A Bill for an Act to amend the Environment Protection and Biodiversity Conservation Act 1999 to provide for the regulation of invasive species, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Environment Protection and Biodiversity Conservation Amendment (Invasive Species) Act 2002.

2 Commencement

This Act commences on the day on which it receives the Royal Assent.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Invasive species

Environment Protection and Biodiversity Conservation Act 1999

1 After Division 4 of Part 13

Insert:

Division 4AA—Listed invasive species

Subdivision A—Listing

266AA Listing of invasive species

The Minister must, by instrument published in the Gazette, establish a list of invasive species for the purposes of this Part, divided into the following categories:

(a) species determined by the relevant agency or Minister to be permitted for import;

(b) species determined by the relevant agency or Minister to be prohibited for import;

(c) invasive species of the following types currently present in Australia:

(i) eradicable;

(ii) substantially containable;

(iii) beyond eradication;

(iv) controlled;

(v) disregarded as an invasive species;

(vi) exempt from listing.

266AB Definitions

(1) For the purposes of this Part, a species is an invasive species if:

(a) it is a non-indigenous species and it has been, or may be, introduced into Australia and, either directly or indirectly, threatens, will threaten or is likely to threaten, the survival, abundance or evolutionary development of a native species, ecological community, ecosystem or agricultural commodity; or

(b) it is a genetically modified species.

(2) For the purposes of this Part, a member of an invasive species includes a seed and germplasm.

(3) For the purposes of this Part, germplasm is defined as the genetic material, especially its specific molecular and chemical constitution, that comprises the inherited qualities of an organism.

(4) For the purposes of this Part, a controlled environment includes any of the following:

(a) a scientific research institution (including a genetic research centre);

(b) zoological or botanical gardens;

(c) a field trial conducted under a regulatory regime authorised by a law of the Commonwealth or of a State or a self-governing Territory;

(d) a prescribed facility.

266AC Categories of invasive species

Permitted imports

(1) A species is a permitted import if:

(a) it is not a prohibited import; and

(b) it has been assessed as representing a low risk, in Australia, of threatening, either directly or indirectly, the survival, abundance or evolutionary development of a native species, ecological community, ecosystem or agricultural commodity; and

(c) the Minister is satisfied, on the advice of the Invasive Species Advisory Committee, that there are adequate risk management strategies in place to prevent the species from becoming a threat, either directly or indirectly, to the survival, abundance or evolutionary development of a native species, ecological community, ecosystem or agricultural commodity; and

(d) the Minister has granted a permit under Subdivision B for the import of the species.

Prohibited imports

(2) A species is a prohibited import if it falls into one of the following categories:

(a) pasture grasses;

(b) ornamental plants;

(c) aquarium fish;

(d) any other species as determined by the Minister, if the Minister is satisfied, on the advice of the Invasive Species Advisory Committee, that a species should be deemed to be a prohibited import.

(3) For the purposes of subsection (2)(d), it is within the discretion of the Minister to determine that a species is a prohibited import because it is a threat, either directly or indirectly, to the survival, abundance or evolutionary development of a native species, ecological community, ecosystem or agricultural commodity.

Invasive species currently present in Australia

(4) A species is:

(a) eradicable if:

(i) it is recognised as posing a risk, either directly or indirectly, to the survival, abundance or evolutionary development of a native species, ecological community, ecosystem or agricultural commodity; and

(ii) the Minister is satisfied, on the advice of the Invasive Species Advisory Committee, that it is considered that it can be eradicated from Australia;

(b) substantially containable if:

(i) it is recognised as posing a risk, either directly or indirectly, to the survival, abundance or evolutionary development of a native species, ecological community, ecosystem or agricultural commodity; and

(ii) the Minister is satisfied, on the advice of the Invasive Species Advisory Committee, that it can be successfully contained to the limited geographical area in Australia in which it is currently present and from which it is considered that it cannot be successfully eradicated;

(c) beyond eradication if:

(i) it is recognised as posing a risk, either directly or indirectly, to the survival, abundance or evolutionary development of a native species, ecological community, ecosystem or agricultural commodity; and

(ii) the Minister is satisfied, on the advice of the Invasive Species Advisory Committee, that it cannot be successfully eradicated from Australia;

(d) controlled if:

(i) it is not known to occur in Australia outside controlled environments; and

(ii) if released, it is recognised as posing a risk, either directly or indirectly, to the survival, abundance or evolutionary development of a native species, ecological community, ecosystem or agricultural commodity; and

(iii) the Minister is satisfied, on the advice of the Invasive Species Advisory Committee, that:

(A) it is considered that it can be successfully contained to the controlled environments in which it is present; and

(B) an invasive species threat abatement plan under Subdivision C is in place to contain the species to those environments;

(e) disregarded as an invasive species if the Minister is satisfied, on the advice of the Invasive Species Advisory Committee, that the species is considered not to pose a risk, either directly or indirectly:

(i) to the survival, abundance or evolutionary development of a native species, ecological community, ecosystem or agricultural commodity; or

(ii) to a listed threatened species or registered critical habitat;

(f) exempt from listing if the Minister is satisfied, on the advice of the Invasive Species Advisory Committee, that:

(i) it is:

(A) an established commercial agricultural commodity in Australia; or

(B) a species of domesticated animal established in Australia; and

(ii) a risk assessment has determined that the species:

(A) does not pose a risk, either directly or indirectly, to the survival, abundance or evolutionary development of a native species, ecological community, ecosystem or agricultural commodity; or

(B) if the species does pose a risk, either directly or indirectly, to the survival, abundance or evolutionary development of a native species, ecological community, ecosystem or agricultural commodity—does not pose such a risk in areas currently not infested by the species; and

(iii) the Minister has approved an invasive species threat abatement plan under Subdivision C to reduce the impacts of the species on native species, ecological communities, ecosystems and agricultural commodities.

266AD Minister may amend lists

(1) The Minister may, by instrument published in the Gazette, amend a list referred to in section 266AA by:

(a) including a species in the list; or

(b) deleting a species from the list; or

(c) transferring a species from one category in the list to another category in the list; or

(d) correcting an inaccuracy or updating the name of a listed species.

(2) The Minister must delete a species from the eradicable category if the species is successfully eradicated from Australia.

(3) An instrument (other than an instrument made under paragraph (1)(d), or an instrument made under paragraph (1)(b) because of subsection (2)) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

(4) Despite section 48 of the Acts Interpretation Act 1901 as it applies in relation to an instrument because of section 46A of that Act, instruments made paragraph (1)(b) or (c) take effect on the first day on which they are no longer liable to be disallowed, or to be taken to have been disallowed, under section 48 of that Act as it so applies.

(5) When an instrument is laid before each House of the Parliament in accordance with section 48 of the Acts Interpretation Act 1901, the Minister must cause a statement to be laid before each House with the instrument explaining:

(a) in the case of a species that has been included in the list by the instrument—why the species was so included; or

(b) in the case of a species that has been deleted from the list by the instrument—why the species was so deleted; or

(c) in the case of a species that has been transferred by the instrument from one category in the list to another category in the list—why the species has been so transferred.

(6) The Minister must cause a notice summarising the information contained in an instrument to be published in accordance with the regulations (if any).

266AE Minister must consider advice from Invasive Species Advisory Committee

(1) In deciding whether to amend the list referred to in section 266AA, the Minister must, in accordance with the regulations (if any), obtain and consider advice from the Invasive Species Advisory Committee on the proposed amendment.

(2) In preparing advice under subsection (1), the Invasive Species Advisory Committee may obtain advice from a person with expertise relevant to the subject matter of the proposed amendment.

(3) In preparing advice for a proposed amendment of the list referred to in subsection (1), the Invasive Species Advisory Committee must not consider any matter that does not relate to the minimisation of risk from the invasive species concerned.

(4) If an invasive species has been nominated under section 266AF to be listed, the Invasive Species Advisory Committee must give its advice to the Minister within 12 months, or such longer period as the Minister specifies, after the Committee receives the nomination from the Minister under that section.

(5) The Minister must:

(a) decide whether to amend the list; and

(b) if the Minister decides to amend the list—cause the necessary instrument to be published in the Gazette;

within 90 days after receiving the Invasive Species Advisory Committee’s advice on the amendment.

(6) A member of the Invasive Species Advisory Committee has a duty not to disclose to any other person the advice, or any information relating to the advice, before the end of that period of 90 days unless the disclosure:

(a) is for the official purposes of the Invasive Species Advisory Committee; or

(b) if an instrument is published in the Gazette relating to an amendment of a list to which the advice relates—occurred after the publication.

266AF Nomination of non-indigenous species as invasive species

(1) A person may, in accordance with the regulations (if any), nominate to the Minister a non-indigenous species to be:

(a) included in a particular category of the list referred to in section 266AA; or

(b) transferred from one category to another category of the list referred to in section 266AA.

(2) The Minister must forward a nomination to the Invasive Species Advisory Committee within 10 business days of receiving the nomination.

(3) If the Minister decides that a nominated non-indigenous species is not eligible to be included in the nominated category, the Minister must, in accordance with the regulations (if any):

(a) determine whether the species should be listed under another category; and

(b) advise the person who made the nomination of the Minister’s decision; and

(c) give to that person a statement of reasons why the species:

(i) is not eligible to be included in the nominated category; or

(ii) is eligible to be included in another category;

as the case requires.

(4) The Minister may, at any time, request a person who has made a nomination to provide additional information about the subject of the nomination within a period of not less than 3 months. At the time of the request, the Minister must provide the person with reasons why the information provided in the initial nomination was considered insufficient.

266AG Maintaining the list in an up-to-date condition

The Minister must take all reasonably practicable steps to amend the list referred to in section 266AA so that it contains:

(a) in respect of the category under paragraph 266AA(a)—all non-indigenous species for which an import permit has been issued; and

(b) in any other case—all non-indigenous species that are eligible to be, or capable of being, included in that category.

266AH Minister to make list available to the public

The Minister must, in accordance with the regulations (if any), make copies of the up-to-date list available for purchase, for a reasonable price, at a prescribed place in each State and self-governing Territory.

Subdivision B—Permit system

266BA Importing or possessing a listed invasive species

(1) A person is guilty of an offence if:

(a) the person imports a species; and

(b) the species is an invasive species listed under paragraph 266AA(b).

Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2: This section does not apply in the circumstances described in section 266BC. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.

(2) A person is guilty of an offence if:

(a) the person possesses a species; and

(b) the species is an invasive species listed under paragraph 266AA(b).

Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2: This section does not apply in the circumstances described in section 266BC. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.

(3) Strict liability applies to paragraph (1)(a).

Note: For strict liability, see section 6.1 of the Criminal Code.

(4) The offence is punishable on conviction by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty units, or both.

266BB Importing or possessing a listed invasive species for the purposes of trade and commerce

(1) A person is guilty of an offence if:

(a) the person imports, or is in possession or control of a species for the purposes of trade or commerce within the meaning of paragraph 51(i) of the Constitution; and

(b) the species is listed under a category of invasive species listed under paragraph 266AA(b) or subparagraph 266AA(c)(i), (ii) or (iii).

Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2: This section does not apply in the circumstances described in section 266BC. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.

(2) Strict liability applies to paragraph (1)(a).

Note: For strict liability, see section 6.1 of the Criminal Code.

(3) The offence is punishable on conviction by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty units, or both.

266BC Certain actions are not offences

Sections 266BA and 266BB do not apply to:

(a) an action authorised by a permit that was issued under section 266BE and is in force; or

(b) an action provided for by, and done in accordance with, an invasive species threat abatement plan in force under Subdivision C; or

(c) an action that is reasonably necessary to prevent a risk to human health; or

(d) an action by a Commonwealth agency, or an agency of a State or of a self-governing Territory, that is reasonably necessary for the purposes of law enforcement; or

(e) an action that is reasonably necessary to deal with an emergency involving a serious threat to human life or property.

Note: A defendant bears an evidential burden in relation to the matters in this section. See subsection 13.3(3) of the Criminal Code.

266BD Application for permits

(1) A person may, in accordance with the regulations, apply to the Minister for a permit to be issued under section 266BE.

(2) The application must be accompanied by the fee prescribed by the regulations (if any).

(3) If the application is an application to import a non-indigenous species, the application must contain the following information:

(a) biological information about the species including:

(i) its natural habitat; and

(ii) its method and rate of reproduction; and

(iii) its sources of food; and

(iv) any other information relevant to a risk assessment of the species; and

(b) an assessment of the likelihood of the species becoming a pest in Australia; and

(c) whether the species has been imported into any other country and whether it has become a pest in that country; and

(d) details of any studies conducted in Australia or in any other country relating to the potential of the species to become a pest; and

(e) the reason for importing the species.

(4) As soon as practicable after receiving the application, the Minister must cause notice of the application to be given to each person and body registered under section 266A (about registration for consultation on permit applications).

(5) The notice must:

(a) state that an application for a permit has been made; and

(b) set out details of the application; and

(c) invite persons and bodies to make written submissions to the Minister about whether a permit should be issued; and

(d) specify:

(i) an address for lodgment of submissions; and

(ii) a day by which submissions must be lodged.

(6) The day specified must not be a day occurring within 5 days after the last day on which the notice was given.

266BE Minister may issue permits

(1) Subject to this section, the Minister may, on application by a person under section 266BD, issue a permit to the person.

Note: The precautionary principle applies to the Minister’s decision whether to issue a permit: see section 391.

(2) A permit authorises its holder to take an action specified in the permit without breaching section 266BA or 266BB.

(3) The Minister may issue a permit for the commercial sale, trade or propagation of a non-indigenous species for the purposes of food production if:

(a) there is a demonstrated need for the species to be used for food production in Australia; and

(b) there is a low risk that the species will have an impact on listed threatened species or listed threatened ecological communities; and

(c) the Minister has approved an invasive species threat abatement plan for the species under Subdivision C.

(4) Before granting an application for a permit for the importation, possession or control of an invasive species, the Minister may require the applicant to undertake field trials of the species for the purpose of providing evidence about its behaviour.

(5) No action lies against the Commonwealth for the recovery of any costs incurred by a person in undertaking field trials for the purposes of subsection (4).

266BF Conditions of permits

(1) A permit is subject to such conditions as are specified in the permit or as are imposed under subsection (2).

(2) The Minister may, in accordance with the regulations:

(a) vary or revoke a condition of a permit; or

(b) impose a further condition or conditions of a permit.

(3) Without limiting subsections (1) and (2), conditions of a permit may include conditions stating the period within which the action specified in the permit may be taken.

266BG Contravening conditions of a permit

The holder of a permit is guilty of an offence punishable on conviction by a fine not exceeding 300 penalty units if:

(a) he or she does, or fails to do, an act or thing; and

(b) doing, or failing to do, the act or thing results in a contravention of a condition of the permit.

266BH Authorities under permits

(1) Subject to subsection (2), the holder of a permit may give to 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.

(2) 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.

(3) 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.

(4) The giving of an authority does not prevent the taking of any action by the holder of the permit.

(5) 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.

(6) A person who gives an authority must give to the Minister written notice of it within 14 days after giving the authority.

266BI Transfer of permits

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.

266BJ Suspension or cancellation of permits

(1) The Minister may, in accordance with the regulations:

(a) suspend a permit for a specified period; or

(b) cancel a permit.

(2) The Minister must cancel the permit if the species imported under permit is determined by the Minister to have become an invasive species.

(3) If the permit is cancelled, the Minister must amend the list in accordance with section 266AD.

266BK Review of decisions about permits

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.

266BL Fees

Such fees as are prescribed (if any) are payable in respect of the following:

(a) the grant 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.

Subdivision C—Invasive species threat abatement plans

266CA Management of invasive species currently in Australia

An invasive species threat abatement plan may be made under this Subdivision in order to provide for the management of an invasive species currently present in Australia.

266CB Compliance with plans

A Commonwealth agency must not take any action that contravenes an invasive species threat abatement plan made under this Subdivision.

266CC Implementing plans

(1) Subject to subsection (2), the Commonwealth must implement an invasive species threat abatement plan made under this Subdivision to the extent to which it applies in Commonwealth areas.

(2) If an invasive species threat abatement plan made under this Subdivision 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.

266CD Making or adopting an invasive species threat abatement plan

(1) The Minister must exercise his or her powers under this section to ensure that there is always in force an invasive species threat abatement plan for each listed invasive species once the first invasive species threat abatement plan for the species has come into force.

(2) The Minister must make a written invasive species threat abatement plan for any species deemed:

(a) eradicable; or

(b) substantially containable.

(3) Invasive species threat abatement plans must be prepared for:

(a) eradicable species—within 2 years of listing; and

(b) substantially containable species—within 5 years of listing.

(4) The Minister may make a written invasive species threat abatement plan for the purposes of containing the spread of, or eradicating, an invasive species jointly with the States and self-governing Territories in which the species occurs, or is likely to occur, or with agencies of those States and Territories.

(5) The Minister may prepare an invasive species threat abatement plan for any other species currently present in Australia.

(6) Before making a written invasive species threat abatement plan under subsection (2) or (4), the Minister must:

(a) consult the appropriate Minister of each State and self-governing Territory in which the species occurs, or is likely to 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 (4);

unless the species occurs or is likely to occur, only in a Commonwealth area; and

(b) consider the advice of the Invasive Species Advisory Committee given under section 266CG; and

(c) consult about the plan and consider comments in accordance with sections 266CH and 266CI.

(7) The Minister must not make an invasive species threat abatement plan under subsection (2) for a species that occurs, or is likely to occur, wholly or partly outside a Commonwealth area unless the Minister is satisfied that it is not reasonably practicable to make the plan under subsection (4):

(a) with each of the States and self-governing Territories in which the species occurs, or is likely to occur; and

(b) in the case of a species that occurs, or is likely to occur, partly inside and partly outside a Commonwealth area—within 2 years after the species is listed.

(8) The Minister may, by instrument in writing, adopt as an invasive species threat abatement 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 266CJ.

Note: Section 266CJ requires that:

(a) an adopted plan have the content required for a plan by section 266CE; and

(b) there has been adequate consultation in making the plan adopted; and

(c) the Minister consult the Invasive Species Advisory Committee about the content of the plan.

(9) An invasive species threat abatement plan adopted under subsection (8) has effect as if it had been made under subsection (2) (whether it was adopted with modifications or not).

266CE Content of plans

An invasive species threat abatement plan made or adopted under this Subdivision must:

(a) specify the desired outcomes of the plan; and

(b) identify practical measures to achieve the outcomes; and

(c) identify the research or management actions necessary for the control, management, eradication or containment of the species, as the case requires; and

(d) include priorities and timeframes for the achievement of the outcomes; and

(e) identify animal welfare issues that the control, management, eradication or containment strategies may raise; and

(f) ensure that the methods of control, management, eradication and containment meet international best practice in relation to animal welfare.

266CF When a plan comes into force

An invasive species threat abatement plan made or adopted under this Subdivision comes into force on the day on which it is made or adopted, or on a later day specified by the Minister in writing and published in the Gazette.

266CG Invasive Species Advisory Committee to advise on plans

(1) The Minister must obtain and consider the advice of the Invasive Species Advisory Committee on:

(a) the content of invasive species threat abatement plans made or adopted under this Subdivision; and

(b) the times within which, and the order in which, such invasive species threat abatement plans should be made or adopted; and

(c) the review of measures contained in invasive species threat abatement plans; and

(d) the review of invasive species threat abatement plans under section 266CL; and

(e) the giving of assistance under section 266CN in making or implementing invasive species threat abatement plans.

(2) In giving advice about invasive species threat abatement plans made or adopted under this Subdivision, the Invasive Species Advisory Committee must give priority to the need to minimise the threat that invasive species pose to the survival, abundance or evolutionary development of native species, ecological communities, ecosystems or agricultural commodities.

266CH Consultation on plans

(1) Before making an invasive species threat abatement plan under this Subdivision, the Minister must:

(a) take reasonable steps to ensure that copies of the proposed plan are available for purchase, for a reasonable price, at prescribed places in each State and self-governing Territory; and

(b) give a copy of it, together with a notice of a kind referred to in subsection (2), to the Invasive Species Advisory 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 invasive species occurs or is likely to occur; and

(iii) on the Internet; and

(iv) 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 in the notice must not be a day occurring within 3 months after the notice is published in the Gazette.

266CI Consideration of comments

The Minister:

(a) must, in accordance with the regulations (if any), consider all comments on a proposed plan made in response to an invitation under section 266CH; and

(b) may revise the plan to take account of those comments.

266CJ Adoption of State plans

(1) The Minister must not adopt an invasive species threat abatement plan under this Subdivision unless:

(a) the Minister is satisfied that an appropriate level of consultation has been undertaken in making the plan; and

(b) the plan meets the requirements of section 266CE.

(2) Before adopting an invasive species threat abatement plan, the Minister must obtain and consider advice from the Invasive Species Advisory Committee on the content of the plan.

266CK Publication, review and variation of plans

(1) As soon as practicable after the Minister makes or adopts an invasive species 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) on the Internet; and

(iv) 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.

266CL Variation of plans by the Minister

(1) The Minister may, at any time, review an invasive species 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 2 years.

(3) If the Minister considers that a variation of a plan is necessary, the Minister may, subject to subsections (4), (5), (6) and (7), vary the plan.

(4) The Minister must not vary a plan, unless the plan, as so varied, continues to meet the requirements of section 266CE.

(5) Before varying a plan, the Minister must obtain and consider advice from the Invasive Species Advisory 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 266CH, 266CI and 266CK apply to the variation of a plan in the same way that those sections apply to the making of a plan.

266CM Variation by a State or Territory of joint plans and plans adopted by the Minister

(1) If a State or self-governing Territory varies an invasive species threat abatement 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 Invasive Species Advisory Committee on the content of the variation.

(3) The Minister must not approve a variation unless satisfied that:

(a) an appropriate level of consultation was undertaken in varying the plan; and

(b) the plan, as so varied, continues to meet the requirements of section 266CE.

(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 266CK applies to the variation of a plan in the same way that it applies to the making of a plan.

266CN 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 an invasive species threat abatement plan under this Subdivision.

(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 plan under this Subdivision.

(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 Invasive Species Advisory Committee under section 266CO before determining those conditions.

266CO Invasive Species Advisory Committee to advise on assistance

(1) The Invasive Species Advisory Committee is to advise the Minister on the conditions (if any) to which the giving of assistance under section 266CN should be subject.

(2) In giving advice about assistance for making or implementing an invasive species threat abatement plan made or adopted under this Subdivision, the Invasive Species Advisory Committee must give priority to the need to minimise the threat that invasive species pose to the survival, abundance or evolutionary development of native species, ecological communities, ecosystems or agricultural commodities.

266CP Plans may cover more than one species etc.

An invasive species threat abatement plan made or adopted under this Subdivision may deal with one or more listed invasive species.

266CQ Reports on preparation and implementation of plans

(1) The Secretary must include in each annual report a report on the making and adoption under this Subdivision of each invasive species threat abatement plan during the year to which the report relates.

(2) The Secretary must include in each annual report a report on the status and implementation of each plan in existence during the year to which the report relates.

266CR General management provision

(1) The Minister may, by instrument in writing, make an interim action statement for the purpose of identifying practical measures to control, manage, eradicate and contain an invasive species in the following categories:

(a) eradicable;

(b) substantially containable;

(c) controlled.

(2) An interim action statement comes into force on the day on which it is made and continues in force until such time as the species becomes subject to an invasive species threat abatement plan made or adopted under this Subdivision.

Subdivision D—Miscellaneous

266DA Trader in non-indigenous species to be registered

(1) This section applies to:

(a) a constitutional corporation; and

(b) a person engaged in trade and commerce within the meaning of paragraph 51(i) of the Constitution; and

(c) the Commonwealth or an agency of the Commonwealth; and

(d) a Territory or an agency of a Territory.

(2) A person who engages in the sale, trade, breeding, propagation or duplication of any non-indigenous species for commercial purposes, other than a species exempt from listing, must be registered as a trader in non-indigenous species.

(3) Contravention of subsection (2) is an offence punishable on conviction by a fine not exceeding 20 penalty units.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

(4) Strict liability applies to subsection (3).

Note: For strict liability, see section 6.1 of the Criminal Code.

(5) The Minister must maintain a list of persons registered under this section.

(6) The Minister must provide copies of the list made under section 266AA, as amended from time to time, to each person registered under this section.

266DB Warning requirement

A person registered under section 266DA must provide a pest warning in the prescribed form with the sale or trade of any member of a non-indigenous species.

2 Subsection 266A(1)

Omit “or 4”, substitute “, 4 or 4AA”.

3 Subsection 391(3) (after table item 6)

Insert: