) the name of the person who gave the witness any information.
(2) An authorised officer who is a witness in any proceedings for an offence against this Part is not to be compelled to produce any report:
(a) that was made or received by the authorised officer in confidence in his or her capacity as an authorised officer; or
(b) that contains information received by the authorised officer in confidence.
(3) Subsections (1) and (2) are to be disregarded in determining the compellability of witnesses in proceedings for an offence against a provision of this Act other than this Part.
303GU Forms and declarations—persons arriving in Australia or an external Territory
The regulations may provide for forms to be completed, or declarations to be made, in relation to specimens by persons arriving in Australia or an external Territory.
303GV Saving of other laws
(1) This Part is in addition to the following laws:
(a) the Customs Act 1901;
(b) the Quarantine Act 1908;
(c) any other law of the Commonwealth or of an external Territory, whether passed or made before or after the commencement of this Part.
(2) The holder of a permit under this Part authorising the export or import of a specimen is not, by reason only of being the holder of the permit, exempt from compliance with any law referred to in paragraph (1)(a), (b) or (c) that applies in relation to that specimen.
(3) Without limiting subsection (1), this Part, and regulations made for the purposes of this Part, do not authorise or permit the doing of any act in contravention of the Quarantine Act 1908 or of a law of an external Territory relating to quarantine.
303GW Part not to apply to certain specimens
Transhipment
(1) For the purposes of this Part, if a specimen is brought into Australia from a country:
(a) for the purpose of transhipment to another country; or
(b) as part of an aircraft’s stores or ship’s stores;
that specimen:
(c) is taken not to have been imported into Australia; and
(d) when it leaves Australia, is taken not to be exported from Australia.
(2) For the purposes of this Part, if a specimen is brought into an external Territory:
(a) for the purpose of transhipment to another country; or
(b) as part of an aircraft’s stores or ship’s stores;
that specimen:
(c) is taken not to have been imported into that Territory; and
(d) when it leaves that Territory, is taken not to be exported from that Territory.
(3) For the purposes of subsection (1), a specimen is to be taken to be brought into Australia for the purpose of transhipment to another country if, and only if:
(a) the specimen is brought into Australia in the course of being transported to an identified person in the other country; and
(b) any delay in its leaving Australia will be due solely to the arrangements for its transport; and
(c) it will be under customs control under the Customs Act 1901 all the time that it is in Australia.
(4) For the purposes of subsection (2), a specimen is taken to be brought into an external Territory for the purpose of transhipment to another country if, and only if:
(a) the specimen is brought into that Territory in the course of being transported to an identified person in the other country; and
(b) any delay in its leaving that Territory will be due solely to the arrangements for its transport; and
(c) it will be under the control of an authorised officer all the time that it is in that Territory.
Emergency
(5) For the purposes of this Part, if:
(a) the Minister, the Director of Animal and Plant Quarantine, a prescribed person or a prescribed organisation is satisfied that, in order to meet an emergency involving danger to the life or health of a human or an animal, it is necessary or desirable that a specimen that could be used in treating that person or animal should be sent out of, or brought into, Australia or an external Territory; and
(b) that specimen is sent out of, or brought into, Australia or that Territory, as the case requires, to meet that emergency;
that specimen is taken not to have been exported or imported, as the case may be.
Quarantine
(6) Subject to subsections (1), (2) and (5), if, in accordance with the Quarantine Act 1908 or a law of an external Territory relating to quarantine, a person exercising powers under that Act or law imports a specimen that is subject to quarantine, then, for the purposes of this Part, that specimen is taken to have been imported by:
(a) if a person holds a permit to import that specimen—the holder of that permit; or
(b) in any other case—a person whose identity is not known;
but this subsection does not affect the commission of any offence committed before the importation of that specimen.
Definitions
(7) In this section:
aircraft’s stores and ship’s stores have the same meanings respectively as they have in Part VII of the Customs Act 1901.
303GX Part not to apply to certain specimens used by traditional inhabitants
(1) In this section:
area in the vicinity of the Protected Zone means an area in respect of which a notice is in force under subsection (2).
Australian place means a place in Australia that is in the Protected Zone or in an area in the vicinity of the Protected Zone.
Papua New Guinea place means a place in Papua New Guinea that is in the Protected Zone or in an area in the vicinity of the Protected Zone.
prescribed specimen means a specimen of a kind specified in a notice in force under subsection (3).
Protected Zone means the zone established under Article 10 of the Torres Strait Treaty, being the area bounded by the line described in Annex 9 to that treaty.
Torres Strait Treaty means the Treaty between Australia and the Independent State of Papua New Guinea that was signed at Sydney on 18 December 1978.
traditional activities has the same meaning as in the Torres Strait Treaty.
traditional inhabitants has the same meaning as in the Torres Strait Fisheries Act 1984.
(2) The Minister may, by notifiable instrument, declare an area adjacent to the Protected Zone to be an area in the vicinity of the Protected Zone for the purposes of this section.
(3) The Minister may, by notifiable instrument, declare that a specimen of a kind specified in the notice is a prescribed specimen for the purposes of this section.
Note: Notifiable instruments must be registered under the Legislation Act 2003, but they are not subject to parliamentary scrutiny or sunsetting under that Act.
(4) For the purposes of this Part, if a prescribed specimen that is owned by, or is under the control of, a traditional inhabitant and that has been used, is being used or is intended to be used by him or her in connection with the performance of traditional activities in the Protected Zone or in an area in the vicinity of the Protected Zone, is:
(a) brought to an Australian place from a Papua New Guinea place; or
(b) taken from an Australian place to a Papua New Guinea place;
then, subject to subsection (5), that specimen:
(c) in the case where the specimen is brought into Australia as mentioned in paragraph (a)—is taken not to have been imported into Australia; and
(d) in the case where the specimen is taken from Australia as mentioned in paragraph (b)—is taken not to have been exported from Australia.
(5) If:
(a) a prescribed specimen that has been brought into Australia is, under subsection (4), taken not to have been imported into Australia; and
(b) that prescribed specimen is brought to a place in Australia that is not in the Protected Zone or in an area in the vicinity of the Protected Zone;
the prescribed specimen is taken to have been imported into Australia upon being brought to the place referred to in paragraph (b).
303GY When a specimen is lawfully imported
For the purposes of this Part, a specimen is lawfully imported if, and only if, it was imported and:
(a) in a case where the specimen was imported after the commencement of this Part—it was not imported in contravention of this Part; or
(b) in a case where the specimen was imported when the Wildlife Protection (Regulation of Exports and Imports) Act 1982 was in force—it was not imported in contravention of that Act; or
(c) in a case where the specimen was imported before the commencement of the Wildlife Protection (Regulation of Exports and Imports) Act 1982—it was not imported in contravention of:
(i) the Customs (Endangered Species) Regulations; or
(ii) the Customs (Prohibited Imports) Regulations.
Part 14—Conservation agreements
304 Object of this Part
(1) The object of this Part is to provide for:
(a) conservation agreements between the Commonwealth and persons related to the protection and conservation of the following:
(i) biodiversity;
(ii) the world heritage values of declared World Heritage properties;
(iii) the National Heritage values of National Heritage places;
(iv) the Commonwealth Heritage values of Commonwealth Heritage places;
(v) the ecological character of a declared Ramsar wetland;
(vi) the environment, in respect of the impact of a nuclear action;
(vii) the environment in a Commonwealth marine area;
(viia) a water resource, in respect of the impact of an action involving coal seam gas development or large coal mining development;
(viii) the environment on Commonwealth land; and
(b) the effect of conservation agreements; and
(c) the publication of conservation agreements.
(2) Conservation agreements are agreements whose primary object is to enhance the conservation of matters referred to in paragraph (1)(a). They may relate to private or public land, or to marine areas.
Note: Conservation agreements cannot cover all or part of a Commonwealth reserve (see subsection 305(4)).
305 Minister may enter into conservation agreements
(1) The Minister may, on behalf of the Commonwealth, enter into an agreement (a conservation agreement) with a person for the protection and conservation of all or any of the following:
(a) biodiversity in the Australian jurisdiction;
(b) the world heritage values of a declared World Heritage property in the Australian jurisdiction;
(c) the National Heritage values of a National Heritage place;
(d) the Commonwealth Heritage values of a Commonwealth Heritage place (whether inside or outside the Australian jurisdiction);
(e) the ecological character of a declared Ramsar wetland in the Australian jurisdiction;
(f) the environment, in respect of the impact of a nuclear action in the Australian jurisdiction;
(g) the environment in a Commonwealth marine area in the Australian jurisdiction;
(ga) a water resource, in respect of the impact of an action involving coal seam gas development or large coal mining development in the Australian jurisdiction;
(h) the environment on Commonwealth land in the Australian jurisdiction.
Note: Conservation agreements cannot cover all or part of a Commonwealth reserve (see subsection 305(4)).
(1A) The protection and conservation of the matters in subsection (1) include all or any of the following:
(a) the protection, conservation and management of any listed species or ecological communities, or their habitats;
(b) the management of things in a way necessary for the protection and conservation of:
(i) the world heritage values of a declared World Heritage property; or
(ii) the National Heritage values of a National Heritage place; or
(iii) the Commonwealth Heritage values of a Commonwealth Heritage place; or
(iv) the ecological character of a declared Ramsar wetland; or
(v) the environment, in respect of the impact of a nuclear action; or
(vi) the environment in a Commonwealth marine area; or
(via) a water resource, in respect of the impact of an action involving coal seam gas development or large coal mining development; or
(vii) the environment on Commonwealth land;
(c) the abatement of processes, and the mitigation or avoidance of actions, that might adversely affect:
(i) biodiversity; or
(ii) the world heritage values of a declared World Heritage property; or
(iii) the National Heritage values of a National Heritage place; or
(iv) the Commonwealth Heritage values of a Commonwealth Heritage place; or
(v) the ecological character of a declared Ramsar wetland; or
(vi) the environment, in respect of the impact of a nuclear action; or
(vii) the environment in a Commonwealth marine area; or
(viia) a water resource, in respect of the impact of an action involving coal seam gas development or large coal mining development; or
(viii) the environment on Commonwealth land.
Note: When the Minister is considering entering into a conservation agreement, the Minister must take into account any responsibilities of other Commonwealth Ministers that may be affected by the agreement.
(2) However, the Minister must not enter into a conservation agreement unless satisfied that:
(a) in the case of a proposed agreement wholly or partly for the protection and conservation of biodiversity—the agreement:
(i) will result in a net benefit to the conservation of biodiversity; and
(ii) is not inconsistent with a recovery plan, threat abatement plan or wildlife conservation plan; and
(b) in the case of a proposed agreement wholly or partly for the protection and conservation of heritage values—the agreement:
(i) will result in a net benefit to the conservation of those heritage values; and
(ii) is not inconsistent with at least one of the Australian World Heritage management principles, the National Heritage management principles and the Commonwealth Heritage management principles; and
(c) in the case of a proposed agreement wholly or partly for the protection and conservation of the ecological character of a declared Ramsar wetland—the agreement:
(i) will result in a net benefit to the conservation of that ecological character; and
(ii) is not inconsistent with the Australian Ramsar management principles; and
(d) in the case of a proposed agreement wholly or partly for the protection and conservation of the environment, in respect of the impact nuclear actions—the agreement does not relate to the construction or operation of any of the following nuclear installations:
(i) a nuclear fuel fabrication plant;
(ii) a nuclear power plant;
(iii) an enrichment plant;
(iv) a reprocessing facility; and
(e) in the case of a proposed agreement wholly or partly for the protection and conservation of the environment in a Commonwealth marine area—the agreement will result in a net benefit to the conservation of the environment in that area; and
(ea) in the case of a proposed agreement wholly or partly for the protection and conservation of a water resource, in respect of the impacts of actions involving coal seam gas development or large coal mining development—the agreement will result in a net benefit to the conservation of the water resource; and
(f) in the case of a proposed agreement wholly or partly for the protection and conservation of the environment on Commonwealth land—the agreement will result in a net benefit to the conservation of the environment on that land.
(3) For the purposes of subsection (2), in deciding whether a proposed agreement will result in a net benefit to the conservation as mentioned in paragraph (2)(a), (b), (c), (e) or (f), the Minister must have regard to the matters (if any) prescribed by the regulations.
(3A) If:
(a) the Minister is considering whether to enter into a proposed conservation agreement that is wholly or partly for the protection and conservation of biodiversity; and
(b) the agreement would or could affect a particular listed threatened species or listed threatened ecological community;
the Minister must, in deciding whether to enter into the agreement, have regard to any approved conservation advice for the species or community.
(4) A conservation agreement must not cover all or part of a Commonwealth reserve.
(5) Under subsection (1), the Minister may enter into a conservation agreement covering land with one of the following persons who has a usage right relating to the land:
(a) an indigenous person;
(b) a body corporate wholly owned by indigenous persons;
(c) a body corporate established by or under an Act for the purposes of holding for the benefit of indigenous persons land vested in it by or under that Act;
(d) the trustee of a trust that holds land for the benefit of indigenous persons.
This does not limit subsection (1).
(6) The Minister must take account of the following when entering into a conservation agreement that is wholly or partly for the protection and conservation of biodiversity as described in subsection (5):
(a) paragraph (j) of Article 8 of the Biodiversity Convention;
(b) paragraph (c) of Article 10 of the Biodiversity Convention;
(c) paragraph 4 of Article 18 of the Biodiversity Convention;
(d) objective 1.8.2 of the National Strategy for the Conservation of Australia’s Biological Diversity, published by the Commonwealth in 1996.
306 Content of conservation agreements
(1) Without limiting section 305, a conservation agreement may provide, for example, for all or any of the following:
(a) activities that promote the protection and conservation of all or any of the following:
(i) biodiversity;
(ii) the world heritage values of a declared World Heritage property;
(iii) the National Heritage values of a National Heritage place;
(iv) the Commonwealth Heritage values of a Commonwealth Heritage place;
(v) the ecological character of a declared Ramsar wetland;
(vi) the environment, in respect of the impact of a nuclear action;
(vii) the environment in a Commonwealth marine area;
(viia) a water resource, in respect of the impact of an action involving coal seam gas development or large coal mining development;
(viii) the environment on Commonwealth land;
(b) controlling or prohibiting, in any place covered by the agreement, actions or processes that might adversely affect:
(i) the species, ecological communities, habitats or potential habitats covered by the agreement; or
(ii) the world heritage values of a declared World Heritage property; or
(iii) the National Heritage values of a National Heritage place; or
(iv) the Commonwealth Heritage values of a Commonwealth Heritage place; or
(v) the ecological character of a declared Ramsar wetland; or
(vi) the environment, in respect of the impact of a nuclear action; or
(vii) the environment in a Commonwealth marine area; or
(viia) a water resource, in respect of the impact of an action involving coal seam gas development or large coal mining development; or
(viii) the environment on Commonwealth land;
(c) requiring a person bound by the agreement not to obstruct access by a person authorised under the agreement to places covered by the agreement for the purpose of monitoring compliance with the agreement;
(d) requiring a person bound by the agreement to give such an authorised person information requested by the authorised person that is in the first‑mentioned person’s control and is relevant to compliance with the agreement;
(e) requiring the Commonwealth to provide financial, technical or other assistance to a person bound by the agreement;
(g) the commencement and duration of the agreement.
(2) Without limiting section 305 or subsection (1) of this section, a conservation agreement entered into with the owner of a place may provide, for example, for all or any of the following:
(a) requiring the owner to carry out specified activities, or to do specified things, that promote the conservation of all or any of the following:
(i) biodiversity;
(ii) the world heritage values of a declared World Heritage property;
(iii) the National Heritage values of a National Heritage place;
(iv) the Commonwealth Heritage values of a Commonwealth Heritage place;
(v) the ecological character of a declared Ramsar wetland;
(vi) the environment, in respect of the impact of a nuclear action;
(vii) the environment in a Commonwealth marine area;
(viia) a water resource, in respect of the impact of an action involving coal seam gas development or large coal mining development;
(viii) the environment on Commonwealth land;
(b) restricting the use of the place, or requiring the owner to refrain from, control or refuse to permit, actions or processes that may adversely affect:
(i) the species, ecological communities, habitats or potential habitats covered by the agreement; or
(ii) the world heritage values of a declared World Heritage property; or
(iii) the National Heritage values of a National Heritage place; or
(iv) the Commonwealth Heritage values of a Commonwealth Heritage place; or
(v) the ecological character of a declared Ramsar wetland; or
(vi) the environment, in respect of the impact of a nuclear action; or
(vii) the environment in a Commonwealth marine area; or
(viia) a water resource, in respect of the impact of an action involving coal seam gas development or large coal mining development; or
(viii) the environment on Commonwealth land;
(c) requiring the owner to permit access to the place by specified persons;
(d) requiring the owner to contribute towards costs incurred in implementing the agreement;
(e) specifying the manner in which any money paid to the owner under the agreement is to be applied by the owner;
(f) requiring the owner to repay to the Commonwealth any money paid to the owner under the agreement if the owner commits a specified breach of the agreement or in other specified circumstances;
(g) providing for any other matter relating to the conservation or enhancement of the place, including the preparation and implementation of a plan of management for the place.
306A Conservation agreement may include declaration that actions do not need approval under Part 9
(1) A conservation agreement may include a declaration to the effect that actions in a specified class do not need approval under Part 9 for the purposes of a specified provision of Part 3. The declaration may specify conditions relating to the taking of actions in the class.
(2) The Minister must not enter into a conservation agreement that contains a declaration under subsection (1) unless the Minister is satisfied that the actions to which the declaration relates are not likely to have a significant impact on the matter protected by the provision of Part 3 proposed to be specified in the declaration.
307 Conservation agreements to be legally binding
A conservation agreement is legally binding on:
(a) the Commonwealth; and
(b) the person or persons with whom the Minister entered into the agreement on behalf of the Commonwealth; and
(c) anyone else who is a successor to the whole or any part of any interest that a person mentioned in paragraph (b) had, when the agreement was entered into, in any place covered by the agreement.
307A Conservation agreements may deal with remediation or mitigation measures
When this section applies
(1) This section applies if the Minister considers that an action taken by a person after the commencement of this section contravened, or may have contravened, a provision of Part 3.
Conservation agreements may provide for measures to repair or mitigate damage
(2) The Minister may enter into a conservation agreement with the person that provides for the protection and conservation of a matter referred to in section 305 by providing for the taking of measures to repair or mitigate damage to the matter protected by the provision of Part 3 (whether or not the damage may or will be, or has been, caused by the action).
(3) The conservation agreement may state that specified provisions of the agreement, being provisions for the taking of measures as mentioned in subsection (2), are provisions that may be enforced in the Federal Court under this section. A provision of the agreement to which such a statement applies is a remediation provision.
(4) If the conservation agreement contains a statement as mentioned in subsection (3), that statement must specify the provision of Part 3 referred to in subsection (1).
Federal Court may order compliance with remediation provision
(5) If the Minister considers that the person has contravened a remediation provision, the Minister may apply to the Federal Court for an order under subsection (6).
(6) If the Federal Court is satisfied that the person has contravened a remediation provision, the Court may make one or more of the following orders:
(a) an order directing the person to comply with the remediation provision;
(b) any other order that the Court considers appropriate.
Civil penalty for contravention of remediation provision
(7) The person must not contravene a remediation provision.
(8) Subsection (7) is a civil penalty provision. Under section 481, the Federal Court may order the person to pay a pecuniary penalty not more than the pecuniary penalty the Court could order the person to pay under that section for a contravention of the provision of Part 3 referred to in subsection (1).
This section does not limit sections 305, 306 and 307
(9) This section does not limit anything in sections 305, 306 and 307.
308 Variation and termination of conservation agreements
(1) A conservation agreement may be varied by a variation agreement entered into by the Minister, on behalf of the Commonwealth, and the person or persons bound by the conservation agreement under paragraph 307(b) or (c).
(2) Sections 305 and 306 apply in relation to variation agreements in the same way as they apply in relation to conservation agreements.
(3) A conservation agreement may be terminated:
(a) by agreement between the Minister, on behalf of the Commonwealth, and the person or persons bound by the conservation agreement under paragraph 307(b) or (c); or
(b) in such other manner, or in such circumstances (if any), as the agreement specifies.
(4) If the Minister is satisfied that a conservation agreement is not capable of achieving its purpose, the Minister may, by order published in the Gazette, terminate the agreement or vary it in any way the Minister thinks necessary to ensure it becomes capable of achieving its purpose.
(5) The Minister may make an order under subsection (4) in relation to a conservation agreement without the agreement of the person or persons bound by the conservation agreement under paragraph 307(b) or (c).
(6) The Minister must cause a copy of an order to be laid before each House of the Parliament within the prescribed period after the publication of the order.
(7) If a conservation agreement is varied by an order, the person or persons bound by the conservation agreement under paragraph 307(b) or (c) may, by written notice given to the Minister, terminate the agreement.
(8) If a conservation agreement is terminated or varied by an order, the person or persons bound by the conservation agreement under paragraph 307(b) or (c) are not entitled to any compensation in respect of the termination or variation.
Note: See Parts 17 and 18 for remedies for breach of conservation agreements.
309 Publication of conservation agreements
(1) As soon as practicable after a conservation agreement has been entered into or varied, other than by an order under subsection 308(4), the Minister must:
(a) take reasonable steps to ensure that copies of the agreement or variation are available for purchase, for a reasonable price, at a prescribed place in each State and self‑governing Territory; and
(b) cause a notice of the agreement or variation to be published:
(i) in the Gazette; and
(ii) in any other way required by the regulations.
(2) The notice must:
(a) state that the agreement or variation has been entered into or made; and
(b) specify the places where copies of the agreement or variation may be purchased.
(3) Subsection (1) does not apply in relation to a conservation agreement, or a variation of such an agreement, or any part of such an agreement or variation, if the Minister is satisfied that disclosure of the agreement or variation, or the part of the agreement or variation, as the case may be, would result in harm being done to:
(a) components of biodiversity; or
(b) the world heritage values of a declared World Heritage property; or
(c) the National Heritage values of a National Heritage place; or
(d) the Commonwealth Heritage values of a Commonwealth Heritage place.
(4) Subsection (1) does not apply in relation to a conservation agreement, or a variation of such an agreement, or any part of such an agreement or variation, if the Minister is satisfied that disclosure of the agreement or variation, or the part of the agreement or variation, as the case may be, would disclose matters that the Minister is satisfied are commercial‑in‑confidence.
(5) The Minister must not be satisfied that matter is commercial‑in‑confidence unless a person demonstrates to the Minister that:
(a) release of information under subsection (1) about the matter would cause competitive detriment to the person; and
(b) the information is not in the public domain; and
(c) the information is not required to be disclosed under another law of the Commonwealth, a State or a Territory; and
(d) the information is not readily discoverable.
310 List of conservation agreements
The Minister must:
(a) maintain an up‑to‑date list of conservation agreements that are in force; and
(b) take reasonable steps to ensure that copies of the list are available for purchase, for a reasonable price, at a prescribed place in each State and self‑governing Territory.
311 Commonwealth, State and Territory laws
(1) A provision of a conservation agreement has no effect to the extent (if any) to which it is inconsistent with a law of the Commonwealth, or of a State or Territory.
(2) For the purposes of subsection (1), a provision of a conservation agreement is not taken to be inconsistent with a law of the Commonwealth, or of a State or Territory, if both the provision and the law are capable of being complied with.
312 Minister must not give preference
The Minister must not, in exercising powers on behalf of the Commonwealth under this Part, give preference to one State or any part thereof within the meaning of section 99 of the Constitution.
Part 15—Protected areas
Division 1—Managing World Heritage properties
Subdivision A—Simplified outline of this Division
313 Simplified outline of this Division
The following is a simplified outline of this Division:
The Commonwealth may submit a property for inclusion in the World Heritage List only after seeking the agreement of relevant States, self‑governing Territories and land‑holders.
The Minister must make plans for managing properties on the World Heritage List that are entirely in Commonwealth areas. The Commonwealth and Commonwealth agencies must not contravene such plans.
The Commonwealth must try to prepare and implement management plans for other properties on the World Heritage List, in co‑operation with the relevant States and self‑governing Territories.
The Commonwealth and Commonwealth agencies have duties relating to World Heritage properties in States and Territories.
The Commonwealth can provide assistance for the protection or conservation of declared World Heritage properties.
Note: Section 12 prohibits an action that has a significant impact on the world heritage values of a declared World Heritage property, unless the person taking the action has the approval of the Minister administering that section or certain other requirements are met.
Subdivision B—Seeking agreement on World Heritage listing
314 Special provisions relating to World Heritage nominations
(1) The Commonwealth may submit to the World Heritage Committee for inclusion in the World Heritage List a property containing an area owned or occupied by another person only if the Minister is satisfied that the Commonwealth has used its best endeavours to reach agreement with the other person on:
(a) the proposed submission of the property (so far as it relates to the area); and
(b) management arrangements for the property (so far as they relate to the area).
(2) The Commonwealth may submit to the World Heritage Committee for inclusion in the World Heritage List a property in a State or self‑governing Territory only if the Minister is satisfied that the Commonwealth has used its best endeavours to reach agreement with the State or Territory on:
(a) the proposed submission of the property; and
(b) management arrangements for the property.
(3) A failure to comply with this section does not affect the submission of a property to the World Heritage Committee for inclusion in the World Heritage List or the status of a property as a declared World Heritage property.
Subdivision C—Notice of submission of property for listing
315 Minister must give notice of submission of property for listing etc.
(1) The Minister must give notice in the Gazette and in the way (if any) prescribed by the regulations of any of the following events as soon as practicable after the event occurs:
(a) the Commonwealth submits a property to the World Heritage Committee for inclusion in the World Heritage List;
(b) the Commonwealth extends the boundaries of a property submitted to the World Heritage Committee for inclusion in the World Heritage List;
(c) the Commonwealth restricts the boundaries of a property submitted to the World Heritage Committee for inclusion in the World Heritage List;
(d) the Commonwealth withdraws the submission of a property for inclusion in the World Heritage List;
(e) a property submitted by the Commonwealth is included in the World Heritage List;
(f) all or part of a property is removed from the World Heritage List.
(2) The notice must specify the area included in, or excluded or deleted from, the submission or World Heritage List as a result of the event.
(3) A failure to comply with this section does not affect the status of an area as a declared World Heritage property.
Subdivision D—Plans for listed World Heritage properties in Commonwealth areas
316 Making plans
Minister must make plan
(1) The Minister must make a written plan for managing a property that is included in the World Heritage List and is entirely within one or more Commonwealth areas. The Minister must do so as soon as practicable after the property:
(a) is included in the World Heritage List; or
(b) becomes entirely within one or more Commonwealth areas.
Amending and replacing plan
(2) The Minister may make a written plan amending, or revoking and replacing, a plan made under subsection (1) or this subsection.
Requirements for plan
(3) A plan must not be inconsistent with:
(a) Australia’s obligations under the World Heritage Convention; or
(b) the Australian World Heritage management principles.
Note: Section 323 explains what Australian World Heritage management principles are.
Ensuring plans reflect current management principles
(4) If the Australian World Heritage management principles change so that a plan (the earlier plan) is inconsistent with them, the Minister must make another plan:
(a) amending the earlier plan so it is not inconsistent with them; or
(b) revoking and replacing the earlier plan.
Plan may be in same document as another plan
(5) To avoid doubt, a plan under this section for a property may be in the same document as:
(a) a plan under this section for another property; or
(b) a plan that this Act or another law of the Commonwealth requires or permits to be prepared.
Commonwealth reserves
(6) Despite subsections (1) and (2), the Minister may not make a plan for so much of a property as is in a Commonwealth reserve.
Note: A management plan must be prepared under Division 4 for a Commonwealth reserve, taking account of Australia’s obligations under the World Heritage Convention.
Heard Island and McDonald Islands
(7) Despite subsections (1) and (2), the Minister may not make a plan for so much of a property as is in the Territory of Heard Island and McDonald Islands and covered by a plan:
(a) that is in operation under the Environment Protection and Management Ordinance 1987 of that Territory; and
(b) that the Minister is satisfied is not inconsistent with:
(i) Australia’s obligations under the World Heritage Convention; or
(ii) the Australian World Heritage management principles.
317 Notice of plans
The Minister must give notice of the making of a plan under section 316, in accordance with the regulations.
318 Commonwealth compliance with plans
(1) The Commonwealth or a Commonwealth agency must not:
(a) contravene a plan made under section 316; or
(b) authorise another person to do, or omit to do, anything that, if it were done or omitted to be done by the Commonwealth or the Commonwealth agency (as appropriate), would contravene such a plan.
(2) If there is no plan in force under section 316 for a particular property described in subsection (1) of that section, the Commonwealth and each Commonwealth agency must take all reasonable steps to ensure that its acts (if any) relating to the property are not inconsistent with the Australian World Heritage management principles.
319 Review of plans every 5 years
(1) The Minister must cause a review of a plan made under section 316 to be carried out at least once in each period of 5 years after the plan is made.
(2) The review must consider whether the plan is consistent with the Australian World Heritage management principles in force at the time.
Note: Section 323 explains what Australian World Heritage management principles are.
Subdivision E—Managing World Heritage properties in States and self‑governing Territories
320 Application
This Subdivision applies in relation to a property that:
(a) is:
(i) in a State; or
(ii) in a self‑governing Territory; or
(iii) on, over or under the seabed vested in a State by the Coastal Waters (State Title) Act 1980 or in the Northern Territory by the Coastal Waters (Northern Territory Title) Act 1980; and
(b) is not entirely within one or more Commonwealth areas.
321 Co‑operating to prepare and implement plans
(1) This section applies in relation to a property that is included in the World Heritage List.
(2) The Commonwealth must use its best endeavours to ensure a plan for managing the property in a way that is not inconsistent with Australia’s obligations under the World Heritage Convention or the Australian World Heritage management principles is prepared and implemented in co‑operation with the State or Territory.
Note: The Commonwealth and the State or Territory could make a bilateral agreement adopting the plan and providing for its implementation.
(3) Subsection (2) does not apply in relation to so much of a property as is in the Great Barrier Reef Marine Park.
Note: A zoning plan must be prepared under the Great Barrier Reef Marine Park Act 1975 for areas that are part of the Great Barrier Reef Marine Park. In preparing a zoning plan, regard must be had to the Australian World Heritage management principles.
322 Commonwealth responsibilities
(1) This section applies in relation to a property that is a declared World Heritage property.
(2) The Commonwealth and each Commonwealth agency must take all reasonable steps to ensure it exercises its powers and performs its functions in relation to the property in a way that is not inconsistent with:
(a) the World Heritage Convention; and
(b) the Australian World Heritage management principles; and
(c) if the property is on the World Heritage List and a plan for managing the property has been prepared as described in section 321—that plan.
Subdivision F—Australian World Heritage management principles
323 Australian World Heritage management principles
(1) The regulations must prescribe principles for the management of natural heritage and cultural heritage. The principles prescribed are the Australian World Heritage management principles.
(2) Before the Governor‑General makes regulations prescribing principles, the Minister must be satisfied that the principles to be prescribed are consistent with Australia’s obligations under the World Heritage Convention.
(3) In this section:
cultural heritage has the meaning given by the World Heritage Convention.
natural heritage has the meaning given by the World Heritage Convention.
Subdivision G—Assistance for protecting World Heritage properties
324 Commonwealth assistance for protecting declared World Heritage properties
(1) The Commonwealth may give financial or other assistance for the protection or conservation of a declared World Heritage property to:
(a) a State or self‑governing Territory in which the property occurs; or
(b) any other person.
(2) The giving of assistance may be made subject to such conditions as the Minister thinks fit.
Division 1A—Managing National Heritage places
Subdivision A—Preliminary
324A Simplified outline of this Division
The following is a simplified outline of this Division:
The Minister may only include a place in the National Heritage List if the Minister is satisfied that the place has one or more National Heritage values.
The Minister must ask the Australian Heritage Council for an assessment of the place’s National Heritage values and may invite public comments on the proposed inclusion of the place in the National Heritage List.
The Minister must make plans to protect and manage the National Heritage values of National Heritage places. The Commonwealth and Commonwealth agencies must not contravene those plans.
The Commonwealth must try to prepare and implement plans for managing other National Heritage places, in co‑operation with the States and self‑governing Territories.
The Commonwealth and Commonwealth agencies have duties relating to National Heritage places in States and Territories.
The Commonwealth can provide assistance for the identification, promotion, protection or conservation of National Heritage places.
Note: Section 15B prohibits an action that has a significant impact on the National Heritage values of a National Heritage place, unless the person taking the action has the approval of the Minister or certain other requirements are met.
Subdivision B—The National Heritage List
324C The National Heritage List
(1) The Minister must keep a written record of places and their heritage values in accordance with this Subdivision and Subdivisions BA, BB and BC. The record is called the National Heritage List.
(2) A place may be included in the National Heritage List only if:
(a) the place is within the Australian jurisdiction; and
(b) the Minister is satisfied that the place has one or more National Heritage values (subject to the provisions in Subdivision BB about the emergency process).
(3) A place that is included in the National Heritage List is called a National Heritage place.
(4) The National Heritage List is not a legislative instrument.
324D Meaning of National Heritage values
(1) A place has a National Heritage value if and only if the place meets one of the criteria (the National Heritage criteria) prescribed by the regulations for the purposes of this section. The National Heritage value of the place is the place’s heritage value that causes the place to meet the criterion.
(2) The National Heritage values of a National Heritage place are the National Heritage values of the place included in the National Heritage List for the place.
(3) The regulations must prescribe criteria for the following:
(a) natural heritage values of places;
(b) indigenous heritage values of places;
(c) historic heritage values of places.
The regulations may prescribe criteria for other heritage values of places.
(4) To avoid doubt, a criterion prescribed by the regulations may relate to one or more of the following:
(a) natural heritage values of places;
(b) indigenous heritage values of places;
(c) historic heritage values of places;
(d) other heritage values of places.
Subdivision BA—Inclusion of places in the National Heritage List: usual process
324E Simplified outline
The following is a simplified outline of this Subdivision:
This Subdivision sets out the usual process for the inclusion of places in the National Heritage List.
The usual process involves an annual cycle that revolves around 12‑month periods known as assessment periods. The Minister determines the start of the first assessment period (see section 324G).
The usual process involves the following steps for each assessment period:
(a) the Minister may determine heritage themes (this step is optional) (see section 324H);
(b) the Minister invites people to nominate places for inclusion in the National Heritage List, and gives the nominations to the Australian Heritage Council (see sections 324J and 324JA);
(c) the Australian Heritage Council prepares, and gives to the Minister, a list of places (which will mostly be places that have been nominated) that it thinks should be assessed (see sections 324JB, 324JC and 324JD);
(d) the Minister finalises the list of places that are to be assessed (see sections 324JE and 324JF);
(e) the Australian Heritage Council invites people to make comments about the places in the finalised list (see section 324JG);
(f) the Australian Heritage Council assesses the places in the finalised list, and gives the assessments to the Minister (see sections 324JH and 324JI);
(g) the Minister decides whether a place that has been assessed should be included in the National Heritage List (see section 324JJ).
The steps mentioned in paragraphs (a) to (d) will generally be completed before the start of the assessment period.
324F Definitions
In this Subdivision:
assessment period has the meaning given by subsection 324G(1).
eligible for assessment consideration, in relation to an assessment period, has the meaning given by subsection 324JB(3).
finalised priority assessment list for an assessment period has the meaning given by subsection 324JE(4).
proposed priority assessment list for an assessment period has the meaning given by subsection 324JB(1).
324G Meaning of assessment period
(1) For the purposes of this Subdivision, each of the following is an assessment period:
(a) the period of 12 months starting on the day determined in writing by the Minister for the purposes of this paragraph;
(b) each period of 12 months starting on an anniversary of the day so determined.
(2) The Minister must make a determination under paragraph (1)(a) within 3 months after the commencement of this section. The day so determined must not be more than 12 months after that commencement.
(3) A determination under paragraph (1)(a) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the determination.
Note: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not apply to the determination. See regulations made for the purposes of paragraph 54(2)(b) of that Act.
324H Minister may determine heritage themes for an assessment period
(1) Before the Minister invites nominations for an assessment period under section 324J, the Minister may determine one or more heritage themes that the Minister considers should be given priority in relation to the assessment period.
(2) The Minister may request advice from the Australian Heritage Council for the purpose of making a determination under subsection (1), and may have regard to any advice the Council provides in response to the request.
(3) A determination under subsection (1) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the determination.
324J Minister to invite nominations for each assessment period
(1) Before the start of each assessment period, the Minister must publish a notice inviting people to nominate places for inclusion in the National Heritage List.
(2) A notice under subsection (1):
(a) must be published in accordance with the regulations referred to in paragraph (3)(a); and
(b) must invite people to nominate, to the Minister, places for inclusion in the National Heritage List; and
(c) must identify the assessment period to which the notice relates; and
(d) must specify a date (the cut‑off date) by which nominations must be received, which must be at least 40 business days after the notice has been published as required by paragraph (a); and
(e) must specify, or refer to, the information requirements, and the manner and form requirements, that, under regulations referred to in paragraphs (3)(b) and (c), apply to making nominations; and
(f) may also include:
(i) information related to any heritage themes that the Minister has determined under section 324H should be given priority in relation to the assessment period; and
(ii) any other information that the Minister considers appropriate.
(3) The regulations must provide for the following:
(a) how a notice under subsection (1) is to be published;
(b) the manner and form for making nominations;
(c) what information is to be included in a nomination.
324JA Minister to give nominations to Australian Heritage Council
Nominations in relation to first assessment period
(1) Within 30 business days after the cut‑off date specified in the notice under subsection 324J(1) for the first assessment period, the Minister must give the Australian Heritage Council the nominations that the Minister:
(a) had received before the end of that cut‑off date; and
(b) had not already requested the Australian Heritage Council, under section 324E (as in force before the commencement of this section), to assess; and
(c) had not already rejected under section 324E (as in force before the commencement of this section); and
(d) does not reject under subsection (4).
(2) Subsection (1) does not apply to a nomination of a place if:
(a) the place is outside the Australian jurisdiction; or
(b) the Minister had, before the commencement of this section, included the place in the National Heritage List under section 324F (as in force before the commencement of this section).
Nominations in relation to later assessment periods
(3) Within 30 business days after the cut‑off date (the current cut‑off date) specified in the notice under subsection 324J(1) for an assessment period (other than the first), the Minister must give the Australian Heritage Council the nominations that were received by the Minister in the period:
(a) starting immediately after the end of the cut‑off date specified in the notice under subsection 324J(1) for the immediately preceding assessment period; and
(b) ending at the end of the current cut‑off date;
other than any such nominations that the Minister rejects under subsection (4).
Minister may reject nominations
(4) The Minister may, in writing, reject a nomination if the Minister considers that:
(a) the nomination is vexatious, frivolous or not made in good faith; or
(b) the Minister considers that regulations referred to in paragraph 324J(3)(b) or (c) have not been complied with in relation to the nomination.
(5) If a nomination is rejected under paragraph (4)(b), the Minister must, if practicable, notify the person who made the nomination of the rejection of the nomination and the reason for the rejection.
Definition
(6) In this section:
nomination means a nomination of a place for inclusion in the National Heritage List.
324JB Australian Heritage Council to prepare proposed priority assessment list
(1) Within 40 business days after the Australian Heritage Council receives the nominations as required by subsection 324JA(1) in relation to an assessment period, the Council must prepare and give to the Minister a list (the proposed priority assessment list) for the assessment period.
(2) The proposed priority assessment list is to consist of such of the places that are eligible for assessment consideration in relation to the assessment period as the Australian Heritage Council considers it appropriate to include in the list, having regard to:
(a) any heritage themes determined by the Minister under section 324H in relation to the assessment period; and
(b) the Council’s own views about what should be given priority in relation to the assessment period; and
(c) the Council’s capacity to make assessments under this Division while still performing its other functions; and
(d) any other matters that the Council considers appropriate.
(3) A place is eligible for assessment consideration in relation to the assessment period if:
(a) the place has been nominated by a nomination referred to in subsection (1); or
(b) the Council itself wishes to nominate the place for inclusion in the National Heritage List; or
(c) the place was eligible for assessment consideration, otherwise than because of this paragraph, in relation to the immediately preceding assessment period (if any) but was not included in the finalised priority assessment list for that assessment period; or
(d) each part of the place is either a place to which paragraph (a) applies, a place to which paragraph (b) applies or a place to which paragraph (c) applies.
(4) Without limiting the generality of the Australian Heritage Council’s discretion under subsection (2), the Council does not have to include in the proposed priority assessment list a place that has been nominated if the Council considers that it is unlikely that the place has any National Heritage values. For this purpose, the Council is not required to have regard to any information beyond the information that was included in the nomination.
(5) The proposed priority assessment list is not a legislative instrument.
324JC Matters to be included in proposed priority assessment list
(1) The proposed priority assessment list for an assessment period is to include, for each place in the list:
(a) a description of the place; and
(b) an assessment completion time; and
(c) any other information required by the regulations.
(2) The assessment completion time for a place must be either:
(a) a time that is at or before the end of the assessment period to which the list relates; or
(b) if the Australian Heritage Council considers it likely that making an assessment in relation to the place will take a period that is longer than 12 months—the end of that longer period (calculated from the start of the assessment period).
324JD Statement to be given to Minister with proposed priority assessment list
(1) When the Australian Heritage Council gives the Minister the priority assessment list for an assessment period, the Council must also give the Minister a statement setting out such information as the Council considers appropriate relating to:
(a) for each place that is included in the list—why the Council included the place in the list; and
(b) for each place that is not included in the list but that was eligible for assessment consideration because of paragraph 324JB(3)(a) or (c)—why the Council did not include the place in the list.
(2) The statement must also identify, as places nominated by the Australian Heritage Council:
(a) any places that are included in the list because the Council itself wishes to nominate them (see paragraph 324JB(3)(b)); and
(b) any places that are included in the list because of paragraph 324JB(3)(d) that consist of one or more places to which paragraph 324JB(3)(b) applies.
324JE The finalised priority assessment list
(1) Within 20 business days after the Minister, under section 324JB, receives the proposed priority assessment list for an assessment period, the Minister may, in writing, make changes to the list as mentioned in subsection (2).
(2) The changes the Minister may make are as follows:
(a) including a place in the list (and also including the matters referred to in subsection 324JC(1));
(b) omitting a place from the list (and also omitting the matters referred to in subsection 324JC(1));
(c) changing the assessment completion time for a place in the list;
(d) any other changes of a kind permitted by the regulations.
(3) In exercising the power to make changes, the Minister may have regard to any matters that the Minister considers appropriate.
(4) At the end of the period of 20 business days referred to in subsection (1), the list, as changed (if at all) by the Minister, becomes the finalised priority assessment list for the assessment period.
(5) The Minister must notify the Australian Heritage Council of all changes that the Minister makes to the list.
(6) The finalised priority assessment list is not a legislative instrument.
324JF Publication of finalised priority assessment list
(1) The Australian Heritage Council must publish the finalised priority assessment list for an assessment period on the internet.
(2) The Australian Heritage Council must also publish the finalised priority assessment list in accordance with any requirements of the regulations.
324JG Australian Heritage Council to invite comments on places in finalised priority assessment list
(1) In relation to each place included in the finalised priority assessment list for an assessment period, the Australian Heritage Council must publish a notice inviting people to make comments on the place.
(2) The Australian Heritage Council may, under subsection (1), publish a single notice relating to all of the places on the finalised priority assessment list, or may publish a number of separate notices, each of which relates to one or more of the places.
(3) A notice under subsection (1), in relation to a place or places:
(a) must be published in accordance with the regulations referred to in paragraph (4)(a); and
(b) must identify the place or places to which the notice relates; and
(c) must invite people to make comments, to the Australian Heritage Council, about:
(i) whether the place or places meet any of the National Heritage criteria; and
(ii) whether the place or places should be included in the National Heritage List; and
(d) must specify the date (the cut‑off date) by which comments must be received, which must be at least 30 business days after the notice has been published as required by paragraph (a); and
(e) must specify, or refer to, the manner and form requirements that, under regulations referred to in paragraph (4)(b), apply to making comments; and
(f) may also invite people to comment on other matters that the Australian Heritage Council considers appropriate; and
(g) may also include any other information that the Australian Heritage Council considers appropriate.
(4) The regulations must provide for the following:
(a) how a notice under subsection (1) is to be published;
(b) the manner and form for making comments.
324JH Australian Heritage Council to assess places on finalised priority assessment list and give assessments to Minister
(1) In relation to each place included in the finalised priority assessment list for an assessment period, the Australian Heritage Council must (by the time required by section 324JI):
(a) make a written assessment whether the place meets any of the National Heritage criteria; and
(b) give to the Minister:
(i) the written assessment (or a copy of it); and
(ii) a copy of the comments referred to in paragraphs (2)(a) and (b) (whether or not they have all been taken into account under subsection (2)).
(2) In making an assessment in relation to a place, the Australian Heritage Council, subject to subsections (3) and (4):
(a) must take into account the comments the Council receives in response to the notice under subsection 324JG(1) in relation to the place; and
(b) may take into account the comments the Council receives in response to the opportunity referred to in paragraph (5)(c); and
(c) may seek, and have regard to, information or advice from any source.
(3) The Australian Heritage Council is not required to take a comment referred to in paragraph (2)(a) into account if:
(a) the Council does not receive the comment until after the cut‑off date specified in the notice under subsection 324JG(1) in relation to the place; or
(b) the Council considers that regulations referred to in paragraph 324JG(4)(b) have not been complied with in relation to the comment.
(4) In making an assessment, the Australian Heritage Council must not consider any matter that does not relate to the question whether the place meets any of the National Heritage criteria.
(5) If, in making an assessment, the Australian Heritage Council considers that a place might have one or more National Heritage values, the Council must:
(a) take all practicable steps:
(i) to identify each person who is an owner or occupier of all or part of the place; and
(ii) if the Council considers the place might have an indigenous heritage value—to identify each Indigenous person who has rights or interests in all or part of the place; and
(b) take all practicable steps to advise each person identified that the Council is assessing whether the place meets any of the National Heritage criteria; and
(c) give persons advised at least 20 business days to comment in writing whether the place should be included in the National Heritage List.
(6) If the Australian Heritage Council is satisfied that there are likely to be at least 50 persons referred to in subparagraph (5)(a)(i), the Council may satisfy the requirements of subsection (5) in relation to those persons by including the information referred to in paragraphs (5)(b) and (c) in one or more of the following:
(a) advertisements in a newspaper, or newspapers, circulating in the area in which the place is located;
(b) letters addressed to “The owner or occupier” and left at all the premises that are wholly or partly within the place;
(c) displays in public buildings at or near the place.
(7) If:
(a) the Australian Heritage Council considers that the place might have an indigenous heritage value; and
(b) there are Indigenous persons who:
(i) have rights or interests in all or part of the place; and
(ii) are neither owners nor occupiers of all or part of the place; and
(c) the Australian Heritage Council is satisfied that there is a body, or there are bodies, that can appropriately represent those Indigenous persons in relation to those rights and interests;
the Australian Heritage Council may satisfy the requirements of subsection (5) in relation to those Indigenous persons by giving the information referred to in paragraphs (5)(b) and (c) to that body or those bodies.
324JI Time by which assessments to be provided to Minister
(1) Subsection 324JH(1) must be complied with, in relation to a place included in the finalised priority assessment list for an assessment period, by the assessment completion time specified in the list for the place, or by that time as extended under this section.
(2) The Australian Heritage Council may request the Minister to extend the assessment completion time (or that time as previously extended) if the Council considers that it needs more time to make the assessment.
(3) The Minister may, in response to a request under subsection (2), extend the assessment completion time (or that time as previously extended) by such period (if any) as the Minister considers appropriate. However, the total length of all extensions of the assessment completion time must not be more than 5 years.
(4) An extension under subsection (3) must be made in writing.
(5) If the Minister grants an extension under this section, the Minister must publish particulars of the extension in a way that the Minister considers appropriate.
324JJ Decision about inclusion of a place in the National Heritage List
Minister to decide whether or not to include place
(1) After receiving from the Australian Heritage Council an assessment under section 324JH whether a place (the assessed place) meets any of the National Heritage criteria, the Minister must:
(a) by instrument published in the Gazette, include in the National Heritage List:
(i) the assessed place or a part of the assessed place; and
(ii) the National Heritage values of the assessed place, or that part of the assessed place, that are specified in the instrument; or
(b) in writing, decide not to include the assessed place in the National Heritage List.
Note: The Minister may include a place in the National Heritage List only if the Minister is satisfied that the place has one or more National Heritage values (see subsection 324C(2)).
(2) Subject to subsection (3), the Minister must comply with subsection (1) within 90 business days after the day on which the Minister receives the assessment.
(3) The Minister may, in writing, extend or further extend the period for complying with subsection (1).
(4) Particulars of an extension or further extension under subsection (3) must be published on the internet and in any other way required by the regulations.
(5) For the purpose of deciding what action to take under subsection (1) in relation to the assessed place:
(a) the Minister must have regard to:
(i) the Australian Heritage Council’s assessment whether the assessed place meets any of the National Heritage criteria; and
(ii) the comments (if any), a copy of which were given to the Minister under subsection 324JH(1) with the assessment; and
(b) the Minister may seek, and have regard to, information or advice from any source.
Additional requirements if Minister decides to include place
(6) If the Minister includes the assessed place, or a part of the assessed place (the listed part of the assessed place), in the National Heritage List, he or she must, within a reasonable time:
(a) take all practicable steps to:
(i) identify each person who is an owner or occupier of all or part of the assessed place; and
(ii) advise each person identified that the assessed place, or the listed part of the assessed place, has been included in the National Heritage List; and
(b) if the assessed place:
(i) was nominated; or
(ii) was included in a place that was nominated; or
(iii) includes a place that was nominated;
by a person in response to a notice under subsection 324J(1)—advise the person that the assessed place, or the listed part of the assessed place, has been included in the National Heritage List; and
(c) publish a copy of the instrument referred to in paragraph (1)(a) on the internet; and
(d) publish a copy or summary of that instrument in accordance with any other requirements specified in the regulations.
(7) If the Minister is satisfied that there are likely to be at least 50 persons referred to in subparagraph (6)(a)(i), the Minister may satisfy the requirements of paragraph (6)(a) in relation to those persons by including the advice referred to in that paragraph in one or more of the following:
(a) advertisements in a newspaper, or newspapers, circulating in the area in which the assessed place is located;
(b) letters addressed to “The owner or occupier” and left at all the premises that are wholly or partly within the assessed place;
(c) displays in public buildings at or near the assessed place.
Additional requirements if Minister decides not to include place
(8) If the Minister decides not to include the assessed place in the National Heritage List, the Minister must, within 10 business days after making the decision:
(a) publish the decision on the internet; and
(b) if the assessed place:
(i) was nominated; or
(ii) was included in a place that was nominated; or
(iii) includes a place that was nominated;
by a person in response to a notice under subsection 324J(1)—advise the person of the decision, and of the reasons for the decision.
Note: Subsection (8) applies in a case where the Minister decides that none of the assessed place is to be included in the National Heritage List.
Subdivision BB—Inclusion of places in the National Heritage List: emergency process
324JK Simplified outline
The following is a simplified outline of this Subdivision:
This Subdivision sets out the emergency process for the inclusion of places in the National Heritage List.
The emergency process involves the following steps:
(a) the Minister may include a place in the National Heritage List if it is under threat (see section 324JL);
(b) the Minister asks the Australian Heritage Council to assess the place (see section 324JM);
(c) the Australian Heritage Council publishes notice of the listing and invites comments (see section 324JN);
(d) the Australian Heritage Council assesses the place, and gives the assessment to the Minister (see sections 324JO and 324JP);
(e) the Minister has 12 months from the listing of the place to decide whether it should continue to be listed, and the listing will lapse if the Minister does not make a decision within that period (see section 324JQ).
324JL Minister may include place in National Heritage List if under threat
(1) If the Minister believes that:
(a) a place has or may have one or more National Heritage values; and
(b) any of those values is under threat of a significant adverse impact; and
(c) that threat is both likely and imminent;
the Minister may, by instrument published in the Gazette, include in the National Heritage List the place and the National Heritage values the Minister believes the place has or may have.
(2) If:
(a) the place is included in the National Heritage List under subsection (1); and
(b) before that inclusion of the place, the place was being considered for inclusion in the List under the process set out in Subdivision BA;
that process ceases to apply to the place when it is included in the List under subsection (1).
Note: Subsection (2) does not prevent the process in Subdivision BA again starting to apply to the place if (for example) the place ceases to be listed because of subsection 324JQ(1) or (4) and a person subsequently nominates the place under that Subdivision.
(3) If the place is included in the National Heritage List under subsection (1), the Minister must:
(a) within 10 business days after the inclusion of the place, publish a copy of the instrument under subsection (1):
(i) on the internet; and
(ii) in accordance with any other requirements specified in the regulations; and
(b) take all practicable steps to:
(i) identify each person who is an owner or occupier of all or part of the place; and
(ii) advise each person identified that the place has been included in the National Heritage List.
(4) If the Minister is satisfied that there are likely to be at least 50 persons referred to in subparagraph (3)(b)(i), the Minister may satisfy the requirements of paragraph (3)(b) in relation to those persons by including the advice referred to in that paragraph in one or more of the following:
(a) advertisements in a newspaper, or newspapers, circulating in the area in which the place is located;
(b) letters addressed to “The owner or occupier” and left at all the premises that are wholly or partly within the place;
(c) displays in public buildings at or near the place.
324JM Minister to ask Australian Heritage Council for assessment
(1) If the Minister includes a place in the National Heritage List under section 324JL, the Minister must, in writing, request the Australian Heritage Council to give the Minister an assessment of whether the place meets any of the National Heritage criteria.
(2) The request must specify the assessment completion time for the assessment.
Note: When specifying an assessment completion time, the 12‑month period referred to in subsection 324JQ(1) should be considered.
324JN Publication of listing of place and inviting comments
(1) If the Australian Heritage Council receives a request under subsection 324JM(1) in relation to a place that has been included in the National Heritage List, the Council must publish a notice inviting people to comment on the listing of the place.
(2) A notice under subsection (1) in relation to a place:
(a) must be published in accordance with the regulations referred to in paragraph (3)(a); and
(b) must contain the following:
(i) a description of the place;
(ii) a statement that the place has been included in the National Heritage List, and that specifies the National Heritage values that have been included in the List in relation to the place;
(iii) the date on which the place was so included; and
(c) must invite people to make comments, to the Australian Heritage Council, about:
(i) whether the place meets any of the National Heritage criteria; and
(ii) whether the place should continue to be included in the National Heritage List; and
(d) must specify the date (the cut‑off date) by which comments must be received, which must be at least 30 business days after the notice has been published as required by paragraph (a); and
(e) must specify, or refer to, the manner and form requirements that, under regulations referred to in paragraph (3)(b), apply to making comments.
(3) The regulations may provide for either or both of the following:
(a) how a notice under subsection (1) is to be published;
(b) the manner and form for making comments.
324JO Australian Heritage Council to assess place and give assessment to Minister
(1) Section 324JH applies in relation to a request under subsection 324JM(1) as if:
(a) a reference in section 324JH to a place included in the finalised priority assessment list for an assessment period were a reference to the place to which the request relates; and
(b) a reference in section 324JH to the notice under subsection 324JG(1) in relation to the place were a reference to the notice under subsection 324JN(1) in relation to the place; and
(c) a reference in section 324JH to regulations referred to in paragraph 324JG(4)(b) were a reference to regulations referred to in paragraph 324JN(3)(b); and
(d) a reference in section 324JH to whether the place should be included in the National Heritage List were a reference to whether the place should continue to be included in the National Heritage List.
(2) A reference in another provision of this Act to section 324JH, or to a provision of that section, includes a reference to that section or provision as it applies because of this section.
324JP Time by which assessments to be provided to Minister
(1) Section 324JI applies in relation to a request under subsection 324JM(1) as if:
(a) a reference in section 324JI to a place included in the finalised priority assessment list for an assessment period were a reference to the place to which the request relates; and
(b) a reference in section 324JI to the assessment completion time specified in the list for the place were a reference to the assessment completion time specified in the request.
(2) A reference in another provision of this Act to section 324JI, or to a provision of that section, includes a reference to that section or provision as it applies because of this section.
324JQ Decision about place remaining in the National Heritage List
Minister to decide whether place should remain listed
(1) Within 12 months after the inclusion of a place in the National Heritage List under section 324JL, the Minister must, by instrument published in the Gazette, subject to subsections (2) and (3):
(a) do one of the following:
(i) state that the place remains in the National Heritage List with its boundary unaltered;
(ii) alter the boundary of the place described in the National Heritage List (whether or not the alteration results in an overall increase or decrease in the extent of the place included in the List);
(iii) remove from the National Heritage List the place and its National Heritage values; and
(b) if the place is not removed from the National Heritage List under subparagraph (a)(iii)—do all or any of the following:
(i) state that specified National Heritage values included in the List under section 324JL for the place remain in the List for the place;
(ii) include in the List for the place specified National Heritage values of the place that were not included in the List under section 324JL for the place;
(iii) remove from the List for the place specified National Heritage values that were included in the List under section 324JL for the place.
(2) The Minister must not take action under subsection (1) unless the Minister has received an assessment from the Australian Heritage Council under section 324JH in relation to the place.
(3) The Minister must not take action under subsection (1) that results in the place remaining in the National Heritage List (whether or not with the same or a different boundary) unless the Minister is satisfied that the place has one or more National Heritage values.
Listing lapses automatically if action not taken within 12 months of listing
(4) If the Minister does not take action under subsection (1) within the period referred to in that subsection, the place, and its listed National Heritage values, are automatically removed from the National Heritage List, by force of this subsection, at the end of that period.
Note: This subsection applies even if the Minister is prevented from taking action under subsection (1) because of subsection (2).
Matters to be considered
(5) For the purpose of deciding what action to take under subsection (1) in relation to the place:
(a) the Minister must have regard to:
(i) the Australian Heritage Council’s assessment whether the place meets any of the National Heritage criteria; and
(ii) the comments (if any), a copy of which were given to the Minister under subsection 324JH(1) with the assessment; and
(b) the Minister may seek, and have regard to, information or advice from any source.
Disapplying section 324L
(6) Section 324L does not apply to:
(a) an alteration of the boundary of the place, under subparagraph (1)(a)(ii) of this section, that has the effect of removing part of the place from the National Heritage List; or
(b) the removal of the place and its National Heritage values under subparagraph (1)(a)(iii) of this section; or
(c) the removal of a National Heritage value of the place under subparagraph (1)(b)(iii) of this section.
Minister to publish copy or summary of subsection (1) notice
(7) The Minister must publish a copy or summary of the instrument referred to in subsection (1). The regulations may specify how the publication is to be made. Subject to any such regulations, the publication must be made in a way that the Minister considers appropriate.
Additional requirements if place etc. is removed under subsection (1)
(8) If, under subsection (1), the Minister removes from the National Heritage List the place or a National Heritage value of the place, or alters the boundary of the place described in the List, the Minister must, within 10 business days after the removal or alteration:
(a) publish a copy of the instrument referred to in subsection (1) on the internet; and
(b) advise each person identified by the Minister as an owner or occupier of all or part of the place of the removal or alteration.
Note: For the obligation to identify owners or occupiers, see subsection 324JL(3).
Requirements if place is removed under subsection (4)
(9) If, under subsection (4), the place, and its listed National Heritage values, are removed from the National Heritage List, the Minister must, within 10 business days after the removal:
(a) publish notice of the removal on the internet; and
(b) advise each person identified by the Minister as an owner or occupier of all or part of the place of the removal.
Note: For the obligation to identify owners or occupiers, see subsection 324JL(3).
Alternative methods of notifying owners and occupiers
(10) If the Minister is satisfied that there are likely to be at least 50 persons referred to in paragraph (8)(b) or (9)(b), the Minister may satisfy the requirements of that paragraph in relation to those persons by including the advice referred to in that paragraph in one or more of the following:
(a) advertisements in a newspaper, or newspapers, circulating in the area in which the place is located;
(b) letters addressed to “The owner or occupier” and left at all the premises that are wholly or partly within the place;
(c) displays in public buildings at or near the place.
Subdivision BC—Other provisions relating to the National Heritage List
324JR Co‑ordination with Scientific Committee—Council undertaking assessment
(1) This section applies if:
(a) the Australian Heritage Council undertakes an assessment of a place under Subdivision BA or Subdivision BB; and
(b) before giving the assessment to the Minister, the Council becomes aware that:
(i) the Scientific Committee is undertaking, or has undertaken, an assessment under Division 1 of Part 13; and
(ii) there is a matter that is relevant to both the assessment referred to in paragraph (a) and the assessment referred to in subparagraph (i).
(2) A member of the Australian Heritage Council may discuss the matter with a member of the Scientific Committee.
(3) Before the Australian Heritage Council gives an assessment of the place to the Minister under Subdivision BA or Subdivision BB, the Council must comply with subsection (4) or (6).
(4) If the Scientific Committee has not yet given the Minister an assessment that deals with that matter, the Australian Heritage Council must:
(a) give the Scientific Committee a copy of the assessment of the place that the Council proposes to give to the Minister; and
(b) invite the Scientific Committee to give the Council its comments in relation to that matter; and
(c) take into account, in finalising the assessment of the place that the Council gives the Minister, any comments that the Scientific Committee makes in relation to that matter in response to that invitation within 14 days, or such longer period as is specified in the invitation, after being given the invitation.
(5) If the Australian Heritage Council gives the Scientific Committee a copy of a proposed assessment of a place under paragraph (4)(a), the Council must also give the Scientific Committee a copy of the assessment of that place that the Council gives the Minister.
(6) If:
(a) the Scientific Committee has already given the Minister an assessment that deals with that matter; and
(b) the Australian Heritage Council has been given a copy of that assessment;
the Australian Heritage Council must take that assessment into account in finalising the assessment of the place that the Council gives the Minister.
(7) If, under section 194S or 194T, the Scientific Committee gives the Australian Heritage Council a proposed assessment, or an assessment, that deals with a particular matter because the Council is undertaking an assessment that deals with that matter, a member of the Council may discuss that matter with a member of the Scientific Committee.
(8) Subsection (2), paragraph (4)(a) and subsections (5) and (7) have effect despite section 324R.
324JS Co‑ordination with Scientific Committee—Council given assessment to Minister
(1) This section applies if:
(a) the Australian Heritage Council has given to the Minister an assessment of a place under Subdivision BA or Subdivision BB; and
(b) the Council is aware that:
(i) the Scientific Committee is undertaking an assessment under Division 1 of Part 13; and
(ii) there is a matter that is relevant to both the assessment referred to in paragraph (a) and the assessment referred to in subparagraph (i).
(2) The Australian Heritage Council must, within 7 days after becoming aware as referred to in paragraph (1)(b):
(a) ensure the Scientific Committee is aware of the existence of the paragraph (1)(a) assessment dealing with the matter; and
(b) give the Scientific Committee a copy of the assessment.
(3) A member of the Australian Heritage Council may discuss the matter with a member of the Scientific Committee.
(4) Subsections (2) and (3) have effect despite section 324R.
324K Listing process not affected by changing boundaries of a place
(1) This section is about compliance with a provision of Subdivision BA or BB that requires or permits an act to be done in relation to the place identified by express or implied reference to an earlier provision of that Subdivision.
(2) It is sufficient compliance with the provision if the act is done in relation to a place whose boundary overlaps the boundary of the place identified by reference to the earlier provision.
(3) This section does not affect the validity of the act so far as that depends on something other than the act being done in relation to the place.
324L Removal of places or National Heritage values from the National Heritage List
(1) The Minister may remove all or part of a place from the National Heritage List only if the Minister is satisfied that:
(a) ignoring subsection 324D(2), the place no longer has any National Heritage values or the part no longer contributes to any of the National Heritage values of the place; or
(b) it is necessary in the interests of Australia’s defence or security to do so.
Note: A place or part of a place may also be removed from the National Heritage List under subsection 324JQ(1).
(2) The Minister may remove one or more National Heritage values included in the National Heritage List for a National Heritage place only if the Minister is satisfied that:
(a) ignoring subsection 324D(2), the place no longer has the National Heritage value or values; or
(b) it is necessary in the interests of Australia’s defence or security to do so.
(3) The Minister may remove all or part of a place, or a National Heritage value of a place, only by an instrument including a statement of the reasons for the removal.
Note 1: The Minister must first obtain and consider the advice of the Australian Heritage Council (see section 324M).
Note 2: For requirements relating to the instrument under the Legislation Act 2003, see subsections (5) and (6) of this section.
(4) The instrument must deal with only one of the following kinds of removal:
(a) removal (removal for loss of value) of a place, part or National Heritage value because of paragraph (1)(a) or (2)(a);
(b) removal of a place, part or National Heritage value because of paragraph (1)(b) or (2)(b).
If the instrument purports to deal with both kinds, it has no effect so far as it deals with a removal for loss of value.
(5) If the instrument deals only with removal for loss of value:
(a) it is a legislative instrument; and
(b) it takes effect on the first day it is no longer liable to be disallowed, or to be taken to have been disallowed, under section 42 of the Legislation Act 2003.
(6) If subsection (5) does not apply to the instrument, it is a notifiable instrument.
Note: Notifiable instruments must be registered under the Legislation Act 2003, but they are not subject to parliamentary scrutiny or sunsetting under that Act.
324M Minister must consider advice of the Australian Heritage Council and public comments
(1) Before the Minister removes from the National Heritage List under section 324L all or part of a place or one or more of a place’s National Heritage values in a removal for loss of value, the Minister must:
(a) give the Chair of the Australian Heritage Council a written request for the Council to give the Minister advice on the proposed removal; and
(b) publish, on the internet, in a daily newspaper circulating in each State and self‑governing Territory and in each other way required by the regulations (if any), a notice:
(i) describing the proposed removal; and
(ii) inviting anyone to give the Minister comments, within 20 business days, on the proposed removal.
The Minister must publish the notice within 20 business days of giving the request.
(2) The Australian Heritage Council must give the advice to the Minister within the period specified by the Minister.
(3) The Minister must consider the advice, if he or she receives it by the end of that period, and the comments (if any) received in accordance with the notice.
(4) In preparing the advice, the Australian Heritage Council must not consider any matter that does not relate to the National Heritage values of the place concerned.
(5) The Minister must:
(a) decide whether to remove from the National Heritage List the place or part concerned, or the National Heritage value or values of the place concerned; and
(b) if the Minister decides to remove the place or part, or the National Heritage value or values of the place—ensure that an instrument removing the place, part or National Heritage value or values is made under subsection 324L(3);
within 60 business days after the earlier of the advice being received by the Minister and the specified period for giving advice to the Minister ending.
324N Specifying one or more additional National Heritage values for a National Heritage place
(1) The regulations may make provision for, or in relation to, the specification in the National Heritage List of additional National Heritage values in relation to National Heritage places.
(2) Without limiting the generality of subsection (1), regulations may make provision as mentioned in that subsection by specifying modifications of provisions of this Act. However, regulations must not:
(a) increase, or have the effect of increasing, the maximum penalty for any offence; or
(b) widen, or have the effect of widening, the scope of any offence.
324P National Heritage List must be publicly available
The Minister must ensure that:
(a) up‑to‑date copies of the National Heritage List are available for free to the public on request; and
(b) an up‑to‑date copy of the National Heritage List is available on the internet.
Note: The copies of the National Heritage List made publicly available may not contain certain information kept confidential under section 324Q.
324Q Certain information may be kept confidential
(1) This section applies if the Minister considers that the heritage values of a place could be significantly damaged by the disclosure of some or all of the following information, or by the presence or actions of persons if some or all of the following information were disclosed publicly:
(a) the place’s precise location;
(b) the place’s heritage values;
(c) any other information about the place.
(2) It is sufficient compliance with this Act if only a general description of the place, its location or its National Heritage values is included in:
(a) the National Heritage List as made publicly available; or
(b) an instrument or other document created for the purposes of this Act.
324R Disclosure of Australian Heritage Council’s assessments and advice
(1) A member of the Australian Heritage Council has a duty not to disclose the following to a person other than the Minister, an employee in the Department whose duties relate to the Council or another member of the Council:
(a) an assessment under section 324JH whether a place meets any of the National Heritage criteria, any information relating to the assessment or any information about the nomination (if any) that led to the making of the assessment;
(b) advice under section 324M concerning a place or any information relating to the advice.
(2) However:
(a) the duty not to disclose a thing described in paragraph (1)(a) in relation to a place does not exist after:
(i) publication in the Gazette of an instrument under paragraph 324JJ(1)(a) or subsection 324JQ(1) in relation to the place; or
(ii) the Minister decides under paragraph 324JJ(1)(b) not to include the place in the National Heritage List; and
(b) the duty not to disclose a thing described in paragraph (1)(b) in relation to a place does not exist after:
(i) registration under the Legislation Act 2003 of a legislative instrument under section 324L relating to the place; or
(ii) the Minister decides under section 324M not to remove the place or a part of the place, or one or more of the place’s National Heritage values, from the National Heritage List.
(2A) This section does not prevent the Australian Heritage Council from informing a person, or having discussions with a person, about the consequences that result or may result from:
(a) a place being, or not being, included in the National Heritage List; or
(b) National Heritage values of a place being, or not being, included in the List; or
(c) a place or part of a place, or one or more National Heritage values of a place, being removed from the List.
(2B) Subsection (1) does not apply to a disclosure of particular information if:
(a) the Chair of the Australian Heritage Council requests the Minister to give permission to disclose that information to a particular person (or persons within a particular group of persons); and
(b) the Minister gives that permission; and
(c) the disclosure is made to that person (or a person within that group).
(3) After a member of the Australian Heritage Council has ceased under subsection (2) to have a duty not to disclose:
(a) an assessment under section 324JH whether a place meets the National Heritage criteria; or
(b) advice under section 324M concerning a place;
the member must give a copy of the assessment or advice to anyone who asks for it.
(4) If:
(a) a member of the Australian Heritage Council proposes to give a person under subsection (3) a copy of an assessment or advice relating to a place; and
(b) the member is aware that, under section 324Q, it would be sufficient compliance with this Act if the copy included only a general description of the place, its location or its National Heritage values;
the member must take reasonable steps to ensure that the copy given to the person does not include a more detailed description than is necessary for sufficient compliance with this Act under that section.
Subdivision C—Management plans for National Heritage places in Commonwealth areas
324S Management plans for National Heritage places in Commonwealth areas
(1) The Minister must make a written plan to protect and manage the National Heritage values of each National Heritage place that is entirely within one or more Commonwealth areas. The Minister must do so as soon as practicable after the first time the place satisfies both of the following paragraphs:
(a) the place is included in the National Heritage List;
(b) the place is entirely within one or more Commonwealth areas.
Note: However, section 324T precludes the Minister from making plans for managing certain places.
(2) The Minister may, in writing, amend a plan or revoke and replace a plan.
(3) The Minister must give notice, in accordance with the regulations, if the Minister:
(a) makes a plan for a National Heritage place; or
(b) amends such a plan; or
(c) revokes and replaces such a plan.
(4) A plan must:
(a) address the matters prescribed by the regulations; and
(b) not be inconsistent with the National Heritage management principles (see Subdivision E).
(5) If the National Heritage management principles change so that a plan (the earlier plan) is inconsistent with them, the Minister must as soon as practicable make a written instrument:
(a) amending the earlier plan to make it consistent with the principles; or
(b) revoking and replacing the earlier plan.
(6) Before making, amending or revoking and replacing a plan, the Minister must:
(a) seek in accordance with the regulations, and consider, comments from anyone about the matters to be addressed by the proposed plan or amendment; and
(b) seek and consider comments from the Australian Heritage Council about those matters.
(7) A plan, an amendment of a plan, or a revocation and replacement of a plan, is a legislative instrument.
324T Restriction on ability to make plans
(1) Despite section 324S, the Minister must not make a plan for managing so much of a National Heritage place as is in a Commonwealth reserve and covered by another plan under this Act.
(2) Despite section 324S, the Minister must not make a plan for managing so much of a National Heritage place as is in the Territory of Heard Island and McDonald Islands and covered by a plan in operation under the Environment Protection and Management Ordinance 1987 of that Territory.
324U Compliance with plans by the Commonwealth and Commonwealth agencies
(1) The Commonwealth or a Commonwealth agency must not:
(a) contravene a plan made under section 324S; or
(b) authorise another person to do, or omit to do, anything that, if it were done or omitted to be done by the Commonwealth or the Commonwealth agency (as appropriate), would contravene such a plan.
(2) If there is no plan in force under section 324S for a particular National Heritage place described in subsection (1) of that section, the Commonwealth and each Commonwealth agency must take all reasonable steps to ensure that its acts (if any) relating to the place are not inconsistent with the National Heritage management principles.
324V Multiple plans in the same document
To avoid doubt, a plan for managing a National Heritage place may be in the same document as:
(a) one or more other plans for managing National Heritage places; or
(b) one or more other plans that this Act or another law of the Commonwealth requires or permits to be prepared.
324W Review of plans at least every 5 years
(1) At least once in every 5 year period after a plan for managing a National Heritage place is made under section 324S, the Minister must cause a review of the plan to be carried out.
(2) The review must:
(a) assess whether the plan is consistent with the National Heritage management principles in force at the time; and
(b) assess whether the plan is effective in protecting and conserving the National Heritage values of the place; and
(c) make recommendations for the improved protection of the National Heritage values of the place.
(3) The person carrying out the review must publish, on the internet and in a daily newspaper circulating in each State and self‑governing Territory, a notice inviting anyone to give the person comments within 20 business days on:
(a) whether the plan is consistent with the National Heritage management principles; and
(b) the effectiveness of the plan in protecting and conserving the National Heritage values of the place.
(4) In carrying out the review, the person must consider the comments (if any) received in accordance with the notice.
Subdivision D—Management of National Heritage places in States and self‑governing Territories
324X Plans and Commonwealth responsibilities
(1) This section applies to a National Heritage place that is not entirely within one or more Commonwealth areas and is:
(a) in a State; or
(b) in a self‑governing Territory; or
(c) on, over or under the seabed vested in a State by the Coastal Waters (State Title) Act 1980 or in the Northern Territory by the Coastal Waters (Northern Territory Title) Act 1980.
(2) The Commonwealth must use its best endeavours to ensure a plan for managing the place, that is not inconsistent with the National Heritage management principles, is prepared and implemented in co‑operation with the State or Territory.
(2A) Subsection (2) does not apply in relation to so much of a place as is in the Great Barrier Reef Marine Park.
Note: A zoning plan must be prepared under the Great Barrier Reef Marine Park Act 1975 for areas that are part of the Great Barrier Reef Marine Park. In preparing a zoning plan, regard must be had to the National Heritage management principles.
(3) The Commonwealth, and each Commonwealth agency, must take all reasonable steps to ensure it exercises its powers and performs its functions in relation to the place in a way that is not inconsistent with:
(a) the National Heritage management principles; or
(b) the plan for managing the place, if one has been prepared under subsection (2).
Subdivision E—The National Heritage management principles
324Y National Heritage management principles
(1) The regulations must prescribe principles for managing National Heritage places. The principles prescribed are the National Heritage management principles.
(2) The regulations may prescribe obligations to implement or give effect to the National Heritage management principles if the obligations relate to:
(a) a constitutional corporation, the Commonwealth or a Commonwealth agency; or
(b) trade or commerce:
(i) between Australia and another country; or
(ii) between 2 States; or
(iii) between a State and Territory; or
(iv) between 2 Territories; or
(c) either or both of the following:
(i) a Commonwealth area;
(ii) a Territory; or
(d) the National Heritage values, to the extent that they are indigenous heritage values, of a National Heritage place; or
(e) the National Heritage values of a National Heritage place in an area in respect of which Australia has obligations under Article 8 of the Biodiversity Convention.
(3) A person must comply with the regulations to the extent that they impose obligations on the person.
(4) Paragraph (2)(e) applies only to a prescribed obligation that is appropriate and adapted to give effect to Australia’s obligations under Article 8 of the Biodiversity Convention.
Subdivision F—Obligations of Commonwealth agencies
324Z Obligation to assist the Minister and the Australian Heritage Council
(1) A Commonwealth agency that owns or controls a place that has, or might have, one or more National Heritage values must take all reasonable steps to assist the Minister and the Australian Heritage Council in the identification, assessment and monitoring of the place’s National Heritage values.
(2) A Commonwealth agency that owns or controls all or part of a National Heritage place must take all reasonable steps to assist the Minister to make a plan under section 324S for the place.
324ZA Protecting National Heritage values of places sold or leased
(1) This section applies if a Commonwealth agency executes a contract for the sale or lease to someone else of a Commonwealth area in the Australian jurisdiction that is or includes all or part of a National Heritage place. It does not matter whether the agency executes the contract for the Commonwealth or on its own behalf.
(1A) The Commonwealth agency must give the Minister at least 40 business days’ notice before executing the contract.
(2) The Commonwealth agency must ensure that the contract includes a covenant the effect of which is to protect the National Heritage values of the place, unless the agency is satisfied that:
(a) having regard to other means of protecting those values, including such a covenant in the contract is unnecessary to protect them or is unreasonable; or
(b) including such a covenant in the contract is impracticable.
(3) The Commonwealth agency must inform the Minister before executing the contract if:
(a) such a covenant:
(i) would not, or could not be made to, bind the successors in title of the buyer or lessee; or
(ii) could be insufficient to ensure the ongoing protection of the National Heritage values of the place; or
(b) the agency is satisfied as described in subsection (2).
The information must include written reasons why paragraph (a) applies or why the agency is satisfied as described in subsection (2).
(4) If the Minister is informed of a matter in paragraph (3)(a) or that the Commonwealth agency is satisfied that it is unreasonable or impracticable to include such a covenant in the contract, the Minister must:
(a) take all reasonable measures to enter into a conservation agreement with the prospective buyer or lessee for the protection and conservation of the National Heritage values of the place; or
(b) advise the agency about measures to ensure the ongoing protection of the National Heritage values of the place.
(5) If the Minister is informed that the Commonwealth agency is satisfied that it is unnecessary to include such a covenant in the contract, the Minister may advise the agency about measures to ensure the ongoing protection of the National Heritage values of the place.
(6) If the Minister advises the Commonwealth agency under this section about measures to ensure the ongoing protection of the National Heritage values of the place, the agency must take all reasonable steps to ensure that the measures are taken.
Subdivision G—Assistance for protecting National Heritage places
324ZB Commonwealth assistance for protecting National Heritage places
(1) The Commonwealth may give financial or other assistance for the identification, promotion, protection or conservation of a National Heritage place to:
(a) a State or self‑governing Territory in which the place or part of the place is located; or
(b) any other person.
(2) The Commonwealth may give the assistance subject to conditions.
Subdivision H—Reviewing and reporting on the National Heritage List
324ZC Reviewing and reporting on the National Heritage List
(1) At least once in every 5 year period after the National Heritage List is established, the Minister must ensure that:
(a) a review of the National Heritage List is carried out; and
(b) a report of that review is tabled in each House of the Parliament.
(2) The report must include details of:
(a) the number of places included in the National Heritage List; and
(b) any significant damage or threat to the National Heritage values of those places; and
(c) how many plans under Subdivisions C and D for managing National Heritage places have been made, or are being prepared, and how effectively the plans that have been made are operating; and
(d) the operation of any conservation agreements under Part 14 that affect National Heritage places; and
(e) all nominations, assessments and changes to the National Heritage List under this Division during the period of review; and
(f) compliance with this Act in relation to National Heritage places; and
(g) any other matters that the Minister considers relevant.
Division 2—Managing wetlands of international importance
Subdivision A—Simplified outline of this Division
325 Simplified outline of this Division
The following is a simplified outline of this Division:
The Commonwealth may designate a wetland for inclusion in the List of Wetlands of International Importance kept under the Ramsar Convention only after seeking the agreement of relevant States, self‑governing Territories and land‑holders.
The Minister must make plans for managing wetlands listed under the Ramsar Convention that are entirely in Commonwealth areas. The Commonwealth and Commonwealth agencies must not contravene such plans.
The Commonwealth must try to prepare and implement management plans for other wetlands listed under the Ramsar Convention, in co‑operation with the relevant States and self‑governing Territories.
The Commonwealth and Commonwealth agencies have duties relating to declared Ramsar wetlands in States and Territories.
The Commonwealth can provide assistance for the protection or conservation of declared Ramsar wetlands.
Note: Section 16 prohibits an action that has a significant impact on an internationally important wetland, unless the person taking the action has the approval of the Minister administering that section or certain other requirements are met.
Subdivision B—Seeking agreement on Ramsar designation
326 Commonwealth must seek agreement before designation
(1) The Commonwealth may designate for inclusion in the List of Wetlands of International Importance kept under the Ramsar Convention a wetland containing an area owned or occupied by another person only if the Minister is satisfied that the Commonwealth has used its best endeavours to reach agreement with the other person on:
(a) the proposed designation of the wetland (so far as it relates to the area); and
(b) management arrangements for the wetland (so far as they relate to the area).
(2) The Commonwealth may designate a wetland in a State or self‑governing Territory for inclusion in the List of Wetlands of International Importance kept under the Ramsar Convention only if the Minister is satisfied that the Commonwealth has used its best endeavours to reach agreement with the State or Territory on:
(a) the proposed submission of the wetland; and
(b) management arrangements for the wetland.
(3) A failure to comply with this section does not affect the designation of a wetland for inclusion in the List of Wetlands of International Importance kept under the Ramsar Convention or the status of a wetland as a declared Ramsar wetland.
Subdivision C—Notice of designation of wetland
327 Minister must give notice of designation of wetland etc.
(1) The Minister must give notice in the Gazette and in the way (if any) prescribed by the regulations of any of the following events as soon as practicable after the event occurs:
(a) the Commonwealth designates a wetland for inclusion in the List of Wetlands of International Importance kept under the Ramsar Convention;
(b) the Commonwealth extends the boundaries of a wetland it has included in the List;
(c) the Commonwealth restricts the boundaries of a wetland it has included in the List;
(d) the Commonwealth deletes from the List a wetland it previously included in the List.
(2) The notice must specify the area included in, or excluded or deleted from, the List as a result of the event.
(3) A failure to comply with this section does not affect the status of an area as a declared Ramsar wetland.
Subdivision D—Plans for listed wetlands in Commonwealth areas
328 Making plans
Minister must make plan
(1) The Minister must make a written plan for managing a wetland that is included in the List of Wetlands of International Importance kept under the Ramsar Convention and is entirely within one or more Commonwealth areas. The Minister must do so as soon as practicable after the wetland:
(a) is included in the List; or
(b) becomes entirely within one or more Commonwealth areas.
Amending and replacing plan
(2) The Minister may make a written plan amending, or revoking and replacing, a plan made under subsection (1) or this subsection.
Requirements for plan
(3) A plan must not be inconsistent with:
(a) Australia’s obligations under the Ramsar Convention; or
(b) the Australian Ramsar management principles.
Note: Section 335 explains what Australian Ramsar management principles are.
Ensuring plans reflect current management principles
(4) If the Australian Ramsar management principles change so that a plan (the earlier plan) is inconsistent with them, the Minister must make another plan:
(a) amending the earlier plan so it is not inconsistent with them; or
(b) revoking and replacing the earlier plan.
Plan may be in same document as another plan
(5) To avoid doubt, a plan under this section for a wetland may be in the same document as:
(a) a plan under this section for another wetland; or
(b) a plan that this Act or another law of the Commonwealth requires or permits to be prepared.
Commonwealth reserves
(6) Despite subsections (1) and (2), the Minister may not make a plan for so much of a wetland as is in a Commonwealth reserve.
Note: A management plan must be prepared under Division 4 for a Commonwealth reserve, taking account of Australia’s obligations under the Ramsar Convention.
Heard Island and McDonald Islands
(7) Despite subsections (1) and (2), the Minister may not make a plan for so much of a wetland as is in the Territory of Heard Island and McDonald Islands and covered by a plan:
(a) that is in operation under the Environment Protection and Management Ordinance 1987 of that Territory; and
(b) that the Minister is satisfied is not inconsistent with:
(i) Australia’s obligations under the Ramsar Convention; or
(ii) the Australian Ramsar management principles.
329 Notice of plans
The Minister must give notice of the making of a plan under section 328, in accordance with the regulations.
330 Commonwealth compliance with plans
(1) The Commonwealth or a Commonwealth agency must not:
(a) contravene a plan made under section 328; or
(b) authorise another person to do, or omit to do, anything that, if it were done or omitted to be done by the Commonwealth or the Commonwealth agency (as appropriate), would contravene such a plan.
(2) If there is no plan in force under section 328 for a particular wetland described in subsection (1) of that section, the Commonwealth and each Commonwealth agency must take all reasonable steps to ensure that its acts (if any) relating to the wetland are not inconsistent with the Australian Ramsar management principles.
331 Review of plans every 5 years
(1) The Minister must cause a review of a plan made under section 328 to be carried out at least once in each period of 5 years after the plan is made.
(2) The review must consider whether the plan is consistent with the Australian Ramsar management principles in force at the time.
Note: Section 335 explains what Australian Ramsar management principles are.
Subdivision E—Management of wetlands in States and self‑governing Territories
332 Application
This Subdivision applies in relation to a wetland that:
(a) is:
(i) in a State; or
(ii) in a self‑governing Territory; or
(iii) on, over or under the seabed vested in a State by the Coastal Waters (State Title) Act 1980 or in the Northern Territory by the Coastal Waters (Northern Territory Title) Act 1980; and
(b) is not entirely within one or more Commonwealth areas.
333 Co‑operating to prepare and implement plans
(1) This section applies in relation to a wetland that is included in the List of Wetlands of International Importance kept under the Ramsar Convention.
(2) The Commonwealth must use its best endeavours to ensure a plan for managing the wetland in a way that is not inconsistent with Australia’s obligations under the Ramsar Convention or the Australian Ramsar management principles is prepared and implemented in co‑operation with the State or Territory.
Note: The Commonwealth and the State or Territory could make a bilateral agreement adopting the plan and providing for its implementation.
334 Commonwealth responsibilities
(1) This section applies in relation to a wetland that is a declared Ramsar wetland.
(2) The Commonwealth and each Commonwealth agency must take all reasonable steps to ensure it exercises its powers and performs its functions in relation to the wetland in a way that is not inconsistent with:
(a) the Ramsar Convention; and
(b) the Australian Ramsar management principles; and
(c) if the wetland is included in the List of Wetlands of International Importance kept under the Ramsar Convention and a plan for managing the property has been prepared as described in section 333—that plan.
Subdivision F—Australian Ramsar management principles
335 Australian Ramsar management principles
(1) The regulations must prescribe principles for the management of wetlands included in the List of Wetlands of International Importance kept under the Ramsar Convention. The principles prescribed are the Australian Ramsar management principles.
(2) Before the Governor‑General makes regulations prescribing principles, the Minister must be satisfied that the principles to be prescribed are consistent with Australia’s obligations under the Ramsar Convention.
Subdivision G—Assistance for protecting wetlands
336 Commonwealth assistance for protecting declared Ramsar wetlands
(1) The Commonwealth may give financial or other assistance for the protection or conservation of a declared Ramsar wetland to:
(a) a State or self‑governing Territory in which the wetland occurs; or
(b) any other person.
(2) The giving of assistance may be made subject to such conditions as the Minister thinks fit.
Division 3—Managing Biosphere reserves
337 Definition of Biosphere reserve
A Biosphere reserve is an area designated for inclusion in the World Network of Biosphere Reserves by the International Co‑ordinating Council of the Man and the Biosphere program of the United Nations Educational, Scientific and Cultural Organization.
338 Planning for management of Biosphere reserves
(1) The Minister may make and implement a written plan for managing a Biosphere reserve, or a part of a Biosphere reserve, entirely within one or more Commonwealth areas. The plan must not be inconsistent with the Australian Biosphere reserve management principles.
(2) The Commonwealth may co‑operate with a State or self‑governing Territory to prepare and implement a plan for managing a Biosphere reserve in the State or Territory. The plan must not be inconsistent with the Australian Biosphere reserve management principles.
339 Commonwealth activities in Biosphere reserves
The Commonwealth and each Commonwealth agency must take all reasonable steps to ensure that it exercises its powers and performs its functions in relation to a Biosphere reserve in a way that is not inconsistent with:
(a) the Australian Biosphere reserve management principles; or
(b) a plan prepared as described in section 338 for managing the Biosphere reserve.
340 Australian Biosphere reserve management principles
(1) The regulations must prescribe principles for the management of Biosphere reserves. The principles prescribed are the Australian Biosphere reserve management principles.
(2) Before the Governor‑General makes regulations prescribing principles, the Minister must be satisfied that the principles to be prescribed are consistent with the Statutory Framework of the World Network of Biosphere Reserves established under the Man and the Biosphere program of the United Nations Educational, Scientific and Cultural Organization.
341 Commonwealth assistance for protecting Biosphere reserves
(1) The Commonwealth may give financial or other assistance for the protection or conservation of a Biosphere reserve to:
(a) a State or self‑governing Territory in which the reserve or part of the reserve occurs; or
(b) any other person.
(2) The giving of assistance may be made subject to such conditions as the Minister thinks fit.
Division 3A—Managing Commonwealth Heritage places
Subdivision A—Preliminary
341A Simplified outline of this Division
The following is a simplified outline of this Division:
The Minister may only include a place in the Commonwealth Heritage List if the place is in a Commonwealth area, or is owned or leased by the Commonwealth or a Commonwealth agency outside the Australian jurisdiction, and the Minister is satisfied that the place has one or more Commonwealth Heritage values.
The Minister must ask the Australian Heritage Council for an assessment of the place’s Commonwealth Heritage values and may invite public comments on the proposed inclusion of the place in the Commonwealth Heritage List.
Commonwealth agencies must make plans to protect and manage the Commonwealth Heritage values of Commonwealth Heritage places. The Commonwealth and Commonwealth agencies must not contravene those plans.
Commonwealth agencies also have other obligations.
The Commonwealth can provide assistance for the identification, promotion, protection or conservation of Commonwealth Heritage places.
341B Extension to places etc. outside the Australian jurisdiction
This Division extends to places, acts and omissions outside the Australian jurisdiction, except so far as the contrary intention appears.
Subdivision B—The Commonwealth Heritage List
341C The Commonwealth Heritage List
(1) The Minister must keep a written record of places and their heritage values in accordance with this Subdivision and Subdivisions BA, BB and BC. The record is called the Commonwealth Heritage List.
(2) A place may be included in the Commonwealth Heritage List only if:
(a) the place either:
(i) is entirely within a Commonwealth area; or
(ii) is outside the Australian jurisdiction and is owned or leased by the Commonwealth or a Commonwealth Authority; and
(b) the Minister is satisfied that the place has one or more Commonwealth Heritage values (subject to the provisions in Subdivision BB about the emergency process).
(3) A place that is included in the Commonwealth Heritage List is called a Commonwealth Heritage place.
(4) The Commonwealth Heritage List is not a legislative instrument.
341D Meaning of Commonwealth Heritage values
(1) A place has a Commonwealth Heritage value if and only if the place meets one of the criteria (the Commonwealth Heritage criteria) prescribed by the regulations for the purposes of this section. The Commonwealth Heritage value of the place is the place’s heritage value that causes the place to meet the criterion.
(2) The Commonwealth Heritage values of a Commonwealth Heritage place are the Commonwealth Heritage values of the place included in the Commonwealth Heritage List for the place.
(3) The regulations must prescribe criteria for the following:
(a) natural heritage values of places;
(b) indigenous heritage values of places;
(c) historic heritage values of places.
The regulations may prescribe criteria for other heritage values of places.
(4) To avoid doubt, a criterion prescribed by the regulations may relate to one or more of the following:
(a) natural heritage values of places;
(b) indigenous heritage values of places;
(c) historic heritage values of places;
(d) other heritage values of places.
Subdivision BA—Inclusion of places in the Commonwealth Heritage List: usual process
341E Simplified outline
The following is a simplified outline of this Subdivision:
This Subdivision sets out the usual process for the inclusion of places in the Commonwealth Heritage List.
The usual process involves an annual cycle that revolves around 12‑month periods known as assessment periods. The Minister determines the start of the first assessment period (see section 341G).
The usual process involves the following steps for each assessment period:
(a) the Minister invites people to nominate places for inclusion in the Commonwealth Heritage List, and gives the nominations to the Australian Heritage Council (see sections 341H and 341J);
(b) the Australian Heritage Council prepares, and gives to the Minister, a list of places (which will mostly be places that have been nominated) that it thinks should be assessed (see sections 341JA, 341JB and 341JC);
(c) the Minister finalises the list of places that are to be assessed (see sections 341JD and 341JE);
(d) the Australian Heritage Council invites people to make comments about the places in the finalised list (see section 341JF);
(e) the Australian Heritage Council assesses the places in the finalised list, and gives the assessments to the Minister (see sections 341JG and 341JH);
(f) the Minister decides whether a place that has been assessed should be included in the Commonwealth Heritage List (see section 341JI).
The steps mentioned in paragraphs (a) to (c) will generally be completed before the start of the assessment period.
341F Definitions
In this Subdivision:
assessment period has the meaning given by subsection 341G(1).
eligible for assessment consideration, in relation to an assessment period, has the meaning given by subsection 341JA(3).
finalised priority assessment list for an assessment period has the meaning given by subsection 341JD(4).
proposed priority assessment list for an assessment period has the meaning given by subsection 341JA(1).
341G Meaning of assessment period
(1) For the purposes of this Subdivision, each of the following is an assessment period:
(a) the period of 12 months starting on the day determined in writing by the Minister for the purposes of this paragraph;
(b) each period of 12 months starting on an anniversary of the day so determined.
(2) The Minister must make a determination under paragraph (1)(a) within 3 months after the commencement of this section. The day so determined must not be more than 12 months after that commencement.
(3) A determination under paragraph (1)(a) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the determination.
Note: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not apply to the determination. See regulations made for the purposes of paragraph 54(2)(b) of that Act.
341H Minister to invite nominations for each assessment period
(1) Before the start of each assessment period, the Minister must publish a notice inviting people to nominate places for inclusion in the Commonwealth Heritage List.
Note: For which places can be included in the Commonwealth Heritage List, see subsection 341C(2).
(2) A notice under subsection (1):
(a) must be published in accordance with the regulations referred to in paragraph (3)(a); and
(b) must invite people to nominate, to the Minister, places for inclusion in the Commonwealth Heritage List; and
(c) must identify the assessment period to which the notice relates; and
(d) must specify a date (the cut‑off date) by which nominations must be received, which must be at least 40 business days after the notice has been published as required by paragraph (a); and
(e) must specify, or refer to, the information requirements, and the manner and form requirements, that, under regulations referred to in paragraphs (3)(b) and (c), apply to making nominations; and
(f) may also include any other information that the Minister considers appropriate.
(3) The regulations must provide for the following:
(a) how a notice under subsection (1) is to be published;
(b) the manner and form for making nominations;
(c) what information is to be included in a nomination.
341J Minister to give nominations to Australian Heritage Council
Nominations in relation to first assessment period
(1) Within 30 business days after the cut‑off date specified in the notice under subsection 341H(1) for the first assessment period, the Minister must give the Australian Heritage Council the nominations that the Minister:
(a) had received before the end of that cut‑off date; and
(b) had not already requested the Australian Heritage Council, under section 341E (as in force before the commencement of this section), to assess; and
(c) had not already rejected under section 341E (as in force before the commencement of this section); and
(d) does not reject under subsection (4).
(2) Subsection (1) does not apply to a nomination of a place if the Minister had, before the commencement of this section, included the place in the Commonwealth Heritage List under section 341F (as in force before the commencement of this section).
Nominations in relation to later assessment periods
(3) Within 30 business days after the cut‑off date (the current cut‑off date) specified in the notice under subsection 341H(1) for an assessment period (other than the first), the Minister must give the Australian Heritage Council the nominations that were received by the Minister in the period:
(a) starting immediately after the end of the cut‑off date specified in the notice under subsection 341H(1) for the immediately preceding assessment period; and
(b) ending at the end of the current cut‑off date;
other than any such nominations that the Minister has rejected under subsection (4).
Minister may reject nominations
(4) The Minister may, in writing, reject a nomination if the Minister considers that:
(a) the nomination is vexatious, frivolous or not made in good faith; or
(b) the Minister considers that regulations referred to in paragraph 341H(3)(b) or (c) have not been complied with in relation to the nomination.
(5) If a nomination is rejected under paragraph (4)(b), the Minister must, if practicable, notify the person who made the nomination of the rejection of the nomination and the reason for the rejection.
Definition
(6) In this section:
nomination means a nomination of a place for inclusion in the Commonwealth Heritage List.
341JA Australian Heritage Council to prepare proposed priority assessment list
(1) Within 40 business days after the Australian Heritage Council receives the nominations as required by subsection 341J(1) in relation to an assessment period, the Council must prepare and give to the Minister a list (the proposed priority assessment list) for the assessment period.
(2) The proposed priority assessment list is to consist of such of the places that are eligible for assessment consideration in relation to the assessment period as the Australian Heritage Council considers it appropriate to include in the list, having regard to:
(a) the Council’s own views about what should be given priority in relation to the assessment period; and
(b) the Council’s capacity to make assessments under this Division while still performing its other functions; and
(c) any other matters that the Council considers appropriate.
(3) A place is eligible for assessment consideration in relation to the assessment period if:
(a) the place has been nominated by a nomination referred to in subsection (1); or
(b) the Council itself wishes to nominate the place for inclusion in the Commonwealth Heritage List; or
(c) the place was eligible for assessment consideration, otherwise than because of this paragraph, in relation to the immediately preceding assessment period (if any) but was not included in the finalised priority assessment list for that assessment period; or
(d) each part of the place is either a place to which paragraph (a) applies, a place to which paragraph (b) applies or a place to which paragraph (c) applies.
(4) Without limiting the generality of the Australian Heritage Council’s discretion under subsection (2), the Council does not have to include in the proposed priority assessment list a place that has been nominated if the Council considers that it is unlikely that the place has any Commonwealth Heritage values. For this purpose, the Council is not required to have regard to any information beyond the information that was included in the nomination.
(5) The proposed priority assessment list is not a legislative instrument.
341JB Matters to be included in proposed priority assessment list
(1) The proposed priority assessment list for an assessment period is to include, for each place in the list:
(a) a description of the place; and
(b) an assessment completion time; and
(c) any other information required by the regulations.
(2) The assessment completion time for a place must be either:
(a) a time that is at or before the end of the assessment period to which the list relates; or
(b) if the Australian Heritage Council considers it likely that making an assessment in relation to the place will take a period that is longer than 12 months—the end of that longer period (calculated from the start of the assessment period).
341JC Statement to be given to Minister with proposed priority assessment list
(1) When the Australian Heritage Council gives the Minister the priority assessment list for an assessment period, the Council must also give the Minister a statement setting out such information as the Council considers appropriate relating to:
(a) for each place that is included in the list—why the Council included the place in the list; and
(b) for each place that is not included in the list but that was eligible for assessment consideration because of paragraph 341JA(3)(a) or (c)—why the Council did not include the place in the list.
(2) The statement must also identify, as places nominated by the Australian Heritage Council:
(a) any places that are included in the list because the Council itself wishes to nominate them (see paragraph 341JA(3)(b)); and
(b) any places that are included in the list because of paragraph 341JA(3)(d) that consist of one or more places to which paragraph 341JA(3)(b) applies.
341JD The finalised priority assessment list
(1) Within 20 business days after the Minister, under section 341JA, receives the proposed priority assessment list for an assessment period, the Minister may, in writing, make changes to the list as mentioned in subsection (2).
(2) The changes the Minister may make are as follows:
(a) including a place in the list (and also including the matters referred to in subsection 341JA(1));
(b) omitting a place from the list (and also omitting the matters referred to in subsection 341JA(1));
(c) changing the assessment completion time for a place in the list;
(d) any other changes of a kind permitted by the regulations.
(3) In exercising the power to make changes, the Minister may have regard to any matters that the Minister considers appropriate.
(4) At the end of the period of 20 business days referred to in subsection (1), the list, as changed (if at all) by the Minister, becomes the finalised priority assessment list for the assessment period.
(5) The Minister must notify the Australian Heritage Council of all changes that the Minister makes to the list.
(6) The finalised priority assessment list is not a legislative instrument.
341JE Publication of finalised priority assessment list
(1) The Australian Heritage Council must publish the finalised priority assessment list for an assessment period on the internet.
(2) The Australian Heritage Council must also publish the finalised priority assessment list in accordance with any requirements of the regulations.
341JF Australian Heritage Council to invite comments on places in finalised priority assessment list
(1) In relation to each place included in the finalised priority assessment list for an assessment period, the Australian Heritage Council must publish a notice inviting people to make comments on the place.
(2) The Australian Heritage Council may, under subsection (1), publish a single notice relating to all of the places on the finalised priority assessment list, or may publish a number of separate notices, each of which relates to one or more of the places.
(3) A notice under subsection (1), in relation to a place or places:
(a) must be published in accordance with the regulations referred to in paragraph (4)(a); and
(b) must identify the place or places to which the notice relates; and
(c) must invite people to make comments, to the Australian Heritage Council, about:
(i) whether the place or places meet any of the Commonwealth Heritage criteria; and
(ii) whether the place or places should be included in the Commonwealth Heritage List; and
(d) must specify the date (the cut‑off date) by which comments must be received, which must be at least 30 business days after the notice has been published as required by paragraph (a); and
(e) must specify, or refer to, the manner and form requirements that, under regulations referred to in paragraph (4)(b), apply to making comments; and
(f) may also invite people to comment on other matters that the Australian Heritage Council considers appropriate; and
(g) may also include any other information that the Australian Heritage Council considers appropriate.
(4) The regulations must provide for the following:
(a) how a notice under subsection (1) is to be published;
(b) the manner and form for making comments.
341JG Australian Heritage Council to assess places on finalised priority assessment list and give assessments to Minister
(1) In relation to each place included in the finalised priority assessment list for an assessment period, the Australian Heritage Council must (by the time required by section 341JH):
(a) make a written assessment whether the place meets any of the Commonwealth Heritage criteria; and
(b) give to the Minister:
(i) the written assessment (or a copy of it); and
(ii) a copy of the comments referred to in paragraphs (2)(a) and (b) (whether or not they have all been taken into account under subsection (2)).
(2) In making an assessment in relation to a place, the Australian Heritage Council, subject to subsections (3) and (4):
(a) must take into account the comments the Council receives in response to the notice under subsection 341JF(1) in relation to the place; and
(b) may take into account the comments the Council receives in response to the opportunity referred to in paragraph (5)(c); and
(c) may seek, and have regard to, information or advice from any source.
(3) The Australian Heritage Council is not required to take a comment referred to in paragraph (2)(a) into account if:
(a) the Council does not receive the comment until after the cut‑off date specified in the notice under subsection 341JF(1) in relation to the place; or
(b) the Council considers that regulations referred to in paragraph 341JF(4)(b) have not been complied with in relation to the comment.
(4) In making an assessment, the Australian Heritage Council must not consider any matter that does not relate to the question whether the place meets any of the Commonwealth Heritage criteria.
(5) If, in making an assessment, the Australian Heritage Council considers that a place within the Australian jurisdiction might have one or more Commonwealth Heritage values, the Council must:
(a) take all practicable steps:
(i) to identify each person who is an owner or occupier of all or part of the place; and
(ii) if the Council considers the place might have an indigenous heritage value—to identify each Indigenous person who has rights or interests in all or part of the place; and
(b) take all practicable steps to advise each person identified that the Council is assessing whether the place meets any of the Commonwealth Heritage criteria; and
(c) give persons advised at least 20 business days to comment in writing whether the place should be included in the Commonwealth Heritage List.
(6) If the Australian Heritage Council is satisfied that there are likely to be at least 50 persons referred to in subparagraph (5)(a)(i), the Council may satisfy the requirements of subsection (5) in relation to those persons by including the information referred to in paragraphs (5)(b) and (c) in one or more of the following:
(a) advertisements in a newspaper, or newspapers, circulating in the area in which the place is located;
(b) letters addressed to “The owner or occupier” and left at all the premises that are wholly or partly within the place;
(c) displays in public buildings at or near the place.
(7) If:
(a) the Australian Heritage Council considers that the place might have an indigenous heritage value; and
(b) there are Indigenous persons who:
(i) have rights or interests in all or part of the place; and
(ii) are neither owners nor occupiers of all or part of the place; and
(c) the Australian Heritage Council is satisfied that there is a body, or there are bodies, that can appropriately represent those Indigenous persons in relation to those rights and interests;
the Australian Heritage Council may satisfy the requirements of subsection (5) in relation to those Indigenous persons by giving the information referred to in paragraphs (5)(b) and (c) to that body or those bodies.
341JH Time by which assessments to be provided to Minister
(1) Subsection 341JG(1) must be complied with, in relation to a place included in the finalised priority assessment list for an assessment period, by the assessment completion time specified in the list for the place, or by that time as extended under this section.
(2) The Australian Heritage Council may request the Minister to extend the assessment completion time (or that time as previously extended) if the Council considers that it needs more time to make the assessment.
(3) The Minister may, in response to a request under subsection (2), extend the assessment completion time (or that time as previously extended) by such period (if any) as the Minister considers appropriate. However, the total length of all extensions of the assessment completion time must not be more than 5 years.
(4) An extension under subsection (3) must be made in writing.
(5) If the Minister grants an extension under this section, the Minister must publish particulars of the extension in a way that the Minister considers appropriate.
341JI Decision about inclusion of a place in the Commonwealth Heritage List
Minister to decide whether or not to include place
(1) After receiving from the Australian Heritage Council an assessment under section 341JG whether a place (the assessed place) meets any of the Commonwealth Heritage criteria, the Minister must:
(a) by instrument published in the Gazette, include in the Commonwealth Heritage List:
(i) the assessed place or a part of the assessed place; and
(ii) the Commonwealth Heritage values of the assessed place, or that part of the assessed place, that are specified in the instrument; or
(b) in writing, decide not to include the assessed place in the Commonwealth Heritage List.
Note: The Minister may include a place in the Commonwealth Heritage List only if the Minister is satisfied that the place has one or more Commonwealth Heritage values (see subsection 341C(2)).
(2) Subject to subsection (3), the Minister must comply with subsection (1) within 90 business days after the day on which the Minister receives the assessment.
(3) The Minister may, in writing, extend or further extend the period for complying with subsection (1).
(4) Particulars of an extension or further extension under subsection (3) must be published on the internet and in any other way required by regulations.
(5) For the purpose of deciding what action to take under subsection (1) in relation to the assessed place:
(a) the Minister must have regard to:
(i) the Australian Heritage Council’s assessment whether the assessed place meets any of the Commonwealth Heritage criteria; and
(ii) the comments (if any), a copy of which were given to the Minister under subsection 341JG(1) with the assessment; and
(b) the Minister may seek, and have regard to, information or advice from any source.
Additional requirements if Minister decides to include place
(6) If the Minister includes the assessed place, or a part of the assessed place (the listed part of the assessed place), in the Commonwealth Heritage List, he or she must, within a reasonable time:
(a) take all practicable steps to:
(i) identify each person who is an owner or occupier of all or part of the assessed place; and
(ii) advise each person identified that the assessed place, or the listed part of the assessed place, has been included in the Commonwealth Heritage List; and
(b) if the assessed place:
(i) was nominated; or
(ii) was included in a place that was nominated; or
(iii) includes a place that was nominated;
by a person in response to a notice under subsection 341H(1)—advise the person that the assessed place, or the listed part of the assessed place, has been included in the Commonwealth Heritage List; and
(c) publish a copy of the instrument referred to in paragraph (1)(a) on the internet; and
(d) publish a copy or summary of that instrument in accordance with any other requirements specified in the regulations.
(7) Paragraph (6)(a) does not apply unless the assessed place is within the Australian jurisdiction.
(8) If the Minister is satisfied that there are likely to be at least 50 persons referred to in subparagraph (6)(a)(i), the Minister may satisfy the requirements of that paragraph in relation to those persons by including the advice referred to in that paragraph in one or more of the following:
(a) advertisements in a newspaper, or newspapers, circulating in the area in which the assessed place is located;
(b) letters addressed to “The owner or occupier” and left at all the premises that are wholly or partly within the assessed place;
(c) displays in public buildings at or near the assessed place.
Additional requirements if Minister decides not to include place
(9) If the Minister decides not to include the assessed place in the Commonwealth Heritage List, the Minister must, within 10 business days after making the decision:
(a) publish the decision on the internet; and
(b) if the assessed place:
(i) was nominated; or
(ii) was included in a place that was nominated; or
(iii) includes a place that was nominated;
by a person in response to a notice under subsection 341H(1)—advise the person of the decision, and of the reasons for the decision.
Note: Subsection (9) applies in a case where the Minister decides that none of the assessed place is to be included in the Commonwealth Heritage List.
Subdivision BB—Inclusion of places in the Commonwealth Heritage List: emergency process
341JJ Simplified outline
The following is a simplified outline of this Subdivision:
This Subdivision sets out the emergency process for the inclusion of places in the Commonwealth Heritage List.
The emergency process involves the following steps:
(a) the Minister may include a place in the Commonwealth Heritage List if it is under threat (see section 341JK);
(b) the Minister asks the Australian Heritage Council to assess the place (see section 341JL);
(c) the Australian Heritage Council publishes notice of the listing and invites comments (see section 341JM);
(d) the Australian Heritage Council assesses the place, and gives the assessment to the Minister (see sections 341JN and 341JO);
(e) the Minister has 12 months from the listing of the place to decide whether it should continue to be listed, and the listing will lapse if the Minister does not make a decision within that period (see section 341JP).
341JK Minister may include place in Commonwealth Heritage List if under threat
(1) If the Minister believes:
(a) a place has or may have one or more Commonwealth Heritage values; and
(b) any of those values is under threat of a significant adverse impact; and
(c) that threat is both likely and imminent;
the Minister may, by instrument published in the Gazette, include in the Commonwealth Heritage List the place and the Commonwealth Heritage values the Minister believes the place has or may have.
Note: For which places can be included in the Commonwealth Heritage List, see subsection 341C(2).
(2) If:
(a) the place is included in the Commonwealth Heritage List under subsection (1); and
(b) before that inclusion of the place, the place was being considered for inclusion in the List under the process set out in Subdivision BA;
that process ceases to apply to the place when it is included in the List under subsection (1).
Note: Subsection (2) does not prevent the process in Subdivision BA again starting to apply to the place if (for example) the place ceases to be listed because of subsection 341JP(1) or (4) and a person subsequently nominates the place under that Subdivision.
(3) If the place is included in the Commonwealth Heritage List under subsection (1), the Minister must:
(a) in any case—within 10 business days after the inclusion of the place, publish a copy of the instrument under subsection (1):
(i) on the internet; and
(ii) in accordance with any other requirements specified in the regulations; and
(b) if the place is within the Australian jurisdiction—take all practicable steps to:
(i) identify each person who is an owner or occupier of all or part of the place; and
(ii) advise each person identified that the place has been included in the Commonwealth Heritage List.
(4) If the Minister is satisfied that there are likely to be at least 50 persons referred to in subparagraph (3)(b)(i), the Minister may satisfy the requirements of paragraph (3)(b) in relation to those persons by including the advice referred to in that paragraph in one or more of the following:
(a) advertisements in a newspaper, or newspapers, circulating in the area in which the place is located;
(b) letters addressed to “The owner or occupier” and left at all the premises that are wholly or partly within the place;
(c) displays in public buildings at or near the place.
341JL Minister to ask Australian Heritage Council for assessment
(1) If the Minister includes a place in the Commonwealth Heritage List under section 341JK, the Minister must, in writing, request the Australian Heritage Council to give the Minister an assessment of whether the place meets any of the Commonwealth Heritage criteria.
(2) The request must specify the assessment completion time for the assessment.
Note: When specifying an assessment completion time, the 12‑month period referred to in subsection 341JP(1) should be considered.
341JM Publication of listing of place and inviting comments
(1) If the Australian Heritage Council receives a request under subsection 341JL(1) in relation to a place that has been included in the Commonwealth Heritage List, the Council must publish a notice inviting people to comment on the listing of the place.
(2) A notice under subsection (1) in relation to a place:
(a) must be published in accordance with the regulations referred to in paragraph (3)(a); and
(b) must contain the following:
(i) a description of the place;
(ii) a statement that the place has been included in the Commonwealth Heritage List, and that specifies the Commonwealth Heritage values that have been included in the List in relation to the place;
(iii) the date on which the place was so included; and
(c) must invite people to make comments, to the Australian Heritage Council, about:
(i) whether the place meets any of the Commonwealth Heritage criteria; and
(ii) whether the place should continue to be included in the Commonwealth Heritage List; and
(d) must specify the date (the cut‑off date) by which comments must be received, which must be at least 30 business days after the notice has been published as required by paragraph (a); and
(e) must specify, or refer to, the manner and form requirements that, under regulations referred to in paragraph (3)(b), apply to making comments.
(3) The regulations may provide for either or both of the following:
(a) how a notice under subsection (1) is to be published;
(b) the manner and form for making comments.
341JN Australian Heritage Council to assess place and give assessment to Minister
(1) Section 341JG applies in relation to a request under subsection 341JL(1) as if:
(a) a reference in section 341JG to a place included in the finalised priority assessment list for an assessment period were a reference to the place to which the request relates; and
(b) a reference in section 341JG to the notice under subsection 341JF(1) in relation to the place were a reference to the notice under subsection 341JM(1) in relation to the place; and
(c) a reference in section 341JG to regulations referred to in paragraph 341JF(4)(b) were a reference to regulations referred to in paragraph 341JM(3)(b); and
(d) a reference in section 341JG to whether the place should be included in the Commonwealth Heritage List were a reference to whether the place should continue to be included in the Commonwealth Heritage List.
(2) A reference in another provision of this Act to section 341JG, or to a provision of that section, includes a reference to that section or provision as it applies because of this section.
341JO Time by which assessments to be provided to Minister
(1) Section 341JH applies in relation to a request under subsection 341JL(1) as if:
(a) a reference in section 341JH to a place included in the finalised priority assessment list for an assessment period were a reference to the place to which the request relates; and
(b) a reference in section 341JH to the assessment completion time specified in the list for the place were a reference to the assessment completion time specified in the request.
(2) A reference in another provision of this Act to section 341JH, or to a provision of that section, includes a reference to that section or provision as it applies because of this section.
341JP Decision about place remaining in the Commonwealth Heritage List
Minister to decide whether place should remain listed
(1) Within 12 months after the inclusion of a place in the Commonwealth Heritage List under section 341JK, the Minister must, by instrument published in the Gazette, subject to subsections (2) and (3):
(a) do one of the following:
(i) state that the place remains in the Commonwealth Heritage List with its boundary unaltered;
(ii) alter the boundary of the place described in the Commonwealth Heritage List (whether or not the alteration results in an overall increase or decrease in the extent of the place included in the List);
(iii) remove from the Commonwealth Heritage List the place and its Commonwealth Heritage values; and
(b) if the place is not removed from the Commonwealth Heritage List under subparagraph (a)(iii)—do all or any of the following:
(i) state that specified Commonwealth Heritage values included in the List under section 341JK for the place remain in the List for the place;
(ii) include in the List for the place specified Commonwealth Heritage values of the place that were not included in the List under section 341JK for the place;
(iii) remove from the List for the place specified Commonwealth Heritage values that were included in the List under section 341JK for the place.
(2) The Minister must not take action under subsection (1) unless the Minister has received an assessment from the Australian Heritage Council under section 341JG in relation to the place.
(3) The Minister must not take action under subsection (1) that results in the place remaining in the Commonwealth Heritage List (whether or not with the same or a different boundary) unless the Minister is satisfied that the place has one or more Commonwealth Heritage values.
Listing lapses automatically if action not taken within 12 months of listing
(4) If the Minister does not take action under subsection (1) within the period referred to in that subsection, the place, and its listed Commonwealth Heritage values, are automatically removed from the Commonwealth Heritage List, by force of this subsection, at the end of that period.
Note: This subsection applies even if the Minister is prevented from taking action under subsection (1) because of subsection (2).
Matters to be considered
(5) For the purpose of deciding what action to take under subsection (1) in relation to the place:
(a) the Minister must have regard to:
(i) the Australian Heritage Council’s assessment whether the place meets any of the Commonwealth Heritage criteria; and
(ii) the comments (if any), a copy of which were given to the Minister under subsection 341JG(1) with the assessment; and
(b) the Minister may seek, and have regard to, information or advice from any source.
Disapplying section 341L
(6) Section 341L does not apply to:
(a) an alteration of the boundary of the place, under subparagraph (1)(a)(ii) of this section, that has the effect of removing part of the place from the Commonwealth Heritage List; or
(b) the removal of the place and its Commonwealth Heritage values under subparagraph (1)(a)(iii) of this section; or
(c) the removal of a Commonwealth Heritage value of the place under subparagraph (1)(b)(iii) of this section.
Minister to publish copy or summary of subsection (1) notice
(7) The Minister must publish a copy or summary of the instrument referred to in subsection (1). The regulations may specify how the publication is to be made. Subject to any such regulations, the publication must be made in a way that the Minister considers appropriate.
Additional requirements if place etc. is removed under subsection (1)
(8) If, under subsection (1), the Minister removes from the Commonwealth Heritage List the place or a Commonwealth Heritage value of the place, or alters the boundary of the place described in the List, the Minister must, within 10 business days after the removal or alteration:
(a) in any case—publish a copy of the instrument referred to in subsection (1) on the internet; and
(b) if the place is within the Australian jurisdiction—advise each person identified by the Minister as an owner or occupier of all or part of the place of the removal or alteration.
Note: For the obligation to identify owners or occupiers, see subsection 341JK(3).
Requirements if place is removed under subsection (4)
(9) If, under subsection (4), the place, and its listed Commonwealth Heritage values, are removed from the Commonwealth Heritage List, the Minister must, within 10 business days after the removal:
(a) in any case—publish notice of the removal on the internet; and
(b) if the place is within the Australian jurisdiction—advise each person identified by the Minister as an owner or occupier of all or part of the place of the removal.
Note: For the obligation to identify owners or occupiers, see subsection 341JK(3).
Alternative methods of notifying owners and occupiers
(10) If the Minister is satisfied that there are likely to be at least 50 persons referred to in paragraph (8)(b) or (9)(b), the Council may satisfy the requirements of that paragraph in relation to those persons by including the advice referred to in that paragraph in one or more of the following:
(a) advertisements in a newspaper, or newspapers, circulating in the area in which the place is located;
(b) letters addressed to “The owner or occupier” and left at all the premises that are wholly or partly within the place;
(c) displays in public buildings at or near the place.
Subdivision BC—Other provisions relating to the Commonwealth Heritage List
341JQ Co‑ordination with Scientific Committee—Council undertaking assessment
(1) This section applies if:
(a) the Australian Heritage Council undertakes an assessment of a place under Subdivision BA or Subdivision BB; and
(b) before giving the assessment to the Minister, the Council becomes aware that:
(i) the Scientific Committee is undertaking, or has undertaken, an assessment under Division 1 of Part 13; and
(ii) there is a matter that is relevant to both the assessment referred to in paragraph (a) and the assessment referred to in subparagraph (i).
(2) A member of the Australian Heritage Council may discuss the matter with a member of the Scientific Committee.
(3) Before the Australian Heritage Council gives an assessment of the place to the Minister under Subdivision BA or Subdivision BB, the Council must comply with subsection (4) or (6).
(4) If the Scientific Committee has not yet given the Minister an assessment that deals with that matter, the Australian Heritage Council must:
(a) give the Scientific Committee a copy of the assessment of the place that the Council proposes to give to the Minister; and
(b) invite the Scientific Committee to give the Council its comments in relation to that matter; and
(c) take into account, in finalising the assessment of the place that the Council gives the Minister, any comments that the Scientific Committee makes in relation to that matter in response to that invitation within 14 days, or such longer period as is specified in the invitation, after being given the invitation.
(5) If the Australian Heritage Council gives the Scientific Committee a copy of a proposed assessment of a place under paragraph (4)(a), the Council must also give the Scientific Committee a copy of the assessment of that place that the Council gives the Minister.
(6) If:
(a) the Scientific Committee has already given the Minister an assessment that deals with that matter; and
(b) the Australian Heritage Council has been given a copy of that assessment;
the Australian Heritage Council must take that assessment into account in finalising the assessment of the place that the Council gives the Minister.
(7) If, under section 194S or 194T, the Scientific Committee gives the Australian Heritage Council a proposed assessment, or an assessment, that deals with a particular matter because the Council is undertaking an assessment that deals with that matter, a member of the Council may discuss that matter with a member of the Scientific Committee.
(8) Subsection (2), paragraph (4)(a) and subsections (5) and (7) have effect despite section 341R.
341JR Co‑ordination with Scientific Committee—Council given assessment to Minister
(1) This section applies if:
(a) the Australian Heritage Council has given to the Minister an assessment of a place under Subdivision BA or Subdivision BB; and
(b) the Council is aware that:
(i) the Scientific Committee is undertaking an assessment under Division 1 of Part 13; and
(ii) there is a matter that is relevant to both the assessment referred to in paragraph (a) and the assessment referred to in subparagraph (i).
(2) The Australian Heritage Council must, within 7 days after becoming aware as referred to in paragraph (1)(b):
(a) ensure the Scientific Committee is aware of the existence of the paragraph (1)(a) assessment dealing with the matter; and
(b) give the Scientific Committee a copy of the assessment.
(3) A member of the Australian Heritage Council may discuss the matter with a member of the Scientific Committee.
(4) Subsections (2) and (3) have effect despite section 341R.
341K Listing process not affected by changing boundaries of a place
(1) This section is about compliance with a provision of Subdivision BA or BB that requires or permits an act to be done in relation to the place identified by express or implied reference to an earlier provision of that Subdivision.
(2) It is sufficient compliance with the provision if the act is done in relation to a place whose boundary overlaps the boundary of the place identified by reference to the earlier provision.
(3) This section does not affect the validity of the act so far as that depends on something other than the act being done in relation to the place.
341L Removal of places or Commonwealth Heritage values from the Commonwealth Heritage List
(1) The Minister must remove all or part of a place from the Commonwealth Heritage List as soon as practicable after the Minister becomes aware that:
(a) the place or part is no longer in a Commonwealth area; or
(b) the place or part is no longer owned or leased by the Commonwealth or a Commonwealth agency, if the place or part is outside the Australian jurisdiction.
(2) The Minister may remove all or part of a place from the Commonwealth Heritage List only if the Minister is satisfied that:
(a) ignoring subsection 341D(2), the place no longer has any Commonwealth Heritage values or the part no longer contributes to any of the Commonwealth Heritage values of the place; or
(b) it is necessary in the interests of Australia’s defence or security to do so.
Note: A place or part of a place may also be removed from the Commonwealth Heritage List under subsection 341JP(1).
(3) The Minister may remove one or more Commonwealth Heritage values included in the Commonwealth Heritage List for a Commonwealth Heritage place only if the Minister is satisfied that:
(a) ignoring subsection 341D(2), the place no longer has the Commonwealth Heritage value or values; or
(b) it is necessary in the interests of Australia’s defence or security to do so.
(4) The Minister may remove all or part of a place, or a Commonwealth Heritage value of a place, only by an instrument including a statement of the reasons for the removal.
Note 1: The Minister must first obtain and consider the advice of the Australian Heritage Council (see section 341M).
Note 2: For requirements relating to the instrument under the Legislation Act 2003, see subsections (6) and (7) of this section.
(5) The instrument must deal with only one of the following kinds of removal:
(a) removal (removal for loss of value) of a place, part or Commonwealth Heritage value because of paragraph (2)(a) or (3)(a);
(b) removal of a place, part or Commonwealth Heritage value because of subsection (1) or paragraph (2)(b) or (3)(b).
If the instrument purports to deal with both kinds, it has no effect so far as it deals with a removal for loss of value.
(6) If the instrument deals only with removal for loss of value:
(a) it is a legislative instrument; and
(b) it takes effect on the first day it is no longer liable to be disallowed, or to be taken to have been disallowed, under section 42 of the Legislation Act 2003.
(7) If subsection (6) does not apply to the instrument, it is a notifiable instrument.
Note: Notifiable instruments must be registered under the Legislation Act 2003, but they are not subject to parliamentary scrutiny or sunsetting under that Act.
341M Minister must consider advice of the Australian Heritage Council and public comments
(1) Before the Minister removes from the Commonwealth Heritage List under section 341L all or part of a place or one or more of a place’s Commonwealth Heritage values in a removal for loss of value, the Minister must:
(a) give the Chair of the Australian Heritage Council a written request for the Council to give the Minister advice on the proposed removal; and
(b) publish, on the internet, in a daily newspaper circulating in each State and self‑governing Territory and in each other way required by the regulations (if any), a notice:
(i) describing the proposed removal; and
(ii) inviting anyone to give the Minister comments, within 20 business days, on the proposed removal.
The Minister must publish the notice within 20 business days of giving the request.
(2) The Australian Heritage Council must give the advice to the Minister within the period specified by the Minister.
(3) The Minister must consider the advice, if he or she receives it by the end of that period, and the comments (if any) received in accordance with the notice.
(4) In preparing the advice, the Australian Heritage Council must not consider any matter that does not relate to the Commonwealth Heritage values of the place concerned.
(5) The Minister must:
(a) decide whether to remove from the Commonwealth Heritage List the place or part concerned, or the Commonwealth Heritage value or values of the place concerned; and
(b) if the Minister decides to remove the place or part, or the Commonwealth Heritage value or values of the place—ensure that an instrument removing the place, part or Commonwealth Heritage value or values is made under subsection 341L(4);
within 60 business days after the earlier of the advice being received by the Minister and the specified period for giving advice to the Minister ending.
(6) However, the time limit in subsection (5) does not apply if the place is wholly or partly outside the Australian jurisdiction.
341N Specifying one or more additional Commonwealth Heritage values for a Commonwealth Heritage place
(1) The regulations may make provision for, or in relation to, the specification in the Commonwealth Heritage List of additional Commonwealth Heritage values in relation to Commonwealth Heritage places.
(2) Without limiting the generality of subsection (1), regulations may make provision as mentioned in that subsection by specifying modifications of provisions of this Act. However, regulations must not:
(a) increase, or have the effect of increasing, the maximum penalty for any offence; or
(b) widen, or have the effect of widening, the scope of any offence.
341P Commonwealth Heritage List must be publicly available
The Minister must ensure that:
(a) up‑to‑date copies of the Commonwealth Heritage List are available for free to the public on request; and
(b) an up‑to‑date copy of the Commonwealth Heritage List is available on the internet.
Note: The copies of the Commonwealth Heritage List made publicly available may not contain certain information kept confidential under section 341Q.
341Q Certain information may be kept confidential
(1) This section applies if the Minister considers that the heritage values of a place could be significantly damaged by the disclosure of some or all of the following information, or by the presence or actions of persons if some or all of the following information were disclosed publicly:
(a) the place’s precise location;
(b) the place’s heritage values;
(c) any other information about the place.
(2) It is sufficient compliance with this Act if only a general description of the place, its location or its Commonwealth Heritage values is included in:
(a) the Commonwealth Heritage List as made publicly available; or
(b) an instrument or other document created for the purposes of this Act.
341R Disclosure of Australian Heritage Council’s assessments and advice
(1) A member of the Australian Heritage Council has a duty not to disclose the following to a person other than the Minister, an employee in the Department whose duties relate to the Council or another member of the Council:
(a) an assessment under section 341JG whether a place meets any of the Commonwealth Heritage criteria, any information relating to the assessment or any information about the nomination (if any) that led to the making of the assessment;
(b) advice under section 341M concerning a place or any information relating to the advice.
(2) However:
(a) the duty not to disclose a thing described in paragraph (1)(a) in relation to a place does not exist after:
(i) publication in the Gazette of an instrument under paragraph 341JI(1)(a) or subsection 341JP(1) in relation to the place; or
(ii) the Minister decides under paragraph 341JI(1)(b) not to include the place in the Commonwealth Heritage List; and
(b) the duty not to disclose a thing described in paragraph (1)(b) in relation to a place does not exist after:
(i) registration under the Legislation Act 2003 of an instrument under section 341L relating to the place; or
(ii) the Minister decides under section 341M not to remove the place or a part of the place, or one or more of the place’s Commonwealth Heritage values, from the Commonwealth Heritage List.
(2A) This section does not prevent the Australian Heritage Council from informing a person, or having discussions with a person, about the consequences that result or may result from:
(a) a place being, or not being, included in the Commonwealth Heritage List; or
(b) Commonwealth Heritage values of a place being, or not being, included in the List; or
(c) a place or part of a place, or one or more Commonwealth Heritage values of a place, being removed from the List.
(2B) Subsection (1) does not apply to a disclosure of particular information if:
(a) the Chair of the Australian Heritage Council requests the Minister to give permission to disclose that information to a particular person (or persons within a particular group of persons); and
(b) the Minister gives that permission; and
(c) the disclosure is made to that person (or a person within that group).
(3) After a member of the Australian Heritage Council has ceased under subsection (2) to have a duty not to disclose:
(a) an assessment under section 341JG whether a place meets the Commonwealth Heritage criteria; or
(b) advice under section 341M concerning a place;
the member must give a copy of the assessment or advice to anyone who asks for it.
(4) If:
(a) a member of the Australian Heritage Council proposes to give a person under subsection (3) a copy of an assessment or advice relating to a place; and
(b) the member is aware that, under section 341Q, it would be sufficient compliance with this Act if the copy included only a general description of the place, its location or its Commonwealth Heritage values;
the member must take reasonable steps to ensure that the copy given to the person does not include a more detailed description than is necessary for sufficient compliance with this Act under that section.
Subdivision C—Management plans for Commonwealth Heritage places
341S Management plans for Commonwealth Heritage places
(1) A Commonwealth agency must make a written plan to protect and manage the Commonwealth Heritage values of a Commonwealth Heritage place it owns or controls. The agency must do so within the period mentioned either:
(a) at the time the agency starts owning or controlling the place, in the agency’s heritage strategy under section 341ZA; or
(b) after that time, in the agency’s first such strategy.
Note: However, a Commonwealth agency must not make plans for managing certain places (see section 341U).
(2) The Commonwealth agency may, in writing, amend the plan or revoke and replace the plan.
(3) A Commonwealth agency must give notice, in accordance with the regulations, if the agency:
(a) makes a plan for a Commonwealth Heritage place; or
(b) amends such a plan; or
(c) revokes and replaces such a plan.
Note: Subdivision E imposes other obligations on Commonwealth agencies.
(4) A plan must:
(a) address the matters prescribed by the regulations; and
(b) not be inconsistent with the Commonwealth Heritage management principles (see Subdivision D).
(5) If the Commonwealth Heritage management principles change so that a plan (the earlier plan) is inconsistent with them, the agency concerned must as soon as practicable make a written instrument:
(a) amending the earlier plan to make it consistent with the principles; or
(b) revoking and replacing the earlier plan.
(6) Before making, amending or revoking and replacing a plan, the agency concerned must:
(a) ask the Minister for advice on the proposed plan or amendment and must take account of any such advice received from the Minister; and
(b) seek in accordance with the regulations, and consider, comments from anyone about the matters to be addressed by the proposed plan or amendment.
(7) The Minister must consult with the Australian Heritage Council in preparing an advice for the purposes of this section.
(8) A plan, an amendment of a plan, or a revocation and replacement of a plan, is a legislative instrument.
341T Endorsing management plans for Commonwealth Heritage places
(1) A Commonwealth agency that makes a plan for managing a Commonwealth Heritage place may ask the Minister to endorse the plan. If the Commonwealth agency does so, it must give the Minister a copy of the plan.
(1A) The Minister must decide within 60 business days of being given the copy of the plan whether or not to endorse the plan.
(1B) Within 10 business days of making the decision, the Minister must inform the Commonwealth agency in writing of the decision and publish on the internet a notice of the decision.
(2) The Minister:
(a) may only endorse a plan that the Minister is satisfied provides for the conservation of the Commonwealth Heritage values of the place concerned; and
(b) must not endorse a plan that the Minister considers is inconsistent with the Commonwealth Heritage management principles (see Subdivision D).
(3) The Minister may, at any time, revoke an endorsement of a plan if the Minister considers it appropriate to do so.
341U Restriction on ability to make plans
(1) Despite section 341S, a Commonwealth agency must not make a plan for managing so much of a Commonwealth Heritage place as is in a Commonwealth reserve and covered by another plan under this Act.
(2) Despite section 341S, a Commonwealth agency must not make a plan for managing so much of a Commonwealth Heritage place as is in the Territory of Heard Island and McDonald Islands and covered by a plan in operation under the Environment Protection and Management Ordinance 1987 of that Territory.
341V Compliance with plans by the Commonwealth and Commonwealth agencies
(1) The Commonwealth or a Commonwealth agency must not:
(a) contravene a plan made under section 341S; or
(b) authorise another person to do, or omit to do, anything that, if it were done or omitted to be done by the Commonwealth or the Commonwealth agency (as appropriate), would contravene such a plan.
(2) If there is no plan in force under section 341S for a particular Commonwealth Heritage place, the Commonwealth and each Commonwealth agency must take all reasonable steps to ensure that its acts (if any) relating to the place are not inconsistent with the Commonwealth Heritage management principles.
341W Multiple plans in the same document
To avoid doubt, a plan for managing a Commonwealth Heritage place may be in the same document as:
(a) one or more other plans for managing Commonwealth Heritage places; or
(b) one or more other plans that this Act or another law of the Commonwealth requires or permits to be prepared.
341X Review of plans at least every 5 years
(1) At least once in every 5 year period after a plan for managing a Commonwealth Heritage place is made under section 341S, the Commonwealth agency concerned must cause a review of the plan to be carried out.
(2) The review must:
(a) assess whether the plan is consistent with the Commonwealth Heritage management principles in force at the time; and
(b) assess whether the plan is effective in protecting and conserving the Commonwealth Heritage values of the place; and
(c) make recommendations for the improved protection of the Commonwealth Heritage values of the place.
(3) The person carrying out the review must publish, on the internet and in a daily newspaper circulating in each State and self‑governing Territory, a notice inviting anyone to give the person comments within 20 business days on:
(a) whether the plan is consistent with the Commonwealth Heritage management principles; and
(b) the effectiveness of the plan in protecting and conserving the Commonwealth Heritage values of the place.
(4) In carrying out the review, the person must consider the comments (if any) received in accordance with the notice.
Subdivision D—The Commonwealth Heritage management principles
341Y Commonwealth Heritage management principles
(1) The regulations must prescribe principles for managing Commonwealth Heritage places. The principles prescribed are the Commonwealth Heritage management principles.
(2) The regulations may prescribe obligations to implement or give effect to the Commonwealth Heritage management principles.
(3) A person must comply with the regulations to the extent that they impose obligations on the person.
Subdivision E—Obligations of Commonwealth agencies
341Z Obligation to assist the Minister and the Australian Heritage Council
A Commonwealth agency that owns or controls a place that has, or might have, one or more Commonwealth Heritage values must take all reasonable steps to assist the Minister and the Australian Heritage Council in the identification, assessment and monitoring of the place’s Commonwealth Heritage values.
341ZA Heritage strategies
(1) If a Commonwealth agency owns or controls one or more places, the agency must:
(a) prepare a written heritage strategy for managing the places to protect and conserve their Commonwealth Heritage values; and
(b) give a copy of the strategy to the Minister;
as soon as practicable and in any event within 2 years after the later of:
(c) the time the agency first owns or controls a place; and
(d) the commencement of this section.
Note: The heritage strategy will apply to every place the agency owns or controls.
(1A) Before making a heritage strategy, the Commonwealth agency must consult the Australian Heritage Council and take into account any advice the agency receives from the Council.
(2) The Commonwealth agency may, in writing, amend the heritage strategy or revoke and replace the heritage strategy. The Commonwealth agency must give the Minister a copy of the amended or replacement strategy within 20 business days of the amendment or replacement.
(3) A heritage strategy must:
(a) mention the period within which the Commonwealth agency must make a plan under section 341S; and
(b) mention the period within which the Commonwealth agency must do the things mentioned in subsection 341ZB(1); and
(c) address the matters prescribed by the regulations (if any); and
(d) not be inconsistent with the Commonwealth Heritage management principles.
(4) The Minister must advise the Commonwealth agency whether or not the agency’s heritage strategy (whether original, amended or replacement) is inconsistent with the Commonwealth Heritage management principles.
(5) At least once in every 3 year period after a heritage strategy is made, the Commonwealth agency concerned must cause a review of the strategy to be carried out.
(6) The agency must give the Minister a written report of the review. The report must address the matters prescribed by the regulations (if any).
341ZB Heritage assessments and registers
(1) A Commonwealth agency must do all of the following within the period mentioned in its heritage strategy:
(a) conduct a program to identify Commonwealth Heritage values for each place it owns or controls;
(b) produce a register that sets out, for each place it owns or controls, the Commonwealth Heritage values (if any) of that place;
(c) give the Minister a written report that includes:
(i) details of the program; and
(ii) a copy of the register.
(2) The regulations may prescribe all or any of the following:
(a) how Commonwealth heritage values may be identified for a place;
(b) matters a register must address;
(c) matters a report to the Minister must address.
(3) A Commonwealth agency must keep its register up to date.
(4) A register may be kept electronically.
(5) If a report under paragraph (1)(c) indicates that a place owned or controlled by a Commonwealth agency may have one or more Commonwealth Heritage values, information from the report may be used or referred to in a nomination of the place for inclusion in the Commonwealth Heritage List.
341ZC Minimising adverse impact on heritage values
A Commonwealth agency must not take an action that has, will have or is likely to have an adverse impact on the National Heritage values of a National Heritage place or the Commonwealth Heritage values of a Commonwealth Heritage place, unless:
(a) there is no feasible and prudent alternative to taking the action; and
(b) all measures that can reasonably be taken to mitigate the impact of the action on those values are taken.
341ZE Protecting Commonwealth Heritage values of places sold or leased
(1) This section applies if a Commonwealth agency executes a contract for the sale or lease to someone else of a Commonwealth area in the Australian jurisdiction that is or includes all or part of a Commonwealth Heritage place. It does not matter whether the agency executes the contract for the Commonwealth or on its own behalf.
(1A) The Commonwealth agency must give the Minister at least 40 business days’ notice before executing the contract.
(2) The Commonwealth agency must ensure that the contract includes a covenant the effect of which is to protect the Commonwealth Heritage values of the place, unless the agency is satisfied that:
(a) having regard to other means of protecting those values, including such a covenant in the contract is unnecessary to protect them or is unreasonable; or
(b) including such a covenant in the contract is impracticable.
(3) The Commonwealth agency must inform the Minister before executing the contract if:
(a) such a covenant:
(i) would not, or could not be made to, bind the successors in title of the buyer or lessee; or
(ii) could be insufficient to ensure the ongoing protection of the Commonwealth Heritage values of the place; or
(b) the agency is satisfied as described in subsection (2).
The information must include written reasons why paragraph (a) applies or why the agency is satisfied as described in subsection (2).
(4) If the Minister is informed of a matter in paragraph (3)(a) or that the Commonwealth agency is satisfied that it is unreasonable or impracticable to include such a covenant in the contract, the Minister must:
(a) take all reasonable measures to enter into a conservation agreement with the prospective buyer or lessee for the protection and conservation of the Commonwealth Heritage values of the place; or
(b) advise the agency about measures to ensure the ongoing protection of the Commonwealth Heritage values of the place.
(5) If the Minister is informed that the Commonwealth agency is satisfied that it is unnecessary to include such a covenant in the contract, the Minister may advise the agency about measures to ensure the ongoing protection of the Commonwealth Heritage values of the place.
(6) If the Minister advises the Commonwealth agency under this section about measures to ensure the ongoing protection of the Commonwealth Heritage values of the place, the agency must take all reasonable steps to ensure that the measures are taken.
Subdivision G—Assistance for protecting Commonwealth Heritage places
341ZG Commonwealth assistance for protecting Commonwealth Heritage places
(1) The Commonwealth may give financial or other assistance for the identification, promotion, protection or conservation of a Commonwealth Heritage place to any person.
(2) The Commonwealth may give the assistance subject to conditions.
Subdivision H—Reviewing and reporting on the Commonwealth Heritage List
341ZH Reviewing and reporting on the Commonwealth Heritage List
(1) At least once in every 5 year period after the Commonwealth Heritage List is established, the Minister must ensure that:
(a) a review of the Commonwealth Heritage List is carried out; and
(b) a report of that review is tabled in each House of the Parliament.
(2) The report must include details of:
(a) the number of places included in the Commonwealth Heritage List; and
(b) any significant damage or threat to the Commonwealth Heritage values of those places; and
(c) how many plans under Subdivision C for managing Commonwealth Heritage places have been made, or are being prepared, and how effectively the plans that have been made are operating; and
(d) the operation of any conservation agreements under Part 14 that affect Commonwealth Heritage places; and
(e) all nominations, assessments and changes to the Commonwealth Heritage List under this Division during the period of review; and
(f) compliance with this Act in relation to Commonwealth Heritage places; and
(g) any other matters that the Minister considers relevant.
Division 4—Commonwealth reserves
Subdivision A—Simplified outline of this Division
342 Simplified outline of this Division
The following is a simplified outline of this Division:
Commonwealth reserves can be declared over areas of land or sea:
(a) that the Commonwealth owns or leases; or
(b) that are in a Commonwealth marine area; or
(c) outside Australia that the Commonwealth has international obligations to protect.
A Proclamation must assign the reserve to a particular category, that affects how the reserve is managed and used.
Some activities can be undertaken in a reserve only if a management plan provides for them. Commonwealth agencies must comply with a management plan. Regulations can be made to control a wide range of activities in reserves.
The Minister may approve a management plan prepared by the Director and any Board for a reserve.
In agreement with indigenous people, the Minister can set up a Board for a reserve including land leased from indigenous people.
Subdivision B—Declaring and revoking Commonwealth reserves
343 Simplified outline of this Subdivision
The following is a simplified outline of this Subdivision:
The Governor‑General can proclaim Commonwealth reserves over areas of land or sea:
(a) that the Commonwealth owns; or
(b) that the Commonwealth or the Director leases; or
(c) that are in a Commonwealth marine area; or
(d) outside Australia that the Commonwealth has international obligations to protect.
A Proclamation must assign the reserve to a particular category that affects how the reserve is managed and used.
Proclamations can be made to alter and revoke reserves.
The Director must consult publicly before some Proclamations are made.
344 Declaring Commonwealth reserves
Declaring a Commonwealth reserve
(1) The Governor‑General may, by Proclamation, declare as a Commonwealth reserve:
(a) an area of land:
(i) that is owned by the Commonwealth in a Territory; or
(ii) that is owned by the Commonwealth outside a Territory; or
(iii) that is held under lease by the Commonwealth or the Director in a Territory; or
(iv) that is held under lease by the Commonwealth or the Director outside a Territory; or
(v) outside Australia and in respect of which Australia has obligations relating to biodiversity or heritage under an agreement with one or more other countries that may appropriately be met by declaring the area a Commonwealth reserve; or
(b) an area of sea:
(i) in a Commonwealth marine area; or
(ii) outside Australia and in respect of which Australia has obligations relating to biodiversity or heritage under an agreement with one or more other countries that may appropriately be met by declaring the area a Commonwealth reserve; or
(c) an area of land described in paragraph (a) and sea described in paragraph (b).
Note 1: Section 351 sets out some prerequisites for making Proclamations.
Note 2: A reference to Australia generally includes its coastal sea. See section 15B of the Acts Interpretation Act 1901.
Limits on acquiring land for reservation
(2) If land:
(a) is in:
(i) a State or self‑governing Territory (except the Northern Territory); or
(ii) the Northern Territory outside both Uluru‑Kata Tjuta National Park and the Alligator Rivers Region (as defined by the Environment Protection (Alligator Rivers Region) Act 1978); and
(b) is dedicated or reserved under a law of the State or Territory for purposes related to nature conservation or the protection of areas of historical, archaeological or geological importance or of areas having special significance in relation to indigenous persons;
the Commonwealth must not acquire the land for the purposes of declaring it a Commonwealth reserve, without the consent of the State or Territory.
Uluru‑Kata Tjuta National Park
(3) Uluru‑Kata Tjuta National Park is the Commonwealth reserve (as it exists from time to time) to which the name Uluru‑Kata Tjuta National Park was given by Proclamation continued in force by the Environmental Reform (Consequential Provisions) Act 1999.
345 Extent of Commonwealth reserve
(1) A Commonwealth reserve includes:
(a) land or seabed to the depth stated in the Proclamation declaring the Commonwealth reserve; and
(b) the waters and seabed under any sea in the area declared as a Commonwealth reserve.
(2) In this Act:
land includes subsoil of land and any body of water (whether flowing or not) except the sea.
seabed includes:
(a) the surface of a coral formation; and
(b) subsoil of seabed (including coral beneath the surface of a coral formation).
345A Commonwealth usage rights vest in Director
(1) When a Commonwealth reserve is declared, a usage right that relates to land or seabed in the reserve and is held by the Commonwealth vests in the Director, by force of this subsection.
(2A) However, subsection (2) does not apply to:
(a) a usage right acquired by the Commonwealth in relation to the Jabiru town land (within the meaning of the Aboriginal Land Rights (Northern Territory) Act 1976); or
(b) a usage right acquired by the Commonwealth that is prescribed by the regulations for the purposes of this paragraph.
(2) If the Commonwealth acquires a usage right relating to land or seabed in a Commonwealth reserve, the usage right vests in the Director.
(3) This section does not vest in the Director a usage right in respect of minerals, despite subsections (1) and (2).
346 Content of Proclamation declaring Commonwealth reserve
Content of Proclamation
(1) The Proclamation declaring an area to be a Commonwealth reserve must:
(a) give a name to the reserve; and
(b) state the purposes for which the reserve is declared; and
(c) state the depth of any land included in the reserve; and
(d) state the depth of the seabed that is under any sea included in the reserve; and
(e) assign the reserve to a category (an IUCN category) prescribed in regulations made for the purposes of this subsection.
Assigning different zones of a reserve to different IUCN categories
(2) A Proclamation may also divide a reserve into zones and assign each zone to an IUCN category.
Assigning leasehold land to IUCN categories
(3) Before the Governor‑General makes a Proclamation assigning a Commonwealth reserve or zone including land or seabed held by the Commonwealth or the Director under lease to a particular IUCN category, the Minister must be satisfied that the category to which it is proposed to assign the reserve or zone is consistent with the terms of the lease.
347 Assigning Commonwealth reserves and zones to IUCN categories
Before the Governor‑General makes a Proclamation assigning a Commonwealth reserve, or a zone within a Commonwealth reserve, to a particular IUCN category, the Minister must be satisfied:
(a) that the reserve or zone:
(i) has the characteristics (if any) prescribed by the regulations for the category; and
(ii) meets the criteria (if any) prescribed by the regulations for the category; and
(b) that the reserve or zone should be managed in accordance with the Australian IUCN reserve management principles for the category.
348 Australian IUCN reserve management principles
(1) The regulations must prescribe principles for each IUCN category. The principles prescribed for an IUCN category are the Australian IUCN reserve management principles for the category.
(2) The principles prescribed for an IUCN category must identify the purpose or purposes for which a Commonwealth reserve, or zone of a Commonwealth reserve, assigned to the category is primarily to be managed.
350 Revocation and alteration of Commonwealth reserves
(1) The Governor‑General may revoke or amend a Proclamation under this Subdivision by another Proclamation.
Note: Section 351 sets out some prerequisites for making Proclamations.
(2) Before the Governor‑General makes a Proclamation that results in land, sea or seabed ceasing to be included in a Commonwealth reserve, the Minister must be satisfied:
(a) that the Proclamation, if made, would be in accordance with a resolution passed by each House of Parliament on a motion; and
(b) that notice of the motion was given at least 15 sitting days of that House before the motion was moved.
(3) Subsection (2) does not apply to a Proclamation that results in land, sea or seabed ceasing to be included in one Commonwealth reserve or zone and being included in another Commonwealth reserve or zone.
(4) If the Director ceases to hold land or seabed in a Commonwealth reserve under lease:
(a) the land or seabed ceases to be part of the reserve by force of this paragraph; and
(b) the Governor‑General must make a Proclamation revoking or amending the Proclamation that included the land or seabed in a Commonwealth reserve, to reflect the fact that the land or seabed is no longer part of the reserve.
(5) Subsection (4) does not apply if the Director ceases to hold the land or seabed under a lease because:
(a) the Commonwealth becomes the owner of the land or seabed; or
(b) the Director surrenders the lease in consideration of the grant to the Director of another lease of that land or seabed.
(6) Except as described in subsection (4), land, sea or seabed in a Commonwealth reserve does not cease to be within the reserve merely because a usage right relating to the land, sea or seabed is transferred, assigned, surrendered, extinguished or changed in any way.
(7) A usage right is an estate or a legal or equitable charge, power, privilege, authority, licence or permit.
Note: Section 2B of the Acts Interpretation Act 1901 defines estate.
351 Report before making Proclamation
Minister must consider report before Proclamation made
(1) Before the Governor‑General makes a Proclamation under this Subdivision, the Minister must consider a report prepared by the Director on the matter to be dealt with by the Proclamation.
Procedure for preparing report
(2) In preparing a report, the Director must:
(a) publish in the Gazette and in accordance with the regulations (if any) a notice:
(i) stating the matter to be dealt with by the Proclamation; and
(ii) inviting the public to comment on the matter to be dealt with by the Proclamation; and
(iii) specifying the address to which comments may be sent; and
(iv) specifying the day by which any comments must be sent; and
(b) consider any comments made in response to the invitation; and
(c) include in the report the comments and the Director’s views on the comments.
Content of notice inviting comments
(3) A notice stating the matter to be dealt with by a Proclamation to declare a Commonwealth reserve must include a statement of:
(a) the proposed name of the reserve; and
(b) the proposed boundaries of the reserve and of any zones into which the reserve is to be divided; and
(c) the purpose for which the reserve is to be declared; and
(d) which IUCN category the reserve (and, if applicable, each zone of the reserve) is to be assigned to; and
(e) the purposes for which it is intended to manage and use the reserve.
Content of notice relating to revocation of Commonwealth reserve
(4) A notice stating the matter to be dealt with by a Proclamation to cause any land, sea or seabed to cease to be part of a Commonwealth reserve must state the boundaries of that land, sea or seabed.
Time for comment
(5) The day specified in the notice as the day by which any comments must be sent must be at least 60 days after the last day on which the notice is published in the Gazette or in accordance with any regulations.
When this section does not apply
(6) Subsection (1) does not apply in relation to a Proclamation that:
(a) declares an area in the Kakadu region to be a Commonwealth reserve; or
(b) has the effect of changing the name of a Commonwealth reserve in the Kakadu region; or
(c) results in land, sea or seabed ceasing to be included in one Commonwealth reserve and being included in another Commonwealth reserve without changing the IUCN category to which the land, sea or seabed is assigned.
352 What happens to Director’s usage rights when Commonwealth reserve is revoked
(1) This section applies in relation to land or seabed that ceases to be included in a Commonwealth reserve because of a Proclamation made under section 350, except a Proclamation that causes the land or seabed:
(a) to cease to be included in one Commonwealth reserve; and
(b) to be included in another Commonwealth reserve.
(2) A usage right relating to the land or seabed that the Director held vests in the Commonwealth, by force of this subsection.
(3) However, if the usage right is a lease of indigenous people’s land, the usage right ceases to exist, by force of this subsection.
(4) If the land is in a State or Territory:
(a) the Director may give the officer of the State or Territory responsible for registering land titles a copy of the Proclamation, certified by the Director; and
(b) the officer may make an entry in his or her registers and do anything else needed to reflect the effect of this section.
Subdivision C—Activities in Commonwealth reserves
353 Simplified outline of this Subdivision
The following is a simplified outline of this Subdivision:
Many works cannot be carried out in a Commonwealth reserve unless permitted by a management plan.
If there is not a management plan in force for a reserve, it must be managed in a way appropriate for the category it has been assigned to by a Proclamation or an earlier management plan.
Regulations can be made to control activities in reserves.
People who have rights relating to an area that is later included in a reserve can continue to exercise those rights in the reserve.
354 Activities that may be carried on only under management plan
(1) A person must not do one of the following acts in a Commonwealth reserve except in accordance with a management plan in operation for the reserve:
(a) kill, injure, take, trade, keep or move a member of a native species; or
(b) damage heritage; or
(c) carry on an excavation; or
(d) erect a building or other structure; or
(e) carry out works; or
(f) take an action for commercial purposes.
Civil penalty:
(a) for an individual—500 penalty units;
(b) for a body corporate—5,000 penalty units.
(1A) Subsection (1) does not apply to an action taken in the course of carrying on mining operations.
Note: Mining operations are covered by sections 355, 355A and 387.
(2) However, if a management plan is not in operation for a Commonwealth reserve, the Director may do an act described in subsection (1) for:
(a) preserving or protecting the reserve; or
(b) protecting or conserving biodiversity or heritage in the reserve; or
(c) controlling authorised scientific research; or
(d) protecting persons or property in the reserve; or
(e) managing the effects of actions taken under a usage right described in section 359.
(3) Subsection (2) does not apply in relation to so much of a Commonwealth reserve as is in the Kakadu region, the Uluru region or the Jervis Bay Territory.
Note: Section 385 sets out what the Director may do in a Commonwealth reserve in the Kakadu region, Uluru region or Jervis Bay Territory when there is not a management plan in operation for the reserve.
(3A) Subsection (1) does 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.
(4) This section has effect despite any other law of the Commonwealth, a State or a Territory, but:
(a) subsections (1) and (2) are subject to:
(i) section 359 (about interests and rights existing before a Commonwealth reserve); and
(ii) section 359A (about traditional use of an area in a reserve); and
(iii) the Antarctic Treaty (Environment Protection) Act 1980; and
(b) subsection (1) is also subject to section 385 (about activities in Commonwealth reserves in the Kakadu region, Uluru region or Jervis Bay Territory without management plans).
354A Offences relating to activities that may only be carried on under management plan
Causing death etc to native species or damage to heritage
(1) A person commits an offence if:
(a) the person takes an action; and
(b) the action is taken in a Commonwealth reserve; and
(c) the action:
(i) results in the death, injury, taking, trade, keeping or moving of a member of a native species in the reserve; or
(ii) results in damage to heritage in the reserve.
Penalty: Imprisonment for 2 years or 1,000 penalty units, or both.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.
(2) Strict liability applies:
(a) to paragraph (1)(b); and
(b) to the physical element of circumstance in paragraph (1)(c), that the member of the native species or the heritage is in the reserve.
Note: For strict liability, see section 6.1 of the Criminal Code.
Erection of buildings etc.
(3) A person commits an offence if:
(a) the person takes any of the following actions:
(i) erecting a building or structure;
(ii) carrying on an excavation;
(iii) carrying out works; and
(b) the action is taken in a Commonwealth reserve.
Penalty: Imprisonment for 2 years or 1,000 penalty units, or both.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.
(4) Strict liability applies to paragraph (3)(b).
Note: For strict liability, see section 6.1 of the Criminal Code.
Actions taken for commercial purposes
(5) A person commits an offence if:
(a) the person takes an action; and
(b) the person takes the action for a commercial purpose; and
(c) the action is taken in a Commonwealth reserve.
Penalty: Imprisonment for 2 years or 1,000 penalty units, or both.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.
(6) Paragraph (5)(b) states the fault element for paragraph (5)(a).
(7) Strict liability applies to paragraph (5)(c).
Note: For strict liability, see section 6.1 of the Criminal Code.
Exception for actions in accordance with a management plan
(8) Subsections (1), (3) and (5) do not apply to an action if the action is in accordance with a management plan in operation for the Commonwealth reserve in which the action is taken.
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 mining operations
(9) Subsections (1), (3) and (5) do not apply to an action if the action is taken in the course of carrying on mining operations.
Note 1: Mining operations are covered by sections 355, 355A and 387.
Note 2: 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 certain actions taken by the Director—actions in places other than Kakadu, Uluru or Jervis Bay
(10) Subsections (1), (3) and (5) do not apply to an action taken by the Director if:
(a) a management plan is not in operation for the Commonwealth reserve in which the action is taken; and
(b) the action is not taken in the Kakadu region, the Uluru region or the Jervis Bay Territory; and
(c) the Director takes the action for the purpose of:
(i) preserving or protecting the reserve; or
(ii) protecting or conserving biodiversity or heritage in the reserve; or
(iii) controlling authorised scientific research; or
(iv) protecting persons or property in the reserve; or
(v) managing the effects of actions taken under a usage right described in section 359.
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 certain actions taken by the Director—conduct in Kakadu, Uluru or Jervis Bay
(11) Subsections (1), (3) and (5) do not apply to an action taken by the Director in accordance with section 385.
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 prior usage rights
(12) Subsections (1), (3) and (5) 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 fishing was done:
(i) in the exclusive economic zone; and
(ii) otherwise than from an Australian vessel (or a vessel declared to be an Australian boat under subsection 4(2) of the Fisheries Management Act 1991); and
(c) at the time of the fishing, the person was not an Australian citizen or a person who held a permanent visa under the Migration Act 1958 and was domiciled in Australia or an external territory.
Section has effect despite other laws
(18) Except as provided in this section, this section has effect despite any other law of the Commonwealth or of a State or Territory.
355 Limits on mining operations in Commonwealth reserves
(1) A person must not carry on mining operations in a Commonwealth reserve except in accordance with a management plan in operation for the reserve.
Civil penalty:
(a) for an individual—500 penalty units;
(b) for a body corporate—5,000 penalty units.
(1A) Subsection (1) does not apply in relation to the Kakadu National Park or the Antarctic.
Note: Section 387 generally prohibits mining operations in the Kakadu National Park. Sections 19A and 19B of the Antarctic Treaty (Environment Protection) Act 1980 prohibit mining activities in the Antarctic.
(2) The following are mining operations:
(a) operations or activities connected with, or incidental to, the mining or recovery of minerals or the production of material from minerals, including:
(i) prospecting and exploration for minerals; and
(ii) milling, refining, treatment and processing of minerals; and
(iii) storage and disposal of minerals and materials produced from minerals;
(b) the construction and use of towns, camps, dams, pipelines power lines or other structures for the purposes of operations or activities described in paragraph (a);
(c) the performance of any other work for the purposes of operations or activities described in paragraph (a).
(3) A mineral is a naturally occurring substance or mixture of substances.
(3A) Subsection (1) does not apply to mining operations that are covered by an approval in force under subsection 359B(2). For this purpose, mining operations are covered by such an approval if:
(a) a management plan is not in operation for the Commonwealth reserve; and
(b) the mining operations are, or are in the class of mining operations, specified in the approval; and
(c) the mining operations are carried on 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.
(4) Subsection (1) does not prevent the doing of anything for the purposes of building or construction, or the supply of water, in a Commonwealth reserve unless the purposes are connected with, or incidental to, mining operations.
(5) This section is subject to:
(a) section 359 (about interests and rights existing before a Commonwealth reserve); and
(b) section 359A (about traditional use of an area in a reserve);
but has effect despite any other law of the Commonwealth, a State or a Territory.
355A Offence relating to mining operations
Offence of carrying on mining operations
(1) A person commits an offence if:
(a) the person carries on mining operations; and
(b) the mining operations are carried on in a Commonwealth reserve.
Penalty: Imprisonment for 2 years or 1,000 penalty units, or both.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.
(2) Strict liability applies to paragraph (1)(b).
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) To avoid doubt, subsection (1) does not prevent the doing of anything for the purposes of building or construction, or the supply of water, in a Commonwealth reserve unless the purposes are connected with, or incidental to, mining operations.
Exception for mining operations carried on in accordance with a management plan
(4) Subsection (1) does not apply to the carrying on of mining operations in accordance with a management plan in operation for the Commonwealth reserve in which the operations are carried on.
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 in relation to Kakadu National Park and the Antarctic
(5) Subsection (1) does not apply to the carrying on of mining operations in the Kakadu National Park or in the Antarctic.
Note 1: Section 387 generally prohibits mining operations in the Kakadu National Park. Sections 19A and 19B of the Antarctic Treaty (Environment Protection) Act 1980 prohibit mining activities in the Antarctic.
Note 2: 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 prior usage rights
(6) Subsection (1) does not apply to mining operations that are covered by a usage right, or a right arising out of a usage right, to which section 359 applies.
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 prior traditional use
(7) Subsection (1) does 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 mining operations approved under section 359B
(8) Subsection (1) does not apply to mining operations that are covered by an approval in force under subsection 359B(2). For this purpose, mining operations are covered by such an approval if:
(a) a management plan is not in operation for the Commonwealth reserve; and
(b) the mining operations are, or are in the class of mining operations, specified in the approval; and
(c) the mining operations are carried on 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.
Section has effect despite other laws
(9) Except as provided in this section, this section has effect despite any other law of the Commonwealth or of a State or Territory.
356 Regulations controlling activities relating to Commonwealth reserves
(1) The regulations may:
(a) regulate or prohibit the pollution of soil, air or water in a manner that is, or is likely to be, harmful to:
(i) people, biodiversity or heritage in Commonwealth reserves; or
(ii) the natural features of Commonwealth reserves; and
(b) regulate or prohibit tourism in Commonwealth reserves; and
(c) provide for the protection and preservation of Commonwealth reserves and property and things in Commonwealth reserves; and
(d) provide for the protection and conservation of biodiversity in Commonwealth reserves; and
(e) regulate or prohibit access to all or part of a Commonwealth reserve by persons or classes of persons; and
(f) provide for the removal of trespassers from Commonwealth reserves; and
(g) regulate or prohibit camping in Commonwealth reserves; and
(h) provide for the safety of persons in Commonwealth reserves; and
(i) regulate or prohibit the use of fire in Commonwealth reserves; and
(j) regulate the conduct, or prohibit certain kinds of conduct, of persons in Commonwealth reserves; and
(k) regulate or prohibit the carrying on of any trade or commerce in a Commonwealth reserve; and
(l) regulate or prohibit the use of vehicles in Commonwealth reserves and provide for signs and road markings for those purposes; and
(m) provide for:
(i) the removal of vehicles, aircraft or vessels from places in Commonwealth reserves where they have been left in contravention of the regulations or have been abandoned; and
(ii) the impounding of such vehicles, aircraft or vessels; and
(n) provide that the person taken for the purposes of the regulations to be the owner of a motor vehicle involved in a contravention of a provision of the regulations relating to the parking or stopping of vehicles in a Commonwealth reserve is, except as provided otherwise, taken to commit an offence against the provision; and
(o) provide for a person to be taken to be the owner of a motor vehicle for the purposes of regulations made under paragraph (n) (including a person in whose name the motor vehicle is registered under the law of a State or Territory); and
(p) regulate or prohibit the use of vessels in, and the passage of vessels through, Commonwealth reserves; and
(q) regulate or prohibit the landing and use of aircraft in, and the flying of aircraft over, Commonwealth reserves; and
(r) provide for the giving of effect to management plans for Commonwealth reserves; and
(s) regulate or prohibit the taking of animals or plants into or out of Commonwealth reserves; and
(t) provide for the impounding, removal, destruction or disposal of animals found straying in Commonwealth reserves; and
(u) regulate or prohibit the taking into Commonwealth reserves, and the use in Commonwealth reserves, of weapons, traps, nets, snares, fishing apparatus and other devices; and
(v) regulate or prohibit the laying of baits and the use of explosives and poisons in Commonwealth reserves; and
(w) provide for the collection of specimens and the pursuit of research in Commonwealth reserves for scientific purposes; and
(x) provide for the issue of licences, permits and authorities relating to activities in Commonwealth reserves, the conditions subject to which they are issued and the charging of fees by the Commonwealth in respect of such licences, permits and authorities; and
(y) provide for any matter incidental to or connected with a matter described in another paragraph.
(2) A provision of the regulations regulating or prohibiting the flying of aircraft over a Commonwealth reserve does not have any effect so far as it is inconsistent with a law of the Commonwealth. For this purpose, a provision is not inconsistent with such a law if it can be complied with without contravention of the law.
(3) A law of a Territory has effect so far as it is not inconsistent with a provision of the regulations having effect in that Territory. For this purpose, such a law is not inconsistent with the provision so far as it can operate concurrently with the provision.
356A Charges for activities in Commonwealth reserves
Subject to the approval of the Minister, the Director may determine and impose charges for:
(a) entering or using a Commonwealth reserve or part of a Commonwealth reserve; and
(b) using services or facilities provided by the Director in or in connection with a Commonwealth reserve; and
(c) the parking or stopping of vehicles in a Commonwealth reserve; and
(d) the mooring or landing of vessels in a Commonwealth reserve; and
(e) the landing of aircraft in a Commonwealth reserve; and
(f) the use of vehicles and vessels in a Commonwealth reserve.
357 Managing Commonwealth reserves while a management plan is not in operation
(1) While a management plan is not in operation for a Commonwealth reserve, the Director must exercise the Director’s powers and perform the Director’s functions in relation to the reserve or to a zone of the reserve so as to manage the reserve in accordance with:
(a) the Australian IUCN reserve management principles for the IUCN category to which the reserve or zone has most recently been assigned by:
(i) a Proclamation made under Subdivision B; or
(ii) a management plan that was in operation for the reserve (but is no longer); and
(b) if the Director holds land or seabed included in the reserve under lease—the Director’s obligations under the lease.
(2) While a management plan is not in operation for a Commonwealth reserve, the Commonwealth or a Commonwealth agency must not exercise its powers or perform its functions in relation to the reserve or a zone of the reserve inconsistently with either or both of the following:
(a) the Australian IUCN reserve management principles for the IUCN category to which the reserve or zone has most recently been assigned by:
(i) a Proclamation made under Subdivision B; or
(ii) a management plan that was in operation for the reserve (but is no longer);
(b) if the Director holds land or seabed included in the reserve under lease—the Director’s obligations under the lease.
(3) If:
(a) a zone of a Commonwealth reserve is assigned to an IUCN category at or after the time the reserve was most recently assigned to an IUCN category; and
(b) the IUCN category for the zone is different from the IUCN category for the reserve;
disregard the IUCN category to which the reserve has been assigned for the purposes of the application of this section in relation to the zone.
358 Restriction on disposal of Director’s interests in Commonwealth reserves
(1) The Director must not sell or otherwise dispose of a usage right the Director holds in relation to land, sea or seabed in a Commonwealth reserve.
(2) However, the Director may grant a lease or sub‑lease of, or a licence relating to, land or seabed in a Commonwealth reserve, but only in accordance with a management plan in operation for the reserve.
(3) Despite subsection (1), the Director may surrender a lease of land or seabed within a Commonwealth reserve in consideration of the grant to the Director of a new lease of land or seabed that includes that land or seabed.
(4) The Lands Acquisition Act 1989 does not apply to the grant or surrender of a lease or sub‑lease under this section.
(5) This section has effect despite any law of the Commonwealth or of a State or Territory.
359 Prior usage rights relating to Commonwealth reserves continue to have effect
(1) None of the following provisions affect a usage right that was held by a person (other than the Commonwealth or the Director) in relation to land or seabed immediately before the land or seabed was included in a Commonwealth reserve:
(a) provisions of this Division that relate to the reserve (whether or not they also relate to another Commonwealth reserve);
(b) provisions of the regulations made for the purposes of this Division that relate to the reserve (whether or not they also relate to another Commonwealth reserve);
(c) provisions of a management plan for the reserve.
(2) None of the provisions described in subsection (1) affect the application of a law of a State or Territory in relation to the usage right.
(3) The usage right may be renewed or have its term extended only:
(a) with the Minister’s written consent; and
(b) subject to any conditions determined by the Minister.
This subsection has effect despite subsections (1) and (2) and any other law of the Commonwealth, a State or a Territory.
(4) Subsections (1) and (2) apply in relation to a usage right relating to minerals on, in or under land or seabed included in a Commonwealth reserve as if the usage right were a usage right relating to the land or seabed.
(5) This section applies to a right arising out of a usage right in the same way as it applies to the usage right.
(6) This section does not apply in relation to:
(a) a usage right relating to minerals in Kakadu National Park; or
(b) a usage right so far as it relates to mining operations for those minerals.
359A Traditional use of Commonwealth reserves by indigenous persons
(1) This Division and regulations made for the purposes of this Division do not prevent an indigenous person from continuing in accordance with law the traditional use of an area in a Commonwealth reserve for:
(a) hunting or food‑gathering (except for purposes of sale); or
(b) ceremonial and religious purposes.
(2) However, regulations made for the purposes of this Division do affect an indigenous person’s traditional use of an area in a Commonwealth reserve if they:
(a) are made for the purpose of conserving biodiversity in the area; and
(b) expressly affect the traditional use of the area by indigenous persons.
359B Director’s approval of actions and mining operations when a management plan is not in operation
Approval of actions (other than mining operations)
(1) The Director may, in writing, approve the taking of a specified action or a specified class of actions, by a specified person or a specified class of persons, in a specified area that is or is part of a Commonwealth reserve, if:
(a) the Director is satisfied that:
(i) no management plan has yet come into operation for the reserve; and
(ii) immediately before the area became included in the reserve, the person, or the persons in the class of persons, held a usage right, or a right arising out of a usage right, that entitled the person or persons to take the action, or the actions in the class of actions, in the area; and
(iii) the usage right is not a right in relation to land or seabed to which section 359 applies; or
(b) the Director is satisfied that:
(i) a management plan for the reserve has ceased to be in operation, and no further management plan for the reserve has yet come into operation; and
(ii) immediately before the management plan ceased to be in operation, the person, or the persons in the class of persons, were taking the action, or the actions in the class of actions, in the area without contravening section 354 or 354A; and
(iii) the action or class of actions is not mining operations.
Note 1: In exercising the power to give approvals, the Director must comply with section 357.
Note 2: If an action taken without approval would not contravene section 354 or 354A, the action does not need approval under this subsection.
Approval of mining operations
(2) The Director may, in writing, approve the carrying on of specified mining operations, or a specified class of mining operations, by a specified person or a specified class of persons, in a specified area that is or is part of a Commonwealth reserve, if:
(a) the Director is satisfied that no management plan has yet come into operation for the reserve; or
(b) the Director is satisfied that a management plan for the reserve has ceased to be in operation, and no further management plan for the reserve has yet come into operation.
Note 1: In exercising the power to give approvals, the Director must comply with section 357.
Note 2: If an action taken without approval would not contravene section 355 or 355A, the action does not need approval under this subsection.
Limits on approvals in relation to the Kakadu National Park and the Antarctic
(3) The Director must not approve:
(a) an action in the Antarctic that would be an element of an offence under the Antarctic Treaty (Environment Protection) Act 1980 (whether or not a defence would be available under that Act); or
(b) mining operations in the Kakadu National Park or the Antarctic.
Approvals may be subject to conditions
(4) An approval given under subsection (1) or (2) may be expressed to be subject to specified conditions.
When approvals come into force
(5) An approval given under subsection (1) or (2) comes into force on the day the Director gives the approval, or on a later day specified in the approval.
Variation and revocation of approvals
(6) The Director may, in writing, vary or revoke an approval:
(a) under subsection (1)—if the Director considers that the action, or an action in the class of actions, to which the approval relates is not being taken in accordance with the approval; or
(b) under subsection (2)—if the Director considers that the mining operations, or mining operations in the class of mining operations, to which the approval relates are not being carried on in accordance with the approval.
(7) An approval given under subsection (1) or (2), or a variation or revocation of an approval, is not a legislative instrument.
Subdivision D—Complying with management plans for Commonwealth reserves
361 Simplified outline of this Subdivision
The following is a simplified outline of this Subdivision:
The Director must manage a Commonwealth reserve to give effect to a management plan for the reserve. If indigenous people think the Director is not doing this for a reserve including their land, they can take the matter up with the Minister.
Commonwealth agencies must act so as not to contravene a management plan.
362 Commonwealth and Commonwealth agencies to comply with management plan for Commonwealth reserve
(1) The Director must exercise the Director’s powers and perform the Director’s functions to give effect to a management plan that is in operation for a Commonwealth reserve.
(2) The Commonwealth or a Commonwealth agency must not perform its functions or exercise its powers in relation to a Commonwealth reserve inconsistently with a management plan that is in operation for the reserve.
(3) To avoid doubt, if a management plan for a Commonwealth reserve prohibits the exercise of a specified power, or the performance of a specified function, under an Act (including a power or function under an instrument made under an Act), the power or function must not be exercised in or in relation to the reserve while the plan is in operation.
363 Resolving disagreement between land council and Director over implementation of plan
Minister to resolve disagreement
(1) If the Chair or Chairperson of a land council for indigenous people’s land in a jointly managed reserve and the Director disagree about whether the Director is exercising the Director’s powers and performing the Director’s functions consistently with a management plan in operation for the reserve:
(a) the Director must inform the Minister; and
(b) the Minister must appoint a person the Minister considers to be suitably qualified and in a position to deal with the matter impartially to inquire into the matter; and
(c) the person appointed must inquire into the matter and give the Minister a report and recommendations; and
(d) the Minister must give the Director any directions the Minister thinks fit; and
(e) the Director must comply with any direction.
What is a land council?
(2) The land council for indigenous people’s land in a Commonwealth reserve is:
(a) if the land is in the area of an Aboriginal Land Council established by or under the Aboriginal Land Rights (Northern Territory) Act 1976—that Aboriginal Land Council; and
(b) if the land is in Jervis Bay Territory—the Wreck Bay Aboriginal Community Council established by the Aboriginal Land Grant (Jervis Bay Territory) Act 1986; and
(c) if the land is elsewhere—a body corporate that:
(i) is established by or under an Act; and
(ii) has functions relating to the indigenous people’s land in the reserve; and
(iii) consists of indigenous persons who either live in an area to which one or more of the body’s functions relate or are registered as traditional owners of indigenous people’s land in an area to which one or more of the body’s functions relate.
What is indigenous people’s land?
(3) Land is indigenous people’s land if:
(a) a body corporate holds an estate that allows the body to lease the land to the Commonwealth or the Director; and
(b) the body corporate was established by or under an Act for the purpose of holding for the benefit of indigenous persons title to land vested in it by or under that Act.
Who is an indigenous person?
(4) A person is an indigenous person if he or she is:
(a) a member of the Aboriginal race of Australia; or
(b) a descendant of an indigenous inhabitant of the Torres Strait Islands.
What is a jointly managed reserve?
(5) A Commonwealth reserve is a jointly managed reserve if:
(a) it includes indigenous people’s land held under lease by the Director; and
(b) a Board is established for the reserve under Subdivision F.
364 Resolving disagreement between Director and Board over implementation of plan
(1) The Director must inform the Minister if the Director believes that:
(a) a decision of a Board for a Commonwealth reserve is likely to be substantially detrimental to the good management of the reserve; or
(b) a decision of a Board for a Commonwealth reserve is contrary to a management plan in operation for the reserve.
(2) The Minister must take the steps he or she thinks fit to resolve the matter.
(3) If the Minister cannot resolve the matter, the Minister must appoint as an arbitrator to inquire into the matter a person whom the Minister thinks is suitably qualified and in a position to deal with the matter impartially.
(4) The person appointed must inquire into the matter and give the Minister a report and recommendations.
(5) After the Minister receives the report and recommendations, he or she must give the Director and the Board:
(a) the directions the Minister thinks appropriate; and
(b) a statement of reasons for giving the directions; and
(c) a copy of the report and recommendations.
(6) The Director and the Board must comply with any directions given by the Minister.
Subdivision E—Approving management plans for Commonwealth reserves
365 Simplified outline of this Subdivision
The following is a simplified outline of this Subdivision:
The Minister may approve a management plan for a Commonwealth reserve prepared by the Director and any Board for the reserve. Before the Minister approves a plan, he or she may modify it.
Before the Director gives a plan to the Minister for approval, there are 2 opportunities for the public and others with an interest in the reserve to comment.
The Minister can resolve any disagreements between the Director and a Board for a reserve over preparation of a plan for the reserve.
366 Obligation to prepare management plans for Commonwealth reserves
Plans required for Commonwealth reserves without Boards
(1) The Director must prepare management plans for each Commonwealth reserve for which there is not a Board to try to ensure that a management plan for the reserve is in operation:
(a) as soon as practicable after the reserve is declared; and
(b) at all times after the first plan for managing the reserve takes effect.
Note: Section 368 specifies steps to be taken in preparing a management plan for a Commonwealth reserve.
Amending or replacing plans for reserves without Boards
(2) The Director may prepare a management plan for a Commonwealth reserve for which there is not a Board:
(a) to amend a management plan that is in operation for the reserve; or
(b) to revoke and replace a management plan that is in operation for the reserve.
Plans required for Commonwealth reserves with Boards
(3) A Board for a Commonwealth reserve must prepare management plans for the reserve in conjunction with the Director, to try to ensure that a management plan for the reserve is in operation:
(a) as soon as practicable after the Board is established; and
(b) at all times after a plan for managing the reserve first takes effect after the establishment of the Board.
Note: Section 368 specifies steps to be taken in preparing a management plan for a Commonwealth reserve.
Amending or replacing plans for reserves with Boards
(4) The Board for a Commonwealth reserve may prepare a management plan for the reserve in conjunction with the Director:
(a) to amend a management plan that is in operation for the reserve; or
(b) to revoke and replace a management plan that is in operation for the reserve.
367 Content of a management plan for a Commonwealth reserve
Mandatory content
(1) A management plan for a Commonwealth reserve must provide for the protection and conservation of the reserve. In particular, the plan must:
(a) assign the reserve to an IUCN category (whether or not a Proclamation has assigned the reserve or a zone of the reserve to that IUCN category); and
(b) state how the reserve, or each zone of the reserve, is to be managed; and
(c) state how the natural features of the reserve, or of each zone of the reserve, are to be protected and conserved; and
(d) if the Director holds land or seabed included in the reserve under lease—be consistent with the Director’s obligations under the lease; and
(e) specify any limitation or prohibition on the exercise of a power, or performance of a function, under an Act in or in relation to the reserve; and
(f) specify any mining operation, major excavation or other work that may be carried on in the reserve, and the conditions under which it may be carried on; and
(g) specify any other operation or activity that may be carried on in the reserve; and
(h) indicate generally the activities that are to be prohibited or regulated in the reserve, and the means of prohibiting or regulating them; and
(i) indicate how the plan takes account of Australia’s obligations under each agreement with one or more other countries that is relevant to the reserve (including the World Heritage Convention and the Ramsar Convention, if appropriate); and
(j) if the reserve includes a National Heritage place:
(i) not be inconsistent with the National Heritage management principles; and
(ii) address the matters prescribed by regulations made for the purposes of paragraph 324S(4)(a); and
(k) if the reserve includes a Commonwealth Heritage place:
(i) not be inconsistent with the Commonwealth Heritage management principles; and
(ii) address the matters prescribed by regulations made for the purposes of paragraph 341S(4)(a).
Plan may assign different zones to different IUCN categories
(2) A management plan for a Commonwealth reserve may divide the reserve into zones and assign each zone to an IUCN category (whether or not a Proclamation has assigned the reserve or each zone of the reserve to that IUCN category). The category to which a zone is assigned may differ from the category to which the reserve is assigned.
Consistency with Australian IUCN reserve management principles
(3) The provisions of a management plan for a Commonwealth reserve that relate to the reserve or a particular zone of the reserve must not be inconsistent with the Australian IUCN reserve management principles for the IUCN category to which the reserve or zone is assigned by the plan.
If zone is in different category from reserve
(4) If the management plan for a Commonwealth reserve assigns the reserve to one IUCN category and assigns a zone of the reserve to a different IUCN category, disregard the IUCN category to which the reserve is assigned for the purposes of the application of subsection (3) in relation to the zone.
(5) A single management plan may be the management plan for more than one Commonwealth reserve.
Plans for proposed extension of reserve
(6) A management plan for a Commonwealth reserve may include provisions relating to an area that is proposed to be included in the reserve, but they do not have effect until the area is included in the reserve.
368 Steps in preparing management plans for Commonwealth reserves
Overview of process
(1) Before the Director gives the Minister a management plan for a Commonwealth reserve for approval:
(a) the Director must publish under subsection (2) an invitation to comment on the proposal to prepare a draft of the plan; and
(b) the Director and the Board (if any) for the reserve must prepare a draft of the plan, taking into account any comments received in response to the invitation; and
(c) the Director must publish under subsection (5) an invitation to comment on the draft; and
(d) the Director must make publicly available copies of the draft free or for a reasonable fee determined by the Director; and
(e) the Director and the Board (if any) must consider any comments received in response to the invitation to comment on the draft and may alter the draft.
Notice inviting comments on proposal to prepare draft
(2) The Director must publish a notice in the Gazette, in a daily newspaper circulating in each State and self‑governing Territory and in accordance with the regulations (if any):
(a) stating that the Director proposes to prepare a draft of a management plan for the Commonwealth reserve; and
(b) inviting comments on the proposal from:
(i) members of the public; and
(ii) the Chair or Chairperson of any land council for indigenous people’s land in the reserve; and
(iii) if the reserve is in a State or self‑governing Territory—the agency (if any) of the State or Territory that is responsible for managing national parks established in the State or Territory under a law of the State or Territory; and
(iv) if the Minister has established under Division 4 of Part 19 an advisory committee with functions relating to the reserve—the committee; and
(v) if the Director holds any land or seabed in the reserve under lease—anyone the Director is obliged under the lease to consult about management of the land or seabed; and
(c) specifying the address to which comments may be sent; and
(d) specifying a day (at least 30 days after the last day on which the notice is published in the Gazette or in accordance with the regulations (if any)) by which comments must be sent.
Considerations in preparing a management plan
(3) In preparing a management plan for a Commonwealth reserve, the Director and the Board (if any) for the reserve must take account of:
(a) any report considered by the Minister under section 351 before a Proclamation declaring the reserve was made; and
(b) the regulation of the use of the reserve for the purpose for which it was declared; and
(c) the interests of:
(i) any owner of any land or seabed in the reserve; and
(ii) the traditional owners of any indigenous people’s land in the reserve; and
(iii) any other indigenous persons interested in the reserve; and
(iv) any person who has a usage right relating to land, sea or seabed in the reserve that existed (or is derived from a usage right that existed) immediately before the reserve was declared; and
(d) the protection of the special features of the reserve, including objects and sites of biological, historical, palaeontological, archaeological, geological and geographical interest; and
(e) the protection, conservation and management of biodiversity and heritage within the reserve; and
(f) the protection of the reserve against damage; and
(g) Australia’s obligations under agreements between Australia and one or more other countries relevant to the protection and conservation of biodiversity and heritage.
Who are the traditional owners of indigenous people’s land?
(4) The traditional owners of indigenous people’s land are:
(a) a local descent group of indigenous persons who:
(i) have common spiritual affiliations to a site on the land under a primary spiritual responsibility for that site and for the land; and
(ii) are entitled by indigenous tradition to forage as of right over the land; or
(b) if the land is in the Jervis Bay Territory—the members of the Wreck Bay Aboriginal Community Council.
Notice inviting comment on draft
(5) The Director must publish a notice in the Gazette, in a daily newspaper circulating in each State and self‑governing Territory and in accordance with the regulations (if any):
(a) stating that the Director has prepared a draft of a management plan for the Commonwealth reserve; and
(b) stating how the draft can be obtained; and
(c) inviting comments on the draft from:
(i) members of the public; and
(ii) the Chair or Chairperson of any land council for any indigenous people’s land in the reserve; and
(iii) if the reserve is in a State or self‑governing Territory—the agency (if any) of the State or Territory that is responsible for managing national parks established in the State or Territory under a law of the State or Territory; and
(iv) if the Minister has established under Division 4 of Part 19 an advisory committee with functions relating to the reserve—the committee; and
(v) if the Director holds any land or seabed in the reserve under lease—anyone the Director is obliged under the lease to consult about management of the land or seabed; and
(d) specifying the address to which comments may be sent; and
(e) specifying a day (at least 30 days after the last day on which the notice is published in the Gazette or in accordance with the regulations (if any)) by which comments must be sent.
369 Resolving disagreements between Director and Board in planning process
(1) The Director and the Board for a Commonwealth reserve must inform the Minister if they cannot agree on:
(a) the content of a management plan they are preparing for the reserve; or
(b) any changes to be made following comment made in response to an invitation to comment on a draft management plan for the reserve; or
(c) whether the Director should give a management plan for the reserve to the Minister for approval (either initially or after the Minister has given the plan back to the Director with suggestions under paragraph 370(3)(b)).
(2) If the Minister is advised by the Director and a Board of a disagreement, the Minister must take the steps the Minister thinks fit to resolve the disagreement.
(3) If the Minister cannot resolve the disagreement, the Minister must appoint as an arbitrator to inquire into the matter a person whom the Minister thinks is suitably qualified and in a position to deal with the matter impartially.
(4) The appointed arbitrator must inquire into the matter and give the Minister a report and recommendations.
(5) After the Minister receives the report and recommendations, he or she must give the Director and the Board:
(a) the directions the Minister thinks appropriate; and
(b) a statement of reasons for giving the directions; and
(c) a copy of the report and recommendations.
(6) The Director and the Board must comply with any directions given by the Minister.
370 Approval of management plans for Commonwealth reserves
Giving management plan to Minister for approval
(1) The Director must give the Minister a management plan for a Commonwealth reserve for approval, but only if the Board (if any) for the reserve agrees. The Director must do so as soon as practicable after considering under paragraph 368(1)(e) the comments (if any) on a draft of the management plan.
Things to be given to Minister with management plan
(2) When the Director gives the plan to the Minister, the Director must also give the Minister:
(a) any comments received in response to the invitation to comment on a draft of the plan; and
(b) the views of the Director and any Board for the reserve on the comments.
Minister’s decision
(3) Within 60 days of the Director giving the plan, the Minister:
(a) must consider the plan and any comments and views given to the Minister under subsection (2); and
(b) must either:
(i) approve the plan; or
(ii) give the plan back to the Director with suggestions for consideration by the Director and any Board for the reserve.
Note: There are some extra rules about giving back to the Director a management plan for a Commonwealth reserve in the Kakadu region, the Uluru region or Jervis Bay Territory. See section 390.
Procedure if Minister gives plan back
(4) If the Minister gives the plan back to the Director with suggestions:
(a) the Director and any Board for the Commonwealth reserve to which the plan relates must consider the suggestions; and
(b) the Director must give the Minister an identical or altered version of the plan, but only if any Board for the reserve agrees; and
(c) the Director must give the Minister, with the plan, the Director’s views on the Minister’s suggestions.
Minister’s decision on re‑submitted plan
(5) As soon as practicable after the Director has given the Minister a version of the plan under subsection (4), the Minister:
(a) must consider it and the views given to the Minister under subsection (4); and
(b) must approve the plan with any modifications the Minister considers appropriate.
Considerations for Minister assigning reserve to IUCN category
(6) When approving a management plan for a Commonwealth reserve to assign the reserve, or a zone of a reserve, to a particular IUCN category, the Minister must be satisfied of the matters specified in section 347 that he or she would have to be satisfied of before the Governor‑General could make a Proclamation to assign the reserve or zone to that IUCN category.
371 Approved management plans are legislative instruments
(1) A management plan for a Commonwealth reserve prepared by the Director, and the Board (if any) for the reserve, and approved by the Minister, is a legislative instrument made by the Minister on the day the plan is approved.
(3) When the management plan is laid before each House of the Parliament, there must also be laid before the House copies of any comments, views, report or recommendations given to the Minister under this Division in relation to the plan that have not been given effect to in the plan.
372 Amendment and revocation of management plans for Commonwealth reserves
A management plan for a Commonwealth reserve may amend or revoke and replace an earlier management plan for the reserve.
373 Expiry of management plans for Commonwealth reserves
A management plan for a Commonwealth reserve ceases to have effect 10 years after it took effect (unless it has already been revoked).
Subdivision F—Boards for Commonwealth reserves on indigenous people’s land
374 Simplified outline of this Subdivision
The following is a simplified outline of this Subdivision:
The Minister must establish a Board for a Commonwealth reserve that is wholly or partly on indigenous people’s land, if the land council for that land (or traditional owners) and the Minister agree that there should be a Board for the reserve.
The Board’s role is to make decisions and plans for management of the reserve, in conjunction with the Director.
A majority of Board members must be indigenous people nominated by traditional owners if the reserve is wholly or mostly on indigenous people’s land.
375 Application
This Subdivision provides for Boards for Commonwealth reserves that consist of, or include, indigenous people’s land held under lease by the Director.
376 Functions of a Board for a Commonwealth reserve
(1) The functions of a Board established for a Commonwealth reserve are:
(a) to make decisions relating to the management of the reserve that are consistent with the management plan in operation for the reserve; and
(b) in conjunction with the Director, to:
(i) prepare management plans for the reserve; and
(ii) monitor the management of the reserve; and
(iii) advise the Minister on all aspects of the future development of the reserve.
(2) When performing its functions, a Board must comply with a direction given by the Minister to the Board under:
(a) section 364 (Resolving disagreement between Director and Board over implementation of plan); or
(b) section 369 (Resolving disagreements between Director and Board in planning process).
377 Minister must establish Board if land council or traditional owners agree
(1) The Minister must establish a Board for a specified Commonwealth reserve by notice published in the Gazette and in the way (if any) prescribed by the regulations if he or she agrees on the matters set out in subsection (2) with:
(a) the land council for the indigenous people’s land in the reserve that the Director holds under lease; or
(b) if there is not such a land council—the traditional owners of the indigenous people’s land in the reserve that the Director holds under lease.
(2) The matters to be agreed on are:
(a) that a Board should be established for the reserve; and
(b) the name of the Board; and
(c) the number of positions of member of the Board; and
(d) the qualifications for appointment to each position of member of the Board.
(3) The notice must specify each of the matters described in paragraphs (2)(b), (c) and (d).
Note: The notice may specify different qualifications for different positions. See subsection 33(3A) of the Acts Interpretation Act 1901.
(4) If the reserve consists wholly or mostly of indigenous people’s land held by the Director under lease, a majority of the members of the Board must be indigenous persons nominated by the traditional owners of the indigenous people’s land.
(5) If the reserve is in a State or self‑governing Territory, at least one member of the Board must be a person nominated by the State or Territory.
Note: By agreement between the Minister and the land council or traditional owners, more than one member of a Board may be a person nominated by the State or Territory.
378 Altering the constitution of a Board or abolishing a Board
Revoking and amending notice establishing Board
(1) The Minister may, by notice in the Gazette:
(a) revoke a notice under section 377 relating to the Board for the reserve; or
(b) amend a notice under section 377 relating to the Board for the reserve so as to:
(i) change the specification of the name by which the Board is to be known; or
(ii) increase the number of members of the Board and specify the qualifications for appointment to each of the extra positions of member; or
(iii) decrease the number of positions of member of the Board and specify which positions are abolished; or
(iv) change the qualifications for appointment to a position of member of the Board.
Note: The Minister may exercise the power of amendment from time to time. See subsection 33(1) of the Acts Interpretation Act 1901.
Limits on changing composition of Board
(2) Paragraph (1)(b) has effect subject to subsections 377(4) and (5).
Note 1: Subsection 377(4) requires a majority of the members of the Board of a Commonwealth reserve consisting wholly or mostly of indigenous people’s land held by the Director under lease to be indigenous persons nominated by the traditional owners of the land.
Note 2: Subsection 377(5) requires at least one member of a Board for a reserve in a State or self‑governing Territory to be a nominee of the State or Territory.
Prerequisite to revoking or amending notice
(3) The Minister may revoke or amend a notice under section 377 relating to a Commonwealth reserve only if the Minister agrees on the revocation or amendment with:
(a) the land council for indigenous people’s land in the reserve, if the Board for the reserve was established with the agreement of the land council; or
(b) the traditional owners of indigenous people’s land in the reserve, if the Board for the reserve was established with the agreement of the traditional owners.
Board’s identity not affected by name change
(4) If the Minister amends a notice published under section 377 so as to alter a Board’s name or constitution, section 25B of the Acts Interpretation Act 1901 applies in relation to the alteration as if it had been made by an Act.
Note: This ensures that the Board’s identity and functions are not affected by the alteration, and that certain references to the Board under its old name are treated as references to the Board under its new name.
379 Appointment of Board members
Appointment of persons
(1) The Minister may, in writing, appoint a person on a part‑time basis to a position of member of a Board if:
(a) the person is qualified for appointment to the position; and
(b) the Minister is satisfied that the person is a fit and proper person to be a member of the Board (see section 379A).
Note: Subsection (1) is subject to section 390A, which deals with the appointment of a Northern Territory nominee as a member of the Board for a Commonwealth reserve consisting wholly or mostly of indigenous people’s land held by the Director under lease in the Territory.
Replacement appointments
(2) As soon as practicable after a position of member of a Board becomes vacant, the Minister must appoint a person to the position under subsection (1).
Validity of appointments
(3) A deficiency or irregularity relating to the nomination, selection or appointment of a member of a Board does not invalidate the member’s appointment.
379A Fit and proper person
In determining for the purposes of this Subdivision whether a person is a fit and proper person to be a member of a Board, the Minister may have regard to the matters specified in regulations made for the purposes of this section. The Minister may also have regard to any other matter the Minister considers appropriate.
Note: The question whether a person is a fit and proper person is relevant to subsection 379(1) (which is about appointments to Boards), and subsection 382(1A) (which is about termination of appointments).
380 Terms and conditions
Term of office
(1) A member of a Board holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.
Note: Section 382 sets out the circumstances in which a member’s appointment may be (or must be) terminated.
Avoiding doubt—future terms of office
(1A) To avoid doubt, subsection (1) does not prevent a person from being appointed as a member of a Board again. This subsection does not affect the operation of section 33AA of the Acts Interpretation Act 1901 in relation to this Act.
Resignation
(2) A member of a Board may resign his or her appointment by giving the Minister a written resignation.
Other terms and conditions
(3) A member of a Board holds office on the terms and conditions (if any) that are determined by the Minister in relation to matters not covered by this Act or the regulations.
381 Remuneration
(1) A member of a Board is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the member is to be paid the remuneration that is prescribed.
(2) A member of a Board is to be paid the allowances that are prescribed.
(3) This section has effect subject to the Remuneration Tribunal Act 1973.
382 Termination of appointments of Board members
Termination when person stops being qualified for appointment
(1) The appointment of a person to a position of member of a Board is terminated when the person ceases to be qualified for appointment to the position.
Termination if person is not fit and proper
(1A) The Minister must terminate the appointment of a member of a Board if the Minister is satisfied that the member is not a fit and proper person to be a member of the Board. For this purpose, in having regard to matters as mentioned in section 379A, the Minister may consider things that happened either before or after the member’s appointment.
Termination for misbehaviour or incapacity
(2) The Minister may terminate the appointment of a member of a Board for misbehaviour or physical or mental incapacity.
Termination for failure to attend Board meetings
(3) The Minister may terminate the appointment of a member of a Board if the member is absent, except on leave of absence, from 3 consecutive meetings of the Board of which the member has had notice.
Termination for engaging in conflicting work
(4) The Minister may terminate the appointment of a member of a Board if the member engages in paid employment that, in the Minister’s opinion, conflicts or could conflict with the proper performance of the duties of the member.
Termination for conduct inimical to Board
(4A) The Minister may terminate the appointment of a member of a Board for a reserve if the Minister is satisfied that the person has acted in a way that is not in the interest of the Board as a whole. However, the Minister may not terminate under this subsection the appointment of a member nominated by traditional owners of indigenous people’s land in the reserve.
Termination for failure to disclose interests
(5) The Minister must terminate the appointment of a member of a Board if:
(a) the member does not comply with any requirements prescribed by the regulations to disclose an interest the member has in a matter being considered or about to be considered by the Board; and
(b) the member does not have a reasonable excuse for not complying.
Termination on request by nominator
(6) The Minister must terminate the appointment of a member of a Board if:
(a) the member was appointed on the nomination of a particular person, body or group of persons; and
(b) the person, body or group gives the Minister a written request to terminate the appointment.
Termination for bankruptcy or insolvency
(7) The Minister may terminate the appointment of a member of the Board if the member:
(a) becomes bankrupt; or
(b) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(c) compounds with his or her creditors; or
(d) makes an assignment of his or her remuneration for the benefit of his or her creditors.
383 Procedure of a Board
(1) The regulations may provide for:
(a) matters relating to the operation of a Board, including:
(i) procedures for convening meetings of the Board; and
(ii) procedures for determining who is to preside at a meeting of the Board; and
(iii) determining who may attend a meeting of the Board; and
(iv) the constitution of a quorum for a meeting of the Board; and
(v) procedures relating to a member’s interest in matters being dealt with by the Board; and
(vi) the way in which matters are to be resolved by the Board; and
(b) the appointment and rights of a deputy of a member of a Board.
(2) The regulations may allow a Board to determine a matter relating to the operation of the Board for which the regulations may provide.
(3) If there are no regulations in force, a Board may operate in the way it determines.
(4) A meeting of a Board for a Commonwealth reserve consisting wholly of indigenous people’s land:
(a) must not start; and
(b) must not continue;
unless the majority of the members of the Board present are persons nominated by the traditional owners of the indigenous people’s land for appointment as members.
(5) Subsection (4) has effect despite subsections (1), (2) and (3).
Subdivision G—Special rules for some Commonwealth reserves in the Northern Territory or Jervis Bay Territory
384 Simplified outline of this Subdivision
The following is a simplified outline of this Subdivision:
Special rules apply to Commonwealth reserves in the Kakadu region, Uluru region and Jervis Bay Territory, affecting the activities that can be carried on in those reserves.
Special procedures apply to planning for management of reserves in the Kakadu region, Uluru region and Jervis Bay Territory. These provide for extra involvement of indigenous people in the planning process.
385 Activities in Commonwealth reserve without management plan
When a management plan is not in operation for a particular Commonwealth reserve wholly or partly in the Kakadu region, Uluru region or Jervis Bay Territory, the Director may perform the Director’s functions and exercise the Director’s powers in and in relation to a part of the reserve in the region, subject to any directions of the Minister.
386 What are the Kakadu region and the Uluru region?
(1) The Kakadu region is the part of the Alligator Rivers Region (as defined in the Environment Protection (Alligator Rivers Region) Act 1978) that excludes:
(a) the area shown as the Arnhem Land Aboriginal Reserve on the map mentioned in that definition; and
(b) the areas that are pastoral leases and are described on that map as Mount Bundey and Eva Valley.
(2) The Uluru region is the area of land described under the heading “Uluru” in Schedule 1 to the Aboriginal Land Rights (Northern Territory) Act 1976.
387 No mining operations in Kakadu National Park
(1) A person must not carry out mining operations in Kakadu National Park.
(2) Subsection (1) does not prevent:
(a) the use, development or reconstruction of the township known as Jabiru; or
(b) the transportation of anything in Kakadu National Park along routes (including air routes) prescribed by the regulations for the purposes of this paragraph; or
(c) the construction and use of pipelines and power lines in Kakadu National Park along routes prescribed by the regulations for the purposes of this paragraph; or
(d) the doing of anything for the purposes of building or construction, or the supply of water, in Kakadu National Park as long as the purposes are not connected with, or incidental to, mining operations; and
(e) prescribed activities carried on in Kakadu National Park in connection with, or incidental to, mining operations carried on outside Kakadu National Park.
(3) Kakadu National Park is the Commonwealth reserve (as it exists from time to time) to which the name Kakadu National Park was given by Proclamation continued in force by the Environmental Reform (Consequential Provisions) Act 1999.
388 Establishment and development of townships in the Kakadu region and Uluru region
(1) A person may use or develop a township in a part of a Commonwealth reserve, but only if:
(a) the part is in the Kakadu region or the Uluru region; and
(b) the person does so in accordance with:
(i) subsection (2); and
(ii) the management plan for the reserve; and
(iii) a town plan prepared and approved in accordance with the regulations.
(2) A person (other than the Director) may use or develop a township only on land that the person holds under lease or sub‑lease from:
(a) the Commonwealth; or
(b) the Director; or
(c) the Kakadu Aboriginal Land Trust (within the meaning of the Aboriginal Land Rights (Northern Territory) Act 1976); or
(d) the Northern Territory; or
(e) the Aboriginal and Torres Strait Islander corporation referred to in subsection 19(3F) of the Aboriginal Land Rights (Northern Territory) Act 1976.
389 Planning for townships
Management plan provisions
(1) The provisions of a management plan for a Commonwealth reserve that relate to a township must include provisions for and in relation to the use and development of the township.
Town plan provisions
(2) A town plan must make detailed provision in relation to the use and development of the township, including, in particular, the provision (if any) to be made for any matters that are specified for the purposes of this subsection by:
(a) the management plan for the Commonwealth reserve containing the township; or
(b) the regulations.
Town plans may adopt, apply or incorporate other instruments
(3) For the purposes of subsection (2), a town plan may apply, adopt or incorporate, with or without modification:
(a) the provisions of any law of the Northern Territory (or a part of the Territory), as in force at a specified time or as in force from time to time; or
(b) any matter contained in any instrument or writing as in force or existing at a specified time.
Revocation and variation of town plans
(5) A town plan may be revoked or amended in the manner provided by the regulations.
Note: Town plans are to be prepared and approved in accordance with the regulations. See subparagraph 388(1)(b)(iii).
390 Special rules to protect Aboriginal interests in planning process
(1) This section sets out some extra rules about the process of preparing management plans for a Commonwealth reserve wholly or partly within the Kakadu region, the Uluru region or Jervis Bay Territory.
(2) The Minister must give a management plan for a Commonwealth reserve back to the Director with suggestions under paragraph 370(3)(b) if the Minister is satisfied that there is a substantial difference of opinion between:
(a) the Chair or Chairperson of a land council for indigenous people’s land in the reserve, on the one hand; and
(b) the Director, or the Director and the Board for the reserve (if it is a jointly managed reserve), on the other hand.
(3) If the Minister gives the plan back to the Director with suggestions under paragraph 370(3)(b) (whether because of subsection (2) or not), the Minister must:
(a) give a copy of the suggestions to:
(i) the Chair or Chairperson of each land council for indigenous people’s land in the reserve; and
(ii) the Parks and Wildlife Commission of the Northern Territory, if the plan is for a Commonwealth reserve wholly or partly in the Territory; and
(b) invite each person to whom the Minister gave a copy of the suggestions to give the Director comments on the suggestions within 14 days.
(4) When considering the Minister’s suggestions as required by paragraph 370(4)(a), the Director and any Board for the reserve must also consider any comments made in response to the Minister’s invitation.
(5) When the Director gives the Minister an identical or altered version of the plan under paragraph 370(4)(b), the Director must also:
(a) give the Minister a copy of the comments (if any) made in response to the Minister’s invitation, and the Director’s views on those comments; and
(b) give the Chair or Chairperson of each land council for indigenous people’s land in the reserve a copy of the version of the plan given to the Minister and of the comments and views (if any) being given to the Minister under paragraph (a).
(6) The Chair or Chairperson of a land council for indigenous people’s land in the reserve may make comments to the Minister relating to the version of the plan within 14 days of receiving the copy of it.
(7) If the Minister receives comments from the Chair or Chairperson of a land council for indigenous people’s land in the reserve and the Minister is satisfied that there is a substantial difference of opinion between the Chair or Chairperson and the Director over the plan:
(a) the Minister may appoint a person the Minister considers to be suitably qualified and in a position to deal with the matter impartially to inquire into the matter; and
(b) the person appointed must inquire into the matter and give the Minister a report and recommendations.
(8) The Minister:
(a) must also consider:
(i) the comments (if any) made to the Minister by the Chair or Chairperson under subsection (6); and
(ii) the report and recommendations (if any) given to the Minister under subsection (7);
when considering under subsection 370(5) the version of the plan given to the Minister under paragraph 370(4)(b); and
(b) must not approve the plan before the end of the period described in subsection (6).
390A Appointment of Northern Territory nominee to Board
(1) This section makes special provision for the appointment of a person nominated by the Northern Territory as a member of the Board for a Commonwealth reserve consisting wholly or mostly of indigenous people’s land held by the Director under lease in the Territory.
(2) Despite subsection 379(1), the Minister must not appoint the person unless:
(a) the members of the Board nominated by the traditional owners of the land consent to the appointment; or
(b) the appointment has been recommended under subsection (5).
(3) The Northern Territory may inform the Minister if it believes that the members of the Board nominated by the traditional owners of the land are unreasonably withholding consent to the appointment.
(4) If the Northern Territory informs the Minister, he or she must refer the matter to the person (the Ombudsman) holding the office of Commonwealth Ombudsman under the Ombudsman Act 1976.
(5) If the Ombudsman is satisfied that the members of the Board nominated by the traditional owners of the land are unreasonably withholding consent to the appointment, the Ombudsman must recommend to the Minister that the Minister make the appointment.
Division 5—Conservation zones
390B Simplified outline of this Division
The following is a simplified outline of this Division:
The Governor‑General can proclaim a Commonwealth area to be a conservation zone, to protect biodiversity in the area while it is being assessed for inclusion in a Commonwealth reserve.
Regulations can be made to regulate a wide range of activities in a conservation zone.
People who have rights relating to an area that is later included in a conservation zone can continue to exercise those rights in the zone.
A conservation zone can be revoked if the Minister is satisfied the area concerned should not be included in a Commonwealth reserve. It is revoked automatically if it is included in a Commonwealth reserve.
390C Object of this Division
The object of this Division is to provide for the protection of biodiversity, other natural features and heritage in Commonwealth areas while they are being assessed for inclusion in a Commonwealth reserve.
390D Proclamation of conservation zones
(1) The Governor‑General may, by Proclamation, declare a Commonwealth area outside a Commonwealth reserve to be a conservation zone.
(2) Before the Governor‑General makes a Proclamation declaring a Commonwealth area to be a conservation zone, the Minister must be satisfied that the area should be assessed to determine whether the biodiversity, other natural features and heritage in the area should be protected by including the area in a Commonwealth reserve.
390E Regulating activities generally
(1) The regulations may:
(a) regulate or prohibit the pollution of soil, air or water in a manner that is, or is likely to be, harmful to:
(i) people, biodiversity or heritage in conservation zones; or
(ii) the natural features of conservation zones; and
(b) regulate tourism in conservation zones; and
(c) provide for the protection and preservation of conservation zones and property and things in conservation zones; and
(d) provide for the protection and conservation of biodiversity in conservation zones; and
(e) regulate or prohibit access to all or part of a conservation zone by persons or classes of persons; and
(f) provide for the removal of trespassers from conservation zones; and
(g) regulate camping in conservation zones; and
(h) provide for the safety of persons in conservation zones; and
(i) regulate the use of fire in conservation zones; and
(j) regulate the conduct of persons in conservation zones; and
(k) regulate the carrying on of any trade or commerce in a conservation zone; and
(l) regulate the use of vehicles in conservation zones and provide for signs and road markings for those purposes; and
(m) provide for:
(i) the removal of vehicles, aircraft or vessels from places in conservation zones where they have been left in contravention of the regulations or have been abandoned; and
(ii) the impounding of such vehicles, aircraft or vessels; and
(n) provide that the person taken for the purposes of the regulations to be the owner of a motor vehicle involved in a contravention of a provision of the regulations relating to the parking or stopping of vehicles in a conservation zone is, except as provided otherwise, taken to commit an offence against the provision; and
(o) provide for a person to be taken to be the owner of a motor vehicle for the purposes of regulations made under paragraph (n) (including a person in whose name the motor vehicle is registered under the law of a State or Territory); and
(p) regulate the use of vessels in, and the passage of vessels through, conservation zones; and
(q) regulate the landing and use of aircraft in, and the flying of aircraft over, conservation zones; and
(r) regulate or prohibit the taking of animals or plants into or out of conservation zones; and
(s) provide for the impounding, removal, destruction or disposal of animals found straying in conservation zones; and
(t) regulate or prohibit the taking into conservation zones, and the use in conservation zones, of weapons, traps, nets, snares, fishing apparatus and other devices; and
(u) regulate or prohibit the laying of baits and the use of explosives and poisons in conservation zones; and
(v) provide for the collection of specimens and the pursuit of research in conservation zones for scientific purposes; and
(w) provide for the issue of licences, permits and authorities relating to activities in conservation zones, the conditions subject to which they are issued and the charging of fees by the Commonwealth in respect of such licences, permits and authorities; and
(x) provide for any matter incidental to or connected with a matter described in another paragraph.
(2) Regulations relating to conservation zones may also:
(a) regulate the carrying on of mining operations, fishing, pastoral or agricultural activities for commercial purposes; and
(b) regulate the construction or alteration of buildings and structures; and
(c) regulate the construction or establishment of bridges, railways, roads, tracks, port facilities and air‑strips and the carrying out of any other works; and
(d) regulate the felling or taking of timber; and
(e) provide for and in relation to the powers to be exercised, and the functions and duties to be performed, in and in relation to conservation zones by wardens, by rangers and by other persons included in specified classes of persons; and
(f) provide for and in relation to the giving of securities for compliance with regulations made for the purposes of this section by persons doing, or proposing to do, anything to which those regulations relate.
(3) Regulations made for the purposes of this section have no effect to the extent that they are inconsistent with the terms and conditions of a right (however described) to explore for minerals, or to mine for or recover minerals, granted under section 124 of the Lands Acquisition Act 1989.
390F Charges for activities in conservation zones
Subject to the approval of the Minister, the Director may determine and impose charges for using services or facilities provided by the Director in or in connection with a conservation zone.
390G Other laws and regulations made for this Division
Regulations regulating aircraft subject to other Commonwealth laws
(1) A provision of the regulations regulating the flying of aircraft over a conservation zone does not have any effect so far as it is inconsistent with a law of the Commonwealth. For this purpose, a provision is not inconsistent with such a law if it can be complied with without contravention of the law.
Territory laws subject to regulations
(2) A law of a Territory has effect so far as it is not inconsistent with a provision of the regulations made for the purposes of this Division and having effect in that Territory. For this purpose, such a law is not inconsistent with the provision so far as it can operate concurrently with the provision.
390H Prior usage rights relating to conservation zones continue to have effect
(1) None of the following provisions affect a usage right that was held by a person (other than the Commonwealth) in relation to land or seabed immediately before the land or seabed was included in a conservation zone:
(a) provisions of this Division that relate to the zone (whether or not they also relate to another conservation zone);
(b) provisions of the regulations made for the purposes of this Division that relate to the zone (whether or not they also relate to another conservation zone).
(2) None of the provisions covered by subsection (1) affect the application of a law of a State or Territory in relation to the usage right.
(3) The usage right may be renewed or have its term extended only:
(a) with the Minister’s written consent; and
(b) subject to any conditions determined by the Minister.
This subsection has effect despite subsections (1) and (2) and any other law of the Commonwealth, a State or a Territory.
(4) Subsections (1) and (2) apply in relation to a usage right relating to minerals on, in or under land or seabed included in a conservation zone as if the usage right were a usage right relating to the land or seabed.
(5) This section applies to a right arising out of a usage right in the same way as it applies to the usage right.
390J Revoking and altering conservation zones
Proclamations to revoke or amend declaring Proclamation
(1) The Governor‑General may, by Proclamation, revoke or amend a Proclamation made under section 390D (declaring a Commonwealth area to be a conservation zone).
Limit on making Proclamations
(2) Before the Governor‑General makes a Proclamation under subsection (1) causing a Commonwealth area to cease to be within a conservation zone, the Minister must be satisfied that the area should not be included in a Commonwealth reserve.
Declaration of Commonwealth reserve revokes conservation zone
(3) A Commonwealth area ceases to be a conservation zone by force of this subsection if the area becomes or is included in a Commonwealth reserve.
Conservation zone ends if it ceases to be in Commonwealth area
(4) If land, waters, seabed or airspace in a conservation zone cease to be a Commonwealth area, the land, waters, seabed or airspace cease to be (or be in) a conservation zone by force of this subsection.
Proclamation to reflect cessation of conservation zone
(5) If land, waters, seabed or airspace cease to be a conservation zone by force of subsection (3) or (4), the Governor‑General must make a Proclamation revoking or amending the Proclamation that included the land, waters, seabed or airspace in a conservation zone, to reflect the fact that the land, waters, seabed or airspace are no longer part of the conservation zone.
Chapter 5A—The List of Overseas Places of Historic Significance to Australia
Part 15A—The List of Overseas Places of Historic Significance to Australia
390K The List of Overseas Places of Historic Significance to Australia
(1) The Minister must keep a written record of places in accordance with this Part. The record is called the List of Overseas Places of Historic Significance to Australia.
(2) The List of Overseas Places of Historic Significance to Australia is not a legislative instrument.
390L Inclusion of places in the List of Overseas Places of Historic Significance to Australia
(1) The Minister may, by notice published in the Gazette, include a place, and a statement of its historic significance to Australia, in the List of Overseas Places of Historic Significance to Australia if, and only if:
(a) the place is outside the Australian jurisdiction; and
(b) the Minister is satisfied that the place is of outstanding historic significance to Australia.
(2) The regulations may specify matters the Minister is to have regard to in considering whether he or she is satisfied as mentioned in paragraph (1)(b).
390M Removal of places from the List of Overseas Places of Historic Significance to Australia or variation of statement of historic significance
(1) The Minister may, by notice published in the Gazette, do either of the following in relation to a place that is included in the List of Overseas Places of Historic Significance to Australia:
(a) remove the place, and the statement of its historic significance to Australia, from the List;
(b) vary the statement of the place’s historic significance to Australia.
(2) The regulations may specify matters the Minister is to have regard to in considering whether to take action under subsection (1).
390N Inviting comments from other Ministers before taking action
(1) Before taking action in relation to a place under section 390L or 390M, the Minister (the Environment Minister) must:
(a) inform the following other Ministers of the action the Environment Minister proposes to take:
(i) the Minister for Foreign Affairs;
(ii) any other Minister whom the Environment Minister believes should be informed; and
(b) invite those other Ministers to give the Environment Minister comments on the proposed action; and
(c) take any comments from those other Ministers into account.
(2) In this section:
Minister for Foreign Affairs means the Minister administering the Diplomatic Privileges and Immunities Act 1967.
390P Minister may ask Australian Heritage Council for advice etc.
(1) The Minister may ask the Australian Heritage Council for advice relating to action that the Minister is considering taking under section 390L or 390M in relation to a place, and may take that advice into account in deciding what action (if any) to take under that section in relation to the place.
(2) The Minister may also seek, and have regard to, information or advice from any other source.
390Q List of Overseas Places of Historic Significance to Australia to be publicly available
The Minister must ensure that:
(a) up‑to‑date copies of the List of Overseas Places of Historic Significance to Australia are available for free to the public on request; and
(b) an up‑to‑date copy of the List is available on the internet.
390R Disclosure of Australian Heritage Council’s assessments and advice
(1) A member of the Australian Heritage Council has a duty not to disclose advice under section 390P to a person other than the Minister, an employee in the Department whose duties relate to the Council or another member of the Council.
(2) However, the duty not to disclose the advice does not exist after the Minister has decided whether to take the action to which the advice relates.
Chapter 5B—Declared commercial fishing activities
Part 15B—Declared commercial fishing activities
Division 1—Prohibition
390SA Civil penalty—declared commercial fishing activities
A person must not engage in a declared commercial fishing activity in a Commonwealth marine area.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
Note: If a body corporate is found to have contravened this section, an executive officer of the body may be found to have contravened section 494.
390SB Offence—declared commercial fishing activities
(1) A person commits an offence if:
(a) the person takes an action; and
(b) the action is taken in a Commonwealth marine area; and
(c) the action is a declared commercial fishing activity.
Penalty: Imprisonment for 7 years or 420 penalty units, or both.
Note 1: If a body corporate is found to have committed an offence against this section, an executive officer of the body may be found to have committed an offence against section 495.
Note 2: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.
(2) Strict liability applies to paragraph (1)(b).
Note: For strict liability, see section 6.1 of the Criminal Code.
Division 2—Declaring a commercial fishing activity
Subdivision A—What is a declared commercial fishing activity?
390SC What is a declared commercial fishing activity?
(1) A declared commercial fishing activity is a commercial fishing activity that is specified in:
(a) an interim declaration that is in force under section 390SD; or
(b) a final declaration that is in force under section 390SF.
(1A) A commercial fishing activity is a fishing activity that is engaged in for a commercial purpose, and, to avoid doubt, does not include an activity that constitutes recreational fishing (within the meaning of subsection 212(2)).
Note: Under subsection 212(2), recreational fishing includes fishing from a charter boat and fishing in a fishing competition.
(2) A fishing activity means an activity that constitutes fishing.
Subdivision B—Interim declaration
390SD Interim declaration
Making an interim declaration
(1) The Minister may, by legislative instrument, make a declaration (an interim declaration) that a specified commercial fishing activity is a declared commercial fishing activity.
Note 1: For variation of an interim declaration, see subsection 33(3) of the Acts Interpretation Act 1901.
Note 2: For revocation of an interim declaration, see section 390SG.
(2) When making an interim declaration, the Minister may identify a commercial fishing activity by reference to all or any of the following:
(a) a method of fishing;
(b) a type of vessel used for fishing;
(c) a method of processing, carrying or transhipping of fish that have been taken;
(d) an area of waters or of seabed.
Note: Subsection (2) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.
(2A) When making an interim declaration, the Minister may only specify a commercial fishing activity that had not been engaged in before 11 September 2012 in a Commonwealth marine area.
(3) The Minister must not make an interim declaration unless the Minister and the Fisheries Minister agree that:
(a) there is uncertainty about the environmental impacts of the commercial fishing activity; and
(b) it is appropriate that the commercial fishing activity be prohibited in a Commonwealth marine area while consultation occurs under section 390SE about whether to make a final declaration in relation to the commercial fishing activity under section 390SF.
When an interim declaration is in force
(4) An interim declaration:
(a) comes into force at the end of the day on which it is registered in the Federal Register of Legislation; and
(b) remains in force until the earlier of the following times:
(i) the end of the period specified in the declaration as the period for which the declaration is in force;
(ii) if the declaration is revoked—when the revocation comes into force.
Specified period for which interim declaration is in force
(5) The Minister must specify in an interim declaration the period for which it is to be in force. The period must not be longer than 60 days.
390SE Consultation
(1) As soon as is practicable after making an interim declaration under section 390SD declaring that a specified commercial fishing activity is a declared commercial fishing activity, the Minister must publish a notice on the Department’s website in accordance with subsection (2).
(2) The notice must:
(a) invite each declaration affected person (see subsection (3)) to make a written submission about the impact on the person’s rights or interests in relation to fishing if a final declaration under section 390SF were made in relation to the commercial fishing activity; and
(b) specify that written submissions must be lodged during the period specified in the notice; and
(c) specify the manner in which written submissions are to be lodged.
(3) A declaration affected person, in relation to a commercial fishing activity, means a person who:
(a) holds a fishing concession or is prescribed by the regulations; and
(b) considers that the person would be detrimentally affected by the making of a final declaration under section 390SF in relation to the commercial fishing activity.
(4) For the purposes of paragraph (2)(b), the period specified in the notice must be at least 11 business days after the day the notice is published.
Subdivision C—Final declaration
390SF Final declaration
Making a final declaration
(1) The Minister may, by legislative instrument, make a declaration (a final declaration) that a specified commercial fishing activity is a declared commercial fishing activity.
Note 1: For variation of a final declaration, see subsection 33(3) of the Acts Interpretation Act 1901.
Note 2: For revocation of a final declaration, see section 390SG.
(2) The Minister must not make a final declaration unless:
(a) the commercial fishing activity is the same as a commercial fishing activity that is, or was, specified in an interim declaration under section 390SD; and
(b) consultation under section 390SE has occurred in relation to the commercial fishing activity; and
(c) the Minister has considered any written submission that:
(i) was made under section 390SE by a declaration affected person; and
(ii) was lodged during the period referred to in paragraph 390SE(2)(b); and
(d) the Minister and the Fisheries Minister agree that there is uncertainty about the environmental impacts of the commercial fishing activity; and
(e) the Minister and the Fisheries Minister agree that it is appropriate that:
(i) an expert panel be established under section 390SH to conduct an assessment of the commercial fishing activity and report on the matter; and
(ii) the commercial fishing activity be prohibited in a Commonwealth marine area while the expert panel conducts the assessment.
When a final declaration is in force
(3) A final declaration:
(a) comes into force at the end of the day on which it is registered in the Federal Register of Legislation; and
(b) remains in force until the earliest of the following times:
(i) the end of the day on which the report of the expert panel is published on the Department’s website under paragraph 390SL(a);
(ii) the end of the period specified in the declaration as the period for which the declaration is in force;
(iii) if the declaration is revoked—when the revocation comes into force.
Specified period for which final declaration is in force
(4) The Minister must specify in a final declaration the period for which it is to be in force. The period must not be longer than 24 months.
Subdivision D—Revoking declarations
390SG Revoking an interim or final declaration
(1) The Minister may, by legislative instrument, revoke:
(a) an interim declaration under section 390SD; or
(b) a final declaration under section 390SF.
(2) A revocation under subsection (1) comes into force at the end of the day on which it is registered in the Federal Register of Legislation.
Division 3—Expert panel assessment of declared commercial fishing activity
390SH Establishment of expert panel
(1) As soon as is practicable after making a final declaration under section 390SF declaring that a specified commercial fishing activity is a declared commercial fishing activity, the Minister must:
(a) appoint, in writing, one or more persons (the members) as an expert panel to conduct an assessment and report to the Minister about the commercial fishing activity; and
(b) with the agreement of the Fisheries Minister, specify in writing (the terms of reference):
(i) the matters relating to the commercial fishing activity that are to be the subject of the assessment and report; and
(ii) the date by which the panel must report to the Minister.
Note: The Minister may revoke an appointment: see subsection 33(3) of the Acts Interpretation Act 1901.
(2) The Minister may specify in the terms of reference the manner in which the expert panel is to carry out the assessment.
(3) The Minister may, in writing, vary or revoke the terms of reference with the agreement of the Fisheries Minister.
(4) The Minister must:
(a) publish a copy of the terms of reference on the Department’s website as soon as is practicable after the Minister specifies or varies them; and
(b) cause a copy of the terms of reference to be laid before each House of the Parliament within 15 sitting days of that House after the day the Minister specifies or varies them.
390SI Terms and conditions
The Minister must determine, in writing, the terms and conditions applicable to members of the expert panel, including terms and conditions relating to:
(a) term of office; and
(b) remuneration; and
(c) allowances; and
(d) disclosure of interests.
390SJ Procedure for assessment
(1) The expert panel must comply with the terms of reference in conducting the assessment.
(2) Subject to subsection (1), the expert panel may determine the procedure to be followed in its assessment.
390SK Timing of the report
The expert panel must give the Minister the report on the assessment on the date specified by the Minister in the terms of reference.
390SL Publication of the report
The Minister must:
(a) publish a copy of the report on the Department’s website within 20 business days after the day the Minister receives the report; and
(b) cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the day the Minister receives the report; and
(c) comply with any other publication requirements prescribed by the regulations.
Division 4—Sunsetting of this Part
390SM Sunsetting of this Part
New declarations under this Part may not be made 12 months after the day the Environment Protection and Biodiversity Conservation Amendment (Declared Commercial Fishing Activities) Act 2012 commences.
Chapter 6—Administration
Part 16—Precautionary principle and other considerations in making decisions
391 Minister must consider precautionary principle in making decisions
Taking account of precautionary principle
(1) The Minister must take account of the precautionary principle in making a decision listed in the table in subsection (3), to the extent he or she can do so consistently with the other provisions of this Act.
Precautionary principle
(2) The precautionary principle is that lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment where there are threats of serious or irreversible environmental damage.
Decisions in which precautionary principle must be considered
(3) The decisions are:
Decisions in which precautionary principle must be considered |
Item
| Section decision is made under |
Nature of decision
|
1 | 75 | whether an action is a controlled action |
2 | 133 | whether or not to approve the taking of an action |
3 | 201 | whether or not to grant a permit |
4 | 216 | whether or not to grant a permit |
5 | 238 | whether or not to grant a permit |
6 | 258 | whether or not to grant a permit |
6A | 269AA | whether or not to have a recovery plan for a listed threatened species or a listed threatened ecological community |
7 | 269A | about making a recovery plan or adopting a plan as a recovery plan |
7A | 270A | whether or not to have a threat abatement plan for a key threatening process |
7B | 270B | about making a threat abatement plan or adopting a plan as a threat abatement plan |
8 | 280 | about approving a variation of a plan adopted as a recovery plan or threat abatement plan |
9 | 285 | about making a wildlife conservation plan or adopting a plan as a wildlife conservation plan |
10 | 295 | about approving a variation of a plan adopted as a wildlife conservation plan |
10A | 303CG | whether or not to grant a permit |
10AA | 303DC | whether or not to amend the list of exempt native specimens |
10B | 303DG | whether or not to grant a permit |
10C | 303EC | about including an item in the list referred to in section 303EB |
10D | 303EN | whether or not to grant a permit |
10E | 303FN | about declaring an operation to be an approved wildlife trade operation |
10F | 303FO | about declaring a plan to be an approved wildlife trade management plan |
10G | 303FP | about declaring a plan to be an accredited wildlife trade management plan |
10H | 303GB | whether or not to grant an exceptional circumstances permit |
11 | 316 | about making a plan for managing a property that is included in the World Heritage List and is entirely within one or more Commonwealth areas |
11A | 324S | about making a plan for managing a National Heritage place |
12 | 328 | about making a plan for managing a wetland that is designated for inclusion in the List of Wetlands of International Importance kept under the Ramsar Convention and is entirely within one or more Commonwealth areas |
13 | 338 | about making a plan for managing a Biosphere reserve entirely within one or more Commonwealth areas |
13A | 341T | about endorsing a plan for managing a Commonwealth Heritage place |
14 | 370 | about approving a management plan for a Commonwealth reserve |
Part 17—Enforcement
Division 1—Wardens, rangers and inspectors
Subdivision A—Wardens and rangers
392 Appointment of wardens and rangers
The Minister may, in writing, appoint:
(a) an officer or employee of the Department; or
(b) a person covered by an arrangement made under section 393;
to be a warden or ranger.
393 Arrangements for certain officers or employees to exercise powers etc. of wardens or rangers
(1) The Secretary may make arrangements with an Agency Head (within the meaning of the Public Service Act 1999), or with an authority of the Commonwealth, for the performance or exercise of all or any of the functions or powers of wardens and rangers under this Act or the regulations by officers or employees in that Agency or authority, as the case may be.
(1A) However, an arrangement under subsection (1) must not provide for the performance or exercise of functions or powers under this Act or the regulations in relation to a Commonwealth reserve or conservation zone.
(2) The Minister may enter into an arrangement with the appropriate Minister of a State or of the Australian Capital Territory or of the Northern Territory for:
(a) officers or employees in the Public Service of the State or Territory, or in an authority of the State or Territory (including a local government body); or
(b) members of the police force of the State or Territory;
to perform or exercise all or any of the functions or powers of wardens or rangers under this Act or the regulations.
(3) The Minister may enter into an arrangement with the Administrator of Norfolk Island for persons appointed or employed under:
(a) a law of Norfolk Island mentioned in subsection 61(1) of the Norfolk Island Act 1979; or
(b) section 10 of the Norfolk Island Act 1979;
to perform or exercise all or any of the functions or powers of wardens or rangers under this Act or the regulations.
(4) The Director may make arrangements with an Agency Head (within the meaning of the Public Service Act 1999), or with an authority of the Commonwealth, for the performance or exercise of all or any of the functions or powers of wardens and rangers under this Act or the regulations by officers or employees in that Agency or authority, as the case may be.
394 Wardens ex officio
By force of this section each of the following is a warden:
(a) each member or special member of the Australian Federal Police;
(b) each officer of Customs.
395 Identity cards
(1) The Minister must issue to each warden (except a member of a police force or an officer of Customs) and to each ranger, an identity card, in a form approved by the Minister, containing a photograph of the person to whom it is issued.
(2) If a person stops being a warden or ranger, the person must immediately return his or her identity card to the Minister.
(3) A person who contravenes subsection (2) commits an offence punishable on conviction by a fine not exceeding one penalty unit.
Subdivision B—Inspectors
396 Appointment of inspectors
(1) The Minister may, in writing, appoint a person to be an inspector.
(2) The Minister may make a written determination that a specified person, or a person included in a specified class of persons, does not have such of the powers conferred on an inspector by this Act as are specified in the determination. The determination has effect accordingly.
(3) If the Minister makes a determination under subsection (2) about a named individual, the Minister must give the individual a copy of the determination.
397 Inspectors ex officio
(1) By force of this section each of the following is an inspector:
(a) each member or special member of the Australian Federal Police;
(b) each person appointed as an inspector under subsection 43(1) of the Great Barrier Reef Marine Park Act 1975 (other than such a person whose appointment relates only to the powers of an inspector under Part VIIA of that Act);
(c) each officer of Customs.
(2) Paragraph (1)(b) does not apply for the purposes of the application of this Act to an offence against, or a matter relating to, Part 13A.
(3) By force of this section, for the purposes of the application of this Act to an offence against, or a matter relating to, Part 13A, each of the following is an inspector:
(b) each member of the police force of an external Territory;
(c) each quarantine officer (animals) (within the meaning of the Quarantine Act 1908);
(d) each quarantine officer (plants) (within the meaning of the Quarantine Act 1908).
Note: Part 13A deals with international movement of wildlife specimens.
398 Arrangements for State and Territory officers to be inspectors
(1) The Minister may enter into an arrangement with the appropriate Minister of a State or of the Australian Capital Territory or of the Northern Territory for:
(a) officers or employees of the Public Service of the State or Territory, or of an authority of the State or Territory (including a local government body); or
(b) members of the police force of the State or Territory;
to be inspectors, and that arrangement has effect accordingly.
(2) The Minister may enter into an arrangement with the Administrator of Norfolk Island for persons appointed or employed under:
(a) a law of Norfolk Island mentioned in subsection 61(1) of the Norfolk Island Act 1979; or
(b) section 10 of the Norfolk Island Act 1979;
to be inspectors, and that arrangement has effect accordingly.
(3) The Minister may make a written determination that a specified person, or a person included in a specified class of persons, who is an inspector because of this section does not have such of the powers conferred on an inspector by this Act as are specified in the determination. The determination has effect accordingly.
(4) If the Minister makes a determination under subsection (3) about a named individual, the Minister must give the individual a copy of the determination.
399 Identity cards
(1) The Minister must issue to an inspector an identity card in a form approved by the Minister, containing a photograph of the person to whom it is issued.
(1A) Subsection (1) does not apply in relation to an inspector who is:
(a) a member of a police force; or
(b) an inspector by force of paragraph 397(1)(b); or
(c) an officer of Customs.
(2) If a person stops being an inspector, the person must immediately return his or her identity card to the Minister.
(3) A person who contravenes subsection (2) commits an offence punishable on conviction by a fine not exceeding one penalty unit.
(4) For the purposes of this Act, a requirement for a person who is an inspector by force of paragraph 397(1)(b) to produce his or her identity card is satisfied if the person shows his or her identity card issued under section 45 of the Great Barrier Reef Marine Park Act 1975.
Subdivision BA—Exercise of powers of authorised officers outside the territorial sea
399A Powers to be exercised consistently with UNCLOS
(1) This section applies in relation to the powers of an authorised officer under this Part (including powers an authorised officer has under or because of a search warrant or a monitoring warrant), to the extent that the powers are otherwise permitted to be exercised:
(a) outside the territorial sea; and
(b) in relation to a person, aircraft or vessel, other than a person aircraft or vessel of a kind referred to in any of paragraphs 5(3)(a) to (h).
(2) The powers of an authorised officer, to the extent to which this section applies to them, must be exercised consistently with Australia’s rights and obligations under:
(a) UNCLOS; and
(b) any other international agreements specified in regulations made for the purposes of this section.
(3) In this section:
UNCLOS means the United Nations Convention on the Law of the Sea, done at Montego Bay on 10 December 1982.
Note: The text of the Convention is set out in Australian Treaty Series 1994 No. 31. In 2006, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
Subdivision BB—Exercise of powers of authorised officers in relation to Great Barrier Reef Marine Park
399B Certain powers to be exercised only by certain authorised officers
(1) The powers of an authorised officer in relation to:
(a) an offence against an environmental law that is the Great Barrier Reef Marine Park Act 1975 or regulations made under that Act; or
(b) an environmental penalty provision that is a civil penalty provision of that Act; or
(c) a thing that may be done for the purposes of that Act;
may only be exercised by an authorised officer who is an inspector by force of paragraph 397(1)(a) or (b).
(2) To avoid doubt, an authorised officer who is an inspector by force of paragraph 397(1)(a) or (b) and also by force of paragraph 397(1)(c) is an authorised officer who may exercise the powers referred to in subsection (1).
Subdivision C—Miscellaneous
400 Regulations may give wardens, rangers and inspectors extra powers, functions and duties
The regulations may provide for functions and powers to be conferred, and duties to be imposed, on wardens, rangers and inspectors.
401 Impersonating authorised officers and rangers
(1) A person commits an offence if:
(a) the person:
(i) impersonates an authorised officer or a ranger on an occasion; and
(ii) does so knowing it to be an occasion when the officer or ranger would be on duty and doing an act or attending a place; or
(b) the person:
(i) falsely represents himself or herself to be an authorised officer or a ranger; and
(ii) does an act or attends a place in the assumed character of that officer or ranger; or
(c) the person:
(i) impersonates an authorised officer or a ranger or falsely represents himself or herself to be an authorised officer or a ranger; and
(ii) does so with the intention of obtaining a gain, causing a loss or influencing the exercise of a public duty.
(2) Subsection (1) does not apply to an authorised officer or a ranger.
(3) An authorised officer or a ranger commits an offence if:
(a) the officer or ranger:
(i) impersonates another authorised officer or ranger on an occasion; and
(ii) does so knowing it to be an occasion when the other officer or ranger would be on duty and doing an act or attending a place; or
(b) the officer or ranger:
(i) falsely represents himself or herself to be another authorised officer or a ranger; and
(ii) does an act or attends a place in the assumed character of the other officer or ranger; or
(c) the officer or ranger:
(i) impersonates another authorised officer or a ranger or falsely represents himself or herself to be another authorised officer or a ranger; and
(ii) does so with the intention of obtaining a gain, causing a loss or influencing the exercise of a public duty.
(4) An offence against this section is punishable, on conviction, by imprisonment for not more than 2 years or a fine not exceeding 120 penalty units, or both.
402 Offences against authorised officers and rangers
(1) A person commits an offence if the person:
(a) uses or threatens violence against another person; and
(b) does so knowing that the other person is an authorised officer or a ranger; and
(c) does so because of that other person’s status as an authorised officer or ranger.
(2) An offence against subsection (1) is punishable, on conviction, by imprisonment for not more than 7 years or a fine not exceeding 420 penalty units, or both.
(3) A person commits an offence if the person:
(a) obstructs, intimidates, resists or hinders another person who is an authorised officer or a ranger exercising or performing his or her powers, duties or functions; and
(b) does so knowing that the other person is an authorised officer or ranger.
(4) An offence against subsection (3) is punishable, on conviction, by imprisonment for not more than 2 years or a fine not exceeding 120 penalty units, or both.
(5) It is immaterial whether the defendant was aware that the authorised officer or ranger was engaged in the exercise or performance, or attempted exercise or performance of a power, duty or function of such officer or ranger.
(6) It is a defence in proceedings for an offence against subsection (3), if at the time of the conduct constituting the offence, the authorised officer or ranger was abusing his or her power.
(7) This section does not limit the power of a court to punish a contempt of that court.
(8) Subsections (1) and (3) are not intended to exclude or limit the concurrent operation of any law of the Australian Capital Territory in a case where the other person referred to in that subsection is a member or special member of the Australian Federal Police.
Division 2—Boarding of vessels etc. and access to premises
403 Boarding of vessels etc. by authorised officers
(1) This section applies to:
(a) any Australian vessel or Australian aircraft, whether or not it is in the Australian jurisdiction; or
(b) any other vessel or aircraft, or any vehicle or platform, that is in the Australian jurisdiction.
(2) If an authorised officer suspects on reasonable grounds that there is in, or on, a vehicle, vessel, aircraft or platform to which this section applies any evidential material in relation to an offence against an environmental law, in relation to a contravention of an environmental penalty provision or in relation to both, the authorised officer may, with such assistance as he or she thinks necessary:
(a) board the vehicle, vessel, aircraft or platform at any reasonable time for the purpose of exercising, and may exercise, the powers of an authorised officer under section 406; and
(b) in the case of a vehicle, vessel or aircraft—stop and detain the vehicle, vessel or aircraft for that purpose.
(2A) An authorised officer who boards a vehicle, vessel, aircraft or platform under paragraph (2)(a) may require a person on the vehicle, vessel, aircraft or platform to:
(a) answer a question asked by the authorised officer; or
(b) give the authorised officer information requested by the authorised officer; or
(c) produce to the authorised officer records or documents kept on the vehicle, vessel, aircraft or platform.
(3) If an authorised officer or the person in command of a Commonwealth ship or of a Commonwealth aircraft suspects on reasonable grounds that a vessel to which this section applies has been used or otherwise involved in the commission of an offence against an environmental law, he or she may:
(a) bring the vessel to the nearest port in Australia or an external Territory to which it is safe and practicable to bring the vessel; or
(b) by means of an international signal code or other internationally recognised means of communication with a vessel, require the person in charge of the vessel to bring the vessel to that port.
(4) An authorised officer, or the person in command of a Commonwealth ship or of a Commonwealth aircraft, may require the person in charge of an aircraft to which this section applies to bring the aircraft to the nearest airport in Australia or an external Territory to which it is safe and practicable to bring the aircraft if:
(a) the authorised officer, or the person in command of the Commonwealth ship or Commonwealth aircraft, suspects on reasonable grounds that the aircraft has been used or otherwise involved in the commission of an offence against an environmental law; and
(b) the requirement is made by means of an international signal code or other internationally recognised means of communication with an aircraft.
(5) An authorised officer may, for the purposes of this Act or the Great Barrier Reef Marine Park Act 1975 (other than Part VIIA of that Act (compulsory pilotage)), require the person in charge of a vehicle, vessel, aircraft or platform to which this section applies to give information concerning any or all of the following:
(a) the vehicle, vessel, aircraft or platform;
(b) the crew or any other person on board the vehicle, vessel, aircraft or platform;
(c) in the case of a vessel—any dory being operated in association with the vessel;
(d) in the case of a vessel—any person operating a dory in association with the vessel.
(5A) A person commits an offence if:
(a) a requirement is made of the person under this section; and
(b) the person fails to comply with the requirement.
Penalty:
(a) if the requirement is made under subsection (2A)—imprisonment for 6 months or 30 penalty units, or both; or
(b) if the requirement is made under subsection (3), (4) or (5)—50 penalty units.
(5B) If there is a restraint on the liberty of a person on a vessel resulting from an authorised officer’s exercise of a power under this section in relation to the vessel:
(a) the restraint is not unlawful; and
(b) civil or criminal proceedings in respect of the restraint may not be instituted or continued in any court against:
(i) the authorised officer; or
(ii) any person assisting the authorised officer in the exercise of the power; or
(iii) the Commonwealth.
This subsection is not intended to affect the jurisdiction of the High Court under section 75 of the Constitution.
(5C) A reference in this section to an offence against an environmental law does not include an offence against Part VIIA of the Great Barrier Reef Marine Park Act 1975 (compulsory pilotage).
(6) In this Act:
Commonwealth aircraft means an aircraft in the service of the Commonwealth on which the prescribed ensign or prescribed insignia of the aircraft is displayed.
Commonwealth ship means a ship in the service of the Commonwealth on which the prescribed ensign of the ship is flying.
404 Authorised officers to produce identification
(1) If an authorised officer (subject to subsection (1A)) boards a vehicle, vessel, aircraft or platform under section 403, the authorised officer must:
(a) in the case of a member of a police force—produce, for inspection by the person in charge of that vehicle, vessel, aircraft or platform, written evidence of the fact that he or she is a member of that police force; or
(aa) in the case of an officer of Customs—produce, for inspection by the person in charge of that vehicle, vessel, aircraft or platform, written evidence of the fact that he or she is an officer of Customs; or
(b) in any other case—produce his or her identity card for inspection by that person.
(1A) Subsection (1) does not apply to an authorised officer if:
(a) the authorised officer is a member of a police force or an officer of Customs; and
(b) the officer is in uniform.
(2) An authorised officer who does not comply with subsection (1) is not authorised to remain, or to require any person assisting the authorised officer to remain, on board the vehicle, vessel, aircraft or platform, or to detain the vehicle, vessel or aircraft.
(3) If an authorised officer (subject to subsection (3A)) makes a requirement of a person under section 403 the authorised officer, unless it is impracticable to do so, must:
(a) in the case of a member of a police force—produce, for inspection by that person, written evidence of the fact that he or she is a member of that police force; or
(aa) in the case of an officer of Customs—produce, for inspection by that person, written evidence of the fact that he or she is an officer of Customs; or
(b) in any other case—produce his or her identity card for inspection by that person;
and, if the authorised officer fails to do so, that person is not obliged to comply with the requirement.
(3A) Subsection (3) does not apply to an authorised officer if:
(a) the authorised officer is a member of a police force or an officer of Customs; and
(b) the officer is in uniform.
405 Access to premises
(1) An authorised officer may, with the consent of the occupier of any premises, enter the premises for the purpose of exercising the powers of an authorised officer under section 406.
(2) If an authorised officer enters any premises under subsection (1), he or she may exercise the powers of an authorised officer under section 406.
(3) An authorised officer who enters premises under subsection (1) must, if the occupier of the premises revokes his or her consent, leave the premises forthwith, and is not entitled to exercise, or continue to exercise, the powers of an authorised officer under section 406 in relation to the premises.
(4) An authorised officer is not entitled to:
(a) enter premises under subsection (1); or
(b) exercise any powers as mentioned in subsection (2);
if the occupier of the premises has required the officer to produce written identification for inspection by the occupier and:
(c) if the authorised officer is a member of a police force—the officer fails to produce, for inspection by the occupier, written evidence of the fact that he or she is a member of that police force; or
(d) if the authorised officer is an officer of Customs—the officer fails to produce, for inspection by the occupier, written evidence of the fact that he or she is an officer of Customs; or
(e) in any other case—the officer fails to produce his or her identity card for inspection by the occupier.
406 Powers of authorised officers
(1) An authorised officer who boards a vehicle, vessel, aircraft or platform under section 403, or enters premises under section 405 may:
(a) inspect and search the vehicle, vessel, aircraft, platform or premises, as the case may be; and
(aa) take photographs (including a video recording), and make sketches, of the premises or of any substance or thing on the vehicle, vessel, aircraft, platform or premises; and
(b) inspect, take extracts from, and make copies of, any document that is, or that the authorised officer suspects on reasonable grounds is, evidential material in relation to an offence against an environmental law, in relation to a contravention of an environmental penalty provision or in relation to both; and
(ba) in the case of an authorised officer who boards a vessel under section 403—subject to section 406A, search without warrant:
(i) a person on the vessel; and
(ii) the person’s clothing;
to find out whether there is hidden on the person or in the clothing:
(iii) an eligible seizable item; or
(iv) a thing that may be evidential material in relation to an offence against an environmental law, in relation to a contravention of an environmental penalty provision or in relation to both; and
(c) inspect, and take samples of, any other evidential material in relation to an offence against an environmental law, in relation to a contravention of an environmental penalty provision or in relation to both; and
(ca) take measurements of, and conduct tests on, the vehicle, vessel, aircraft, platform or premises or any substance or thing on the vehicle, vessel, aircraft, platform or premises; and
(d) exercise powers of seizure conferred on the authorised officer by section 444A or 445; and
(e) take onto the vehicle, vessel, aircraft, platform or premises any equipment or material reasonably necessary for the purpose of exercising a power referred to in any of the other paragraphs of this subsection.
(2) For the purposes of this Part, evidential material means:
(a) in relation to an offence against an environmental law:
(i) any thing with respect to which the offence has been committed or is suspected, on reasonable grounds, of having been committed; or
(ii) any thing as to which there are reasonable grounds for suspecting that it will afford evidence as to the commission of the offence; or
(iii) any thing as to which there are reasonable grounds for suspecting that it is intended to be used for the purpose of committing the offence; and
(b) in relation to a contravention of an environmental penalty provision:
(i) any thing with respect to which the environmental penalty provision has been contravened or is suspected, on reasonable grounds, of having been contravened; or
(ii) any thing as to which there are reasonable grounds for suspecting that it will afford evidence as to the contravention of the environmental penalty provision; or
(iii) any thing as to which there are reasonable grounds for suspecting that it is intended to be used for the purpose of contravening the environmental penalty provision.
(2A) A reference to a thing in subsection (2) includes a reference to any such thing in electronic form.
(3) For the purposes of exercising a power under subsection (1), an authorised officer may break open any hold or compartment, or any container or other receptacle (including any place that could be used as a receptacle), on a vehicle, vessel, aircraft or platform or on any premises.
406A Searches under paragraph 406(1)(ba)
(1) A search under paragraph 406(1)(ba) of a person (the subject) may only be conducted by an authorised officer of the same sex as the subject.
(2) However, if an authorised officer of the same sex as the subject is not available to conduct the search, it may be conducted by another person who:
(a) is of the same sex as the subject; and
(b) agrees, at the request of an authorised officer, to conduct the search.
(3) Paragraph 406(1)(ba) and this section do not authorise the authorised officer or other person:
(a) to remove any of the subject’s clothing; or
(b) to require the subject to remove any of his or her clothing; or
(c) to use more force, or subject the subject to greater indignity, than is reasonably necessary to conduct the search.
406AA Taking things into possession
(1) This section applies if, in conducting a search referred to in paragraph 406(1)(a) or (ba), an authorised officer or a person who conducts a search because of subsection 406A(2) finds:
(a) an eligible seizable item; or
(b) a thing that may be evidential material in relation to an offence against an environmental law, in relation to a contravention of an environmental penalty provision or in relation to both.
(2) An authorised officer may:
(a) take possession of the item or thing; and
(b) keep the item or thing for so long as he or she thinks necessary for the purposes of this Act or the Great Barrier Reef Marine Park Act 1975.
(3) A person who conducts a search because of subsection 406A(2) must take possession of the item or thing and give it to an authorised officer.
(4) An authorised officer who is given an item or thing under subsection (3) may keep it for so long as he or she thinks necessary for the purposes of this Act or the Great Barrier Reef Marine Park Act 1975.
(5) If:
(a) an authorised officer is keeping an item or thing under subsection (2) or (4); and
(b) the item or thing was found in conducting a search of a person under paragraph 406(1)(ba); and
(c) the person is detained under Schedule 1;
the authorised officer may continue to keep the item or thing for so long as he or she thinks necessary for the purposes of this Act, the Great Barrier Reef Marine Park Act 1975 or the Migration Act 1958.
Note: Once the person ceases to be detained under Schedule 1, the person will generally need to be detained under the Migration Act 1958 while he or she is in the migration zone (because his or her enforcement visa under that Act will cease to have effect). Subsection (5) ensures the officer can keep the item or thing while the person is detained under this Act or that Act.
406B Thing taken into possession is not a thing seized
A reference in this Act to a thing (however described) seized under this Part or this Act does not include a reference to a thing that has been taken into possession under section 406AA or Schedule 1.
Division 3—Monitoring of compliance
407 Monitoring powers
(1) For the purposes of this Division, each of the following powers is a monitoring power in relation to particular premises:
(a) the power to inspect and search the premises;
(b) the power to take photographs (including a video recording), or to make sketches, of the premises or of any substance or thing at the premises;
(c) the power to inspect, examine and take samples of, any substance or thing on or in the premises;
(ca) the power to take measurements of, and conduct tests on, the premises or any substance or thing on the premises;
(cb) the power to mark a live specimen on the premises (see subsection (2));
(d) the power to take extracts from, or make copies of, any document, book or record on the premises;
(da) the powers to operate electronic equipment, and do other things, at the premises as mentioned in section 407A;
(e) the power to take onto the premises any equipment or material reasonably necessary for the purpose of exercising a power referred to in any other paragraph of this subsection.
(2) For the purposes of paragraph (1)(cb), mark includes:
(a) in the case of a live plant:
(i) mark or label a cage or container in which the plant is kept or in which the plant is growing; and
(ii) place a label or tag on the plant; and
(b) in the case of a live animal:
(i) implant a scannable device in the animal; and
(ii) place a band on any part of the animal; and
(iii) place (whether by piercing or otherwise) a tag or ring on any part of the animal; and
(iv) mark or label a cage or container within which the animal is kept.
(3) If:
(a) damage is caused to a specimen, or a cage or container in which a specimen is kept, as a result of an authorised officer exercising the power to mark under paragraph (1)(cb); and
(b) the damage was caused as a result of insufficient care being exercised by the authorised officer;
compensation for the damage is payable to the owner of the specimen, or to the owner of the cage or container, as the case requires.
(4) Compensation is payable out of money appropriated by the Parliament for the purpose.
(5) In determining the amount of compensation payable, regard is to be had to whether the owner, if the owner was available at the time, had provided any warning or guidance relating to the marking of the specimen, cage or container.
407A Operation of electronic equipment at premises
Monitoring powers include the powers set out in this section
(1) Monitoring powers in relation to premises include the powers set out in this section. This section does not authorise these powers to be exercised otherwise than in situations in which this Division allows monitoring powers to be exercised.
Operation of equipment
(2) An authorised officer may operate electronic equipment at premises to see whether relevant material is accessible by doing so, if he or she believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.
Seizure etc.
(3) If an authorised officer operates electronic equipment at premises under subsection (2), and the authorised officer finds that relevant material is accessible by doing so, he or she may:
(a) seize the equipment and any disk, tape or other associated device; or
(b) if the relevant material can, by using facilities at the premises, be put in documentary form—operate the facilities to put the material in that form and seize the documents so produced; or
(c) if the relevant material can be transferred to a disk, tape or other storage device that:
(i) is brought to the premises; or
(ii) is at the premises and the use of which for the purpose has been agreed to in writing by the occupier of the premises;
operate the equipment or other facilities to copy the material to the storage device and take the storage device from the premises.
Limitation on seizure
(4) An authorised officer may seize equipment under paragraph (3)(a) only if:
(a) it is not practicable to put the relevant material in documentary form as mentioned in paragraph (3)(b) or to copy the material as mentioned in paragraph (3)(c); or
(b) possession of the equipment by the occupier could constitute an offence.
How this Part applies to things seized
(5) The other provisions of this Part apply in relation to a thing seized under paragraph (3)(a) or (b) as if the thing had been seized under section 445.
Securing equipment
(6) If an authorised officer believes on reasonable grounds that:
(a) relevant material may be accessible by operating electronic equipment at the premises; and
(b) expert assistance is required to operate the equipment; and
(c) if he or she does not take action under this subsection, the material may be destroyed, altered or otherwise interfered with;
he or she may do whatever is necessary to secure the equipment, whether by locking it up, placing a guard or otherwise.
Notice about securing equipment
(7) An authorised officer who wishes to secure electronic equipment under subsection (6) must give notice to the occupier of the premises of:
(a) his or her intention to secure the equipment; and
(b) the fact that the equipment may be secured for up to 24 hours.
Period for which equipment may be secured
(8) Electronic equipment may be secured under subsection (6):
(a) for a period not exceeding 24 hours; or
(b) until the equipment has been operated by the expert;
whichever happens first.
Extension of period
(9) If an authorised officer believes on reasonable grounds that expert assistance will not be available within 24 hours, the authorised officer may apply to a magistrate for an extension of that period.
Notice to occupier
(10) An authorised officer must give notice to the occupier of the premises of his or her intention to apply for an extension under subsection (9), and the occupier is entitled to be heard in relation to the application.
Provisions relating to extensions
(11) The provisions of this Division relating to the issue of a monitoring warrant apply, with such modifications as are necessary, to the issuing of an extension.
Definition
(12) In this section:
relevant material means:
(a) evidential material; or
(b) any other material that is relevant for the purposes of finding out whether any or all of the provisions of an environmental law have been, are being or will be complied with.
407B Compensation for damage to electronic equipment
(1) If:
(a) damage is caused to electronic equipment as a result of it being operated as mentioned in section 407A; and
(b) the damage was caused as a result of:
(i) insufficient care being exercised in selecting the person who was to operate the equipment; or
(ii) insufficient care being exercised by the person operating the equipment;
compensation for the damage is payable to the owner of the equipment.
(2) Compensation is payable out of money appropriated by the Parliament for the purpose.
(3) In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises and his or her employees and agents, if they were available at the time, had provided any warning or guidance as to the operation of the equipment that was appropriate in the circumstances.
408 Monitoring searches with occupier’s consent
Entry by consent
(1) An authorised officer may, with the consent of the occupier of any premises, enter the premises for the purpose of finding out whether any or all of the provisions of an environmental law have been, are being or will be complied with.
Entry for monitoring purposes
(2) An authorised officer may only enter premises under subsection (1) to the extent that it is reasonably necessary for the purpose of finding out whether any or all of the provisions of an environmental law have been, are being or will be complied with.
Exercise of monitoring powers
(3) If an authorised officer enters premises under subsection (1), the authorised officer may exercise monitoring powers in relation to those premises.
Exercise of seizure powers
(4) If an authorised officer enters premises under subsection (1), the authorised officer may exercise powers of seizure conferred by section 444A or 445.
Right to refuse to give consent
(5) Before obtaining the consent of a person for the purposes of this section, an authorised officer must tell the person that the person may refuse to give consent.
Consent must be voluntary
(6) An entry by an authorised officer in consequence of the consent of a person is not lawful unless the person voluntarily consented to the entry.
Production of identity card etc.
(7) An authorised officer is not entitled to:
(a) enter premises under subsection (1); or
(b) exercise any powers referred to in subsection (3) or (4) in relation to premises;
if the occupier of the premises has required the officer to produce written identification for inspection by the occupier and:
(c) if the authorised officer is a member of a police force—the officer fails to produce, for inspection by the occupier, written evidence of the fact that he or she is a member of that police force; or
(ca) if the authorised officer is an officer of Customs—the officer fails to produce, for inspection by the occupier, written evidence of the fact that he or she is an officer of Customs; or
(d) in any other case—the officer fails to produce his or her identity card for inspection by the occupier.
Extension to vehicles, vessels and aircraft
(8) Subsections (1), (2), (3), (4), (5), (6) and (7) apply in relation to:
(a) a vehicle, vessel or aircraft in the same way as they apply in relation to premises; and
(b) a person apparently in charge of a vehicle, vessel or aircraft in the same way as they apply in relation to the occupier of premises.
409 Monitoring warrants
Application for monitoring warrant
(1) An authorised officer may apply to a magistrate for a warrant under this section in relation to particular premises. The warrant is to be known as a monitoring warrant.
Note: Urgent applications may be made by telephone or other electronic means under section 409A.
Issue of monitoring warrant
(2) Subject to subsection (3), the magistrate may issue the monitoring warrant if satisfied, by information on oath or affirmation, that it is reasonably necessary that the authorised officer should have access to the premises for the purpose of finding out whether any or all of the provisions of an environmental law have been, are being or will be complied with.
Information about grounds for issue of monitoring warrant
(3) The magistrate must not issue the monitoring warrant unless the authorised officer or another person has given the magistrate, either orally (on oath or affirmation) or by affidavit, such further information as the magistrate requires about the grounds on which the issue of the monitoring warrant is being sought.
Terms of warrant
(4) The monitoring warrant must:
(a) name an authorised officer who, unless he or she inserts the name of another authorised officer in the warrant, is to be responsible for executing the warrant; and
(aa) authorise the executing officer, with such assistance and by such force as is necessary and reasonable, from time to time while the monitoring warrant remains in force:
(i) to enter the premises; and
(ii) to exercise monitoring powers in relation to the premises; and
(b) state whether an entry under the monitoring warrant is authorised to be made at any time of the day or night or during specified hours of the day or night; and
(c) specify the day (not more than 6 months after the issue of the monitoring warrant) on which the monitoring warrant ceases to have effect; and
(d) state the purpose for which the monitoring warrant is issued.
Seizure powers
(5) If an authorised officer enters premises under a monitoring warrant, he or she may exercise powers of seizure conferred by section 444A or 445.
409A Monitoring warrants by telephone or other electronic means
Application
(1) An authorised officer may make an application to a magistrate for a monitoring warrant by telephone, telex, fax or other electronic means:
(a) in an urgent case; or
(b) if the delay that would occur if an application were made in person would frustrate the effective execution of the monitoring warrant.
Voice communication
(2) The magistrate:
(a) may require communication by voice to the extent that is practicable in the circumstances; and
(b) may make a recording of the whole or any part of any such communication by voice.
Information
(3) An application under this section must include all information as required to be provided in an application under section 409, but the application may, if necessary, be made before the information is sworn or affirmed.
Issue of monitoring warrant
(4) If an application is made to a magistrate under this section and the magistrate, after considering the information and having received and considered such further information (if any) as the magistrate required, is satisfied that:
(a) a monitoring warrant in the terms of the application should be issued urgently; or
(b) the delay that would occur if an application were made in person would frustrate the effective execution of the monitoring warrant;
the magistrate may complete and sign the same form of monitoring warrant that would be issued under section 409.
Notification
(5) If the magistrate decides to issue the monitoring warrant, the magistrate must inform the applicant, by telephone, telex, fax or other electronic means, of the terms of the monitoring warrant and the day on which and the time at which it was signed.
Form of monitoring warrant
(6) The applicant must then complete a form of monitoring warrant in terms substantially corresponding to those given by the magistrate, stating on the form the name of the magistrate and the day on which and the time at which the monitoring warrant was signed.
Completed form of monitoring warrant to be given to magistrate
(7) The applicant must, not later than 48 hours after making the application, give or transmit to the magistrate:
(a) the form of monitoring warrant completed by the applicant; and
(b) if the information referred to in subsection (3) was not sworn or affirmed—that information duly sworn or affirmed.
Attachment of form of warrant to subsection (7) documents
(8) The magistrate must attach to the documents provided under subsection (7) the form of monitoring warrant completed by the magistrate.
Presumption if form of warrant not produced in evidence
(9) If:
(a) it is material, in any proceeding, for a court to be satisfied that the exercise of a power under a monitoring warrant issued under this section was duly authorised; and
(b) the form of monitoring warrant signed by the magistrate is not produced in evidence;
the court is to assume, unless the contrary is proved, that the exercise of the power was not duly authorised.
Court may admit evidence even if subsection (7) or (8) not complied with
(10) A court may admit evidence obtained because of the issue of a warrant pursuant to this section even if either or both of subsections (7) and (8) have not been complied with if, having regard to the nature of and reasons for the non‑compliance and any other relevant matters, the court is satisfied that it was not practicable to comply with that subsection or those subsections (as the case requires).
409B Executing officer to be in possession of warrant
When executing a warrant, the executing officer must be in possession of:
(a) the original warrant issued by the magistrate under section 409, or a copy of the original warrant as so issued; or
(b) the original form of warrant completed under subsection 409A(6), or a copy of the original form as so completed.
410 Details of monitoring warrant to be given to occupier etc.
(1) If a monitoring warrant in relation to premises is being executed and the occupier of the premises, or another person who apparently represents the occupier, is present at the premises, the executing officer must make available to that person a copy of the monitoring warrant.
(2) The executing officer must identify himself or herself to that person at the premises.
(3) The copy of the monitoring warrant referred to in subsection (1) need not include the signature of the magistrate or the seal of the relevant court.
411 Occupier entitled to be present during search
(1) If a monitoring warrant in relation to premises is being executed and the occupier of the premises, or another person who apparently represents the occupier, is present at the premises, the person is, subject to Part IC of the Crimes Act 1914, entitled to observe the search being conducted.
(2) The right to observe the search being conducted ceases if the person impedes the search.
(3) This section does not prevent 2 or more areas of the premises being searched at the same time.
412 Announcement before entry
(1) Before any person enters premises under a monitoring warrant, the executing officer must:
(a) announce that he or she is authorised to enter the premises; and
(b) give any person at the premises an opportunity to allow entry to the premises.
(2) The executing officer is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the premises is required to ensure:
(a) the safety of a person (including an authorised officer); or
(b) that the effective execution of the monitoring warrant is not frustrated.
412A Other powers when on premises under monitoring warrant
(1) If the executing officer enters premises under a monitoring warrant, he or she may require a person on the premises to:
(a) answer a question asked by the executing officer; or
(b) give the executing officer information requested by the executing officer; or
(c) produce to the executing officer records or documents kept on the premises.
(2) A person commits an offence if:
(a) the executing officer has entered premises under a monitoring warrant; and
(b) the person is on the premises; and
(c) the executing officer requires the person to:
(i) answer a question asked by the executing officer; or
(ii) give the executing officer information requested by the executing officer; or
(iii) produce to the executing officer records or documents kept on the premises; and
(d) the person contravenes the requirement.
(3) The offence is punishable on conviction by imprisonment for a term not more than 6 months, a fine of not more than 30 penalty units, or both.
Division 4—Search warrants
413 When search warrants can be issued
(1) A magistrate may issue a warrant authorising an authorised officer to search premises if the magistrate is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, at the premises evidential material in relation to an offence against an environmental law, in relation to a contravention of an environmental penalty provision or in relation to both.
(2) A magistrate may issue a warrant authorising an authorised officer to carry out an ordinary search or a frisk search of a person if the magistrate is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that the person has in his or her possession, or will within the next 72 hours have in his or her possession, any evidential material in relation to an offence against an environmental law, in relation to a contravention of an environmental penalty provision or in relation to both.
(3) For the purposes of this Act, frisk search means:
(a) a search of a person conducted by quickly running the hands over the person’s outer garments; and
(b) an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person.
(4) If the authorised officer applying for the warrant suspects that, in executing the warrant, it will be necessary to use firearms, the authorised officer must state that suspicion, and the grounds for that suspicion, in the information.
(5) If the application for the warrant is made under section 416, this section applies as if subsections (1) and (2) referred to 48 hours rather than 72 hours.
(6) If the applicant for a warrant is a member or special member of the Australian Federal Police and has, at any time previously, applied for a warrant relating to the same person or premises, the person must state particulars of those applications and their outcome in the information.
414 Statements in warrants
(1) If a magistrate issues a warrant under section 413, the magistrate is to state in the warrant:
(a) each offence and/or environmental penalty provision to which the warrant relates; and
(b) a description of the premises to which the warrant relates or the name or description of a person to whom it relates; and
(c) the kinds of evidential material that are to be searched for under the warrant; and
(d) the name of the authorised officer who, unless he or she inserts the name of another authorised officer in the warrant, is to be responsible for executing the warrant; and
(e) the period for which the warrant remains in force, which must not be more than 7 days; and
(f) if the warrant relates to premises—whether the premises may be entered at any time of the day or night or only during particular hours of the day or night; and
(g) if the warrant relates to a person—whether the search of the person may be carried out at any time of the day or night or only during particular hours of the day or night.
(2) The magistrate is also to state, in a warrant in relation to premises:
(a) that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (1)(c)) found at the premises in the course of the search that the executing officer or an officer assisting believes on reasonable grounds to be:
(i) evidential material in relation to an offence, or in relation to a contravention of an environmental penalty provision, to which the warrant relates; or
(ii) evidential material in relation to another offence against an environmental law, where the other offence is an indictable offence; or
(iii) evidential material in relation to another contravention of an environmental penalty provision;
if the executing officer or an officer assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence against an environmental law or in contravening an environmental penalty provision; and
(b) whether the warrant authorises an ordinary search or a frisk search of a person who is at or near the premises when the warrant is executed if the executing officer or an officer assisting suspects on reasonable grounds that the person has in his or her possession:
(i) any evidential material in relation to an offence against an environmental law, in relation to a contravention of an environmental penalty provision or in relation to both; or
(ii) any eligible seizable items.
(3) For the purposes of this Act, ordinary search means a search of a person or of articles in the possession of a person that may include:
(a) requiring the person to remove his or her overcoat, coat or jacket and any gloves, shoes and hat; and
(b) an examination of those items.
(4) The magistrate is also to state, in a warrant in relation to a person:
(a) that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (1)(c)) found, in the course of the search, on or in the possession of the person or in an aircraft, vehicle or vessel that the person had operated or occupied at any time within 24 hours before the search began, being a thing that the executing officer or an officer assisting believes on reasonable grounds to be:
(i) evidential material in relation to an offence, or in relation to a contravention of an environmental penalty provision, to which the warrant relates; or
(ii) evidential material in relation to another offence against an environmental law, where the other offence is an indictable offence; or
(iii) evidential material in relation to another contravention of an environmental penalty provision;
if the executing officer or an officer assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence against an environmental law or in contravening an environmental penalty provision; and
(b) the kind of search of a person that the warrant authorises.
(5) Paragraph (1)(e) does not prevent the issue of successive warrants in relation to the same premises or person.
(6) If the application for the warrant is made under section 416, this section applies as if paragraph (1)(e) referred to 48 hours rather than 7 days.
415 Powers of magistrate
(1) A magistrate in a State or internal Territory may:
(a) issue a warrant in relation to premises or a person in that State or Territory; or
(b) issue a warrant in relation to premises or a person in an external Territory; or
(c) issue a warrant in relation to premises or a person in another State or internal Territory (including the Jervis Bay Territory) if he or she is satisfied that there are special circumstances that make the issue of the warrant appropriate; or
(d) issue a warrant in relation to a person wherever the person is in Australia or in an external Territory if he or she is satisfied that it is not possible to predict where the person may be.
(2) A magistrate in New South Wales or the Australian Capital Territory may issue a warrant in relation to premises or a person in the Jervis Bay Territory.
416 Warrants by telephone or other electronic means
Application
(1) An authorised officer may make an application to a magistrate for a warrant by telephone, telex, fax or other electronic means:
(a) in an urgent case; or
(b) if the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.
Voice communication
(2) The magistrate may require communication by voice to the extent that is practicable in the circumstances.
Information
(3) An application under this section must include all information as required to be provided in an ordinary application for a warrant, but the application may, if necessary, be made before the information is sworn or affirmed.
Issue of warrant
(4) If an application is made to a magistrate under this section and the magistrate, after considering the information and having received and considered such further information (if any) as the magistrate required, is satisfied that:
(a) a warrant in the terms of the application should be issued urgently; or
(b) the delay that would occur if an application were made in person would frustrate the effective execution of the warrant;
the magistrate may complete and sign the same form of warrant that would be issued under section 413.
Notification
(5) If the magistrate decides to issue the warrant, the magistrate is to inform the applicant, by telephone, telex, fax or other electronic means, of the terms of the warrant and the day on which and the time at which it was signed.
Form of warrant
(6) The applicant must then complete a form of warrant in terms substantially corresponding to those given by the magistrate, stating on the form the name of the magistrate and the day on which and the time at which the warrant was signed.
Completed form of warrant to be given to magistrate
(7) The applicant must, not later than the day after the day of expiry of the warrant or the day after the day on which the warrant was executed, whichever is the earlier, give or transmit to the magistrate:
(a) the form of warrant completed by the applicant; and
(b) if the information referred to in subsection (3) was not sworn or affirmed—that information duly sworn or affirmed.
Attachment
(8) The magistrate is to attach to the documents provided under subsection (7) the form of warrant completed by the magistrate.
Presumption
(9) If:
(a) it is material, in any proceedings, for a court to be satisfied that the exercise of a power under a warrant issued under this section was duly authorised; and
(b) the form of warrant signed by the magistrate is not produced in evidence;
the court is to assume, unless the contrary is proved, that the exercise of the power was not duly authorised.
417 The things that are authorised by a search warrant
Search of premises
(1) A warrant that is in force in relation to premises authorises the executing officer or an officer assisting:
(a) to enter the premises; and
(b) to search for and record fingerprints found at the premises and to take samples of things found at the premises for forensic purposes; and
(c) to search the premises for the kinds of evidential material specified in the warrant, and to seize things of that kind found at the premises; and
(d) to seize other things found at the premises in the course of the search that the executing officer or an officer assisting believes on reasonable grounds to be:
(i) evidential material in relation to an offence, or in relation to a contravention of an environmental penalty provision, to which the warrant relates; or
(ii) evidential material in relation to another offence against an environmental law, where the other offence is an indictable offence; or
(iii) evidential material in relation to another contravention of an environmental penalty provision;
if the executing officer or an officer assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence against an environmental law or in contravening an environmental penalty provision; and
(e) to seize other things found at the premises in the course of the search that the executing officer or an officer assisting believes on reasonable grounds to be eligible seizable items; and
(f) if the warrant so allows—to conduct an ordinary search or a frisk search of a person at or near the premises if the executing officer or an officer assisting suspects on reasonable grounds that the person has in his or her possession:
(i) any evidential material in relation to an offence against an environmental law, in relation to a contravention of an environmental penalty provision or in relation to both; or
(ii) any eligible seizable items.
Search of a person
(2) A warrant that is in force in relation to a person authorises the executing officer or an officer assisting:
(a) to search:
(i) the person as specified in the warrant and things found in the possession of the person; and
(ii) any aircraft, vehicle or vessel that the person had operated or occupied at any time within 24 hours before the search began, for things specified in the warrant; and
(b) to:
(i) seize things of that kind; or
(ii) record fingerprints from things; or
(iii) take forensic samples from things;
found in the course of the search; and
(c) to seize other things found on or in the possession of the person or in the aircraft, vehicle or vessel mentioned in subparagraph (a)(ii) in the course of the search that the executing officer or an officer assisting believes on reasonable grounds to be:
(i) evidential material in relation to an offence, or in relation to a contravention of an environmental penalty provision, to which the warrant relates; or
(ii) evidential material in relation to another offence against an environmental law, where the other offence is an indictable offence; or
(iii) evidential material in relation to another contravention of an environmental penalty provision;
if the executing officer or an officer assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence against an environmental law or in contravening an environmental penalty provision; and
(d) to seize other things found in the course of the search that the executing officer or an officer assisting believes on reasonable grounds to be eligible seizable items.
Hours when premises may be searched
(3) If a warrant in relation to premises states that the premises may be entered only during particular hours, the premises must not be entered outside those hours.
Hours when person may be searched
(3A) If a warrant in relation to a person states that the search of the person may be carried out only during particular hours, the search must not be carried out outside those hours.
Ordinary searches or frisk searches
(4) If a warrant authorises an ordinary search or a frisk search of a person, a search of the person different from that so authorised must not be done.
Seized items may be made available to other agencies
(5) If things are seized under a warrant, the warrant authorises the executing officer to make the things available to officers of other agencies if it is necessary to do so for the purpose of investigating or prosecuting an offence to which the things relate.
418 Availability of assistance, and use of force, in executing a warrant
(1) In executing a warrant:
(a) the executing officer may obtain such assistance as is necessary and reasonable in the circumstances; and
(b) the executing officer, or an authorised officer who is assisting in executing the warrant, may use such force against persons and things as is necessary and reasonable in the circumstances; and
(c) a person who is not an authorised officer, but who has been authorised to assist in executing the warrant, may use such force against things as is necessary and reasonable in the circumstances.
(2) A person who is not an authorised officer must not take part in searching or arresting a person.
418A Executing officer to be in possession of warrant
When executing a warrant, the executing officer must be in possession of:
(a) the original warrant issued by the magistrate under section 415, or a copy of the original warrant as so issued; or
(b) the original form of warrant completed under subsection 416(6), or a copy of the original form as so completed.
419 Details of warrant to be given to occupier etc.
(1) If a warrant in relation to premises is being executed and the occupier of the premises or another person who apparently represents the occupier is present at the premises, the executing officer or an officer assisting must make available to that person a copy of the warrant.
(2) If a warrant in relation to a person is being executed, the executing officer or an officer assisting must make available to that person a copy of the warrant.
(3) If a person is searched under a warrant in relation to premises, the executing officer or an officer assisting must show the person a copy of the warrant.
(4) The executing officer must identify himself or herself to the person at the premises or the person being searched, as the case may be.
(5) The copy of the warrant referred to in subsections (1) and (2) need not include the signature of the magistrate who issued the warrant.
420 Specific powers available to person executing warrant
(1) In executing a warrant in relation to premises, the executing officer or an officer assisting may take photographs (including video recordings) of the premises or of things at the premises:
(a) for a purpose incidental to the execution of the warrant; or
(b) if the occupier of the premises consents in writing.
(2) If a warrant in relation to premises is being executed, the executing officer and all officers assisting may, if the warrant is still in force, complete the execution of the warrant after all of them temporarily cease its execution and leave the premises:
(a) for not more than one hour; or
(b) for a longer period if the occupier of the premises consents in writing.
(3) The execution of a warrant that is stopped by an order of a court may be completed if:
(a) the order is later revoked or reversed on appeal; and
(b) the warrant is still in force.
421 Use of equipment to examine or process things
(1) The executing officer or an officer assisting may bring to the warrant premises any equipment reasonably necessary for the examination or processing of things found at the premises in order to determine whether they are things that may be seized under the warrant.
(2) If:
(a) it is not practicable to examine or process the things at the warrant premises; or
(b) the occupier of the premises consents in writing;
the things may be moved to another place so that the examination or processing can be carried out in order to determine whether they are things that may be seized under the warrant.
(3) If things are moved to another place for the purpose of examination or processing under subsection (2), the executing officer must, if it is practicable to do so:
(a) inform the occupier of the address of the place and the time at which the examination or processing will be carried out; and
(b) allow the occupier or his or her representative to be present during the examination or processing.
(4) The executing officer or an officer assisting may operate equipment already at the warrant premises to carry out the examination or processing of a thing found at the premises in order to determine whether it is a thing that may be seized under the warrant if the executing officer or an officer assisting believes on reasonable grounds that:
(a) the equipment is suitable for the examination or processing; and
(b) the examination or processing can be carried out without damage to the equipment or thing.
422 Use of electronic equipment at premises
Operation of equipment
(1) The executing officer or an officer assisting may operate electronic equipment at the premises to see whether evidential material in relation to an offence against an environmental law, in relation to a contravention of an environmental penalty provision or in relation to both, is accessible by doing so if he or she believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.
Seizure etc.
(2) If the executing officer or an officer assisting, after operating the equipment, finds that evidential material in relation to an offence against an environmental law, in relation to a contravention of an environmental penalty provision or in relation to both, is accessible by doing so, he or she may:
(a) seize the equipment and any disk, tape or other associated device; or
(b) if the material can, by using facilities at the premises, be put in documentary form—operate the facilities to put the material in that form and seize the documents so produced; or
(c) if the material can be transferred to a disk, tape or other storage device that:
(i) is brought to the premises; or
(ii) is at the premises and the use of which for the purpose has been agreed to in writing by the occupier of the premises;
operate the equipment or other facilities to copy the material to the storage device and take the storage device from the premises.
Limitation on seizure
(3) A person may seize equipment under paragraph (2)(a) only if:
(a) it is not practicable to put the material in document form as mentioned in paragraph (2)(b) or to copy the material as mentioned in paragraph (2)(c); or
(b) possession of the equipment by the occupier could constitute an offence.
Securing equipment
(4) If the executing officer or an officer assisting believes on reasonable grounds that:
(a) evidential material in relation to an offence against an environmental law, in relation to a contravention of an environmental penalty provision or in relation to both, may be accessible by operating electronic equipment at the premises; and
(b) expert assistance is required to operate the equipment; and
(c) if he or she does not take action under this subsection, the material may be destroyed, altered or otherwise interfered with;
he or she may do whatever is necessary to secure the equipment, whether by locking it up, placing a guard or otherwise.
Notice about securing equipment
(5) The executing officer or an officer assisting must give notice to the occupier of the premises of his or her intention to secure equipment and of the fact that the equipment may be secured for up to 24 hours.
Period for which equipment may be secured
(6) The equipment may be secured:
(a) for a period not exceeding 24 hours; or
(b) until the equipment has been operated by the expert;
whichever happens first.
Extension of period
(7) If the executing officer or an officer assisting believes on reasonable grounds that the expert assistance will not be available within 24 hours, he or she may apply to a magistrate for an extension of that period.
Notice to occupier
(8) The executing officer or an officer assisting must give notice to the occupier of the premises of his or her intention to apply for an extension, and the occupier is entitled to be heard in relation to the application.
Provisions relating to extensions
(9) The provisions of this Division relating to the issue of warrants apply, with such modifications as are necessary, to the issuing of an extension.
423 Compensation for damage to electronic equipment
(1) If:
(a) damage is caused to equipment as a result of it being operated as mentioned in section 421 or 422; and
(b) the damage was caused as a result of:
(i) insufficient care being exercised in selecting the person who was to operate the equipment; or
(ii) insufficient care being exercised by the person operating the equipment;
compensation for the damage is payable to the owner of the equipment.
(2) Compensation is payable out of money appropriated by the Parliament for the purpose.
(3) In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises and his or her employees and agents, if they were available at the time, had provided any warning or guidance as to the operation of the equipment that was appropriate in the circumstances.
424 Copies of seized things to be provided
(1) Subject to subsection (2), if an authorised officer seizes, under a warrant relating to premises:
(a) a document, film, computer file or other thing that can be readily copied; or
(b) a storage device the information in which can be readily copied;
the authorised officer must, if requested to do so by the occupier of the premises or another person who apparently represents the occupier and who is present when the warrant is executed, give a copy of the thing or the information to that person as soon as practicable after the seizure.
(2) Subsection (1) does not apply if:
(a) the thing that has been seized was seized under paragraph 422(2)(b) or (c); or
(b) possession of the document, film, computer file, thing or information by the occupier could constitute an offence.
425 Occupier entitled to be present during search
(1) If a warrant in relation to premises is being executed and the occupier of the premises or another person who apparently represents the occupier is present at the premises, the person is, subject to Part IC of the Crimes Act 1914, entitled to observe the search being conducted.
(2) The right to observe the search being conducted ceases if the person impedes the search.
(3) This section does not prevent 2 or more areas of the premises being searched at the same time.
426 Receipts for things seized under warrant
(1) If a thing is seized under a warrant or moved under subsection 421(2), the executing officer or an officer assisting must provide a receipt for the thing.
(2) If 2 or more things are seized or moved, they may be covered in the one receipt.
427 Restrictions on personal searches
A warrant cannot authorise a strip search or a search of a person’s body cavities.
428 When a thing is in the possession of a person
This Division applies to a person (the possessor) who has a thing under his or her control in any place (whether for the use or benefit of the possessor or of another person), even if another person has the actual possession or custody of the thing, as if the possessor has possession of the thing.
Division 6—Arrest and related matters
430 Powers of arrest
(1) An authorised officer may, without warrant, arrest any person, if the authorised officer believes on reasonable grounds that:
(a) the person is committing or has committed an offence against an environmental law; and
(b) proceedings against the person by summons would not be effective.
(2) If an authorised officer (subject to subsection (2A)) arrests a person under subsection (1), the authorised officer must:
(a) in the case of a member of a police force—produce, for inspection by that person, written evidence of the fact that he or she is a member of that police force; and
(aa) in the case of an officer of Customs—produce, for inspection by that person, written evidence of the fact that he or she is an officer of Customs; and
(b) in any other case—produce his or her identity card for inspection by that person.
(2A) Subsection (2) does not apply to an authorised officer if:
(a) the authorised officer is a member of a police force or an officer of Customs; and
(b) the officer is in uniform.
(3) If a person is arrested under subsection (1), an authorised officer must without unreasonable delay bring the person, or cause the person to be brought, before a Justice of the Peace or other proper authority to be dealt with in accordance with law.
(4) A reference in this section to an offence against an environmental law does not include an offence against Part VIIA of the Great Barrier Reef Marine Park Act 1975 (compulsory pilotage).
431 Power to conduct a frisk search of an arrested person
An authorised officer who arrests a person for an offence against an environmental law, or who is present at such an arrest, may, if the authorised officer suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the arrested person is carrying any eligible seizable items:
(a) conduct a frisk search of the arrested person at or soon after the time of arrest; and
(b) seize any eligible seizable items found as a result of the search.
432 Power to conduct an ordinary search of an arrested person
An authorised officer who arrests a person for an offence against an environmental law, or who is present at such an arrest, may, if the authorised officer suspects on reasonable grounds that the arrested person is carrying:
(a) evidential material in relation to that or another offence against an environmental law; or
(aa) evidential material in relation to a contravention of an environmental penalty provision; or
(b) an eligible seizable item;
conduct an ordinary search of the arrested person at or soon after the time or arrest, and seize any such thing found as a result of the search.
433 Power to conduct search of arrested person’s premises
An authorised officer who arrests a person at premises for an offence against an environmental law, or who is present at such an arrest, may seize a thing in plain view at those premises that the authorised officer believes on reasonable grounds to be:
(a) evidential material in relation to that or another offence against an environmental law; or
(aa) evidential material in relation to a contravention of an environmental penalty provision; or
(b) an eligible seizable item.
433A Interaction of this Division with Schedule 1
This Division does not limit, and is not limited by, Schedule 1. In particular, the detention of a person under Schedule 1 is not to be taken to constitute the arrest of the person for the purposes of this Division.
Division 6A—Provisions relating to detention of suspected foreign offenders
433B Provisions relating to detention of suspected foreign offenders
Schedule 1 has effect.
Division 7—Miscellaneous provisions about searches, entry to premises, warrants etc.
434 Conduct of ordinary searches and frisk searches
An ordinary search or a frisk search of a person under this Part must, if practicable, be conducted by a person of the same sex as the person being searched.
435 Announcement before entry
(1) An authorised officer must, before any person enters premises under a warrant or to arrest a person under this Act:
(a) announce that he or she is authorised to enter the premises; and
(b) give any person at the premises an opportunity to allow entry to the premises.
(2) An authorised officer is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the premises is required to ensure:
(a) the safety of a person (including an authorised officer); or
(b) that the effective execution of the warrant or the arrest is not frustrated.
436 Offence of making false statements in warrants
A person commits an offence punishable upon conviction by imprisonment for a term not exceeding 2 years if the person:
(a) makes a statement in an application for a warrant; and
(b) does so knowing the statement is false or misleading in a material particular.
437 Offences relating to telephone warrants
A person must not:
(a) state in a document that purports to be a form of warrant under section 409A or 416 the name of a magistrate unless the magistrate issued the warrant; or
(b) state on a form of warrant under section 409A or 416 a matter that, to the person’s knowledge, departs in a material particular from the form authorised by the magistrate; or
(c) purport to execute, or present to another person, a document that purports to be a form of warrant under section 409A or 416 that the person knows:
(i) has not been approved by a magistrate under that section; or
(ii) departs in a material particular from the terms authorised by a magistrate under that section; or
(d) give to a magistrate a form of warrant under section 409A or 416 that is not the form of warrant that the person purported to execute.
Penalty: Imprisonment for 2 years.
438 Retention of things seized under Division 4 or 6
(1) This section applies to a thing that is seized under Division 4 or 6.
(2) The thing may be retained until:
(a) the reason for the seizure of the thing no longer exists; or
(b) it is decided that the thing is not to be used in evidence;
whichever happens first.
(3) As soon as practicable after the end of the period during which the thing may be retained under subsection (2), the Secretary must cause reasonable steps to be taken to return the thing to the person from whom it was seized (or to the owner if that person is not entitled to possess it).
(4) Subsection (3) does not apply if:
(a) the thing is forfeited or forfeitable to the Commonwealth; or
(b) the thing has been dealt with under this Part, or as otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory), in a way that means the Secretary is not in a position to cause reasonable steps to be taken to return the thing; or
(c) the Commonwealth, the Secretary or an authorised officer is otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory) to retain, destroy, dispose of or otherwise deal with the thing.
440 Law relating to legal professional privilege not affected
This Part does not affect the law relating to legal professional privilege.
441 Other laws about search, arrest etc. not affected
(1) This Part is not intended to limit or exclude the operation of another law of the Commonwealth relating to:
(a) the search of persons or premises; or
(b) arrest and related matters; or
(c) the stopping, detaining or searching of aircraft, vehicles or vessels; or
(d) the seizure of things.
(2) To avoid doubt, it is declared that even though another law of the Commonwealth provides power to do one or more of the things referred to in subsection (1), a similar power conferred by this Part may be used despite the existence of the power under the other law.
442 Persons to assist authorised officers
(1) Subject to subsection (5), the owner, or person in charge:
(a) of any vehicle, vessel, aircraft or platform boarded by an authorised officer under section 403; or
(b) of any premises entered by an authorised officer under section 405;
must, if requested by an authorised officer to do so, provide reasonable assistance to the authorised officer in the performance of the functions, or carrying out of the duties, or the exercise of the powers, conferred on the authorised officer under this Act.
(2) A person must not contravene subsection (1).
Penalty: Imprisonment for 12 months.
(3) Subject to subsection (5), the owner, or the person in charge, of:
(a) premises entered under a warrant; or
(b) an aircraft, vehicle or vessel stopped under section 403;
must, if requested by an authorised officer to do so, provide reasonable assistance to the authorised officer in the performance of the functions, or carrying out of the duties, or the exercise of the powers, conferred on the authorised officer under this Act.
(4) A person must not contravene subsection (3).
Penalty: Imprisonment for 12 months.
(5) Where an authorised officer (subject to subsection (6)) makes a request of a person under this section, the authorised officer must:
(a) in the case of a member of a police force—produce, for inspection by that person, written evidence of the fact that he or she is a member of that police force; or
(aa) in the case of an officer of Customs—produce, for inspection by that person, written evidence of the fact that he or she is an officer of Customs; or
(b) in any other case—produce his or her identity card for inspection by that person;
and, if the authorised officer fails to do so, that person is not obliged to comply with the request.
(6) Subsection (5) does not apply to an authorised officer if:
(a) the authorised officer is a member of a police force or an officer of Customs; and
(b) the officer is in uniform.
Division 8—Power to search goods, baggage etc.
443 Power to search goods, baggage etc.
(1) This section applies to any goods that are to be, are being, or have been, taken on or off a ship that voyages, or an aircraft that flies, between:
(a) a place in Australia and a place outside Australia; or
(b) a place in an external Territory and a place outside that Territory.
(2) If an authorised officer believes, on reasonable grounds that goods are goods to which this section applies, he or she may:
(a) examine the goods; or
(b) if the goods are baggage—open and search the baggage; or
(c) if the goods are in a container—open and search the container.
(3) An authorised officer may ask a person who owns, is carrying or is otherwise associated with, or appears to the authorised officer to be associated with, goods to which this section applies any question in respect of the goods.
(4) A person must not refuse or fail to answer a question put to the person under subsection (3).
Penalty: 60 penalty units.
(5) In this Act:
baggage includes any parcel or other goods that:
(a) a passenger; or
(b) the master, a mate, an engineer or any other member of the crew of a ship; or
(c) the pilot or any other member of the crew of an aircraft;
has had with him or her on the ship or aircraft.
goods includes baggage.
Division 8A—Power to ask questions about specimens
443A Authorised officer may ask questions about the nature or origin of specimens
When section applies
(1) This section applies if an authorised officer has reasonable grounds to suspect that:
(a) a specimen has been exported, or is proposed to be exported, in contravention of section 303CC or 303DD; or
(b) a specimen has been imported, or is proposed to be imported, in contravention of section 303CD or 303EK; or
(c) a person has in the person’s possession a specimen, and that possession contravenes section 303GN.
Note: Sections 303CC, 303CD, 303DD, 303EK and 303GN are included in Part 13A, which deals with international movement of wildlife specimens.
Questions
(2) If the authorised officer has reasonable grounds to suspect that a person has information about the nature or origin of the specimen, the authorised officer may ask the person one or more questions about the nature or origin of the specimen.
(2A) The authorised officer may ask the questions:
(a) in any case—by asking them in the presence of the person; or
(b) if the authorised officer is not a member of a police force and is not an officer of Customs—by sending written questions to the person.
Answers to questions
(3) Subject to subsections (6) and (7), if a person is asked a question under subsection (2), the person must not intentionally refuse or intentionally fail to answer the question to the extent that the person is capable of doing so.
(4) A person who contravenes subsection (3) commits an offence punishable on conviction by a fine not exceeding 10 penalty units.
(5) In subsection (3), strict liability applies to the circumstance that the person was asked a question under subsection (2).
Note: For strict liability, see section 6.1 of the Criminal Code.
No requirement to give incriminating answers
(6) If a person is asked a question under subsection (2), the person is not required to answer the question if the answer might tend to incriminate the person or expose the person to a penalty.
Identity cards etc.
(7) If a person is asked a question under subsection (2) by an authorised officer, the person is not required to answer the question unless:
(a) if the authorised officer is a member of a police force—the authorised officer produces, for inspection by the person, written evidence of the fact that the authorised officer is a member of that police force; or
(b) if the authorised officer is an officer of Customs—the authorised officer produces, for inspection by the person, written evidence of the fact that the authorised officer is an officer of Customs; or
(c) if the authorised officer is not a member of a police force and is not an officer of Customs:
(i) if the questions are asked in the presence of the person—the authorised officer produces the authorised officer’s identity card for inspection by the person; or
(ii) if the questions are asked by sending written questions to the person—the authorised officer sends with the questions a copy of his or her instrument of appointment.
Division 9—Power to ask for names and addresses
444 Authorised person may ask for person’s name and address
(1) An authorised officer may ask an individual to tell the authorised officer the individual’s name and address if the authorised officer has reasonable grounds to suspect that the individual has been involved in the commission of an offence against an environmental law.
(2) Subject to subsection (4), a person must not refuse or fail to comply with a request under subsection (1).
Penalty: 10 penalty units.
(3) A person commits an offence punishable upon conviction by a fine not exceeding 10 penalty units if the person:
(a) in purported compliance with a request under subsection (1), gives a name and address; and
(b) does so knowing the name or address is false or misleading.
(4) If an authorised officer makes a request of a person under subsection (1), the person is not required to comply with the request unless:
(a) if the authorised officer is a member of a police force—he or she produces, for inspection by the person, written evidence of the fact that he or she is a member of that police force; or
(aa) if the authorised officer is an officer of Customs—he or she produces, for inspection by the person, written evidence of the fact that he or she is an officer of Customs; or
(b) in any other case—the authorised officer produces his or her identity card for inspection by the person.
Division 10—Seizure and forfeiture etc.
Subdivision AA—Seizure of specimens involved in a contravention of Part 13A
444A Seizure of specimens involved in a contravention of Part 13A
(1) An authorised officer may seize a specimen if he or she has reasonable grounds to suspect that the specimen has been used or otherwise involved in the commission of an offence against Part 13A.
Note: Part 13A deals with international movement of wildlife specimens.
(2) If a warrant has been issued under Division 4:
(a) if the warrant relates to premises—this section does not apply:
(i) to the executing officer, or an officer assisting, while he or she is searching premises under the warrant; or
(ii) to anything found during the course of such a search; and
(b) if the warrant relates to a person—this section does not apply:
(i) to the executing officer, or an officer assisting, while he or she is searching a person, or an aircraft, vehicle or vessel, under the warrant; or
(ii) to anything found during the course of such a search.
Note: Division 4 is about search warrants. The Division contains its own seizure powers (see paragraphs 417(1)(c), (d) and (e) and (2)(b), (c) and (d)).
444B Notice about seizure
(1) Subject to subsection (2), if a specimen is seized by an authorised officer under section 444A, the authorised officer must give:
(a) the owner of the specimen; or
(b) the person who had possession, custody or control of the specimen immediately before it was seized;
a written notice:
(c) identifying the specimen; and
(d) stating that it has been seized under section 444A and giving the reason for the seizure; and
(e) setting out the terms of sections 444C and 444D.
The notice must be given as soon as practicable after the seizure.
(2) An authorised officer is not required to give a notice under subsection (1) about a specimen if, after making such inquiries as the authorised officer thinks appropriate, the authorised officer does not, within 30 days after the seizure, have sufficient information to enable the authorised officer to give the notice. In that event, the authorised officer must keep a written record of the seizure.
444C Applications for return of specimen
(1) If a specimen is seized under section 444A, the owner of the specimen may apply in writing to the Secretary for the delivery to the owner of the specimen.
(2) The application must be made:
(a) within 30 days after the seizure; or
(b) if a notice is given under subsection 444B(1) in relation to the specimen—within 30 days after the giving of the notice.
(3) The application must be made on the ground that the specimen was not used or otherwise involved in the commission of an offence against Part 13A.
(4) If the applicant satisfies the Secretary that the ground has been established, the Secretary must grant the application.
Note: Under section 444G, the Secretary may retain the specimen for up to 30 days after making a decision on the application.
444D Court action for return of specimen
(1) If a specimen is seized under section 444A, the owner of the specimen may bring an action against the Commonwealth in a court of competent jurisdiction for the delivery of the specimen to the owner on the ground that the specimen was not used or otherwise involved in the commission of an offence against Part 13A.
(2) An action under subsection (1) must be brought:
(a) within 30 days after the seizure; or
(b) if a notice is given under subsection 444B(1) in relation to the specimen—within 30 days after the giving of the notice.
(3) If:
(a) an action is brought under subsection (1); and
(b) the court finds that the specimen was used or otherwise involved in the commission of the offence concerned;
the court must order the specimen to be forfeited to the Commonwealth.
(4) If:
(a) an action is brought under subsection (1); and
(b) the action is discontinued by the owner otherwise than because of:
(i) the delivery of the specimen to the owner; or
(ii) the forfeiture of the specimen to the Commonwealth; or
(iii) the disposal of the specimen under section 449;
the specimen is forfeited to the Commonwealth.
444E Consignment of specimen with consent of owner
(1) If:
(a) a specimen is seized under section 444A; and
(b) the specimen was imported from a particular foreign country; and
(c) the export of the specimen from the foreign country was not in contravention of a law of the foreign country that corresponds to Part 13A; and
(d) if the importer had applied for a permit authorising the import of the specimen, there is no reasonable likelihood that the permit would have been granted; and
(e) the importer produces written evidence from the relevant CITES authority of the foreign country that the specimen may be returned to the foreign country without contravening such a law;
the Secretary may, with the consent of the owner of the specimen, consign the specimen to a place in the foreign country.
(2) The consignment is to be at the expense of the owner of the specimen.
444G Retention of specimen
(1) If a specimen is seized under section 444A, the specimen may be retained until the end of 30 days after whichever is the latest of the following events:
(a) the seizure;
(b) if a notice is given under subsection 444B(1) in relation to the specimen—the giving of the notice;
(c) if an application is made under subsection 444C(1) in relation to the specimen—the making of a decision on that application;
(d) if:
(i) proceedings for an offence against Part 13A are instituted during the period within which an application may be made under subsection 444C(1) in relation to the specimen; and
(ii) the specimen may have been used or otherwise involved in the commission of the offence or the specimen may afford evidence of the commission of the offence;
the termination of the proceedings (including any appeal to a court in relation to those proceedings).
(2) The rule in subsection (1) does not authorise the retention of the specimen if the owner of the specimen succeeds in an action under subsection 444D(1) for the delivery of the specimen to the owner.
(3) As soon as practicable after the end of the period during which the specimen may be retained under subsection (1), the Secretary must cause reasonable steps to be taken to return the specimen to the person from whom it was seized (or to the owner if that person is not entitled to possess it).
(4) Subsection (3) does not apply if:
(a) the specimen is forfeited or forfeitable to the Commonwealth; or
(b) the specimen has been dealt with under this Part, or as otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory), in a way that means the Secretary is not in a position to cause reasonable steps to be taken to return the specimen; or
(c) the Commonwealth, the Secretary or an authorised officer is otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory) to retain, destroy, dispose of or otherwise deal with the specimen; or
(d) proceedings under subsection 444D(1) relating to the specimen are pending.
444H Forfeiture of specimen after end of retention period
(1) If:
(a) a specimen is seized under section 444A; and
(b) none of the following happens before the end of the period for which the specimen may be retained:
(i) proceedings are instituted for an offence against Part 13A, where the specimen is alleged to have been used or otherwise involved in the commission of the offence;
(ii) the specimen is released unconditionally to a person under section 449BA;
(iia) the specimen is delivered to a person under section 444C;
(iii) the owner of the specimen brings an action under subsection 444D(1) for the delivery of the specimen to the owner;
(iv) proceedings are instituted under section 450A in relation to the specimen;
(v) the specimen is disposed of under section 449;
the specimen is forfeited to the Commonwealth at the end of that period.
(2) Subsection (1) has effect only to the extent (if any) to which it gives effect to paragraph 1(b) of Article VIII of CITES.
Subdivision AB—Seizure of things (other than specimens involved in a contravention of Part 13A)
445 Seizure of things (other than specimens involved in a contravention of Part 13A)
(1) Subject to subsections (2) and (3), an authorised officer may seize a thing if he or she has reasonable grounds to suspect that it is evidential material in relation to an offence against an environmental law, in relation to a contravention of an environmental penalty provision or in relation to both.
(2) This section does not apply to a specimen that an authorised officer has reasonable grounds to suspect has been used or otherwise involved in the commission of an offence against Part 13A.
Note: Section 444A deals with the seizure of such specimens.
(3) If a warrant has been issued under Division 4:
(a) if the warrant relates to premises—this section does not apply:
(i) to the executing officer, or an officer assisting, while he or she is searching premises under the warrant; or
(ii) to anything found during the course of such a search; and
(b) if the warrant relates to a person—this section does not apply:
(i) to the executing officer, or an officer assisting, while he or she is searching a person, or an aircraft, vehicle or vessel, under the warrant; or
(ii) to anything found during the course of such a search.
Note: Division 4 is about search warrants. The Division contains its own seizure powers (see paragraphs 417(1)(c), (d) and (e) and (2)(b), (c) and (d)).
(3A) A reference in this section to an offence against an environmental law does not include an offence against Part VIIA of the Great Barrier Reef Marine Park Act 1975 (compulsory pilotage).
(4) In this section:
thing includes a vehicle, vessel, aircraft, platform, document, organism and specimen.
446 Retention of things seized under this Subdivision
(1) This section applies to a thing that is seized under section 445.
(1A) The thing may be retained until:
(a) the reason for the seizure no longer exists; or
(b) it is decided that the thing is not to be used in evidence; or
(c) the end of the period of 60 days after the seizure, or, if that period has been extended under subsection (3), the end of the extended period;
whichever happens first.
(1B) As soon as practicable after the end of the period (the retention period) during which the thing may be retained under subsection (1A), the Secretary must cause reasonable steps to be taken to return the thing to the person from whom it was seized (or to the owner if that person is not entitled to possess it).
(1C) Subsection (1B) does not apply if:
(a) the thing is forfeited or forfeitable to the Commonwealth; or
(b) a proceeding in respect of which the thing may afford evidence was commenced before the end of the retention period and has not been completed (including an appeal to a court in relation to that proceeding); or
(c) the thing has been dealt with under this Part, or as otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory), in a way that means the Secretary is not in a position to cause reasonable steps to be taken to return the thing; or
(d) the Commonwealth, the Secretary or an authorised officer is otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory) to retain, destroy, dispose of or otherwise deal with the thing.
(2) An authorised officer may, before the end of the retention period, apply to a magistrate for an order permitting the retention of the thing for a further period.
(3) If, in relation to an application under subsection (2), the magistrate is satisfied, by information on oath or affirmation, that it is necessary for the thing to continue to be retained:
(a) for the purposes of an investigation as to whether an offence against an environmental law has been committed, or whether an environmental penalty provision has been contravened; or
(b) to enable evidence of an offence against an environmental law, or of a contravention of an environmental penalty provision, to be secured for the purposes of a proceeding against the person for such an offence or contravention;
the magistrate may order that the thing may continue to be retained for a period specified in the order. The maximum period of an individual extension must not be more than 30 days.
(3A) Before an authorised officer makes an application under subsection (2), he or she must:
(a) take reasonable steps to discover who has an interest in the retention of the thing; and
(b) if it is practicable to do so, give notice in writing of the proposed application to each person whom the authorised officer believes to have an interest in the proposed application.
(4) Subsection (3) does not prevent a magistrate from granting 2 or more successive extensions under that subsection of the period during which the thing may be retained.
(5) A function of making an order conferred on a magistrate by subsection (3) is conferred on the magistrate in a personal capacity and not as a court or a member of a court.
(6) Without limiting the generality of subsection (5), an order made by a magistrate under subsection (3) has effect only by virtue of this Act and is not taken, by implication, to be made by a court.
(7) A magistrate performing a function of, or connected with, making an order under subsection (3) has the same protection and immunity as if he or she were performing that function as, or as a member of, a court (being the court of which the magistrate is a member).
(8) The Governor‑General may make arrangements with the Governor of a State, the Chief Minister for the Australian Capital Territory, the Administrator of the Northern Territory or the Administrator of Norfolk Island for the performance, by all or any of the persons who from time to time hold office as magistrates in that State or Territory, of the function of making orders under subsection (3).
Subdivision AC—Direction to deliver seizable items
447 Direction to deliver seizable items
(1) An authorised officer may direct a person to deliver to the officer, or to another person specified in the direction, a thing that the officer is authorised to seize under a warrant issued under Division 4 or under section 445.
(2) The direction must:
(a) be in writing; and
(b) be given to the person who is directed to deliver the thing, who must be:
(i) if the thing is a vessel—the person in charge of the vessel, or the vessel’s owner; or
(ii) if the thing is an aircraft—the person in charge of the aircraft; or
(iii) otherwise—the person in possession of the thing; and
(c) specify the place at which the delivery is to occur; and
(d) specify the period within which the delivery is to occur.
(3) A person must not fail to comply with a direction under this section.
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
(4) This Part applies to a thing delivered in compliance with a direction under this section as if the thing had been seized under the warrant or section that authorised the officer to seize the thing.
(5) A direction made under subsection (1) is not a legislative instrument.
Subdivision B—Disposal of seized items
449 Immediate disposal of seized items
(1) If:
(a) a thing is seized under this Part; and
(b) the Secretary considers that it is reasonably likely that the retention of the thing would:
(i) constitute a serious threat to the environment; or
(ii) constitute a serious threat to the continued existence, in the wild, of a particular species of animal or of a particular species of plant; or
(iii) result in the introduction of an alien species that represents a threat to ecosystems, habitats or other species; or
(iv) constitute a danger to public health; or
(v) in the case of a live organism or specimen—constitute a significant threat to the health of the organism or specimen; or
(vi) in the case of a live animal—result in the animal suffering;
the Secretary may cause the thing to be dealt with in such manner as the Secretary considers appropriate (including the destruction of the thing).
(1A) If the Secretary causes a live animal to be destroyed under subsection (1), the Secretary must require the destruction to be carried out in a humane manner.
(2) Subject to subsection (3), if a thing is dealt with in accordance with subsection (1), the Secretary must give to:
(a) the owner of the thing; or
(b) the person who had possession, custody or control of the thing immediately before it was seized;
a written notice:
(c) identifying the thing; and
(d) stating that the thing has been seized under this Part and giving the reason for the seizure; and
(e) stating that the thing has been dealt with under subsection (1) and specifying the manner in which it has been so dealt with and the reason for doing so; and
(f) setting out the terms of subsection (4).
The notice must be given as soon as practicable after the thing is so dealt with.
(3) The Secretary need not give a notice under subsection (2) about a thing if, after making such inquiries as the Secretary thinks appropriate, the Secretary does not, within 20 days after dealing with the thing, have sufficient information to enable the notice to be given.
(4) If a thing is dealt with in accordance with subsection (1), the owner of the thing may bring an action against the Commonwealth in a court of competent jurisdiction for the recovery of the market value of the thing at the time it was so dealt with. The action must be brought on the ground that the thing was not used or otherwise involved in the commission of an offence against this Act or the regulations.
449A Disposal of seized items if Secretary cannot locate or identify person entitled etc.
(1) This section applies to a thing that is seized under this Part if:
(a) apart from this section, the thing is required to be returned or delivered to a person (or reasonable steps are required to be taken for the return or delivery to a person of the thing); and
(b) one or more of the following applies:
(i) the Secretary is satisfied that reasonable steps have been taken to locate or identify the person, but those steps have not succeeded;
(ii) the Secretary is satisfied that reasonable steps have been taken to return or deliver the thing to the person, but those steps have not succeeded;
(iii) the Secretary is otherwise satisfied that it is not practicable to return or deliver the thing to the person.
(2) The Secretary may dispose of the thing in such manner as the Secretary considers appropriate.
Subdivision BA—Release of seized items to owner etc.
449BA Release of seized items to owner etc.
(1) If a thing is seized under this Part, the Secretary may authorise the thing, or anything in, on or attached to the thing, to be released to its owner, or to the person from whose possession it was seized, either:
(a) unconditionally; or
(b) on such conditions as the Secretary thinks fit (including conditions about the giving of security for giving payment of its value if it is forfeited).
(2) A person commits an offence if:
(a) a thing is released to the person under subsection (1) subject to a condition; and
(b) the person engages in conduct; and
(c) the conduct contravenes the condition.
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
(3) Absolute liability applies to paragraph (2)(a).
Note: For absolute liability, see section 6.2 of the Criminal Code.
449BB How this Part applies in relation to things released conditionally
(1) This section applies if a thing, or anything in, on or attached to a thing, seized under this Part is released on conditions to a person under section 449BA. The provision of this Part under which the seizure was made is the seizure provision, and the thing that is released is the released thing.
(2) Subject to this section, the provisions of this Part that apply in relation to things seized under the seizure provision continue to apply to the released thing as if it had not been released.
(3) A reference in a provision of this Part to the return or delivery of the released thing to a person is, if the person is the person to whom the thing has been released, taken to be a reference to making the release of the thing to the person unconditional.
(4) The regulations may specify modifications of provisions of this Part that are to have effect in relation to things to which this section applies. However, regulations must not:
(a) increase, or have the effect of increasing, the maximum penalty for any offence; or
(b) widen, or have the effect of widening, the scope of any offence.
Subdivision C—Forfeiture of seized items
450 Court‑ordered forfeiture: order by court dealing with offence proceedings
(1) If a court convicts a person of an offence against an environmental law, the court may order the forfeiture to the Commonwealth of any thing used or otherwise involved in the commission of the offence.
(1A) If a court convicts a person of an offence against Part 13A, the court must order the forfeiture to the Commonwealth of any specimen used or otherwise involved in the commission of the offence.
Note: Part 13A deals with the international movement of wildlife specimens.
(2) A court may make an order under subsection (1) or (1A) even if the thing or specimen has been seized under this Act or taken into possession under section 406AA or Schedule 1.
(3) If:
(a) a specimen is seized under this Part; and
(b) either:
(i) a court finds a person not guilty of an offence against an environmental law in relation to the specimen; or
(ii) a proceeding in a court for such an offence in relation to the specimen is discontinued or dismissed; and
(c) the court is satisfied that there are reasonable grounds for suspecting that, if the specimen were released to the person from whom it was seized or to its owner, the possession of the specimen by that person would contravene a provision of an environmental law;
the court may order the forfeiture to the Commonwealth of the specimen.
(4) A reference in this section to an offence against an environmental law does not include an offence against Part VIIA of the Great Barrier Reef Marine Park Act 1975 (compulsory pilotage).
450A Court‑ordered forfeiture: other situations
(1) A court may, on the application of the Secretary, order the forfeiture to the Commonwealth of a thing that is seized under this Part if the court is satisfied that the thing has been used or otherwise involved in the commission of an offence against an environmental law.
(2) Without limiting subsection (1), a court may, on the application of the Secretary, order the forfeiture to the Commonwealth of a specimen if:
(a) the specimen was seized under this Part; and
(b) either:
(i) a court has found a person not guilty of an offence against an environmental law in relation to the specimen; or
(ii) a proceeding in a court for such an offence in relation to the specimen has been discontinued or dismissed; and
(c) the court to which the Secretary applies is satisfied that there are reasonable grounds for suspecting that, if the specimen were released to the person from whom it was seized or to its owner, the possession of the specimen by that person would contravene a provision of an environmental law.
(3) A reference in this section to an offence against an environmental law does not include an offence against Part VIIA of the Great Barrier Reef Marine Park Act 1975 (compulsory pilotage).
450B Forfeiture of seized items by consent etc.
(1) If:
(a) a thing is seized under this Part; and
(b) the owner of the thing agrees to transfer ownership of the thing to the Commonwealth, either:
(i) unconditionally; or
(ii) in the event that a future contingency happens; and
(c) if subparagraph (b)(ii) applies—that contingency happens;
then:
(d) the thing becomes the property of the Commonwealth; and
(e) the provisions of this Part relating to forfeiture apply as if the thing had been forfeited to the Commonwealth under this Act.
(2) If:
(a) a thing is seized under this Part; and
(b) the owner of the thing agrees to transfer ownership of the thing to the Commonwealth in the event that a future contingency happens;
the Secretary may retain the thing:
(c) until the thing becomes the property of the Commonwealth; or
(d) if the thing does not become the property of the Commonwealth—until the end of the last day on which that contingency could happen.
(3) Subsection (2) has effect despite anything in section 438, 444G, 446, 456AB or 456AC.
451 Dealings in forfeited items
(1) A thing forfeited to the Commonwealth under this Act becomes the property of the Commonwealth.
(2) A thing forfeited to the Commonwealth under this Act is to be dealt with in such manner as the Secretary considers appropriate.
(3) Without limiting subsection (2), the Secretary may sell a thing forfeited to the Commonwealth under this Act.
(4) The Secretary must not sell a specimen forfeited to the Commonwealth under this Act unless, in the opinion of the Secretary, the buyer will use the specimen for scientific or educational purposes.
452 Delivery of forfeited items to the Commonwealth
(1) If:
(a) a thing is forfeited to the Commonwealth under this Act; and
(b) the thing has not been dealt with under section 451; and
(c) the thing is in the possession, custody or control of a person other than:
(i) the Commonwealth; or
(ii) an agency of the Commonwealth; and
(d) the Secretary requests the person to deliver the thing to the Secretary;
the person must deliver the thing to the Secretary.
(2) A person must not contravene subsection (1).
Penalty: Imprisonment for 2 years.
Subdivision F—Keeping of organisms or specimens that have been seized
453 Keeping of organisms or specimens retained under this Part
If a person is authorised under this Part to retain an organism or specimen, the person may do so by causing the organism or specimen to be taken to, and kept at, a place approved by the Secretary for the purpose of keeping organisms or specimens seized under this Division.
454 Recovery of costs of storing or keeping organisms or specimens
(1) If an organism or specimen is seized under this Division, the owner is liable to pay to the Commonwealth an amount equal to the sum of the following costs:
(a) reasonable costs incurred by the Commonwealth in relation to the custody of the organism or specimen;
(b) reasonable costs incurred by the Commonwealth in transporting the organism or specimen;
(c) reasonable costs incurred by the Commonwealth in maintaining the organism or specimen.
(2) If:
(a) an organism or specimen is seized under this Division; and
(b) the organism or specimen is disposed of;
the owner is liable to pay to the Commonwealth an amount equal to the reasonable costs incurred by the Commonwealth in disposing of the organism or specimen.
(3) An amount payable by a person under this section is a debt due by the person to the Commonwealth.
(4) An amount payable by a person to the Commonwealth under this section may be recovered by action in a court of competent jurisdiction.
(5) The Secretary may remit an amount payable by a person under this section.
(6) In addition to its effect apart from this subsection, this section also has the effect it would have if a liability under this section were, by express provision, confined to the case of an organism or specimen that:
(a) is forfeited to the Commonwealth under this Act; or
(b) would have been forfeited to the Commonwealth under this Act if it had not been disposed of.
Subdivision G—Rescuing things
455 Rescuing things
A person commits an offence punishable upon conviction by imprisonment for a term not exceeding 2 years if:
(a) the person rescues any thing; and
(b) the thing has been, or is about to be, seized under this Act.
456 Breaking or destroying things or documents to prevent seizure etc.
A person must not:
(a) stave, break or destroy any thing in order to prevent the seizure of a thing, the securing of a thing, or the proof of any offence under an environmental law; or
(b) destroy any documents relating to any thing in order to prevent the seizure of a thing, the securing of a thing, or the proof of any offence under an environmental law.
Penalty: Imprisonment for 2 years.
Subdivision H—Seizure of cages or containers
456AA Power to seize cages or containers containing seizable things
(1) This section applies if:
(a) an authorised officer has power to seize a thing (a seizable thing) under another provision of this Part; and
(b) the seizable thing is in a cage or container; and
(c) the authorised officer considers that it is not reasonably practicable to seize the seizable thing without also seizing the cage or container.
(2) For the purpose of seizing the seizable thing and despite any other provision of this Part, the authorised officer may seize the cage or container containing the seizable thing (whether or not the cage or container also contains any other thing).
(3) The seizure of the seizable thing is taken to occur under the provision mentioned in paragraph (1)(a) (not under this section).
Note: The provisions governing the retention and return of the seizable thing are therefore the provisions that usually govern the seizure of a thing under the provision mentioned in paragraph (1)(a).
(4) If:
(a) an authorised officer seizes a cage or container; and
(b) the seizure of the cage or container is authorised by this section, and is also authorised by another provision of this Part;
then the seizure is taken be under this section, rather than under that other provision (subject to subsection 456AB(5)).
456AB Retention of seized cage or container
(1) This section applies to a cage or container that is seized under section 456AA because it contains a seizable thing.
(2) The cage or container may be retained for so long as an authorised officer considers that it is reasonably necessary to retain it for the purpose of housing the seizable thing.
(3) As soon as practicable after the end of the period during which the cage or container may be retained under subsection (2), the Secretary must cause reasonable steps to be taken to return the cage or container to the person from whom it was seized (or to the owner if that person is not entitled to possess it).
(4) Subsection (3) does not apply if:
(a) the seizure was also authorised by another provision of this Part (the other seizure provision), as mentioned in subsection 456AA(4)); or
(b) the cage or container is forfeited or forfeitable to the Commonwealth; or
(c) the cage or container has been dealt with under this Part, or as otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory), in a way that means the Secretary is not in a position to cause reasonable steps to be taken to return the cage or container; or
(d) the Commonwealth, the Secretary or an authorised officer is otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory) to retain, destroy, dispose of or otherwise deal with the cage or container.
(5) If, because of paragraph (4)(a), the cage or container does not have to be returned at the end of the period referred to in subsection (3), this Part then applies in relation to the cage or container as if, at the end of that period, it had been seized under the other seizure provision.
456AC Retention of non‑seizable things contained in seized cages or containers
(1) This section applies if:
(a) a cage or container is seized under section 456AA because it contains a seizable thing; and
(b) the cage or container also contains a thing (a non‑seizable thing) that is not a seizable thing.
(2) The non‑seizable thing may be retained until it is reasonably practicable to return the thing to the person from whom it was seized (or to the owner if that person is not entitled to possess it).
(3) As soon as practicable after the end of the period during which the non‑seizable thing may be retained under subsection (2), the Secretary must cause reasonable steps to be taken to return the thing to the person from whom it was seized (or to the owner if that person is not entitled to possess it).
(4) Subsection (3) does not apply if:
(a) the non‑seizable thing is forfeited or forfeitable to the Commonwealth; or
(b) the non‑seizable thing has been dealt with under this Part, or as otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory), in a way that means the Secretary is not in a position to cause reasonable steps to be taken to return the thing; or
(c) the Commonwealth, the Secretary or an authorised officer is otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory) to retain, destroy, dispose of or otherwise deal with the non‑seizable thing.
Division 12—Environmental audits
458 Directed environmental audits
(1) The Minister may, by written notice given to the holder of an environmental authority, require the holder to carry out an environmental audit if the Minister believes or suspects on reasonable grounds:
(a) that the holder has contravened, or is likely to contravene, a condition of the authority; or
(b) the impacts that the action authorised by the authority has, has had or is likely to have on the matter dealt with by the provision for which the authority authorises the action are significantly greater than was indicated in the information available to the Minister when the authority was granted.
(2) The notice must specify:
(a) the matters to be covered by the audit; and
(b) the form of the audit report and the kinds of particulars it is to contain; and
(c) the date on or before which the report must be given to the Minister.
(3) Without limiting the matters that may be specified under paragraph (2)(a), those matters may include all or any of the following:
(a) an evaluation of the nature of the environment that is or will be affected by the holder’s activities; and
(b) an assessment of the risks to the environment resulting from the activities; and
(c) an assessment of the holder’s existing capacity to comply with the authority and the requirements of this Act and the regulations in carrying on the activities; and
(d) an assessment of what the holder will need to do, or continue to do, so to comply.
(4) For the purposes of this Act, an environmental authority is:
(a) an approval under Part 9; or
(b) a permit issued under Chapter 5.
459 Appointment of auditor and carrying out of audit
(1) If the Minister gives the holder of an environmental authority a notice under section 458, the holder must appoint an environmental auditor and arrange for the auditor to carry out an environmental audit in accordance with the notice.
(2) The holder of an environmental authority must not contravene subsection (1).
Civil penalty: 500 penalty units.
(3) The holder must not appoint an officer or employee of the holder to be an environmental auditor.
(4) The holder must not appoint a person to be an environmental auditor unless the Minister has approved the person for such appointment before the appointment is made.
(5) An appointment of a person as an environmental auditor made otherwise than in accordance with subsections (3) and (4) has no effect.
460 Nature of directed environmental audit
(1) If:
(a) an environmental auditor carries out a directed environmental audit; and
(b) in the course of carrying out the audit, the auditor does not deal with a particular matter; and
(c) the matter is specified in the Minister’s notice under section 458 as a matter that is to be covered by the audit;
the auditor commits an offence, punishable on conviction by a fine not exceeding 30 penalty units.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibilities.
(2) If:
(a) an environmental auditor carries out a directed environmental audit; and
(b) in the course of carrying out the audit, the auditor conceals, or does not take into account, any information or document; and
(c) the information or document is relevant to the audit;
the auditor commits an offence punishable on conviction by imprisonment for not more than 6 months.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: Subsection 4B(2) of the Crimes Act 1914 lets a court that convicts an individual of an offence impose a fine instead of, or as well as, imprisonment. The maximum fine (in penalty units) the court can impose is 5 times the maximum term of imprisonment (in months).
(3) In carrying out a directed environmental audit, the environmental auditor may, if:
(a) an environmental audit (including an environmental audit carried out in accordance with a condition of the relevant authority) was completed within the last preceding 2 years; and
(b) the auditor is satisfied that the previous audit is still relevant;
have regard to the results of the previous audit.
(4) For the purposes of this Act, a directed environmental audit is an audit required by a notice under section 458.
461 Audit reports
(1) After completing a directed environmental audit, the environmental auditor must prepare, and give the holder of the relevant environmental authority, a written report setting out the results of the audit.
(2) The holder must give the report to the Minister:
(a) on or before the date specified by the Minister under paragraph 458(2)(c); or
(b) on or before such later date as the Minister, on application by the holder, determines.
(3) If the holder fails to comply with subsection (2), the holder commits an offence, punishable on conviction by a fine not exceeding 50 penalty units.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibilities.
(4) If:
(a) the environmental auditor includes a statement in the report; and
(b) the statement is false or misleading in a material particular;
the auditor commits an offence punishable on conviction by imprisonment for not more than 6 months.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: Subsection 4B(2) of the Crimes Act 1914 lets a court that convicts an individual of an offence impose a fine instead of, or as well as, imprisonment. The maximum fine (in penalty units) the court can impose is 5 times the maximum term of imprisonment (in months).
462 Directed environmental audits do not affect other audit obligations
This Division does not affect any obligation of a holder of an environmental authority to carry out an environmental audit in accordance with a condition of the authority.
Division 13—Conservation orders
Subdivision A—Simplified outline
463 Simplified outline of this Division
The following is a simplified outline of this Division:
The Minister may make conservation orders controlling activities, and requiring specified people to take specified actions, in Commonwealth areas to protect listed threatened species or ecological communities.
A person who contravenes a conservation order commits an offence.
Before the Minister makes a conservation order, he or she must consult various Commonwealth agencies.
The Secretary must publicise conservation orders, and may give assistance to a person to comply with a conservation order.
Subdivision B—Making and reviewing conservation orders
464 Minister may make conservation orders
Making conservation orders
(1) The Minister may make a written order (a conservation order):
(a) prohibiting or restricting specified activities on or in:
(i) all Commonwealth areas; or
(ii) specified Commonwealth areas; or
(b) requiring specified persons to take specified action on or in:
(i) all Commonwealth areas; or
(ii) specified Commonwealth areas.
Note: Section 470 makes contravening a conservation order an offence.
Prerequisite to making conservation order
(2) The Minister may only make a conservation order if he or she reasonably believes that it is necessary to make the order to protect a listed threatened species or a listed threatened ecological community.
Minister must consider economic and social matters
(3) In considering whether to make a conservation order, the Minister must be satisfied that making the order is justified, having regard to economic and social considerations that are consistent with the principles of ecologically sustainable development.
Minister must consult before making conservation order
(4) Before making a conservation order, the Minister:
(a) must seek the Secretary’s advice on whether it should be made; and
(b) must consult each Commonwealth agency that may be affected by the order, and any other Commonwealth agency the Minister thinks appropriate, unless delay in making the order would result in significant, irreparable damage to a listed threatened species or listed threatened ecological community.
465 Duration of conservation orders
(1) A conservation order comes into force:
(a) if a commencement day is specified in the order—on that day; or
(b) otherwise—immediately after it is made.
(2) The order remains in force:
(a) for the period (if any) specified in the order; or
(b) until it is revoked by the Minister.
466 Reviews of conservation orders
(1) The Minister must:
(a) at intervals of not more than 5 years, review the conservation order; and
(b) after each review, confirm, vary or revoke the order by instrument in writing.
(2) Before reviewing the order, the Minister must seek the Secretary’s advice on the review.
(3) The Minister must not revoke the order unless he or she is satisfied that the order is no longer needed to protect the listed threatened species or listed threatened ecological community the order was made to protect.
(4) The Minister must not vary the order unless he or she is satisfied that the order as varied adequately protects the listed threatened species or listed threatened ecological community the order was first made to protect.
(5) Immediately after a variation of the order, the order continues in force as so varied.
467 Publication of conservation orders
(1) As soon as practicable after making or reviewing a conservation order, the Minister must cause the Secretary to be informed of the making of the order, or the decision on the review, as the case requires.
(2) The Secretary must, as soon as practicable after being so informed:
(a) cause to be published in the Gazette, in a daily newspaper circulating in each State or self‑governing Territory in which are located Commonwealth areas to which the order relates and in any other way required by the regulations, a notice containing:
(i) a copy of the order; and
(ii) a statement to the effect that contravention of the order is an offence against this Act; and
(iii) if applicable, a statement of the decision on the review; and
(iv) a statement to the effect that a person affected by the order may apply to the Minister, within 28 days of the publication (or within such further period as the Minister allows), for a reconsideration of the order by the Minister; and
(b) take all reasonable steps to ensure that each person who the Secretary knows would be affected by the order is given a notice containing:
(i) a copy of the order; and
(ii) if applicable, a statement of the decision on the review; and
(iii) unless the person is a Commonwealth agency or an agency of a State or self‑governing Territory—a statement to the effect that contravention of the order is an offence against this Act; and
(iv) a statement to the effect that the person may apply to the Minister, within 28 days of being given the notice (or within such further period as the Minister allows), for a reconsideration of the order by the Minister.
(3) Failure to comply with this section does not affect the validity of the order.
468 Application for reconsideration of conservation orders or decisions on review
(1) A person affected by a conservation order, or by the decision on a review of a conservation order, may apply to the Minister to reconsider the order or the decision, as the case requires.
(2) The application must be in writing.
(3) Subject to subsection (4), the application must be made within 28 days, or within such further period as the Minister allows, after the publication under paragraph 467(2)(a) of the notice relating to the making of the order or conduct of the review.
(4) If the person is given a copy of the order after that publication, the period of 28 days within which that person must make the application is taken to commence on the day on which the person received the notice.
469 Reconsideration of conservation orders and decisions on review
(1) Upon receiving the application, the Minister must:
(a) seek the Secretary’s advice on the application; and
(b) reconsider the conservation order or the decision on review, as the case requires; and
(c) by written instrument:
(i) confirm, vary or revoke the order; or
(ii) confirm or vary the decision on review; and
(d) cause the Secretary to be informed accordingly.
(2) As soon as practicable after being so informed, the Secretary must:
(a) notify the applicant in writing of the result of the reconsideration; and
(b) if the order is revoked or varied or the decision on review is varied—cause to be published in the Gazette, and in any other way required by the regulations, a notice:
(i) stating that fact; and
(ii) in the case of a variation—setting out a copy of the order or decision as so varied.
(3) Immediately after a variation of the order, the order continues in effect as so varied.
Subdivision C—Complying with conservation orders
470 Contravening conservation orders is an offence
(1) A person must not take an action reckless as to whether the action contravenes a conservation order.
Penalty: 500 penalty units.
(2) If a person believes that taking an action that he or she proposes to take may contravene a particular conservation order, the person may seek the Minister’s advice under subsection 471(3) on whether the order would be contravened by taking that action.
(3) The person does not contravene the order if he or she acts in accordance with advice given to him or her under subsection 471(3) to the effect that the order would not be contravened.
471 Minister to consider proposed actions etc.
(1) This section applies to a proposed action if it is referred to the Minister under section 470 for the Minister’s advice on whether it would contravene a conservation order.
(2) A person who proposes to take the action may make written submissions to the Minister about the proposed action.
(3) The Minister must:
(a) refer the proposed action, together with any submissions received by the Minister about the proposed action, to the Secretary; and
(b) after considering the Secretary’s advice on the matter, give the person who sought the Minister’s advice under section 470 a written notice of the minister’s advice on the proposed action.
472 Contents of notices of advice
(1) The notice of advice must state whether the Minister thinks that the proposed action would contravene a conservation order.
(2) If the decision to give the advice was not made personally by the Minister and the notice of advice is given to a person who is not a Commonwealth agency, the notice must include:
(a) a statement to the effect that, if the person is dissatisfied with the decision to give that advice, application may, subject to the Administrative Appeals Tribunal Act 1975, be made to the Administrative Appeals Tribunal for review of the decision; and
(b) a statement to the effect that the person may request a statement under section 28 of that Act in relation to the decision.
473 Review by the Administrative Appeals Tribunal
(1) Subject to subsections (1A) and (2), applications may be made to the Administrative Appeals Tribunal for review of the decision to give the advice.
(1A) Subsection (1) does not apply to a decision made personally by the Minister (but the subsection does apply to a decision made by a delegate of the Minister).
(2) Despite section 27 of the Administrative Appeals Tribunal Act 1975, applications are not to be made by or on behalf of Commonwealth agencies.
474 Assistance in complying with conservation orders
(1) On behalf of the Commonwealth, the Secretary may provide assistance to a person (other than a Commonwealth agency) to comply with prohibitions, restrictions or requirements imposed on a person by a conservation order.
(2) The assistance may take any one or more of the following forms:
(a) payment of money;
(b) provision of goods;
(c) provision of labour;
(d) provision of other services.
(3) The value of the assistance must not exceed that which the Secretary thinks are the reasonable and direct costs of complying with the prohibitions, restrictions or requirements in question.
(4) Assistance given under this section must be taken into account in determining compensation payable under section 519.
Division 14—Injunctions
475 Injunctions for contravention of the Act
Applications for injunctions
(1) If a person has engaged, engages or proposes to engage in conduct consisting of an act or omission that constitutes an offence or other contravention of this Act or the regulations:
(a) the Minister; or
(b) an interested person (other than an unincorporated organisation); or
(c) a person acting on behalf of an unincorporated organisation that is an interested person;
may apply to the Federal Court for an injunction.
Prohibitory injunctions
(2) If a person has engaged, is engaging or is proposing to engage in conduct constituting an offence or other contravention of this Act or the regulations, the Court may grant an injunction restraining the person from engaging in the conduct.
Additional orders with prohibitory injunctions
(3) If the court grants an injunction restraining a person from engaging in conduct and in the Court’s opinion it is desirable to do so, the Court may make an order requiring the person to do something (including repair or mitigate damage to the environment).
Mandatory injunctions
(4) If a person has refused or failed, or is refusing or failing, or is proposing to refuse or fail to do an act, and the refusal or failure did, does or would constitute an offence or other contravention of this Act or the regulations, the Court may grant an injunction requiring the person to do the act.
Interim injunctions
(5) Before deciding an application for an injunction under this section, the Court may grant an interim injunction:
(a) restraining a person from engaging in conduct; or
(b) requiring a person to do an act.
Meaning of interested person—individuals
(6) For the purposes of an application for an injunction relating to conduct or proposed conduct, an individual is an interested person if the individual is an Australian citizen or ordinarily resident in Australia or an external Territory, and:
(a) the individual’s interests have been, are or would be affected by the conduct or proposed conduct; or
(b) the individual engaged in a series of activities for protection or conservation of, or research into, the environment at any time in the 2 years immediately before:
(i) the conduct; or
(ii) in the case of proposed conduct—making the application for the injunction.
Meaning of interested person—organisations
(7) For the purposes of an application for an injunction relating to conduct or proposed conduct, an organisation (whether incorporated or not) is an interested person if it is incorporated (or was otherwise established) in Australia or an external Territory and one or more of the following conditions are met:
(a) the organisation’s interests have been, are or would be affected by the conduct or proposed conduct;
(b) if the application relates to conduct—at any time during the 2 years immediately before the conduct:
(i) the organisation’s objects or purposes included the protection or conservation of, or research into, the environment; and
(ii) the organisation engaged in a series of activities related to the protection or conservation of, or research into, the environment;
(c) if the application relates to proposed conduct—at any time during the 2 years immediately before the making of the application:
(i) the organisation’s objects or purposes included the protection or conservation of, or research into, the environment; and
(ii) the organisation engaged in a series of activities related to the protection or conservation of, or research into, the environment.
476 Injunctions for contraventions of conservation agreements
Applications for injunctions
(1) If a person bound by a conservation agreement engages or proposes to engage in conduct consisting of an act or omission that constitutes a contravention of the agreement, another person bound by the agreement or the Minister may apply to the Federal Court for an injunction.
Note: Section 307 explains who is bound by a conservation agreement.
Prohibitory injunctions
(2) If a person has engaged, is engaging or is proposing to engage in conduct contravening the agreement, the Court may grant an injunction restraining the person from engaging in the conduct.
Additional orders with prohibitory injunctions
(3) If the court grants an injunction restraining a person from engaging in conduct and in the Court’s opinion it is desirable to do so, the Court may make an order requiring the person to do something (including repair or mitigate damage to the environment).
Mandatory injunctions
(4) If a person has refused or failed, or is refusing or failing, or is proposing to refuse or fail to do an act, and the refusal or failure was, is or would be a contravention of the agreement, the Court may grant an injunction requiring the person to do the act.
Interim injunctions
(5) Before deciding an application for an injunction under this section the Court may grant an interim injunction:
(a) restraining a person from engaging in conduct; or
(b) requiring a person to do an act.
477 Discharge of injunctions
On application, the Federal Court may discharge or vary an injunction.
479 Certain considerations for granting injunctions not relevant
Prohibitory injunctions
(1) The Federal Court may grant an injunction restraining a person from engaging in conduct:
(a) whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; and
(b) whether or not the person has previously engaged in conduct of that kind; and
(c) whether or not there is a significant risk of injury or damage to human beings or the environment if the person engages, or continues to engage, in conduct of that kind.
Mandatory injunctions
(2) The Federal Court may grant an injunction requiring a person to do a particular act or thing:
(a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do the act or thing; and
(b) whether or not the person has previously refused or failed to do the act or thing; and
(c) whether or not there is a significant risk of injury or damage to human beings or the environment if the person refuses or fails, or continues to refuse or fail, to do the act or thing.
480 Powers conferred are in addition to other powers of the Court
The powers conferred on the Federal Court by this Division are in addition to (and do not limit) any other powers of the Court.
Division 14A—Federal Court’s power to make remediation orders
480A Remediation orders
(1) If, after the commencement of this section, a person has engaged, or is engaging, in conduct constituting an offence or other contravention of this Act or the regulations, the Federal Court may make an order (a remediation order) requiring the person to take action (the remediation action) to repair or mitigate damage that may or will be, or that has been, caused to the environment by the contravention.
(2) In considering whether to grant a remediation order, the matters to which the Federal Court may have regard include (but are not limited to) the following:
(a) the nature and extent of the contravention;
(b) the nature and extent of the damage to the environment that may or will be, or that has been, caused by the contravention;
(c) the circumstances in which the contravention took place;
(d) whether the person has previously been found by a court in proceedings under this Act or the regulations to have engaged in any similar conduct;
(e) the cost to the person of taking the remediation action.
(3) The description in a remediation order of the remediation action may either be in general terms (for example, requiring the person to take whatever action is necessary to repair or mitigate the damage), or it may require the person to take particular action to repair or mitigate the damage.
(4) If the Federal Court makes a remediation order, it may also make an order requiring the person to provide security for the due taking of the remediation action.
(5) Application to the Federal Court for a remediation order may only be made by the Minister.
480B Discharge of remediation orders
On application by the Minister, the Federal Court may discharge or vary a remediation order.
480C Powers conferred are in addition to other powers of the Court
The powers conferred on the Federal Court by this Division are in addition to (and do not limit) any other powers of the Court.
Division 14B—Minister’s power to make remediation determinations
Subdivision A—Making of remediation determinations
480D Minister may make remediation determination
(1) If:
(a) the Minister considers that an action taken by a person after the commencement of this section contravened a civil penalty provision of Part 3; and
(b) the Minister considers it desirable to make an order under this section in relation to the action;
the Minister may make a written determination (a remediation determination) requiring the person to take action to repair or mitigate damage that may or will be, or that has been, caused by the contravention, to the matter protected by the provision of Part 3.
(2) The Minister cannot make a remediation determination at a time that is more than 6 years after the time when the person took the action referred to in paragraph (1)(a).
(3) A remediation determination is not a legislative instrument.
480E Contents of a remediation determination
(1) A remediation determination must specify the following:
(a) the person (the specified person) referred to in paragraph 480D(1)(a);
(b) the action (the specified action) referred to in that paragraph;
(c) the civil penalty provision (the specified civil penalty provision) of Part 3 referred to in that paragraph;
(d) the action (the remediation action) that the person is required to take.
(2) A remediation determination may do all or any of the following in relation to some or all of the remediation action:
(a) require action to be taken in a specified place;
(b) require action to be taken at, or by, a specified time;
(c) require a specified industry standard or code of practice to be complied with in taking action;
(d) require the taking of reasonable steps to obtain any Commonwealth, State or Territory approval or authority needed to carry out action;
(e) require the preparation, and submission to the Minister for approval, of a plan for taking action, and require action to be taken in accordance with the plan as approved by the Minister;
(f) require the spending of a specified amount of money on the taking of action;
(g) require the payment to a specified person of a specified amount or money, for the purpose of activities directed towards the protection and conservation of the matter protected by the specified civil penalty provision;
(h) require the payment to the Commonwealth of a specified amount of money as security for the due taking of action;
(i) provide for monitoring, auditing, or reporting to the Minister, in relation to the taking of action.
(3) A remediation determination must contain a statement to the effect that the specified person may apply for a reconsideration of the determination under section 480J.
480F Notifying owners and occupiers of land of proposed remediation determination
(1) Before the Minister makes a remediation determination that requires action to be taken on land that is not owned or occupied by the person proposed to be specified in the order, the Minister must:
(a) take all practicable steps to identify each person who is an owner or occupier of all or part of the land; and
(b) take all practicable steps to advise each person identified of the remediation determination that the Minister proposes to make; and
(c) give persons advised at least 20 business days to comment in writing to the Minister on the proposed remediation determination.
(2) The Minister must take the comments into account in deciding whether to make the proposed remediation determination.
480G Notifying that remediation determination has been made
As soon as practicable after a remediation determination is made, the Minister must:
(a) give the specified person a copy of the determination; and
(b) take all practicable steps to advise each person identified as mentioned in paragraph 480F(1)(a) of the making of the remediation determination.
480H Duration of remediation determinations
(1) A remediation determination comes into force:
(a) if a commencement day is specified in the determination (not being a day before paragraph 480G(a) is complied with)—on that day; or
(b) otherwise—when paragraph 480G(a) is complied with.
(2) The determination remains in force:
(a) for the period (if any) specified in the order; or
(b) until it is set aside by the Federal Court under Subdivision B or it is revoked by the Minister under Subdivision D.
480J Ministerial reconsideration of remediation determinations
(1) Within 20 days after receiving a copy of a remediation determination as required by paragraph 480G(a), the specified person may apply to the Minister for a reconsideration of the determination.
(2) On receipt of an application for reconsideration of a remediation determination, the Minister may affirm, vary or set aside the determination.
(3) The Minister may take account of information and comments from any source the Minister considers appropriate in deciding what action to take in relation to an application under this section.
(4) The Minister must:
(a) advise the specified person of the Minister’s decision in relation to an application under this section; and
(b) take all practicable steps to advise each person identified as mentioned in paragraph 480F(1)(a) of the Minister’s decision in relation to an application under this section.
Subdivision B—Federal Court may set aside remediation determination
480K Applying to Federal Court to have remediation determination set aside
(1) Within 28 days after any of the following:
(a) the specified person receives a copy of a remediation determination as required by paragraph 480G(a); or
(b) a remediation determination is affirmed or varied under section 480J; or
(c) a remediation determination is varied by the Minister under Subdivision D;
the specified person may apply to the Federal Court to have the remediation determination set aside.
(2) On an application under subsection (1), the Federal Court must set aside the remediation determination if the Court is satisfied that:
(a) the specified action did not occur; or
(b) the specified person did not take the specified action; or
(c) the specified action was not a contravention of the specified civil penalty provision; or
(d) the remediation action is not a reasonable measure to repair or mitigate damage that may or will be, or that has been, caused by the specified action to the matter protected by the specified civil penalty provision.
(3) In considering whether the remediation determination is a reasonable measure to repair or mitigate damage that may or will be, or that has been, caused by the specified action to the matter protected by the specified civil penalty provision, the Federal Court must have regard to the following:
(a) the nature and extent of the specified action;
(b) the nature and extent of the damage to the environment that may or will be, or that has been, caused by the specified action to the matter protected by the specified civil penalty provision;
(c) the circumstances in which the specified action took place;
(d) whether the specified person has previously been found by a court in proceedings under this Act or the regulations to have engaged in any similar conduct;
(e) the cost to the specified person of taking the remediation action.
The Federal Court may also have regard to any other matters it considers relevant.
(4) The Federal Court must not set aside the remediation determination unless it is satisfied as mentioned in subsection (2).
Subdivision C—Complying with remediation determinations
480L Federal Court may order compliance with remediation determination
(1) If the Minister considers that the specified person has contravened a remediation determination, the Minister may apply to the Federal Court for an order under subsection (2).
(2) If the Federal Court is satisfied that the specified person has contravened a remediation determination, the Court may make one or more of the following orders:
(a) an order directing the specified person to comply with the remediation determination;
(b) any other order that the Court considers appropriate.
480M Civil penalty for contravention of remediation determination
(1) The specified person must not contravene a remediation determination.
(2) Subsection (1) is a civil penalty provision. Under section 481, the Federal Court may order the specified person to pay a pecuniary penalty not more than the pecuniary penalty the Court could order the person to pay under that section for a contravention of the specified civil penalty provision.
Subdivision D—Variation or revocation of remediation determinations
480N Variation or revocation of remediation determination
(1) The Minister may, in writing, vary or revoke a remediation determination.
(2) Sections 480F and 480G apply in relation to the variation or revocation of a remediation determination in the same way as they apply in relation to the making of a remediation determination.
Division 15—Civil penalties
Subdivision A—Obtaining an order for a civil penalty
481 Federal Court may order person to pay pecuniary penalty for contravening civil penalty provision
Application for order
(1) Within 6 years of a person (the wrongdoer) contravening a civil penalty provision, the Minister may apply on behalf of the Commonwealth to the Federal Court for an order that the wrongdoer pay the Commonwealth a pecuniary penalty.
Court may order wrongdoer to pay pecuniary penalty
(2) If the Court is satisfied that the wrongdoer has contravened a civil penalty provision, the Court may order the wrongdoer to pay to the Commonwealth for each contravention the pecuniary penalty that the Court determines is appropriate (but not more than the relevant amount specified for the provision).
Determining amount of pecuniary penalty
(3) In determining the pecuniary penalty, the Court must have regard to all relevant matters, including:
(a) the nature and extent of the contravention; and
(b) the nature and extent of any loss or damage suffered as a result of the contravention; and
(c) the circumstances in which the contravention took place; and
(d) whether the person has previously been found by the Court in proceedings under this Act to have engaged in any similar conduct.
Conduct contravening more than one civil penalty provision
(4) If conduct constitutes a contravention of 2 or more civil penalty provisions, proceedings may be instituted under this Act against a person in relation to the contravention of any one or more of those provisions. However, the person is not liable to more than one pecuniary penalty under this section in respect of the same conduct.
482 What is a civil penalty provision?
A subsection of this Act (or a section of this Act that is not divided into subsections) is a civil penalty provision if:
(a) the words “civil penalty” and one or more amounts in penalty units are set out at the foot of the subsection (or section); or
(b) another provision of this Act specifies that the subsection (or section) is a civil penalty provision.
483 Contravening a civil penalty provision is not an offence
A contravention of a civil penalty provision is not an offence.
484 Persons involved in contravening civil penalty provision
(1) A person must not:
(a) aid, abet, counsel or procure a contravention of a civil penalty provision; or
(b) induce (by threats, promises or otherwise) a contravention of a civil penalty provision; or
(c) be in any way directly or indirectly knowingly concerned in, or party to, a contravention of a civil penalty provision; or
(d) conspire to contravene a civil penalty provision.
(2) This Division applies to a person who contravenes subsection (1) in relation to a civil penalty provision as if the person had contravened the provision.
485 Recovery of a pecuniary penalty
If the Federal Court orders a person to pay a pecuniary penalty:
(a) the penalty is payable to the Commonwealth; and
(b) the Commonwealth may enforce the order as if it were a judgment of the Court.
Subdivision B—Civil penalty proceedings and criminal proceedings
486A Civil proceedings after criminal proceedings
The Federal Court must not make a pecuniary penalty order against a person for a contravention of a civil penalty provision if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention.
486B Criminal proceedings during civil proceedings
(1) Proceedings for a pecuniary penalty order against a person for a contravention of a civil penalty provision are stayed if:
(a) criminal proceedings are started or have already been started against the person for an offence; and
(b) the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention.
(2) The proceedings for the order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings for the order are dismissed.
486C Criminal proceedings after civil proceedings
Criminal proceedings may be started against a person for conduct that is substantially the same as conduct constituting a contravention of a civil penalty provision regardless of whether a pecuniary penalty order has been made against the person.
486D Evidence given in proceedings for penalty not admissible in criminal proceedings
Evidence of information given or evidence of production of documents by an individual is not admissible in criminal proceedings against the individual if:
(a) the individual previously gave the evidence or produced the documents in proceedings for a pecuniary penalty order against the individual for a contravention of a civil penalty provision (whether or not the order was made); and
(b) the conduct alleged to constitute the offence is substantially the same as the conduct that was claimed to constitute the contravention.
However, this does not apply to a criminal proceeding in respect of the falsity of the evidence given by the individual in the proceedings for the pecuniary penalty order.
Subdivision C—Enforceable undertakings relating to contraventions of Part 3 civil penalty provisions
486DA Acceptance of undertakings relating to contraventions of Part 3 civil penalty provisions
(1) This section applies if the Minister considers that an action taken by a person after the commencement of this section contravened a civil penalty provision of Part 3.
(2) The Minister may accept a written undertaking given by the person in relation to the action, in which the person undertakes to pay a specified amount, within a specified period:
(a) to the Commonwealth; or
(b) to some other specified person, for the purpose of activities directed towards the protection and conservation of the matter protected by the civil penalty provision referred to in subsection (1).
(3) The person may withdraw or vary the undertaking at any time, but only with the consent of the Minister.
486DB Enforcement of undertakings
(1) If the Minister considers that a person who gave an undertaking under section 486DA has breached any of its terms, the Minister may apply to the Federal Court for an order under subsection (2).
(2) If the Federal Court is satisfied that the person has breached a term of the undertaking, the Court may make one or more of the following orders:
(a) an order directing the person to comply with that term of the undertaking;
(b) any other order that the Court considers appropriate.
Division 15A—Notices to produce or attend
486E Application of Division
(1) This Division applies if the Minister believes, on reasonable grounds, that a person is capable of giving information, or producing books, records or documents, that are relevant for the purposes of investigating or preventing:
(a) an offence against an environmental law; or
(b) a contravention of an environmental penalty provision.
(2) In this Division:
official means any of the following:
(a) the Minister;
(b) an officer or employee in the Department;
(c) the Director;
(d) the Chairperson of the Great Barrier Reef Marine Park Authority;
(e) a member of the staff of the Great Barrier Reef Marine Park Authority.
486F Minister may require person to provide information etc.
(1) The Minister may, by written notice, require the person to give to an official specified in the notice, in the manner and within the period specified in the notice:
(a) such information as is specified in the notice; or
(b) any book, record or document that is specified in the notice.
The period must end not less than 14 days after the notice is given.
(2) A notice under subsection (1) must set out the effect of section 491 of this Act and of sections 137.1 and 137.2 of the Criminal Code.
(3) A person commits an offence if:
(a) the person is required to give information or a book, record or document to an official under subsection (1); and
(b) the person does not give the information, book, record or document to the official.
Penalty: Imprisonment for 6 months.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
486G Minister may require person to appear before Minister
(1) The Minister may, by written notice, require the person to appear before an official specified in the notice, at a time and place specified in the notice:
(a) to answer any questions put by the official; and
(b) to produce to the official such books, records or documents as are specified in the notice.
The time must not be earlier than 14 days after the notice is given.
(2) A notice under subsection (1) must set out the effect of section 491 of this Act and of sections 137.1 and 137.2 of the Criminal Code.
(3) A person commits an offence if:
(a) the person is required to appear before an official under subsection (1); and
(b) the person does not appear before the official.
Penalty: Imprisonment for 6 months.
(4) A person commits an offence if:
(a) the person is required to appear before an official under subsection (1); and
(b) when appearing before the official, the person does not:
(i) answer a question put by the official; or
(ii) produce a book, record or document to the official as required by the notice given under that subsection.
Penalty: Imprisonment for 6 months.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
486H Persons to whom notices may not be given
A notice under subsection 486F(1) or 486G(1) must not be given to a person if the person is, or has been, a lawyer for:
(a) if the notice relates to the investigation or prevention of an offence against an environmental law—the person suspected of having committed the offence; or
(b) if the notice relates to the investigation or prevention of a contravention of an environmental penalty provision—the person suspected of having contravened the provision.
486J Self‑incrimination
(1) An individual is not excused from giving information (including by answering a question), or from giving or producing a book, record or document, under this Division on the ground that the information, or the giving or production of the book, record or document, might tend to incriminate the individual or expose the individual to a penalty.
(2) However:
(a) the information given, or the book, record or document given or produced; or
(b) giving the information, or giving or producing the book record or document; or
(c) any information, document or thing obtained as a direct or indirect consequence of giving the information, or giving or producing the book, record or document;
is not admissible in evidence against the person:
(d) in any civil proceedings; or
(e) in any criminal proceedings other than:
(i) proceedings for an offence against subsection 486F(3) or 486G(3) or (4); or
(ii) proceedings for an offence against section 491 that relates to a requirement under this Division; or
(iii) proceedings for an offence against section 137.1 or 137.2 (false or misleading information or documents) of the Criminal Code that relates to a requirement under this Division.
Division 16—Review of administrative decisions
487 Extended standing for judicial review
(1) This section extends (and does not limit) the meaning of the term person aggrieved in the Administrative Decisions (Judicial Review) Act 1977 for the purposes of the application of that Act in relation to:
(a) a decision made under this Act or the regulations; or
(b) a failure to make a decision under this Act or the regulations; or
(c) conduct engaged in for the purpose of making a decision under this Act or the regulations.
(2) An individual is taken to be a person aggrieved by the decision, failure or conduct if:
(a) the individual is an Australian citizen or ordinarily resident in Australia or an external Territory; and
(b) at any time in the 2 years immediately before the decision, failure or conduct, the individual has engaged in a series of activities in Australia or an external Territory for protection or conservation of, or research into, the environment.
(3) An organisation or association (whether incorporated or not) is taken to be a person aggrieved by the decision, failure or conduct if:
(a) the organisation or association is incorporated, or was otherwise established, in Australia or an external Territory; and
(b) at any time in the 2 years immediately before the decision, failure or conduct, the organisation or association has engaged in a series of activities in Australia or an external Territory for protection or conservation of, or research into, the environment; and
(c) at the time of the decision, failure or conduct, the objects or purposes of the organisation or association included protection or conservation of, or research into, the environment.
(4) A term (except person aggrieved) used in this section and in the Administrative Decisions (Judicial Review) Act 1977 has the same meaning in this section as it has in that Act.
488 Applications on behalf of unincorporated organisations
(1) A person acting on behalf of an unincorporated organisation that is a person aggrieved (for the purposes of the Administrative Decisions (Judicial Review) Act 1977) by:
(a) a decision made under this Act or the regulations; or
(b) a failure to make a decision under this Act or the regulations; or
(c) conduct engaged in for the purpose of making a decision under this Act or the regulations;
may apply under that Act for a review of the decision, failure or conduct.
(2) The Administrative Decisions (Judicial Review) Act 1977 applies in relation to the person as if he or she were a person aggrieved.
Division 17—Duty to provide accurate information
489 Providing false or misleading information to obtain approval or permit
(1) A person commits an offence if:
(a) the person provides information in response to a requirement or request under Part 7, 8, 9, 13 or 13A; and
(b) the person is reckless as to whether the information is false or misleading in a material particular.
Note: The fault element in paragraph (1)(b) can be demonstrated by proof of knowledge. See subsection 5.4(4) of the Criminal Code.
(2) An offence against subsection (1) is punishable on conviction by:
(a) imprisonment for a term not more than 2 years, a fine not more than 120 penalty units, or both, if it is proved the person knew the information was false or misleading; or
(b) imprisonment for a term not more than 1 year, a fine not more than 60 penalty units, or both, if it is proved the person was reckless as to whether the information was false or misleading.
Note: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.
(2A) A person commits an offence if:
(a) the person provides information in response to a requirement or request under Part 7, 8, 9, 13 or 13A; and
(b) the person is negligent as to whether the information is false or misleading in a material particular.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2B) An offence against subsection (2A) is punishable on conviction by a fine not more than 30 penalty units.
Note: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.
(3) Subsections (1) and (2A) do not apply to a requirement to provide information that is imposed by a condition attached to an environmental authority.
Note: The defendant bears an evidential burden in relation to the matter in subsection (3). See subsection 13.3(3) of the Criminal Code.
490 Providing false or misleading information in response to a condition on an approval or permit
(1) A person commits an offence if:
(a) the person is the holder of an environmental authority; and
(b) a condition attached to the environmental authority requires the person to provide information; and
(c) the person provides information in response (or purportedly in response) to the requirement; and
(d) the person is reckless as to whether the information is false or misleading in a material particular.
Note: The fault element in paragraph (1)(d) can be demonstrated by proof of knowledge. See subsection 5.4(4) of the Criminal Code.
(2) The offence is punishable on conviction by:
(a) imprisonment for a term not more than 2 years, a fine not more than 120 penalty units, or both, if it is proved the person knew the information was false or misleading; or
(b) imprisonment for a term not more than 1 year, a fine not more than 60 penalty units, or both, if it is proved the person was reckless as to whether the information was false or misleading.
Note: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.
491 Providing false or misleading information to authorised officer etc.
(1) A person commits an offence if the person:
(a) provides information or a document to another person (the recipient); and
(b) knows the recipient is:
(i) an authorised officer; or
(ii) the Minister; or
(iii) an employee or officer in the Department; or
(iv) a commissioner;
performing a duty or carrying out a function under this Act or the regulations; and
(c) knows the information or document is false or misleading in a material particular.
(2) The offence is punishable on conviction by imprisonment for a term not more than 1 year, a fine not more than 60 penalty units, or both.
Note: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.
Division 18—Liability of executive officers for corporations
493 Who is an executive officer of a body corporate?
In this Act:
executive officer of a body corporate means a person, by whatever name called and whether or not a director of the body, who is concerned in, or takes part in, the management of the body.
494 Civil penalties for executive officers of bodies corporate
(1) If:
(a) a body corporate contravenes:
(i) a civil penalty provision of Part 3 (requirements for approval); or
(ii) section 142 (condition of approval); or
(iii) section 390SA (declared commercial fishing activity); and
(b) an executive officer of the body knew that, or was reckless or negligent as to whether, the contravention would occur; and
(c) the officer was in a position to influence the conduct of the body in relation to the contravention; and
(d) the officer failed to take all reasonable steps to prevent the contravention;
the officer contravenes this subsection.
(2) Subsection (1) is a civil penalty provision. Under section 481, the Federal Court may order a person contravening subsection (1) to pay a pecuniary penalty not more than the pecuniary penalty the Court could order an individual to pay for contravening the civil penalty provision contravened by the body corporate.
495 Criminal liability of executive officers of bodies corporate
(1) If:
(a) a body corporate contravenes:
(i) section 489 (Providing false or misleading information to obtain approval or permit); or
(ii) section 490 (Providing false or misleading information in response to a condition on an approval or permit); or
(iii) section 491 (Providing false or misleading information to authorised officer etc.); and
(b) an executive officer of the body knew that, or was reckless or negligent as to whether, the contravention would occur; and
(c) the officer was in a position to influence the conduct of the body in relation to the contravention; and
(d) the officer failed to take all reasonable steps to prevent the contravention;
the officer commits an offence punishable on conviction by imprisonment for a term not exceeding 2 years.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: Subsection 4B(2) of the Crimes Act 1914 lets a court that convicts an individual of an offence impose a fine instead of, or as well as, imprisonment. The maximum fine (in penalty units) the court can impose is 5 times the maximum term of imprisonment (in months).
(2) If:
(a) a body corporate contravenes:
(i) section 15A (Offences relating to declared World Heritage properties); or
(ia) section 15C (Offences relating to National Heritage places); or
(ii) section 17B (Offences relating to declared Ramsar wetlands); or
(iii) section 18A (Offences relating to threatened species etc.); or
(iv) section 20A (Offences relating to listed migratory species); or
(v) section 22A (Offences relating to nuclear actions); or
(vi) section 24A (Offences relating to marine areas); or
(via) section 24E (Offences relating to water resources); or
(vii) section 27A (Offences relating to Commonwealth land); or
(viia) section 27C (Offences relating to Commonwealth heritage places overseas); or
(viii) section 142A (Offence of breaching conditions on approval); or
(ix) section 390SB (Offence relating to declared commercial fishing activity); and
(b) an executive officer of the body was reckless as to whether the contravention would occur; and
(c) the officer was in a position to influence the conduct of the body in relation to the contravention; and
(d) the officer failed to take all reasonable steps to prevent the contravention;
the officer commits an offence.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(3) An offence against subsection (2) is punishable on conviction by imprisonment for a term not exceeding the term specified in the provision contravened by the body corporate.
Note: Subsection 4B(2) of the Crimes Act 1914 lets a court that convicts an individual of an offence impose a fine instead of, or as well as, imprisonment. The maximum fine (in penalty units) the court can impose is 5 times the maximum term of imprisonment (in months).
496 Did an executive officer take reasonable steps to prevent contravention?
(1) For the purposes of sections 494 and 495, in determining whether an executive officer of a body corporate failed to take all reasonable steps to prevent the contravention, a court is to have regard to:
(a) what action (if any) the officer took directed towards ensuring the following (to the extent that the action is relevant to the contravention):
(i) that the body arranges regular professional assessments of the body’s compliance with this Act and the regulations;
(ii) that the body implements any appropriate recommendations arising from such an assessment;
(iii) that the body has an appropriate system established for managing the effects of the body’s activities on the environment;
(iv) that the body’s employees, agents and contractors have a reasonable knowledge and understanding of the requirements to comply with this Act and the regulations, in so far as those requirements affect the employees, agents or contractors concerned; and
(b) what action (if any) the officer took when he or she became aware that the body was contravening:
(i) this Act; or
(ii) the regulations; or
(iii) if the body contravened Part 3 or section 142 or 142A—any action management plan that was prepared by the body, and approved by the Minister, as required by a condition attached to an approval under Part 9 for the purposes of a provision of Part 3 of the body’s taking of an action.
(2) This section does not, by implication, limit the generality of sections 494 and 495.
Division 18A—Liability of landholders for other people’s actions
496A Who is a landholder?
For the purposes of this Division, a landholder, in relation to an area of land, is a person who is an owner, lessee or occupier of the area of land.
496B Civil penalties for landholders
(1) If:
(a) a person (the actor) takes an action on an area of land that is a contravention of:
(i) a provision of Part 3 that is a civil penalty provision; or
(ii) section 142; and
(b) a landholder in relation to the area of land knew that, or was reckless or negligent as to whether, the contravention would occur; and
(c) the landholder was in a position to influence the conduct of the actor in relation to the contravention; and
(d) the landholder failed to take all reasonable steps to prevent the contravention;
the landholder contravenes this subsection.
(2) Subsection (1) is a civil penalty provision. Under section 481, the Federal Court may order a landholder contravening subsection (1) to pay a pecuniary penalty not more than the pecuniary penalty the Court could order the landholder to pay, if the landholder had contravened the civil penalty provision contravened by the actor.
496C Criminal liability of landholders
(1) If:
(a) a person (the actor) takes an action on an area of land that contravenes:
(i) section 15A (Offences relating to declared World Heritage properties); or
(ii) section 15C (Offences relating to National Heritage places); or
(iii) section 17B (Offences relating to declared Ramsar wetlands); or
(iv) section 18A (Offences relating to threatened species etc.); or
(v) section 20A (Offences relating to listed migratory species); or
(vi) section 22A (Offences relating to nuclear actions); or
(vii) section 24A (Offences relating to marine areas); or
(viia) section 24E (Offences relating to water resources); or
(viii) section 27A (Offences relating to Commonwealth land); or
(ix) section 142A (Offence of breaching conditions on approval); and
(b) a landholder in relation to the area of land was reckless as to whether the contravention would occur; and
(c) the landholder was in a position to influence the conduct of the actor in relation to the contravention at the time when the contravention occurred; and
(d) the landholder failed to take all reasonable steps to prevent the contravention;
the landholder commits an offence.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2) An offence against subsection (1) is punishable on conviction by imprisonment for the term specified in the provision contravened by the actor, a fine of the amount specified in that provision, or both.
Note: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under the provision.
496D Did a landholder take reasonable steps to prevent a contravention?
(1) For the purposes of sections 496B and 496C, in determining whether a landholder failed to take all reasonable steps to prevent the contravention, a court is to have regard to:
(a) what action (if any) the landholder took directed towards ensuring that the actor had an appropriate system established for managing the effects of the actor’s activities on the environment; and
(b) what action (if any) the landholder took upon becoming aware that there was a substantial risk that the actor was contravening provisions of this Act referred to in subsection 496B(1) or 496C(1), as the case requires.
(2) This section does not, by implication, limit the generality of sections 496B and 496C.
Division 19—Infringement notices
497 Infringement notices
(1) The regulations may make provision enabling a person who is alleged to have committed an offence against section 142B or the regulations to pay a penalty to the Commonwealth as an alternative to prosecution.
(2) The penalty must not exceed one‑fifth of the maximum fine that a court could impose on the person as a penalty for that offence.
Division 20—Publicising contraventions
498 Minister may publicise contraventions of this Act or the regulations
(1) The Minister may publicise, in any way he or she thinks appropriate, a contravention of this Act or the regulations for which a person has been convicted or ordered to pay a pecuniary penalty.
(2) This Division does not:
(a) limit the Minister’s powers to publicise a contravention of this Act or the regulations; or
(b) prevent anyone else from publicising a contravention of this Act or the regulations; or
(c) affect any obligation (however imposed) on anyone to publicise a contravention of this Act or the regulations.
Division 21—Immunity of officers
498A Immunity of officers and assistants
(1) An authorised officer or ranger is not liable to any proceedings relating to an act done, or omitted to be done, in good faith in the exercise or purported exercise of any power conferred on the officer or ranger by this Part, Schedule 1 (in the case of an authorised officer) or regulations made for the purposes of this Part or Division 5 of Part 15.
(2) A person requested by an authorised officer or ranger to assist the officer or ranger in the exercise or purported exercise of any power conferred on the officer or ranger by this Part, by Schedule 1 (in the case of an authorised officer), or by regulations made for the purposes of this Part or Division 5 of Part 15, is not liable to any proceedings relating to an act done, or omitted to be done, in good faith for the purpose of assisting the officer or ranger.
Division 22—Conduct of directors, employees and agents
498B Conduct of directors, employees and agents
Bodies corporate—conduct
(1) Any conduct engaged in on behalf of a body corporate:
(a) by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of a director, employee or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, employee or agent;
is to be taken, for the purposes of this Act, to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct.
Bodies corporate—state of mind
(2) If, for the purposes of this Act, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by a person as mentioned in paragraph (1)(a) or (b); and
(b) that the person had that state of mind.
Persons other than bodies corporate—conduct
(3) Any conduct engaged in on behalf of a person other than a body corporate:
(a) by an employee or agent of the person within the scope of his or her actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of an employee or agent of the first‑mentioned person, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the employee or agent;
is to be taken, for the purposes of this Act, to have been engaged in also by the first‑mentioned person unless the first‑mentioned person establishes that the first‑mentioned person took reasonable precautions and exercised due diligence to avoid the conduct.
Persons other than bodies corporate—state of mind
(4) If, for the purposes of this Act, it is necessary to establish the state of mind of a person other than a body corporate in relation to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by a person as mentioned in paragraph (3)(a) or (b); and
(b) that the person had that state of mind.
Reasonable precautions
(5) For the purposes of subsection (1) or (3), in determining whether a body corporate or other person took reasonable precautions and exercised due diligence to avoid particular conduct, a court must have regard to what steps (if any) the body or person took directed towards ensuring the following (to the extent that the steps are relevant to the conduct):
(a) that the body or person arranges regular professional assessments of the body’s or person’s compliance with this Act and the regulations;
(b) that the body or person implements any appropriate recommendations arising from such an assessment;
(c) that the body or person has an appropriate system established for managing the effects of the body’s or person’s activities on the environment;
(d) that the directors of the body, or the employees or agents of the body or person, have a reasonable knowledge and understanding of the requirements to comply with this Act and the regulations, in so far as those requirements affect the directors, employees or agents concerned.
Meaning of state of mind
(6) A reference in subsection (2) or (4) to the state of mind of a person includes a reference to:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person’s reasons for the intention, opinion, belief or purpose.
Meaning of director
(7) A reference in this section to a director of a body corporate includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, of a State or of a Territory.
Meaning of engage in conduct
(8) A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct.
Disapplying Part 2.5 of Criminal Code
(9) Part 2.5 of the Criminal Code does not apply to an offence against this Act.
Note: Part 2.5 of the Criminal Code deals with corporate criminal responsibility.
Part 18—Remedying environmental damage
499 Commonwealth powers to remedy environmental damage
(1) This section applies if the Minister suspects that an act or omission constitutes a contravention of this Act or the regulations (whether or not the act or omission is an offence against this Act or the regulations).
(2) On behalf of the Commonwealth, the Minister may cause to be taken such steps as he or she thinks proper:
(a) to repair or remove any condition that arises from the act or omission and relates to:
(i) the environment; or
(ii) if the contravention was of a provision of Part 3—the matter protected by the provision; or
(b) to mitigate any damage that arises from the act or omission and relates to:
(i) the environment; or
(ii) if the contravention was of a provision of Part 3—the matter protected by the provision; or
(c) to prevent any damage that is likely to arise from the act or omission and relates to:
(i) the environment; or
(ii) if the contravention was of a provision of Part 3—the matter protected by the provision.
(3) If:
(a) a person provided false or misleading information in contravention of section 489; and
(b) as a result of the contravention the Minister granted an environmental authority to a person, or set conditions relating to the environmental authority, unaware of the certainty or likelihood of the action covered by the authority:
(i) resulting in damage to the environment or to a matter protected by a provision of Part 3; or
(ii) giving rise to a condition relating to the environment or to a matter protected by a provision of Part 3; and
(c) the action results in damage to the environment or gives rise to a condition relating to the environment;
then, for the purposes of this section and section 500, the damage or condition is taken to arise from the provision of false or misleading information in contravention of section 489.
(4) This section does not affect the exercise by the Commonwealth or the Minister of powers under another provision of this Act or under any other law.
500 Liability for loss or damage caused by contravention
(1) A person (the wrongdoer) who contravenes this Act or the regulations is liable to pay to another person (the affected party) who suffers loss or damage arising from the contravention an amount equal to the other person’s loss or damage.
(2) Without limiting the amount payable under subsection (1), the loss or damage a person suffers from a contravention of this Act or the regulations includes the expenses and liabilities (if any) reasonably incurred by the affected party to:
(a) repair or remove any condition that arises from the act or omission constituting the contravention and relates to:
(i) the environment; or
(ii) if the contravention was of a provision of Part 3—the matter protected by the provision; or
(b) mitigate any damage that arises from the act or omission constituting the contravention and relates to:
(i) the environment; or
(ii) if the contravention was of a provision of Part 3—the matter protected by the provision; or
(c) prevent any damage likely to arise from the act or omission constituting the contravention and relates to:
(i) the environment; or
(ii) if the contravention was of a provision of Part 3—the matter protected by the provision.
Note: This makes the person who contravenes the Act liable to pay the Commonwealth the expenses reasonably incurred in taking steps under section 499 in relation to the contravention.
(3) An amount payable under subsection (1) is a debt due to the affected party, recoverable in a court of competent jurisdiction.
(4) If 2 or more persons are liable under subsection (1) to pay an amount in respect of the same loss or damage, those persons are jointly and severally liable to pay the sum.
(5) A finding by a court in criminal proceedings or civil proceedings that the wrongdoer contravened this Act or the regulations is admissible as evidence of that fact in proceedings to recover an amount payable under subsection (1).
(6) This section applies:
(a) whether or not the contravention was an offence; and
(b) whether or not the provision contravened is a civil penalty provision.
(7) This section does not apply to a decision (or a failure to make a decision or conduct for the purposes of making a decision) purportedly under this Act or the regulations that contravenes this Act or the regulations.
501 Other powers not affected
This Division does not affect any other powers or rights under this Act, the regulations or any other law.
Part 19—Organisations
Division 1—Establishment and functions of the Threatened Species Scientific Committee
502 Establishment
(1) The Threatened Species Scientific Committee is established.
(2) The Minister is to determine in writing the composition of the Committee, including the qualifications of its members.
(3) The Minister is to appoint the members of the Committee on a part‑time basis, and must appoint one of the members to chair the Committee.
503 Functions of the Committee
The functions of the Committee are:
(a) to advise the Minister in accordance with Division 5 of Part 13 in relation to recovery plans, threat abatement plans and approved conservation advice; and
(b) to advise the Minister (on the Minister’s request or on the Committee’s initiative) on the amendment and updating of the lists established under Part 13; and
(c) to advise the Minister, at his or her request, on matters relating to the administration of this Act; and
(d) to give the Minister such other advice as is provided for in this Act; and
(e) to perform such other functions as are conferred on the Committee by this Act.
Division 2—Establishment and functions of the Biological Diversity Advisory Committee
504 Establishment
(1) The Biological Diversity Advisory Committee is established.
(2) The Minister is to determine in writing the composition of the Committee, including the qualifications of its members.
(3) The Minister is to appoint the members of the Committee on a part‑time basis, and must appoint one of the members to chair the Committee.
(4) The Minister must ensure that the membership includes members who are appointed to represent the following:
(a) the body known as the Australian and New Zealand Environment and Conservation Council;
(b) conservation organisations that are not authorities of the Commonwealth or of any State or Territory;
(c) the scientific community (including both that part of the scientific community concerned with marine species and that part of the scientific community concerned with terrestrial species);
(d) the rural community;
(e) the business community;
(ea) indigenous peoples;
(f) the Commonwealth.
(5) The Minister must ensure that, as far as practicable, each one of at least 5 members:
(a) possess scientific qualifications that the Minister thinks relevant to the performance of the Committee’s functions; and
(b) is appointed to represent the scientific community and is not appointed to represent any of the other bodies, groups of bodies or communities referred to in subsection (4).
(6) The Minister must ensure that a majority of the members are not persons employed by the Commonwealth or Commonwealth agencies.
505 Functions of the Committee
The functions of the Committee are:
(a) to advise the Minister, at his or her request, on matters relating to the conservation and ecologically sustainable use of biological diversity; and
(b) to perform such other functions as are conferred on the Committee by this Act or the regulations.
Division 2A—Indigenous Advisory Committee
505A Establishment
(1) The Indigenous Advisory Committee is established.
(2) The Minister is to determine in writing the composition of the Committee, including the qualifications of its members.
(3) The Minister is to appoint the members of the Committee on a part‑time basis, and must appoint one of the members to chair the Committee.
505B Functions of the Committee
(1) The function of the Committee is to advise the Minister on the operation of the Act, taking into account the significance of indigenous peoples’ knowledge of the management of land and the conservation and sustainable use of biodiversity.
(2) The Minister may give the Committee written guidelines about its function.
Division 2B—Establishment and functions of the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development
505C Establishment
(1) The Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development is established.
(2) The Committee is to consist of at least 5, but not more than 8, members.
(3) A member of the Committee is to be appointed by the Minister by written instrument, on a part‑time basis.
(4) The Minister must appoint one member of the Committee to be the Chair.
(5) When appointing members of the Committee, the Minister must ensure that:
(a) each member (other than the Chair) possesses appropriate scientific qualifications or expertise that the Minister considers relevant to the performance of the Committee’s functions; and
(b) each member’s appointment is not being made to represent any particular body, group or community.
(6) The Minister must also ensure that a majority of the members possess scientific qualifications and expertise in one or more of the following areas:
(a) geology;
(b) hydrology;
(c) hydrogeology;
(d) ecology.
Note: Other provisions relating to members are set out in Division 3.
505D Functions of the Committee
(1) The Committee has the following functions:
(a) within 2 months of a request by the Minister (the Environment Minister)—to provide scientific advice to the Environment Minister in relation to proposed coal seam gas developments or large coal mining developments that are likely to have a significant impact on water resources, including any impacts of associated salt production and/or salinity;
(b) within 2 months of a request by an appropriate Minister of a declared State or Territory—to provide scientific advice to the Minister in relation to proposed coal seam gas developments or large coal mining developments in the relevant State or Territory that are likely to have a significant impact on water resources, including any impacts of associated salt production and/or salinity;
(c) at the request of the Environment Minister—to provide advice to the Environment Minister about:
(i) how bioregional assessments should be conducted in areas where coal seam gas development or large coal mining development is being carried out or is proposed; and
(ii) priority areas in which bioregional assessments should be undertaken; and
(iii) bioregional assessments commissioned by the Minister;
(d) at the request of the Environment Minister—to provide advice to the Environment Minister about:
(i) priorities for research projects to improve scientific understanding of the impacts of coal seam gas developments and large coal mining developments on water resources, including any impacts of associated salt production and/or salinity; and
(ii) research projects commissioned by the Minister in relation to the impacts of coal seam gas developments and large coal mining developments on water resources, including any impacts of associated salt production and/or salinity;
(e) to publish information about improving the consistency and comparability of research in relation to the impacts of coal seam gas developments and large coal mining developments on water resources, including any impacts of associated salt production and/or salinity;
(f) to publish information relating to the development of standards for protecting water resources from the impacts of coal seam gas development and large coal mining development, including from any impacts of associated salt production and/or salinity;
(g) to collect, analyse, interpret and disseminate scientific information in relation to the impacts of coal seam gas development and large coal mining development on water resources, including any impacts of associated salt production and/or salinity;
(h) any other functions prescribed by the regulations;
(i) to do anything incidental to, or conducive to, the performance of the above functions.
(2) The Committee also has the following functions:
(a) at the request of the Environment Minister—to provide scientific advice to the Environment Minister in relation to a matter that is protected by a provision of Part 3;
(b) at the request of the appropriate Minister of a declared State or Territory and with the written agreement of the Environment Minister—to provide scientific advice to the Minister of the State or Territory in relation to the matters specified in the request, if the Committee has sufficient scientific expertise.
505E Declared States and Territories
(1) The Minister may, by legislative instrument, declare a specified State or self‑governing Territory to be a declared State or Territory.
(2) The Minister must not declare a State or a self‑governing Territory unless, at the time of the declaration, the State or Territory is a party to the National Partnership Agreement on Coal Seam Gas and Large Scale Coal Mining Development between the Commonwealth and one or more States or self‑governing Territories that commenced on 14 February 2012.
Division 3—Members and procedures of Committees
506 Application
This Division applies to the following Committees:
(a) the Threatened Species Scientific Committee;
(b) the Biological Diversity Advisory Committee;
(c) the Indigenous Advisory Committee;
(d) the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development.
507 Terms and conditions
Term of office
(1) A member of a Committee holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.
Note: Section 509 sets out the circumstances in which a member’s appointment may be (or must be) terminated.
Resignation
(2) A member of a Committee may resign his or her appointment by giving the Minister a written resignation.
Other terms and conditions
(3) A member of a Committee holds office on the terms and conditions (if any) that are determined by the Minister in relation to matters not covered by this Act or the regulations.
508 Remuneration
(1) A member of a Committee is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the member is to be paid the remuneration that is prescribed.
(2) A member of a Committee is to be paid the allowances that are prescribed.
(3) This section has effect subject to the Remuneration Tribunal Act 1973.
509 Termination of appointments of Committee members
Termination when person stops being qualified for appointment
(1) The appointment of a person to a position of member of a Committee is terminated when the person ceases to be qualified for appointment to the position.
Termination for misbehaviour or incapacity
(2) The Minister may terminate the appointment of a member of a Committee for misbehaviour or physical or mental incapacity.
Termination for failure to attend Committee meetings
(3) The Minister may terminate the appointment of a member of a Committee if the member is absent, except on leave of absence, from 3 consecutive meetings of the Committee of which the member has had notice.
Termination for engaging in conflicting work
(4) The Minister may terminate the appointment of a member of a Committee if the member engages in paid employment that, in the Minister’s opinion, conflicts or could conflict with the proper performance of the duties of the member.
Termination for failure to disclose interests
(5) The Minister must terminate the appointment of a member of a Committee if:
(a) the member does not comply with any requirements prescribed by the regulations to disclose an interest the member has in a matter being considered or about to be considered by the Committee; and
(b) the member does not have a reasonable excuse for not complying.
Termination for bankruptcy or insolvency
(6) The Minister may terminate the appointment of a member of a Committee if the member:
(a) becomes bankrupt; or
(b) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(c) compounds with his or her creditors; or
(d) makes an assignment of his or her remuneration for the benefit of his or her creditors.
510 Procedure of a Committee
(1) The regulations may provide for:
(a) matters relating to the operation of a Committee, including:
(i) procedures for convening meetings of the Committee; and
(ii) procedures for determining who is to preside at a meeting of the Committee; and
(iii) determining who may attend a meeting of the Committee; and
(iv) the constitution of a quorum for a meeting of the Committee; and
(v) procedures relating to a member’s interest in matters being dealt with by the Committee; and
(vi) the way in which matters are to be resolved by the Committee; and
(b) the appointment and rights of a deputy of a member of a Committee.
(2) The regulations may allow a Committee to determine a matter relating to the operation of the Committee for which the regulations may provide.
(3) If there are no regulations in force, a Committee may operate in the way it determines.
Division 4—Advisory committees
511 Minister may establish advisory committees
(1) The Minister may by written instrument establish an advisory committee to advise the Minister on specified matters relating to the administration of this Act.
(2) However, the Minister must not specify that an advisory committee is to advise the Minister on the management of a jointly managed reserve.
(3) The Minister is to determine in writing the composition of an advisory committee, including qualifications of its members.
512 Appointments
(1) The Minister may appoint a person on a part‑time basis to be a member of an advisory committee.
(2) The Minister must appoint one of the members to chair the committee.
513 Members of advisory committees
The regulations may provide for the terms and conditions applicable to members of an advisory committee, including terms and conditions relating to:
(a) term of office; and
(b) remuneration; and
(c) allowances; and
(d) leave of absence; and
(e) disclosure of interests; and
(f) termination of membership.
514 Committee procedure
(1) An advisory committee may operate in the way it determines, subject to any regulations.
(2) The regulations may provide for the operation and procedures of an advisory committee. The regulations may allow a committee to determine its own procedure on any matter.
Division 5—Director of National Parks
Subdivision A—Establishment, functions and powers
514A Continuation
The corporation sole that existed under section 15 of the National Parks and Wildlife Conservation Act 1975 immediately before the commencement of this Act continues in existence as the Director of National Parks.
Note: Subject to section 514U, the Public Governance, Performance and Accountability Act 2013 applies to the Director. That Act deals with matters relating to corporate Commonwealth entities, including reporting and the use and management of public resources.
514B Functions
(1) The functions of the Director are:
(a) to administer, manage and control Commonwealth reserves and conservation zones; and
(b) to protect, conserve and manage biodiversity and heritage in Commonwealth reserves and conservation zones; and
(ba) to contribute to the protection, conservation and management of biodiversity and heritage in areas outside Commonwealth reserves and conservation zones; and
(c) to co‑operate with any country in matters relating to the establishment and management of national parks and nature reserves in that country; and
(d) to provide, and assist in the provision of, training in the knowledge and skills relevant to the establishment and management of national parks and nature reserves; and
(e) to carry out alone or in co‑operation with other institutions and persons, and to arrange for any other institution or person to carry out, research and investigations relevant to the establishment and management of Commonwealth reserves; and
(f) to make recommendations to the Minister in relation to the establishment and management of Commonwealth reserves; and
(g) to administer the Australian National Parks Fund; and
(h) any other functions conferred on the Director under this or any other Act; and
(i) to do anything incidental or conducive to the performance of any of the functions mentioned in paragraphs (a) to (h) (inclusive).
Note 1: Section 514D sets out requirements relating to the performance of the Director’s functions.
Note 2: The Minister may delegate additional functions to the Director under subsection 515(1).
(2) The Director may perform any of the Director’s functions in co‑operation with a State, a self‑governing Territory, an agency of a State or self‑governing Territory or a Commonwealth agency.
514C Powers
(1) The Director has power to do all things necessary or convenient to be done for or in connection with the performance of the Director’s functions.
(2) The Director’s powers include, but are not limited to, the following powers:
(a) to enter into contracts; and
(b) to erect buildings and structures and carry on works; and
(c) to occupy, use and control any land or building owned or held under lease by the Commonwealth and made available for the purposes of the Director; and
(d) to acquire, hold and dispose of real or personal property; and
(e) despite section 514D, obtain goods or services on credit from any person by the use of a credit card; and
(f) to accept gifts, devises and bequests made to the Director whether on trust or otherwise, and to act as trustee of moneys or other property vested in the Director upon trust.
Note: Section 514D sets out limits on the Director’s powers.
514D Requirements relating to functions and powers
Ministerial directions
(1) The Director must perform the Director’s functions and exercise the Director’s powers in accordance with any directions given by the Minister, unless this Act provides otherwise.
Consultation
(2) The Director must consult and have regard to the views of the following persons in relation to the performance of the Director’s functions and the exercise of the Director’s powers in relation to a Commonwealth reserve or conservation zone:
(a) if the reserve or zone is wholly or partly in a State or self‑governing Territory—the agency (if any) of the State or Territory responsible for managing national parks established under the law of the State or Territory;
(b) if the reserve or zone is wholly or partly in an area for which an Aboriginal Land Council has been established under the Aboriginal Land Rights (Northern Territory) Act 1976—the Chairperson of the Council;
(c) if the reserve is Booderee National Park—the Chairperson of the Wreck Bay Aboriginal Community Council.
Australian National Botanic Gardens in Jervis Bay Territory
(3) The Director must consult and have regard to the views of the Chairperson of the Wreck Bay Aboriginal Community Council in relation to the performance of the Director’s functions and the exercise of the Director’s powers in relation to the part of the Commonwealth reserve known as the Australian National Botanic Gardens that is in the Jervis Bay Territory.
Trust property
(4) The Director must deal with any money or property vested in the Director on trust in accordance with the powers and duties of the Director as trustee, despite the other provisions of this Act.
Limits on contracts and leases
(5) The Director must not:
(a) enter into a contract involving the payment or receipt of an amount more than:
(i) $1,000,000; or
(ii) if the regulations prescribe a greater amount—that greater amount; or
(b) take land (except indigenous people’s land) on lease for more than 10 years;
without the Minister’s approval.
No borrowing
(6) The Director must not borrow money in the performance of the Director’s functions.
Subdivision B—Constitution of Director of National Parks
514E Constitution
(1) The Director:
(a) is a body corporate with perpetual succession; and
(b) must have a seal; and
(c) may sue and be sued in its corporate name.
(2) All courts, judges and persons acting judicially must:
(a) take judicial notice of the imprint of the seal of the Director appearing on a document; and
(b) presume that the document was duly sealed.
514F Appointment
(1) A person is to be appointed as the Director by the Governor‑General by written instrument.
(2) Before the Governor‑General appoints a person as the Director, the Minister must be satisfied that the person has qualifications and experience in connection with national parks or the conservation and management of biodiversity that make the person suitable for the appointment.
(3) The appointment is on a full‑time basis. However, a person appointed as the Director may also hold an office or be employed in the Australian Public Service on a part‑time basis, subject to this Division.
514G Acting appointments
(1) The Minister may appoint a person to act as the Director:
(a) during a vacancy in the office of Director; or
(b) during any period, or during all periods, when the person appointed as the Director is absent from duty or from Australia, or is, for any reason, temporarily unable to perform the duties of the office.
Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
(2) A person acting as the Director is taken to constitute the corporation mentioned in section 514A while the person is acting.
Subdivision C—Terms and conditions of appointment
514H Term of office
The person appointed as the Director holds office for the period specified in the instrument of appointment. The period must not exceed 7 years.
514J Remuneration
(1) The person appointed as the Director is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the person is to be paid the remuneration that is prescribed.
(2) The person is to be paid the allowances that are prescribed by the regulations.
(3) This section has effect subject to the Remuneration Tribunal Act 1973.
514K Outside employment
The person appointed as the Director must not engage in paid employment outside the duties of the Director’s office without the Minister’s approval.
514M Leave of absence
(1) The person appointed as the Director has the recreation leave entitlements that are determined by the Remuneration Tribunal.
(2) The Minister may grant the person appointed as the Director leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.
514N Resignation
The person appointed as the Director may resign his or her appointment by giving the Governor‑General a written resignation.
514P Termination
(1) The Governor‑General may terminate the appointment of a person as the Director for misbehaviour or physical or mental incapacity.
(2) The Governor‑General may terminate the appointment of a person as the Director if:
(a) the person:
(i) becomes bankrupt; or
(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with his or her creditors; or
(iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or
(b) the person is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or
(c) the person engages, except with the Minister’s approval, in paid employment outside the duties of the office of Director.
Note: The appointment of a person as the Director may also be terminated under section 30 of the Public Governance, Performance and Accountability Act 2013 (which deals with terminating the appointment of an accountable authority, or a member of an accountable authority, for contravening general duties of officials).
514Q Other terms and conditions
The person appointed as the Director holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Governor‑General.
Subdivision D—Australian National Parks Fund
514R Australian National Parks Fund
The fund established by section 45 of the National Parks and Wildlife Conservation Act 1975 continues in existence as the Australian National Parks Fund, vested in the Director.
514S Payments to Australian National Parks Fund
The following amounts are to be paid into the Australian National Parks Fund:
(a) any money appropriated by the Parliament for the purposes of the Department and allocated by the Secretary for the management of Commonwealth reserves or conservation zones;
(b) the proceeds of the sale of any property acquired out of money standing to the credit of the Fund;
(c) any amounts paid to the Director in respect of leases, licences, permits and other authorities granted by the Director in relation to Commonwealth reserves or conservation zones;
(d) any other amount paid by a person to the Director if:
(i) payment of the amount into the Fund would be consistent with the purposes for which the amount was paid; and
(ii) the Minister administering the Public Governance, Performance and Accountability Act 2013 considers it appropriate that the amount should be paid into the Fund;
(e) any charges paid under section 356A or section 390F;
(f) any other money received by the Director in the performance of his or her functions.
514T Application of money
(1) The money of the Australian National Parks Fund may be applied only:
(a) in payment or discharge of the costs, expenses and other obligations incurred by the Director in the performance of the Director’s functions; and
(b) in payment of any remuneration, allowances and compensation payable under this Division or Division 4 of Part 15.
(2) Subsection (1) does not prevent investment, under section 59 of the Public Governance, Performance and Accountability Act 2013, of money that is not immediately required for the purposes of the Fund.
Subdivision E—Accountability
514U Application of Public Governance, Performance and Accountability Act 2013
(1) Sections 514A and 514E provide that the Director is a corporation. The Public Governance, Performance and Accountability Act 2013 applies (subject to subsection (2) of this section) in relation to the corporation as if the person holding, or performing the duties of, the office of Director were an accountable authority of the corporation for the purposes of that Act.
(2) To avoid doubt, the Public Governance, Performance and Accountability Act 2013 applies to the Australian National Parks Fund as though the Fund were money held by the Director.
514V Extra matters to be included in annual report
The annual report prepared by the Director under and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period must also include particulars of any directions given by the Minister under subsection 514D(1) of this Act during the period.
Subdivision F—Miscellaneous
514W Exemption from taxation
The income of the Australian National Parks Fund and the property and transactions of the Director are not subject to taxation under a law of the Commonwealth or of a State or Territory.
514X Changes in office of Director
An authority given, or a delegation or appointment made, by a person for the time being holding or acting in the office of Director continues in force despite the person ceasing to hold or act in that office, but may be revoked by a person later holding or acting in that office.
Part 19A—Reconsideration of fees
514Y Applications for reconsideration of fee
(1) This section applies if a fee is worked out by a person to whom a function or power is delegated under section 515.
(2) If:
(a) a method prescribed by the regulations under subsection 520(4C) has been used to work out a fee; and
(b) the person required to pay the fee is dissatisfied with the way the method was used to work out the fee;
the person may apply to the Secretary for the Secretary to reconsider the way the method was used to work out the fee.
(3) The application must:
(a) be in a form prescribed by the regulations; and
(b) set out the reasons for the application.
(4) The application must be made within 30 business days after the applicant is informed of the fee.
(5) A person may apply only once in relation to a fee.
514YA Reconsideration of fee
(1) Upon receiving an application for reconsideration of a fee, the Secretary must:
(a) reconsider the way the method was used to work out the fee; and
(b) either:
(i) confirm the fee; or
(ii) work out a new fee by using the method again.
(2) The person who undertakes the reconsideration must be:
(a) the Secretary; or
(b) an employee in the Department who:
(i) was not involved in working out the fee; and
(ii) occupies a position that is senior to that occupied by any person involved in working out the fee.
(3) The Secretary must give to the applicant a written notice that:
(a) states the outcome of the reconsideration; and
(b) gives reasons for that outcome.
514YB Deadline for reconsideration
The Secretary must undertake a reconsideration of a fee within 30 business days after receiving an application for reconsideration.
Part 20—Delegation
515 Delegation
(1) The Minister may, by signed instrument, delegate all or any of his or her powers or functions under this Act to an officer or employee in the Department or to the Director. The delegate is, in the exercise or performance of a delegated power or function, subject to the directions of the Minister.
(2) The Secretary may, by signed instrument, delegate all or any of his or her powers or functions under this Act to an officer or employee in the Department or to the Director. The delegate is, in the exercise or performance of a delegated power or function, subject to the directions of the Secretary.
(3) The Director may, by sealed instrument, delegate all or any of the Director’s powers or functions under this Act to a person. The delegate is, in the exercise of a delegated power or function, subject to the directions of the Director.
515AA Delegation by Minister in relation to Great Barrier Reef Marine Park
(1) The Minister may, by signed instrument, delegate any or all of his or her powers or functions to which subsection (2) applies to:
(a) the Great Barrier Reef Marine Park Authority; or
(b) the Chairperson of the Great Barrier Reef Marine Park Authority; or
(c) a member of the staff of the Great Barrier Reef Marine Park Authority.
(2) For the purposes of subsection (1), this subsection applies to a power or function if:
(a) the exercise of the power or performance of the function relates (including in a way described in subsection 7(1A) of the Great Barrier Reef Marine Park Act 1975) to the Great Barrier Reef Marine Park; or
(b) the exercise of the power or performance of the function is incidental to a matter that relates (including in a way described in subsection 7(1A) of the Great Barrier Reef Marine Park Act 1975) to the Great Barrier Reef Marine Park.
Note: If a power or function is delegated to the Great Barrier Reef Marine Park Authority under this section, the Authority may sub‑delegate the power or function under section 47 of the Great Barrier Reef Marine Park Act 1975.
(3) Despite subsection (1), the Minister must not delegate under that subsection a power or function under Part 17 (Enforcement) to a person mentioned in paragraph (1)(c) unless the person:
(a) is an SES employee or an acting SES employee; or
(b) holds, or is acting in, an Executive Level 1 or 2, or equivalent, position.
(4) In exercising a power or performing a function under a delegation, the delegate must comply with any directions of the Minister.
(5) This section does not limit the Minister’s power of delegation under section 515.
515AB Delegation by Secretary in relation to Great Barrier Reef Marine Park
(1) The Secretary may, by signed instrument, delegate any or all of his or her powers or functions to which subsection (2) applies to:
(a) the Great Barrier Reef Marine Park Authority; or
(b) the Chairperson of the Great Barrier Reef Marine Park Authority; or
(c) a member of the staff of the Great Barrier Reef Marine Park Authority.
(2) For the purposes of subsection (1), this subsection applies to a power or function if:
(a) the exercise of the power or performance of the function relates (including in a way described in subsection 7(1A) of the Great Barrier Reef Marine Park Act 1975) to the Great Barrier Reef Marine Park; or
(b) the exercise of the power or performance of the function is incidental to a matter that relates (including in a way described in subsection 7(1A) of the Great Barrier Reef Marine Park Act 1975) to the Great Barrier Reef Marine Park.
Note: If a power or function is delegated to the Great Barrier Reef Marine Park Authority under this section, the Authority may sub‑delegate the power or function under section 47 of the Great Barrier Reef Marine Park Act 1975.
(3) Despite subsection (1), the Secretary must not delegate under that subsection a power or function under Part 17 (Enforcement) to a person mentioned in paragraph (1)(c) unless the person:
(a) is an SES employee or an acting SES employee; or
(b) holds, or is acting in, an Executive Level 1 or 2, or equivalent, position.
(4) In exercising a power or performing a function under a delegation, the delegate must comply with any directions of the Secretary.
(5) This section does not limit the Secretary’s power of delegation under section 515.
Part 20A—Publication of information on the internet
515A Publication of information on the internet
Without limiting the operation of section 170A, the Secretary must publish on the internet each week a list of:
(a) all permits issued or granted under this Act in the immediately preceding week; and
(b) all matters required by this Act to be made available to the public in the immediately preceding week.
Part 21—Reporting
Division 1—Annual reports
516 Annual report on operation of Act
(1) The Secretary must, as soon as practicable after 30 June in each year, prepare and give to the Minister a report on the operation of this Act (except Divisions 4 and 5 of Part 15 and Division 5 of Part 19) for the 12 months ending on that 30 June.
Note 1: Other provisions of this Act require the report to include certain matters.
Note 2: Section 34C of the Acts Interpretation Act 1901 sets out rules about the time within which annual reports must be given to the Minister.
(2) The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the day on which he or she receives the report.
516A Annual reports to deal with environmental matters
Annual reports for Commonwealth entities
(1) The accountable authority of a Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013) must ensure that an annual report prepared under section 46 of that Act complies with subsection (6) of this section.
Annual reports of Commonwealth companies
(4) The directors of a Commonwealth company (within the meaning of the Public Governance, Performance and Accountability Act 2013) that is a Commonwealth agency must ensure that the documents given to the responsible Minister (within the meaning of that Act) under section 97 of that Act include a report complying with subsection (6) of this section.
Annual reports of other Commonwealth agencies
(5) A Commonwealth agency that is:
(a) established by or under a law of the Commonwealth; and
(b) required by law to give the Minister responsible for it an annual report; and
(c) not described in subsection (1) or (4);
must ensure that the annual report complies with subsection (6).
Content of report
(6) A report described in subsection (1), (4) or (5) relating to a body or person (the reporter) for a period must:
(a) include a report on how the activities of, and the administration (if any) of legislation by, the reporter during the period accorded with the principles of ecologically sustainable development; and
(b) identify how the outcomes (if any) specified for the reporter in an Appropriations Act relating to the period contribute to ecologically sustainable development; and
(c) document the effect of the reporter’s activities on the environment; and
(d) identify any measures the reporter is taking to minimise the impact of activities by the reporter on the environment; and
(e) identify the mechanisms (if any) for reviewing and increasing the effectiveness of those measures.
Note: The Auditor‑General Act 1997 lets the Auditor‑General audit a reporter’s compliance with these requirements.
(7) In subsection (6):
activities includes:
(a) developing and implementing policies, plans, programs and legislation; and
(b) the operations of a department, authority, company or agency referred to in this section.
Division 2—State of the environment reports
516B State of the environment reports
(1) The Minister must cause a report on the environment in the Australian jurisdiction to be prepared in accordance with the regulations (if any) every 5 years. The first report must be prepared by 31 December 2001.
(2) The report must deal with the matters prescribed by the regulations.
(3) The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the day on which he or she receives the report.
Chapter 7—Miscellaneous
Part 22—Miscellaneous
517 Determinations of species
(1) The Minister may, by legislative instrument, determine that a distinct population of biological entities is a species for the purposes of this Act.
(3) A determination does not apply for the purposes of:
(a) Part 13A; or
(b) the definitions of CITES I species, CITES II species and CITES III species in section 528.
(4) Subsection (3) does not affect the meaning of the expression listed threatened species when used in Part 13A.
517A Exemption for activities that might harm particular species introduced into particular areas
Provisions for which this section applies
(1) This section applies for the purposes of the provisions of the following sections:
(a) sections 18 and 18A;
(b) sections 20 and 20A;
(c) sections 196 to 196E;
(d) section 207B;
(e) sections 211 to 211E;
(f) sections 254 to 254E.
Minister may exempt carrying on of activities
(2) The Minister may, in writing, exempt from the provisions mentioned in subsection (1) the carrying on of particular activities by particular persons (or a particular class of persons), in a particular area, that will or may have an impact on a particular species or its habitat. The species must be a listed threatened species, a listed migratory species or a listed marine species.
Matters Minister must be satisfied of
(3) An exemption under subsection (2) may only be given if the Minister is satisfied that:
(a) members of the species have been, or are proposed to be, introduced into the area by or on behalf of a person (whether the person is a Commonwealth agency or otherwise); and
(b) the purpose of the introduction, or proposed introduction, of the members of the species into the area was or is to make a contribution to the conservation of the species; and
(c) carrying on the activities in the area will or may have an impact on members of the species, or their habitat, but any such impact would be incidental to, and not the purpose of, the activities; and
(d) if the person referred to in paragraph (a) is not the person who is or will be primarily responsible for carrying out the activities—the person who is or will be so responsible has agreed to the introduction of the members of the species into the area.
(4) For the purpose of deciding whether to give an exemption under subsection (2), the Minister may (subject to subsection (3)):
(a) have regard to any matters the Minister considers appropriate; and
(b) seek, and have regard to, information or advice from any source.
What must be specified in an exemption
(5) An exemption under subsection (2) must:
(a) specify the species to which it applies; and
(b) specify the area to which it applies; and
(c) specify the activities to which it applies; and
(d) specify the persons (or classes of persons) who, if they engage in actions that are within the activities, are covered by the exemption.
When an exemption comes into force
(6) An exemption under subsection (2) comes into force on the day the Minister gives the exemption, or on a later day specified in the exemption.
Actions covered by exemption do not contravene provisions for which this section applies
(7) While an exemption under subsection (2) is in force, an action of a person does not contravene any of the provisions mentioned in subsection (1), in so far as the provisions apply in relation to a member of the species specified as mentioned in paragraph (5)(a), if:
(a) the action occurs in the area specified as mentioned in paragraph (5)(b); and
(b) the action is within the activities specified as mentioned in paragraph (5)(c); and
(c) the person is a person, or is a member of a class of persons, specified as mentioned in paragraph (5)(d).
Note 1: If the action also has an impact on a member of another species that is not covered by an exemption under subsection (2), subsection (7) does not affect the question whether the action may contravene a provision mentioned in subsection (1), in so far as the provision applies to the other species.
Note 2: In a prosecution for an offence against a provision mentioned in subsection (1), the defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.
Exemption is not a legislative instrument
(8) An exemption under subsection (2) is not a legislative instrument.
518 Non‑compliance with time limits
(1) Anything done by the Commonwealth, the Minister or the Secretary under this Act or the regulations is not invalid merely because it was not done within the period required by this Act or the regulations.
(2) If, during a financial year, one or more things required to be done under this Act or the regulations were not done within the period required by this Act or the regulations, the Minister must:
(a) cause to be prepared a statement setting out the reasons why each of those things was not done within the period required by this Act or the regulations; and
(b) cause a copy of the statement to be laid before each House of the Parliament as soon as practicable after the end of the financial year.
(3) Subsection (1) does not reduce or remove an obligation under this Act or the regulations to do a thing within a particular period.
519 Compensation for acquisition of property
When compensation is necessary
(1) If, apart from this section, the operation of this Act would result in an acquisition of property from a person that would be invalid because of paragraph 51(xxxi) of the Constitution (which deals with acquisition of property on just terms) the Commonwealth must pay the person a reasonable amount of compensation.
Definition
(2) In this Act:
acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.
Court can decide amount of compensation
(3) If the Commonwealth and the person do not agree on the amount of compensation to be paid, the person may apply to the Federal Court for the recovery from the Commonwealth of a reasonable amount of compensation fixed by the Court.
Other compensation to be taken into account
(4) In assessing compensation payable by the Commonwealth, the Court must take into account any other compensation or remedy arising out of the same event or situation.
520 Regulations
(1) The Governor‑General may make regulations prescribing all matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) The regulations may prescribe penalties for offences against the regulations. A penalty must not be more than 50 penalty units.
(3) Regulations may be made for and in relation to giving effect to any of the following agreements:
(a) the Apia Convention;
(b) the Convention for the Protection of the Natural Resources and Environment of the South Pacific (the SPREP Convention) signed at Noumea on 24 November 1986;
(c) the Bonn Convention;
(d) CAMBA;
(e) JAMBA;
(f) an agreement between the Commonwealth and one or more other countries relating to whales;
(g) the World Heritage Convention;
(h) the Ramsar Convention;
(i) the Biodiversity Convention;
(j) CITES;
(k) the Framework Convention on Climate Change done at New York on 9 May 1992.
(4) Regulations made in relation to an agreement that has not entered into force for Australia are not to come into operation on a day earlier than the day on which the agreement enters into force for Australia.
(4A) The regulations may prescribe fees that are payable for services the Minister or Secretary provides in performing functions, or exercising powers, under this Act or the regulations.
(4B) A fee prescribed by the regulations is payable to the Commonwealth.
(4C) Regulations prescribing fees may also:
(a) prescribe fees in respect of:
(i) a particular class of decision; or
(ii) a particular class of action; or
(iii) a particular class of person; and
(b) prescribe 2 or more fees for the same matter; and
(c) prescribe a method for working out a fee; and
(d) prescribe a method for working out the refund of part of a fee; and
(e) deal with other matters, including the following:
(i) specifying the way in which, and times at which, a fee is to be paid;
(ii) specifying the fees that must be paid, and by whom, in the event of a transfer under section 145B or a change of person proposing to take an action under section 156F;
(iii) the consequences of failure to pay a specified fee;
(iv) the circumstances in which the Minister may waive a fee;
(v) the circumstances in which a person is exempt from paying a specified fee;
(vi) the circumstances in which a fee may be refunded, in whole or in part.
(5) Subsections (3), (4A) and (4C) do not limit subsection (1).
(6) The regulations may prohibit or regulate the export from an external Territory to Australia or another external Territory of:
(a) CITES specimens; and
(b) regulated native specimens.
(7) The regulations may prohibit or regulate the import into an external Territory from Australia or another external Territory of:
(a) CITES specimens; and
(b) regulated live specimens.
(8) The regulations may prohibit or regulate the possession in an external Territory of:
(a) specimens that have been imported into that Territory in contravention of regulations made for the purposes of subsection (7); or
(b) the progeny of such specimens.
520A Statements about the application of the Act
(1) The Minister may issue, in writing, statements about the way in which the Minister considers that provisions of the Act or the regulations apply or would apply to:
(a) persons generally or a class of persons; or
(b) persons generally or a class of persons in relation to particular circumstances.
(2) A statement made under subsection (1) is not a legislative instrument.
521 Fees and charges must not be taxes
A fee or charge provided for by or under this Act, and whether prescribed by the regulations or not, must be reasonably related to the expenses incurred or to be incurred by the Commonwealth in relation to the matters to which the fee or charge relates and must not be such as to amount to taxation.
521A Time does not run if all or part of fee remains unpaid
(1) If:
(a) one or more fees are payable in respect of a service the Minister or Secretary provides in performing functions, or exercising powers, under this Act or the regulations; and
(b) a provision of this Act or the regulations:
(i) requires or allows the Minister or Secretary to do a thing relating to the service; or
(ii) requires or allows the Minister or Secretary to do a thing relating to the service within a particular period; and
(c) all of part of a fee relating to the service remains unpaid;
then:
(d) if subparagraph (b)(i) applies—the Minister or Secretary need not do the thing until all of the required fee is paid; and
(e) if subparagraph (b)(ii) applies and the period has not begun—the period does not begin until all of the required fee is paid; and
(f) if subparagraph (b)(ii) applies and the period has begun—the period stops until all of the required fee is paid and, when paid, begins again for the balance of the period.
(2) For the purposes of paragraphs (1)(e) and (f), the day that all of the required fee is paid is not to be counted in the relevant period.
522 Financial assistance etc. to be paid out of appropriated money
Payment of amounts of financial assistance under this Act, and of any amounts that the Commonwealth is required to pay to a person under this Act or an agreement made under this Act, are to be made out of money appropriated by the Parliament for the purpose.
522A Review of operation of Act
(1) The Minister must cause independent reviews to be undertaken by a person or body of:
(a) the operation of this Act; and
(b) the extent to which the objects of this Act have been achieved.
(2) The first review must be undertaken within 10 years of the commencement of this Act. Later reviews must be undertaken at intervals of not more than 10 years.
(3) The person or body undertaking a review must give a report of the review to the Minister.
(4) The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives it.
Chapter 8—Definitions
Part 23—Definitions
Division 1—Some definitions relating to particular topics
Subdivision A—Actions
523 Actions
(1) Subject to this Subdivision, action includes:
(a) a project; and
(b) a development; and
(c) an undertaking; and
(d) an activity or series of activities; and
(e) an alteration of any of the things mentioned in paragraph (a), (b), (c) or (d).
524 Things that are not actions
(1) This section applies to a decision by each of the following kinds of person (government body):
(a) the Commonwealth;
(b) a Commonwealth agency;
(c) a State;
(d) a self‑governing Territory;
(e) an agency of a State or self‑governing Territory;
(f) an authority established by a law applying in a Territory that is not a self‑governing Territory.
(2) A decision by a government body to grant a governmental authorisation (however described) for another person to take an action is not an action.
(3) To avoid doubt, a decision by the Commonwealth or a Commonwealth agency to grant a governmental authorisation under one of the following Acts is not an action:
(a) the Customs Act 1901;
(b) the Export Control Act 1982;
(c) the Export Finance and Insurance Corporation Act 1991;
(d) the Fisheries Management Act 1991;
(e) the Foreign Acquisitions and Takeovers Act 1975;
(f) the Offshore Petroleum and Greenhouse Gas Storage Act 2006;
(g) the Quarantine Act 1908;
(h) the Competition and Consumer Act 2010.
This subsection does not limit this section.
524A Provision of grant funding is not an action
Provision of funding by way of a grant by one of the following is not an action:
(a) the Commonwealth;
(b) a Commonwealth agency;
(c) a State;
(d) a self‑governing Territory;
(e) an agency of a State or self‑governing Territory;
(f) an authority established by a law applying in a Territory that is not a self‑governing Territory.
Subdivision B—Areas
525 Commonwealth areas
What is a Commonwealth area?
(1) Each of the following, and any part of it, is a Commonwealth area:
(a) land owned by the Commonwealth or a Commonwealth agency (including land owned in Norfolk Island) and airspace over the land;
(b) an area of land held under lease by the Commonwealth or a Commonwealth agency (including an area held under lease in Norfolk Island) and airspace over the land;
(c) land in:
(i) an external Territory (except Norfolk Island); or
(ii) the Jervis Bay Territory;
and airspace over the land;
(d) the coastal sea of Australia or an external Territory;
(e) the continental shelf, and the waters and airspace over the continental shelf;
(f) the waters of the exclusive economic zone, the seabed under those waters and the airspace above those waters;
(g) any other area of land, sea or seabed that is included in a Commonwealth reserve.
Territory Land in ACT is not a Commonwealth area
(2) Despite paragraph (1)(a), an area of land that is Territory Land, within the meaning of the Australian Capital Territory (Planning and Land Management) Act 1988 is not a Commonwealth area merely because of that paragraph, unless it is held under lease by the Commonwealth or a Commonwealth agency.
Coastal waters of States and NT are not Commonwealth areas
(3) Despite paragraphs (1)(d), (e) and (f), none of the following areas (or parts of them) are Commonwealth areas:
(a) the seabed vested in a State under section 4 of the Coastal Waters (State Title) Act 1980; and
(b) the seabed vested in the Northern Territory under section 4 of the Coastal Waters (Northern Territory Title) Act 1980; and
(c) the subsoil under the seabed described in paragraph (a) or (b); and
(d) any water and airspace over seabed described in paragraph (a) or (b).
Subdivision C—Entities
526 Subsidiaries of bodies corporate
The question whether a body corporate is a subsidiary of a body or company is to be determined in the same way as the question whether a body corporate is a subsidiary of another body corporate is determined for the purposes of the Corporations Act 2001.
Subdivision D—Criminal law
527 Convictions
A reference in this Act to a conviction of a person of an offence includes a reference to making an order under section 19B of the Crimes Act 1914 in relation to the person in respect of the offence.
Subdivision E—Specimens
527A Specimens
(1) For the purposes of this Act, a specimen is:
(a) an animal; or
(b) animal reproductive material; or
(c) the skin, feathers, horns, shell or any other part of an animal; or
(d) any article wholly produced by or from, or otherwise wholly derived from, a single animal; or
(e) a plant; or
(f) plant reproductive material; or
(g) any part of a plant; or
(h) any article wholly produced by or from, or otherwise wholly derived from, a single plant.
(2) However, a fossil, or a mineralised deposit, is not a specimen for the purposes of this Act.
(3) In any provision of this Act, references to a specimen are to be read as including references to an article that consists of, or is derived from:
(a) a specimen and material other than a specimen; or
(b) 2 or more specimens; or
(c) 2 or more specimens and material other than a specimen.
(4) If an article consists of, or is derived from, 2 or more specimens, either with or without any material other than a specimen, then this Act applies to and in relation to that article separately in so far as it consists of, or is derived from, each of those specimens.
(5) For the purposes of this Act:
(a) if a live animal (other than animal reproductive material) that was bred in captivity dies, the dead animal and specimens derived from the dead animal are taken to be specimens derived from that live animal; and
(b) if a live plant (other than plant reproductive material) that was artificially propagated dies, the dead plant and specimens derived from the dead plant are taken to be specimens derived from that live plant; and
(c) a specimen covered by paragraph (1)(b), (c) or (d) is taken to be derived from the animal concerned; and
(d) a specimen covered by paragraph (1)(f), (g) or (h) is taken to be derived from the plant concerned; and
(e) if a specimen is derived from an animal that belongs to a particular species or taxon, the specimen is taken to belong to that species or taxon; and
(f) if a specimen is derived from a plant that belongs to a particular species or taxon, the specimen is taken to belong to that species or taxon.
(6) In this section:
this Act does not include sections 356 and 390E.
527B Breeding in captivity
For the purposes of this Act, a live animal of a particular kind is taken to have been bred in captivity if, and only if, it was bred in circumstances declared by the regulations to be circumstances the breeding in which of:
(a) any live animal; or
(b) any live animal of that kind; or
(c) any live animal included in a class of live animals that includes live animals of that kind;
would constitute breeding in captivity.
527C Artificial propagation
For the purposes of this Act, a live plant of a particular kind is taken to have been artificially propagated if, and only if, it was propagated in circumstances declared by the regulations to be circumstances the propagation in which of:
(a) any live plant; or
(b) any live plant of that kind; or
(c) any live plant included in a class of live plants that includes live plants of that kind;
would constitute artificial propagation.
527D Things represented to be CITES specimens
(1) For the purposes of this Act, if a thing is represented by an accompanying document, the package or a mark or label, or from any other circumstances, to be:
(a) the skin, feathers, horns, shell or any other part of a CITES listed animal; or
(b) part of a CITES listed plant; or
(c) reproductive material from a CITES listed animal or a CITES listed plant; or
(d) an article produced by or from, or derived from, one or more CITES listed animals or one or more CITES listed plants, whether with or without any other material;
then the thing is taken to be a CITES specimen.
Note: This subsection has the effect (among other things) of widening the scope of sections 303CC, 303CD and 303GN, which are offence provisions relating to the export, import and possession of specimens.
(2) The Minister must not issue a permit under section 303CG authorising the export or import of a thing that is taken under subsection (1) to be a CITES specimen unless the thing is a CITES specimen apart from subsection (1).
(3) In this section:
CITES listed animal means an animal of a species included in Appendix I, II or III to CITES.
CITES listed plant means a plant of a species included in Appendix I, II or III to CITES.
export has the same meaning as in Part 13A.
import has the same meaning as in Part 13A.
Subdivision F—Impacts
527E Meaning of impact
(1) For the purposes of this Act, an event or circumstance is an impact of an action taken by a person if:
(a) the event or circumstance is a direct consequence of the action; or
(b) for an event or circumstance that is an indirect consequence of the action—subject to subsection (2), the action is a substantial cause of that event or circumstance.
(2) For the purposes of paragraph (1)(b), if:
(a) a person (the primary person) takes an action (the primary action); and
(b) as a consequence of the primary action, another person (the secondary person) takes another action (the secondary action); and
(c) the secondary action is not taken at the direction or request of the primary person; and
(d) an event or circumstance is a consequence of the secondary action;
then that event or circumstance is an impact of the primary action only if:
(e) the primary action facilitates, to a major extent, the secondary action; and
(f) the secondary action is:
(i) within the contemplation of the primary person; or
(ii) a reasonably foreseeable consequence of the primary action; and
(g) the event or circumstance is:
(i) within the contemplation of the primary person; or
(ii) a reasonably foreseeable consequence of the secondary action.
Division 2—General list of definitions
528 Definitions
In this Act, unless the contrary intention appears:
accredited authorisation process has the meaning given by subsection 33(2A).
accredited management arrangement has the meaning given by subsection 33(2).
acquisition of property has the meaning given by subsection 519(2).
action has the meaning given by Subdivision A of Division 1 of Part 23.
action management plan, in relation to an action, means a plan for managing the impacts of the action on a matter protected by a provision of Part 3, such as a plan for conserving habitat of a species.
agency of a State or self‑governing Territory means:
(a) a Minister of the State or Territory; or
(b) a body corporate established for a public purpose by a law of the State or Territory; or
(c) a body corporate established by:
(i) the Governor of the State; or
(ii) if the Territory is the Australian Capital Territory—the Governor‑General acting in relation to the Australian Capital Territory; or
(iii) if the Territory is the Northern Territory or Norfolk Island—the Administrator of the Territory; or
(iv) a Minister of the State or Territory;
otherwise than by or under a law of the State or Territory; or
(d) a company in which the whole of the shares or stock, or shares or stock carrying more than one‑half of the voting power, is or are owned by or on behalf of the State or Territory; or
(e) a body corporate that is a subsidiary of:
(i) a body or company referred to in paragraph (b), (c) or (d); or
(ii) a body corporate that, because of a previous application or previous applications of this paragraph, is taken to be an agency of the State or Territory for the purposes of this definition; or
(f) a person holding, or performing the duties of:
(i) an office established by or under a law of the State or Territory (except a judicial office or an office of member of a tribunal); or
(ii) an appointment made under a law of the State or Territory (except appointment to a judicial office or an office of member of a tribunal); or
(g) a person holding, or performing the duties of, an appointment made by:
(i) the Governor of the State; or
(ii) if the Territory is the Australian Capital Territory—the Governor‑General acting in relation to the Australian Capital Territory; or
(iii) if the Territory is the Northern Territory or Norfolk Island—the Administrator of the Territory; or
(iv) a Minister of the State or Territory;
otherwise than by or under a law of the State or Territory.
aggravated offence:
(a) in Subdivision B of Division 1 of Part 13—has the meaning given by section 196F; and
(b) in Subdivision B of Division 2 of Part 13—has the meaning given by section 211F; and
(c) in Subdivision B of Division 4 of Part 13—has the meaning given by section 254F.
aircraft means an apparatus that can derive support in the atmosphere from the reactions of the air.
animal means any member, alive or dead, of the animal kingdom (other than a human being).
animal reproductive material means:
(a) an embryo, an egg or sperm of an animal; or
(b) any other part, or product, of an animal from which another animal could be produced.
Antarctic has the same meaning as in the Antarctic Treaty (Environment Protection) Act 1980.
Apia Convention means the Convention on Conservation of Nature in the South Pacific, done at Apia, Western Samoa, on 12 June 1976, as amended and in force for Australia from time to time.
Note: The English text of the Convention is set out in Australian Treaty Series 1990 No. 41.
approved conservation advice has the meaning given by subsection 266B(2).
article includes a substance or a mixture of substances.
artificially propagated, in relation to a plant or plant reproductive material, has the meaning given by section 527C.
assess an action includes assess the impacts that the action:
(a) has or will have; or
(b) is likely to have.
assessment report has the meaning given by subsection 130(2).
Australian aircraft has the meaning given by subsection 5(5).
Australian Biosphere reserve management principles has the meaning given by section 340.
Australian Heritage Council means the body established by the Australian Heritage Council Act 2003.
Australian IUCN reserve management principles has the meaning given by subsection 348(1).
Australian jurisdiction has the meaning given by subsection 5(5).
Australian Ramsar management principles has the meaning given by section 335.
Australian vessel has the meaning given by subsection 5(5).
Australian Whale Sanctuary has the meaning given by subsection 225(2).
Australian World Heritage management principles has the meaning given by section 323.
authorisation process means a process set out in a law of the Commonwealth or a State or Territory under which actions are authorised.
authorised officer means:
(a) a warden; or
(b) an inspector.
baggage has the meaning given by section 443.
bilateral agreement has the meaning given by subsection 45(2).
bilaterally accredited authorisation process has the meaning given by subsection 46(2A).
bilaterally accredited management arrangement has the meaning given by subsection 46(2).
biodiversity means the variability among living organisms from all sources (including terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part) and includes:
(a) diversity within species and between species; and
(b) diversity of ecosystems.
Biodiversity Convention means the Convention on Biological Diversity done at Rio de Janeiro on 5 June 1992, as amended and in force for Australia from time to time.
Note: The English text of this Convention is set out in Australian Treaty Series 1993 No. 32.
biological resources includes genetic resources, organisms, parts of organisms, populations and any other biotic component of an ecosystem with actual or potential use or value for humanity.
bioregional assessment, in relation to an area, means the scientific analysis of the ecology, hydrology and geology of the area for the purpose of assessing the potential direct and indirect impacts of coal seam gas development or large coal mining development on water resources in the area, including any impacts of associated salt production and/or salinity.
bioregional plan means a bioregional plan for a bioregion as mentioned in section 176.
Biosphere reserve has the meaning given by section 337.
Board means a Board established under section 377.
Bonn Convention means the Convention on the Conservation of Migratory Species of Wild Animals done at Bonn on 23 June 1979, as amended and in force for Australia from time to time.
Note: The English text of the Convention is set out in Australian Treaty Series 1991 No. 32.
bred in captivity, in relation to an animal or animal reproductive material, has the meaning given by section 527B.
CAMBA means the Agreement between the Government of Australia and the Government of the People’s Republic of China for the protection of Migratory Birds and their Environment done at Canberra on 20 October 1986, as amended and in force for Australia from time to time.
Note: The English text of the Agreement is set out in Australian Treaty Series 1988 No. 22.
cetacean means a member of the sub‑order Mysticeti or Odontoceti of the Order Cetacea, and includes:
(a) a part of such a member; and
(b) any animal reproductive material of such a member, or any part of such reproductive material; and
(c) any product derived from such a member; and
(d) the whole or part of the dead body of such a member; and
(e) any product derived from the dead body, or part of the dead body, of such a member.
CITES means the Convention on International Trade in Endangered Species of Wild Fauna and Flora done at Washington on 3 March 1973, as amended and in force for Australia from time to time.
Note: The English text of the Convention is set out in Australian Treaty Series 1976 No. 29.
CITES I species means a species included in the list referred to in section 303CA, where there is a notation to the effect that the species is included in Appendix I to CITES.
CITES I specimen means a specimen that belongs to a CITES I species, where there is a notation in the list referred to in section 303CA that describes the specimen.
CITES II species means a species included in the list referred to in section 303CA, where there is a notation to the effect that the species is included in Appendix II to CITES.
CITES II specimen means a specimen that belongs to a CITES II species, where there is a notation in the list referred to in section 303CA that describes the specimen.
CITES III species means a species included in the list referred to in section 303CA, where there is a notation to the effect that the species is included in Appendix III to CITES.
CITES III specimen means a specimen that belongs to a CITES III species, where there is a notation in the list referred to in section 303CA that describes the specimen.
CITES specimen means:
(a) a CITES I specimen; or
(b) a CITES II specimen; or
(c) a CITES III specimen.
civil penalty provision has the meaning given by section 482.
coal seam gas development means any activity involving coal seam gas extraction that has, or is likely to have, a significant impact on water resources (including any impacts of associated salt production and/or salinity):
(a) in its own right; or
(b) when considered with other developments, whether past, present or reasonably foreseeable developments.
coastal sea of Australia or an external Territory has the same meaning as in subsection 15B(4) of the Acts Interpretation Act 1901.
coastal waters of a State or the Northern Territory has the meaning given by section 227.
commercial fishing activity has the meaning given by subsection 390SC(1A).
commissioner means a person holding an appointment under paragraph 107(1)(a).
Commonwealth agency means:
(a) a Minister; or
(b) a body corporate established for a public purpose by a law of the Commonwealth; or
(c) a body corporate established by a Minister otherwise than under a law of the Commonwealth; or
(d) a company in which the whole of the shares or stock, or shares or stock carrying more than one‑half of the voting power, is or are owned by or on behalf of the Commonwealth; or
(e) a body corporate that is a subsidiary of:
(i) a body or company referred to in paragraph (b), (c) or (d); or
(ii) a body corporate that, because of a previous application or previous applications of this paragraph, is taken to be a Commonwealth agency for the purposes of this definition; or
(f) a person holding, or performing the duties of:
(i) an office established by or under a law of the Commonwealth (except a judicial office or office of member of a tribunal); or
(ii) an appointment made under a law of the Commonwealth (except an appointment to a judicial office or office of member of a tribunal); or
(g) a person holding, or performing the duties of, an appointment made by the Governor‑General, or by a Minister, otherwise than under a law of the Commonwealth;
but does not include:
(h) a person holding an office established by or under any of the following Acts, or holding an appointment made under any of them:
(i) the Northern Territory (Self‑Government) Act 1978;
(ii) the Norfolk Island Act 1979;
(iii) the Australian Capital Territory (Self‑Government) Act 1988; or
(i) any of the following:
(i) an Aboriginal Land Trust, or an Aboriginal Land Council, established under the Aboriginal Land Rights (Northern Territory) Act 1976;
(ii) a corporation registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006;
(iii) the Wreck Bay Aboriginal Community Council established by the Aboriginal Land Grant (Jervis Bay Territory) Act 1986; or
(j) a company prescribed by the regulations for the purposes of this paragraph.
Commonwealth aircraft has the meaning given by section 403.
Commonwealth area has the meaning given by section 525.
Commonwealth Heritage criteria has the meaning given by subsection 341D(1).
Commonwealth Heritage List means the list referred to in section 341C.
Commonwealth Heritage management principles has the meaning given by section 341Y.
Commonwealth Heritage place has the meaning given by subsection 341C(3).
Commonwealth Heritage value has the meaning given by section 341D.
Commonwealth land has the meaning given by section 27.
Commonwealth marine area has the meaning given by section 24.
Commonwealth reserve means a reserve declared under Division 4 of Part 15.
Commonwealth ship has the meaning given by section 403.
components of biodiversity has the meaning given by subsection 171(3).
conservation agreement means an agreement made under section 305.
conservation dependent: a native species may be included in the conservation dependent category of the list of threatened native species in accordance with Subdivision A of Division 1 of Part 13.
conservation dependent species means a listed threatened species that is included in the conservation dependent category of the list referred to in section 178.
conservation order means an order made under section 464 (with variations (if any) under section 466 or 469).
conservation zone means a Commonwealth area that is declared to be a conservation zone under Division 5 of Part 15.
constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.
continental shelf means the continental shelf (as defined in the Seas and Submerged Lands Act 1973) of Australia (including its external Territories).
continuation of a use of land, sea or seabed has the meaning given by section 43B.
control: a Commonwealth agency controls a place only if the agency has rights (whether arising under a law, lease, licence or otherwise) to:
(a) occupy or use the place; and
(b) take actions in relation to the place that could potentially have an impact on heritage values that the place may have.
controlled action has the meaning given by section 67.
controlling provision has the meaning given by section 67.
convict a person of an offence has a meaning affected by section 527.
copy, when used in relation to a warrant issued under section 409 or 416 (or a form of warrant completed under subsection 409A(6) or 416(6)), includes:
(a) a copy sent by fax or other electronic means; or
(b) a copy of a copy so sent.
country includes a place that is a territory, dependency or colony (however described) of a foreign country.
critical habitat for a listed threatened species or a listed threatened ecological community has the meaning given by subsection 207A(4).
critically endangered:
(a) a native species may be included in the critically endangered category of the list of threatened native species in accordance with Subdivision A of Division 1 of Part 13; and
(b) an ecological community may be included in the critically endangered category of the list of threatened ecological communities in accordance with Subdivision A of Division 1 of Part 13.
daily newspaper means a newspaper that is ordinarily published on each day that is a business day in the place where the newspaper is published, whether or not the newspaper is ordinarily published on other days.
declaration affected person has the meaning given by subsection 390SE(3).
declared commercial fishing activity has the meaning given by subsection 390SC(1).
declared Ramsar wetland has the meaning given by section 17.
declared State or Territory means a State or self‑governing Territory that is declared by the Minister under section 505E.
declared World Heritage property has the meaning given by section 13.
designated proponent of an action means the person designated under Division 2 of Part 7 as the proponent of the action.
directed environmental audit has the meaning given by subsection 460(4).
Director means the Director of National Parks referred to in section 514A.
disease means:
(a) a disease, parasite or pest that, for the purposes of the Quarantine Act 1908, is a disease in relation to animals; or
(b) a disease, pest or plant that, for the purposes of that Act, is a disease in relation to plants.
dory means:
(a) a vessel in relation to which a licence or other permission (however described and whether or not in force) has been granted under a law of the Commonwealth, a State or a Territory authorising the vessel to be used in association with a primary commercial fishing vessel; or
(b) a vessel that is used in association with a primary commercial fishing vessel.
Note: A dory might also be known as a tender commercial fishing vessel.
ecological character has the meaning given by subsection 16(3).
ecological community means the extent in nature in the Australian jurisdiction of an assemblage of native species that:
(a) inhabits a particular area in nature; and
(b) meets the additional criteria specified in the regulations (if any) made for the purposes of this definition.
ecologically sustainable use of natural resources means use of the natural resources within their capacity to sustain natural processes while maintaining the life‑support systems of nature and ensuring that the benefit of the use to the present generation does not diminish the potential to meet the needs and aspirations of future generations.
ecosystem means a dynamic complex of plant, animal and micro‑organism communities and their non‑living environment interacting as a functional unit.
eligible seizable item means anything that would present a danger to a person or that could be used to assist a person to escape from lawful custody.
endangered:
(a) a native species may be included in the endangered category of the list of threatened native species in accordance with Subdivision A of Division 1 of Part 13; and
(b) an ecological community may be included in the endangered category of the list of threatened ecological communities in accordance with Subdivision A of Division 1 of Part 13.
environment includes:
(a) ecosystems and their constituent parts, including people and communities; and
(b) natural and physical resources; and
(c) the qualities and characteristics of locations, places and areas; and
(d) heritage values of places; and
(e) the social, economic and cultural aspects of a thing mentioned in paragraph (a), (b), (c) or (d).
environmental authorisation has the meaning given by section 43A.
environmental authority has the meaning given by subsection 458(4).
environmental law means:
(a) this Act; or
(b) the regulations; or
(c) the Great Barrier Reef Marine Park Act 1975; or
(d) regulations made under the Great Barrier Reef Marine Park Act 1975.
environmental penalty provision means:
(a) a civil penalty provision under this Act; or
(b) a civil penalty provision under the Great Barrier Reef Marine Park Act 1975.
evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
evidential material has the meaning given by subsection 406(2).
exclusive economic zone means the exclusive economic zone (as defined in the Seas and Submerged Lands Act 1973) of Australia (including its external Territories).
executing officer, in relation to a warrant, means:
(a) the authorised officer named in the warrant as being responsible for executing the warrant; or
(b) if that authorised officer does not intend to be present at the execution of the warrant—another authorised officer whose name has been written in the warrant by the authorised officer so named; or
(c) another authorised officer whose name has been written in the warrant by the authorised officer last named in the warrant.
executive officer of a body corporate has the meaning given by section 493.
extinct: a native species may be included in the extinct category of the list of threatened native species in accordance with Subdivision A of Division 1 of Part 13.
extinct in the wild: a native species may be included in the extinct in the wild category of the list of threatened native species in accordance with Subdivision A of Division 1 of Part 13.
Federal Court means the Federal Court of Australia.
Federal Register of Legislation means the Federal Register of Legislation established under the Legislation Act 2003.
fish has the same meaning as in the Fisheries Management Act 1991.
Fisheries Minister means the Minister administering the Fisheries Management Act 1991.
fishing has the same meaning as in the Fisheries Management Act 1991.
fishing activity has the meaning given by subsection 390SC(2).
fishing concession has the same meaning as in the Fisheries Management Act 1991.
foreign whaling vessel has the meaning given by subsection 236(5).
frisk search has the meaning given by subsection 413(3).
genetic resources means any material of plant, animal, microbial or other origin that contains functional units of heredity and that has actual or potential value for humanity.
goods has the meaning given by section 443.
Great Barrier Reef Marine Park means the Great Barrier Reef Marine Park established under the Great Barrier Reef Marine Park Act 1975.
Great Barrier Reef Marine Park Authority means the Great Barrier Reef Marine Park Authority established by the Great Barrier Reef Marine Park Act 1975.
habitat means the biophysical medium or media:
(a) occupied (continuously, periodically or occasionally) by an organism or group of organisms; or
(b) once occupied (continuously, periodically or occasionally) by an organism, or group of organisms, and into which organisms of that kind have the potential to be reintroduced.
heritage value of a place includes the place’s natural and cultural environment having aesthetic, historic, scientific or social significance, or other significance, for current and future generations of Australians.
holder means:
(a) in the case of a permit issued under Chapter 5—the person to whom the permit was issued or transferred, as the case may be; or
(b) in the case of an approval under Part 9—the person named in the approval under paragraph 133(2)(c).
impact has the meaning given by section 527E.
important cetacean habitat area means an area declared, by a declaration in force under subsection 228A(1), to be an important cetacean habitat area.
Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development means the Committee established by section 505C.
indigenous heritage value of a place means a heritage value of the place that is of significance to indigenous persons in accordance with their practices, observances, customs, traditions, beliefs or history.
indigenous people’s land has the meaning given by subsection 363(3).
indigenous person has the meaning given by subsection 363(4).
indigenous tradition has the meaning given by section 201.
inspector means:
(a) a person appointed as an inspector under section 396;
(b) a person who is an inspector because of section 397; or
(c) a person who is an inspector because of an arrangement entered into under section 398.
interested person has the meaning given by section 475.
interfere with a cetacean has the meaning given by subsection 229B(4).
IUCN category has the meaning given by subsection 346(1).
JAMBA means the Agreement between the Government of Japan and the Government of Australia for the Protection of Migratory Birds and Birds in Danger of Extinction and their Environment done at Tokyo on 6 February 1974, as amended and in force for Australia from time to time.
Note: The English text of the Agreement is set out in Australian Treaty Series 1981 No. 6.
jointly managed reserve has the meaning given by subsection 363(5).
Kakadu National Park has the meaning given by subsection 387(3).
Kakadu region has the meaning given by subsection 386(1).
keep a cetacean or member of a listed threatened species, listed migratory species, listed marine species or listed threatened ecological community means:
(a) in the case of a cetacean, or a species of animal or community of animals—have charge or possession of the cetacean or member, either in captivity or in a domesticated state; and
(b) in the case of a species of plant or community of plants—have possession of the member.
key threatening process means a threatening process included in the list referred to in section 183.
land has the meaning given by subsection 345(2).
land council for indigenous people’s land has the meaning given by subsection 363(2).
large coal mining development means any coal mining activity that has, or is likely to have, a significant impact on water resources (including any impacts of associated salt production and/or salinity):
(a) in its own right; or
(b) when considered with other developments, whether past, present or reasonably foreseeable developments.
large‑scale disposal facility for radioactive waste has a meaning affected by subsection 22(2).
list includes a list containing no items.
listed marine species means a marine species included in the list referred to in section 248.
listed migratory species means a migratory species included in the list referred to in section 209.
listed threatened ecological community means an ecological community included in the list referred to in section 181.
listed threatened species means a native species included in the list referred to in section 178.
List of Overseas Places of Historic Significance to Australia means the record referred to in section 390K.
live animal includes animal reproductive material.
live plant includes plant reproductive material.
longfin mako shark means the listed migratory species with the common name longfin mako shark and the scientific name Isurus paucus.
magistrate means a magistrate who is remunerated by salary or otherwise, and includes a Judge, or acting Judge, of the Local Court of the Northern Territory.
management arrangement includes:
(a) a management plan; and
(b) a regime; and
(c) a policy.
master of a foreign whaling vessel has the meaning given by subsection 236(5).
matter protected by a provision of Part 3 has the meaning given by section 34.
member includes:
(a) in relation to a species of animal (other than a species of cetacean):
(i) any part of an animal of the species; and
(ii) any animal reproductive material of an animal of the species, or any part of such reproductive material; and
(iii) the whole or any part of the dead body of an animal of the species; and
(b) in relation to a species of plant:
(i) any part of a plant of the species; and
(ii) any plant reproductive material of a plant of the species, or any part of such reproductive material; and
(iii) the whole or any part of a plant of the species that has died; and
(c) in relation to an ecological community:
(i) any part of an animal or plant of the community; and
(ii) any animal reproductive material of an animal, or plant reproductive material of a plant, of the community, or any part of such animal reproductive material or plant reproductive material; and
(iii) the whole or any part of an animal or plant of the community that has died.
migration zone has the same meaning as in the Migration Act 1958.
migratory species has the meaning given by subsection 209(8).
mineral has the meaning given by subsection 355(3).
mining operations has the meaning given by subsection 355(2).
monitoring power relating to premises has the meaning given by section 407.
monitoring warrant has the meaning given by section 409.
National Heritage criteria has the meaning given by subsection 324D(1).
National Heritage List means the list referred to in section 324C.
National Heritage management principles has the meaning given by section 324Y.
National Heritage place has the meaning given by subsection 324C(3).
National Heritage value has the meaning given by section 324D.
native amphibian means an amphibian of a native species.
native animal means an animal of a native species.
native bird means a bird of a native species.
native mammal means a mammal of a native species.
native plant means a plant of a native species.
native reptile means a reptile of a native species.
native species means a species:
(a) that is indigenous to Australia or an external Territory; or
(b) that is indigenous to the seabed of the coastal sea of Australia or an external Territory; or
(c) that is indigenous to the continental shelf; or
(d) that is indigenous to the exclusive economic zone; or
(e) members of which periodically or occasionally visit:
(i) Australia or an external Territory; or
(ii) the exclusive economic zone; or
(f) that was present in Australia or an external Territory before 1400.
Note: A reference to Australia or an external Territory includes a reference to the coastal sea of Australia or the Territory. See section 15B of the Acts Interpretation Act 1901.
nuclear action has the meaning given by subsection 22(1).
nuclear installation has the meaning given by subsection 22(1).
occupier of premises means the person apparently in charge of the premises.
officer assisting, in relation to a warrant, means:
(a) an authorised officer who is assisting in executing the warrant; or
(b) a person who is not an authorised officer, but who has been authorised by the relevant executing officer to assist in executing the warrant.
officer of Customs has the same meaning as it has in the Customs Act 1901.
ordinary search has the meaning given in subsection 414(3).
organism includes:
(a) a virus; and
(b) the reproductive material of an organism; and
(c) an organism that has died.
place includes:
(a) a location, area or region or a number of locations, areas or regions; and
(b) a building or other structure, or group of buildings or other structures (which may include equipment, furniture, fittings and articles associated or connected with the building or structure, or group of buildings or structures); and
(c) in relation to the protection, maintenance, preservation or improvement of a place—the immediate surroundings of a thing in paragraph (a) or (b).
plant means a member, alive or dead, of the plant kingdom or of the fungus kingdom, and includes a part of a plant and plant reproductive material.
plant reproductive material means:
(a) a seed or spore of a plant; or
(b) a cutting from a plant; or
(c) any other part, or product, of a plant from which another plant can be produced.
population of a species or ecological community means an occurrence of the species or community in a particular area.
porbeagle shark means the listed migratory species with the common name porbeagle shark and the scientific name Lamna nasus.
precautionary principle has the meaning given by subsection 391(2).
premises includes a place, vehicle, vessel and aircraft.
prescribed waters means waters in respect of which regulations made for the purposes of section 226 are in force.
primary commercial fishing vessel means:
(a) a vessel in relation to which a licence or other permission (however described and whether or not in force) has been granted under a law of the Commonwealth, a State or a Territory authorising the vessel to be used to take fish for commercial purposes; or
(b) a vessel that is used to take fish for commercial purposes.
principles of ecologically sustainable development has a meaning affected by section 3A.
progeny includes:
(a) in relation to an animal—any animal reproductive material of that animal or of any progeny of that animal; and
(b) in relation to a plant—any plant reproductive material of that plant or of any progeny of that plant; and
(c) in relation to a live animal that is animal reproductive material—any animal resulting from that material or any progeny of such animal; and
(d) in relation to a live plant that is plant reproductive material—any plant resulting from that material or any progeny of such plant.
To avoid doubt, a reference in this Act to progeny of an animal or a plant includes a reference to any descendant of that animal or plant.
radioactive waste has the meaning given by subsection 22(1).
Ramsar Convention means the Convention on Wetlands of International Importance especially as Waterfowl Habitat done at Ramsar, Iran, on 2 February 1971, as amended and in force for Australia from time to time.
Note: The English Text of the Convention is set out in Australian Treaty Series 1975 No. 48.
range of a species means the area where members of the species live, feed, breed or visit periodically or regularly.
ranger means a person holding an appointment as a ranger under Part 17.
recovery plan means a plan made or adopted under section 269A.
regulated live specimen has the meaning given by section 303EA.
regulated native specimen has the meaning given by section 303DA.
relevant impacts of an action has the meaning given by section 82.
remediation determination means a determination, as in force from time to time, made under section 480D.
remediation order means an order, as in force from time to time, made under section 480A.
reprocessing has the meaning given by subsection 22(1).
Scientific Committee means the Threatened Species Scientific Committee established by section 502.
seabed has the meaning given by subsection 345(2).
Secretary means the Secretary of the Department that:
(a) deals with the matter to which the provision containing the reference relates; and
(b) is administered by the Minister administering the provision.
seized has a meaning affected by section 406B.
self‑governing Territory means:
(a) the Australian Capital Territory; or
(b) the Northern Territory.
shortfin mako shark means the listed migratory species with the common name shortfin mako shark and the scientific name Isurus oxyrinchus.
species means a group of biological entities that:
(a) interbreed to produce fertile offspring; or
(b) possess common characteristics derived from a common gene pool;
and includes:
(c) a sub‑species; and
(ca) for the purposes of Part 13A—a distinct population of such biological entities; and
(d) except for the purposes of Part 13A—a distinct population of such biological entities that the Minister has determined, under section 517, to be a species for the purposes of this Act.
In this definition, the purposes of Part 13A:
(a) include the purposes of the definitions of CITES I species, CITES II species and CITES III species; and
(b) do not include determining the meaning of the expression listed threatened species when used in Part 13A.
specific environmental authorisation has the meaning given by section 43A.
specimen has the meaning given by section 527A.
spent nuclear fuel has the meaning given by subsection 22(1).
subsidiary of a body corporate has a meaning affected by section 526.
sub‑species means a geographically separate population of a species, being a population that is characterised by morphological or biological differences from other populations of that species.
take, except in Part 13A, includes:
(a) in relation to an animal—harvest, catch, capture and trap; and
(b) in relation to a plant—harvest, pick, gather and cut.
Note: For the meaning of take in Part 13A, see section 303BC.
taxon means any taxonomic category (for example, a species or a genus), and includes a particular population.
terms of reference:
(a) in relation to an inquiry under Division 7 of Part 8—has the meaning given by paragraph 107(1)(b); and
(b) in relation to an assessment under Division 3 of Part 15B—has the meaning given by paragraph 390SH(1)(b).
territorial sea means the territorial sea (as defined in the Seas and Submerged Lands Act 1973) of Australia (including its external Territories).
threat abatement plan means a plan made or adopted under section 270B.
threatening process has the meaning given by subsection 188(3).
trade:
(a) when used in the context of a reference to a member of a listed threatened species, listed migratory species, listed marine species or listed threatened ecological community—includes:
(i) buy the member, agree to receive it under an agreement to buy, agree to accept it under such an agreement or acquire it by barter; or
(ii) sell the member, offer it for sale, agree to sell it, have it in possession for the purpose of sale, deliver it for the purpose of sale, receive it for the purpose of sale or dispose of it by barter for the purpose of gain or advancement; or
(iii) export the member from Australia or an external Territory or import it into Australia or an external Territory; or
(iv) cause or allow any of the acts referred to in subparagraph (i), (ii) or (iii) to be done; or
(b) when used in the context of a reference to a cetacean (not being a reference that covers a cetacean because a cetacean is a member referred to in paragraph (a))—has the meaning given by subsection 229B(4).
traditional owners of indigenous people’s land has the meaning given by subsection 368(4).
treat a cetacean has the meaning given by subsection 229D(3).
Uluru‑Kata Tjuta National Park has the meaning given by subsection 344(3).
Uluru region has the meaning given by subsection 386(2).
usage right has the meaning given by subsection 350(7).
vehicle includes a hovercraft.
vessel means a ship, boat, raft or pontoon or any other thing capable of carrying persons or goods through or on water and includes a floating structure and hovercraft.
vulnerable:
(a) a native species may be included in the vulnerable category of the list of threatened native species in accordance with Subdivision A of Division 1 of Part 13; and
(b) an ecological community may be included in the vulnerable category of the list of threatened ecological communities in accordance with Subdivision A of Division 1 of Part 13.
warden means a person holding an appointment as a warden under Part 17.
warrant premises means premises in relation to which a warrant is in force.
water resource has the same meaning as in the Water Act 2007.
wetland has the same meaning as in the Ramsar Convention.
whale watching has the meaning given by section 238.
wildlife means:
(a) an animal; or
(b) a specimen derived from an animal; or
(c) a plant; or
(d) a specimen derived from a plant.
wildlife conservation plan means a plan of a kind referred to in section 285 that has been made or adopted under that section.
World Heritage Convention means the Convention for the Protection of the World Cultural and Natural Heritage done at Paris on 23 November 1972, as amended and in force for Australia from time to time.
Note: The English text of the Convention is set out in Australian Treaty Series 1975 No. 47.
World Heritage List means the list kept under that title under Article 11 of the World Heritage Convention.
world heritage values of a property has the meaning given by subsection 12(3).
