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Environment Protection and Biodiversity
Conservation Act 1999
No. 91, 1999
Compilation No. 52
Compilation date: 29 October 2018
Includes amendments up to: Act No. 12, 2018
Registered: 9 November 2018
This compilation is in 2 volumes
Volume 1: sections 1–266
Volume 2: sections 266B–528
Schedule
Endnotes
Each volume has its own contents
Prepared by the Office of Parliamentary Counsel, Canberra
About this compilation
This compilation
This is a compilation of the Environment Protection and Biodiversity
Conservation Act 1999 that shows the text of the law as amended and in force
on 29 October 2018 (the compilation date).
The notes at the end of this compilation (the endnotes) include information
about amending laws and the amendment history of provisions of the compiled
law.
Uncommenced amendments
The effect of uncommenced amendments is not shown in the text of the
compiled law. Any uncommenced amendments affecting the law are accessible
on the Legislation Register (www.legislation.gov.au). The details of
amendments made up to, but not commenced at, the compilation date are
underlined in the endnotes. For more information on any uncommenced
amendments, see the series page on the Legislation Register for the compiled
law.
Application, saving and transitional provisions for provisions and
amendments
If the operation of a provision or amendment of the compiled law is affected by
an application, saving or transitional provision that is not included in this
compilation, details are included in the endnotes.
Editorial changes
For more information about any editorial changes made in this compilation, see
the endnotes.
Modifications
If the compiled law is modified by another law, the compiled law operates as
modified but the modification does not amend the text of the law. Accordingly,
this compilation does not show the text of the compiled law as modified. For
more information on any modifications, see the series page on the Legislation
Register for the compiled law.
Self-repealing provisions
If a provision of the compiled law has been repealed in accordance with a
provision of the law, details are included in the endnotes.
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Contents
Chapter 5—Conservation of biodiversity and heritage 1
Part 13—Species and communities 1
Division 5—Conservation advice, recovery plans, threat
abatement plans and wildlife conservation plans 1
Subdivision AA—Approved conservation advice 1
266B Approved conservation advice for listed threatened
species and listed threatened ecological
communities ......................................................................1
Subdivision A—Recovery plans and threat abatement plans 3
267 Simplified outline of this Subdivision ...............................3
268 Compliance with recovery plans and threat
abatement plans .................................................................3
269 Implementing recovery and threat abatement plans ..........4
269AA Decision whether to have a recovery plan .........................4
269A Making or adopting a recovery plan..................................7
270 Content of recovery plans..................................................9
270A Decision whether to have a threat abatement plan...........11
270B Making or adopting a threat abatement plan ...................13
271 Content of threat abatement plans ...................................15
272 Eradication of non-native species....................................16
273 Ensuring plans are in force ..............................................16
274 Scientific Committee to advise on plans .........................18
275 Consultation on plans ......................................................18
276 Consideration of comments .............................................19
277 Adoption of State plans ...................................................19
278 Publication of plans .........................................................20
279 Variation of plans by the Minister ...................................20
280 Variation by a State or Territory of joint plans and
plans adopted by the Minister..........................................21
281 Commonwealth assistance...............................................22
282 Scientific Committee to advise on assistance ..................22
283 Plans may cover more than one species etc. ....................23
283A Revoking a plan...............................................................23
284 Reports on preparation and implementation of
plans ................................................................................24
Subdivision B—Wildlife conservation plans 24
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285 Wildlife conservation plans.............................................24
286 Acting in accordance with wildlife conservation
plans ................................................................................25
287 Content of wildlife conservation plans ............................25
288 Eradication of non-native species....................................27
289 Scientific Committee to advise on scheduling of
plans ................................................................................27
290 Consultation on plans ......................................................27
291 Consideration of comments .............................................28
292 Adoption of State plans ...................................................28
293 Publication, review and variation of plans.......................29
294 Variation of plans by the Minister ...................................29
295 Variation by a State or Territory of joint plans and
plans adopted by the Minister..........................................30
296 Commonwealth assistance...............................................31
297 Plans may cover more than one species etc. ....................31
298 Reports on preparation and implementation of
plans ................................................................................31
Subdivision C—Miscellaneous 32
299 Wildlife conservation plans cease to have effect .............32
300 Document may contain more than one plan ....................32
300A State and Territory laws not affected...............................32
300B Assistance from the Scientific Committee.......................32
Division 6—Access to biological resources 34
301 Control of access to biological resources ........................34
Division 6A—Control of non-native species 35
301A Regulations for control of non-native species .................35
Division 7—Aid for conservation of species in foreign countries 36
302 Aid for conservation of species in foreign
countries ..........................................................................36
Division 8—Miscellaneous 37
303 Regulations......................................................................37
303A Exemptions from this Part ...............................................37
303AA Conditions relating to accreditation of plans,
regimes and policies ........................................................38
303AB Amended policies, regimes or plans taken to be
accredited ........................................................................39
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Part 13A—International movement of wildlife specimens 40
Division 1—Introduction 40
303BA Objects of Part.................................................................40
303BAA Certain indigenous rights not affected .............................40
303BB Simplified outline............................................................41
303BC Definitions.......................................................................42
Division 2—CITES species 44
Subdivision A—CITES species and CITES specimens 44
303CA Listing of CITES species.................................................44
303CB Stricter domestic measures ..............................................45
Subdivision B—Offences and permit system 46
303CC Exports of CITES specimens...........................................46
303CD Imports of CITES specimens...........................................47
303CE Applications for permits ..................................................49
303CF Further information .........................................................49
303CG Minister may issue permits..............................................49
303CH Specific conditions relating to the export or import
of CITES specimens for commercial purposes................51
303CI Time limit for making permit decision ............................55
303CJ Duration of permits .........................................................56
303CK Register of applications and decisions.............................56
Subdivision C—Application of CITES 56
303CL Application of CITES—Management Authority
and Scientific Authority ..................................................56
303CM Interpretation of CITES provisions .................................57
303CN Resolutions of the Conference of the Parties to
CITES..............................................................................57
Division 3—Exports of regulated native specimens 58
Subdivision A—Regulated native specimens 58
303DA Regulated native specimens ............................................58
303DB Listing of exempt native specimens ................................58
303DC Minister may amend list ..................................................59
Subdivision B—Offence and permit system 61
303DD Exports of regulated native specimens ............................61
303DE Applications for permits ..................................................62
303DF Further information .........................................................62
303DG Minister may issue permits..............................................62
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303DH Time limit for making permit decision ............................65
303DI Duration of permits .........................................................66
303DJ Register of applications and decisions.............................66
Division 4—Imports of regulated live specimens 67
Subdivision A—Regulated live specimens 67
303EA Regulated live specimens ................................................67
303EB Listing of specimens suitable for live import ..................67
303EC Minister may amend list ..................................................68
Subdivision B—Assessments relating to the amendment of the list
of specimens suitable for import 69
303ED Amendment of list on the Minister’s own initiative ........69
303EE Application for amendment of list...................................70
303EF Requirement for assessments ..........................................71
303EG Timing of decision about proposed amendment ..............72
303EH Requesting further information .......................................72
303EI Notice of refusal of proposed amendment .......................73
303EJ Reviews ...........................................................................73
Subdivision C—Offence and permit system 73
303EK Imports of regulated live specimens ................................73
303EL Applications for permits ..................................................74
303EM Further information .........................................................74
303EN Minister may issue permits..............................................74
303EO Time limit for making permit decision ............................75
303EP Duration of permits .........................................................76
303EQ Register of applications and decisions.............................76
Subdivision D—Marking of certain specimens for the purposes of
identification 76
303ER Object ..............................................................................76
303ES Specimens to which Subdivision applies.........................77
303ET Extended meaning of marking.........................................77
303EU Secretary may make determinations about marking
of specimens....................................................................78
303EV Offences ..........................................................................79
303EW This Subdivision does not limit conditions of
permits.............................................................................80
Division 5—Concepts relating to permit criteria 81
Subdivision A—Non-commercial purpose exports and imports 81
303FA Eligible non-commercial purpose exports .......................81
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303FB Eligible non-commercial purpose imports.......................81
303FC Export or import for the purposes of research .................82
303FD Export or import for the purposes of education ...............83
303FE Export or import for the purposes of exhibition ..............83
303FF Export or import for conservation breeding or
propagation......................................................................84
303FG Export or import of household pets .................................85
303FH Export or import of personal items..................................86
303FI Export or import for the purposes of a travelling
exhibition.........................................................................87
Subdivision B—Commercial purpose exports and imports 87
303FJ Eligible commercial purpose exports ..............................87
303FK Export or import from an approved captive
breeding program ............................................................88
303FL Export from an approved artificial propagation
program ...........................................................................88
303FLA Export from an approved cultivation program ................88
303FM Export from an approved aquaculture program...............89
303FN Approved wildlife trade operation...................................89
303FO Approved wildlife trade management plan......................92
303FP Accredited wildlife trade management plan ....................94
303FQ Consultation with State and Territory agencies ...............95
303FR Public consultation ..........................................................96
303FRA Assessments ....................................................................96
303FS Register of declarations ...................................................97
303FT Additional provisions relating to declarations .................97
303FU Approved commercial import program ...........................99
Division 6—Miscellaneous 100
303GA Permit decision—controlled action, and action for
which a non-Part 13A permit is required.......................100
303GB Exceptional circumstances permit .................................102
303GC Permit authorising the Secretary to export or
import specimens...........................................................104
303GD Testing permit—section 303EE assessments ................106
303GE Conditions of permits ....................................................108
303GF Contravening conditions of a permit .............................109
303GG Authorities under permits ..............................................111
303GH Transfer of permits ........................................................112
303GI Suspension or cancellation of permits ...........................112
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303GJ Review of decisions.......................................................112
303GK Permit to be produced....................................................113
303GL Pre-CITES certificate to be produced............................114
303GM Fees ...............................................................................115
303GN Possession of illegally imported specimens...................115
303GO Regulations relating to welfare......................................117
303GP Cruelty—export or import of animals ...........................118
303GQ Imports of specimens contrary to the laws of a
foreign country ..............................................................119
303GR Evidence........................................................................119
303GS Evidence of examiner ....................................................120
303GT Protection of witness .....................................................122
303GU Forms and declarations—persons arriving in
Australia or an external Territory ..................................123
303GV Saving of other laws ......................................................123
303GW Part not to apply to certain specimens ...........................123
303GX Part not to apply to certain specimens used by
traditional inhabitants ....................................................125
303GY When a specimen is lawfully imported ..........................127
Part 14—Conservation agreements 129 304 Object of this Part..........................................................129
305 Minister may enter into conservation agreements .........130
306 Content of conservation agreements..............................134
306A Conservation agreement may include declaration
that actions do not need approval under Part 9..............137
307 Conservation agreements to be legally binding .............137
307A Conservation agreements may deal with
remediation or mitigation measures...............................138
308 Variation and termination of conservation
agreements.....................................................................139
309 Publication of conservation agreements ........................140
310 List of conservation agreements ....................................142
311 Commonwealth, State and Territory laws .....................142
312 Minister must not give preference .................................142
Part 15—Protected areas 143
Division 1—Managing World Heritage properties 143
Subdivision A—Simplified outline of this Division 143
313 Simplified outline of this Division ................................143
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Subdivision B—Seeking agreement on World Heritage listing 144
314 Special provisions relating to World Heritage
nominations ...................................................................144
Subdivision C—Notice of submission of property for listing 144
315 Minister must give notice of submission of
property for listing etc. ..................................................144
Subdivision D—Plans for listed World Heritage properties in
Commonwealth areas 145
316 Making plans.................................................................145
317 Notice of plans ..............................................................146
318 Commonwealth compliance with plans.........................147
319 Review of plans every 5 years .......................................147
Subdivision E—Managing World Heritage properties in States
and self-governing Territories 147
320 Application....................................................................147
321 Co-operating to prepare and implement plans ...............148
322 Commonwealth responsibilities ....................................148
Subdivision F—Australian World Heritage management
principles 149
323 Australian World Heritage management principles.......149
Subdivision G—Assistance for protecting World Heritage
properties 149
324 Commonwealth assistance for protecting declared
World Heritage properties .............................................149
Division 1A—Managing National Heritage places 151
Subdivision A—Preliminary 151
324A Simplified outline of this Division ................................151
Subdivision B—The National Heritage List 152
324C The National Heritage List ............................................152
324D Meaning of National Heritage values ...........................152
Subdivision BA—Inclusion of places in the National Heritage List:
usual process 153
324E Simplified outline..........................................................153
324F Definitions.....................................................................154
324G Meaning of assessment period ......................................155
324H Minister may determine heritage themes for an
assessment period..........................................................155
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324J Minister to invite nominations for each assessment
period ............................................................................156
324JA Minister to give nominations to Australian
Heritage Council ...........................................................157
324JB Australian Heritage Council to prepare proposed
priority assessment list ..................................................158
324JC Matters to be included in proposed priority
assessment list ...............................................................159
324JD Statement to be given to Minister with proposed
priority assessment list ..................................................160
324JE The finalised priority assessment list.............................160
324JF Publication of finalised priority assessment list.............161
324JG Australian Heritage Council to invite comments on
places in finalised priority assessment list .....................161
324JH Australian Heritage Council to assess places on
finalised priority assessment list and give
assessments to Minister .................................................163
324JI Time by which assessments to be provided to
Minister .........................................................................165
324JJ Decision about inclusion of a place in the National
Heritage List..................................................................165
Subdivision BB—Inclusion of places in the National Heritage List:
emergency process 168
324JK Simplified outline..........................................................168
324JL Minister may include place in National Heritage
List if under threat .........................................................169
324JM Minister to ask Australian Heritage Council for
assessment .....................................................................170
324JN Publication of listing of place and inviting
comments ......................................................................171
324JO Australian Heritage Council to assess place and
give assessment to Minister...........................................172
324JP Time by which assessments to be provided to
Minister .........................................................................172
324JQ Decision about place remaining in the National
Heritage List..................................................................173
Subdivision BC—Other provisions relating to the National
Heritage List 176
324JR Co-ordination with Scientific Committee—
Council undertaking assessment....................................176
324JS Co-ordination with Scientific Committee—
Council given assessment to Minister ...........................178
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324K Listing process not affected by changing
boundaries of a place.....................................................178
324L Removal of places or National Heritage values
from the National Heritage List.....................................179
324M Minister must consider advice of the Australian
Heritage Council and public comments.........................180
324N Specifying one or more additional National
Heritage values for a National Heritage place ...............181
324P National Heritage List must be publicly available.........182
324Q Certain information may be kept confidential ...............182
324R Disclosure of Australian Heritage Council’s
assessments and advice .................................................182
Subdivision C—Management plans for National Heritage places
in Commonwealth areas 184
324S Management plans for National Heritage places in
Commonwealth areas ....................................................184
324T Restriction on ability to make plans ..............................186
324U Compliance with plans by the Commonwealth and
Commonwealth agencies...............................................186
324V Multiple plans in the same document ............................186
324W Review of plans at least every 5 years...........................187
Subdivision D—Management of National Heritage places in States
and self-governing Territories 187
324X Plans and Commonwealth responsibilities ....................187
Subdivision E—The National Heritage management principles 188
324Y National Heritage management principles.....................188
Subdivision F—Obligations of Commonwealth agencies 189
324Z Obligation to assist the Minister and the Australian
Heritage Council ...........................................................189
324ZA Protecting National Heritage values of places sold
or leased ........................................................................189
Subdivision G—Assistance for protecting National Heritage
places 191
324ZB Commonwealth assistance for protecting National
Heritage places ..............................................................191
Subdivision H—Reviewing and reporting on the National
Heritage List 191
324ZC Reviewing and reporting on the National Heritage
List ................................................................................191
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Division 2—Managing wetlands of international importance 193
Subdivision A—Simplified outline of this Division 193
325 Simplified outline of this Division ................................193
Subdivision B—Seeking agreement on Ramsar designation 194
326 Commonwealth must seek agreement before
designation ....................................................................194
Subdivision C—Notice of designation of wetland 194
327 Minister must give notice of designation of
wetland etc. ...................................................................194
Subdivision D—Plans for listed wetlands in Commonwealth areas 195
328 Making plans.................................................................195
329 Notice of plans ..............................................................196
330 Commonwealth compliance with plans.........................196
331 Review of plans every 5 years .......................................197
Subdivision E—Management of wetlands in States and
self-governing Territories 197
332 Application....................................................................197
333 Co-operating to prepare and implement plans ...............198
334 Commonwealth responsibilities ....................................198
Subdivision F—Australian Ramsar management principles 198
335 Australian Ramsar management principles ...................198
Subdivision G—Assistance for protecting wetlands 199
336 Commonwealth assistance for protecting declared
Ramsar wetlands ...........................................................199
Division 3—Managing Biosphere reserves 200
337 Definition of Biosphere reserve ....................................200
338 Planning for management of Biosphere reserves...........200
339 Commonwealth activities in Biosphere reserves ...........200
340 Australian Biosphere reserve management
principles .......................................................................201
341 Commonwealth assistance for protecting
Biosphere reserves.........................................................201
Division 3A—Managing Commonwealth Heritage places 202
Subdivision A—Preliminary 202
341A Simplified outline of this Division ................................202
341B Extension to places etc. outside the Australian
jurisdiction.....................................................................202
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203Subdivision B—The Commonwealth Heritage List
341C The Commonwealth Heritage List ................................203
341D Meaning of Commonwealth Heritage values ................203
Subdivision BA—Inclusion of places in the Commonwealth
Heritage List: usual process 204
341E Simplified outline..........................................................204
341F Definitions.....................................................................205
341G Meaning of assessment period ......................................206
341H Minister to invite nominations for each assessment
period ............................................................................206
341J Minister to give nominations to Australian
Heritage Council ...........................................................207
341JA Australian Heritage Council to prepare proposed
priority assessment list ..................................................209
341JB Matters to be included in proposed priority
assessment list ...............................................................210
341JC Statement to be given to Minister with proposed
priority assessment list ..................................................210
341JD The finalised priority assessment list.............................211
341JE Publication of finalised priority assessment list.............212
341JF Australian Heritage Council to invite comments on
places in finalised priority assessment list .....................212
341JG Australian Heritage Council to assess places on
finalised priority assessment list and give
assessments to Minister .................................................213
341JH Time by which assessments to be provided to
Minister .........................................................................215
341JI Decision about inclusion of a place in the
Commonwealth Heritage List........................................216
Subdivision BB—Inclusion of places in the Commonwealth
Heritage List: emergency process 219
341JJ Simplified outline..........................................................219
341JK Minister may include place in Commonwealth
Heritage List if under threat ..........................................219
341JL Minister to ask Australian Heritage Council for
assessment .....................................................................221
341JM Publication of listing of place and inviting
comments ......................................................................221
341JN Australian Heritage Council to assess place and
give assessment to Minister...........................................222
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341JO Time by which assessments to be provided to
Minister .........................................................................223
341JP Decision about place remaining in the
Commonwealth Heritage List........................................223
Subdivision BC—Other provisions relating to the Commonwealth
Heritage List 227
341JQ Co-ordination with Scientific Committee—
Council undertaking assessment....................................227
341JR Co-ordination with Scientific Committee—
Council given assessment to Minister ...........................228
341K Listing process not affected by changing
boundaries of a place.....................................................229
341L Removal of places or Commonwealth Heritage
values from the Commonwealth Heritage List ..............229
341M Minister must consider advice of the Australian
Heritage Council and public comments.........................231
341N Specifying one or more additional Commonwealth
Heritage values for a Commonwealth Heritage
place ..............................................................................232
341P Commonwealth Heritage List must be publicly
available ........................................................................233
341Q Certain information may be kept confidential ...............233
341R Disclosure of Australian Heritage Council’s
assessments and advice .................................................234
Subdivision C—Management plans for Commonwealth Heritage
places 236
341S Management plans for Commonwealth Heritage
places.............................................................................236
341T Endorsing management plans for Commonwealth
Heritage places ..............................................................237
341U Restriction on ability to make plans ..............................238
341V Compliance with plans by the Commonwealth and
Commonwealth agencies...............................................238
341W Multiple plans in the same document ............................238
341X Review of plans at least every 5 years...........................239
Subdivision D—The Commonwealth Heritage management
principles 239
341Y Commonwealth Heritage management principles .........239
Subdivision E—Obligations of Commonwealth agencies 240
341Z Obligation to assist the Minister and the Australian
Heritage Council ...........................................................240
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341ZA Heritage strategies .........................................................240
341ZB Heritage assessments and registers................................241
341ZC Minimising adverse impact on heritage values..............242
341ZE Protecting Commonwealth Heritage values of
places sold or leased ......................................................242
Subdivision G—Assistance for protecting Commonwealth
Heritage places 244
341ZG Commonwealth assistance for protecting
Commonwealth Heritage places ....................................244
Subdivision H—Reviewing and reporting on the Commonwealth
Heritage List 244
341ZH Reviewing and reporting on the Commonwealth
Heritage List..................................................................244
Division 4—Commonwealth reserves 246
Subdivision A—Simplified outline of this Division 246
342 Simplified outline of this Division ................................246
Subdivision B—Declaring and revoking Commonwealth reserves 247
343 Simplified outline of this Subdivision ...........................247
344 Declaring Commonwealth reserves...............................247
345 Extent of Commonwealth reserve .................................249
345A Commonwealth usage rights vest in Director................249
346 Content of Proclamation declaring Commonwealth
reserve ...........................................................................250
347 Assigning Commonwealth reserves and zones to
IUCN categories ............................................................251
348 Australian IUCN reserve management principles .........251
350 Revocation and alteration of Commonwealth
reserves..........................................................................251
351 Report before making Proclamation..............................253
352 What happens to Director’s usage rights when
Commonwealth reserve is revoked................................254
Subdivision C—Activities in Commonwealth reserves 255
353 Simplified outline of this Subdivision ...........................255
354 Activities that may be carried on only under
management plan...........................................................256
354A Offences relating to activities that may only be
carried on under management plan................................257
355 Limits on mining operations in Commonwealth
reserves..........................................................................262
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355A Offence relating to mining operations ...........................264
356 Regulations controlling activities relating to
Commonwealth reserves ...............................................266
356A Charges for activities in Commonwealth reserves.........268
357 Managing Commonwealth reserves while a
management plan is not in operation .............................269
358 Restriction on disposal of Director’s interests in
Commonwealth reserves ...............................................270
359 Prior usage rights relating to Commonwealth
reserves continue to have effect.....................................271
359A Traditional use of Commonwealth reserves by
indigenous persons ........................................................272
359B Director’s approval of actions and mining
operations when a management plan is not in
operation........................................................................272
Subdivision D—Complying with management plans for
Commonwealth reserves 274
361 Simplified outline of this Subdivision ...........................274
362 Commonwealth and Commonwealth agencies to
comply with management plan for Commonwealth
reserve ...........................................................................275
363 Resolving disagreement between land council and
Director over implementation of plan............................275
364 Resolving disagreement between Director and
Board over implementation of plan ...............................277
Subdivision E—Approving management plans for
Commonwealth reserves 278
365 Simplified outline of this Subdivision ...........................278
366 Obligation to prepare management plans for
Commonwealth reserves ...............................................278
367 Content of a management plan for a
Commonwealth reserve .................................................279
368 Steps in preparing management plans for
Commonwealth reserves ...............................................282
369 Resolving disagreements between Director and
Board in planning process .............................................285
370 Approval of management plans for
Commonwealth reserves ...............................................286
371 Approved management plans are legislative
instruments ....................................................................287
372 Amendment and revocation of management plans
for Commonwealth reserves..........................................288
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373 Expiry of management plans for Commonwealth
reserves..........................................................................288
Subdivision F—Boards for Commonwealth reserves on
indigenous people’s land 288
374 Simplified outline of this Subdivision ...........................288
375 Application....................................................................289
376 Functions of a Board for a Commonwealth reserve ......289
377 Minister must establish Board if land council or
traditional owners agree ................................................289
378 Altering the constitution of a Board or abolishing a
Board.............................................................................290
379 Appointment of Board members ...................................292
379A Fit and proper person.....................................................293
380 Terms and conditions ....................................................293
381 Remuneration ................................................................294
382 Termination of appointments of Board members ..........294
383 Procedure of a Board.....................................................296
Subdivision G—Special rules for some Commonwealth reserves in
the Northern Territory or Jervis Bay Territory 297
384 Simplified outline of this Subdivision ...........................297
385 Activities in Commonwealth reserve without
management plan...........................................................297
386 What are the Kakadu region and the Uluru region?......298
387 No mining operations in Kakadu National Park ............298
388 Establishment and development of townships in
the Kakadu region and Uluru region .............................299
389 Planning for townships..................................................299
390 Special rules to protect Aboriginal interests in
planning process............................................................300
390A Appointment of Northern Territory nominee to
Board.............................................................................302
Division 5—Conservation zones 304
390B Simplified outline of this Division ................................304
390C Object of this Division ..................................................304
390D Proclamation of conservation zones ..............................304
390E Regulating activities generally ......................................305
390F Charges for activities in conservation zones..................307
390G Other laws and regulations made for this Division........307
390H Prior usage rights relating to conservation zones
continue to have effect ..................................................308
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390J Revoking and altering conservation zones ....................309
Chapter 5A—The List of Overseas Places of Historic
Significance to Australia 310
Part 15A—The List of Overseas Places of Historic Significance
to Australia 310 390K The List of Overseas Places of Historic
Significance to Australia ...............................................310
390L Inclusion of places in the List of Overseas Places
of Historic Significance to Australia .............................310
390M Removal of places from the List of Overseas
Places of Historic Significance to Australia or
variation of statement of historic significance ...............311
390N Inviting comments from other Ministers before
taking action ..................................................................311
390P Minister may ask Australian Heritage Council for
advice etc.......................................................................311
390Q List of Overseas Places of Historic Significance to
Australia to be publicly available ..................................312
390R Disclosure of Australian Heritage Council’s
assessments and advice .................................................312
Chapter 5B—Declared commercial fishing activities 313
Part 15B—Declared commercial fishing activities 313
Division 1—Prohibition 313
390SA Civil penalty—declared commercial fishing
activities ........................................................................313
390SB Offence—declared commercial fishing activities..........313
Division 2—Declaring a commercial fishing activity 314
Subdivision A—What is a declared commercial fishing activity? 314
390SC What is a declared commercial fishing activity? ...........314
Subdivision B—Interim declaration 314
390SD Interim declaration ........................................................314
390SE Consultation ..................................................................316
Subdivision C—Final declaration 317
390SF Final declaration............................................................317
Subdivision D—Revoking declarations 318
390SG Revoking an interim or final declaration .......................318
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Division 3—Expert panel assessment of declared commercial
fishing activity 319
390SH Establishment of expert panel .......................................319
390SI Terms and conditions ....................................................320
390SJ Procedure for assessment ..............................................320
390SK Timing of the report ......................................................320
390SL Publication of the report ................................................320
Division 4—Sunsetting of this Part 321
390SM Sunsetting of this Part....................................................321
Chapter 6—Administration 322
Part 16—Precautionary principle and other considerations in
making decisions 322 391 Minister must consider precautionary principle in
making decisions ...........................................................322
Part 17—Enforcement 325
Division 1—Wardens, rangers and inspectors 325
Subdivision A—Wardens and rangers 325
392 Appointment of wardens and rangers ............................325
393 Arrangements for certain officers or employees to
exercise powers etc. of wardens or rangers ...................325
394 Wardens ex officio ........................................................326
395 Identity cards .................................................................326
Subdivision B—Inspectors 326
396 Appointment of inspectors ............................................326
397 Inspectors ex officio ......................................................327
398 Arrangements for State and Territory officers to be
inspectors.......................................................................327
399 Identity cards .................................................................328
Subdivision BA—Exercise of powers of authorised officers outside
the territorial sea 329
399A Powers to be exercised consistently with
UNCLOS.......................................................................329
Subdivision BB—Exercise of powers of authorised officers in
relation to Great Barrier Reef Marine Park 329
399B Certain powers to be exercised only by certain
authorised officers .........................................................329
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Subdivision C—Miscellaneous 330
400 Regulations may give wardens, rangers and
inspectors extra powers, functions and duties ...............330
401 Impersonating authorised officers and rangers ..............330
402 Offences against authorised officers and rangers ..........331
Division 2—Boarding of vessels etc. and access to premises 333
403 Boarding of vessels etc. by authorised officers .............333
404 Authorised officers to produce identification ................336
405 Access to premises ........................................................337
406 Powers of authorised officers ........................................338
406A Searches under paragraph 406(1)(ba) ............................340
406AA Taking things into possession........................................340
406B Thing taken into possession is not a thing seized ..........341
Division 3—Monitoring of compliance 342
407 Monitoring powers ........................................................342
407A Operation of electronic equipment at premises .............343
407B Compensation for damage to electronic equipment.......346
408 Monitoring searches with occupier’s consent................347
409 Monitoring warrants ......................................................349
409A Monitoring warrants by telephone or other
electronic means ............................................................350
409B Executing officer to be in possession of warrant ...........352
410 Details of monitoring warrant to be given to
occupier etc. ..................................................................353
411 Occupier entitled to be present during search................353
412 Announcement before entry ..........................................353
412A Other powers when on premises under monitoring
warrant ..........................................................................354
Division 4—Search warrants 355
413 When search warrants can be issued .............................355
414 Statements in warrants...................................................356
415 Powers of magistrate .....................................................358
416 Warrants by telephone or other electronic means..........359
417 The things that are authorised by a search warrant........361
418 Availability of assistance, and use of force, in
executing a warrant .......................................................363
418A Executing officer to be in possession of warrant ...........364
419 Details of warrant to be given to occupier etc. ..............364
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420 Specific powers available to person executing
warrant ..........................................................................365
421 Use of equipment to examine or process things ............365
422 Use of electronic equipment at premises .......................366
423 Compensation for damage to electronic equipment.......369
424 Copies of seized things to be provided ..........................369
425 Occupier entitled to be present during search................370
426 Receipts for things seized under warrant.......................370
427 Restrictions on personal searches ..................................371
428 When a thing is in the possession of a person ...............371
Division 6—Arrest and related matters 372
430 Powers of arrest .............................................................372
431 Power to conduct a frisk search of an arrested
person ............................................................................373
432 Power to conduct an ordinary search of an arrested
person ............................................................................373
433 Power to conduct search of arrested person’s
premises ........................................................................373
433A Interaction of this Division with Schedule 1 .................374
Division 6A—Provisions relating to detention of suspected
foreign offenders 375
433B Provisions relating to detention of suspected
foreign offenders ...........................................................375
Division 7—Miscellaneous provisions about searches, entry to
premises, warrants etc. 376
434 Conduct of ordinary searches and frisk searches ...........376
435 Announcement before entry ..........................................376
436 Offence of making false statements in warrants ............376
437 Offences relating to telephone warrants ........................376
438 Retention of things seized under Division 4 or 6...........377
440 Law relating to legal professional privilege not
affected..........................................................................378
441 Other laws about search, arrest etc. not affected ...........378
442 Persons to assist authorised officers ..............................378
Division 8—Power to search goods, baggage etc. 381
443 Power to search goods, baggage etc. .............................381
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Division 8A—Power to ask questions about specimens 383
443A Authorised officer may ask questions about the
nature or origin of specimens ........................................383
Division 9—Power to ask for names and addresses 385
444 Authorised person may ask for person’s name and
address...........................................................................385
Division 10—Seizure and forfeiture etc. 386
Subdivision AA—Seizure of specimens involved in a
contravention of Part 13A 386
444A Seizure of specimens involved in a contravention
of Part 13A ....................................................................386
444B Notice about seizure ......................................................386
444C Applications for return of specimen ..............................387
444D Court action for return of specimen...............................388
444E Consignment of specimen with consent of owner .........388
444G Retention of specimen ...................................................389
444H Forfeiture of specimen after end of retention
period ............................................................................390
Subdivision AB—Seizure of things (other than specimens involved
in a contravention of Part 13A) 391
445 Seizure of things (other than specimens involved
in a contravention of Part 13A) .....................................391
446 Retention of things seized under this Subdivision .........392
Subdivision AC—Direction to deliver seizable items 394
447 Direction to deliver seizable items ................................394
Subdivision B—Disposal of seized items 395
449 Immediate disposal of seized items ...............................395
449A Disposal of seized items if Secretary cannot locate
or identify person entitled etc. .......................................397
Subdivision BA—Release of seized items to owner etc. 398
449BA Release of seized items to owner etc. ............................398
449BB How this Part applies in relation to things released
conditionally..................................................................398
Subdivision C—Forfeiture of seized items 399
450 Court-ordered forfeiture: order by court dealing
with offence proceedings...............................................399
450A Court-ordered forfeiture: other situations ......................400
450B Forfeiture of seized items by consent etc. .....................401
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451 Dealings in forfeited items ............................................402
452 Delivery of forfeited items to the Commonwealth ........402
Subdivision F—Keeping of organisms or specimens that have
been seized 403
453 Keeping of organisms or specimens retained under
this Part .........................................................................403
454 Recovery of costs of storing or keeping organisms
or specimens..................................................................403
Subdivision G—Rescuing things 404
455 Rescuing things .............................................................404
456 Breaking or destroying things or documents to
prevent seizure etc. ........................................................404
Subdivision H—Seizure of cages or containers 405
456AA Power to seize cages or containers containing
seizable things ...............................................................405
456AB Retention of seized cage or container ............................405
456AC Retention of non-seizable things contained in
seized cages or containers .............................................406
Division 12—Environmental audits 408
458 Directed environmental audits.......................................408
459 Appointment of auditor and carrying out of audit .........409
460 Nature of directed environmental audit .........................409
461 Audit reports..................................................................410
462 Directed environmental audits do not affect other
audit obligations ............................................................411
Division 13—Conservation orders 412
Subdivision A—Simplified outline 412
463 Simplified outline of this Division ................................412
Subdivision B—Making and reviewing conservation orders 412
464 Minister may make conservation orders........................412
465 Duration of conservation orders ....................................413
466 Reviews of conservation orders.....................................414
467 Publication of conservation orders ................................414
468 Application for reconsideration of conservation
orders or decisions on review ........................................415
469 Reconsideration of conservation orders and
decisions on review .......................................................416
Subdivision C—Complying with conservation orders 417
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470 Contravening conservation orders is an offence ............417
471 Minister to consider proposed actions etc......................417
472 Contents of notices of advice ........................................418
473 Review by the Administrative Appeals Tribunal...........418
474 Assistance in complying with conservation orders........418
Division 14—Injunctions 420
475 Injunctions for contravention of the Act........................420
476 Injunctions for contraventions of conservation
agreements.....................................................................422
477 Discharge of injunctions................................................423
479 Certain considerations for granting injunctions not
relevant..........................................................................423
480 Powers conferred are in addition to other powers
of the Court ...................................................................424
Division 14A—Federal Court’s power to make remediation
orders 425
480A Remediation orders........................................................425
480B Discharge of remediation orders....................................426
480C Powers conferred are in addition to other powers
of the Court ...................................................................426
Division 14B—Minister’s power to make remediation
determinations 427
Subdivision A—Making of remediation determinations 427
480D Minister may make remediation determination .............427
480E Contents of a remediation determination.......................427
480F Notifying owners and occupiers of land of
proposed remediation determination .............................428
480G Notifying that remediation determination has been
made ..............................................................................429
480H Duration of remediation determinations ........................429
480J Ministerial reconsideration of remediation
determinations ...............................................................429
Subdivision B—Federal Court may set aside remediation
determination 430
480K Applying to Federal Court to have remediation
determination set aside ..................................................430
Subdivision C—Complying with remediation determinations 431
480L Federal Court may order compliance with
remediation determination.............................................431
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480M Civil penalty for contravention of remediation
determination.................................................................432
Subdivision D—Variation or revocation of remediation
determinations 432
480N Variation or revocation of remediation
determination.................................................................432
Division 15—Civil penalties 433
Subdivision A—Obtaining an order for a civil penalty 433
481 Federal Court may order person to pay pecuniary
penalty for contravening civil penalty provision ...........433
482 What is a civil penalty provision?..................................434
483 Contravening a civil penalty provision is not an
offence...........................................................................434
484 Persons involved in contravening civil penalty
provision........................................................................434
485 Recovery of a pecuniary penalty ...................................435
Subdivision B—Civil penalty proceedings and criminal
proceedings 435
486A Civil proceedings after criminal proceedings ................435
486B Criminal proceedings during civil proceedings .............435
486C Criminal proceedings after civil proceedings ................435
486D Evidence given in proceedings for penalty not
admissible in criminal proceedings ...............................436
Subdivision C—Enforceable undertakings relating to
contraventions of Part 3 civil penalty provisions 436
486DA Acceptance of undertakings relating to
contraventions of Part 3 civil penalty provisions...........436
486DB Enforcement of undertakings ........................................437
Division 15A—Notices to produce or attend 438
486E Application of Division .................................................438
486F Minister may require person to provide
information etc. .............................................................438
486G Minister may require person to appear before
Minister .........................................................................439
486H Persons to whom notices may not be given ...................440
486J Self-incrimination..........................................................440
Division 16—Review of administrative decisions 442
487 Extended standing for judicial review ...........................442
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488 Applications on behalf of unincorporated
organisations .................................................................443
Division 17—Duty to provide accurate information 444
489 Providing false or misleading information to
obtain approval or permit ..............................................444
490 Providing false or misleading information in
response to a condition on an approval or permit ..........445
491 Providing false or misleading information to
authorised officer etc. ....................................................446
Division 18—Liability of executive officers for corporations 447
493 Who is an executive officer of a body corporate? ..........447
494 Civil penalties for executive officers of bodies
corporate........................................................................447
495 Criminal liability of executive officers of bodies
corporate........................................................................448
496 Did an executive officer take reasonable steps to
prevent contravention? ..................................................449
Division 18A—Liability of landholders for other people’s actions 451
496A Who is a landholder? ....................................................451
496B Civil penalties for landholders.......................................451
496C Criminal liability of landholders....................................451
496D Did a landholder take reasonable steps to prevent a
contravention? ...............................................................453
Division 19—Infringement notices 454
497 Infringement notices......................................................454
Division 20—Publicising contraventions 455
498 Minister may publicise contraventions of this Act
or the regulations...........................................................455
Division 21—Immunity of officers 456
498A Immunity of officers and assistants ...............................456
Division 22—Conduct of directors, employees and agents 457
498B Conduct of directors, employees and agents .................457
Part 18—Remedying environmental damage 460 499 Commonwealth powers to remedy environmental
damage ..........................................................................460
500 Liability for loss or damage caused by
contravention.................................................................461
501 Other powers not affected .............................................462
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Part 19—Organisations 463
Division 1—Establishment and functions of the Threatened
Species Scientific Committee 463
502 Establishment ................................................................463
503 Functions of the Committee ..........................................463
Division 2A—Indigenous Advisory Committee 464
505A Establishment ................................................................464
505B Functions of the Committee ..........................................464
Division 2B—Establishment and functions of the Independent
Expert Scientific Committee on Coal Seam Gas and
Large Coal Mining Development 465
505C Establishment ................................................................465
505D Functions of the Committee ..........................................466
505E Declared States and Territories......................................467
Division 3—Members and procedures of Committees 469
506 Application....................................................................469
507 Terms and conditions ....................................................469
508 Remuneration ................................................................469
509 Termination of appointments of Committee
members ........................................................................470
510 Procedure of a Committee .............................................471
Division 4—Advisory committees 473
511 Minister may establish advisory committees .................473
512 Appointments ................................................................473
513 Members of advisory committees..................................473
514 Committee procedure ....................................................474
Division 5—Director of National Parks 475
Subdivision A—Establishment, functions and powers 475
514A Continuation..................................................................475
514B Functions.......................................................................475
514C Powers ...........................................................................476
514D Requirements relating to functions and powers.............477
Subdivision B—Constitution of Director of National Parks 478
514E Constitution ...................................................................478
514F Appointment..................................................................478
514G Acting appointments......................................................479
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Subdivision C—Terms and conditions of appointment 479
514H Term of office................................................................479
514J Remuneration ................................................................479
514K Outside employment......................................................480
514M Leave of absence ...........................................................480
514N Resignation....................................................................480
514P Termination ...................................................................480
514Q Other terms and conditions............................................481
Subdivision D—Australian National Parks Fund 481
514R Australian National Parks Fund.....................................481
514S Payments to Australian National Parks Fund ................481
514T Application of money....................................................482
Subdivision E—Accountability 482
514U Application of Public Governance, Performance
and Accountability Act 2013 .........................................482
514V Extra matters to be included in annual report ................483
Subdivision F—Miscellaneous 483
514W Exemption from taxation...............................................483
514X Changes in office of Director ........................................483
Part 19A—Reconsideration of fees 484 514Y Applications for reconsideration of fee .........................484
514YA Reconsideration of fee...................................................484
514YB Deadline for reconsideration .........................................485
Part 20—Delegation 486 515 Delegation .....................................................................486
515AA Delegation by Minister in relation to Great Barrier
Reef Marine Park ..........................................................486
515AB Delegation by Secretary in relation to Great
Barrier Reef Marine Park ..............................................487
Part 20A—Publication of information on the internet 489 515A Publication of information on the internet .....................489
Part 21—Reporting 490
Division 1—Annual reports 490
516 Annual report on operation of Act.................................490
516A Annual reports to deal with environmental matters .......490
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Division 2—State of the environment reports 492
516B State of the environment reports....................................492
Chapter 7—Miscellaneous 493
Part 22—Miscellaneous 493 517 Determinations of species..............................................493
517A Exemption for activities that might harm particular
species introduced into particular areas .........................493
518 Non-compliance with time limits ..................................496
519 Compensation for acquisition of property .....................496
520 Regulations....................................................................497
520A Statements about the application of the Act ..................499
521 Fees and charges must not be taxes ...............................499
521A Time does not run if all or part of fee remains
unpaid............................................................................500
522 Financial assistance etc. to be paid out of
appropriated money.......................................................500
522A Review of operation of Act ...........................................501
Chapter 8—Definitions 502
Part 23—Definitions 502
Division 1—Some definitions relating to particular topics 502
Subdivision A—Actions 502
523 Actions...........................................................................502
524 Things that are not actions ............................................502
524A Provision of grant funding is not an action....................503
Subdivision B—Areas 503
525 Commonwealth areas ....................................................503
Subdivision C—Entities 505
526 Subsidiaries of bodies corporate....................................505
Subdivision D—Criminal law 505
527 Convictions ...................................................................505
Subdivision E—Specimens 505
527A Specimens .....................................................................505
527B Breeding in captivity .....................................................507
527C Artificial propagation ....................................................507
527D Things represented to be CITES specimens ..................507
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Subdivision F—Impacts 508
527E Meaning of impact ........................................................508
Division 2—General list of definitions 510
528 Definitions.....................................................................510
Schedule 1—Provisions relating to detention of
suspected foreign offenders 538
Part 1—Preliminary 538
Division 1—Objects of this Schedule 538
1 Main objects of this Schedule........................................538
Division 2—Definitions 540
2 Definitions.....................................................................540
Division 3—Appointment etc. of detention officers 541
3 Minister may appoint persons to be detention
officers ..........................................................................541
4 Detention officers subject to directions .........................541
5 Detention officer etc. not liable to certain actions .........541
Division 4—Approval of authorised officers and detention
officers 543
6 The Secretary may approve authorised officers and
detention officers...........................................................543
7 Persons who are authorised officers for purposes
of the Migration Act 1958 are taken to be
approved for this Schedule ............................................543
Part 2—Detaining suspected foreign offenders 546
Division 1—Initial detention by an authorised officer 546
8 Power to detain..............................................................546
9 Relationship with Part IC of the Crimes Act 1914.........546
Division 2—Continued detention by a detention officer 547
10 Detention officer may detain person already
detained by authorised officer .......................................547
Division 3—Detention on behalf of an authorised officer or
detention officer 548
11 Detention on behalf of an authorised officer or
detention officer ............................................................548
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Division 4—Moving detainees 549
12 Power to move detainees ...............................................549
Division 5—End of detention 550
13 End of detention ............................................................550
Division 6—Offence of escaping from detention 551
14 Escape from detention ...................................................551
Part 3—Searching and screening detainees and screening their
visitors 552
Division 1—Searches of detainees 552
15 Searches of detainees.....................................................552
Division 2—Screening of detainees 554
16 Power to conduct a screening procedure .......................554
Division 3—Strip searches of detainees 556
17 Power to conduct a strip search .....................................556
18 Rules for conducting a strip search................................558
Division 4—Keeping of things found by screening or strip search
of detainees 561
19 Possession and retention of certain things obtained
during a screening procedure or strip search .................561
20 Approved officer may apply for a thing to be
retained for a further period...........................................562
21 Magistrate may order that thing be retained ..................563
Division 5—Screening detainees’ visitors 564
22 Powers concerning entry to premises where
detainee is detained .......................................................564
Division 6—Law applying to detainee in State or Territory
prison etc. 566
23 Detainees held in State or Territory prisons or
remand centres...............................................................566
Part 4—Detainees’ rights to facilities for obtaining legal advice
etc. 567 24 Detainee may have access to certain advice,
facilities etc. ..................................................................567
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Part 5—Identifying detainees 568
Division 1—Preliminary 568
25 Definitions.....................................................................568
26 Meaning of personal identifier ......................................568
27 Limiting the types of identification tests that
approved officers may carry out ....................................570
Division 2—Identification of detainees 571
Subdivision A—Provision of personal identifiers 571
28 Detainees must provide personal identifiers ..................571
29 Approved officers must require and carry out
identification tests .........................................................572
30 Information to be provided before carrying out
identification tests .........................................................573
Subdivision B—How identification tests are carried out 573
31 General rules for carrying out identification tests..........573
32 Use of force in carrying out identification tests.............574
33 Identification tests not to be carried out in cruel,
inhuman or degrading manner etc. ................................576
34 Approved officer may get help to carry out
identification tests .........................................................576
35 Identification tests to be carried out by approved
officer of same sex as non-citizen .................................576
36 Independent person to be present ..................................577
37 Recording of identification tests....................................577
38 Retesting........................................................................577
Subdivision C—Obligations relating to video recordings of
identification tests 580
39 Definitions.....................................................................580
40 Accessing video recordings ...........................................581
41 Authorising access to video recordings .........................581
42 Providing video recordings............................................582
43 Unauthorised modification of video recordings ............584
44 Unauthorised impairment of video recordings ..............584
45 Meanings of unauthorised modification and
unauthorised impairment etc. ........................................584
46 Destroying video recordings..........................................585
Division 3—Identification of minors and incapable persons 586
47 Minors ...........................................................................586
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48 Incapable persons ..........................................................586
Division 4—Obligations relating to detainees’ identifying
information 588
Subdivision A—Preliminary 588
49 Definitions.....................................................................588
50 Application....................................................................589
Subdivision B—Accessing identifying information 589
51 Accessing identifying information ................................589
52 Authorising access to identifying information...............590
Subdivision C—Disclosing identifying information 591
53 Disclosing identifying information................................591
54 Authorising disclosure of identifying information
to foreign countries etc. .................................................593
Subdivision D—Modifying and impairing identifying information 594
55 Unauthorised modification of identifying
information....................................................................594
56 Unauthorised impairment of identifying
information....................................................................594
57 Meanings of unauthorised modification and
unauthorised impairment etc. ........................................595
Subdivision E—Retaining identifying information 595
58 Identifying information may be indefinitely
retained..........................................................................595
Part 6—Disclosure of detainees’ personal information 597 59 Disclosure of detainees’ personal information ..............597
Endnotes 598
Endnote 1—About the endnotes 598
Endnote 2—Abbreviation key 600
Endnote 3—Legislation history 601
Endnote 4—Amendment history 610
Endnote 5—Editorial changes 653
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Conservation of biodiversity and heritage Chapter 5
Species and communities Part 13
Conservation advice, recovery plans, threat abatement plans and wildlife conservation
plans Division 5
Section 266B
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
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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
Section 266B
(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.
Environment Protection and Biodiversity Conservation Act 1999
Compilation No. 52 Compilation date: 29/10/18 Registered: 9/11/18
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Section 267
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.
Environment Protection and Biodiversity Conservation Act 1999
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Division 5 Conservation advice, recovery plans, threat abatement plans and wildlife
conservation plans
Section 269
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.
Environment Protection and Biodiversity Conservation Act 1999
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Section 269AA
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
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conservation plans
Section 269AA
(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.
Environment Protection and Biodiversity Conservation Act 1999
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Section 269A
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.
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conservation plans
Section 269A
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.
Environment Protection and Biodiversity Conservation Act 1999
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Section 270
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
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Section 270
(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
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Section 270A
(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.
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Section 270A
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.
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Section 270B
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:
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conservation plans
Section 270B
(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.
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Section 271
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.
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Section 272
(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
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Section 274
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.
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Section 274
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
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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:
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(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.
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(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:
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(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:
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(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
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(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
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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
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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
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(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
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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
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(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.
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(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.
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(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.
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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.
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(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).
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Division 6 Access to biological resources
Section 301
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.
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Section 301A
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.
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Division 7 Aid for conservation of species in foreign countries
Section 302
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.
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Section 303
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.
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Section 303AA
(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).
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Section 303AB
(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.
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Division 1 Introduction
Section 303BA
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
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Section 303BB
(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.
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Section 303BC
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
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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.
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Section 303CA
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
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Section 303CB
(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
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(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.
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Section 303CD
(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
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(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).
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Section 303CE
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:
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(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);
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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):
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Specific conditions
Item Category of Action Specific conditions
specimen
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).
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.
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Specific conditions
Item Category of Action Specific conditions
specimen
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.
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Specific conditions
Item Category of Action Specific conditions
specimen
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).
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.
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Specific conditions
Item Category of Action Specific conditions
specimen
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;
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(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
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(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.
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Division 3 Exports of regulated native specimens
Section 303DA
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:
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(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
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(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.
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Section 303DD
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.
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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.
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(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
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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
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(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).
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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.
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Section 303EA
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 not inconsistent with the Biosecurity Act
2015.
(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
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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 is a CITES
specimen the introduction of which into Australia is not
inconsistent with the Biosecurity Act 2015.
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
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(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
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(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
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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
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(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.
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(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.
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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
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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;
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(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
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(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.
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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.
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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.
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303EW This Subdivision does not limit conditions of permits
This Subdivision does not limit section 303GE (which deals with
conditions of permits).
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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
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(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:
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(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
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(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
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(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
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(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.
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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).
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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.
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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:
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(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
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(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.
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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
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(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).
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(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
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(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.
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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);
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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:
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(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.
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(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.
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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
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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.
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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:
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(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.
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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).
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(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
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(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.
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(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
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(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
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(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
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(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
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(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.
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(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
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(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,
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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
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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
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(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
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(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:
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(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.
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(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
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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;
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(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.
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(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.
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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 Biosecurity Act 2015;
(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 Biosecurity Act 2015 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.
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(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 Biosecurity, 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
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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
Biosecurity Act 2015 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 biosecurity control under the
Biosecurity Act 2015 or 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).
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Section 303GX
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:
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(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
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(ii) the Customs (Prohibited Imports) Regulations.
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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)).
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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
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(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:
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(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
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(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.
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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:
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(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;
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(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;
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(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,
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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).
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(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.
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(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.
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(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.
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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.
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Section 313
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.
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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;
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(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.
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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.
317 Notice of plans
The Minister must give notice of the making of a plan under
section 316, in accordance with the regulations.
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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
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(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
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(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.
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(2) The giving of assistance may be made subject to such conditions as
the Minister thinks fit.
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Section 324A
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.
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Section 324C
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.
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(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
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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).
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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.
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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.
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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).
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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
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(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.
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(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).
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(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.
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(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.
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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.
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(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
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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
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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.
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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.
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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 324JN( �
(b) the Minister asks the Australian Heritage Council
to assess the place (see section 324JM);
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(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).
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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.
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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.
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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.
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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.
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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.
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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
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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:
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(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.
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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.
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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.
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(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.
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(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.
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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
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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
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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
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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.
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(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
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.
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.
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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.
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(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
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(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.
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(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
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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
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(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.
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Section 325
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.
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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;
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(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.
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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.
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
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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.
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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.
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(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.
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Section 337
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.
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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.
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Section 341A
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.
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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;
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(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
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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).
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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
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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).
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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.
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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
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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.
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(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.
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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
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(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.
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(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;
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(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.
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(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.
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(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.
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(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.
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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 341JN( �
(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:
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(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
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(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:
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(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
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(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:
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(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
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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.
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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;
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(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
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(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
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(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:
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(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);
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(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.
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(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
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(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.
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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
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(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.
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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.
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(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).
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(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
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.
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.
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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.
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(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
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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.
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(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.
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(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
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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
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(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.
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Section 342
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.
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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
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(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
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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:
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(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
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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.
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(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.
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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
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(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:
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(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.
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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.
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Section 354A
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:
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(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.
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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.
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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.
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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
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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.
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(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
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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.
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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.
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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
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(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
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(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:
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(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
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(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.
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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.
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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
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(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:
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(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:
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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
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(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.
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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
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(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.
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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:
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(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).
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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.
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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
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(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
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(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
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(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:
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(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.
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Section 371
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.
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Section 372
(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.
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Section 375
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
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Section 378
(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:
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(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.
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Section 379
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.
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Section 379A
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.
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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
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Section 382
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.
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Section 383
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.
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Section 384
(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.
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Section 386
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
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Section 388
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.
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Section 390
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:
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(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.
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Section 390A
(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).
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Section 390A
(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.
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Section 390B
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
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Section 390E
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
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Section 390E
(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:
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(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
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Division 5 Conservation zones
Section 390H
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.
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Section 390J
(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.
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Chapter 5A The List of Overseas Places of Historic Significance to Australia
Part 15A The List of Overseas Places of Historic Significance to Australia
Section 390K
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).
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Section 390M
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
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Section 390Q
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.
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Declared commercial fishing activities Chapter 5B
Declared commercial fishing activities Part 15B
Prohibition Division 1
Section 390SA
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.
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Chapter 5B Declared commercial fishing activities
Part 15B Declared commercial fishing activities
Division 2 Declaring a commercial fishing activity
Section 390SC
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:
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Declaring a commercial fishing activity Division 2
Section 390SD
(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.
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Chapter 5B Declared commercial fishing activities
Part 15B Declared commercial fishing activities
Division 2 Declaring a commercial fishing activity
Section 390SE
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.
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Declaring a commercial fishing activity Division 2
Section 390SF
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.
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Part 15B Declared commercial fishing activities
Division 2 Declaring a commercial fishing activity
Section 390SG
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.
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Declared commercial fishing activities Part 15B
Expert panel assessment of declared commercial fishing activity Division 3
Section 390SH
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.
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Chapter 5B Declared commercial fishing activities
Part 15B Declared commercial fishing activities
Division 3 Expert panel assessment of declared commercial fishing activity
Section 390SI
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.
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Declared commercial fishing activities Part 15B
Sunsetting of this Part Division 4
Section 390SM
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.
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Chapter 6 Administration
Part 16 Precautionary principle and other considerations in making decisions
Section 391
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
Section
decision is
Item 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
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Precautionary principle and other considerations in making decisions Part 16
Section 391
Decisions in which precautionary principle must be considered
Section
decision is
Item made under Nature of decision
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
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Part 16 Precautionary principle and other considerations in making decisions
Section 391
Decisions in which precautionary principle must be considered
Section
decision is
Item made under Nature of decision
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
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Section 392
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;
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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
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Section 397
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 biosecurity officer (within the meaning of the
Biosecurity Act 2015).
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;
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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.
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Section 399A
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:
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(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
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(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
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(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.
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Section 403
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
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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:
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(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.
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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;
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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.
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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
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(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
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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
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(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.
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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
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(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.
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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.
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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
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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
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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.
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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.
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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
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(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
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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.
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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.
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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.
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(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.
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Section 413
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
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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
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(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:
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(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.
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(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.
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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.
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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
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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;
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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:
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(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.
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(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.
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(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
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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:
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(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
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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
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(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.
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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.
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Division 6 Arrest and related matters
Section 430
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).
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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
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(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.
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Section 433B
Division 6A—Provisions relating to detention of suspected
foreign offenders
433B Provisions relating to detention of suspected foreign offenders
Schedule 1 has effect.
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Division 7 Miscellaneous provisions about searches, entry to premises, warrants etc.
Section 434
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:
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Section 438
(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
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Section 440
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
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(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
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(b) the officer is in uniform.
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Section 443
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.
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goods includes baggage.
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Section 443A
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
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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.
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Section 444
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.
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Section 444A
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
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(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.
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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
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(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).
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(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;
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(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
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(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).
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(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:
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(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 or
the Administrator of the Northern Territory 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
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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
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(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.
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(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.
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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.
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(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
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(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.
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(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.
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Section 451
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.
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Section 453
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.
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(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.
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Section 456AA
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.
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(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
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(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.
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Part 17 Enforcement
Division 12 Environmental audits
Section 458
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.
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Section 459
(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.
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Section 461
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:
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Section 462
(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.
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Part 17 Enforcement
Division 13 Conservation orders
Section 463
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.
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Section 465
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.
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Section 466
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
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(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
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Section 469
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.
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Section 470
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.
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Section 472
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:
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(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.
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Division 14 Injunctions
Section 475
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.
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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
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(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).
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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:
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Section 480
(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.
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Federal Court’s power to make remediation orders Division 14A
Section 480A
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.
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Division 14A Federal Court’s power to make remediation orders
Section 480B
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.
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Minister’s power to make remediation determinations Division 14B
Section 480D
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.
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Division 14B Minister’s power to make remediation determinations
Section 480F
(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
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Section 480G
(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.
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Section 480K
(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
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Section 480L
(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).
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Section 480M
(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.
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Civil penalties Division 15
Section 481
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.
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Division 15 Civil penalties
Section 482
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.
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Section 485
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.
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Division 15 Civil penalties
Section 486D
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.
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Section 486DB
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.
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Division 15A Notices to produce or attend
Section 486E
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 Chief Executive Officer 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:
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Section 486G
(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.
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Division 15A Notices to produce or attend
Section 486H
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
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Section 486J
(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.
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Division 16 Review of administrative decisions
Section 487
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
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Section 488
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.
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Division 17 Duty to provide accurate information
Section 489
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.
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Section 490
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.
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Division 17 Duty to provide accurate information
Section 491
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.
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Liability of executive officers for corporations Division 18
Section 493
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
approvan( � or
(ii) section 142 (condition of approvan( � 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.
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Division 18 Liability of executive officers for corporations
Section 495
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
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Section 496
(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
approvan( � 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
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Section 496
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.
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Liability of landholders for other people’s actions Division 18A
Section 496A
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:
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Division 18A Liability of landholders for other people’s actions
Section 496C
(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
approvan( � 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.
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Section 496D
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.
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Division 19 Infringement notices
Section 497
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.
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Publicising contraventions Division 20
Section 498
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.
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Division 21 Immunity of officers
Section 498A
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.
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Conduct of directors, employees and agents Division 22
Section 498B
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
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Division 22 Conduct of directors, employees and agents
Section 498B
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.
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Section 498B
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.
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Part 18 Remedying environmental damage
Section 499
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:
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Section 500
(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:
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Section 501
(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.
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Establishment and functions of the Threatened Species Scientific Committee Division
Section 502
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.
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Division 2A Indigenous Advisory Committee
Section 505A
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.
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Establishment and functions of the Independent Expert Scientific Committee on Coal
Seam Gas and Large Coal Mining Development Division 2B
Section 505C
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.
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Division 2B Establishment and functions of the Independent Expert Scientific
Committee on Coal Seam Gas and Large Coal Mining Development
Section 505D
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,
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Section 505E
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.
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Division 2B Establishment and functions of the Independent Expert Scientific
Committee on Coal Seam Gas and Large Coal Mining Development
Section 505E
(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.
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Members and procedures of Committees Division 3
Section 506
Division 3—Members and procedures of Committees
506 Application
This Division applies to the following Committees:
(a) the Threatened Species Scientific 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.
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Section 509
(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
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Section 510
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.
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Division 3 Members and procedures of Committees
Section 510
(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.
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Advisory committees Division 4
Section 511
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.
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Division 4 Advisory committees
Section 514
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.
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Director of National Parks Division 5
Section 514A
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
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Division 5 Director of National Parks
Section 514C
(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.
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Section 514D
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.
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
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Section 514E
(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
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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.
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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.
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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
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(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.
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(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.
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Part 19A Reconsideration of fees
Section 514Y
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
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(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.
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Part 20 Delegation
Section 515
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 Chief Executive Officer 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
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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 Chief Executive Officer 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:
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(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.
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Section 515A
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.
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Part 21 Reporting
Division 1 Annual reports
Section 516
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.
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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.
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Division 2 State of the environment reports
Section 516B
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.
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Miscellaneous Part 22
Section 517
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
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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
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(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.
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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.
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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;
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(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;
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(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
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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.
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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.
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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.
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(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 Biosecurity Act 2015;
(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 and airspace over the land;
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(b) an area of land held under lease by the Commonwealth or a
Commonwealth agency and airspace over the land;
(c) land in:
(i) an external Territory; 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).
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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.
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(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.
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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;
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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
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(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.
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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—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
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(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 tribunan( � 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 tribunan( � 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—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.
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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.
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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.
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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.
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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.
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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
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(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 tribunan( � or
(ii) an appointment made under a law of the
Commonwealth (except an appointment to a judicial
office or office of member of a tribunan( � 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;
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(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.
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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:
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(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.
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directed environmental audit has the meaning given by
subsection 460(4).
Director of Biosecurity has the same meaning as in the Biosecurity
Act 2015.
Director means the Director of National Parks referred to in
section 514A.
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.
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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
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(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.
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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.
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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.
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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).
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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.
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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.
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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
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(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
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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.
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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.
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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
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(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).
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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).
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Part 23 Definitions
Division 2 General list of definitions
Section 528
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
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Section 528
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).
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Schedule 1 Provisions relating to detention of suspected foreign offenders
Part 1 Preliminary
Division 1 Objects of this Schedule
Clause 1
Schedule 1—Provisions relating to detention
of suspected foreign offenders Note: See section 433B.
Part 1—Preliminary
Division 1—Objects of this Schedule
1 Main objects of this Schedule
(1) This Schedule has 3 main objects.
(2) The first main object is to provide for the detention (environment
detention) in Australia or a Territory of persons who:
(a) are reasonably suspected by an authorised officer of having
committed an offence:
(i) involving the use of a foreign vessel; or
(ii) in the Australian jurisdiction but outside the migration
zone; and
(b) are not Australian citizens or Australian residents;
for a limited period for the purposes of determining whether to
charge them with the offence.
(3) The second main object is to provide for persons in environment
detention to be searched, screened, given access to facilities for
obtaining legal advice, and identified.
(4) The third main object is to facilitate the transition of persons from
environment detention to immigration detention under the
Migration Act 1958:
(a) by providing for the things mentioned in subclause (3) to be
done in a way corresponding to the way that Act provides for
those things to be done to persons in immigration detention;
and
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Clause 1
(b) by authorising the disclosure of personal information about
individuals who are or have been in environment detention to
persons, agencies and organisations responsible for holding
the individuals in immigration detention, for the purpose of
the immigration detention and welfare of the individuals.
Note: The enforcement visa of a person who is neither an Australian citizen
nor an Australian resident ceases to have effect under the Migration
Act 1958 when the person ceases to be in environment detention, so
that Act requires the person to be taken into immigration detention.
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Division 2 Definitions
Clause 2
Division 2—Definitions
2 Definitions
In this Schedule, unless the contrary intention appears:
approved officer means:
(a) an authorised officer (other than a person who is an
authorised officer because of subsection 397(3)); or
(b) a detention officer;
who is approved under Division 4 for the purposes of the provision
in which the expression occurs.
Australian resident means:
(a) a person who holds a permanent visa (as defined in the
Migration Act 1958) that is in effect; or
(b) a New Zealand citizen who is usually resident in Australia or
a Territory and who holds a special category visa (as defined
in the Migration Act 1958) that is in effect; or
(c) any other person who is usually resident in Australia or a
Territory and whose continued presence in Australia or a
Territory is not subject to a limitation as to time imposed by
law.
authorised Migration Act officer means an authorised officer,
within the meaning of the Migration Act 1958.
detainee means a person detained under Part 2.
detention means detention under Part 2.
detention officer means a person appointed under clause 3 to be a
detention officer.
foreign vessel means a vessel that is not an Australian vessel.
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Preliminary Part 1
Appointment etc. of detention officers Division 3
Clause 3
Division 3—Appointment etc. of detention officers
3 Minister may appoint persons to be detention officers
(1) The Minister may, by instrument, appoint one or more persons
(except persons who are authorised officers) to be detention
officers.
Note: Authorised officers have the same powers as detention officers, as
well as other powers, so there is no reason for authorised officers to be
appointed as detention officers.
(2) An instrument appointing persons to be detention officers:
(a) may identify the persons by reference to a class; and
(b) may provide for persons to be appointed when they become
members of the class at or after a time specified in the
instrument.
4 Detention officers subject to directions
(1) A detention officer is, in the exercise of his or her powers, and the
performance of his or her duties, under this Schedule, subject to the
directions given by the Minister.
(2) A direction given by the Minister under subclause (1) is a
legislative instrument.
Note 1: Section 42 (disallowance) of the Legislation Act 2003 does not apply
to the direction. See regulations made for the purposes of
paragraph 44(2)(b) of that Act.
Note 2: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not
apply to the direction. See regulations made for the purposes of
paragraph 54(2)(b) of that Act.
5 Detention officer etc. not liable to certain actions
(1) A detention officer, or a person assisting a detention officer in the
exercise of powers under this Schedule or the regulations, is not
liable to an action, suit or proceeding for or in respect of anything
done in good faith or omitted to be done in good faith in the
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Division 3 Appointment etc. of detention officers
Clause 5
exercise or purported exercise of any power conferred by this
Schedule or by regulations made for the purposes of this Schedule.
Note: Section 498A makes similar provision for authorised officers and their
assistants.
(2) However, subclause (1) does not affect a contractual liability of a
detention officer or person assisting a detention officer.
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Preliminary Part 1
Approval of authorised officers and detention officers Division 4
Clause 6
Division 4—Approval of authorised officers and detention
officers
6 The Secretary may approve authorised officers and detention
officers
(1) The Secretary may, by instrument, approve one or more authorised
officers and/or detention officers for the purposes of a specified
provision of this Schedule, from among authorised officers and/or
detention officers who have successfully completed minimum
training prescribed by the regulations.
(2) An instrument approving authorised officers and/or detention
officers:
(a) may identify them by reference to a class; and
(b) may provide for them to be approved when they become
members of the class at or after a time specified in the
instrument.
7 Persons who are authorised officers for purposes of the Migration
Act 1958 are taken to be approved for this Schedule
(1) A person who:
(a) is an authorised officer or a detention officer; and
(b) is an authorised Migration Act officer for a provision of the
Migration Act 1958 listed in column 2 of an item of the table;
is, while he or she meets the conditions in paragraphs (a) and (b),
taken to be approved under clause 6 for the purposes of the
provision of this Schedule listed in column 3 of the item.
Corresponding provisions of the Migration Act 1958 and this Schedule
Column 1 Column 2 Column 3
Item Provision of the Migration Act Provision of this Schedule
1958
Subsection 252(4) Subclause 15(3)
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3
4
5
6
7
8
9
10
11
14
15
Schedule 1 Provisions relating to detention of suspected foreign offenders
Part 1 Preliminary
Division 4 Approval of authorised officers and detention officers
Clause 7
Corresponding provisions of the Migration Act 1958 and this Schedule
Column 1 Column 2 Column 3
Item Provision of the Migration Act Provision of this Schedule
1958
Paragraph 252(6)(a) Paragraph 15(5)(a)
Subparagraph 252(6)(b)(i) Subparagraph 15(5)(b)(i)
Subsection 252AA(1) Subclause 16(1)
Subsection 252A(1) Subclause 17(1)
Subsection 252C(1) Subclause 19(1)
Subsection 252D(2) Subclause 20(2)
Subsection 252G(3) Subclause 22(3)
Section 261AA Clause 28
Subsection 261AE(1) Subclause 32(1)
Subsection 261AE(3) Subclause 32(3)
12 Section 261AG Clause 34
13 Section 261AJ Clause 37
Subsection 261AK(1) (except Subclause 38(1) (except
paragraph (a)) paragraph (a))
Subsection 261AK(3) Subclause 38(3)
Limits on approval
(2) However, the person is not taken to be approved to carry out an
identification test in relation to which section 5D of the Migration
Act 1958 provides that the person is not an authorised officer (for
the purposes of that Act).
Note: This is relevant to items 9 to 15 of the table in subclause (1).
Persons specified by Secretary not approved
(3) The Secretary may, by instrument, specify that the person is not
taken to be approved:
(a) for the purposes of the provision of this Schedule; or
(b) for the purposes of carrying out under this
Schedule identification tests of a type specified under
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Clause 7
section 5D of the Migration Act 1958 in relation to the
person.
The instrument has effect according to its terms, despite
subclause (1).
(4) An instrument under subclause (3) may specify one or more
persons by reference to their being members of a specified class at
or after a time specified in the instrument.
(5) An instrument made under subclause (3) is not a legislative
instrument.
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Part 2 Detaining suspected foreign offenders
Division 1 Initial detention by an authorised officer
Clause 8
Part 2—Detaining suspected foreign offenders
Division 1—Initial detention by an authorised officer
8 Power to detain
(1) An authorised officer may detain a person in Australia or a
Territory for the purposes of determining during the period of
detention whether or not to charge the person with an offence
against an environmental law, or an offence against section 6 of the
Crimes Act 1914 relating to such an offence, if the authorised
officer has reasonable grounds to believe that the person:
(a) is not an Australian citizen or an Australian resident; and
(b) either or both of the following:
(i) was on a foreign vessel when it was used or otherwise
involved in the commission of the offence;
(ii) committed the offence in the Australian jurisdiction but
outside the migration zone.
(2) Subclause (1) does not authorise an authorised officer to use more
force in detaining a person than is reasonably necessary.
9 Relationship with Part IC of the Crimes Act 1914
(1) Part IC of the Crimes Act 1914 applies in relation to the detainee
while detained under this Part as if:
(a) he or she were a protected suspect for a Commonwealth
offence for the purposes of that Part; and
(b) an authorised officer were an investigating official for the
purposes of that Part.
(2) Subclause (1) does not affect the operation of Division 2 of Part IC
of the Crimes Act 1914 as it applies of its own force in relation to a
person who is lawfully arrested.
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Continued detention by a detention officer Division 2
Clause 10
Division 2—Continued detention by a detention officer
10 Detention officer may detain person already detained by
authorised officer
(1) For the purposes of facilitating an authorised officer determining
whether or not to charge a person with an offence against an
environmental law, or an offence against section 6 of the Crimes
Act 1914 relating to such an offence, a detention officer may detain
the person in Australia or a Territory if the detention officer has
reasonable grounds to believe that the person:
(a) has been detained by an authorised officer under Division 1;
and
(b) has been presented, while detained by that authorised officer,
to a detention officer for detention by a detention officer.
(2) However, the detention officer may not detain the person if the
detention officer has reasonable grounds to believe that the person
has ceased to be in detention since the last time the person was
detained by an authorised officer under Division 1.
(3) Subclause (1) does not authorise a detention officer to use more
force in detaining a person than is reasonably necessary.
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Part 2 Detaining suspected foreign offenders
Division 3 Detention on behalf of an authorised officer or detention officer
Clause 11
Division 3—Detention on behalf of an authorised officer or
detention officer
11 Detention on behalf of an authorised officer or detention officer
(1) A person is taken to be detained by an authorised officer or
detention officer under this Part while the person is held, on behalf
of the authorised officer or detention officer, in any of the
following:
(a) a prison or remand centre;
(b) a police station or watch house;
(c) a hospital or other place where the person is receiving
medical treatment;
(d) another place approved by the Minister in writing;
(e) a vessel.
(2) This clause has effect even while the authorised officer or
detention officer is not present where the person is held on behalf
of the authorised officer or detention officer.
(3) An approval of a place by the Minister is not a legislative
instrument.
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Moving detainees Division 4
Clause 12
Division 4—Moving detainees
12 Power to move detainees
(1) An authorised officer or detention officer may:
(a) take a detainee in Australia to another place in Australia or to
a place in an external Territory; and
(b) take a detainee in an external Territory to another place in the
Territory or to a place in Australia or another Territory.
(2) Subclause (1) does not authorise an authorised officer or detention
officer to use more force than is reasonably necessary to take the
detainee to the place.
(3) In exercising the power under subclause (1), the authorised officer
or detention officer must have regard to all matters that he or she
considers relevant, including:
(a) the administration of justice; and
(b) the welfare of the detainee.
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Part 2 Detaining suspected foreign offenders
Division 5 End of detention
Clause 13
Division 5—End of detention
13 End of detention
A detainee must be released from detention:
(a) as soon as an authorised officer or detention officer knows or
reasonably believes that the detainee is an Australian citizen
or an Australian resident; or
(b) at the time the detainee is brought before a magistrate
following a decision to charge the detainee with an offence
referred to in subclause 8(1); or
(c) at the time a decision is made not to charge the detainee with
an offence referred to in that subclause; or
(d) at the end of 168 hours after the detention began;
whichever occurs first.
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Detaining suspected foreign offenders Part 2
Offence of escaping from detention Division 6
Clause 14
Division 6—Offence of escaping from detention
14 Escape from detention
(1) A person commits an offence if:
(a) the person is in detention; and
(b) the person escapes from that detention.
(2) The offence is punishable on conviction by imprisonment for up to
2 years.
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Part 3 Searching and screening detainees and screening their visitors
Division 1 Searches of detainees
Clause 15
Part 3—Searching and screening detainees and
screening their visitors
Division 1—Searches of detainees
15 Searches of detainees
(1) For the purposes set out in subclause (2), a detainee, and the
detainee’s clothing and any property under the immediate control
of the detainee, may, without warrant, be searched.
(2) The purposes for which a detainee, and the detainee’s clothing and
any property under the immediate control of the detainee, may be
searched under this clause are as follows:
(a) to find out whether there is hidden on the detainee’s person,
in the clothing or in the property, a weapon or other thing
capable of being used to inflict bodily injury or to help the
detainee to escape from detention;
(b) to find out whether there is hidden on the detainee’s person,
in the clothing or in the property, a document or other thing
that is, or may be, evidence of:
(i) an offence against an environmental law; or
(ii) an offence against section 6 of the Crimes Act 1914
relating to an offence described in subparagraph (i).
(3) If, in the course of a search under this clause, a weapon or other
thing referred to in paragraph (2)(a), or a document or other thing
referred to in paragraph (2)(b), is found, an approved officer:
(a) may take possession of the weapon, document or other thing;
and
(b) may retain the weapon, document or other thing for such
time 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.
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Clause 15
(4) This clause does not authorise an approved officer, or another
person conducting a search pursuant to subclause (5), to remove
any of the detainee’s clothing, or to require a detainee to remove
any of his or her clothing.
(5) A search under this clause of a detainee, and the detainee’s
clothing, must be conducted by:
(a) an approved officer of the same sex as the detainee; or
(b) in a case where an approved officer of the same sex as the
detainee is not available to conduct the search—any other
person who is of the same sex and:
(i) is requested by an approved officer; and
(ii) agrees;
to conduct the search.
(6) An action or proceeding, whether civil or criminal, does not lie
against a person who, at the request of an approved officer,
conducts a search under this clause if the person acts in good faith
and does not contravene subclause (7).
(7) An approved officer or other person who conducts a search under
this clause must not use more force, or subject a detainee to greater
indignity, than is reasonably necessary in order to conduct the
search.
(8) To avoid doubt, a search of a detainee may be conducted under this
clause irrespective of whether a screening procedure is conducted
in relation to the detainee under clause 16 or a strip search of the
detainee is conducted under clause 17.
Note: This clause corresponds closely to section 252 of the Migration Act
1958.
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Part 3 Searching and screening detainees and screening their visitors
Division 2 Screening of detainees
Clause 16
Division 2—Screening of detainees
16 Power to conduct a screening procedure
(1) A screening procedure in relation to a detainee, other than a
detainee to whom clause 23 applies, may be conducted by an
approved officer, without warrant, to find out whether there is
hidden on the detainee, in his or her clothing or in a thing in his or
her possession a weapon, or other thing, capable of being used:
(a) to inflict bodily injury; or
(b) to help the detainee, or any other detainee, to escape from
detention.
(2) An approved officer who conducts a screening procedure under
this clause must not use greater force, or subject the detainee to
greater indignity, than is reasonably necessary in order to conduct
the screening procedure.
(3) This clause does not authorise an approved officer to remove any
of the detainee’s clothing, or to require a detainee to remove any of
his or her clothing.
(4) To avoid doubt, a screening procedure may be conducted in
relation to a detainee under this clause irrespective of whether a
search of the detainee is conducted under clause 15 or 17.
(5) In this clause:
conducting a screening procedure, in relation to a detainee,
means:
(a) causing the detainee to walk, or to be moved, through
screening equipment; or
(b) passing hand-held screening equipment over or around the
detainee or around things in the detainee’s possession; or
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Screening of detainees Division 2
Clause 16
(c) passing things in the detainee’s possession through screening
equipment or examining such things by X-ray.
screening equipment means a metal detector or similar device for
detecting objects or particular substances.
Note: This clause corresponds closely to section 252AA of the Migration
Act 1958.
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Division 3 Strip searches of detainees
Clause 17
Division 3—Strip searches of detainees
17 Power to conduct a strip search
(1) A strip search of a detainee, other than a detainee to whom
clause 23 applies, may be conducted by an approved officer,
without warrant, to find out whether there is hidden on the
detainee, in his or her clothing or in a thing in his or her possession
a weapon, or other thing, capable of being used:
(a) to inflict bodily injury; or
(b) to help the detainee, or any other detainee, to escape from
detention.
Note: Clause 18 sets out rules for conducting a strip search under this clause.
(2) A strip search of a detainee means a search of the detainee, of his
or her clothing or of a thing in his or her possession. It may
include:
(a) requiring the detainee to remove some or all of his or her
clothing; and
(b) an examination of that clothing and of the detainee’s body
(but not of the detainee’s body cavities).
(3) A strip search of a detainee may be conducted by an approved
officer only if:
(a) an authorised officer or detention officer suspects on
reasonable grounds that there is hidden on the detainee, in his
or her clothing or in a thing in his or her possession a weapon
or other thing described in subclause (1); and
(b) the authorised officer, or detention officer, referred to in
paragraph (a) suspects on reasonable grounds that it is
necessary to conduct a strip search of the detainee to recover
that weapon or other thing; and
(c) the strip search is authorised as follows:
(i) if the detainee is at least 18—the Secretary, the
Director, the Chief Executive Officer of the Great
Barrier Reef Marine Park Authority or an SES Band 3
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Clause 17
employee in the Department (who is not the authorised
officer referred to in paragraphs (a) and (b) nor the
approved officer conducting the strip search), authorises
the strip search because he or she is satisfied that there
are reasonable grounds for those suspicions;
(ii) if the detainee is at least 10 but under 18—a magistrate
orders the strip search because he or she is satisfied that
there are reasonable grounds for those suspicions.
(4) An authorised officer or detention officer may form a suspicion on
reasonable grounds for the purposes of paragraph (3)(a) on the
basis of:
(a) a search conducted under clause 15 (whether by that
authorised officer or detention officer or by another
authorised officer or detention officer); or
(b) a screening procedure conducted under clause 16 (whether by
that authorised officer or detention officer or by another
authorised officer or detention officer); or
(c) any other information that is available to the authorised
officer or detention officer.
(5) An authorisation of a strip search given for the purposes of
subparagraph (3)(c)(i):
(a) may be given by telephone, fax or other electronic means;
and
(b) must be recorded in writing, and signed by the person giving
the authorisation, within one business day after it is given.
(6) A record made under paragraph (5)(b) is not a legislative
instrument.
(7) A failure to comply with paragraph (5)(b) does not affect the
validity of a strip search conducted on the basis of that
authorisation.
(8) The power to authorise a strip search under subparagraph (3)(c)(i)
cannot be delegated to any other person.
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(9) A power conferred on a magistrate by this clause is conferred on
the magistrate in a personal capacity and not as a court or a
member of a court.
(10) The magistrate need not accept the power conferred.
(11) A magistrate exercising a power under this clause has the same
protection and immunity as if he or she were exercising that power
as, or as a member of, the court of which the magistrate is a
member.
(12) To avoid doubt, a strip search of a detainee may be conducted
under this clause irrespective of whether a search of the detainee is
conducted under clause 15 or a screening procedure is conducted in
relation to the detainee under clause 16.
(13) In this clause:
SES Band 3 employee means an SES employee with a
classification of Senior Executive Band 3, and includes an SES
employee who has been temporarily assigned duties that have been
allocated a classification of Senior Executive Band 3.
Note: This clause corresponds closely to section 252A of the Migration Act
1958.
18 Rules for conducting a strip search
(1) A strip search of a detainee under clause 17:
(a) must not subject the detainee to greater indignity than is
reasonably necessary to conduct the strip search; and
(b) must be conducted in a private area; and
(c) must be conducted by an approved officer of the same sex as
the detainee; and
(d) subject to subclauses (2), (3) and (5), must not be conducted
in the presence or view of a person who is of the opposite sex
to the detainee; and
(e) subject to subclauses (2), (3) and (5), must not be conducted
in the presence or view of a person whose presence is not
necessary for the purposes of the strip search; and
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(f) must not be conducted on a detainee who is under 10; and
(g) if the detainee is at least 10 but under 18, or is incapable of
managing his or her affairs—must be conducted in the
presence of:
(i) the detainee’s parent or guardian if that person is in
detention with the detainee and is readily available at
the same place; or
(ii) if that is not acceptable to the detainee or
subparagraph (i) does not apply—another person (other
than an approved officer) who is capable of representing
the detainee’s interests and who, as far as is practicable
in the circumstances, is acceptable to the detainee; and
(h) subject to subclause (4), if the detainee is at least 18, and is
not incapable of managing his or her affairs—must be
conducted in the presence of another person (if any)
nominated by the detainee, if that other person is readily
available at the same place as the detainee, and willing to
attend the strip search within a reasonable time; and
(i) must not involve a search of the detainee’s body cavities; and
(j) must not involve the removal of more items of clothing, or
more visual inspection, than the approved officer conducting
the search believes on reasonable grounds to be necessary to
determine whether there is hidden on the detainee, in his or
her clothing or in a thing in his or her possession a weapon or
other thing described in subclause 17(1); and
(k) must not be conducted with greater force than is reasonably
necessary to conduct the strip search.
(2) Paragraphs (1)(d) and (e) do not apply to a parent or guardian, or
person present because of subparagraph (1)(g)(ii), if the detainee
has no objection to that person being present.
(3) Paragraphs (1)(d) and (e) do not apply to a person nominated by
the detainee under paragraph (1)(h) to attend the strip search.
(4) Neither:
(a) a detainee’s refusal or failure to nominate a person under
paragraph (1)(h) within a reasonable time; nor
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(b) a detainee’s inability to nominate a person under that
paragraph who is readily available at the same place as the
detainee and willing to attend the strip search within a
reasonable time;
prevents a strip search being conducted.
(5) A strip search of a detainee may be conducted with the assistance
of another person if the approved officer conducting the strip
search considers that to be necessary for the purposes of
conducting it. That person must not be of the opposite sex to the
detainee unless:
(a) the person is a medical practitioner; and
(b) a medical practitioner of the same sex as the detainee is not
available within a reasonable time.
(6) An action or proceeding, whether civil or criminal, does not lie
against a person who, at the request of an approved officer, assists
in conducting a strip search if the person acts in good faith and
does not contravene this clause.
(7) A detainee must be provided with adequate clothing if during or as
a result of a strip search any of his or her clothing is:
(a) damaged or destroyed; or
(b) retained under clause 19.
Note: This clause corresponds closely to section 252B of the Migration Act
1958.
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Division 4—Keeping of things found by screening or strip
search of detainees
19 Possession and retention of certain things obtained during a
screening procedure or strip search
(1) An approved officer may take possession of and retain a thing
found in the course of conducting a screening procedure under
clause 16 or conducting a strip search under clause 17 if the thing:
(a) might provide evidence of the commission of an offence
against an environmental law, or an offence against section 6
of the Crimes Act 1914 relating to such an offence; or
(b) is forfeited or forfeitable to the Commonwealth.
(2) A weapon or other thing described in subclause 16(1) or 17(1) that
is found in the course of conducting a screening procedure under
clause 16 or a strip search under clause 17 is forfeited to the
Commonwealth.
(3) An approved officer must not return a thing that is forfeited or
forfeitable to the Commonwealth. Instead, the approved officer
must, as soon as practicable, give a thing that is forfeited under
subclause (2) to a constable (within the meaning of the Crimes Act
1914).
Note: See sections 450 and 451 of this Act, which deal with court-ordered
forfeiture and how forfeited items are to be dealt with.
(4) An approved officer must take reasonable steps to return anything
that is not forfeited or forfeitable but is retained under
subclause (1) to the person from whom it was taken, or to the
owner if that person is not entitled to possess it, if one of the
following happens:
(a) it is decided that the thing is not to be used in evidence;
(b) the period of 60 days after the approved officer takes
possession of the thing ends.
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(5) However, the approved officer does not have to take those steps if:
(a) in a paragraph (4)(b) case:
(i) proceedings in respect of which the thing might provide
evidence have been instituted before the end of the 60
day period and have not been completed (including an
appeal to a court in relation to those proceedings); or
(ii) the approved officer may retain the thing because of an
order under clause 21; or
(b) in any case—the approved officer is otherwise authorised (by
a law, or an order of a court or a tribunal, of the
Commonwealth or a State or Territory) to retain, destroy or
dispose of the thing.
Note: This clause corresponds closely to section 252C of the Migration Act
1958.
20 Approved officer may apply for a thing to be retained for a
further period
(1) This clause applies if an approved officer has taken possession of a
thing referred to in subclause 19(4) and proceedings in respect of
which the thing might provide evidence have not commenced
before the end of:
(a) 60 days after the approved officer takes possession of the
thing; or
(b) a period previously specified in an order of a magistrate
under clause 21.
(2) The approved officer may apply to a magistrate for an order that
the approved officer may retain the thing for a further period.
(3) Before making the application, the approved officer must:
(a) take reasonable steps to discover which persons’ interests
would be affected by the retention of the thing; and
(b) if it is practicable to do so, notify each person who the
approved officer believes to be such a person of the proposed
application.
(4) A notice under paragraph (3)(b) is not a legislative instrument.
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Note: This clause corresponds closely to section 252D of the Migration Act
1958.
21 Magistrate may order that thing be retained
(1) The magistrate may order that the approved officer who made an
application under clause 20 may retain the thing if the magistrate is
satisfied that it is necessary for the approved officer to do so:
(a) for the purposes of an investigation as to whether an offence
has been committed; or
(b) to enable evidence of an offence to be secured for the
purposes of a prosecution.
(2) The order must specify the period for which the approved officer
may retain the thing.
(3) A power conferred on a magistrate by this clause is conferred on
the magistrate in a personal capacity and not as a court or a
member of a court.
(4) The magistrate need not accept the power conferred.
(5) A magistrate exercising a power under this clause has the same
protection and immunity as if he or she were exercising that power
as, or as a member of, the court of which the magistrate is a
member.
Note: This clause corresponds closely to section 252E of the Migration Act
1958.
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Division 5—Screening detainees’ visitors
22 Powers concerning entry to premises where detainee is detained
(1) An authorised officer or detention officer may request that a person
about to enter premises where a detainee is in detention do one or
more of the following:
(a) walk through screening equipment;
(b) allow an authorised officer or detention officer to pass
hand-held screening equipment over or around the person or
around things in the person’s possession;
(c) allow things in the person’s possession to pass through
screening equipment or to be examined by X-ray.
(2) Screening equipment means a metal detector or similar device for
detecting objects or particular substances.
(3) If an approved officer suspects on reasonable grounds that a person
about to enter premises where a detainee is in detention has in the
person’s possession a thing that might:
(a) endanger the safety of the detainees, staff or other persons on
the premises; or
(b) disrupt the order or security arrangements on the premises;
the approved officer may request that the person do some or all of
the things in subclause (4) for the purpose of finding out whether
the person has such a thing. A request may be made whether or not
a request is also made to the person under subclause (1).
(4) An approved officer may request that the person do one or more of
the following:
(a) allow the approved officer to inspect the things in the
person’s possession;
(b) remove some or all of the person’s outer clothing such as a
coat, jacket or similar item;
(c) remove items from the pockets of the person’s clothing;
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(d) open a thing in the person’s possession, or remove the thing’s
contents, to allow the approved officer to inspect the thing or
its contents;
(e) leave a thing in the person’s possession, or some or all of its
contents, in a place specified by the approved officer if he or
she suspects on reasonable grounds that the thing or its
contents are capable of concealing something that might:
(i) endanger the safety of the detainees, staff or other
persons on the premises; or
(ii) disrupt the order or security arrangements on the
premises.
(5) A person who leaves a thing (including any of its contents) in a
place specified by an approved officer is entitled to its return when
the person leaves the premises.
(6) However, if possession of the thing, or any of those contents, by
the person is unlawful under a Commonwealth, State or Territory
law applying to the premises:
(a) the thing or the contents must not be returned to the person;
and
(b) an approved officer must, as soon as practicable, give the
thing or the contents to a constable (within the meaning of
the Crimes Act 1914).
(7) A person who is about to enter premises where a detainee is
detained may be refused entry if the person does not comply with a
request under this clause.
Note: This clause corresponds closely to section 252G of the Migration Act
1958.
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Clause 23
Division 6—Law applying to detainee in State or Territory
prison etc.
23 Detainees held in State or Territory prisons or remand centres
(1) This clause applies to a detainee if:
(a) the detainee is held in detention in a prison or remand centre
of a State or Territory; and
(b) a law of that State or Territory confers a power to search
persons, or things in the possession of persons, serving
sentences or being held in the prison or remand centre.
(2) To the extent that the State or Territory law confers that power, or
affects the exercise of that power, it applies to the detainee as
though it were a law of the Commonwealth.
(3) Clauses 16 and 17 do not apply to a detainee to whom this clause
applies.
Note: This clause corresponds closely to section 252F of the Migration Act
1958.
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Part 4—Detainees’ rights to facilities for obtaining
legal advice etc.
24 Detainee may have access to certain advice, facilities etc.
The person responsible for detention of a detainee must afford to
him or her all reasonable facilities for obtaining legal advice or
taking legal proceedings in relation to his or her detention.
Note: This clause corresponds to section 256 of the Migration Act 1958.
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Clause 25
Part 5—Identifying detainees
Division 1—Preliminary
25 Definitions
In this Part, unless the contrary intention appears:
identification test means a test carried out in order to obtain a
personal identifier.
incapable person means a person who is incapable of
understanding the general nature and effect of, and purposes of, a
requirement to provide a personal identifier.
independent person means a person (other than an authorised
officer, detention officer or approved officer) who:
(a) is capable of representing the interests of a non-citizen who is
providing, or is to provide, a personal identifier; and
(b) as far as practicable, is acceptable to the non-citizen who is
providing, or is to provide, the personal identifier; and
(c) if the non-citizen is a minor—is capable of representing the
minor’s best interests.
minor means a person who is less than 18 years old.
non-citizen means a person who is not an Australian citizen.
personal identifier has the meaning given by clause 26.
Note: The definitions of expressions in this clause correspond closely to
definitions of those expressions in section 5 of the Migration Act
1958.
26 Meaning of personal identifier
(1) In this Part:
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personal identifier means any of the following (including any of
the following in digital form):
(a) fingerprints or handprints of a person (including those taken
using paper and ink or digital livescanning technologies);
(b) a measurement of a person’s height and weight;
(c) a photograph or other image of a person’s face and shoulders;
(d) an audio or a video recording of a person (other than a video
recording under clause 37);
(e) an iris scan;
(f) a person’s signature;
(g) any other identifier prescribed by the regulations, other than
an identifier the obtaining of which would involve the
carrying out of an intimate forensic procedure within the
meaning of section 23WA of the Crimes Act 1914.
(2) Before the Governor-General makes regulations for the purposes of
paragraph (g) of the definition of personal identifier in
subclause (1) prescribing an identifier, the Minister must be
satisfied that:
(a) obtaining the identifier would not involve the carrying out of
an intimate forensic procedure within the meaning of
section 23WA of the Crimes Act 1914; and
(b) the identifier is an image of, or a measurement or recording
of, an external part of the body; and
(c) obtaining the identifier will promote one or more of the
purposes referred to in subclause (3).
(3) The purposes are:
(a) to assist in the identification of, and to authenticate the
identity of, any person who can be required under this
Schedule to provide a personal identifier; and
(b) to assist in identifying, in the future, any such person; and
(c) to enhance the ability to identify non-citizens who have a
criminal history in matters relating to the environment; and
(d) to combat document and identity fraud in matters relating to
the environment; and
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(e) to complement anti-people smuggling measures; and
(f) to inform the governments of foreign countries of the identity
of non-citizens who have been detained under, or charged
with offences against, an environmental law; and
(g) to facilitate international cooperation to combat activities that
involve a breach of the laws of Australia or of a foreign
country.
Note: This clause corresponds closely to section 5A of the Migration Act
1958.
27 Limiting the types of identification tests that approved officers
may carry out
(1) The Secretary may, in an instrument authorising an authorised
officer or detention officer as an approved officer for the purposes
of carrying out identification tests under this Part, specify the types
of identification tests that the approved officer may carry out.
(2) Such an approved officer is not an approved officer in relation to
carrying out an identification test that is not of a type so specified.
Note: This clause corresponds closely to section 5D of the Migration Act
1958.
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Division 2—Identification of detainees
Subdivision A—Provision of personal identifiers
28 Detainees must provide personal identifiers
(1) A non-citizen in detention must (other than in the prescribed
circumstances) provide to an approved officer one or more
personal identifiers.
Note: A person who is an Australian citizen, or is a non-citizen but an
Australian resident, may be in detention but must be released as soon
as an authorised officer or detention officer knows or reasonably
believes the person is an Australian citizen or resident. See clause 13.
(2) An approved officer must not require, for the purposes of
subclause (1), a detainee to provide a personal identifier other than
any of the following (including any of the following in digital
form):
(a) fingerprints or handprints of the detainee (including those
taken using paper and ink or digital livescanning
technologies);
(b) a measurement of the detainee’s height and weight;
(c) a photograph or other image of the detainee’s face and
shoulders;
(d) the detainee’s signature;
(e) any other personal identifier of a type prescribed for the
purposes of this paragraph.
Note: Division 3 sets out further restrictions on the personal identifiers that
minors and incapable persons can be required to provide.
(3) The one or more personal identifiers are to be provided by way of
one or more identification tests carried out by the approved officer
in accordance with this Division.
Note 1: Subject to certain restrictions, clause 32 allows reasonable force to be
used to carry out identification tests under this Division.
Note 2: This clause corresponds closely to section 261AA of the Migration
Act 1958.
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29 Approved officers must require and carry out identification tests
(1) The approved officer must, other than in the circumstances
prescribed for the purposes of subclause 28(1):
(a) require the non-citizen to provide one or more personal
identifiers, of the type or types prescribed, by way of one or
more identification tests carried out by the approved officer;
and
(b) carry out the one or more identification tests on the
non-citizen.
(2) However:
(a) if the types of identification tests that the approved officer
may carry out are specified under clause 27—each
identification test must be of a type so specified; and
(b) each identification test must be carried out in accordance
with Subdivision B; and
(c) unless the approved officer has reasonable grounds to believe
that the non-citizen is not a minor or an incapable person—
each identification test must be carried out in accordance
with the additional requirements of Division 3.
Note: Subclauses (1) and (2) correspond closely to section 261AB of the
Migration Act 1958.
(3) If:
(a) the approved officer is authorised because of clause 7 (which
effectively treats as approved officers for the purposes of
certain provisions of this Schedule certain persons who are
authorised Migration Act officers for the purposes of certain
provisions of the Migration Act 1958); and
(b) an instrument under section 5D of that Act specifies the types
of identification test the authorised Migration Act officer
may carry out;
paragraph (2)(a) of this clause has effect as if the specified types
(except any specified under subclause 7(3) in relation to the
authorised Migration Act officer) had been specified under
clause 27.
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30 Information to be provided before carrying out identification
tests
(1) Before carrying out an identification test, the approved officer
must:
(a) inform the non-citizen that the non-citizen may ask that an
independent person be present while the identification test is
carried out and that the test be carried out by a person of the
same sex as the non-citizen; and
(b) inform the non-citizen of such other matters as are specified
in the regulations.
(2) For the purposes of subclause (1), the approved officer informs the
non-citizen of a matter if the approved officer informs the
non-citizen of the matter, through an interpreter if necessary, in a
language (including sign language or braille) in which the
non-citizen is able to communicate with reasonable fluency.
(3) The approved officer may comply with this clause by giving to the
non-citizen, in accordance with the regulations, a form setting out
the information specified in the regulations. However, the
information must be in a language (including braille) in which the
non-citizen is able to communicate with reasonable fluency.
(4) A form mentioned in subclause (3) is not a legislative instrument.
Note: This clause corresponds closely to section 261AC of the Migration
Act 1958.
Subdivision B—How identification tests are carried out
31 General rules for carrying out identification tests
An identification test under this Division:
(a) must be carried out in circumstances affording reasonable
privacy to the non-citizen; and
(b) if the non-citizen so requests and it is practicable to comply
with the request—must not be carried out in the presence or
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view of a person who is of the opposite sex to the
non-citizen; and
(c) must not be carried out in the presence or view of a person
whose presence is not necessary for the purposes of the
identification test or is not required or permitted by another
provision of this Schedule; and
(d) must not involve the removal of more clothing than is
necessary for carrying out the test; and
(e) must not involve more visual inspection than is necessary for
carrying out the test; and
(f) if the test is one of 2 or more identification tests to be carried
out on the non-citizen—must be carried out at the same time
as the other identification tests, if it is practicable to do so.
Note: This clause corresponds closely to section 261AD of the Migration
Act 1958.
32 Use of force in carrying out identification tests
When use of force is permitted
(1) Subject to subclause (2) and clause 33, an approved officer, or a
person authorised under clause 34 to help the approved officer,
may use reasonable force:
(a) to enable the identification test to be carried out; or
(b) to prevent the loss, destruction or contamination of any
personal identifier or any meaningful identifier derived from
the personal identifier.
However, this clause does not authorise the use of force against a
minor or an incapable person, or if the personal identifier in
question is a person’s signature.
(2) The approved officer or person must not use force unless:
(a) the non-citizen required to provide the personal identifier in
question has refused to allow the identification test to be
carried out; and
(b) all reasonable measures to carry out the identification test
without the use of force have been exhausted; and
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(c) the use of force in carrying out the identification test is
authorised under subclause (4).
Applications for authorisation to use force
(3) An approved officer may apply to a senior authorising officer (who
is not an approved officer referred to in subclause (1)) for an
authorisation to use force in carrying out the identification test.
Authorisation to use force
(4) The senior authorising officer may authorise the use of force in
carrying out the identification test if he or she is reasonably
satisfied that:
(a) the non-citizen required to provide the personal identifier in
question has refused to allow the identification test to be
carried out; and
(b) all reasonable measures to carry out the identification test
without the use of force have been exhausted.
(5) An authorisation under subclause (4):
(a) may be given by telephone, fax or other electronic means;
and
(b) must be recorded in writing, and signed by the person giving
the authorisation, within one business day after it is given.
(6) A record made under paragraph (5)(b) is not a legislative
instrument.
(7) A failure to comply with paragraph (5)(b) does not affect the
validity of an identification test carried out on the basis of that
authorisation.
(8) The power to give an authorisation under subclause (4) cannot be
delegated to any other person.
Definition
(9) In this clause:
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senior authorising officer means an authorised officer, or
detention officer, whom the Secretary has authorised, or who is
included in a class of authorised officers or detention officers
whom the Secretary has authorised, to perform the functions of a
senior authorising officer under this clause.
Note: This clause corresponds closely to section 261AE of the Migration Act
1958.
33 Identification tests not to be carried out in cruel, inhuman or
degrading manner etc.
For the purposes of this Schedule, the carrying out of the
identification test is not of itself taken:
(a) to be cruel, inhuman or degrading; or
(b) to be a failure to treat a person with humanity and with
respect for human dignity.
However, nothing in this Schedule authorises the carrying out of
the identification test in a cruel, inhuman or degrading manner, or
in a manner that fails to treat a person with humanity and with
respect for human dignity.
Note: This clause corresponds closely to section 261AF of the Migration Act
1958.
34 Approved officer may get help to carry out identification tests
An approved officer may ask another approved officer or an
authorised officer or detention officer to help him or her to carry
out the identification test, and the other person may give that help.
Note: This clause corresponds closely to section 261AG of the Migration
Act 1958.
35 Identification tests to be carried out by approved officer of same
sex as non-citizen
If the non-citizen requests that the identification test be carried out
by an approved officer of the same sex as the non-citizen, the test
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must only be carried out by an approved officer of the same sex as
the non-citizen.
Note: This clause corresponds closely to section 261AH of the Migration
Act 1958.
36 Independent person to be present
The identification test must be carried out in the presence of an
independent person if:
(a) force is used in carrying out the identification test; or
(b) both of the following apply:
(i) the non-citizen requests that an independent person be
present while the identification test is being carried out;
(ii) an independent person is readily available at the same
place as the non-citizen and is willing to attend the test
within a reasonable time.
Note: This clause corresponds closely to section 261AI of the Migration Act
1958.
37 Recording of identification tests
(1) An approved officer may video record the carrying out of the
identification test.
(2) If the carrying out of the identification test is not video recorded,
the approved officer may decide that the identification test must be
carried out in the presence of an independent person.
Note: This clause corresponds closely to section 261AJ of the Migration Act
1958.
38 Retesting
When retesting is permitted
(1) If:
(a) an approved officer has carried out an identification test (the
earlier test) on a non-citizen in accordance with this
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Division (including a test authorised under subclause (4));
and
(b) either:
(i) a personal identifier that is provided as a result of the
earlier test being carried out is unusable; or
(ii) an approved officer, authorised officer or detention
officer is not satisfied about the integrity of that
personal identifier;
the approved officer who carried out the earlier test or another
approved officer may require the non-citizen to provide the
personal identifier again, and may carry out the test again in
accordance with this Division, if:
(c) the requirement is made while the earlier test is being carried
out or immediately after it was carried out; or
(d) carrying out the test again is authorised under subclause (4).
(2) If the non-citizen is required under subclause (1) to provide the
personal identifier again, the non-citizen is taken, for the purposes
of this Division, not to have provided the personal identifier as a
result of the earlier test being carried out.
Applications for authorisation to retest
(3) An approved officer may apply for an authorisation to carry out the
test again. The application is to be made to:
(a) if the earlier test was not a test authorised under
subclause (4)—a senior authorising officer (who is not an
approved officer, authorised officer or detention officer
referred to in subclause (1)); or
(b) if the earlier test was a test authorised under subclause (4) by
a senior authorising officer—the Secretary, the Director, the
Chief Executive Officer of the Great Barrier Reef Marine
Park Authority or an SES Band 3 employee in the
Department (who is not an approved officer, authorised
officer or detention officer referred to in subclause (1)).
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Authorisation to retest
(4) The senior authorising officer, Secretary, Director, Chief Executive
Officer or SES Band 3 employee (as the case requires) may
authorise the test to be carried out again if:
(a) he or she is reasonably satisfied that the personal identifier
that is provided as a result of the earlier test being carried out
is unusable; or
(b) he or she is not reasonably satisfied about the integrity of that
personal identifier.
(5) An authorisation under subclause (4):
(a) may be given by telephone, fax or other electronic means;
and
(b) must be recorded in writing, and signed by the person giving
the authorisation, within one business day after it is given.
(6) A record made under paragraph (5)(b) is not a legislative
instrument.
(7) A failure to comply with paragraph (5)(b) does not affect the
validity of an identification test carried out on the basis of that
authorisation.
(8) The power to give an authorisation under subclause (4) cannot be
delegated to any other person.
Use of force
(9) An authorisation under subclause (4) does not authorise the use of
force in carrying out an identification test.
Note: See clause 32 on the use of force in carrying out identification tests.
Effect of refusing to authorise retesting
(10) If an application for an authorisation to carry out an identification
test again on a non-citizen is refused, the non-citizen is taken, for
the purposes of this Schedule, to have complied with any
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requirement under this Schedule to provide the personal identifier
in question.
Definitions
(11) In this clause:
senior authorising officer means an authorised officer, or
detention officer, who:
(a) has been authorised, or is included in a class of authorised
officers or detention officers who have been authorised, by
the Secretary to perform the functions of a senior authorising
officer under this clause; and
(b) is not the Secretary or an SES Band 3 employee in the
Department.
SES Band 3 employee means an SES employee with a
classification of Senior Executive Band 3, and includes an SES
employee who has been temporarily assigned duties that have been
allocated a classification of Senior Executive Band 3.
Note: This clause corresponds closely to section 261AK of the Migration
Act 1958.
Subdivision C—Obligations relating to video recordings of
identification tests
39 Definitions
In this Subdivision, unless the contrary intention appears:
permitted provision, of a video recording, has the meaning given
by subclause 42(2).
provide, in relation to a video recording, includes provide access to
the recording.
related document means a document that contains information,
derived from a video recording made under clause 37 or from a
copy of such a recording, from which the identity of the individual
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on whom the identification test in question was carried out is
apparent or can reasonably be ascertained.
video recording means a video recording made under clause 37 or
a copy of such a recording, and includes a related document.
Note: This clause corresponds closely to section 261AKA of the Migration
Act 1958.
40 Accessing video recordings
(1) A person commits an offence if:
(a) the person accesses a video recording; and
(b) the person is not authorised under clause 41 to access the
video recording for the purpose for which the person
accessed it.
Penalty: Imprisonment for 2 years.
(2) This clause does not apply if the access is through the provision of
a video recording that is a permitted provision.
Note 1: A defendant bears an evidential burden in relation to the matter in
subclause (2) (see subsection 13.3(3) of the Criminal Code).
Note 2: This clause corresponds closely to section 261AKB of the Migration
Act 1958.
41 Authorising access to video recordings
(1) The Secretary may, in writing, authorise a specified person, or any
person included in a specified class of persons, to access:
(a) all video recordings; or
(b) a specified video recording, or video recordings of a
specified kind.
(2) The Secretary must specify in an authorisation under this clause, as
the purpose or purposes for which access is authorised, one or
more of the following purposes:
(a) providing a video recording to another person in accordance
with this Subdivision;
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(b) administering or managing the storage of video recordings;
(c) making a video recording available to the person to whom it
relates;
(d) modifying related documents in order to correct errors or
ensure compliance with appropriate standards;
(e) any purpose connected with determining whether a civil or
criminal liability has arisen from a person carrying out or
helping to carry out an identification test under this Schedule;
(f) complying with laws of the Commonwealth or the States or
Territories;
(g) disclosing personal information under clause 59 (about
disclosure of information about a person who has been in
detention, for the purposes of the immigration detention or
removal of the person).
(3) However, the Secretary must not specify as a purpose for which
access is authorised a purpose that will include or involve the
purpose of:
(a) investigating an offence against a law of the Commonwealth
or a State or Territory (other than an offence involving
whether an identification test was carried out lawfully); or
(b) prosecuting a person for such an offence;
if the identifying information in question relates to a personal
identifier of a prescribed type.
Note: This clause corresponds closely to section 261AKC of the Migration
Act 1958.
42 Providing video recordings
(1) A person commits an offence if:
(a) the person’s conduct causes a video recording to be provided
to another person; and
(b) the provision of the recording is not a permitted provision of
the recording.
Penalty: Imprisonment for 2 years.
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(2) A permitted provision of a video recording is a provision of the
recording that:
(a) is for the purpose of administering or managing the storage
of video recordings; or
(b) is for the purpose of making the video recording in question
available to the non-citizen to whom it relates; or
(c) is for the purpose of a proceeding, before a court or tribunal,
relating to the non-citizen to whom the video recording in
question relates; or
(d) is for any purpose connected with determining whether a
civil or criminal liability has arisen from a person carrying
out or helping to carry out an identification test under this
Schedule; or
(e) is for the purpose of an investigation by the Information
Commissioner under the Privacy Act 1988 or the
Ombudsman relating to carrying out an identification test; or
(f) is made to a prescribed body or agency for the purpose of the
body or agency inquiring into the operation of provisions of
this Schedule relating to carrying out an identification test; or
(g) takes place with the written consent of the non-citizen to
whom the video recording in question relates; or
(h) is a disclosure authorised by clause 59 (about disclosure of
information about a person who has been in detention, for the
purposes of the immigration detention or removal of the
person).
(3) However, a provision of a video recording is not a permitted
provision of the recording if:
(a) it constitutes a disclosure of identifying information relating
to a personal identifier of a prescribed type; and
(b) it is for the purpose of:
(i) investigating an offence against a law of the
Commonwealth or a State or Territory (other than an
offence involving whether an identification test was
carried out lawfully); or
(ii) prosecuting a person for such an offence.
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Note: This clause corresponds closely to section 261AKD of the Migration
Act 1958.
43 Unauthorised modification of video recordings
A person commits an offence if:
(a) the person causes any unauthorised modification of a video
recording; and
(b) the person intends to cause the modification; and
(c) the person knows that the modification is unauthorised.
Penalty: Imprisonment for 2 years.
44 Unauthorised impairment of video recordings
A person commits an offence if:
(a) the person causes any unauthorised impairment of:
(i) the reliability of a video recording; or
(ii) the security of the storage of a video recording; or
(iii) the operation of a system by which a video recording is
stored; and
(b) the person intends to cause the impairment; and
(c) the person knows that the impairment is unauthorised.
Penalty: Imprisonment for 2 years.
45 Meanings of unauthorised modification and unauthorised
impairment etc.
(1) In this Subdivision:
(a) modification of a video recording; or
(b) impairment of the reliability of a video recording; or
(c) impairment of the security of the storage of a video
recording; or
(d) impairment of the operation of a system by which a video
recording is stored;
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by a person is unauthorised if the person is not entitled to cause
that modification or impairment.
(2) Any such modification or impairment caused by the person is not
unauthorised merely because he or she has an ulterior purpose for
causing it.
(3) For the purposes of an offence under this Subdivision, a person
causes any such unauthorised modification or impairment if the
person’s conduct substantially contributes to it.
(4) For the purposes of subclause (1), if:
(a) a person causes any modification or impairment of a kind
mentioned in that subclause; and
(b) the person does so under a warrant issued under the law of
the Commonwealth, a State or a Territory;
the person is entitled to cause that modification or impairment.
Note: This clause corresponds closely to section 261AKG of the Migration
Act 1958.
46 Destroying video recordings
A person commits an offence if:
(a) the person is the person who has day-to-day responsibility for
the system under which a video recording is stored; and
(b) the person fails physically to destroy the recording, and all
copies of the recording, within 10 years after it was made.
Penalty: Imprisonment for 2 years.
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Division 3—Identification of minors and incapable persons
47 Minors
Minors less than 15 years old
(1) A non-citizen who is less than 15 years old must not be required
under this Schedule to provide a personal identifier other than a
personal identifier consisting of:
(a) a measurement of the non-citizen’s height and weight; or
(b) the non-citizen’s photograph or other image of the
non-citizen’s face and shoulders.
Persons present while identification test is carried out
(2) If a non-citizen who is a minor provides a personal identifier, in
accordance with a requirement under this Schedule, by way of an
identification test carried out by an approved officer, the test must
be carried out in the presence of:
(a) a parent or guardian of the minor; or
(b) an independent person.
(3) However, if the Minister administering the Immigration
(Guardianship of Children) Act 1946 is the guardian of the minor,
the test must be carried out in the presence of an independent
person other than that Minister.
Note: This clause corresponds closely to subsections 261AL(1), (5) and (6)
of the Migration Act 1958.
48 Incapable persons
Incapable persons
(1) A non-citizen who is an incapable person must not be required
under this Schedule to provide a personal identifier other than a
personal identifier consisting of:
(a) a measurement of the non-citizen’s height and weight; or
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(b) the non-citizen’s photograph or other image of the
non-citizen’s face and shoulders.
Persons present while identification test is carried out
(2) If a non-citizen who is an incapable person provides a personal
identifier, in accordance with a requirement under this Schedule,
by way of an identification test carried out by an approved officer,
the test must be carried out in the presence of:
(a) a parent or guardian of the incapable person; or
(b) an independent person.
Note: This clause corresponds closely to subsections 261AM(1) and (4) of
the Migration Act 1958.
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Division 4—Obligations relating to detainees’ identifying
information
Subdivision A—Preliminary
49 Definitions
In this Division:
disclose, in relation to identifying information that is a personal
identifier provided under clause 28, includes provide unauthorised
access to the personal identifier.
Note: Clause 52 deals with authorised access to identifying information.
identifying information means the following:
(a) any personal identifier provided under clause 28;
(b) any meaningful identifier derived from any such personal
identifier;
(c) any record of a result of analysing any such personal
identifier or any meaningful identifier derived from any such
personal identifier;
(d) any other information, derived from any such personal
identifier, from any meaningful identifier derived from any
such personal identifier or from any record of a kind referred
to in paragraph (c), that could be used to discover a particular
person’s identity or to get information about a particular
person.
permitted disclosure has the meaning given by subclauses 53(2)
and (3).
unauthorised impairment has the meaning given by clause 57.
unauthorised modification has the meaning given by clause 57.
Note: The definitions of expressions in this clause correspond closely to
definitions of those expressions in section 336A of the Migration Act
1958.
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50 Application
Section 15.4 of the Criminal Code (extended geographical
jurisdiction—category D) applies to all offences against this
Division.
Note: This clause corresponds closely to section 336B of the Migration Act
1958.
Subdivision B—Accessing identifying information
51 Accessing identifying information
(1) A person commits an offence if:
(a) the person accesses identifying information; and
(b) the person is not authorised under clause 52 to access the
identifying information for the purpose for which the person
accessed it.
Penalty: Imprisonment for 2 years.
(1A) This clause does not apply if the person believes on reasonable
grounds that the access is necessary to prevent or lessen a serious
and imminent threat to the life or health of the person or of any
other person.
Note: A defendant bears an evidential burden in relation to the matter in
subclause (1A) (see subsection 13.3(3) of the Criminal Code).
(2) This clause does not apply if the access is through a disclosure that
is a permitted disclosure.
Note 1: A defendant bears an evidential burden in relation to the matter in
subclause (2) (see subsection 13.3(3) of the Criminal Code).
Note 2: This clause corresponds closely to section 336C of the Migration Act
1958.
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52 Authorising access to identifying information
(1) The Secretary may, in writing, authorise a specified person, or any
person included in a specified class of persons, to access
identifying information of the kind specified in the authorisation.
(2) The Secretary must specify in an authorisation under this clause, as
the purpose or purposes for which access is authorised, one or
more of the following purposes:
(a) one or more of the purposes set out in subclause 26(3);
(b) disclosing identifying information in accordance with this
Division;
(c) administering or managing the storage of identifying
information;
(d) making identifying information available to the person to
whom it relates;
(e) modifying identifying information to enable it to be matched
with other identifying information;
(f) modifying identifying information in order to correct errors
or ensure compliance with appropriate standards;
(g) the purposes of this Act;
(h) complying with laws of the Commonwealth or the States or
Territories;
(i) disclosing personal information under clause 59 (about
disclosure of information about a person who has been in
detention, for the purposes of the immigration detention or
removal of the person).
(3) However, the Secretary must not specify as a purpose for which
access is authorised a purpose that will include or involve the
purpose of:
(a) investigating an offence against a law of the Commonwealth
or a State or Territory; or
(b) prosecuting a person for such an offence;
if the identifying information in question relates to a personal
identifier of a prescribed type.
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Note: This clause corresponds closely to section 336D of the Migration Act
1958.
Subdivision C—Disclosing identifying information
53 Disclosing identifying information
(1) A person commits an offence if:
(a) the person’s conduct causes disclosure of identifying
information; and
(b) the disclosure is not a permitted disclosure.
Penalty: Imprisonment for 2 years.
(1A) This clause does not apply if the person believes on reasonable
grounds that the disclosure is necessary to prevent or lessen a
serious and imminent threat to the life or health of the person or of
any other person.
Note: A defendant bears an evidential burden in relation to the matter in
subclause (1A) (see subsection 13.3(3) of the Criminal Code).
(2) A permitted disclosure is a disclosure that:
(a) is for the purpose of data-matching in order to:
(i) identify, or authenticate the identity of, a person; or
(ii) facilitate the processing of persons entering or departing
from Australia; or
(iii) identify non-citizens who have a criminal history, who
are of character concern (as defined in the Migration
Act 1958) or who are of national security concern; or
(iv) combat document and identity fraud in immigration
matters; or
(v) ascertain whether an applicant for a protection visa had
sufficient opportunity to avail himself or herself of
protection before arriving in Australia; or
(vi) inform the governments of foreign countries of the
identity of non-citizens who are, or are to be, removed
from Australia; or
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(b) is for the purpose of administering or managing the storage
of identifying information; or
(c) is authorised under clause 54 and is for the purpose, or one or
more of the purposes, for which the disclosure is authorised;
or
(d) is for the purpose of making the identifying information in
question available to the person to whom it relates; or
(da) is to an agency of the Commonwealth or of a State or
Territory in order to verify that a person is an Australian
citizen or holds a visa of a particular class; or
(e) takes place under an arrangement entered into with an agency
of the Commonwealth, or with a State or Territory or an
agency of a State or Territory, for the exchange of identifying
information; or
(ea) is reasonably necessary for the enforcement of the criminal
law of the Commonwealth or of a State or Territory; or
(eb) is required by or under a law of the Commonwealth or of a
State or Territory; or
(f) is for the purpose of a proceeding, before a court or tribunal,
relating to the person to whom the identifying information in
question relates; or
(g) is for the purpose of an investigation by the Information
Commissioner or the Ombudsman relating to action taken by
the Department; or
(h) is made to a prescribed body or agency for the purpose of the
body or agency inquiring into the operation of provisions of
this Schedule relating to:
(i) carrying out an identification test; or
(ii) requiring the provision of a personal identifier; or
(ha) is a disclosure of an audio or a video recording for the
purposes of:
(i) this Act or the regulations; and
(ii) transcribing or translating the recording, or conducting
language analysis or accent analysis of the recording; or
(i) takes place with the written consent of the person to whom
the identifying information in question relates; or
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(j) is a disclosure authorised by clause 59 (about disclosure of
information about a person who has been in detention, for the
purposes of the immigration detention or removal of the
person).
(3) However, a disclosure is not a permitted disclosure if:
(a) it is a disclosure of identifying information relating to a
personal identifier of a prescribed type; and
(b) it is for the purpose of:
(i) investigating an offence against a law of the
Commonwealth or a State or Territory; or
(ii) prosecuting a person for such an offence.
Note: This clause corresponds closely to section 336E of the Migration Act
1958.
54 Authorising disclosure of identifying information to foreign
countries etc.
(1) The Secretary may, in writing, authorise a specified authorised
officer or detention officer, any authorised officer or detention
officer included in a specified class of authorised officers or
detention officers, or an Agency (as defined in the Public Service
Act 1999) prescribed by the regulations, to disclose identifying
information of the kind specified in the authorisation to one or
more of the following:
(a) one or more specified foreign countries;
(b) one or more specified bodies each of which is:
(i) a police force or police service of a foreign country; or
(ii) a law enforcement body of a foreign country; or
(iii) a border control body of a foreign country;
(c) one or more specified international organisations, or
specified organisations of foreign countries, that are
responsible for matters relating to the environment;
(d) one or more prescribed bodies of a foreign country, of the
Commonwealth or of a State or Territory;
(e) one or more prescribed international organisations.
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Schedule 1 Provisions relating to detention of suspected foreign offenders
Part 5 Identifying detainees
Division 4 Obligations relating to detainees’ identifying information
Clause 55
(2) The Secretary must specify in the authorisation, as the purpose or
purposes for which disclosure is authorised, one or more of the
purposes set out in subclause 26(3).
Note: This clause corresponds closely to subsections 336F(1) and (2) of the
Migration Act 1958.
Subdivision D—Modifying and impairing identifying
information
55 Unauthorised modification of identifying information
A person commits an offence if:
(a) the person causes any unauthorised modification of
identifying information; and
(b) the person intends to cause the modification; and
(c) the person knows that the modification is unauthorised.
Penalty: Imprisonment for 2 years.
Note: This clause corresponds closely to section 336G of the Migration Act
1958.
56 Unauthorised impairment of identifying information
A person commits an offence if:
(a) the person causes any unauthorised impairment of:
(i) the reliability of identifying information; or
(ii) the security of the storage of identifying information; or
(iii) the operation of a system by which identifying
information is stored; and
(b) the person intends to cause the impairment; and
(c) the person knows that the impairment is unauthorised.
Penalty: Imprisonment for 2 years.
Note: This clause corresponds closely to section 336H of the Migration Act
1958.
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Provisions relating to detention of suspected foreign offenders Schedule 1
Identifying detainees Part 5
Obligations relating to detainees’ identifying information Division 4
Clause 57
57 Meanings of unauthorised modification and unauthorised
impairment etc.
(1) In this Division:
(a) modification of identifying information; or
(b) impairment of the reliability of identifying information; or
(c) impairment of the security of the storage of identifying
information; or
(d) impairment of the operation of a system by which identifying
information is stored;
by a person is unauthorised if the person is not entitled to cause
that modification or impairment.
(2) Any such modification or impairment caused by the person is not
unauthorised merely because he or she has an ulterior purpose for
causing it.
(3) For the purposes of an offence under this Division, a person causes
any such unauthorised modification or impairment if the person’s
conduct substantially contributes to it.
(4) For the purposes of subclause (1), if:
(a) a person causes any modification or impairment of a kind
mentioned in that subclause; and
(b) the person does so under a warrant issued under the law of
the Commonwealth, a State or a Territory;
the person is entitled to cause that modification or impairment.
Note: This clause corresponds closely to section 336J of the Migration Act
1958.
Subdivision E—Retaining identifying information
58 Identifying information may be indefinitely retained
Identifying information may be indefinitely retained.
Note: This clause corresponds closely to paragraph 336L(1)(a) of the
Migration Act 1958, because under this Schedule identifying
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Part 5 Identifying detainees
Division 4 Obligations relating to detainees’ identifying information
Clause 58
information will always be about someone who is or has been in
detention.
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Provisions relating to detention of suspected foreign offenders Schedule 1
Disclosure of detainees’ personal information Part 6
Clause 59
Part 6—Disclosure of detainees’ personal
information
59 Disclosure of detainees’ personal information
(1) For the purposes described in subclause (2), an agency or
organisation that is or has been responsible for the detention of an
individual may disclose personal information about the individual
to an agency, or organisation, that is or will be responsible for:
(a) taking the individual into immigration detention; or
(b) keeping the individual in immigration detention; or
(c) causing the individual to be kept in immigration detention; or
(d) the removal of the individual.
(2) The purposes are:
(a) the immigration detention of the individual; and
(b) the removal of the individual; and
(c) the welfare of the individual while in immigration detention
or being removed.
(3) In this clause:
agency has the same meaning as in the Privacy Act 1988.
immigration detention has the same meaning as in the Migration
Act 1958.
organisation has the same meaning as in the Privacy Act 1988.
personal information has the same meaning as in the Privacy Act
1988.
removal has the same meaning as in the Migration Act 1958.
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Endnotes
Endnote 1—About the endnotes
Endnotes
Endnote 1—About the endnotes
The endnotes provide information about this compilation and the compiled law.
The following endnotes are included in every compilation:
Endnote 1—About the endnotes
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history
Abbreviation key—Endnote 2
The abbreviation key sets out abbreviations that may be used in the endnotes.
Legislation history and amendment history—Endnotes 3 and 4
Amending laws are annotated in the legislation history and amendment history.
The legislation history in endnote 3 provides information about each law that
has amended (or will amend) the compiled law. The information includes
commencement details for amending laws and details of any application, saving
or transitional provisions that are not included in this compilation.
The amendment history in endnote 4 provides information about amendments at
the provision (generally section or equivalent) level. It also includes information
about any provision of the compiled law that has been repealed in accordance
with a provision of the law.
Editorial changes
The Legislation Act 2003 authorises First Parliamentary Counsel to make
editorial and presentational changes to a compiled law in preparing a
compilation of the law for registration. The changes must not change the effect
of the law. Editorial changes take effect from the compilation registration date.
If the compilation includes editorial changes, the endnotes include a brief
outline of the changes in general terms. Full details of any changes can be
obtained from the Office of Parliamentary Counsel.
Misdescribed amendments
A misdescribed amendment is an amendment that does not accurately describe
the amendment to be made. If, despite the misdescription, the amendment can
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Endnote 1—About the endnotes
be given effect as intended, the amendment is incorporated into the compiled
law and the abbreviation “(md)” added to the details of the amendment included
in the amendment history.
If a misdescribed amendment cannot be given effect as intended, the
abbreviation “(md not incorp)” is added to the details of the amendment
included in the amendment history.
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Endnote 2—Abbreviation key
Endnote 2—Abbreviation key
ad = added or inserted o = order(s)
am = amended Ord = Ordinance
amdt = amendment orig = original
c = clause(s) par = paragraph(s)/subparagraph(s)
/sub-subparagraph(s)C[x] = Compilation No. x
Ch = Chapter(s) pres = present
def = definition(s) prev = previous
Dict = Dictionary (prev…) = previously
disallowed = disallowed by Parliament Pt = Part(s)
Div = Division(s) r = regulation(s)/rule(s)
ed = editorial change reloc = relocated
exp = expires/expired or ceases/ceased to have renum = renumbered
effect rep = repealed
F = Federal Register of Legislation rs = repealed and substituted
gaz = gazette s = section(s)/subsection(s)
LA = Legislation Act 2003 Sch = Schedule(s)
LIA = Legislative Instruments Act 2003 Sdiv = Subdivision(s)
(md) = misdescribed amendment can be given SLI = Select Legislative Instrument
effect SR = Statutory Rules
(md not incorp) = misdescribed amendment Sub-Ch = Sub-Chapter(s)
cannot be given effect SubPt = Subpart(s)
mod = modified/modification underlining = whole or part not
commenced or to be commencedNo. = Number(s)
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Endnote 3—Legislation history
Endnote 3—Legislation history
Act Number Assent Commencement Application,
and year saving and
transitional
provisions
Environment Protection 91, 1999 16 July 1999 16 July 2000 (s 2(2))
and Biodiversity
Conservation Act 1999
Environmental Reform 92, 1999 16 July 1999 Sch 8 and 9 (item 1): Sch 9 (item 1)
(Consequential 16 July 2000 (s 2(1))
Provisions) Act 1999
Public Employment 146, 1999 11 Nov 1999 Sch 1 (items 422, —
(Consequential and 423): 16 July 2000 (s
Transitional) 2(3))
Amendment Act 1999
Corporations (Repeals, 55, 2001 28 June 2001 s 4–14 and Sch 3 s 4–14
Consequentials and (item 172): 15 July
Transitionals) Act 2001 2001 (s 2(3))
Environment Protection 82, 2001 11 July 2001 Sch 1(items 1–82): 11 Sch 1 (items 70–
and Biodiversity Jan 2002 (s 2(3)) 82)
Conservation Sch 1 (items 83–86):
Amendment (Wildlife 11 July 2001 (s
Protection) Act 2001 2(1)(b))
Regional Forest 30, 2002 5 Apr 2002 Sch 1: 3 May 2002 —
Agreements Act 2002 (s 2(1) item 3)
Statute Law Revision 63, 2002 3 July 2002 Sch 1 (items 15, 16, —
Act 2002 18): 16 July 2000
(s 2(1) items 10, 11,
13)
Sch 1 (item 17): 11
Jan 2002 (s 2(1)
item 12)
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Endnote 3—Legislation history
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Crimes Legislation
Enhancement Act 2003
41, 2003 3 June 2003 Sch 3 (items 31, 32):
16 July 2000 (s 2(1)
item 21)
Sch 3 (item 42):
3 June 2003 (s 2(1)
item 1)
Sch 3 (item 42)
Australian Heritage 86, 2003 23 Sept 2003 Sch 1 (item 2): 1 Jan —
Council (Consequential 2004 (s 2(1) item 2)
and Transitional
Provisions) Act 2003
Environment and 88, 2003 23 Sept 2003 Sch 1 and 3: 1 Jan Sch 1 (items 8, 24,
Heritage Legislation 2004 (s 2(1) items 2, 4 25), Sch 3
Amendment Act (No. 1) and gaz 2003, No. (item 1) and Sch 4
2003 GN47) (item 1G)
Sch 2: awaiting Sch 3 (item 1A)
commencement (s 2(1)
item 3)
Remainder: 23 Sept
2003 (s 2(1) items 1,
5)
as amended by
Environment and 165, 2006 12 Dec 2006 Sch 1 (items 846, —
Heritage Legislation 847): 19 Feb 2007 (s
Amendment Act 2(1) item 15 and
(No. 1) 2006 F2007L00411)
Aboriginal and Torres
Strait Islander
Commission
Amendment Act 2005
32, 2005 22 Mar 2005 Sch 4 (item 23): 24
Mar 2005 (s 2(1)
item 4)
—
Administrative Appeals
Tribunal Amendment
Act 2005
38, 2005 1 Apr 2005 Sch 1 (item 207):
16 May 2005 (s 2(1)
item 6)
—
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Endnote 3—Legislation history
Act Number Assent Commencement Application,
and year saving and
transitional
provisions
Statute Law Revision
Act 2006
9, 2006 23 Mar 2006 Sch 1 (items 13–15):
16 July 2000 (s 2(1)
item 9)
—
Offshore Petroleum
(Repeals and
Consequential
Amendments) Act 2006
17, 2006 29 Mar 2006 Sch 2 (item 21): 1 July
2008 (s 2(1) item 2)
—
Corporations (Aboriginal
and Torres Strait
Islander) Consequential,
Transitional and Other
Measures Act 2006
125, 2006 4 Nov 2006 Sch 2 (item 97): 1 July
2007 (s 2(1) item 2)
—
Environment and 165, 2006 12 Dec 2006 Sch 1 (items 1–604, Sch 2
Heritage Legislation 606–762, 764–780,
Amendment Act (No. 1) 783–835): 19 Feb
2006 2007 (s 2(1) items 2–
4, 7–9)
Sch 1 (item 605):
1 Jan 2007 (s 2(1)
item 2)
Sch 1 (item 763):
15 Jan 2007 (s 2(1)
item 4)
Sch 1 (items 781,
782): awaiting
commencement (s 2(1)
items 5, 6)
Sch 2: 12 Dec 2006 (s
2(1) item 16)
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Endnote 3—Legislation history
Act Number Assent Commencement Application,
and year saving and
transitional
provisions
as amended by
Statute Law Revision
Act 2008
73, 2008 3 July 2008 Sch 2 (item 14): 19
Feb 2007 (s 2(1)
item 50)
Sch 2 (item 15): 12
Dec 2006 (s 2(1)
item 51)
—
Migration Legislation 63, 2007 15 Apr 2007 Sch 1 (items 1–15, 60, Sch 1 (items 60,
Amendment 61): 1 May 2007 61)
(Information and Other (s 2(1) item 2)
Measures) Act 2007
Statute Law Revision
Act 2008
73, 2008 3 July 2008 Sch 1 (items 21–26):
19 Feb 2007 (s 2(1)
items 13–18)
—
Offshore Petroleum
Amendment
(Greenhouse Gas
Storage) Act 2008
117, 2008 21 Nov 2008 Sch 3 (item 14): 22
Nov 2008 (s 2(1)
item 4)
—
Great Barrier Reef 125, 2008 25 Nov 2008 Sch 3 (items 1, 2): Sch 4 (items 42–
Marine Park and Other 26 Nov 2008 (s 2(1) 44)
Legislation Amendment item 2)
Act 2008 Sch 4 (items 1–37, 42–
44) and Sch 5
(items 1–87): 25 Nov
2009 (s 2(1) item 3)
Statute Law Revision 8, 2010 1 Mar 2010 Sch 1 (item 25) and —
Act 2010 Sch 5 (item 47): 1 Mar
2010 (s 2(1) items 2,
31)
Sch 5 (item 137): 1
Mar 2010 (s 2(1)
item 38)
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Endnote 3—Legislation history
Act Number Assent Commencement Application,
and year saving and
transitional
provisions
Freedom of Information 51, 2010 31 May 2010 Sch 5 (items 32, 33), Sch 7
Amendment (Reform) Sch 6 (items 43–48)
Act 2010 and Sch 7: 1 Nov 2010
(s 2(1) item 7)
Trade Practices 103, 2010 13 July 2010 Sch 6 (items 1, 55): —
Amendment (Australian 1 Jan 2011 (s 2(1)
Consumer Law) Act items 3, 5)
(No. 2) 2010
Environment Protection 107, 2010 14 July 2010 15 July 2010 (s 2) —
and Biodiversity
Conservation
Amendment
(Recreational Fishing for
Mako and Porbeagle
Sharks) Act 2010
Territories Law Reform
Act 2010
139, 2010 10 Dec 2010 Sch 1 (items 62–65):
11 Dec 2010 (s 2(1)
item 2)
—
Statute Law Revision
Act 2011
5, 2011 22 Mar 2011 Sch 7 (item 54):
19 Apr 2011 (s 2(1)
item 18)
—
Acts Interpretation 46, 2011 27 June 2011 Sch 2 (items 551–562) Sch 3 (items 10,
Amendment Act 2011 and Sch 3 (items 10, 11)
11): 27 Dec 2011
(s 2(1) items 3, 12)
Environment Protection 131, 2012 19 Sept 2012 19 Sept 2012 (s 2) —
and Biodiversity
Conservation
Amendment (Declared
Commercial Fishing
Activities) Act 2012
Environment Protection and Biodiversity Conservation Act 1999
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Endnote 3—Legislation history
Act Number Assent Commencement Application,
and year saving and
transitional
provisions
Statute Law Revision
Act 2012
136, 2012 22 Sept 2012 Sch 1 (item 50): 22
Sept 2012 (s 2(1)
item 2)
—
Environment Protection
and Biodiversity
Conservation
Amendment
(Independent Expert
Scientific Committee on
Coal Seam Gas and
Large Coal Mining
Development) Act 2012
145, 2012 24 Oct 2012 Sch 1: 9 Nov 2012
(s 2(1) item 2)
—
Financial Framework 8, 2013 14 Mar 2013 Sch 1 (items 3, 4): Sch 1 (item 4)
Legislation Amendment 15 Mar 2013 (s 2)
Act (No. 1) 2013
Maritime Powers 16, 2013 27 Mar 2013 Sch 2: 27 Mar 2014 —
(Consequential (s 2(1) item 2)
Amendments) Act 2013
Environment Protection
and Biodiversity
Conservation
Amendment Act 2013
60, 2013 21 June 2013 Sch 1: 22 June 2013
(s 2(1) item 2)
Sch 1 (items 19,
20, 22–25)
Aboriginal Land Rights
and Other Legislation
Amendment Act 2013
93, 2013 28 June 2013 Sch 1 (items 28–36):
29 June 2013 (s 2)
Sch 1 (items 35,
36)
Statute Law Revision 31, 2014 27 May 2014 Sch 1 (items 22–24) —
Act (No. 1) 2014 and Sch 4 (item 80):
24 June 2014 (s 2(1)
items 2, 9)
Environment Protection and Biodiversity Conservation Act 1999
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Endnote 3—Legislation history
Act Number Assent Commencement Application,
and year saving and
transitional
provisions
Public Governance, 62, 2014 30 June 2014 Sch 8 (items 144–156) Sch 14
Performance and and Sch 14: 1 July
Accountability 2014 (s 2(1) items 6,
(Consequential and 14)
Transitional Provisions)
Act 2014
as amended by
Public Governance 36, 2015 13 Apr 2015 Sch 2 (items 7–9) and Sch 7
and Resources Sch 7: 14 Apr 2015
Legislation (s 2)
Amendment Act
(No. 1) 2015
as amended by
Acts and 126, 2015 10 Sept 2015 Sch 1 (item 486): —
Instruments 5 Mar 2016 (s 2(1)
(Framework item 2)
Reform)
(Consequential
Provisions) Act
2015
Acts and Instruments 126, 2015 10 Sept 2015 Sch 1 (item 495): —
(Framework Reform) 5 Mar 2016 (s 2(1)
(Consequential item 2)
Provisions) Act 2015
Environment Protection 75, 2014 30 June 2014 Sch 1: 1 July 2014 Sch 1 (item 20)
and Biodiversity (s 2(1) item 2)
Conservation
Amendment (Cost
Recovery) Act 2014
Acts and Instruments 10, 2015 5 Mar 2015 Sch 3 (items 81–136, Sch 3 (items 348,
(Framework Reform) 348, 349): 5 Mar 2016 349)
Act 2015 (s 2(1) item 2)
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Endnote 3—Legislation history
Act Number Assent Commencement Application,
and year saving and
transitional
provisions
Environment Legislation 11, 2015 5 Mar 2015 Sch 2 (items 1–42): —
Amendment Act 2015 6 Mar 2015 (s 2)
Customs and Other 41, 2015 20 May 2015 Sch 5 (item 63) and Sch 9
Legislation Amendment Sch 9: 1 July 2015
(Australian Border (s 2(1) items 2, 7)
Force) Act 2015
as amended by
115, 2017 30 Oct 2017 Sch 1 (item 26): 1 July —
2015 (s 2(1) item 2)
Norfolk Island 59, 2015 26 May 2015 Sch 1 (items 102–105 Sch 1 (items 184–
Legislation Amendment Sch 2 (items 356– 203) and Sch 2
Act 2015 396): 18 June 2015 (items 356–396)
(s 2(1) items 2, 6)
Sch 1 (items 184–
203): 27 May 2015
(s 2(1) item 3)
Sch 2 (items 131–
137): 1 July 2016
(s 2(1) item 5)
as amended by
Territories Legislation 33, 2016 23 Mar 2016 Sch 2: 24 Mar 2016 —
Amendment Act 2016 (s 2(1) item 2)
Biosecurity 62, 2015 16 June 2015 Sch 3: 16 June 2015 Sch 3 and Sch 4
(Consequential (s 2(1) item 3)
Amendments and Sch 2 (items 11–21)
Transitional Provisions) and Sch 4: 16 June
Act 2015 2016 (s 2(1) items 2,
4)
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Endnote 3—Legislation history
Act Number Assent Commencement Application,
and year saving and
transitional
provisions
as amended by
Statute Update
(Winter 2017) Act
2017
93, 2017 23 Aug 2017 Sch 2 (item 9): 20 Sept
2017 (s 2(1) item 4)
—
Acts and Instruments
(Framework Reform)
(Consequential
Provisions) Act 2015
126, 2015 10 Sept 2015 Sch 1 (items 180–
199): 5 Mar 2016 (s
2(1) item 2)
—
Statute Law Revision
Act (No. 1) 2016
4, 2016 11 Feb 2016 Sch 4 (items 1, 147–
159, 373–383): 10 Mar
2016 (s 2(1) item 6)
—
Law and Justice 26, 2016 23 Mar 2016 Sch 1 (items 16, 34, Sch 1 (items 34,
Legislation Amendment 35): 1 May 2016 (s 35)
(Northern Territory 2(1) item 2)
Local Court) Act 2016
Omnibus Repeal Day 47, 2016 5 May 2016 Sch 2 (items 5–13): —
(Autumn 2015) Act 6 May 2016 (s 2(1)
2016 item 2)
Great Barrier Reef 12, 2018 5 Mar 2018 Sch 1 (items 39–49): Sch 1 (items 45–
Marine Park 29 Oct 2018 (s 2(1) 49)
Amendment (Authority item 2)
Governance and Other
Matters) Act 2018
Environment Protection and Biodiversity Conservation Act 1999
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Endnote 4—Amendment history
Endnote 4—Amendment history
Provision affected How affected
Chapter 1
Part 1
s 3 .................................................. am No 88, 2003
s 6 .................................................. ad No 165, 2006
s 7 .................................................. am No 165, 2006
s 9 .................................................. am No 86, 2003
Chapter 2
Part 2
s 11 ................................................ am No 125, 2008
Part 3
Division 1
Subdivision A
s 12 ................................................ am No 88, 2003
s 15A ............................................. am No 165, 2006; No 4, 2016
Subdivision AA
Subdivision AA ............................. ad No 88, 2003
s 15B ............................................. ad No 88, 2003
am No 165, 2006
s 15C ............................................. ad No 88, 2003
am No 165, 2006; No 4, 2016
Subdivision B
Subdivision C
Subdivision D
s 17B ............................................. am No 165, 2006; No 4, 2016
s 18A ............................................. am No 165, 2006; No 4, 2016
s 19 ................................................ am No 165, 2006
s 20A ............................................. am No 165, 2006; No 4, 2016
s 20B ............................................. ad No 165, 2006
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Endnote 4—Amendment history
Provision affected How affected
Subdivision E
s 22A ............................................. am No 165, 2006; No 4, 2016
Subdivision F
s 24 ................................................ am No 165, 2006
s 24A ............................................. am No 165, 2006; No 4, 2016
Subdivision FA
Subdivision FA.............................. ad No 125, 2008
s 24B ............................................. ad No 125, 2008
s 24C ............................................. ad No 125, 2008
Subdivision FB
Subdivision FB.............................. ad No 60, 2013
s 24D ............................................. ad No 60, 2013
s 24E.............................................. ad No 60, 2013
Subdivision H
Subdivision H................................ ad No 82, 2001
s 25A ............................................. ad No 82, 2001
am No 46, 2011; No 126, 2015
Subdivision HA
Subdivision HA ............................. ad No 165, 2006
s 25AA .......................................... ad No 165, 2006
am No 125, 2008; No 60, 2013
Subdivision I
Subdivision I ................................. ad No 82, 2001
s 25B ............................................. ad No 82, 2001
am No 165, 2006
s 25C ............................................. ad No 82, 2001
s 25D ............................................. ad No 82, 2001
am No 165, 2006
s 25E.............................................. ad No 82, 2001
s 25F.............................................. ad No 82, 2001
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Endnote 4—Amendment history
Provision affected How affected
Division 2
Subdivision A
s 26 ................................................ am No 88, 2003
s 27A ............................................. am No 88, 2003; No 165, 2006; No 4, 2016
Subdivision AA
Subdivision AA ............................. ad No 88, 2003
s 27B ............................................ ad No 88, 2003
s 27C ............................................ ad No 88, 2003
am No 165, 2006; No 4, 2016
Subdivision B
s 28 ................................................ am No 88, 2003; No 165, 2006
Subdivision C
Subdivision C ............................... ad No 88, 2003
s 28AA .......................................... ad No 88, 2003
am No 46, 2011; No 126, 2015
Subdivision D
Subdivision D................................ ad No 165, 2006
s 28AB .......................................... ad No 165, 2006
Division 3 ...................................... rep No 165, 2006
s 28A ............................................ rep No 165, 2006
Part 4
Division 1
s 29 ............................................... am No 165, 2006; No 125, 2008; No 60, 2013
s 30 ............................................... am No 125, 2008
s 31 ............................................... am No 165, 2006
Division 2
Division 2 heading......................... rs No 165, 2006
Subdivision A
s 32 ............................................... am No 165, 2006
Subdivision B
s 33 ............................................... am No 165, 2006
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Endnote 4—Amendment history
Provision affected How affected
s 34 ............................................... am No 88, 2003; No 125, 2008; No 60, 2013
Subdivision C
s 34B ............................................ am No 165, 2006
s 34BA .......................................... ad No 88, 2003
am No 165, 2006
s 34C ............................................ am No 165, 2006
s 34D ............................................. am No 165, 2006
s 34E ............................................. am No 165, 2006
s 34F ............................................. ad No 88, 2003
am No 165, 2006
Subdivision D
Subdivision A
Subdivision B
Subdivision C
s 35 ................................................ am No 165, 2006
s 36 ............................................... am No 165, 2006
s 36A ............................................ ad No 165, 2006
Division 3
Division 3 ...................................... ad No 165, 2006
s 37 ............................................... ad No 165, 2006
s 37A ............................................ ad No 165, 2006
s 37B ............................................. ad No 165, 2006
s 37C ............................................. ad No 165, 2006
s 37D ............................................ ad No 165, 2006
s 37E ............................................. ad No 165, 2006
s 37F ............................................. ad No 165, 2006
s 37G ............................................ ad No 165, 2006
s 37H ............................................. ad No 165, 2006
s 37J .............................................. ad No 165, 2006
Subdivision D
s 37K ............................................ ad No 165, 2006
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Endnote 4—Amendment history
Provision affected How affected
s 37L ............................................. ad No 165, 2006
Division 3A
Division 3A ................................... ad No 165, 2006
s 37M ............................................ ad No 165, 2006
Division 4
Subdivision A
s 38 ............................................... rs No 30, 2002
Subdivision B
s 40 ............................................... am No 30, 2002; No 10, 2015
Subdivision C
s 42 ............................................... am No 30, 2002
Division 5
s 43 ............................................... am No 125, 2008
Division 6
Division 6 ...................................... ad No 82, 2001
s 43A ............................................ ad No 82, 2001
am No 165, 2006
s 43B ............................................ ad No 82, 2001
am No 165, 2006
Chapter 3
Part 5
Division 2
Subdivision A
s 46 ............................................... am No 165, 2006; No 60, 2013
s 49 ............................................... am No 125, 2008
Subdivision B
s 51 ............................................... am No 165, 2006
s 51A ............................................ ad No 88, 2003
am No 165, 2006
s 52 ................................................ am No 165, 2006
s 53 ................................................ am No 165, 2006
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Endnote 4—Amendment history
Provision affected How affected
s 54 ................................................ am No 165, 2006
s 55 ................................................ am No 165, 2006
Subdivision C
Subdivision C ................................ ad No 165, 2006
s 56A ............................................ ad No 165, 2006
Division 3
Subdivision A
s 63 ................................................ am No 63, 2002
s 64 ............................................... am No 165, 2006
Subdivision B
s 65 ............................................... am No 165, 2006
s 65A ............................................ am No 165, 2006
Chapter 4
Part 6
s 66 ............................................... am No 165, 2006
Part 7
Division 1
s 67 ............................................... am No 165, 2006
s 67A ............................................ ad No 165, 2006
s 68 ............................................... am No 165, 2006
s 68A ............................................ ad No 165, 2006
s 70 ............................................... am No 82, 2001; No 165, 2006
s 71 ................................................ am No 165, 2006
s 72 ............................................... am No 165, 2006
s 73A ............................................ ad No 125, 2008
s 74 ............................................... am No 88, 2003; No 32, 2005; No 165, 2006; No 125, 2008; No 8,
2010
s 74A ............................................. ad No 88, 2003
s 74AA ......................................... ad No 165, 2006
Division 1A
Division 1A ................................... ad No 165, 2006
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Endnote 4—Amendment history
Provision affected How affected
s 74B ............................................. ad No 165, 2006
s 74C ............................................ ad No 165, 2006
s 74D ............................................. ad No 165, 2006
am No 8, 2010
Division 2
s 75 ................................................ am No 88, 2003; No 165, 2006; No 125, 2008; No 60, 2013
s 76 ............................................... am No 165, 2006
s 77 ................................................ am No 88, 2003
s 77A ............................................. ad No 88, 2003
am No 165, 2006
Division 3
Division 3 heading......................... ad No 165, 2006
s 78 ................................................ am No 88, 2003; No 165, 2006
s 78A ............................................. ad No 165, 2006
s 78B ............................................. ad No 165, 2006
am No 8, 2010
s 78C ............................................. ad No 165, 2006
s 79 ............................................... am No 165, 2006
Part 8
Division 1
s 80 ............................................... am No 165, 2006
Division 2
s 82 ............................................... am No 165, 2006; No 125, 2008; No 60, 2013
s 83 ............................................... am No 125, 2008
s 84 ............................................... am No 88, 2003
Division 3
Subdivision A
s 85 ............................................... am No 165, 2006
Subdivision B
s 86 ............................................... rep No 165, 2006
s 87 ................................................ am No 165, 2006
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Endnote 4—Amendment history
Provision affected How affected
s 88 ............................................... am No 165, 2006
s 89 ............................................... am No 165, 2006
s 91 ............................................... am No 165, 2006; No 75, 2014
Division 3A
Division 3A ................................... ad No 165, 2006
s 92 ................................................ rs No 165, 2006
s 93 ................................................ rs No 165, 2006
am No 8, 2010; No 51, 2010
Division 4
Division 4 ...................................... rs No 165, 2006
s 94, 95 ......................................... rs No 165, 2006
s 95A ............................................. ad No 165, 2006
s 95B ............................................. ad No 165, 2006
am No 75, 2014
s 95C ............................................. ad No 165, 2006
Division 5
s 96A, 96B .................................... ad No 165, 2006
s 97 ............................................... am No 165, 2006; No 125, 2008
s 98 ................................................ am No 165, 2006
s 99 ............................................... rs No 165, 2006
am No 75, 2014
s 100 .............................................. rs No 165, 2006
Division 6
s 101A .......................................... ad No 165, 2006
s 101B .......................................... ad No 165, 2006
s 102 .............................................. am No 165, 2006; No 125, 2008
s 103 ............................................. am No 165, 2006
s 104 ............................................. rs No 165, 2006
am No 75, 2014
s 105 .............................................. rs No 165, 2006
Division 7
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Endnote 4—Amendment history
Provision affected How affected
Subdivision B
s 107 ............................................. am No 125, 2008
Subdivision C
s 111 .............................................. am No 4, 2016
s 112 .............................................. am No 4, 2016
s 114 .............................................. am No 4, 2016
s 117 .............................................. am No 31, 2014
s 119 .............................................. am No 4, 2016
s 120 .............................................. am No 4, 2016
Subdivision E
s 124 ............................................. am No 92, 1999
s 125 ............................................. am No 92, 1999
Part 9
Division 1
Subdivision A
s 130 .............................................. am No 165, 2006; No 145, 2012
s 131 .............................................. am No 165, 2006
s 131AA ....................................... ad No 165, 2006
am No 51, 2010; No 31, 2014
s 131AB......................................... ad No 145, 2012
s 131A .......................................... ad No 165, 2006
am No 8, 2010
s 132 ............................................. am No 165, 2006
s 132A .......................................... ad No 165, 2006
s 132B ........................................... ad No 75, 2014
s 133 ............................................. am No 165, 2006; No 51, 2010
s 134 ............................................. am No 165, 2006; No 75, 2014
s 134A ........................................... ad No 75, 2014
s 135A .......................................... ad No 165, 2006
am No 51, 2010
Subdivision B
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Endnote 4—Amendment history
Provision affected How affected
s 136 ............................................. am No 165, 2006; No 145, 2012
s 137 .............................................. rs No 88, 2003
s 137A .......................................... ad No 88, 2003
s 139 ............................................. am No 165, 2006
Division 2
s 142 ............................................. am No 165, 2006
s 142A ........................................... am No 9, 2006; No 165, 2006; No 4, 2016
s 142B .......................................... ad No 165, 2006
am No 4, 2016
Division 3
s 143 ............................................. am No 165, 2006; No 51, 2010; No 75, 2014
s 143A ........................................... ad No 75, 2014
s 144, 145 ..................................... am No 165, 2006
s 145A .......................................... am No 165, 2006
Division 4
s 145B .......................................... am No 165, 2006
Division 5
Division 5 ...................................... ad No 165, 2006
s 145C .......................................... ad No 165, 2006
s 145D .......................................... ad No 165, 2006
s 14E ............................................. ad No 165, 2006
Part 10
Division 1
Subdivision A
Subdivision A heading................... ad No 165, 2006
s 146 ............................................. am No 82, 2001; No 165, 2006
Subdivision B
Subdivision B ................................ ad No 165, 2006
s 146A ........................................... ad No 165, 2006
s 146B ........................................... ad No 165, 2006
am No 51, 2010
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Endnote 4—Amendment history
Provision affected How affected
s 146C ........................................... ad No 165, 2006
s 146D ........................................... ad No 165, 2006
Subdivision C
Subdivision C ................................ ad No 165, 2006
s 146E–146H................................. ad No 165, 2006
s 146F............................................ ad No 165, 2006
s 146G ........................................... ad No 165, 2006
s 146H ........................................... ad No 165, 2006
s 146J............................................. ad No 165, 2006
s 146K ........................................... ad No 165, 2006
s 146L............................................ ad No 165, 2006
s 146M........................................... ad No 165, 2006
Division 2
s 148 .............................................. am No 82, 2001
s 149 ............................................. am No 82, 2001
s 150 ............................................. am No 82, 2001
s 151 ............................................. am No 82, 2001; No 63, 2002
s 152 ............................................. am No 165, 2006
s 153 ............................................. rs No 165, 2006
Part 11
Division 1A
Division 1A ................................... ad No 165, 2006
s 156A ........................................... ad No 165, 2006
s 156B ........................................... ad No 165, 2006
s 156C .......................................... ad No 165, 2006
s 156D .......................................... ad No 165, 2006
s 156E ........................................... ad No 165, 2006
Division 1B
Division 1B ................................... ad No 165, 2006
s 156F ........................................... ad No 165, 2006
am No 75, 2014
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Endnote 4—Amendment history
Provision affected How affected
Division 3A
Division 3A ................................... ad No 165, 2006
s 158A .......................................... ad No 165, 2006
am No 125, 2008
Subdivision A
Subdivision C
Division 4
s 159 ............................................. am No 165, 2006
s 160 ............................................. am No 165, 2006
s 161 ............................................. am No 165, 2006
s 161A .......................................... ad No 165, 2006
s 161B .......................................... ad No 165, 2006
s 163 ............................................. am No 165, 2006
Subdivision B ................................ rep No 165, 2006
s 165 ............................................. rep No 165, 2006
s 168 ............................................. am No 165, 2006
s 169 ............................................. am No 165, 2006
s 170 ............................................. am No 165, 2006
Division 5
s 170A .......................................... am No 165, 2006; No 8, 2010
s 170B .......................................... ad No 165, 2006
s 170BA ........................................ ad No 165, 2006
Division 6
Division 6 ...................................... ad No 165, 2006
s 170C .......................................... ad No 165, 2006
Division 7
Division 7 ...................................... ad No 75, 2014
s 170CA......................................... ad No 75, 2014
Chapter 5
Chapter 5 heading.......................... rs No 88, 2003
Part 11A
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Endnote 4—Amendment history
Provision affected How affected
Part 11A ........................................ ad No 165, 2006
s 170D .......................................... ad No 165, 2006
am No 46, 2011
Part 12
Division 1
s 172 ............................................. rs No 165, 2006
s 173 ............................................. rs No 165, 2006
s 175 ............................................. rep No 165, 2006
Division 2
s 176 ............................................. am No 88, 2003; No 165, 2006
Part 13
Division 1
Subdivision A
s 178 .............................................. am No 10, 2015
s 179 ............................................. am No 165, 2006
s 181 .............................................. am No 10, 2015
s 183 .............................................. am No 10, 2015
s 184 ............................................. am No 165, 2006; No 126, 2015
s 185 ............................................. rep No 165, 2006
s 186 ............................................. am No 165, 2006
s 187 ............................................. rs No 165, 2006
s 189 ............................................. am No 165, 2006
s 189A .......................................... ad No 165, 2006
s 189B .......................................... ad No 165, 2006
s 191 ............................................. rep No 165, 2006
s 193 .............................................. am No 10, 2015
s 194 ............................................. rs No 165, 2006
am No 8, 2010; No 10, 2015
Subdivision AA
Subdivision AA ............................. ad No 165, 2006
s 194A ........................................... ad No 165, 2006
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Endnote 4—Amendment history
Provision affected How affected
s 194B .......................................... ad No 165, 2006
s 194C .......................................... ad No 165, 2006
am No 126, 2015
s 194D .......................................... ad No 165, 2006
am No 126, 2015
s 194E ........................................... ad No 165, 2006
s 194F ........................................... ad No 165, 2006
s 194G .......................................... ad No 165, 2006
s 194H .......................................... ad No 165, 2006
s 194J ............................................ ad No 165, 2006
s 194K .......................................... ad No 165, 2006
s 194L............................................ ad No 165, 2006
am No 8, 2010
s 194M........................................... ad No 165, 2006
s 194N .......................................... ad No 165, 2006
am No 73, 2008
s 194P ........................................... ad No 165, 2006
s 194Q .......................................... ad No 165, 2006
am No 73, 2008; No 8, 2010
s 194R ........................................... ad No 165, 2006
s 194S............................................ ad No 165, 2006
s 194T............................................ ad No 165, 2006
Subdivision B
s 196 .............................................. am No 165, 2006; No 11, 2015; No 4, 2016
s 196A ........................................... am No 11, 2015; No 4, 2016
s 196B .......................................... am No 165, 2006; No 11, 2015; No 4, 2016
s 196C ........................................... am No 11, 2015; No 4, 2016
s 196D .......................................... am No 165, 2006; No 11, 2015; No 4, 2016
s 196E............................................ am No 11, 2015; No 4, 2016
s 196F............................................ ad No 11, 2015
s 198 .............................................. am No 11, 2015
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Endnote 4—Amendment history
Provision affected How affected
s 197 ............................................. am No 82, 2001; No 165, 2006
s 199 .............................................. am No 165, 2006; No 4, 2016
s 200 .............................................. am No 165, 2006; No 8, 2010
s 201 .............................................. am No 165, 2006
s 203 .............................................. am No 4, 2016
s 206A .......................................... am No 165, 2006
Subdivision BA
s 207A .......................................... am No 165, 2006
s 207B ........................................... am No 4, 2016
Subdivision C
s 208A .......................................... ad No 82, 2001
rs No 165, 2006
Division 2
Subdivision A
s 209 ............................................. am No 165, 2006; No 126, 2015
Subdivision B
s 211 ............................................. am No 165, 2006; No 11, 2015; No 4, 2016
s 211A ........................................... am No 11, 2015; No 4, 2016
s 211B .......................................... am No 165, 2006; No 11, 2015; No 4, 2016
s 211C ........................................... am No 11, 2015; No 4, 2016
s 211D .......................................... am No 165, 2006; No 11, 2015; No 4, 2016
s 211E............................................ am No 11, 2015; No 4, 2016
s 211F............................................ ad No 11, 2015
s 212 ............................................. am No 82, 2001; No 165, 2006; No 107, 2010
s 213 .............................................. am No 11, 2015
s 214 .............................................. am No 165, 2006; No 107, 2010; No 4, 2016
s 215 .............................................. am No 165, 2006; No 8, 2010
s 216 .............................................. am No 165, 2006
s 218 .............................................. am No 4, 2016
s 221A .......................................... am No 165, 2006
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Endnote 4—Amendment history
Provision affected How affected
Subdivision C
s 222A .......................................... ad No 82, 2001
rs No 165, 2006
Division 3
Subdivision A
s 224 ............................................. am No 82, 2001; No 165, 2006
Subdivision B
Subdivision B heading................... rs No 165, 2006
s 225 ............................................. am No 165, 2006
s 228A .......................................... ad No 165, 2006
Subdivision C
s 229 ............................................. am No 165, 2006; No 4, 2016
s 229A ........................................... am No 4, 2016
s 229B .......................................... am No 165, 2006; No 4, 2016
s 229C ........................................... am No 4, 2016
s 229D .......................................... am No 165, 2006; No 4, 2016
s 230 .............................................. am No 165, 2006; No 4, 2016
s 231 ............................................. am No 82, 2001; No 165, 2006; No 125, 2008
s 232 .............................................. am No 165, 2006; No 4, 2016
Subdivision D heading................... rs No 82, 2001
rep No 165, 2006
Subdivision D ............................... rep No 165, 2006
s 232A ........................................... ad No 82, 2001
rep No 165, 2006
s 232B ........................................... ad No 82, 2001
rep No 165, 2006
s 233 ............................................. am No 82, 2001
rep No 165, 2006
s 234 ............................................. am No 82, 2001
rep No 165, 2006
s 235 ............................................. am No 82, 2001
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Endnote 4—Amendment history
Provision affected How affected
rep No 165, 2006
Subdivision E
s 236 .............................................. am No 165, 2006; No 4, 2016
Subdivision F
s 237 .............................................. am No 165, 2006; No 8, 2010
s 238 ............................................. am No 82, 2001; No 165, 2006
s 240 .............................................. am No 4, 2016
s 243A ........................................... am No 165, 2006
Subdivision G
s 245 ............................................. am No 82, 2001
rs No 165, 2006
Division 4
Subdivision A
s 248 .............................................. am No 10, 2015
s 249 .............................................. am No 10, 2015
s 251 .............................................. am No 10, 2015
Subdivision B
s 254 .............................................. am No 165, 2006; No 11, 2015; No 4, 2016
s 254A ........................................... am No 11, 2015; No 4, 2016
s 254B ........................................... am No 165, 2006; No 11, 2015; No 4, 2016
s 254C ........................................... am No 11, 2015; No 4, 2016
s 254D ........................................... am No 165, 2006; No 11, 2015; No 4, 2016
s 254E............................................ am No 11, 2015; No 4, 2016
s 254F............................................ ad No 11, 2015
s 255 ............................................. am No 82, 2001; No 165, 2006; No 125, 2008
s 256 .............................................. am No 165, 2006; No 4, 2016
s 257 .............................................. am No 165, 2006; No 8, 2010
s 258 .............................................. am No 165, 2006; No 8, 2010
s 260 .............................................. am No 4, 2016
s 263A ........................................... am No 165, 2006
Subdivision C
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Endnote 4—Amendment history
Provision affected How affected
s 265 ............................................. am No 82, 2001
rs No 165, 2006
Division 4A ................................... rep No 165, 2006
s 266A .......................................... rep No 165, 2006
Division 5
Division 5 heading......................... rs No 165, 2006
Subdivision AA
Subdivision AA ............................. ad No 165, 2006
s 266B .......................................... ad No 165, 2006
am No 8, 2010
Subdivision A
s 267 ............................................. am No 165, 2006
s 269AA ....................................... ad No 165, 2006
am No 73, 2008
s 269A .......................................... am No 165, 2006
s 270 ............................................. am No 165, 2006
s 271 ............................................. am No 165, 2006
s 273 ............................................. am No 165, 2006
s 278 .............................................. am No 165, 2006
s 282 .............................................. am No 31, 2014
s 283A .......................................... am No 165, 2006
Subdivision C
s 299 ............................................. am No 165, 2006
s 300B .......................................... ad No 165, 2006
Division 8
s 303AA ....................................... ad No 165, 2006
s 303AB ........................................ ad No 165, 2006
Part 13A
Part 13A ........................................ ad No 82, 2001
Division 1
s 303BA ........................................ ad No 82, 2001
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Endnote 4—Amendment history
Provision affected How affected
s 303BAA ..................................... ad No 82, 2001
s 303BB ........................................ ad No 82, 2001
s 303BC ........................................ ad No 82, 2001
Division 2
Subdivision A
s 303CA ........................................ ad No 82, 2001
am No 8, 2010; No 10, 2015
s 303CB ........................................ ad No 82, 2001
am No 8, 2010; No 10, 2015
Subdivision B
s 303CC......................................... ad No 82, 2001
am No 4, 2016
s 303CD......................................... ad No 82, 2001
am No 4, 2016
s 303CE......................................... ad No 82, 2001
s 303CF ......................................... ad No 82, 2001
s 303CG......................................... ad No 82, 2001
am No 165, 2006
s 303CH......................................... ad No 82, 2001
am No 165, 2006; No 10, 2015
s 303CI .......................................... ad No 82, 2001
s 303CJ.......................................... ad No 82, 2001
am No 165, 2006
s 303CK......................................... ad No 82, 2001
am No 8, 2010
Subdivision C
s 303CL......................................... ad No 82, 2001
s 303CM........................................ ad No 82, 2001
s 303CN......................................... ad No 82, 2001
Division 3
Subdivision A
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Endnote 4—Amendment history
Provision affected How affected
s 303DA ....................................... ad No 82, 2001
s 303DB ........................................ ad No 82, 2001
am No 165, 2006; No 8, 2010; No 10, 2015
s 303DC ........................................ ad No 82, 2001
am No 8, 2010; No 10, 2015
Subdivision B
s 303DD ........................................ ad No 82, 2001
am No 4, 2016
s 303DE......................................... ad No 82, 2001
s 303DF......................................... ad No 82, 2001
s 303DG ........................................ ad No 82, 2001
am No 165, 2006
s 303DH ........................................ ad No 82, 2001
s 303DI.......................................... ad No 82, 2001
am No 165, 2006
s 303DJ.......................................... ad No 82, 2001
am No 8, 2010
Division 4
Subdivision A
s 303EA ........................................ ad No 82, 2001
s 303EB ........................................ ad No 82, 2001
am No 165, 2006; No 8, 2010; No 10, 2015; No 62, 2015
s 303EC ........................................ ad No 82, 2001
am No 8, 2010; No 10, 2015
Subdivision B
s 303ED......................................... ad No 82, 2001
am No 165, 2006
s 303EE ......................................... ad No 82, 2001
am No 165, 2006
s 303EF.......................................... ad No 82, 2001
rs No 165, 2006
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Endnote 4—Amendment history
Provision affected How affected
s 303EG......................................... ad No 82, 2001
s 303EH......................................... ad No 82, 2001
s 303EI .......................................... ad No 82, 2001
s 303EJ .......................................... ad No 82, 2001
Subdivision C
s 303EK......................................... ad No 82, 2001
am No 4, 2016
s 303EL ......................................... ad No 82, 2001
s 303EM ........................................ ad No 82, 2001
s 303EN......................................... ad No 82, 2001
am No 165, 2006
s 303EO......................................... ad No 82, 2001
s 303EP.......................................... ad No 82, 2001
am No 165, 2006
s 303EQ......................................... ad No 82, 2001
am No 8, 2010
Subdivision D
s 303ER ......................................... ad No 82, 2001
s 303ES.......................................... ad No 82, 2001
s 303ET ......................................... ad No 82, 2001
s 303EU......................................... ad No 82, 2001
am No 10, 2015
s 303EV......................................... ad No 82, 2001
am No 4, 2016
s 303EW........................................ ad No 82, 2001
Division 5
Subdivision A
s 303FA ......................................... ad No 82, 2001
s 303FB ......................................... ad No 82, 2001
s 303FC ......................................... ad No 82, 2001
s 303FD ......................................... ad No 82, 2001
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Endnotes
Endnote 4—Amendment history
Provision affected How affected
s 303FE ......................................... ad No 82, 2001
s 303FF.......................................... ad No 82, 2001
s 303FG ......................................... ad No 82, 2001
am No 10, 2015
s 303FH ......................................... ad No 82, 2001
s 303FI........................................... ad No 82, 2001
Subdivision B
s 303FJ .......................................... ad No 82, 2001
am No 165, 2006
s 303FK ......................................... ad No 82, 2001
s 303FL.......................................... ad No 82, 2001
s 303FLA....................................... ad No 165, 2006
s 303FM ........................................ ad No 82, 2001
s 303FN ......................................... ad No 82, 2001
s 303FO ......................................... ad No 82, 2001
s 303FP.......................................... ad No 82, 2001
am No 8, 2010
s 303FQ ......................................... ad No 82, 2001
s 303FR ......................................... ad No 82, 2001
am No 8, 2010
s 303FRA ..................................... ad No 82, 2001
am No 46, 2011
s 303FS.......................................... ad No 82, 2001
am No 8, 2010
s 303FT.......................................... ad No 82, 2001
am No 8, 2010
s 303FU ......................................... ad No 82, 2001
Division 6
s 303GA ........................................ ad No 82, 2001
s 303GB......................................... ad No 82, 2001
am No 165, 2006; No 8, 2010
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Endnote 4—Amendment history
Provision affected How affected
s 303GC......................................... ad No 82, 2001
am No 165, 2006
s 303GD ........................................ ad No 82, 2001
am No 165, 2006
s 303GE......................................... ad No 82, 2001
am No 165, 2006
s 303GF ......................................... ad No 82, 2001
am No 4, 2016
s 303GG ........................................ ad No 82, 2001
s 303GH ........................................ ad No 82, 2001
s 303GI.......................................... ad No 82, 2001
s 303GJ.......................................... ad No 82, 2001
am No 38, 2005; No 165, 2006
s 303GK ........................................ ad No 82, 2001
s 303GL......................................... ad No 82, 2001
s 303GM........................................ ad No 82, 2001
s 303GN ........................................ ad No 82, 2001
am No 4, 2016
s 303GO ........................................ ad No 82, 2001
s 303GP ......................................... ad No 82, 2001
am No 4, 2016
s 303GQ ........................................ ad No 82, 2001
s 303GR......................................... ad No 82, 2001
s 303GS ......................................... ad No 82, 2001
s 303GT......................................... ad No 82, 2001
s 303GU ........................................ ad No 82, 2001
s 303GV ........................................ ad No 82, 2001
am No 62, 2015
s 303GW........................................ ad No 82, 2001
am No 41, 2015; No 62, 2015
s 303GX ........................................ ad No 82, 2001
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Endnotes
Endnote 4—Amendment history
Provision affected How affected
am No 10, 2015
s 303GY ........................................ ad No 82, 2001
Part 14
s 304 .............................................. am No 88, 2003
rs No 165, 2006
am No 60, 2013
s 305 .............................................. am No 88, 2003; No 165, 2006; No 60, 2013
s 306 .............................................. am No 88, 2003; No 165, 2006; No 60, 2013
s 306A ........................................... ad No 165, 2006
s 307A ........................................... ad No 165, 2006
s 309 .............................................. am No 88, 2003
Part 15
Division 1
Subdivision D
s 316 .............................................. am No 47, 2016
s 318 .............................................. rs No 88, 2003
Subdivision E
s 321 .............................................. am No 125, 2008
Subdivision F
s 323 .............................................. am No 88, 2003
Division 1A
Division 1A ................................... ad No 88, 2003
Subdivision A
s 324A ........................................... ad No 88, 2003
s 324B ........................................... ad No 88, 2003
rep No 165, 2006
Subdivision B
s 324C ........................................... ad No 88, 2003
am No 165, 2006
s 324D ........................................... ad No 88, 2003
Subdivision BA
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Endnote 4—Amendment history
Provision affected How affected
Subdivision BA ............................. ad No 165, 2006
s 324E............................................ ad No 88, 2003
rs No 165, 2006
s 324F............................................ ad No 88, 2003
rs No 165, 2006
s 324G ........................................... ad No 88, 2003
rs No 165, 2006
am No 88, 2003; No 126, 2015
s 324H ........................................... ad No 88, 2003
rs No 165, 2006
am No 126, 2015
s 324J............................................. ad No 88, 2003
rs No 165, 2006
am No 88, 2003
s 324JA.......................................... ad No 165, 2006
s 324JB.......................................... ad No 165, 2006
s 324JC.......................................... ad No 165, 2006
s 324JD.......................................... ad No 165, 2006
s 324JE .......................................... ad No 165, 2006
s 324JF .......................................... ad No 165, 2006
am No 8, 2010
s 324JG.......................................... ad No 165, 2006
s 324JH.......................................... ad No 165, 2006
s 324JI ........................................... ad No 165, 2006
s 324JJ ........................................... ad No 165, 2006
am No 8, 2010
Subdivision BB
Subdivision BB ............................. ad No 165, 2006
s 324JK.......................................... ad No 165, 2006
s 324JL .......................................... ad No 165, 2006
am No 8, 2010
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Endnote 4—Amendment history
Provision affected How affected
s 324JM ......................................... ad No 165, 2006
s 324JN.......................................... ad No 165, 2006
s 324JO.......................................... ad No 165, 2006
s 324JP .......................................... ad No 165, 2006
s 324JQ.......................................... ad No 165, 2006
am No 8, 2010
Subdivision BC
Subdivision BC.............................. ad No 165, 2006
s 324JR.......................................... ad No 165, 2006
s 324JS .......................................... ad No 165, 2006
s 324K ........................................... ad No 88, 2003
am No 165, 2006
s 324L............................................ ad No 88, 2003
am No 165, 2006; No 8, 2010; No 10, 2015
s 324M........................................... ad No 88, 2003
am No 165, 2006; No 8, 2010; No 10, 2015
s 324N ........................................... ad No 88, 2003
rs No 165, 2006
am No 46, 2011
s 324P............................................ ad No 88, 2003
am No 8, 2010
s 324Q ........................................... ad No 88, 2003
s 324R ........................................... ad No 88, 2003
am No 165, 2006; No 10, 2015
Subdivision C
s 324S............................................ ad No 88, 2003
am No 165, 2006
s 324T............................................ ad No 88, 2003
am No 47, 2016
s 324U ........................................... ad No 88, 2003
s 324V ........................................... ad No 88, 2003
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Endnote 4—Amendment history
Provision affected How affected
s 324W .......................................... ad No 88, 2003
am No 8, 2010
Subdivision D
s 324X ........................................... ad No 88, 2003
am No 125, 2008
Subdivision E
s 324Y ........................................... ad No 88, 2003
am No 165, 2006
Subdivision F
s 324Z............................................ ad No 88, 2003
s 324ZA......................................... ad No 88, 2003
Subdivision G
s 324ZB ......................................... ad No 88, 2003
Subdivision H
s 324ZC ......................................... ad No 88, 2003
Division 2
Subdivision D
s 328 .............................................. am No 47, 2016
s 330 .............................................. rs No 88, 2003
Division 3A
Division 3A ................................... ad No 88, 2003
Subdivision A
s 341A ........................................... ad No 88, 2003
s 341B ........................................... ad No 88, 2003
Subdivision B
s 341C .......................................... ad No 88, 2003
am No 165, 2006
s 341D .......................................... ad No 88, 2003
Subdivision BA
Subdivision BA ............................. ad No 165, 2006
s 341E............................................ ad No 88, 2003
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Endnotes
Endnote 4—Amendment history
Provision affected How affected
rs No 165, 2006
s 341F............................................ ad No 88, 2003
rs No 165, 2006
s 341G ........................................... ad No 88, 2003
rs No 165, 2006
am No 88, 2003; No 126, 2015
s 341H ........................................... ad No 88, 2003
rs No 165, 2006
s 341J............................................. ad No 88, 2003
rs No 165, 2006
am No 88, 2003
s 341JA.......................................... ad No 165, 2006
s 341JB.......................................... ad No 165, 2006
s 341JC.......................................... ad No 165, 2006
s 341JD.......................................... ad No 165, 2006
s 341JE .......................................... ad No 165, 2006
am No 8, 2010
s 341JF .......................................... ad No 165, 2006
s 341JG.......................................... ad No 165, 2006
s 341JH.......................................... ad No 165, 2006
s 341JI ........................................... ad No 165, 2006
am No 8, 2010
Subdivision BB
Subdivision BB.............................. ad No 165, 2006
s 341JJ ........................................... ad No 165, 2006
s 341JK.......................................... ad No 165, 2006
am No 8, 2010
s 341JL .......................................... ad No 165, 2006
s 341JM ......................................... ad No 165, 2006
s 341JN.......................................... ad No 165, 2006
s 341JO.......................................... ad No 165, 2006
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Endnotes
Endnote 4—Amendment history
Provision affected How affected
s 341JP .......................................... ad No 165, 2006
am No 8, 2010
Subdivision BC
Subdivision BC.............................. ad No 165, 2006
s 341JQ.......................................... ad No 165, 2006
s 341JR ......................................... ad No 165, 2006
s 341K .......................................... ad No 88, 2003
am No 165, 2006
s 341L ........................................... ad No 88, 2003
am No 165, 2006; No 8, 2010; No 10, 2015
s 341M .......................................... ad No 88, 2003
am No 8, 2010; No 10, 2015
s 341N .......................................... ad No 88, 2003
rs No 165, 2006
am No 46, 2011
s 341P............................................ ad No 88, 2003
am No 8, 2010
s 341Q ........................................... ad No 88, 2003
s 341R .......................................... ad No 88, 2003
am No 165, 2006; No 10, 2015
Subdivision C
s 341S ........................................... ad No 88, 2003
am No 165, 2006
s 341T ........................................... ad No 88, 2003
am No 165, 2006; No 8, 2010
s 341U ........................................... ad No 88, 2003
am No 47, 2016
s 341V ........................................... ad No 88, 2003
s 341W .......................................... ad No 88, 2003
s 341X ........................................... ad No 88, 2003
am No 8, 2010
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Endnotes
Endnote 4—Amendment history
Provision affected How affected
Subdivision D
s 341Y .......................................... ad No 88, 2003
Subdivision E
s 341Z ........................................... ad No 88, 2003
s 341ZA ........................................ ad No 88, 2003
s 341ZB ........................................ ad No 88, 2003
s 341ZC ........................................ ad No 88, 2003
s 341ZD ........................................ ad No 88, 2003
rep No 165, 2006
s 341ZE ........................................ ad No 88, 2003
Subdivision F ................................ rep No 165, 2006
s 341ZF ......................................... ad No 88, 2003
rep No 165, 2006
Subdivision G
s 341ZG ........................................ ad No 88, 2003
Subdivision H
s 341ZH ........................................ ad No 88, 2003
Division 4
Subdivision B
s 345A ........................................... am No 93, 2013
s 346 ............................................. am No 165, 2006
s 347 ............................................. am No 165, 2006
s 349 ............................................. rep No 165, 2006
s 350 .............................................. am No 46, 2011
Subdivision C
s 354 ............................................. am No 165, 2006
s 354A .......................................... ad No 165, 2006
s 355 ............................................. am No 165, 2006
s 355A .......................................... ad No 165, 2006
s 356 ............................................. am No 165, 2006
s 359B .......................................... ad No 165, 2006
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Endnotes
Endnote 4—Amendment history
Provision affected How affected
s 360 ............................................. rep No 165, 2006
Subdivision E
s 367 ............................................. am No 88, 2003; No 165, 2006
s 371 .............................................. am No 10, 2015
s 373 ............................................. am No 165, 2006
Subdivision F
s 379 ............................................. am No 165, 2006
s 379A .......................................... ad No 165, 2006
s 380 ............................................. am No 46, 2011
s 382 ............................................. am No 165, 2006
Subdivision G
s 387 ............................................. am No 165, 2006
s 388 .............................................. am No 93, 2013
s 389 .............................................. am No 93, 2013
Chapter 5A
Chapter 5A .................................... ad No 165, 2006
Part 15A
s 390K ........................................... ad No 165, 2006
s 390L............................................ ad No 165, 2006
s 390M........................................... ad No 165, 2006
s 390N ........................................... ad No 165, 2006
s 390P............................................ ad No 165, 2006
s 390Q ........................................... ad No 165, 2006
am No 8, 2010
Chapter 5B
Part 15B
s 390R ........................................... ad No 165, 2006
Chapter 5B .................................... ad No 131, 2012
Division 1
s 390SA......................................... ad No 131, 2012
s 390SB ......................................... ad No 131, 2012
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Endnote 4—Amendment history
Provision affected How affected
Division 2
Subdivision A
s 390SC ......................................... ad No 131, 2012
Subdivision B
s 390SD......................................... ad No 131, 2012
am No 126, 2015
s 390SE.......................................... ad No 131, 2012
Subdivision C
s 390SF.......................................... ad No 131, 2012
am No 126, 2015
Subdivision D
s 390SG......................................... ad No 131, 2012
am No 126, 2015
Division 3
s 390SH......................................... ad No 131, 2012
s 390SI........................................... ad No 131, 2012
s 390SJ .......................................... ad No 131, 2012
s 390SK......................................... ad No 131, 2012
s 390SL.......................................... ad No 131, 2012
Division 4
s 390SM ........................................ ad No 131, 2012
Chapter 6
Part 16
Part 16 heading.............................. rs No 88, 2003
s 391 .............................................. am No 82, 2001; No 88, 2003; No 9, 2006; No 165, 2006; No 31,
2014
s 391A ........................................... ad No 88, 2003
rep No 165, 2006
Part 17
Division 1
Subdivision A
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Endnote 4—Amendment history
Provision affected How affected
s 393 .............................................. am No 146, 1999; No 139, 2010; No 59, 2015
s 394 .............................................. rs No 165, 2006
s 395 .............................................. am No 165, 2006; No 4, 2016
Subdivision B
s 397 .............................................. am No 82, 2001; No 165, 2006; No 125, 2008; No 62, 2015
s 398 .............................................. am No 139, 2010; No 59, 2015
s 399 .............................................. am No 82, 2001; No 125, 2008; No 4, 2016
Subdivision BA
Subdivision BA ............................ ad No 165, 2006
s 399A .......................................... ad No 165, 2006
am No 8, 2010
Subdivision BB
Subdivision BB ............................. ad No 125, 2008
s 399B .......................................... ad No 125, 2008
Subdivision C
s 401 .............................................. am No 4, 2016
s 402 .............................................. am No 4, 2016
Division 2
Division 2 heading ........................ rs No 165, 2006
s 403 ............................................. am No 165, 2006; No 125, 2008
s 404 ............................................. am No 82, 2001; No 165, 2006; No 73, 2008
s 405 .............................................. am No 165, 2006
s 406 .............................................. am No 165, 2006; No 125, 2008
s 406A ........................................... ad No 165, 2006
am No 125, 2008
s 406AA ........................................ ad No 125, 2008
s 406B .......................................... ad No 165, 2006
am No 125, 2008
Division 3
s 407 ............................................. am No 165, 2006
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Endnote 4—Amendment history
Provision affected How affected
s 407A ........................................... ad No 165, 2006
am No 125, 2008
s 407B .......................................... ad No 165, 2006
s 408 .............................................. am No 82, 2001; No 165, 2006; No 125, 2008
s 409 ............................................. am No 82, 2001; No 165, 2006; No 125, 2008
s 409A ........................................... ad No 165, 2006
s 409B .......................................... ad No 165, 2006
s 410 ............................................. am No 165, 2006
s 411 ............................................. am No 41, 2003
s 412 ............................................. am No 165, 2006
s 412A .......................................... am No 165, 2006; No 4, 2016
Division 4
s 413 ............................................. am No 165, 2006; No 125, 2008
s 414 ............................................. am No 165, 2006; No 125, 2008
s 416 .............................................. am No 165, 2006; No 31, 2014
s 417 .............................................. am No 165, 2006; No 125, 2008
s 418A .......................................... ad No 165, 2006
s 422 ............................................. am No 165, 2006; No 125, 2008
s 425 ............................................. am No 41, 2003
s 427 ............................................. am No 9, 2006
Division 5 ...................................... rep No 165, 2006
s 429 ............................................. rep No 165, 2006
Division 6
s 430 ............................................. am No 82, 2001; No 165, 2006; No 73, 2008; No 125, 2008
s 431 ............................................. am No 125, 2008
s 432 ............................................. am No 165, 2006; No 125, 2008
s 433 ............................................. am No 165, 2006; No 125, 2008
s 433A .......................................... ad No 165, 2006
Division 6A
Division 6A ................................... ad No 165, 2006
s 433B .......................................... ad No 165, 2006
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Endnote 4—Amendment history
Provision affected How affected
Division 7
s 436 .............................................. am No 4, 2016
s 437 ............................................. am No 165, 2006
s 438 ............................................. rs No 165, 2006
s 439 ............................................. rep No 165, 2006
s 442 ............................................. am No 82, 2001; No 165, 2006
Division 8A
Division 8A .................................. ad No 82, 2001
s 443A .......................................... ad No 82, 2001
am No 165, 2006; No 4, 2016
Division 9
s 444 ............................................. am No 82, 2001; No 125, 2008; No 4, 2016
Division 10
Subdivision AA
Subdivision AA ............................. ad No 82, 2001
s 444A ........................................... ad No 82, 2001
am No 165, 2006
s 444B .......................................... ad No 82, 2001
s 444C .......................................... ad No 82, 2001
s 444D .......................................... ad No 82, 2001
s 444E ........................................... ad No 82, 2001
s 444F ........................................... ad No 82, 2001
rep No 165, 2006
s 444G .......................................... ad No 82, 2001
am No 165, 2006
s 444H .......................................... ad No 82, 2001
am No 165, 2006
s 444J............................................. ad No 82, 2001
rep No 165, 2006
s 444K ........................................... ad No 82, 2001
rep No 165, 2006
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Endnotes
Endnote 4—Amendment history
Provision affected How affected
Subdivision AB
Subdivision A heading................... rs No 165, 2006
rep No 125, 2008
Subdivision AB heading................ ad No 125, 2008
s 445 ............................................. rs No 165, 2006
am No 125, 2008
s 446 ............................................. am No 165, 2006; No 125, 2008; No 59, 2015
Subdivision AC
Subdivision AC ............................. ad No 125, 2008
s 447 .............................................. rep No 165, 2006
ad No 125, 2008
s 448 ............................................. rep No 165, 2006
Subdivision B
Subdivision B heading................... rs No 165, 2006
s 449 ............................................. am No 165, 2006
s 449A .......................................... ad No 165, 2006
Subdivision BA
Subdivision BA ............................ ad No 165, 2006
s 449BA......................................... ad No 165, 2006
am No 125, 2008
s 449BB ........................................ ad No 165, 2006
am No 46, 2011
Subdivision C
Subdivision C heading................... rs No 165, 2006
s 450 ............................................. am No 82, 2001; No 165, 2006; No 125, 2008
s 450A .......................................... ad No 165, 2006
am No 125, 2008
s 450B .......................................... ad No 165, 2006
Subdivision D heading................... rep No 165, 2006
s 451 ............................................. am No 82, 2001
Subdivision E heading................... rep No 165, 2006
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Endnotes
Endnote 4—Amendment history
Provision affected How affected
s 452 ............................................. am No 165, 2006
Subdivision F
Subdivision F heading ................... rs No 165, 2006
s 453 ............................................. am No 165, 2006
s 454 ............................................. am No 165, 2006
Subdivision G
Subdivision G heading................... rs No 165, 2006
s 455 ............................................. am No 165, 2006; No 4, 2016
s 456 ............................................. am No 165, 2006; No 125, 2008
Subdivision H
Subdivision H heading................... ad No 165, 2006
s 456AA ....................................... ad No 165, 2006
s 456AB ........................................ ad No 165, 2006
s 456AC ........................................ ad No 165, 2006
Division 11 .................................... rep No 16, 2013
s 457 .............................................. rep No 16, 2013
Division 12
s 460 .............................................. am No 4, 2016
s 461 .............................................. am No 4, 2016
Division 13
Subdivision C
s 472 .............................................. am No 165, 2006
s 473 ............................................. am No 165, 2006
Division 14
s 478 ............................................. rep No 165, 2006
Division 14A
Division 14A ................................ ad No 165, 2006
s 480A .......................................... ad No 165, 2006
s 480B .......................................... ad No 165, 2006
s 480C .......................................... ad No 165, 2006
Division 14B
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Endnote 4—Amendment history
Provision affected How affected
Division 14B ................................ ad No 165, 2006
Subdivision A
s 480D ........................................... ad No 165, 2006
s 480E............................................ ad No 165, 2006
s 480F............................................ ad No 165, 2006
s 480G ........................................... ad No 165, 2006
s 480H ........................................... ad No 165, 2006
s 480J ............................................ ad No 165, 2006
Subdivision B
s 480K .......................................... ad No 165, 2006
Subdivision C
s 480L ........................................... ad No 165, 2006
s 480M .......................................... ad No 165, 2006
Subdivision D
s 480N .......................................... ad No 165, 2006
Division 15
Subdivision A
s 486 ............................................. rep No 165, 2006
Subdivision C
Subdivision C ad No 165, 2006
s 486DA ....................................... ad No 165, 2006
s 486DB ........................................ ad No 165, 2006
Division 15A
Division 15A ................................. ad No 165, 2006
s 486E............................................ ad No 165, 2006
am No 125, 2008; No 12, 2018
s 486F ........................................... ad No 165, 2006
s 486G .......................................... ad No 165, 2006
am No 73, 2008
s 486H ........................................... ad No 165, 2006
am No 125, 2008
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Endnotes
Endnote 4—Amendment history
Provision affected How affected
s 486J............................................. ad No 165, 2006
Division 17
s 489 .............................................. am No 82, 2001; No 4, 2016
s 490 .............................................. am No 4, 2016
s 491 .............................................. am No 4, 2016
Division 18
s 494 .............................................. am No 131, 2012
s 495 .............................................. am No 88, 2003; No 165, 2006; No 131, 2012; No 60, 2013; No 4,
2016
s 496 .............................................. am No 75, 2014
Division 18A
Division 18A ................................. ad No 165, 2006
s 496A ........................................... ad No 165, 2006
s 496B ........................................... ad No 165, 2006
s 496C ........................................... ad No 165, 2006
am No 60, 2013
s 496D ........................................... ad No 165, 2006
Division 19
s 497 .............................................. am No 165, 2006
Division 21
s 498A ........................................... am No 165, 2006
Division 22
Division 22 .................................... ad No 165, 2006
s 498B ........................................... ad No 165, 2006
Part 19
Division 1
s 503 .............................................. am No 165, 2006
Division 2 ...................................... rep No 47, 2016
s 504 .............................................. rep No 47, 2016
s 505 .............................................. rep No 47, 2016
Division 2B
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Endnotes
Endnote 4—Amendment history
Provision affected How affected
Division 2B ................................... ad No 145, 2012
s 505C ........................................... ad No 145, 2012
s 505D ........................................... ad No 145, 2012
s 505E............................................ ad No 145, 2012
Division 3
s 506 .............................................. am No 145, 2012; No 47, 2016
Division 5
Subdivision A
s 514A ........................................... am No 62, 2014
s 514B ........................................... am No 165, 2006
s 514D ........................................... am No 8, 2013; No 47, 2016
Subdivision B
s 514G .......................................... am No 46, 2011
Subdivision C
s 514L............................................ rep No 62, 2014
s 514M........................................... am No 92, 1999
s 514P............................................ am No 62, 2014
Subdivision D
s 514S............................................ am No 62, 2014
s 514T............................................ am No 62, 2014
Subdivision E
s 514U ........................................... am No 92, 1999
rs No 62, 2014
s 514V ........................................... am No 62, 2014
Part 19A
Part 19A ........................................ ad No 75, 2014
s 514Y ........................................... ad No 75, 2014
s 514YA ........................................ ad No 75, 2014
s 514YB......................................... ad No 75, 2014
Part 20
s 515 .............................................. am No 88, 2003
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Endnotes
Endnote 4—Amendment history
Provision affected How affected
s 515AA ........................................ ad No 125, 2008
am No 12, 2018
s 515AB......................................... ad No 125, 2008
am No 12, 2018
Part 20A
Part 20A heading ........................... am No 8, 2010
Part 20A ........................................ ad No 88, 2003
s 515A ........................................... ad No 88, 2003
am No 8, 2010
Part 21
Division 1
s 516A ........................................... am No 92, 1999; No 82, 2001; No 62, 2014
Chapter 7
Part 22
s 517 .............................................. am No 82, 2001; No 10, 2015
s 517A ........................................... ad No 165, 2006
s 520 .............................................. am No 82, 2001; No 63, 2002; No 75, 2014
s 520A ........................................... ad No 165, 2006
s 521A ........................................... ad No 75, 2014
s 522B ........................................... rep No 82, 2001
Chapter 8
Part 23
Division 1
Subdivision A
s 523 .............................................. am No 82, 2001; No 63, 2002
s 524 .............................................. am No 17, 2006; No 117, 2008; No 103, 2010; No 62, 2015
s 524B ........................................... rep No 82, 2001
Subdivision B
s 525 .............................................. am No 165, 2006; No 59, 2015
Subdivision C
s 526 .............................................. am No 55, 2001
Environment Protection and Biodiversity Conservation Act 1999
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Endnotes
Endnote 4—Amendment history
Provision affected How affected
Subdivision E
Subdivision E ................................ ad No 82, 2001
s 527A ........................................... ad No 82, 2001
s 527B ........................................... ad No 82, 2001
s 527C ........................................... ad No 82, 2001
s 527D ........................................... ad No 82, 2001
Subdivision F
Subdivision F ................................ ad No 165, 2006
s 527E............................................ ad No 165, 2006
Division 2
s 528 .............................................. am No 82, 2001; No 30, 2002; No 63, 2002; No 88, 2003; No 125,
2006; No 165, 2006; No 73, 2008; No 125, 2008; No 107, 2010;
No 5, 2011; No 46, 2011; No 131, 2012; No 136, 2012; No 145,
2012; No 60, 2013; No 75, 2014; No 10, 2015; No 11, 2015; No
59, 2015; No 62, 2015; No 126, 2015; No 26, 2016
Schedule 1
Schedule 1 ..................................... ad No 165, 2006
Part 1
Division 3
c 4.................................................. am No 126, 2015
Part 2
Division 1
c 8.................................................. am No 125, 2008
Division 2
c 10................................................ am No 125, 2008
Part 3
Division 1
c 15................................................ am No 125, 2008
Division 3
c 17................................................ am No 125, 2008; No 12, 2018
Division 4
c 19................................................ am No 125, 2008
Environment Protection and Biodiversity Conservation Act 1999
Compilation No. 52 Compilation date: 29/10/18 Registered: 9/11/18
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Authorised Version C2018C00440 registered 09/11/2018
Endnotes
Endnote 4—Amendment history
Provision affected How affected
Part 5
Division 1
c 26................................................ am No 63, 2007; No 125, 2008
Division 2
Subdivision B
c 38................................................ am No 125, 2008; No 12, 2018
Subdivision C
c 42................................................ am No 51, 2010
Division 4
Subdivision A
c 49................................................ am No 63, 2007
Subdivision B
c 51................................................ am No 63, 2007
c 52................................................ am No 63, 2007
Subdivision C
c 53................................................ am No 63, 2007; No 51, 2010
Environment Protection and Biodiversity Conservation Act 1999
Compilation No. 52 Compilation date: 29/10/18 Registered: 9/11/18
652
Authorised Version C2018C00440 registered 09/11/2018
Endnotes
Endnote 5—Editorial changes
Endnote 5—Editorial changes
In preparing this compilation for registration, the following kinds of editorial
change(s) were made under the Legislation Act 2003.
Headings to sections 394 and 397
Kind of editorial change
Change to typeface
Details of editorial change
This compilation was editorially changed to remove the italics from the
italicised words ex officio in the headings to sections 394 and 397.
Environment Protection and Biodiversity Conservation Act 1999
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