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This is a Bill, not an Act. For current law, see the Acts databases.
1998
The Parliament of
the
Commonwealth of
Australia
THE
SENATE
Presented and read a first
time
Environment
Protection and Biodiversity Conservation Bill
1998
No. ,
1998
(Environment and
Heritage)
A Bill for an Act relating to the
protection of the environment and the conservation of biodiversity, and for
related purposes
ISBN: 0642 376964
Contents
A Bill for an Act relating to the protection of the
environment and the conservation of biodiversity, and for related
purposes
The Parliament of Australia enacts:
This Act may be cited as the Environment Protection and Biodiversity
Conservation Act 1998.
(1) Subject to subsection (2), this Act commences on a day to be fixed by
Proclamation.
(2) If this Act does not commence under subsection (1) within the period
of 6 months beginning on the day on which it receives the Royal Assent, it
commences on the first day after the end of that period.
(1) The objects of this Act are:
(a) to provide for the protection of the environment, especially those
aspects of the environment that are matters of national environmental
significance; and
(b) to promote ecologically sustainable development through the
conservation and ecologically sustainable use of natural resources;
and
(c) to promote the conservation of biodiversity; and
(d) to promote a co-operative approach to the protection and management of
the environment involving governments, the community and land-holders;
and
(e) to assist in the co-operative implementation of Australia’s
international environmental responsibilities.
(2) In order to achieve its objects, the Act:
(a) recognises an appropriate role for the Commonwealth in relation to the
environment by focussing Commonwealth involvement on matters of national
environmental significance and on Commonwealth actions and Commonwealth areas;
and
(b) strengthens intergovernmental co-operation, and minimises duplication,
through bilateral agreements; and
(c) provides for the intergovernmental accreditation of environmental
assessment and approval processes; and
(d) adopts an efficient and timely Commonwealth environmental assessment
and approval process that will ensure activities that are likely to have
significant impacts on the environment are properly assessed; and
(e) enhances Australia’s capacity to ensure the conservation of its
biodiversity by including provisions to:
(i) protect native species (and in particular prevent the extinction, and
promote the recovery, of threatened species) and ensure the conservation of
migratory species; and
(ii) establish an Australian Whale Sanctuary to ensure the conservation of
whales and other cetaceans; and
(iii) protect ecosystems by means that include the establishment and
management of reserves, the recognition and protection of ecological communities
and the promotion of off-reserve conservation measures; and
(iv) identify processes that threaten all levels of biodiversity and
implement plans to address these processes; and
(f) includes provisions to enhance the protection, conservation and
presentation of world heritage properties and the conservation and wise use of
Ramsar wetlands of international importance; and
(g) promotes a partnership approach to environmental protection and
biodiversity conservation through bilateral agreements with States and
Territories, conservation agreements with land-holders and the involvement of
the community in management planning.
(1) This Act binds the Crown in each of its capacities.
(2) This Act does not make the Crown liable to be prosecuted for an
offence. However, the Crown must not do anything that would be an offence
against this Act if done by anyone else.
Extension to external Territories
(1) This Act extends to each external Territory.
Limited extraterritorial application
(2) This Act applies to acts, omissions, matters and things in the
Australian jurisdiction, and does not apply to acts, omissions, matters and
things outside the Australian jurisdiction except so far as the contrary
intention appears.
Application limited to Australians outside exclusive economic
zone
(3) A provision of this Act that has effect in relation to a place that is
outside the outer limits of the exclusive economic zone and is not on or in the
continental shelf applies only in relation to:
(a) Australian citizens; and
(b) persons who:
(i) are not Australian citizens; and
(ii) hold permanent visas under the Migration Act 1958;
and
(iii) are domiciled in Australia or an external Territory; and
(c) corporations incorporated in Australia or an external Territory;
and
(d) the Commonwealth; and
(e) Commonwealth agencies; and
(f) Australian aircraft; and
(g) Australian vessels; and
(h) members of crews of Australian aircraft and Australian vessels
(including persons in charge of aircraft or vessels).
Application to everyone in Australia and exclusive economic
zone
(4) A provision of this Act that has effect in relation to a place that is
within the outer limits of the exclusive economic zone (whether the place is in
the zone or in Australia or an external Territory) or that is on or in the
continental shelf applies in relation to:
(a) all persons (including persons who are not Australian citizens);
and
(b) all aircraft (including aircraft that are not Australian aircraft);
and
(c) all vessels (including vessels that are not Australian
vessels).
Note: A reference to Australia or to an external Territory
generally includes a reference to the coastal sea of Australia or the Territory
(as appropriate). See section 15B of the Acts Interpretation Act
1901.
Definitions
(5) In this Act:
Australian aircraft means:
(a) an aircraft that is owned, possessed or controlled by:
(i) the Commonwealth or a Commonwealth agency; or
(ii) a State, a self-governing Territory or an agency of a State or
self-governing Territory; or
(b) an aircraft that is registered in Australia.
Australian jurisdiction means the land, waters, seabed and
airspace in, under or above:
(a) Australia; or
(b) an external Territory; or
(c) the exclusive economic zone; or
(d) the continental shelf.
Note: A reference to Australia or to an external Territory
generally includes a reference to the coastal sea of Australia or the Territory
(as appropriate). See section 15B of the Acts Interpretation Act
1901.
Australian vessel means:
(a) a vessel that is owned, possessed or controlled by:
(i) the Commonwealth or a Commonwealth agency; or
(ii) a State, a self-governing Territory or an agency of a State or
self-governing Territory; or
(b) a vessel that is registered in Australia; or
(c) a vessel that is flying the Australian flag.
This Act has effect subject to Australia’s obligations under any
agreement between Australia and one or more other countries.
Chapter 2 of the Criminal Code applies to all offences against
this Act.
To avoid doubt, nothing in this Act affects the operation of section 211
of the Native Title Act 1993 in relation to a provision of this
Act.
Note: Section 211 of the Native Title Act 1993
provides that holders of native title rights covering certain activities do not
need authorisation required by other laws to engage in those
activities.
Airports Act 1996 not affected
(1) This Act does not affect the operation of the Airports Act
1996.
Antarctic Treaty (Environment Protection) Act 1980 not
affected
(2) To avoid doubt, nothing in this Act affects the operation of
subsection 7(1) of the Antarctic Treaty (Environment Protection) Act 1980
or regulations made for the purposes of that subsection.
Australian Heritage Commission Act 1975 does not apply
(3) The making of a decision, or the giving of an approval, under this Act
is not an action for the purposes of section 30 of the Australian Heritage
Commission Act 1975.
This Act is not intended to exclude or limit the concurrent operation of
any law of a State or Territory, except so far as the contrary intention
appears.
The following is a simplified outline of this Chapter:
This Chapter provides a basis for the Minister to decide whether an action
that has, will have or is likely to have a significant impact on certain aspects
of the environment should proceed.
It does so by prohibiting a person from taking an action without the
Minister having given approval or decided that approval is not needed. (Part 9
deals with the giving of approval.)
Approval is not needed to take an action if any of the following declare
that the action does not need approval:
(a) a bilateral agreement between the Commonwealth and the State or
Territory in which the action is taken;
(b) a declaration by the Minister;
(c) a conservation agreement.
Also, an action does not need approval if it is taken in accordance with
Regional Forest Agreements or a plan for managing the Great Barrier
Reef.
(1) A person must not take an action that:
(a) has or will have a significant impact on the world heritage values of
a declared World Heritage property; or
(b) is likely to have a significant impact on the world heritage values of
a declared World Heritage property.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
(2) Subsection (1) does not apply to an action if:
(a) an approval of the taking of the action by the person is in operation
under Part 9 for the purposes of this section; or
(b) Part 4 lets the person take the action without an approval under Part
9 for the purposes of this section; or
(c) there is in force a decision of the Minister under Division 2 of Part
7 that:
(i) the action is not a controlled action; or
(ii) the action is a controlled action but this section is not a
controlling provision for the action; or
(d) the action is an action described in subsection 160(2) (which
describes actions whose authorisation is subject to a special environmental
assessment process), or the giving of an authorisation (however described) of
such an action.
(3) A property has world heritage values only if it contains
natural heritage or cultural heritage. The world heritage values
of the property are the natural heritage and cultural heritage contained in the
property.
(4) In this Act:
cultural heritage has the meaning given by the World Heritage
Convention.
natural heritage has the meaning given by the World Heritage
Convention.
Properties on World Heritage List
(1) A property included in the World Heritage List is a declared
World Heritage property as long as the property is included in the
List.
Properties not yet on World Heritage list
(2) A property specified in a declaration made under section 14 (with any
amendments made under section 15) is a declared World Heritage
property for the period for which the declaration is in force.
Making declarations
(1) The Minister may declare a specified property to be a declared World
Heritage property by notice in the Gazette if:
(a) the property is a property submitted by the Commonwealth to the World
Heritage Committee under Article 11 of the World Heritage Convention as suitable
for inclusion in the World Heritage List; or
(b) the Minister is satisfied that:
(i) the property has, or is likely to have, world heritage values;
and
(ii) some or all of the world heritage values of the property are under
threat.
Note 1: The Minister may make more than one declaration
relating to the same property. See subsection 33(1) of the Acts
Interpretation Act 1901.
Note 2: The Minister may make an extra declaration to cover
property that is an extension of a property previously submitted to the World
Heritage Committee.
Consulting State or Territory before making declaration
(2) Before the Minister makes a declaration relating to property wholly or
partly within a State or self-governing Territory, the Minister must inform the
appropriate Minister of the State or Territory of the proposal to make the
declaration, and give him or her a reasonable opportunity to comment on the
proposal.
Consultation not required if threat is imminent
(3) However, the Minister need not comply with subsection (2)
if:
(a) he or she proposes to make a declaration in the circumstances
described in paragraph (1)(b); and
(b) he or she is satisfied that the threat mentioned in subparagraph
(1)(b)(ii) is imminent.
Failure to comply with subsection (2)
(4) The validity of a declaration is not affected by a failure to comply
with subsection (2) in relation to the making of the declaration.
When a declaration is in force
(5) A declaration:
(a) comes into force when it is published in the Gazette;
and
(b) remains in force (whether amended under section 15 or not) until the
earliest of the following events:
(i) the end of the period specified in the declaration as the period for
which the declaration is in force;
(ii) the revocation of the declaration;
(iii) if the declaration specifies a property submitted to the World
Heritage Committee for inclusion in the World Heritage List—the Committee
either includes the property in the List or decides the property should not be
included in the List.
Specified period for which declaration is in force
(6) The Minister must specify in a declaration the period for which it is
to be in force. The period must not be longer than the period the Minister
believes:
(a) the World Heritage Committee needs to decide whether or not to include
the property in the World Heritage List, in the case of a declaration specifying
a property that has been submitted to the Committee for inclusion in the List;
or
(b) the Commonwealth needs to decide whether the property has world
heritage values and to submit the property to the World Heritage Committee for
inclusion in the World Heritage List, in the case of a declaration specifying a
property not yet submitted to the Committee for inclusion in the List.
Revoking declarations specifying nominated property
(1) The Minister must, by notice in the Gazette, revoke a
declaration made under section 14 specifying a property that has been submitted
to the World Heritage Committee for inclusion in the World Heritage List if the
Commonwealth decides to withdraw the submission of the property for inclusion in
the List.
Amending declarations specifying nominated property
(2) The Minister must, by notice in the Gazette, amend a
declaration made under section 14 specifying a property that has been submitted
to the World Heritage Committee for inclusion in the World Heritage List so as
to remove from the specification any part of the property that the Commonwealth
decides to withdraw from the submission.
Revoking declarations specifying property not yet
nominated
(3) The Minister must, by notice in the Gazette, revoke a
declaration made under section 14 specifying a property that is not submitted to
the World Heritage Committee for inclusion in the World Heritage List
if:
(a) the Minister is satisfied that the property does not have world
heritage values; or
(b) the Commonwealth decides not to submit the property to the Committee
for inclusion in the List; or
(c) the Minister is satisfied that none of the world heritage values of
the property are under threat.
(1) A person must not take an action that:
(a) has or will have a significant impact on the ecological character of a
declared Ramsar wetland; or
(b) is likely to have a significant impact on the ecological character of
a declared Ramsar wetland.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
(2) Subsection (1) does not apply to an action if:
(a) an approval of the taking of the action by the person is in operation
under Part 9 for the purposes of this section; or
(b) Part 4 lets the person take the action without an approval under Part
9 for the purposes of this section; or
(c) there is in force a decision of the Minister under Division 2 of Part
7 that:
(i) the action is not a controlled action; or
(ii) the action is a controlled action but this section is not a
controlling provision for the action; or
(d) the action is an action described in subsection 160(2) (which
describes actions whose authorisation is subject to a special environmental
assessment process), or the giving of an authorisation (however described) of
such an action.
(3) In this Act:
ecological character has the same meaning as in the Ramsar
Convention.
Areas designated for listing
(1) A wetland, or part of a wetland, designated by the Commonwealth under
Article 2 of the Ramsar Convention for inclusion in the List of Wetlands of
International Importance kept under that Article is a declared Ramsar
wetland as long as the wetland or part is not:
(a) excluded by the Commonwealth from the boundaries of a wetland in the
List under that Article; or
(b) deleted by the Commonwealth from the List under that
Article.
Areas declared by the Minister
(2) A wetland, or part of a wetland, is also a declared Ramsar
wetland for the period for which a declaration of the wetland as a
declared Ramsar wetland is in force.
Threatened wetlands of international importance
(3) The Minister may declare a specified wetland to be a declared Ramsar
wetland by notice in the Gazette if the Minister is satisfied
that:
(a) the wetland is of international significance or is likely to be of
international significance because of its ecology, botany, zoology, limnology or
hydrology; and
(b) the ecological character of some or all of the wetland is under
threat.
Note: The Minister may make more than one declaration of the
same wetland under this section. See subsection 33(1) of the Acts
Interpretation Act 1901.
When a declaration is in force
(4) A declaration comes into force on the day it is published in the
Gazette and remains in force for the period specified in the declaration,
unless it is revoked earlier.
Specifying period for which declaration is in force
(5) The Minister must specify in a declaration the period for which it is
to be in force. The period must not be longer than the period the Minister
believes the Commonwealth needs to:
(a) decide whether the wetland is of international significance in terms
of ecology, botany, zoology, limnology or hydrology; and
(b) designate the wetland for inclusion in the List of Wetlands of
International Importance kept under Article 2 of the Ramsar
Convention.
Revocation of declaration of threatened wetland
(6) The Minister must, by notice in the Gazette, revoke a
declaration of a wetland if:
(a) the Minister is satisfied that the wetland is not of international
significance because of its ecology, botany, zoology, limnology or hydrology;
or
(b) the Minister is satisfied that there is no longer a threat to any part
of the wetland.
Species that are extinct in the wild
(1) A person must not take an action that:
(a) has or will have a significant impact on a listed threatened species
included in the extinct in the wild category; or
(b) is likely to have a significant impact on a listed threatened species
included in the extinct in the wild category.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
Critically endangered species
(2) A person must not take an action that:
(a) has or will have a significant impact on a listed threatened species
included in the critically endangered category; or
(b) is likely to have a significant impact on a listed threatened species
included in the critically endangered category.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
Endangered species
(3) A person must not take an action that:
(a) has or will have a significant impact on a listed threatened species
included in the endangered category; or
(b) is likely to have a significant impact on a listed threatened species
included in the endangered category.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
Vulnerable species
(4) A person must not take an action that:
(a) has or will have a significant impact on a listed threatened species
included in the vulnerable category; or
(b) is likely to have a significant impact on a listed threatened species
included in the vulnerable category.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
Critically endangered communities
(5) A person must not take an action that:
(a) has or will have a significant impact on a listed threatened
ecological community included in the critically endangered category;
or
(b) is likely to have a significant impact on a listed threatened
ecological community included in the critically endangered category.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
Endangered communities
(6) A person must not take an action that:
(a) has or will have a significant impact on a listed threatened
ecological community included in the endangered category; or
(b) is likely to have a significant impact on a listed threatened
ecological community included in the endangered category.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
(1) A subsection of section 18 relating to a listed threatened species
does not apply to an action if an approval of the taking of the action by the
person is in operation under Part 9 for the purposes of any subsection of that
section that relates to a listed threatened species.
(2) A subsection of section 18 relating to a listed threatened ecological
community does not apply to an action if an approval of the taking of the action
by the person is in operation under Part 9 for the purposes of either subsection
of that section that relates to a listed threatened ecological
community.
(3) A subsection of section 18 does not apply to an action if:
(a) Part 4 lets the person take the action without an approval under Part
9 for the purposes of the subsection; or
(b) there is in force a decision of the Minister under Division 2 of Part
7 that:
(i) the action is not a controlled action; or
(ii) the action is a controlled action but the subsection is not a
controlling provision for the action; or
(c) the action is an action described in subsection 160(2) (which
describes actions whose authorisation is subject to a special environmental
assessment process), or the giving of an authorisation (however described) of
such an action.
(1) A person must not take an action that:
(a) has or will have a significant impact on a listed migratory species;
or
(b) is likely to have a significant impact on a listed migratory
species.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
(2) Subsection (1) does not apply to an action if:
(a) an approval of the taking of the action by the person is in operation
under Part 9 for the purposes of this section; or
(b) Part 4 lets the person take the action without an approval under Part
9 for the purposes of this section; or
(c) there is in force a decision of the Minister under Division 2 of Part
7 that:
(i) the action is not a controlled action; or
(ii) the action is a controlled action but this section is not a
controlling provision for the action; or
(d) the action is an action described in subsection 160(2) (which
describes actions whose authorisation is subject to a special environmental
assessment process), or the giving of an authorisation (however described) of
such an action.
(1) A constitutional corporation, the Commonwealth or Commonwealth agency
must not take a nuclear action that has, will have or is likely to have a
significant impact on the environment.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
(2) A person must not, for the purposes of trade or commerce:
(a) between Australia and another country; or
(b) between 2 States; or
(c) between a State and a Territory; or
(d) between 2 Territories;
take a nuclear action that has, will have or is likely to have a
significant impact on the environment.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
(3) A person must not take in a Territory a nuclear action that has, will
have or is likely to have a significant impact on the environment.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
(4) Subsections (1), (2) and (3) do not apply to an action if:
(a) an approval of the taking of the action by the constitutional
corporation, Commonwealth agency, Commonwealth or person is in operation under
Part 9 for the purposes of this section; or
(b) Part 4 lets the constitutional corporation, Commonwealth agency,
Commonwealth or person take the action without an approval under Part 9 for the
purposes of this section; or
(c) there is in force a decision of the Minister under Division 2 of Part
7 that:
(i) the action is not a controlled action; or
(ii) the action is a controlled action but this section is not a
controlling provision for the action; or
(d) the action is an action described in subsection 160(2) (which
describes actions whose authorisation is subject to a special environmental
assessment process), or the giving of an authorisation (however described) of
such an action.
(1) In this Act:
nuclear action means any of the following:
(a) establishing or significantly modifying a nuclear installation or a
facility for storing spent nuclear fuel;
(b) transporting spent nuclear fuel or radioactive waste products arising
from reprocessing;
(c) establishing or significantly modifying a facility for storing
radioactive waste products arising from reprocessing;
(d) mining or milling uranium ore;
(e) establishing or significantly modifying a large-scale disposal
facility for radioactive waste;
(f) de-commissioning or rehabilitating any facility or area in which an
activity described in paragraph (a), (b), (c), (d) or (e) has been
undertaken;
(g) any other action prescribed by the regulations.
nuclear installation means any of the following:
(a) a nuclear fuel fabrication plant;
(b) a nuclear reactor (including critical and subcritical
assemblies);
(c) a research reactor;
(d) a nuclear power plant;
(e) a nuclear fuel storage facility;
(f) an enrichment plant;
(g) a reprocessing facility.
nuclear reactor means a device in which a fission chain
reaction can be initiated, maintained and controlled.
radioactive waste means radioactive material for which no
further use is foreseen.
reprocessing means a process or operation to extract
radioactive isotopes from spent nuclear fuel for further use.
spent nuclear fuel means nuclear fuel that has been
irradiated in a nuclear reactor core and permanently removed from the
core.
(2) In this Act:
large-scale disposal facility for radioactive waste means, if
regulations are made for the purposes of this definition, a facility prescribed
by the regulations.
Actions in Commonwealth marine areas affecting the
environment
(1) A person must not take in a Commonwealth marine area an action that
has, will have or is likely to have a significant impact on the
environment.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
Actions outside Commonwealth marine areas affecting those
areas
(2) A person must not take outside a Commonwealth marine area but in the
Australian jurisdiction an action that:
(a) has or will have a significant impact on the environment in a
Commonwealth marine area; or
(b) is likely to have a significant impact on the environment in a
Commonwealth marine area.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
Fishing in State or Territory waters managed by
Commonwealth
(3) A person must not take in the coastal waters (as defined in the
Fisheries Management Act 1991) of a State or the Northern Territory an
action:
(a) that:
(i) is fishing (as defined in the Fisheries Management Act 1991);
and
(ii) is included in the class of activities forming a fishery (as defined
in that Act) that is managed under the law of the Commonwealth as a result of an
agreement made under section 71 or 72 of that Act before the commencement of
this section; and
(b) that:
(i) has or will have a significant impact on the environment in those
coastal waters; or
(ii) is likely to have a significant impact on the environment in those
coastal waters.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
Exceptions to prohibitions
(4) Subsection (1), (2) or (3) does not apply to an action if:
(a) an approval of the taking of the action by the person is in operation
under Part 9 for the purposes of the subsection; or
(b) Part 4 lets the person take the action without an approval under Part
9 for the purposes of the subsection; or
(c) there is in force a decision of the Minister under Division 2 of Part
7 that:
(i) the action is not a controlled action; or
(ii) the action is a controlled action but the subsection is not a
controlling provision for the action; or
(d) the person taking the action is the Commonwealth or a Commonwealth
agency; or
(e) the action is an action described in subsection 160(2) (which
describes actions whose authorisation is subject to a special environmental
assessment process), or the giving of an authorisation (however described) of
such an action.
Note: Section 28 regulates actions by the Commonwealth or a
Commonwealth agency with a significant impact on the
environment.
Exception—fishing in Commonwealth waters managed by
State
(5) Subsection (1) does not apply to an action if the action:
(a) is fishing (as defined the Fisheries Management Act 1991);
and
(b) is included in the class of activities forming a fishery (as defined
in that Act) that is managed under the law of a State or the Northern Territory
as a result of an agreement made under section 71 or 72 of that Act before the
commencement of this section; and
(c) is permitted under a law of the State or Territory.
Each of the following is a Commonwealth marine
area:
(a) any waters of the sea inside the seaward boundary of the exclusive
economic zone, except:
(i) waters, rights in respect of which have been vested in a State by
section 4 of the Coastal Waters (State Title) Act 1980 or in the Northern
Territory by section 4 of the Coastal Waters (Northern Territory Title) Act
1980; and
(ii) waters within the limits of a State or the Northern
Territory;
(b) the seabed under waters covered by paragraph (a);
(c) airspace over waters covered by paragraph (a);
(d) any waters over the continental shelf, except:
(i) waters, rights in respect of which have been vested in a State by
section 4 of the Coastal Waters (State Title) Act 1980 or in the Northern
Territory by section 4 of the Coastal Waters (Northern Territory Title) Act
1980; and
(ii) waters within the limits of a State or the Northern Territory;
and
(iii) waters covered by paragraph (a);
(e) any seabed under waters covered by paragraph (d);
(f) any airspace over waters covered by paragraph (d).
(1) A person must not take an action that is prescribed by the regulations
for the purposes of this subsection.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
(2) Subsection (1) does not apply to an action if:
(a) an approval of the taking of the action by the person is in operation
under Part 9 for the purposes of this section; or
(b) Part 4 lets the person take the action without an approval under Part
9 for the purposes of this section; or
(c) there is in force a decision of the Minister under Division 2 of Part
7 that:
(i) the action is not a controlled action; or
(ii) the action is a controlled action but this section is not a
controlling provision for the action; or
(d) the action is an action described in subsection 160(2) (which
describes actions whose authorisation is subject to a special environmental
assessment process), or the giving of an authorisation (however described) of
such an action.
(3) Before the Governor-General makes regulations prescribing an action
for the purposes of subsection (1), the Minister must be satisfied
that:
(a) all the States, the Australian Capital Territory and the Northern
Territory have been given a reasonable opportunity to comment on the proposal to
prescribe:
(i) the action for the purposes of subsection (1); and
(ii) the things that are matter protected by this section (for the
purposes of section 34) in relation to the action; and
(b) the proposed regulations are not inconsistent with Australia’s
obligations under an agreement with one or more other countries.
(4) The regulations may prescribe different things as matter protected by
this section in relation to different actions prescribed for the purposes of
subsection (1).
(5) This section applies only to actions:
(a) taken in a Territory or a place acquired by the Commonwealth for
public purposes (within the meaning of section 52 of the Constitution);
or
(b) taken in a Commonwealth marine area; or
(c) taken for the purpose of trade or commerce:
(i) between Australia and another country; or
(ii) between 2 States; or
(iii) between a State and a Territory; or
(iv) between 2 Territories; or
(d) taken by a constitutional corporation; or
(e) whose regulation is appropriate and adapted to give effect to
Australia’s obligation under an agreement with one or more other
countries.
Actions on Commonwealth land
(1) A person must not take on Commonwealth land an action that has, will
have or is likely to have a significant impact on the environment.
Civil penalty:
(a) for an individual—1,000 penalty units;
(b) for a body corporate—10,000 penalty units.
Actions outside Commonwealth land affecting that land
(2) A person must not take outside Commonwealth land an action
that:
(a) has or will have a significant impact on the environment on
Commonwealth land; or
(b) is likely to have a significant impact on the environment on
Commonwealth land.
Civil penalty:
(a) for an individual—1,000 penalty units;
(b) for a body corporate—10,000 penalty units.
Exceptions to prohibitions
(3) Subsection (1) or (2) does not apply to an action if:
(a) an approval of the taking of the action by the person is in operation
under Part 9 for the purposes of the subsection; or
(b) Part 4 lets the person take the action without an approval under Part
9 for the purposes of the subsection; or
(c) the action is one declared by the Minister in writing to be an action
to which the subsection does not apply; or
(d) there is in force a decision of the Minister under Division 2 of Part
7 that:
(i) the action is not a controlled action; or
(ii) the action is a controlled action but the subsection is not a
controlling provision for the action; or
(e) the action is an action described in subsection 160(2) (which
describes actions whose authorisation is subject to a special environmental
assessment process), or the giving of an authorisation (however described) of
such an action; or
(f) the person taking the action is the Commonwealth or a Commonwealth
agency.
Note: Section 28 regulates actions by the Commonwealth or a
Commonwealth agency with a significant impact on the
environment.
Declarations of actions
(4) The Minister may make a written declaration that an action is an
action to which subsection (1) or subsection (2) does not apply, but only if he
or she is satisfied that it is necessary in the interests of:
(a) Australia’s defence or security; or
(b) preventing, mitigating or dealing with a national emergency.
Commonwealth land is so much of a Commonwealth area as is
not a Commonwealth marine area.
(1) The Commonwealth or a Commonwealth agency must not take inside or
outside the Australian jurisdiction an action that has, will have or is likely
to have a significant impact on the environment inside or outside the Australian
jurisdiction.
Civil penalty:
(a) for a Commonwealth agency that is an individual—1,000 penalty
units;
(b) for a Commonwealth agency that is a body corporate—10,000
penalty units.
Note: This does not apply to decisions to authorise
activities. See Subdivision A of Division 1 of Part 23.
(2) Subsection (1) does not apply to an action if:
(a) an approval of the taking of the action by the Commonwealth or
Commonwealth agency is in operation under Part 9 for the purposes of this
section; or
(b) Part 4 lets the Commonwealth or Commonwealth agency take the action
without an approval under Part 9 for the purposes of this section; or
(c) the action is one declared by the Minister in writing to be an action
to which this section does not apply; or
(d) there is in force a decision of the Minister under Division 2 of Part
7 that:
(i) the action is not a controlled action; or
(ii) the action is a controlled action but this section is not a
controlling provision for the action; or
(e) the action is an action described in subsection 160(2) (which
describes actions whose authorisation is subject to a special environmental
assessment process), or the giving of an authorisation (however described) of
such an action.
(3) The Minister may make a written declaration that actions are actions
to which this section does not apply, but only if he or she is satisfied that it
is necessary in the interests of:
(a) Australia’s defence or security; or
(b) preventing, mitigating or dealing with a national emergency.
(4) The Minister may make a written declaration that all actions, or a
specified class of actions, taken by a specified Commonwealth agency are actions
to which this section does not apply.
(5) The Minister may make a declaration under subsection (4) relating to a
Commonwealth agency’s actions only if he or she is satisfied that, in
taking the actions to which the declaration relates, the agency must comply with
the law of a State or Territory dealing with environmental
protection.
(1) A person may take an action described in a provision of Part 3 without
an approval under Part 9 for the purposes of the provision if:
(a) the action is taken in a State or self-governing Territory;
and
(b) the action is one of a class of actions declared by a bilateral
agreement between the Commonwealth and the State or Territory not to require
approval under Part 9 for the purposes of the provision; and
(c) the provision of the bilateral agreement making the declaration is in
operation in relation to the action.
Note 1: Section 46 deals with bilateral agreements making
declarations described in paragraph (1)(b).
Note 2: Division 3 of Part 5 explains how the operation of a
bilateral agreement may be ended or suspended. Also, under section 49, bilateral
agreements do not operate in relation to actions in Commonwealth areas, or
actions taken by the Commonwealth or a Commonwealth agency, unless they
expressly provide that they do.
(2) If the action is to be taken in 2 or more States or self-governing
Territories, this section does not operate unless it operates in relation to
each of those States or Territories.
(1) Section 29 applies to an action taken on, over or under the seabed
vested in a State by section 4 of the Coastal Waters (State Title) Act
1980 in the same way that it applies to an action taken in the
State.
(2) Section 29 applies to an action taken on, over or under the seabed
vested in the Northern Territory by section 4 of the Coastal Waters (Northern
Territory Title) Act 1980 in the same way that it applies to an action taken
in the Territory.
(3) Section 29 applies to an action taken in a Commonwealth marine area to
which a law of a State or self-governing Territory is applied by a Commonwealth
law or by an agreement or arrangement under a Commonwealth law (other than this
Act) in the same way as it applies to an action in the State or Territory, if
the provision of the bilateral agreement has effect in relation to the
area.
Note: A provision of a bilateral agreement only has effect
in relation to a Commonwealth area if the agreement expressly provides that it
does. See section 49.
A person may take an action described in a provision of Part 3 without an
approval under Part 9 for the purposes of the provision if:
(a) the action is taken in a Territory (the action
Territory) that is not a self-governing Territory; and
(b) an Act providing for the government of the action Territory provides
that some or all of the law of a State or self-governing Territory is in force
in the action Territory as a law of the Territory; and
(c) the action is one of a class of actions declared by a bilateral
agreement between the Commonwealth and the State or self-governing Territory not
to require approval under Part 9 for the purposes of the provision of Part 3;
and
(d) the bilateral agreement specifies that the provision of the agreement
making the declaration has effect in relation to actions in the action
Territory; and
(e) the provision of the bilateral agreement making the declaration is in
operation in relation to the action.
Note: Division 3 of Part 5 explains how the operation of a
bilateral agreement may be ended or suspended.
A person may take an action described in a provision of Part 3 without an
approval under Part 9 for the purposes of the provision if:
(a) the action is one of a class of actions declared by the Minister under
section 33 not to require approval under Part 9 for the purposes of the
provision; and
(b) the declaration is in operation when the action is taken.
Declarations
(1) The Minister may declare in writing that actions in a class of actions
identified wholly or partly by reference to the fact that their taking has been
approved by the Commonwealth or a specified Commonwealth agency in a specified
manner do not require approval under Part 9 for the purposes of a specified
provision of Part 3.
Note: Section 35 provides for revocation of
declarations.
Prerequisite to making declaration
(2) The Minister may make a declaration relating to a provision of Part 3
only if he or she is satisfied that the Commonwealth or Commonwealth agency
specified as approving the taking of actions in a specified class will, in
deciding whether or not to approve an action in the class, consider the impacts
the action:
(a) has or will have; or
(b) is likely to have;
on the matter protected by the provision.
Specified manner of approval
(3) A declaration may specify a manner of approving the taking of actions
by reference to another instrument (whether or not it exists when the
declaration is made), including:
(a) a law of the Commonwealth that meets the standards (if any) prescribed
by the regulations; and
(b) an instrument (including a management plan or agreement) that is made
under a law of the Commonwealth and that meets the standards (if any) prescribed
by the regulations; and
(c) a policy, plan or program that the Minister has endorsed under an
agreement made under Part 10 (which deals with strategic assessment).
This does not limit the ways in which a declaration may specify a manner of
approving the taking of an action or a manner of taking an action.
Strategic assessments
(4) The Minister may declare a class of actions approved in accordance
with a policy, plan or program endorsed under an agreement made under Part 10
not to require approval under Part 9 for the purposes of a provision of Part 3
only if he or she is satisfied that the report under the agreement adequately
addresses the impacts all the actions in the class:
(a) have or will have; or
(b) are likely to have;
on the matter protected by the provision.
The matter protected by a provision of Part 3 specified in
column 2 of an item of the following table is the thing specified in column 3 of
the item.
|
Matter protected by provisions of Part 3 |
||
|---|---|---|
|
Item |
Provision |
Matter protected |
|
1 |
section 12 |
the world heritage values of a declared World Heritage property |
|
2 |
section 16 |
the ecological character of a declared Ramsar wetland |
|
3 |
subsection 18(1) |
a listed threatened species in the extinct in the wild category |
|
4 |
subsection 18(2) |
a listed threatened species in the critically endangered category |
|
5 |
subsection 18(3) |
a listed threatened species in the endangered category |
|
6 |
subsection 18(4) |
a listed threatened species in the vulnerable category |
|
7 |
subsection 18(5) |
a listed threatened ecological community in the critically endangered
category |
|
8 |
subsection 18(6) |
a listed threatened ecological community in the endangered
category |
|
9 |
section 20 |
a listed migratory species |
|
10 |
section 21 |
the environment |
|
11 |
subsection 23(1) |
the environment |
|
12 |
subsection 23(2) |
the environment in a Commonwealth marine area |
|
13 |
subsection 23(3) |
the environment in the coastal waters (as defined in the Fisheries
Management Act 1991) in which the action is taken of the State or
Territory |
|
14 |
section 25 |
a thing prescribed by the regulations for the purposes of this item in
relation to an action to which section 25 applies |
|
15 |
subsection 26(1) |
the environment |
|
16 |
subsection 26(2) |
the environment on Commonwealth land |
|
17 |
section 28 |
the environment |
Revoking declarations
(1) The Minister may, by written instrument, revoke a declaration made
under section 33.
Revocation does not affect some actions
(2) If:
(a) before the revocation of a declaration made under section 33, an
action could be taken without approval under Part 9 because its taking had been
approved by the Commonwealth or a Commonwealth agency in a particular manner as
specified in the declaration; and
(b) the declaration is revoked;
this Act continues to operate in relation to the action as if the
declaration had not been revoked.
Minister must not give preference
(1) In making or revoking a declaration under section 33 or 35 relating to
an action taken:
(a) by a person for the purposes of trade between Australia and another
country or between 2 States; or
(b) by a constitutional corporation;
the Minister must not give preference (within the meaning of section 99 of
the Constitution) to one State or part of a State over another State or part of
a State.
Publishing declarations
(2) The Minister must publish a declaration made under section 33, or an
instrument under section 35 revoking a declaration, in accordance with the
regulations.
A person may take an action described in a provision of Part 3 without an
approval under Part 9 for the purposes of the provision if:
(a) the action is specified in a conservation agreement as not requiring
approval under Part 9 for the purposes of that provision; and
(b) the agreement is in operation when the action is taken; and
(c) the person is:
(i) a party to the agreement; or
(ii) a successor to all or part of a usage right that a party to the
agreement had in relation to an area that was subject to the
agreement.
(1) A person may undertake RFA forestry operations without approval under
Part 9 for the purposes of a provision of Part 3 if they are undertaken in
accordance with a regional forest agreement.
Note: This section does not apply to some forestry
operations. See section 42.
(2) In this Act:
regional forest agreement has the same meaning as in the
Regional Forest Agreements Act 1998.
RFA forestry operations has the same meaning as in the
Regional Forest Agreements Act 1998.
The purpose of this Subdivision is to ensure that an approval under Part
9 is not required for forestry operations in a region for which a process
(involving the conduct of a comprehensive regional assessment, assessment under
the Environment Protection (Impact of Proposals) Act 1974 and protection
of the environment through agreements between the Commonwealth and the relevant
State and conditions on licences for the export of wood chips) of developing and
negotiating a regional forest agreement is being, or has been, carried
on.
(1) A person may undertake forestry operations in an RFA region in a State
or Territory without approval under Part 9 for the purposes of a provision of
Part 3 if there is not a regional forest agreement in force for any of the
region.
Note 1: This section does not apply to some forestry
operations. See section 42.
Note 2: The process of making a regional forest agreement is
subject to assessment under the Environment Protection (Impact of Proposals)
Act 1974, as continued by the Environmental Reform (Consequential
Provisions) Act 1998.
(2) In this Act:
forestry operations has the same meaning as in the
Regional Forest Agreements Act 1998.
(3) Subsection (1) does not operate in relation to an RFA region that is
the subject of a declaration in force under this section.
(4) The Minister may declare in writing that subsection (1) does not apply
to an RFA region.
(5) A declaration is a disallowable instrument for the purposes of section
46A of the Acts Interpretation Act 1901.
(6) The Minister must not make a declaration that has the effect of giving
preference (within the meaning of section 99 of the Constitution) to one State
or part of a State over another State or part of a State, in relation to the
taking of the action:
(a) by a person for the purposes of trade or commerce between Australia
and another country or between 2 States; or
(b) by a constitutional corporation.
Regions that are RFA regions
(1) Each of the following is an RFA region:
(a) the area of forest called the Eden Management Area in the report
entitled “Towards an Eden Regional Forest Agreement”, published by
the Commonwealth and New South Wales and dated May 1998;
(b) the area delineated as the Lower North East Region in Attachment 3 to
the Scoping Agreement for New South Wales Regional Forest Agreements, made by
the Commonwealth and New South Wales and dated January 1996;
(c) the area delineated as the Upper North East Region in Attachment 3 to
the Scoping Agreement for New South Wales Regional Forest Agreements, made by
the Commonwealth and New South Wales and dated January 1996;
(d) the area delineated as the Southern Region in Attachment 3 to the
Scoping Agreement for New South Wales Regional Forest Agreements, made by the
Commonwealth and New South Wales and dated January 1996;
(e) the area delineated as the Gippsland Region in the map of that region
dated 11 March 1998 and published by the Forest Information Section of the
Victorian Department of Natural Resources and Environment;
(f) the area delineated as the North East RFA Region in the map of that
region dated 11 March 1998 and published by the Forest Information Section of
the Victorian Department of Natural Resources and Environment;
(g) the area of Victoria within the boundary formed by:
(i) the road between Frances and Natimuk; and
(ii) the Wimmera Highway between Natimuk and Rupanyup; and
(iii) the road between Stawell and Warracknabeal; and
(iv) the Western Highway to Ararat;
(v) the Pyrenees Highway; and
(vi) the southern boundaries of the areas known as the Bendigo and
Midlands Forest Management Areas; and
(vii) the Hume Freeway between Avenel and the northern edge of the
Melbourne metropolitan area;
excluding the metropolitan areas of Melbourne and Geelong and built-up
areas of major rural cities or towns;
(h) the area delineated as the South-East Region in Attachment 3 to the
Scoping Agreement for Queensland Regional Forest Agreements, made by the
Commonwealth and Queensland and dated January 1997;
(i) the area shown as the South-West Region in Map 1 of the report
“Towards a Regional Forest Agreement for the South-West Forest Region of
Western Australia”, published by the Joint Commonwealth and Western
Australia RFA Steering Committee.
Regulations may amend list of regions
(2) The regulations may amend subsection (3).
Prerequisites for prescribing RFA regions
(3) Before the Governor-General makes regulations amending subsection (1),
the Minister must be satisfied that the proposed regulations, in conjunction
with this Subdivision, will not give preference (within the meaning of section
99 of the Constitution) to one State or part of a State over another State or
part of a State.
Subdivisions A and B do not apply to forestry operations:
(a) in a property included in the World Heritage List; or
(b) in a wetland included in the List of Wetlands of International
Importance kept under the Ramsar Convention; or
(c) that are incidental to another action whose primary purpose does not
relate to forestry.
A person may take an action described in a provision of Part 3 without an
approval under Part 9 for the purposes of the provision if:
(a) the action is taken in the Great Barrier Reef Marine Park established
by the Great Barrier Reef Marine Park Act 1975; and
(b) the person is authorised to take the action in the place where he or
she takes it, by any of the following instruments made or issued under that Act
(including instruments made or issued under an instrument (including
regulations) made or issued under that Act):
(i) a zoning plan;
(ii) a plan of management;
(iii) a permission;
(iv) an authority;
(v) an approval;
(vi) a permit.
The object of this Part is to provide for agreements between the
Commonwealth and a State or self-governing Territory that:
(a) protect the environment; and
(b) promote the conservation and ecologically sustainable use of natural
resources; and
(c) ensure an efficient, timely and effective process for environmental
assessment and approval of actions; and
(d) minimise duplication in the environmental assessment and approval
process through Commonwealth accreditation of the processes of the State or
Territory (and vice versa).
Making bilateral agreement
(1) On behalf of the Commonwealth, the Minister may enter into a bilateral
agreement.
Note 1: A bilateral agreement can detail the level of
Commonwealth accreditation of State practices, procedures, processes, systems,
management plans and other approaches to environmental
protection.
Note 2: Subdivision B sets out some prerequisites for
entering into bilateral agreements.
What is a bilateral agreement?
(2) A bilateral agreement is a written agreement between the
Commonwealth with a State or a self-governing Territory that:
(a) provides for one or more of the following:
(i) protecting the environment;
(ii) promoting the conservation and ecologically sustainable use of
natural resources;
(iii) ensuring an efficient, timely and effective process for
environmental assessment and approval of actions;
(iv) minimising duplication in the environmental assessment and approval
process through Commonwealth accreditation of the processes of the State or
Territory (or vice versa); and
(b) is expressed to be a bilateral agreement.
Publishing bilateral agreements
(3) As soon as practicable after entering into a bilateral agreement, the
Minister must publish it in accordance with the regulations.
Declaration of actions not needing approval
(1) A bilateral agreement may declare that actions in a class of actions
specified in the agreement wholly or partly by reference to the fact
that:
(a) their taking has been approved by the State or self-governing
Territory that is party to the agreement, or a specified agency of the State or
Territory, in a specified manner; or
(b) their taking has been approved by the Commonwealth or a Commonwealth
agency in a specified manner; or
(c) they are taken in a specified manner;
do not require approval under Part 9 for the purposes of a specified
provision of Part 3.
Note: A declaration identifying actions in the way described
in paragraph (1)(a) or (c) can accredit practices, procedures, systems or
management plans of the State or self-governing Territory.
Specified class of actions
(2) The Minister may enter into a bilateral agreement declaring that
actions approved in a specified manner do not require approval under Part 9 for
the purposes of a provision of Part 3 only if he or she is satisfied that each
person approving an action in that manner will, in deciding whether to approve
the action, adequately consider the impacts that the action:
(a) has or will have; or
(b) is likely to have;
on the matter protected by the provision.
Specified manner of approval
(3) A bilateral agreement between the Commonwealth and a State or
Territory may specify a manner of approving the taking of an action, or a manner
of taking an action, by reference to:
(a) an instrument that exists when the agreement is made,
including:
(i) a law of the State or Territory; or
(ii) an instrument (including a management plan or agreement) that is made
under a law of the State or Territory; or
(b) an instrument made by agreement between the Commonwealth and the State
under the bilateral agreement; or
(c) a policy, plan or program that the Minister has endorsed under an
agreement made under Part 10 (about strategic assessment).
This does not limit the ways in which a bilateral agreement may specify a
manner of approving the taking of an action or of taking an action.
Strategic assessments
(4) The Minister may enter into a bilateral agreement that declares
actions approved in accordance with a policy, plan or program endorsed under an
agreement made under Part 10 do not require approval under Part 9 for the
purposes of a provision of Part 3 only if he or she is satisfied that the report
under the agreement adequately addresses the impacts the actions:
(a) have or will have; or
(b) are likely to have;
on the matter protected by the provision.
Actions taken in a specified manner
(5) The Minister may enter into a bilateral agreement declaring that
actions taken in a specified manner do not require approval under Part 9 for the
purposes of a specified provision of Part 3 only if he or she is satisfied that
taking an action in that manner will reduce to acceptable levels the impacts the
action:
(a) has or will have; or
(b) is likely to have;
on the matter protected by the provision.
Declaration of actions that do not need further assessment
(1) A bilateral agreement may declare that actions in a class of actions
identified wholly or partly by reference to the fact that they have been
assessed in a specified manner need not be assessed under Part 8.
Note: A declaration described in subsection (1) can accredit
practices, procedures, systems of the State or self-governing Territory for
environmental assessment.
Prerequisite to declaration
(2) The Minister may enter into a bilateral agreement declaring that
actions assessed in a specified manner need not be assessed under Part 8 only if
he or she is satisfied that assessment of an action in the specified manner will
include assessment of the impacts the action:
(a) has or will have; or
(b) is likely to have;
on each matter protected by a provision of Part 3.
Assessment approaches that may be accredited
(3) The manner of assessment of actions that may be specified in a
bilateral agreement between the Commonwealth and a State or Territory for the
purposes of subsection (1) includes:
(a) assessment by any person under a law of the State or Territory;
and
(b) assessment by any person under an agreement or other instrument made
under a law of the State or Territory; and
(c) assessment by any person in accordance with criteria specified in an
instrument agreed by the parties to the bilateral agreement.
This does not limit subsection (1).
Report on actions that do not need further assessment
(4) If a bilateral agreement has (or could have) the effect that an action
need not be assessed under Part 8 but the action must still be approved under
Part 9, the agreement must provide for the Minister to receive a report
including, or accompanied by, enough information about the relevant impacts of
the action to let the Minister make an informed decision whether or not to
approve under Part 9 (for the purposes of each controlling provision) the taking
of the action.
(1) A bilateral agreement may include:
(a) provisions for State accreditation of Commonwealth processes and
decisions; and
(b) other provisions for achieving the object of this Part; and
(c) provisions for the provision of information by one party to the
agreement to the other party; and
(d) provisions for the publication of information relating to the
agreement; and
(e) provisions relating to the operation of the whole agreement or
particular provisions of the agreement, such as:
(i) provisions for the commencement of all or part of the agreement;
or
(ii) provisions for auditing, monitoring and reporting on the operation
and effectiveness of all or part of the agreement; or
(iii) provisions for review of all or part of the agreement; or
(iv) provisions for rescission of all or part of the agreement;
or
(v) provisions for expiry of the agreement; and
(f) provisions varying or revoking another bilateral agreement between the
same parties; and
(g) a provision dealing with a matter that another section of this Act
permits a bilateral agreement to deal with.
Consistency with Act and regulations
(2) A provision of a bilateral agreement has no effect for the purposes of
this Act to the extent that it is inconsistent with this Act or the regulations.
A provision of a bilateral agreement is not inconsistent with this Act or the
regulations if it is possible to comply with both the provision on the one hand
and the Act or regulations on the other hand.
Relationship with sections 46 and 47
(3) Subsection (1) does not limit sections 46 and 47.
A provision of a bilateral agreement does not have any effect in relation
to an action in a Commonwealth area or an action by the Commonwealth or a
Commonwealth agency, unless the agreement expressly provides
otherwise.
The Minister may enter into a bilateral agreement only if the Minister is
satisfied that the agreement:
(a) accords with the objects of this Act; and
(b) meets the requirements (if any) prescribed by the
regulations.
The Minister may enter into a bilateral agreement containing a provision
relating to a declared World Heritage property only if:
(a) the Minister is satisfied that the provision is not inconsistent with
Australia’s obligations under the World Heritage Convention; and
(b) the Minister is satisfied that the agreement will promote the
management of the property in accordance with the Australian World Heritage
management principles (if any); and
(c) the provision meets the requirements (if any) prescribed by the
regulations.
The Minister may enter into a bilateral agreement containing a provision
relating to a declared Ramsar wetland only if:
(a) the Minister is satisfied that the provision is not inconsistent with
Australia’s obligations under the Ramsar Convention; and
(b) the Minister is satisfied that the agreement will promote the
management of the wetland in accordance with the Australian Ramsar management
principles (if any); and
(c) the provision meets the requirements (if any) prescribed by the
regulations.
The Minister may enter into a bilateral agreement containing a provision
relating to a listed threatened species or a listed threatened ecological
community only if:
(a) the Minister is satisfied that the provision is not inconsistent with
Australia’s obligations under:
(i) the Biodiversity Convention; or
(ii) the Apia Convention; or
(iii) CITES; and
(b) the Minister is satisfied that the agreement will promote the survival
and/or enhance the conservation status of each species or community to which the
provision relates; and
(c) the Minister is satisfied that the provision is not inconsistent with
any recovery plan for the species or community or a threat abatement plan;
and
(d) the provision meets the requirements (if any) prescribed by the
regulations.
The Minister may enter into a bilateral agreement containing a provision
relating to a listed migratory species only if:
(a) the Minister is satisfied that the provision is not inconsistent with
the Commonwealth’s obligations under whichever of the following
conventions or agreements because of which the species is listed:
(i) the Bonn Convention;
(ii) CAMBA;
(iii) JAMBA;
(iv) an international agreement approved under subsection 209(4);
and
(b) the Minister is satisfied that the agreement will promote the survival
and/or enhance the conservation status of each species to which the provision
relates; and
(c) the provision meets the requirements (if any) prescribed by the
regulations.
The Minister must not enter into a bilateral agreement containing a
provision that:
(a) relates to a nuclear action; and
(b) has the effect of giving preference (within the meaning of section 99
of the Constitution) to one State or part of a State over another State or part
of a State, in relation to the taking of a nuclear action:
(i) by a person for the purposes of trade or commerce between Australia
and another country or between 2 States; or
(ii) by a constitutional corporation.
(1) The Minister must not enter into a bilateral agreement containing a
provision that:
(a) relates to an action prescribed for the purposes of subsection 25(1);
and
(b) has the effect of giving preference (within the meaning of section 99
of the Constitution) to one State or part of a State over another State or part
of a State, in relation to the taking of the action:
(i) by a person for the purposes of trade or commerce between Australia
and another country or between 2 States; or
(ii) by a constitutional corporation.
(2) The Minister may enter into a bilateral agreement containing a
provision relating to an action prescribed for the purposes of subsection 25(1)
only if the Minister is satisfied that the provision is not inconsistent with
Australia’s obligations under an agreement with one or more other
countries.
Representations
(1) A person may refer to the Minister a matter that the person believes
involves a contravention of a bilateral agreement.
Minister must decide whether agreement has been
contravened
(2) The Minister must:
(a) decide whether or not the bilateral agreement has been contravened;
and
(b) decide what action he or she should take in relation to any
contravention.
Publication of decision and reasons
(3) The Minister must publish in accordance with the regulations each
decision he or she makes, and the reasons for it.
Minister need not decide on vexatious referrals
(4) Despite subsection (2), the Minister need not make a decision under
that subsection if he or she is satisfied that:
(a) the referral was vexatious, frivolous, or not supported by sufficient
information to make a decision; or
(b) the matter referred is the same in substance as a matter that has been
referred before; or
(c) if the alleged contravention of the bilateral agreement were a
contravention of the Act, the person referring the matter would not be entitled
to apply under section 475 for an injunction in relation to the
contravention.
(1) The Minister (the Environment Minister) must consult the
appropriate Minister of a State or Territory that is party to a bilateral
agreement if the Environment Minister believes that the State or
Territory:
(a) has not complied with the agreement or will not comply with it;
or
(b) has not given effect, or will not give effect, to the agreement in a
way that:
(i) accords with the objects of this Act and the objects of this Part;
and
(ii) promotes the discharge of Australia’s obligations under any
agreement with one or more other countries relevant to a matter covered by the
agreement.
(2) Subsection (1) operates whether the Environment Minister’s
belief relates to a matter referred to him or her under section 57 or
not.
Minister may give notice of suspension or cancellation
(1) If, after the consultation, the Environment Minister is not satisfied
that the State or Territory:
(a) has complied with, and will comply with, the agreement; and
(b) has given effect, and will give effect, to the agreement in a way
that:
(i) accords with the objects of this Act and the objects of this Part;
and
(ii) promotes the discharge of Australia’s obligations under all
international agreements (if any) relevant to a matter covered by the
agreement;
he or she may give the appropriate Minister of the State or Territory a
written notice described in subsection (2) or (3).
Example 1: The Minister could give notice if the agreement
declared that certain actions affecting the world heritage values of a declared
world heritage property did not require approval under Part 9 if approved by the
State, and the State approved an action that was not consistent with the
protection, conservation and presentation of those values.
Example 2: The Minister could give notice if the agreement
declared that certain actions affecting the ecological character of a declared
Ramsar wetland did not require approval under Part 9 if approved by the State,
and the State approved an action that had a significant adverse impact on that
character.
Example 3: The Minister could give notice if the agreement
declared that certain actions affecting a listed threatened species did not
require approval under Part 9 if approved by the State, and the State approved
an action that caused the species to become more threatened.
Notice of suspension
(2) A notice may state that the effect of the agreement, or specified
provisions of the agreement, for the purposes of this Act or specified
provisions of this Act is suspended, either generally or in relation to actions
in a specified class, for a period:
(a) starting on a specified day at least 10 business days (in the capital
city of the State or Territory) after the day on which the notice is given;
and
(b) ending on a specified later day or on the occurrence of a specified
event.
Notice of cancellation
(3) A notice may state that the effect of the agreement, or specified
provisions of the agreement, for the purposes of this Act or specified
provisions of this Act is cancelled, either generally or in relation to actions
in a specified class, on a specified day at least 10 business days (in the
capital city of the State or Territory) after the day on which the notice is
given.
Effect suspended or cancelled in accordance with notice
(4) The effect of an agreement or specified provision of an agreement is
suspended or cancelled for the purposes of this Act, or of a specified provision
of this Act, either generally or in relation to actions in a specified class, in
accordance with the notice. This subsection has effect subject to sections 61
and 62.
Reasons for giving notice
(5) When giving a notice, the Environment Minister must give the
appropriate Minister of the State or Territory a written statement of reasons
for the giving of the notice.
Publishing notice and reasons
(6) As soon as practicable after the suspension or cancellation occurs,
the Environment Minister must publish in accordance with the
regulations:
(a) notice of the suspension or cancellation; and
(b) reasons for the suspension or cancellation.
(1) This section applies if the Minister is satisfied that:
(a) the State or Territory that is party to a bilateral agreement is not
complying with it, or will not comply with it; and
(b) as a result of the non-compliance, a significant impact is occurring
or imminent on any matter protected by a provision of Part 3 that is relevant to
an action in a class of actions to which the agreement relates.
(2) The Minister may suspend the effect of the agreement or specified
provisions of the agreement for the purposes of this Act or specified provisions
of this Act, by notice:
(a) given to the appropriate Minister of the State or Territory;
and
(b) published in accordance with the regulations.
(3) The suspension continues:
(a) for the period specified in the notice; or
(b) until the occurrence of an event specified in the notice.
(4) Subsection (3) has effect subject to section 62.
(1) The Minister may give notice of the cancellation of the effect of a
bilateral agreement even while its effect is suspended under section 59 or
60.
(2) The cancellation may occur even though the period of suspension has
not ended.
(3) This section applies whether the cancellation or suspension has effect
generally or in relation to actions in a specified class.
(1) This section applies if the Minister:
(a) has given a notice under section 59 or 60 to suspend or cancel the
effect of a bilateral agreement (either generally or in relation to actions in a
specified class); and
(b) is later satisfied that the State or Territory that is party to the
agreement will comply with the agreement and give effect to it in a way
that:
(i) accords with the objects of this Act and the objects of this Part;
and
(ii) promotes the discharge of Australia’s obligations under all
international agreements (if any) relevant to a matter covered by the
agreement.
(2) The Minister may revoke the notice of suspension or cancellation by
another written notice:
(a) given to the appropriate Minister of the State or Territory;
and
(b) published in accordance with the regulations.
However, the Environment Minister may not revoke the notice of cancellation
after cancellation of the effect of the agreement occurs.
(3) Suspension or cancellation of the effect of the agreement does not
occur if the notice of suspension or cancellation is revoked before the
suspension or cancellation would otherwise occur.
(4) Suspension of the effect of the agreement ends when the notice of
suspension is revoked.
Minister may give notice of cancellation or suspension
(1) The Minister may give the appropriate Minister of a State or
self-governing Territory that is party to a bilateral agreement a notice under
subsection (2) or (3) if the appropriate Minister has requested a notice under
that subsection in accordance with the agreement.
Notice of suspension
(2) A notice may state that the effect of the agreement, or specified
provisions of the agreement, for the purposes of this Act or specified
provisions of this Act is suspended, either generally or in relation to actions
in a specified class, for a period:
(a) starting on a specified day after the day on which the notice is
given; and
(b) ending on a specified later day or on the occurrence of a specified
event.
Notice of cancellation
(3) A notice may state that the effect of the agreement, or specified
provisions of the agreement, for the purposes of this Act or specified
provisions of this Act is cancelled, either generally or in relation to actions
in a specified class, on a specified day after the day on which the notice is
given.
Effect suspended or cancelled in accordance with notice
(4) The effect of an agreement or specified provision of an agreement is
suspended or cancelled for the purposes of this Act, or of a specified provision
of this Act, either generally or in relation to actions in a specified class, in
accordance with the notice.
Publishing notice and reasons
(5) As soon as practicable after the suspension or cancellation occurs,
the Minister must publish in accordance with the regulations:
(a) notice of the suspension or cancellation; and
(b) reasons for the suspension or cancellation.
Application
(1) This section explains how this Act operates in relation to an action
that a person was able to take without approval under Part 9 for the purposes of
a provision of Part 3 because of Division 1 of Part 4 and a provision of a
bilateral agreement immediately before the cancellation or suspension of the
operation of the provision of the agreement for the purposes of this Act or of
any provision of this Act.
Actions approved in specified manner may be taken
(2) If the action was able to be taken without approval under Part 9
because its taking had already been approved in a manner specified in the
agreement, this Act continues to operate in relation to the action as if the
suspension or cancellation had not occurred.
Actions taken in specified manner may be continued
(3) If:
(a) the person was already taking the action when the operation of the
provision of the agreement was suspended or cancelled; and
(b) the action was able to be taken without approval under Part 9 because
the person was taking the action in the manner specified in the bilateral
agreement;
this Act continues to operate in relation to the action as if the
suspension or cancellation had not occurred.
(1) A bilateral agreement ceases to have effect for the purposes of this
Act:
(a) 5 years after it is entered into; or
(b) at an earlier time when the agreement provides for it to cease to have
effect for the purposes of this Act.
Note: The parties to a bilateral agreement may also agree to
revoke it.
(2) The Minister must:
(a) cause a review of the operation of a bilateral agreement to be carried
out; and
(b) give a report of the review to the appropriate Minister of the State
or Territory that is party to the agreement;
before the agreement ceases to have effect as a result of this
section.
Note: A bilateral agreement may also provide for review of
its operation.
(3) The Minister must publish the report in accordance with the
regulations.
The following is a simplified outline of this Chapter:
This Chapter deals with assessment and approval of actions that Part 3
prohibits without approval (controlled actions). (It does not deal
with actions that a bilateral agreement declares not to need
approval.)
A person proposing to take an action, or a government body aware of the
proposal, may refer the proposal to the Minister so he or she can
decide:
(a) whether his or her approval is needed to take the action;
and
(b) how to assess the impacts of the action to be able to make an informed
decision whether or not to approve the action.
An assessment may be done using:
(a) a process laid down under a bilateral agreement; or
(b) a process specified in a declaration by the Minister; or
(c) a process specially accredited by the Minister; or
(d) preliminary documentation provided by the proponent; or
(e) a public environment report; or
(f) an environmental impact statement; or
(g) a public inquiry.
Once the report of the assessment is given to the Minister, he or she must
decide whether or not to approve the action, and what conditions to attach to
any approval.
An action that a person proposes to take is a controlled
action if the taking of the action by the person without approval under
Part 9 for the purposes of a provision of Part 3 would be prohibited by the
provision. The provision is a controlling provision for the
action.
(1) A person proposing to take an action that the person thinks may be or
is a controlled action must refer the proposal to the Minister for the
Minister’s decision whether or not the action is a controlled
action.
(2) A person proposing to take an action that the person thinks is not a
controlled action may refer the proposal to the Minister for the
Minister’s decision whether or not the action is a controlled
action.
(3) In a referral under this section, the person must state whether or not
the person thinks the action the person proposes to take is a controlled
action.
(4) If the person states that the person thinks the action is a controlled
action, the person must identify in the statement each provision that the person
thinks is a controlling provision.
(1) A State, self-governing Territory or agency of a State or
self-governing Territory that is aware of a proposal by a person to take an
action may refer the proposal to the Minister for a decision whether or not the
action is a controlled action, if the State, Territory or agency has
administrative responsibilities relating to the action.
(2) This section does not apply in relation to a proposal by a State,
self-governing Territory or agency of a State or self-governing Territory to
take an action.
Note: Section 68 applies instead.
(1) If the Minister believes a person proposes to take an action that the
Minister thinks may be or is a controlled action, the Minister may
request:
(a) the person; or
(b) a State, self-governing Territory or agency of a State or
self-governing Territory that the Minister believes has administrative
responsibilities relating to the action;
to refer the proposal to the Minister within 15 business days.
Note 1: If the person does not refer the proposal to take
the action, he or she cannot get an approval under Part 9 to take the action. If
taking the action without approval contravenes Part 3, an injunction could be
sought to prevent or stop the action, or the person could be ordered to pay a
pecuniary penalty.
Note 2: Section 156 sets out rules about time
limits.
(2) In making a request, the Minister must act in accordance with the
regulations (if any).
(1) A Commonwealth agency (except the Minister) may refer to the Minister
a proposal by a person to take an action (for the Minister’s decision
whether or not the action is a controlled action) if the agency:
(a) thinks the action may be or is a controlled action; and
(b) has administrative responsibilities relating to the action.
(2) This section does not apply in relation to a proposal by the
Commonwealth or a Commonwealth agency to take an action.
Note: Section 68 applies instead.
(1) A referral of a proposal to take an action must be made in a way
prescribed by the regulations.
(2) A referral of a proposal to take an action must include the
information prescribed by the regulations.
If a proposal by a person to take an action is referred to the Minister
under section 69 or 71, the Minister must inform the person of the
referral.
Inviting other Commonwealth Ministers to provide
information
(1) As soon as practicable after receiving a referral of a proposal to
take an action, the Minister (the Environment Minister)
must:
(a) inform any other Minister whom the Environment Minister believes has
administrative responsibilities relating to the proposal; and
(b) invite each other Minister informed to give the Environment Minister
within 10 business days information that relates to the proposed action and is
relevant to deciding whether or not the proposed action is a controlled
action.
Inviting comments from appropriate State or Territory
Minister
(2) As soon as practicable after receiving, from the person proposing to
take an action or from a Commonwealth agency, a referral of a proposal to take
an action in a State or self-governing Territory, the Environment Minister
must:
(a) inform the appropriate Minister of the State or Territory;
and
(b) invite that Minister to give the Environment Minister comments within
10 business days on whether the proposed action is a controlled
action;
if the Environment Minister thinks the action may have an impact on a
matter protected by a provision of Division 1 of Part 3 (about matters of
national environmental significance).
Note: Subsection (2) also applies in relation to actions to
be taken in an area offshore from a State or the Northern Territory. See section
157.
Inviting person proposing to take action to give
information
(3) As soon as practicable after receiving a referral under section 69 or
71 of a proposal by a person to take an action, the Environment Minister must
invite the person to give the Environment Minister relevant information about
whether the proposed action is a controlled action, within 10 business
days.
Section does not apply if proponent says action is controlled
action
(4) This section does not apply in relation to a referral of a proposal to
take an action by the person proposing to take the action if the person states
in the referral that the person thinks the action is a controlled
action.
Is the action a controlled action?
(1) The Minister must decide:
(a) whether the action that is the subject of a proposal referred to the
Minister is a controlled action; and
(b) which provisions of Part 3 (if any) are controlling provisions for the
action.
Considerations in decision
(2) If, when the Minister makes a decision under subsection (1), it is
relevant for the Minister to consider the impacts of an action:
(a) the Minister must consider all adverse impacts (if any) the
action:
(i) has or will have; or
(ii) is likely to have;
on the matter protected by each provision of Part 3; and
(b) must not consider any beneficial impacts the action:
(i) has or will have; or
(ii) is likely to have;
on the matter protected by each provision of Part 3.
Designating a proponent of the action
(3) If the Minister decides that the action is a controlled action, the
Minister must designate a person as proponent of the action.
Consent to designation
(4) The Minister may designate a person who does not propose to take the
action only if:
(a) the person agrees to being designated; and
(b) the person proposing to take the action agrees to the
designation.
Timing of decision and designation
(5) The Minister must make the decisions and designation:
(a) within 20 business days of the referral; or
(b) if the person proposing to take the action referred the proposal and
stated in the referral that the person thought the action was a controlled
action—within 10 business days of the referral.
Note: Section 156 sets out rules about time
limits.
Time does not run while further information being sought
(6) If the Minister has requested more information under section 76 for
the purposes of making a decision, a day is not to be counted as a business day
for the purposes of subsection (5) if it is:
(a) on or after the day the Minister requested the information;
and
(b) on or before the day on which the Minister receives the last of the
information requested.
Running of time may be suspended by agreement
(7) The Minister and the person proposing to take the action may agree in
writing that days within a period worked out in accordance with the agreement
are not to be counted as business days for the purposes of subsection (5). If
the agreement is made, those days are not to be counted for the purposes of that
subsection.
If the Minister believes on reasonable grounds that the referral of a
proposal to take an action does not include enough information for the Minister
to decide:
(a) whether the action is a controlled action; or
(b) which provisions of Part 3 (if any) are controlling provisions for the
action;
the Minister may request the person proposing to take the action to provide
specified information relevant to making the decision.
Giving notice
(1) Within 10 business days after deciding whether an action that is the
subject of a proposal referred to the Minister is a controlled action or not,
the Minister must:
(a) give written notice of the decision to:
(i) the person proposing to take the action; and
(ii) if the Minister has designated as proponent of the action a person
who does not propose to take the action—that person; and
(iii) if the Minister decided that the action is a controlled action
because of Division 1 of Part 3 (which deals with matters of national
environmental significance)—the appropriate Minister of each State or
self-governing Territory in which the action is to be taken; and
(b) publish notice of the decision in accordance with the
regulations.
Note 1: Section 156 sets out rules about time
limits.
Note 2: Subparagraph (1)(a)(iii) also applies to actions to
be taken in an area offshore from a State or the Northern Territory. See section
157.
Notice must identify any applicable controlling provisions
(2) If the decision is that the action is a controlled action, the notice
must identify each of the controlling provisions.
Notice must identify specified manner of taking action
(3) If the decision is that the action is not a controlled action because
the Minister believes the action will be taken in a particular manner (whether
specified in a bilateral agreement or a declaration under section 33 or not),
the notice must identify the manner.
Note: The Minister may decide an action is not a controlled
action because he or she believes the action will be taken in a manner that will
ensure the action will not have (and is not likely to have) an adverse impact on
any of the matters protected by a provision of Part 3, even if the manner is not
specified in a bilateral agreement or declaration.
Reasons for decision
(4) The Minister must give reasons for the decision to a person
who:
(a) has been given the notice; and
(b) within 28 days of being given the notice, has requested the Minister
to provide reasons.
The Minister must do so as soon as practicable, and in any case within 28
days of receiving the request.
Reasons need not be given in some cases
(5) Subsection (4) does not apply in relation to a decision whether or not
an action is a controlled action if the person proposing to take the
action:
(a) referred the proposal to the Minister; and
(b) stated in the referral that the person thought the action was a
controlled action.
Limited power to vary or substitute decisions
(1) The Minister may revoke a decision (the first decision)
made under subsection 75(1) and substitute a new decision under that subsection
for the first decision, but only if:
(a) the Minister is satisfied that the revocation and substitution is
warranted by:
(i) the availability of substantial new information relating to the action
about which the decision was made; or
(ii) a substantial change in circumstances that was not foreseen at the
time of the first decision; or
(b) if the first decision was that the action was not a controlled action
because the Minister believed the action would be taken in the manner identified
in the notice under subsection 77(3)—the Minister is satisfied that the
action is not being, or will not be, taken in the manner identified;
or
(c) if the first decision was that the action was not a controlled action
because of a provision of a bilateral agreement or declaration under section
33—the provision of the agreement or declaration no longer operates in
relation to the action; or
(d) the Minister is requested under section 79 to reconsider the
decision.
Reversing decision that action is not a controlled action
(2) Subject to subsection (1), the Minister may:
(a) revoke a decision that an action is not a controlled action and
substitute a decision that the action is a controlled action; or
(b) revoke a decision (the earlier decision) identifying one
or more provisions of Part 3 as controlling provisions for an action and
substitute a decision identifying as a controlling provision a provision of Part
3 not identified by the earlier decision as a controlling provision;
despite paragraphs 12(2)(c), 16(2)(c), 19(3)(b), 20(2)(c), 21(4)(c),
23(4)(c), 25(2)(c), 26(3)(d) and 28(2)(d). This does not limit the decisions
that the Minister may revoke and substitute under subsection (1).
Note: Those paragraphs let an action be taken without
approval for the purposes of a particular provision of Part 3 if the Minister
has decided that the action is not a controlled action or that the action is a
controlled action but the provision is not a controlling
provision.
Decision not to be revoked after approval granted or refused or action
taken
(3) The Minister must not revoke the first decision after:
(a) the Minister has granted or refused an approval of the taking of the
action; or
(b) the action is taken.
General effect of change of decision
(4) When the first decision is revoked and a new decision is substituted
for it:
(a) any provisions of this Chapter that applied in relation to the action
because of the first decision cease to apply in relation to the action;
and
(b) any provisions of this Chapter that are relevant because of the new
decision apply in relation to the action.
Change of designation of proponent
(5) If the Minister believes a person (the first proponent)
designated under section 75 as proponent of an action is no longer an
appropriate person to be the designated proponent of the action, the Minister
may revoke the designation and designate another person (the later
proponent) as proponent of the action.
Consent to designation
(6) The Minister may designate the other person as proponent of the action
only if:
(a) he or she consents to it and the person proposing to take the action
agrees to it; or
(b) the other person is the person proposing to take the action.
Effect of change of designated proponent
(7) If the Minister revokes the designation of the first proponent and
designates the later proponent:
(a) the provisions of this Chapter that applied to the first proponent
cease to apply to the first proponent in relation to the action but apply to the
later proponent; and
(b) for the purposes of those provisions the later proponent is taken to
have done anything the first proponent did in relation to the action;
and
(c) for the purposes of those provisions anything done in relation to the
first proponent in relation to the action is taken to have been done in relation
to the later proponent.
(1) This section applies if:
(a) the Minister (the Environment Minister) makes a decision
about whether a provision of Division 1 of Part 3 is a controlling provision for
an action proposed to be taken in a State or self-governing Territory;
and
(b) the person proposing to take the action did not refer the proposal to
the Minister with a statement that the person thought the action was a
controlled action.
Note 1: Division 1 of Part 3 deals with requirements for
approvals for actions involving matters of national environmental
significance.
Note 2: This section also applies to actions to be taken in
an area offshore from a State or the Northern Territory. See section
157.
(2) Within 5 business days of being notified of the decision, a Minister
of the State or Territory may request the Environment Minister to reconsider the
Environment Minister’s decisions made under subsection 75(1).
Note: Subsection 75(1) provides for decisions about whether
the action is a controlled action and what the controlling provisions for the
action are.
(3) Within 20 business days after receiving a request to reconsider a
decision, the Environment Minister must:
(a) reconsider the decision; and
(b) either confirm it or revoke it and substitute a new decision for it;
and
(c) give written notice of the outcome of the reconsideration and reasons
for the outcome to:
(i) the Minister who requested the reconsideration; and
(ii) the person proposing to take the action; and
(iii) the designated proponent of the action; and
(d) after giving notice as described in paragraph (c), publish notice of
the outcome and the reasons for it in accordance with the regulations.
Note: Section 156 sets out rules about time
limits.
The following is a simplified outline of this Part:
This Part provides for the assessment of impacts of controlled actions, to
provide information for decisions whether or not to approve the taking of the
actions. However, this Part does not apply to actions that a bilateral agreement
or Ministerial declaration says are to be assessed in another way.
For actions that are to be assessed under this Part, the Minister must
choose one of the following methods of assessment:
(a) a specially accredited process;
(b) an assessment on preliminary documentation (see Division 4);
(c) a public environment report (see Division 5);
(d) an environmental impact statement (see Division 6);
(e) a public inquiry (see Division 7).
(1) This Part applies to the assessment of the relevant impacts of an
action that the Minister has decided under Division 2 of Part 7 is a controlled
action.
(2) This section has effect subject to sections 83 and 84.
(3) This section does not limit section 82.
If the Minister has decided the action is a controlled
action
(1) If the Minister has decided under Division 2 of Part 7 that an action
is a controlled action, the relevant impacts of the action are the
impacts that the action:
(a) has or will have; or
(b) is likely to have;
on the matter protected by each provision of Part 3 that the Minister has
decided under that Division is a controlling provision for the action.
If the Minister has not decided whether the action is
controlled
(2) If an action is a controlled action or would be apart from Division 1
or 2 of Part 4 (which provide that approval under Part 9 is not needed for an
action covered by a bilateral agreement or declaration)—the relevant
impacts of the action are impacts that the action:
(a) has or will have; or
(b) is likely to have;
on the matter protected by each provision of Part 3 that is a controlling
provision for the action or would be apart from whichever of those Divisions is
relevant.
Relationship between subsections (1) and (2)
(3) Subsection (1) has effect despite subsection (2).
(1) This Part does not apply in relation to an action if:
(a) the action is to be taken in a State or self-governing Territory;
and
(b) a bilateral agreement between the Commonwealth and the State or
Territory declares that actions in a class that includes the action need not be
assessed under this Part; and
(c) the provision of the bilateral agreement making the declaration is in
operation in relation to the action.
Note 1: Subsection (1) also applies to actions to be taken
in an area offshore from a State or the Northern Territory. See section
157.
Note 2: Section 47 deals with bilateral agreements making
declarations described in paragraph (1)(b).
Note 3: Division 3 of Part 5 explains how the operation of a
bilateral agreement may be ended or suspended. Also, under section 49, bilateral
agreements do not operate in relation to actions in Commonwealth areas, or
actions taken by the Commonwealth or a Commonwealth agency, unless they
expressly provide that they do.
(2) If the action is to be taken in 2 or more States or self-governing
Territories, this section does not operate unless it operates in relation to
each of those States or Territories.
When this Part does not apply
(1) This Part does not apply in relation to an action if:
(a) the Minister has declared in writing that actions in a class that
includes the action need not be assessed under this Part; and
(b) the declaration is in operation.
Declaration
(2) The Minister may declare in writing that actions in a specified class
of actions assessed by the Commonwealth or a Commonwealth agency in a specified
manner do not require assessment under this Part.
Prerequisites for making declaration
(3) The Minister may only make a declaration if he or she is satisfied
that:
(a) the specified manner of assessment meets the standards (if any)
prescribed by the regulations; and
(b) he or she will receive a report of each assessment that is made, in
the specified manner, of the relevant impacts of an action he or she has decided
under Division 2 of Part 7 is a controlled action; and
(c) the report will contain enough information to allow him or her to make
an informed decision whether or not to approve under Part 9 (for the purposes of
each controlling provision) the taking of the action.
Specified manner of assessment
(4) The manner of assessment that may be specified in a declaration
includes assessment by a Commonwealth agency under a law of the Commonwealth.
This does not limit subsection (2).
Publishing declaration
(5) The Minister must publish a declaration in accordance with the
regulations.
Revoking declaration
(6) The Minister may, by instrument in writing published in accordance
with the regulations, revoke a declaration.
Minister must not give preference
(7) In making or revoking a declaration relating to an action
taken:
(a) by a person for the purposes of trade between Australia and another
country or between 2 States; or
(b) by a constitutional corporation;
the Minister must not give preference (within the meaning of section 99 of
the Constitution) to one State or part of a State over another State or part of
a State.
The following is a simplified outline of this Division:
The Minister must choose one of the following ways of assessing the
relevant impacts of an action the Minister has decided is a controlled
action:
(a) a specially accredited process;
(b) an assessment on preliminary documentation;
(c) a public environment report;
(d) an environmental impact statement;
(e) a public inquiry.
The designated proponent of an action, or a person proposing to take an
action, must give the Minister in the prescribed way the prescribed information
relating to the action.
Note: The Minister must not decide on an approach for
assessment until he or she receives information under this section. See
subsection 88(1).
Minister must choose one assessment approach
(1) The Minister must decide which one of the following approaches must be
used for assessment of the relevant impacts of the action:
(a) assessment by a specially accredited process;
(b) assessment on preliminary documentation under Division 4;
(c) assessment by public environment report under Division 5;
(d) assessment by environmental impact statement under Division
6;
(e) assessment by inquiry under Division 7.
Minister must consult before making decision
(2) If:
(a) the action is to be taken in a State or self-governing Territory
and
(b) a controlling provision for the action is in Division 1 of Part 3
(about matters of national environmental significance);
the Minister must invite the appropriate Minister of the State or Territory
to provide information relevant to deciding which approach is appropriate,
before deciding on the approach to be used for assessment of the relevant
impacts of the action.
Note: Subsection (2) also applies to actions to be taken in
an area offshore from a State or the Northern Territory. See section
157.
Considerations in making choice
(3) In making the decision, the Minister must consider:
(a) information relating to the action given to the Minister in the
referral of the proposal to take the action or under section 86; and
(b) any other information available to the Minister about the relevant
impacts of the action that the Minister considers relevant (including
information in a report on the impacts of actions under a policy, plan or
program under which the action is to be taken that was given to the Minister
under an agreement under Part 10 (about strategic assessments)); and
(c) any relevant information received in response to an invitation under
subsection (2); and
(d) the matters (if any) prescribed by the regulations.
Assessment by specially accredited process
(4) The Minister may decide on an assessment by a specially accredited
process only if the Minister is satisfied that:
(a) the process meets the standards (if any) prescribed by the
regulations; and
(b) the process will adequately assess the relevant impacts of the action;
and
(c) he or she will receive a report of the outcome of the process that
will provide enough information on the relevant impacts of the action to let him
or her make an informed decision whether or not to approve under Part 9 (for the
purposes of each controlling provision) the taking of the action.
Assessment on preliminary documentation
(5) The Minister may decide on an assessment on preliminary documentation
under Division 4 only if the Minister is satisfied (after considering the
matters in subsection (3)) that that approach will allow the Minister to make an
informed decision whether or not to approve under Part 9 (for the purposes of
each controlling provision) the taking of the action.
Initial decision
(1) The Minister must decide on the approach to be used for assessment of
the relevant impacts of the action within 20 business days after whichever of
the following days is later (or either of them if they are the same):
(a) the day the Minister decides under Division 2 of Part 7 that the
action is a controlled action;
(b) the day the Minister is given information relating to the action as
required by section 86.
Note: Section 156 sets out rules about time
limits.
Extended time if difference of opinion with State or
Territory
(2) However, subsection (1) has effect as if it referred to 30 business
days (instead of 20 business days) if the Minister believes that information
provided in response to an invitation under subsection 87(2) cannot be
considered adequately to make the decision in the time allowed by subsection (1)
apart from this subsection.
Subsection (2) does not require decision to be delayed
(3) To avoid doubt, subsection (2) does not require the Minister to delay
making a decision:
(a) until information is received in response to an invitation under
subsection 87(2); or
(b) until 20 business days after the Minister is given information
relating to the action under section 86.
Time does not run while further information sought
(4) If the Minister has requested more information under section 89 for
the purposes of deciding on the approach to be used for the relevant impacts of
the action, a day is not to be counted as a business day for the purposes of
subsection (1) if it is:
(a) on or after the day the Minister requested the information;
and
(b) on or before the day on which the Minister receives the last of the
information requested.
Running of time may be suspended by agreement
(5) The Minister and the designated proponent of the action may agree in
writing that days within a period worked out in accordance with the agreement
are not to be counted as business days for the purposes of subsection (1). If
the agreement is made, those days are not to be counted for the purposes of that
subsection.
If the Minister believes on reasonable grounds that the information given
to the Minister in relation to an action is not enough to allow the Minister to
make an informed decision on the approach to be used for assessment of the
relevant impacts of the action, the Minister may request the designated
proponent to provide specified information relevant to making the
decision.
Application
(1) This section applies if:
(a) the Minister has made a decision (the first decision)
under section 87 that the relevant impacts of an action must be assessed
by:
(i) assessment by public environment report under Division 5; or
(ii) assessment by environmental impact statement under Division 6;
and
(b) the designated proponent publishes:
(i) a draft report under section 98 (about public environment reports);
or
(ii) a draft statement under section 103 (about environmental impact
statements).
Revoking and substituting decision
(2) The Minister may revoke the first decision and make another decision
(the new decision) under section 87 (in substitution for the first
decision) that the relevant impacts of the action must be assessed by an inquiry
under Division 7.
Effect of revocation and substitution
(3) When the first decision is revoked and the new decision is substituted
for it:
(a) whichever of Divisions 4, 5 and 6 applied in relation to the action
because of the first decision ceases to apply in relation to the action;
and
(b) Division 7 applies in relation to the action.
(1) Within 10 business days after making a decision on the approach to be
used for assessment of the relevant impacts of an action, the Minister
must:
(a) give written notice of the decision to:
(i) the designated proponent of the action; and
(ii) if the action is to be taken in a State or self-governing Territory
and a controlling provision for the action is in Division 1 of Part 3 (which
deals with matters of national environmental significance)—the appropriate
Minister of the State or Territory; and
(b) publish notice of the decision in accordance with the
regulations.
Note 1: Section 156 sets out rules about time
limits.
Note 2: Subparagraph (1)(a)(ii) also applies to actions to
be taken in an area offshore from a State or the Northern Territory. See section
157.
(2) If the Minister decided that the relevant impacts of the action are to
be assessed by a specially accredited process, the written notice and the
published notice must specify the process.
This Division applies in relation to an action if the Minister has
decided under section 87 that the relevant impacts of the action must be
assessed by assessment on preliminary documentation under this
Division.
(1) If the Minister directs the designated proponent of the action to do
so, the designated proponent must:
(a) publish in accordance with the regulations:
(i) specified information included in the referral to the Minister of the
proposal to take the action; and
(ii) specified information that was given to the Minister under section
86; and
(iii) specified information relating to the action that was given to the
Minister after the referral but before the Minister made the decision under
section 87; and
(iv) an invitation for anyone to give the designated proponent comments
relating to the information or the action within a period of the length
specified in the Minister’s direction; and
(b) give to the Minister a copy and summary of any comments received
within the period specified in the invitation.
(2) The Minister may only give the designated proponent a direction within
10 business days after deciding under section 87 that the relevant impacts of
the action must be assessed by assessment on preliminary documentation under
this Division.
(1) After the period for comment, the designated proponent must give the
Minister:
(a) a document that sets out the information provided to the Minister
previously in relation to the action, with any changes or additions needed to
take account of any comments received by the designated proponent; or
(b) if the designated proponent did not receive any comments—a
written statement to that effect.
(2) The Minister may refuse to accept a document referred to in paragraph
(1)(a) if he or she believes on reasonable grounds that it is inadequate for the
purposes of making an informed decision on approving under Part 9 (for the
purposes of each controlling provision) the taking of the action.
Preparation
(1) The Secretary must prepare, and give to the Minister, a report
relating to the action within 20 business days after:
(a) the day on which the Minister decided under section 87 that the
relevant impacts of the action must be assessed by assessment on preliminary
documentation under this Division; or
(b) if the designated proponent was required under section 93 to invite
comments on the action and has received comments—the day the Minister
accepted from the designated proponent the document described in paragraph
94(1)(a); or
(c) if the designated proponent was required under section 93 to invite
comments on the action and did not receive any comments—the day the
designated proponent gave the Minister the statement to that effect under
paragraph 94(1)(b).
Publication
(2) The Secretary must provide to a person who asks for the report a copy
of it (either free or at a reasonable charge determined by the
Secretary).
Limits on publication
(3) However, the Secretary must not provide under subsection (2) so much
of the report as is an exempt document under the Freedom of Information Act
1982 on the grounds of:
(a) commercial confidence; or
(b) the security of the Commonwealth; or
(c) its providing advice to the Minister.
This Division applies in relation to an action if the Minister has
decided under section 87 that the relevant impacts of the action must be
assessed by a public environment report under this Division.
(1) The Minister must prepare written guidelines for the content of a
draft report about the relevant impacts of the action.
(2) In preparing the guidelines, the Minister must seek to ensure that the
draft report will:
(a) contain enough information about the action and its relevant impacts
to allow the Minister to make an informed decision whether or not to approve
under Part 9 (for the purposes of each controlling provision) the taking of the
action; and
(b) address the matters (if any) prescribed by the regulations.
(3) The guidelines may also provide for the draft report to include
information about other certain and likely impacts of the action if:
(a) the action is to be taken in a State or self-governing
Territory:
(i) by a constitutional corporation; or
(ii) by any person for the purposes of trade or commerce between Australia
and another country, between 2 States, between a State and a Territory or
between 2 Territories; and
(b) the appropriate Minister of the State or Territory has asked the
Minister administering this section to ensure that the draft report includes
information about those other impacts to help the State or Territory, or an
agency of the State or Territory, make decisions about the action.
Note: Paragraph (3)(a) also applies to actions to be taken
in an area offshore from a State or the Northern Territory. See section
157.
(4) Division 2 does not limit:
(a) subsection (3); or
(b) section 98 so far as it relates to guidelines prepared in reliance on
that subsection.
(5) In preparing the guidelines, the Minister may:
(a) invite anyone to comment on a draft of the guidelines within a period
specified by the Minister; and
(b) take account of the comments received (if any).
Designated proponent’s obligations
(1) The designated proponent of the action must:
(a) prepare a draft report about the relevant impacts of the action (and
any other impacts mentioned under subsection 97(3) in the guidelines for the
content of the draft report); and
(b) obtain the Minister’s approval for publication of the draft
report; and
(c) publish in accordance with the regulations:
(i) the draft report; and
(ii) an invitation for anyone to give the designated proponent comments
relating to the draft report or the action within the period specified in the
invitation; and
(d) give the Minister a copy and summary of the comments (if any) received
within the period specified in the invitation.
Approval of publication of draft report
(2) The Minister may only approve the publication of the draft report if
he or she is satisfied that the draft report adequately addresses the guidelines
for the content of the draft report.
Period for comment
(3) The period specified in the invitation to comment must be the period
specified in writing given by the Minister to the designated proponent. The
Minister must not specify a period of less than 20 business days.
Designated proponent must finalise report
(1) After the end of the period specified in the invitation to comment
under section 98, the designated proponent must finalise the draft report,
taking account of the comments received (if any), and give the finalised report
to the Minister.
Form of finalised report
(2) The designated proponent may give the finalised report to the Minister
in the form of:
(a) a revised version of the draft report; or
(b) the draft report and a supplement to the draft report.
Refusal to accept finalised report
(3) The Minister may refuse to accept the finalised report if he or she is
satisfied on reasonable grounds that the finalised report is inadequate for the
purposes of making an informed decision on approving under Part 9 (for the
purposes of each controlling provision) the taking of the action.
Publication of finalised report
(4) After the Minister has accepted the finalised report, the designated
proponent must publish it in accordance with the regulations.
Preparation
(1) The Secretary must prepare, and give to the Minister, a report
relating to the action within 20 business days after the day on which the
Minister accepted the finalised report from the designated proponent.
Publication
(2) The Secretary must provide to a person who asks for the report a copy
of it (either free or at a reasonable charge determined by the
Secretary).
Limits on publication
(3) However, the Secretary must not provide under subsection (2) so much
of the report as is an exempt document under the Freedom of Information Act
1982 on the grounds of:
(a) commercial confidence; or
(b) the security of the Commonwealth; or
(c) its providing advice to the Minister.
This Division applies in relation to an action if the Minister has
decided under section 87 that the relevant impacts of the action must be
assessed by an environmental impact statement under this Division.
(1) The Minister must prepare written guidelines for the content of a
draft statement about the action and its relevant impacts.
(2) In preparing the guidelines, the Minister must seek to ensure that the
draft statement will:
(a) contain enough information about the action and its relevant impacts
to allow the Minister to make an informed decision whether or not to approve
under Part 9 (for the purposes of each controlling provision) the taking of the
action; and
(b) address any matters specified by the regulations.
(3) The guidelines may also provide for the draft statement to include
information about other certain and likely impacts of an action if:
(a) the action is to be taken in a State or self-governing
Territory:
(i) by a constitutional corporation; or
(ii) by any person for the purposes of trade or commerce between Australia
and another country, between 2 States, between a State and a Territory or
between 2 Territories; and
(b) the appropriate Minister of the State or Territory has asked the
Minister administering this section to ensure that the draft statement includes
information about those other impacts to help the State or Territory, or an
agency of the State or Territory, make decisions about the action.
Note: Paragraph (3)(a) also applies to actions to be taken
in an area offshore from a State or the Northern Territory. See section
157.
(4) Division 2 does not limit:
(a) subsection (3); or
(b) section 103 so far as it relates to guidelines prepared in reliance on
that subsection.
(5) In preparing the guidelines, the Minister may:
(a) invite anyone to comment on a draft of the guidelines within a period
specified by the Minister; and
(b) take account of the comments (if any) received.
Designated proponent’s obligations
(1) The designated proponent of the action must:
(a) prepare a draft statement about the relevant impacts of the action
(and any other impacts mentioned under subsection 102(3) in the guidelines for
the content of the draft statement); and
(b) obtain the Minister’s approval for publication of the draft
statement; and
(c) publish in accordance with the regulations:
(i) the draft statement; and
(ii) an invitation for anyone to give the designated proponent comments
relating to the draft statement or the action within the period specified in the
invitation; and
(d) give the Minister a copy and summary of the comments (if any) received
within the period specified in the invitation.
Approval of publication of draft statement
(2) The Minister may only approve the publication of the draft statement
if he or she is satisfied that the draft statement adequately addresses the
guidelines for the content of the draft statement.
Period for comment
(3) The period specified in the invitation to comment must be the period
specified in writing given by the Minister to the designated proponent. The
Minister must not specify a period of less than 20 business days.
Designated proponent must finalise statement
(1) After the period specified in the invitation to comment under section
103, the designated proponent must:
(a) finalise the draft statement, taking account of the comments (if any)
received in response to the invitation; and
(b) give the finalised statement to the Minister.
Form of finalised statement
(2) The designated proponent may give the finalised statement to the
Minister in the form of:
(a) a revised version of the draft statement; or
(b) the draft statement and a supplement to the draft statement.
Refusal to accept finalised statement
(3) The Minister may refuse to accept the finalised statement if he or she
is satisfied on reasonable grounds that it is inadequate for the purposes of
making an informed decision on approving under Part 9 (for the purposes of each
controlling provision) the taking of the action.
Publication of finalised statement
(4) After the Minister has accepted the finalised statement, the
designated proponent must publish it in accordance with the
regulations.
Preparation
(1) The Secretary must prepare, and give to the Minister, a report
relating to the action within 30 business days after the day on which the
Minister accepted from the designated proponent the finalised
statement.
Publication
(2) The Secretary must provide to a person who asks for the report a copy
of it (either free or at a reasonable charge determined by the
Secretary).
Limits on publication
(3) However, the Secretary must not provide under subsection (2) so much
of the report as is an exempt document under the Freedom of Information Act
1982 on the grounds of:
(a) commercial confidence; or
(b) the security of the Commonwealth; or
(c) its providing advice to the Minister.
The following is a simplified outline of this Division:
This Division provides for the Minister to appoint commissions to carry out
inquiries in a flexible way into the impacts of actions.
Commissioners have powers to call witnesses, obtain documents and inspect
places for the purposes of their inquiries.
Commissioners must report to the Minister and publish their
reports.
(1) If the Minister decides that the relevant impacts of an action must be
assessed by inquiry under this Division, the Minister must:
(a) appoint in writing one or more persons (the
commissioners) as a commission to conduct the inquiry and report
to the Minister in relation to the action; and
(b) specify in writing (the terms of reference):
(i) the matters relating to the action that are to be the subject of the
inquiry and report; and
(ii) the period within which the commission must report to the
Minister.
Note 1: The Minister may revoke an appointment and amend
terms of reference. See subsection 33(3) of the Acts Interpretation Act
1901.
Note 2: Subdivision E contains more provisions about the
basis on which a commissioner holds office.
(2) If the Minister appoints 2 or more commissioners for an inquiry, the
Minister must appoint one of them to preside at the inquiry.
(3) In specifying in the terms of reference the matters relating to the
action that are to be the subject of the inquiry and report, the
Minister:
(a) must specify the relevant impacts of the action; and
(b) may specify other certain or likely impacts of the action.
(4) However, the Minister may specify other certain or likely impacts of
the action only if:
(a) the action is to be taken in a State or self-governing
Territory:
(i) by a constitutional corporation; or
(ii) by any person for the purposes of trade or commerce between Australia
and another country, between 2 States, between a State and a Territory or
between 2 Territories; and
(b) the appropriate Minister of the State or Territory has asked the
Minister administering this section to ensure that the inquiry reports on those
other impacts to help the State or Territory, or an agency of the State or
Territory, make decisions about the action.
Note: Paragraph (4)(a) also applies to actions to be taken
in an area offshore from a State or the Northern Territory. See section
157.
(5) The Minister may also specify in the terms of reference the manner in
which the commission is to carry out the inquiry.
(1) As soon as practicable, the commission must publish in accordance with
the regulations and in any other way it thinks fit:
(a) the terms of reference; and
(b) the information relating to the action given to the Minister under
this Chapter before the Minister made the decision under Division 3 to use an
inquiry to assess the relevant impacts of the action.
(2) The commission need not publish the information described in paragraph
(1)(b) if, before the Minister appointed the commission, the designated
proponent of the action published:
(a) a draft report under section 98 (which deals with draft public
environment reports); or
(b) a draft statement under section 103 (which deals with draft
environmental impact statements).
However, in this case the commission must publish as described in
subsection (1) notice of the fact that the information, draft report or draft
statement has already been published.
(1) A commission must comply with the terms of reference in conducting its
inquiry.
(2) Subject to this Division, a commission:
(a) may determine the procedure to be followed in its inquiry;
and
(b) is not subject to any directions by an employee of the Commonwealth or
by a Commonwealth agency; and
(c) is not bound by the rules of evidence.
(1) A hearing held as part of an inquiry must be conducted in public,
except so far as the commission directs otherwise.
(2) The commission must make publicly available (in any way the commission
thinks fit) the content of any submission or evidence given to the commission in
writing, except so far as the commission directs otherwise.
(3) If the commission believes that it is desirable in the public
interest, the commission may:
(a) give directions that all or part of the inquiry be held in private,
specifying the persons who may be present; and
(b) give directions prohibiting or restricting the publication of all or
specified passages of submissions or evidence given to the commission orally or
in writing.
Summoning witnesses
(1) A commissioner may, by writing signed by the commissioner, summon a
person to appear before the commission at a time and place specified in the
summons to give evidence and produce any documents mentioned in the
summons.
Failure of witness to attend
(2) A person served with a summons to appear as a witness at an inquiry by
a commission must not:
(a) fail to attend as required by the summons; or
(b) fail to appear and report from day to day unless excused or released
from further attendance by or on behalf of the commission.
Note: A defendant bears an evidential burden in relation to
the excuse or release from further attendance mentioned in paragraph (2)(b). See
subsection 13.3(3) of the Criminal Code.
Offence
(3) A person who contravenes subsection (2) is guilty of an offence
punishable on conviction by imprisonment for not more than 6 months, a fine of
not more than 30 penalty units, or both.
Allowances for witnesses
(4) A person summoned by a commission to appear as a witness at an inquiry
is entitled to be paid by the Commonwealth such allowances for travelling and
other expenses as are prescribed by the regulations.
Power to administer oath or affirmation
(1) A commissioner may administer an oath or affirmation to a person
appearing as a witness before the commission.
Note: This means that proceedings before the commission are
judicial proceedings for the purposes of Part III of the Crimes
Act 1914, which creates various offences relating to judicial
proceedings.
Refusal to be sworn or to answer questions
(2) A person appearing as a witness at an inquiry by a commission must
not:
(a) refuse or fail to be sworn or to make an affirmation; or
(b) refuse or fail to answer a question that the person is required to
answer by the commissioner (or the commissioner presiding at the inquiry if
there is more than one commissioner for the inquiry); or
(c) refuse or fail to produce a document that the person was required to
produce by a summons served on the person.
Offence
(3) A person who contravenes subsection (2) is guilty of an offence
punishable on conviction by imprisonment for not more than 6 months, a fine of
not more than 30 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.
No privilege against self-incrimination
(4) An individual is not excused from answering a question or producing a
document on the ground that answering the question or producing the document
would tend to incriminate the individual or to expose the individual to a
penalty.
Answers and documents cannot be used in criminal
proceedings
(5) However, none of the following is admissible in evidence in criminal
proceedings against the individual (except proceedings under section
491):
(a) the answer to the question;
(b) the production of the document;
(c) any information, document or thing obtained as a direct or indirect
consequence of answering the question or producing the document.
Sworn witnesses may also give written evidence on oath
(6) A commission may permit a person who is appearing as a witness before
the commission and has been sworn or has made an affirmation to give evidence by
tendering a written statement and verifying it by oath or affirmation.
Inspecting and copying documents produced or given at
inquiry
(1) A commissioner, or a person assisting a commission and authorised by a
commissioner to do so, may:
(a) inspect a document produced or given to the commission; and
(b) make a copy of, or take an extract from, the document.
Keeping documents produced or given at inquiry
(2) A commission may keep for a reasonable period a document produced or
given to the commission.
(1) If a commissioner, or a person authorised by a commissioner, enters
any land, building or place by consent as described in section 115 or under a
warrant issued under section 116, the commissioner or person may:
(a) inspect the land, building or place; and
(b) inspect any material on the land, or on or in the building or
place.
(2) However, the commissioner or authorised person may not make the
inspection if:
(a) the person occupying or in charge of the land, building or place asks
the commissioner or authorised person to produce his or her identity card or
other written evidence of his or her identity; and
(b) the commissioner or person does not produce it.
(3) A person (the offender) is guilty of an offence
punishable on conviction by imprisonment for not more than 6 months
if:
(a) the offender obstructs or hinders another person; and
(b) the offender knows the other person is a commissioner, or a person
authorised by a commissioner, acting under subsection (1) or a warrant issued
under section 116.
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).
(1) A commissioner, or a person authorised by a commissioner, may enter
land, a building or a place at any reasonable time for any reasonable purpose of
an inquiry, if the person (the occupant) occupying or in charge of
the land, building or place consents.
(2) Before obtaining the consent, the commissioner or authorised person
must inform the occupant that the occupant may refuse to give consent.
(3) The commissioner or authorised person may not enter the land, building
or place if:
(a) the occupant asks the commissioner or authorised person to produce his
or her identity card or other written evidence of his or her identity;
and
(b) the commissioner or authorised person does not produce it.
(4) An entry by a commissioner or authorised person with the
occupant’s consent is not lawful if the occupant’s consent was not
voluntary.
(1) A commissioner may apply to a magistrate for a warrant authorising the
commissioner or a person authorised by the commissioner to enter any land,
building or place if the commissioner has reason to believe that it is necessary
or desirable for the purposes of an inquiry for the commissioner or person to
enter the land, building or place for the purposes of the inquiry.
Note: Section 117 allows applications for warrants to be
made by telephone.
(2) If the magistrate is satisfied by information on oath or affirmation
that the issue of the warrant is reasonably required for the purposes of the
inquiry, he or she may grant a warrant authorising the person named in the
warrant to enter the land, building or place for the purposes specified in the
warrant.
(3) The magistrate must specify in the warrant the date after which the
warrant ceases to have effect.
(4) The person named in a warrant may not enter the land, building or
place if:
(a) the person occupying or in charge of the land, building or place asks
the person named in the warrant to produce his or her identity card or other
written evidence of his or her identity; and
(b) the person named in the warrant does not produce it.
Application
(1) A commissioner may apply to a magistrate for a warrant by telephone,
telex, facsimile 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
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) The magistrate may complete and sign the same form of warrant that
would be issued under section 116 if, after considering the information and
having received and considered any further information he or she required, the
magistrate 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.
Notification
(5) If the magistrate decides to issue the warrant, the magistrate must
inform the applicant, by telephone, telex, facsimile 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 must 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.
(1) The Minister may cause to be issued to a commissioner or a person
authorised by a commissioner an identity card:
(a) in a form approved by the Minister; and
(b) containing a recent photograph of the person to whom it is
issued.
(2) As soon as practicable after the commission to which the commissioner
was appointed has reported to the Minister on its inquiry, the commissioner or
authorised person must return his or her identity card to the
Minister.
(3) A person must not contravene subsection (2).
Penalty: 1 penalty unit.
(1) A person is guilty of an offence punishable on conviction by a fine of
not more than 30 penalty units if:
(a) the person insults, disturbs or uses insulting language towards
another person; and
(b) the person knows the other person is a commissioner exercising the
powers or performing the functions or duties of a commissioner.
(2) A person is guilty of an offence punishable on conviction by a fine of
not more than 30 penalty units if:
(a) the person creates a disturbance, or takes part in creating or
continuing a disturbance, in or near a place; and
(b) the person knows the place is a place where a commission is holding an
inquiry.
(3) A person must not:
(a) interrupt an inquiry by a commission; or
(b) do any other act or thing that would, if a commission were a court of
record, constitute a contempt of that court.
Penalty: 30 penalty units.
Protection of commissioners
(1) In performing his or her duties as a commissioner, a commissioner has
the same protection and immunity as a Justice of the High Court.
Rights and obligations of witnesses
(2) A person appearing before a commission as a witness at an
inquiry:
(a) has the same protection as a witness in proceedings in the High Court;
and
(b) is subject to the same liabilities in any civil or criminal
proceedings as such a witness (in addition to the penalties provided by this
Division).
Interfering with witness is an offence
(3) A person must not:
(a) use violence to or inflict injury on; or
(b) cause or procure violence, damage, loss or disadvantage to;
or
(c) cause or procure the punishment of;
another person (the witness) because the witness will appear
or did appear as a witness at an inquiry or because of any submission or
evidence the witness gave to a commission.
Interference with a witness’ employment
(4) An employer must not dismiss an employee, or prejudice an employee in
his or her employment, because the employee appeared as a witness or gave any
submission or evidence at an inquiry by a commission.
Interference with employee who proposes to give evidence
(5) An employer must not dismiss or threaten to dismiss an employee or
prejudice, or threaten to prejudice, an employee in his or her employment,
because the employee proposes to appear as a witness or to give a submission or
evidence at an inquiry by a commission.
Offences
(6) A person who contravenes subsection (3), (4) or (5) is guilty of an
offence punishable on conviction by imprisonment for not more than 6 months, a
fine of not more than 30 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.
Burden of proof in proceedings relating to witness
(7) In proceedings arising out of subsection (4), the employer has the
burden of proving that the employee was not dismissed or prejudiced because the
employee appeared as a witness or gave a submission or evidence at an inquiry by
a commission, if it is established that:
(a) the employee was dismissed from, or prejudiced in, his or her
employment; and
(b) before the employee was dismissed or prejudiced, the employee appeared
as a witness, or gave any submission or evidence, at an inquiry by a
commission.
Burden of proof in proceedings relating to employee proposing to give
evidence
(8) In any proceedings arising out of subsection (5), the employer has the
burden of proving that the employee was not dismissed, prejudiced in his or her
employment or threatened with dismissal or prejudice because the employee
proposed to appear as a witness or give evidence at an inquiry by a commission,
if it is established that:
(a) the employee was dismissed, prejudiced or threatened; and
(b) the employee made the proposal before the employee was dismissed,
prejudiced or threatened.
Relationship of subsections (3), (4) and (5)
(9) Subsections (4) and (5) do not limit subsection (3).
The commission must report to the Minister on the inquiry within the
period specified by the Minister in the terms of reference.
(1) After reporting to the Minister, the commission must publish the
report in accordance with the regulations.
(2) However, the commission must not publish the report so far as it sets
out any submission or evidence whose publication the commission prohibited or
restricted by a direction under paragraph 110(3)(b).
(1) A commissioner is to be appointed on a full-time basis or a part-time
basis.
(2) A commissioner appointed on a full-time basis must not engage in paid
employment outside the duties of the commissioner’s office without the
Minister’s approval.
(3) A commissioner appointed on a part-time basis must not engage in any
paid employment that, in the Minister’s opinion, conflicts or may conflict
with the proper performance of the commissioner’s duties.
(1) A commissioner who is not appointed or employed under the Public
Service Act 1922 is to be paid the remuneration that is determined by the
Remuneration Tribunal. If no determination of that remuneration is in operation,
the commissioner is to be paid the remuneration that is prescribed.
(2) A commissioner is to be paid the allowances that are
prescribed.
(3) This section has effect subject to the Remuneration Tribunal Act
1973.
(1) Subject to section 87E of the Public Service Act 1922, a
commissioner appointed on a full-time basis has the recreation leave
entitlements that are determined by the Remuneration Tribunal.
(2) The Minister may grant a commissioner appointed on a full-time basis
leave of absence, other than recreation leave, on the terms and conditions as to
remuneration or otherwise that the Minister determines.
(3) The commissioner (the presiding commissioner) appointed
to preside at an inquiry may grant leave of absence to any other commissioner
for the inquiry on the terms and conditions that the presiding commissioner
determines, if the other commissioner has been appointed on a part-time
basis.
A commissioner may resign his or her appointment by giving the Minister a
written resignation.
(1) The Minister may terminate a commissioner’s appointment for
misbehaviour or physical or mental incapacity.
(2) The Minister must terminate the appointment of a commissioner
if:
(a) the commissioner:
(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 commissioner fails, without reasonable excuse, to comply with
section 128 (about disclosure of interests); or
(c) the Minister becomes aware that the commissioner has a pecuniary or
other interest in the subject-matter of the inquiry and the Minister considers
that the commissioner should not continue to participate in the conduct of the
inquiry.
(3) The Minister must terminate the appointment of a commissioner on a
full-time basis if:
(a) the commissioner is absent, except on leave of absence, for 14
consecutive days or for 28 days in any 12 months; or
(b) the commissioner engages, except with the Minister’s approval,
in paid employment outside the duties of his or her office.
(4) The Minister must terminate the appointment of a commissioner on a
part-time basis if:
(a) the commissioner is absent, except on leave of absence, from 3
consecutive meetings of his or her commission (if it consists of 2 or more
commissioners); or
(b) the commissioner engages in paid employment that, in the
Minister’s opinion, conflicts or could conflict with the proper
performance of the duties of his or her office.
(1) A commissioner must give written notice to the Minister of all direct
and indirect pecuniary interests that he or she has or acquires in a business or
in a body corporate carrying on a business.
(2) If a commissioner has or acquires an interest, pecuniary or otherwise,
that could conflict with the proper performance of his or her duties, he or she
must:
(a) inform the Minister of the interest; and
(b) ensure that the interest is disclosed in the report of his or her
inquiry.
A commissioner holds office on the terms and conditions (if any) in
relation to matters not covered by this Act that are determined by the
Minister.
Basic rule
(1) The Minister must decide within whichever of the following periods is
relevant whether or not to approve the taking of a controlled action:
(a) 30 business days, or such longer period as the Minister specifies in
writing, starting on the first business day after the Minister receives an
assessment report relating to the action;
(b) 40 business days, or such longer period as the Minister specifies in
writing, starting on the first business day after the Minister receives a report
of a commission that has conducted an inquiry relating to the action.
Note: Section 156 sets out rules about time
limits.
What is an assessment report?
(2) An assessment report is a report given to the Minister
as described in:
(a) subsection 47(4) (about assessments under a bilateral agreement);
or
(b) subsection 84(3) (about assessments in a manner specified in a
declaration); or
(c) subsection 87(4) (about assessments by specially accredited
processes); or
(d) subsection 95(1) (about assessments on preliminary documentation);
or
(e) subsection 100(1) (about public environment reports); or
(f) subsection 105(1) (about environmental impact statements).
Time may be extended only to consider other Ministers’
comments
(3) The Minister may specify a longer period for the purposes of paragraph
(1)(a) or (b) only if:
(a) the Minister has received comments about a proposed decision from
another Minister in accordance with an invitation under section 131;
and
(b) the Minister is satisfied that it would not be practicable to consider
them adequately and make a decision within the period that would apply if the
longer period were not specified.
Notice of extension of time
(4) If the Minister specifies a longer period for the purposes of
paragraph (1)(a) or (b), he or she must:
(a) give a copy of the specification to the person proposing to take the
action; and
(b) publish the specification in accordance with the
regulations.
Time does not run while further information is sought
(5) If, under section 132, the Minister has requested more information for
the purposes of making a decision whether or not to approve the taking of an
action, a day is not to be counted as a business day for the purposes of
subsection (1) if it is:
(a) on or after the day the Minister requested the information;
and
(b) on or before the day on which the Minister receives the last of the
information requested.
(1) Before the Minister (the Environment Minister) decides
whether or not to approve the taking of an action, and what conditions (if any)
to attach to an approval, he or she must:
(a) inform any other Minister whom the Environment Minister believes has
administrative responsibilities relating to the action of the decision the
Environment Minister proposes to make; and
(b) invite the other Minister to give the Environment Minister comments on
the proposed decision within 10 business days.
(2) A Minister invited to comment may make comments that:
(a) relate to economic and social matters relating to the action;
and
(b) may be considered by the Environment Minister consistently with the
principles of ecologically sustainable development.
This does not limit the comments such a Minister may give.
If the Minister believes on reasonable grounds that he or she does not
have enough information to make an informed decision whether or not to approve
for the purposes of a controlling provision the taking of an action, the
Minister may request any of the following to provide specified information
relevant to making the decision:
(a) the person proposing to take the action;
(b) the designated proponent of the action;
(c) if a commission has conducted an inquiry under Division 7 of Part 8
relating to the action—the commission.
Approval
(1) The Minister may approve for the purposes of a controlling provision
the taking of a controlled action by a person.
Content of approval
(2) An approval must:
(a) be in writing; and
(b) specify the action that may be taken; and
(c) name the person who may take the action; and
(d) specify each provision of Part 3 for which the approval has effect;
and
(e) specify the period for which the approval has effect; and
(f) set out any conditions attached to the approval.
Notice of approval
(3) The Minister must:
(a) give a copy of the approval to the person; and
(b) provide a copy of the approval to a person who asks for it (either
free or for a reasonable charge determined by the Minister).
Limit on publication of approval
(4) However, the Minister must not provide under subsection (3) a copy of
so much of the approval as:
(a) is an exempt document under the Freedom of Information Act 1982
on the grounds of commercial confidence; or
(b) the Minister believes it is in the national interest not to
provide.
The Minister may consider the defence or security of the Commonwealth when
determining what is in the national interest. This does not limit the matters
the Minister may consider.
Generally
(1) The Minister may attach a condition to the approval of the action if
he or she is satisfied that the condition is necessary or convenient
for:
(a) protecting a matter protected by a provision of Part 3 for which the
approval has effect; or
(b) repairing or mitigating damage to a matter protected by a provision of
Part 3 for which the approval has effect (whether or not the damage has been,
will be or is likely to be caused by the action).
Conditions to protect matters from the approved action
(2) The Minister may attach a condition to the approval of the action if
he or she is satisfied that the condition is necessary or convenient
for:
(a) protecting from the action any matter protected by a provision of Part
3 for which the approval has effect; or
(b) repairing or mitigating damage that may or will be, or has been,
caused by the action to any matter protected by a provision of Part 3 for which
the approval has effect.
This subsection does not limit subsection (1).
Other conditions that may be attached to approval
(3) The conditions that may be attached to an approval include:
(a) conditions relating to any security to be given by the person by bond,
guarantee or cash deposit:
(i) to comply with this Act and the regulations; and
(ii) not to contravene a condition attached to the approval; and
(iii) to meet any liability of the person whose taking of the action is
approved to the Commonwealth for measures taken by the Commonwealth under
section 499 (which lets the Commonwealth repair and mitigate damage caused by a
contravention of this Act) in relation to the action; and
(b) conditions requiring the person to insure against any specified
liability of the person to the Commonwealth for measures taken by the
Commonwealth under section 499 in relation to the approved action; and
(c) conditions requiring the person taking the action to comply with
conditions specified in an instrument (including any kind of authorisation) made
or granted under a law of a State or self-governing Territory or another law of
the Commonwealth; and
(d) conditions requiring an environmental audit of the action to be
carried out periodically by a person who can be regarded as being independent
from the person whose taking of the action is approved; and
(e) conditions requiring the preparation, submission for approval by the
Minister, and implementation of a plan for managing the impacts of the approved
action on a matter protected by a provision of Part 3 for which the approval has
effect or of a plan for conserving habitat of a species or ecological community;
and
(f) conditions requiring specified environmental monitoring or testing to
be carried out; and
(g) conditions requiring compliance with a specified industry standard or
code of practice.
This subsection does not limit the kinds of conditions that may be attached
to an approval.
Considerations in deciding on condition
(4) In deciding whether to attach a condition to an approval, the Minister
must consider:
(a) any relevant conditions that have been imposed under a law of a State
or self-governing Territory or another law of the Commonwealth on the taking of
the action; and
(b) the desirability of ensuring as far as practicable that the condition
is a cost-effective means for the Commonwealth and the person taking the action
to achieve the object of the condition.
(1) This section deals with the approval:
(a) for the purposes of section 21 of a nuclear action:
(i) by a person for the purposes of trade or commerce between Australia
and another country or between 2 States; or
(ii) by a constitutional corporation; or
(b) for the purposes of section 25 of an action that is prescribed for the
purposes of subsection 25(1) and is taken:
(i) by a person for the purposes of trade or commerce between Australia
and another country or between 2 States; or
(ii) by a constitutional corporation.
(2) The Minister must not grant the approval, or attach a condition to the
approval, that has the effect of giving preference (within the meaning of
section 99 of the Constitution) to one State or part of a State over another
State or part of a State.
Mandatory considerations
(1) In deciding whether or not to approve the taking of an action, and
what conditions to attach to an approval, the Minister must consider the
following, so far as they are not inconsistent with any other requirement of
this Subdivision:
(a) matters relevant to any matter protected by a provision of Part 3 that
the Minister has decided is a controlling provision for the action;
(b) economic and social matters.
Factors to be taken into account
(2) In considering those matters, the Minister must take into
account:
(a) the principles of ecologically sustainable development; and
(b) the assessment report relating to the action; and
(c) if the action was assessed under Division 5 or 6 of Part 8 (which deal
with public environment reports and environmental impact statements)—the
report or statement about the action finalised by the designated proponent;
and
(d) if an inquiry was conducted under Division 7 of Part 8 in relation to
the action—the report of the commissioners; and
(e) any other information the Minister has on the relevant impacts of the
action (including information in a report on the impacts of actions taken under
a policy, plan or program under which the action is to be taken that was given
to the Minister under an agreement under Part 10 (about strategic assessments));
and
(f) any relevant comments given to the Minister by another Minister in
accordance with an invitation under section 131.
Principles of ecologically sustainable development
(3) The principles of ecologically sustainable development
consist of:
(a) the following core objectives:
(i) to enhance individual and community well-being and welfare by
following a path of economic development that safeguards the welfare of future
generations;
(ii) to provide for equity within and between generations;
(iii) to protect biological diversity and maintain essential ecological
processes and life-support systems; and
(b) the following guiding principles:
(i) decision-making processes should effectively integrate both long-term
and short-term economic, environmental, social and equity
considerations;
(ii) if there are threats of serious or irreversible environmental damage,
lack of full scientific certainty should not be used as a reason for postponing
measures to prevent environmental degradation;
(iii) the global dimension of environmental impacts of actions and policy
should be recognised and considered;
(iv) the need to develop a strong, growing and diversified economy that
can enhance the capacity for environmental protection should be
recognised;
(v) the need to maintain and enhance international competitiveness in an
environmentally sound manner should be recognised;
(vi) cost-effective and flexible measures should be adopted;
(vii) decisions and actions should provide for broad community involvement
on issues which affect the community.
Note: The principles of ecologically sustainable development
that are set out in this subsection are based on the core objectives and guiding
principles that were endorsed by the Council of Australian Governments in
December 1992.
Person’s environmental history
(4) In deciding whether or not to approve the taking of an action by a
person, and what conditions to attach to an approval, the Minister may consider
whether the person is a suitable person to be granted an approval, having regard
to the person’s history in relation to environmental matters.
Minister not to consider other matters
(5) In deciding whether or not to approve the taking of an action, and
what conditions to attach to an approval, the Minister must not consider any
matters that the Minister is not required or permitted by this Subdivision to
consider.
In deciding whether or not to approve for the purposes of section 12 the
taking of an action, and what conditions to attach to such an approval, the
Minister must not act inconsistently with Australia’s obligations under
the World Heritage Convention.
In deciding whether or not to approve for the purposes of section 16 the
taking of an action, and what conditions to attach to such an approval, the
Minister must not act inconsistently with Australia’s obligations under
the Ramsar Convention.
In deciding whether or not to approve for the purposes of a subsection of
section 18 the taking of an action, and what conditions to attach to such an
approval, the Minister must not act inconsistently with:
(a) Australia’s obligations under:
(i) the Biodiversity Convention; or
(ii) the Apia Convention; or
(iii) CITES; or
(b) a recovery plan or threat abatement plan.
In deciding whether or not to approve for the purposes of section 20 the
taking of an action relating to a listed migratory species, and what conditions
to attach to such an approval, the Minister must not act inconsistently with
Australia’s obligations under whichever of the following conventions and
agreements because of which the species is listed:
(a) the Bonn Convention;
(b) CAMBA;
(c) JAMBA;
(d) an international agreement approved under subsection 209(4).
In deciding whether or not to approve for the purposes of section 25 the
taking of an action prescribed by the regulations for the purposes of that
section, the Minister must not act inconsistently with Australia’s
obligations under any agreement between Australia and one or more other
countries that is relevant to actions of that kind.
(1) A person whose taking of an action has been approved under this Part
must not contravene any condition attached to the approval.
Civil penalty:
(a) for an individual—1,000 penalty units, or such lower amount as
is prescribed by the regulations;
(b) for a body corporate—10,000 penalty units, or such lower amount
as is prescribed by the regulations.
(2) A contravention of a condition attached to an approval under this Part
does not invalidate the approval.
(1) The Minister may, by written instrument, revoke, vary or add to any
conditions attached to an approval under this Part of an action if:
(a) any condition attached to the approval has been contravened;
or
(b) both of the following conditions are satisfied:
(i) the action has had a significant impact that was not identified in
assessing the action on any matter protected by a provision of Part 3 for which
the approval has effect, or the Minister believes the action will have such an
impact;
(ii) the Minister believes it is necessary to revoke, vary or add a
condition to protect the matter from the impact; or
(c) the person whose taking of the action was approved agrees to the
proposed revocation, variation or addition and the Minister is satisfied that
any conditions attached to the approval after the proposed revocation, variation
or addition are necessary or convenient for:
(i) protecting a matter protected by any provision of Part 3 for which the
approval has effect; or
(ii) repairing or mitigating damage to a matter protected by a provision
of Part 3 for which the approval has effect (whether or not the damage has been,
will be or is likely to be caused by the action).
(2) The Minister may, by written instrument, revoke any condition attached
to an approval under this Part of an action if the Minister is satisfied that
the condition is not needed to protect any matter protected by a provision of
Part 3 for which the approval has effect.
(3) In deciding whether or not to revoke, vary or add to any conditions
attached to the approval of the taking of an action by a person, the Minister
may have regard to the person’s history in relation to environmental
matters.
(4) The revocation, variation or addition takes effect on the day
specified in the instrument. The Minister must not specify a day earlier than
the day the instrument is made.
(5) As soon as possible after making the instrument, the Minister
must:
(a) give a copy of it to the person to whose action the approval relates;
and
(b) publish the instrument in accordance with the regulations.
(6) However, the Minister must not publish so much of the instrument
as:
(a) is an exempt document under the Freedom of Information Act 1982
on the grounds of commercial confidence; or
(b) the Minister believes it is in the national interest not to
provide.
The Minister may consider the defence or security of the Commonwealth when
determining what is in the national interest. This does not limit the matters
the Minister may consider.
(1) The Minister may, by written instrument, suspend the effect of an
approval under this Part for the purposes of a specified provision of Part 3 for
a specified period (which must not start before the day on which the instrument
is made) if the Minister believes on reasonable grounds that:
(a) a significant impact on the matter protected by the provision has
occurred because of the contravention of a condition attached to the approval;
or
(b) the conditions specified in subsection (2) are satisfied.
(2) The conditions are that:
(a) the action has had, or the Minister believes that the action will
have, a significant impact that was not identified in assessing the action on a
matter protected by a provision of Part 3 for which the approval has effect;
and
(b) the approval would not have been granted if information that the
Minister has about that impact had been available when the decision to approve
the action was made.
(3) In deciding whether or not to suspend an approval of the taking of an
action by a person, the Minister may have regard to the person’s history
in relation to environmental matters.
(4) During the specified period, the specified provision of Part 3 applies
as if the Minister had not given the approval.
(5) As soon as possible after making the instrument, the Minister
must:
(a) give a copy of it to the person to whose action the approval relates;
and
(b) publish the instrument in accordance with the regulations.
(1) The Minister may, by written instrument, revoke an approval under this
Part for the purposes of a specified provision of Part 3 if:
(a) a significant impact on the matter protected by the provision has
occurred because of the contravention of a condition attached to the approval;
or
(b) the conditions specified in subsection (2) are satisfied.
(2) The conditions are that:
(a) the action has had, or the Minister believes that the action will
have, a significant impact that was not identified in assessing the action on a
matter protected by a provision of Part 3 for which the approval has effect;
and
(b) the approval would not have been granted if information that the
Minister has about that impact had been available when the decision to approve
the action was made.
(3) In deciding whether or not to revoke an approval of the taking of an
action by a person, the Minister may have regard to the person’s history
in relation to environmental matters.
(4) The revocation takes effect on the day specified in the instrument.
The Minister must not specify a day earlier than the day the instrument is
made.
(5) As soon as possible after making the instrument, the Minister
must:
(a) give a copy of it to the person to whose action the approval related;
and
(b) publish the instrument in accordance with the
regulations.
(1) The Minister may agree in writing with a person responsible for the
adoption or implementation of a policy, plan or program that an assessment be
made of the relevant impacts of actions under the policy, plan or program that
are controlled actions or would be apart from Division 1 or 2 of Part
4.
(2) The agreement must provide for:
(a) the preparation of a draft of a report on those impacts; and
(b) the publication of the draft for public comment; and
(c) the finalisation of the report, taking into account the comments (if
any) received after publication of the draft; and
(d) the provision of the report to the Minister; and
(e) the making of recommendations by the Minister to the person about the
policy, plan or program (including recommendations for modification of the
policy, plan or program); and
(f) the endorsement of the policy, plan or program by the Minister if he
or she is satisfied that:
(i) the report adequately addresses those impacts; and
(ii) either the recommended modifications of the policy, plan or program
(if any) have been made or any modifications having the same effect have been
made; and
(g) any other matter prescribed by the regulations.
Note 1: If the relevant impacts of actions under a policy,
plan or program are assessed under an agreement under this Part, the Minister
may decide on a less onerous approach for an assessment relating to an
individual action under the policy, plan or program. See section
87.
Note 2: If the Minister endorses the policy, plan or
program, he or she may declare under section 33 that actions taken under the
policy, plan or program do not need approval for the purposes of specified
provisions of Part 3.
The following is a simplified outline of this Division:
The Australian Fisheries Management Authority must make agreements under
Division 1 for the assessment of actions in fisheries managed under the
Fisheries Management Act 1991. An agreement must be made whenever it is
proposed to make a management plan or a determination not to have a plan. An
agreement must be made within 5 years of the commencement of this Act for all
fisheries that did not have plans at that commencement.
The Minister administering the Torres Strait Fisheries Act 1984 must
make agreements under Division 1 for the assessment of actions permitted by
policies or plans for managing fishing in Torres Strait. All policies or plans
must be covered by an agreement within 5 years after the commencement of this
Act.
A further agreement for assessment must be made if the impact of the
actions is significantly greater than assessed under an earlier
agreement.
If the Minister endorses a policy or plan assessed under an agreement under
Division 1, the Minister must make a declaration that actions under the policy
or plan do not need approval under Part 9 for the purposes of section 23 (which
protects the marine environment).
Plans under the Fisheries Management Act 1991
(1) Before the Australian Fisheries Management Authority determines a plan
of management for a fishery under section 17 of the Fisheries Management Act
1991, the Authority must:
(a) make an agreement with the Minister under section 146 for assessment
of the relevant impacts of actions under the plan; and
(b) consider any recommendations made by the Minister under the
agreement.
Plans under the Torres Strait Fisheries Act 1984
(2) Before the Minister administering the Torres Strait Fisheries Act
1984 determines a plan of management for a fishery under section 15A of that
Act, he or she must:
(a) make an agreement under section 146 with the Minister (the
Environment Minister) administering this section for assessment of
the relevant impacts of actions under the plan; and
(b) consider any recommendations made by the Environment Minister under
the agreement.
Before the Australian Fisheries Management Authority determines under
subsection 17(1A) of the Fisheries Management Act 1991 that a plan of
management is not warranted for a fishery, the Authority must:
(a) make an agreement with the Minister under section 146 for assessment
of the relevant impacts of actions permitted under the Authority’s policy
for managing the fishery; and
(b) consider any recommendations made by the Minister under the
agreement.
Fisheries managed under the Fisheries Management Act 1991
(1) This section applies to fisheries (as defined in the Fisheries
Management Act 1991):
(a) that are managed under that Act (whether as a result of arrangements
under section 71 or 72 of that Act or not); and
(b) for which there were not plans of management in force under that Act
when this Act commenced.
Two-thirds of fisheries to be covered by agreements in 3
years
(2) Before the day that is the third anniversary of this Act commencing,
the Australian Fisheries Management Authority must make agreements with the
Minister under section 146 for assessment of the relevant impacts of actions
permitted under the Authority’s policies for managing at least
2/3 of the
fisheries.
All fisheries to be covered by agreements in 5 years
(3) Before the day that is the fifth anniversary of this Act commencing,
the Australian Fisheries Management Authority must make agreements with the
Minister under section 146 for assessment of the relevant impacts of actions
permitted under the Authority’s policies for managing the
fisheries.
Agreement not needed if fishery already subject to
agreement
(4) However, subsection (3) does not require another agreement to be made
in relation to a fishery if an agreement relating to the fishery has been made,
before the day mentioned in that subsection, by the Authority and the Minister
under section 146 because of subsection 148(1) or section 149.
Fisheries managed under the Torres Strait Fisheries Act
1984
(1) This section applies to actions that:
(a) are involved in fishing (as defined in the Torres Strait Fisheries
Act 1984) in an area of Australian jurisdiction (as defined in that Act);
and
(b) were not covered by a plan of management in force under section 15A of
that Act when this Act commenced.
Policies for all actions to be covered by agreements in 5
years
(2) Before the day that is the fifth anniversary of this Act commencing,
the Minister administering the Torres Strait Fisheries Act 1984 must make
agreements under section 146 with the Minister administering this section for
assessment of the relevant impacts of the actions permitted by policies under
that Act.
Agreement not needed if fishery already subject to
agreement
(3) However, subsection (2) does not require another agreement to be made
in relation to actions if an agreement covering them has been made under section
146, before the day mentioned in that subsection, by the Ministers mentioned in
that subsection because of subsection 148(1).
Application
(1) This section applies if the Minister (the Environment
Minister) and the Minister administering the Fisheries Management Act
1991 agree that the impacts that actions:
(a) included in a fishery managed under that Act; or
(b) permitted under a policy or plan for managing fishing (as defined in
the Torres Strait Fisheries Act 1984) in an area of Australian
jurisdiction (as defined in that Act);
have, will have or are likely to have on a matter protected by a provision
of Part 3 are significantly greater than the impacts identified in the most
recent report provided to the Environment Minister under an agreement made under
section 146 relating to the fishery, policy or plan.
Further assessment for management arrangements under the Fisheries
Management Act 1991
(2) The Australian Fisheries Management Authority must make another
agreement with the Minister under section 146 in relation to the
Authority’s policy for managing the fishery, unless there is a plan of
management in force for the fishery under the Fisheries Management Act
1991.
Further assessment for policy or plan for Torres Strait
fishing
(3) The Minister administering the Torres Strait Fisheries Act 1984
must make another agreement under section 146 in relation to the policy or plan
for managing fishing (as defined in the Torres Strait Fisheries Act 1984)
in an area of Australian jurisdiction (as defined in that Act).
(1) This section applies if the Minister makes an agreement under section
146 as required by this Division and endorses under the agreement:
(a) a plan of management under the Fisheries Management Act 1991
for a fishery; or
(b) policies of the Australian Fisheries Management Authority for managing
a fishery for which there is not a plan of management under the Fisheries
Management Act 1991; or
(c) a plan of management under the Torres Strait Fisheries Act 1984
for a fishery; or
(d) policies for managing fishing under the Torres Strait Fisheries Act
1984.
(2) The Minister must make a declaration under section 33 that actions
approved under the endorsed plan or policies do not require approval under Part
9 for the purposes of subsection 23(1), (2) or (3).
Note: The declaration will allow actions that would
otherwise be prohibited by section 23 to be taken without approval. See section
32.
This Division does not limit Division 1.
(1) If:
(a) a person who proposes to take a controlled action or is the designated
proponent of an action is required or requested under this Chapter to do
something; and
(b) the person does not do the thing within a period that the Minister
believes is a reasonable period;
the Minister may give the person a written notice inviting the person to
satisfy the Minister within a specified reasonable period that assessment of the
action should continue or that the Minister should make a decision about
approving the action.
Note: Sections 28A and 29 of the Acts Interpretation Act
1901 explain how documents may be served and when they are taken to be
served.
(2) If, by the end of the specified period, the person fails to satisfy
the Minister that assessment of the action should continue or that the Minister
should make a decision about approving the action, the Minister may declare in
writing that this Chapter no longer applies to the action.
(3) This Chapter (apart from this section) ceases to apply in relation to
the action on the date specified in the declaration. The Minister must not
specify a date earlier than the date of making of the declaration.
(4) The Minister must:
(a) give a copy of the declaration to the person and to the Secretary;
and
(b) publish the declaration in accordance with the regulations.
(1) If this Chapter specifies a time limit in business days in relation to
a controlled action (or an action that the Minister believes may be or is a
controlled action), the limit is to be worked out by reference to what is a
business day in the place where the action is to be taken.
(2) A day is not to be counted as a business day for the purposes of
subsection (1) if it is not a business day in all the places in which the action
is to be taken.
(3) Failure to comply with a time limit set in this Chapter does not
affect the validity of:
(a) a decision under this Chapter; or
(b) an assessment or approval under this Chapter.
Note: The Minister must make a statement to Parliament about
some failures to comply with time limits. See section 518.
(1) A provision of this Chapter that is expressed to apply in relation to
actions taken or to be taken in a State also applies in the same way to actions
taken or to be taken on, under or over the seabed vested in the State by section
4 of the Coastal Waters (State Title) Act 1980.
(2) So far as a provision of this Chapter that is expressed to apply in
relation to actions taken or to be taken in a self-governing Territory relates
to the Northern Territory, the provision also applies in the same way to actions
taken or to be taken on, under or over the seabed vested in the Northern
Territory by section 4 of the Coastal Waters (Northern Territory Title) Act
1980.
(1) A person proposing to take a controlled action, or the designated
proponent of an action, may apply in writing to the Minister for an exemption
from a specified provision of Part 3 or of this Chapter.
(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 Part 3 or of this Chapter in
relation to a specified action.
(4) The Minister may do so only if he or she is satisfied that it is in
the national interest that the provision not apply in relation to the person or
the action.
(5) In determining the national interest, the Minister may consider
Australia’s defence or security or a national emergency. This does not
limit the matters the Minister may consider.
(6) A provision specified in the notice does not apply in relation to the
specified person or action on or after the day specified in the notice. The
Minister must not specify a day earlier than the day the notice is
made.
(7) Within 10 business days after making the notice, the Minister
must:
(a) publish a copy of the notice and his or her reasons for granting the
exemption in accordance with the regulations; and
(b) give a copy of the notice to the person specified in the
notice.
The following is a simplified outline of this Subdivision:
A Commonwealth agency or employee must consider advice from the Minister
before authorising one of the following actions with a significant impact on the
environment:
(a) providing foreign aid;
(b) managing aircraft operations in airspace;
(c) adopting or implementing a major development plan for an
airport;
(d) an action prescribed by the regulations.
The agency or employee must inform the Minister of the proposal to
authorise the action.
The environmental impacts of the action must be assessed in accordance with
a declaration made by the Minister accrediting a Commonwealth assessment
process, or by one of the following methods chosen by the Minister:
(a) a specially accredited process;
(b) an assessment on preliminary documentation under Division 4 of Part
8;
(c) a public environment report under Division 5 of Part 8;
(d) an environmental impact statement under Division 6 of Part
8;
(e) an inquiry under Division 7 of Part 8.
The Minister must give the agency or employee advice on protecting the
environment from the action, within 30 days of receiving the report of the
assessment.
Requirement
(1) Before a Commonwealth agency or employee of the Commonwealth gives an
authorisation (however described) of an action described in subsection (2), the
agency or employee must obtain and consider advice from the Minister in
accordance with this Subdivision.
Relevant actions
(2) Subsection (1) applies in relation to:
(a) the provision of funding by the Commonwealth under Australia’s
foreign aid program for a project that has, will have or is likely to have a
significant impact on the environment anywhere in the world; and
(b) the adoption or implementation of a plan for aviation airspace
management involving aircraft operations that have, will have or are likely to
have a significant impact on the environment; and
(c) the adoption or implementation of a major development plan (as defined
in the Airports Act 1996); and
(d) any other action prescribed by the regulations for the purposes of
this paragraph.
This section does not apply to actions like those already
assessed
(3) Subsection (1) does not apply in relation to a particular
authorisation (the later authorisation) if the agency or employee
has complied with, or is complying with, this Subdivision in relation to another
authorisation or proposed authorisation and is satisfied of one or both of the
matters in subsection (5).
Which actions are like actions?
(4) For the purposes of subsection (3), the agency or employee must be
satisfied that:
(a) the Minister’s advice relating to the other authorisation deals
or will deal with all the impacts that the action to which the later
authorisation relates has, will have or is likely to have on the environment;
or
(b) the impacts that the action to which the later authorisation relates
has, will have or is likely to have on the environment:
(i) are an extension of the corresponding impacts of the action to which
the other authorisation relates; and
(ii) are not significantly different in nature from those corresponding
impacts; and
(iii) do not significantly add to those corresponding impacts.
State law excluded in relation to aviation
(5) A law of a State or Territory does not apply in relation to the
assessment of the certain or likely environmental impacts of an action described
in paragraph (2)(b) if subsection (1) applies in relation to authorisation of
the action, or would apply apart from subsection (3).
Requirement for referral
(1) If a Commonwealth agency or employee of the Commonwealth proposing to
give an authorisation (however described) of an action thinks the agency or
employee is required by section 160 to obtain and consider the Minister’s
advice before giving the authorisation, the agency or employee must:
(a) refer the proposal to the Minister; and
(b) nominate a person to act as designated proponent of the
action.
Minister may request referral
(2) The Minister may request a Commonwealth agency or employee of the
Commonwealth to:
(a) refer to the Minister a proposal to give an authorisation (however
described) of an action; and
(b) nominate a person to act as designated proponent of the
action;
if the Minister thinks the agency or employee is required by section 160 to
obtain and consider the Minister’s advice before giving the
authorisation.
Complying with Minister’s request
(3) The Commonwealth agency or employee must comply with the
Minister’s request.
Content of referral
(4) A referral must include the information prescribed by the
regulations.
Part 8 (except sections 82 and 83) and the other provisions of this Act
(so far as they relate to that Part) apply in relation to the action proposed to
be authorised as if:
(a) the referral of the proposal to give the authorisation were a referral
of a proposal to take the action; and
(b) the Minister had decided under Division 2 of Part 7 that the action
was a controlled action; and
(c) the person nominated to act as the designated proponent had been
designated as the proponent of the action by the Minister under section 75;
and
(d) a reference in that Part or those provisions to the relevant impacts
of the action were a reference to the impact that the action has, will have or
is likely to have on the environment; and
(e) a reference in that Part or those provisions to making an informed
decision on approving under Part 9 (for the purposes of each controlling
provision) the taking of the action were a reference to giving informed advice
about the proposal to give an authorisation of the action.
(1) The Minister must give advice on the following matters to the
Commonwealth agency or employee of the Commonwealth who referred the proposal to
give an authorisation of the action:
(a) whether the agency or employee should give the
authorisation;
(b) what conditions (if any) should be attached to the authorisation (if
possible) to protect the environment;
(c) any other matter relating to protection of the environment from the
action.
(2) The Minister must give the advice within 30 days of
receiving:
(a) a report mentioned in subsection 84(3) or section 95, 100 or 105 (as
applied by section 162); or
(b) a report of an inquiry under Division 7 of Part 8 (as applied by
section 162) relating to the action.
As soon as practicable after considering the Minister’s advice, the
Commonwealth agency or employee of the Commonwealth must give the Minister a
report stating:
(a) what action has been taken in relation to the Minister’s advice;
and
(b) if the agency or employee did not give effect to some or all of the
Minister’s advice—why the agency or employee did not do
so.
Request for referral
(1) The Minister may request a person applying for a permit under Division
3 of Part 13 (about whales and other cetaceans) to refer to the Minister the
proposal to take the action that is to be covered by the permit.
Person must comply with request
(2) The person must refer the proposal in accordance with Division 1 of
Part 7 within 15 business days of the request.
Assessment of proposed action for which permit is sought
(3) The following provisions (the applied provisions) apply
in the manner specified in subsection (4) in relation to the proposal to take
the action:
(a) section 74;
(b) Division 2 of Part 7;
(c) Part 8;
(d) the other provisions of this Act, so far as they relate to the
provisions mentioned in paragraphs (a), (b) and (c).
How the applied provisions apply to the proposed action
(4) The applied provisions apply in relation to the proposal to take the
action as if:
(a) a reference in the applied provisions to a controlled action were a
reference to an action prohibited by Division 3 of Part 13 without a permit
under that Division; and
(b) a reference in the applied provisions to a controlling provision for
the action were a reference to the provision of Division 3 of Part 13 that
prohibits the taking of the action without a permit; and
(c) a reference in the applied provisions to an approval under Part 9 of
the taking of an action were a reference to the grant of a permit under Division
3 of Part 13 to allow the action to be taken; and
(d) a reference in the applied provisions to the relevant impacts of an
action were a reference to the impacts that the action:
(i) has or will have; or
(ii) is likely to have;
on a cetacean.
Assessment report must be considered in decision on permit
(5) The Minister must consider the assessment report relating to the
action when deciding whether to grant the permit for the action.
(1) This Subdivision applies if the Minister and a Minister of a State or
self-governing Territory agree that it should apply in relation to an action
that:
(a) is to be taken in the State or Territory by a constitutional
corporation; or
(b) if the agreement is with a Minister of a Territory—is to be
taken in the Territory; or
(c) is to be taken in the State or Territory by a person for the purposes
of trade or commerce:
(i) between Australia and another country; or
(ii) between 2 States; or
(iii) between a State and a Territory; or
(iv) between 2 Territories; or
(d) is to be taken in the State or Territory and is an action whose
assessment under this Subdivision is an appropriate means of giving effect to
Australia’s obligations under an agreement with one or more other
countries.
(2) This section applies to the adoption or implementation of a policy,
plan or program in the same way as it applies to any other action.
(3) Despite subsection (1), this Subdivision does not apply in relation to
an action to be taken in 2 or more States or self-governing Territories unless
there is an agreement between the Minister and a Minister of each of those
States and Territories that this Subdivision should apply in relation to the
action.
Power to make agreement
(1) The Minister may make a written agreement with a Minister of a State
or self-governing Territory to apply this Subdivision in relation to an action
to be taken in the State or Territory.
Prerequisites for making agreement
(2) The Minister may agree only if he or she is satisfied that the action
is not a controlled action.
Minister must not make an agreement that gives preference
(3) The Environment Minister must not enter into an agreement that has the
effect of giving preference (within the meaning of section 99 of the
Constitution) to one State or part of a State over another State or part of a
State, in relation to the taking of the action:
(a) by a constitutional corporation; or
(b) by a person for the purposes of trade or commerce between Australia
and another country or between 2 States.
Generally
(1) An agreement to apply this Subdivision in relation to an action
must:
(a) either specify that one of Divisions 4, 5, 6 and 7 of Part 8 is to
apply in relation to the action or specify that Division 1 of Part 10 is to
apply in relation to the action; and
(b) if it specifies that one of Divisions 4, 5 and 6 of Part 8 is to
apply—specify the person who is taken to be the designated proponent of
the action for the purposes of that Division.
Agreement applying Division 4 of Part 8
(2) An agreement that specifies that Division 4 of Part 8 (about
assessment on preliminary documentation) is to apply in relation to an action
may deal with how the Minister will exercise his or her power:
(a) under section 93 to give a direction to publish information and
specify the period for comment; or
(b) under section 94 to refuse to accept a document.
Agreement applying Division 5 of Part 8
(3) An agreement that specifies that Division 5 of Part 8 (about public
environment reports) is to apply in relation to an action may deal with how the
Minister will exercise his or her power:
(a) under section 97 to prepare guidelines for the content of a draft
report; or
(b) under section 98 to approve publication of a draft report or specify a
period for comment; or
(c) under section 99 to refuse a finalised report.
Agreement applying Division 6 of Part 8
(4) An agreement that specifies that Division 6 of Part 8 (about
environmental impact statements) is to apply in relation to an action may deal
with how the Minister will exercise his or her power:
(a) under section 102 to prepare guidelines for the content of a draft
statement; or
(b) under section 103 to approve publication of a draft statement or
specify a period for comment; or
(c) under section 104 to refuse a finalised statement.
Agreement applying Division 7 of Part 8
(5) An agreement that specifies that Division 7 of Part 8 (about
inquiries) is to apply in relation to an action may deal with how the Minister
will exercise his or her power under section 107:
(a) to appoint one or more persons as commissioners, and to appoint a
person to preside; or
(b) to specify the matters relating to the action that are to be the
subject of the inquiry and report; or
(c) to specify the time within which the commission must report to the
Minister; or
(d) to specify the manner in which the commission is to carry out the
inquiry.
Agreement applying Part 10
(6) An agreement that specifies that Division 1 of Part 10 is to apply
may:
(a) be in the same document as an agreement mentioned in that Division;
or
(b) specify the manner in which an agreement the Minister makes under that
Division is to provide for matters that that Division requires that agreement to
provide for.
Provisions that apply
(1) If the agreement states that a particular Division of Part 8 is to
apply in relation to the assessment of an action, the following provisions of
this Act (the applied provisions) apply in relation to the action
as set out in subsection (2):
(a) that Division;
(b) the other provisions of this Act (except Part 9), so far as they
relate to that Division.
Modification of applied provisions
(2) The applied provisions apply in relation to the action as
if:
(a) the Minister had decided under Division 2 of Part 7 that the action
was a controlled action; and
(b) the Minister had decided that the relevant impacts of the action must
be assessed under the Division specified in the agreement applying the Division;
and
(c) the person specified in the agreement as the person who is taken to be
the designated proponent of the action for the purposes of that Division had
been designated as the proponent of the action by the Minister under section 75;
and
(d) a reference in the applied provisions to the relevant impacts of the
action were a reference to the impact that the action has, will have or is
likely to have on the environment; and
(e) a reference in the applied provisions to making an informed decision
on approving under Part 9 (for the purposes of each controlling provision) the
taking of the action were a reference to making an informed report and
recommendations relating to the action.
Modification of section 93
(3) Also, if the agreement states that Division 4 of Part 8 is to apply in
relation to the assessment of an action, that Division applies in relation to
the action as if subparagraphs 93(1)(a)(i), (ii) and (iii) merely referred to
specified information relating to the action.
Minister must give copy of report to State or Territory
Minister
(4) The Minister must give a copy of the report he or she receives from
the Secretary or commission of inquiry under the applied provisions in relation
to the action to each Minister of a State or Territory who is party to the
agreement.
If an agreement to apply this Subdivision states that Division 1 of Part
10 is to apply:
(a) that Division applies as if:
(i) the reference in subsection 146(1) to relevant impacts of actions were
a reference to the impacts the actions have, will have or are likely to have on
the environment; and
(ii) paragraph 146(2)(f) were omitted; and
(b) the Minister must give a copy of the report provided to the Minister
under the agreement made under section 146, and of any recommendations made by
the Minister under the agreement, to each Minister of a State or Territory who
is party to the agreement to apply this Subdivision.
(1) The Minister may, on behalf of the Commonwealth, co-operate with, and
give financial or other assistance to, any person for the purpose of identifying
and monitoring components of biodiversity.
(2) Without limiting subsection (1), the co-operation and assistance may
include co-operation and assistance in relation to all or any of the
following:
(a) identifying and monitoring components of biodiversity that are
important for its conservation and ecologically sustainable use;
(b) identifying components of biodiversity that are inadequately
understood;
(c) collecting and analysing information about the conservation status of
components of biodiversity;
(d) collecting and analysing information about processes or activities
that are likely to have a significant impact on the conservation and
ecologically sustainable use of biodiversity;
(e) assessing strategies and techniques for the conservation and
ecologically sustainable use of biodiversity;
(f) systematically determining biodiversity conservation needs and
priorities.
(3) In this Act:
components of biodiversity includes species, habitats,
ecological communities, genes, ecosystems and ecological processes.
(4) For the purposes of this section, the components of biological
diversity that are important for its conservation and ecologically sustainable
use are to be identified having regard to the matters set out in Annex I to the
Biodiversity Convention.
(5) The giving of assistance may be made subject to such conditions as the
Minister thinks fit.
(1) The Minister must prepare inventories that identify, and state the
abundance of, the listed threatened species, listed threatened ecological
communities, listed migratory species and listed marine species on Commonwealth
land.
(2) Commonwealth land must be covered by an inventory:
(a) within 5 years after the commencement of this Act; or
(b) within 5 years after the land became Commonwealth land;
whichever is later.
(3) A Commonwealth agency that has an interest in Commonwealth land must
provide all reasonable assistance in connection with the preparation under this
section of an inventory that is to cover the land.
(1) The Minister must prepare surveys that identify, and state the extent
of the range of:
(a) cetaceans present in Commonwealth marine areas; and
(b) the listed threatened species, listed threatened ecological
communities, listed migratory species and listed marine species in Commonwealth
marine areas.
(2) A Commonwealth marine area must be covered by a survey:
(a) within 10 years after the commencement of this Act; or
(b) within 10 years after the area became a Commonwealth marine
area;
whichever is later.
(3) A Commonwealth agency that has an interest in a Commonwealth marine
area is to provide all reasonable assistance in connection with the preparation
under this section of a survey that is to cover the area.
The Minister must take reasonable steps to ensure that the inventories
and surveys prepared under this Division are maintained in an up-to-date
form.
Obligations imposed by this Act are not affected, in their application in
relation to Commonwealth land or Commonwealth marine areas, by any lack of
inventories or surveys for such land or areas.
(1) The Minister may prepare a bioregional plan for a bioregion that is
within a Commonwealth area.
(2) The Minister may, on behalf of the Commonwealth, co-operate with a
State or a self-governing Territory, an agency of a State or of a self-governing
Territory, or any other person in the preparation of a bioregional plan for a
bioregion that is not wholly within a Commonwealth area.
(3) The co-operation may include giving financial or other
assistance.
(4) A bioregional plan may include provisions about all or any of the
following:
(a) the components of biodiversity, their distribution and conservation
status;
(b) important economic and social values;
(c) objectives relating to biodiversity and other values;
(d) priorities, strategies and actions to achieve the
objectives;
(e) mechanisms for community involvement in implementing the
plan;
(f) measures for monitoring and reviewing the plan.
(5) Subject to this Act, the Minister may have regard to a bioregional
plan in making any decision under this Act to which the plan is
relevant.
Obligations imposed by this Act are not affected, in their application in
relation to Commonwealth areas, by a lack of bioregional plans for those
areas.
(1) The Minister must, by instrument published in the Gazette,
establish a list of threatened species divided into the following
categories:
(a) extinct;
(b) extinct in the wild;
(c) critically endangered;
(d) endangered;
(e) vulnerable;
(f) conservation dependent.
(2) The list, as first established, must contain only the species
contained in Schedule 1 to the Endangered Species Protection Act 1992, as
in force immediately before the commencement of this Act.
(3) The Minister must include:
(a) in the extinct category of the list, as first established, only the
species mentioned in subsection (2) that were listed as presumed extinct; and
(b) in the endangered category of the list, as first established, only the
native species mentioned in subsection (2) that were listed as endangered;
and
(c) in the vulnerable category of the list, as first established, only the
species mentioned in subsection (2) that were listed as vulnerable.
(4) If the Minister is satisfied that a species included in the list, as
first established, in:
(a) the extinct category; or
(b) the endangered category; or
(c) the vulnerable category;
is not eligible to be included in that or any other category, or is
eligible to be, or under subsection 186(3), (4) or (5) can be, included in
another category, the Minister must, within 6 months after the commencement of
this Act, amend the list accordingly in accordance with this
Subdivision.
(1) A native species is eligible to be included in the extinct
category at a particular time if, at that time, there is no reasonable
doubt that the last member of the species has died.
(2) A native species is eligible to be included in the extinct in
the wild category at a particular time if, at that time:
(a) it is known only to survive in cultivation, in captivity or as a
naturalised population well outside its past range; or
(b) it has not been recorded in its known and/or expected habitat, at
appropriate seasons, anywhere in its past range, despite exhaustive surveys over
a time frame appropriate to its life cycle and form.
(3) A native species is eligible to be included in the critically
endangered category at a particular time if, at that time, it is facing
an extremely high risk of extinction in the wild in the immediate future, as
determined in accordance with the prescribed criteria.
(4) A native species is eligible to be included in the endangered
category at a particular time if, at that time:
(a) it is not critically endangered; and
(b) it is facing a very high risk of extinction in the wild in the near
future, as determined in accordance with the prescribed criteria.
(5) A native species is eligible to be included in the vulnerable
category at a particular time if, at that time:
(a) it is not critically endangered or endangered; and
(b) it is facing a high risk of extinction in the wild in the medium-term
future, as determined in accordance with the prescribed criteria.
(6) A native species is eligible to be included in the conservation
dependent category at a particular time if, at that time, the species is
the focus of a specific conservation program, the cessation of which would
result in the species becoming vulnerable, endangered or critically endangered
within a period of 5 years.
(1) A native species of marine fish is eligible to be included in a
category mentioned in a paragraph of subsection 178(1) at a particular time if,
at that time, the species meets the prescribed criteria for that
category.
(2) A subsection of section 179 referring to a category (the
relevant category) does not apply to a native species of marine
fish if regulations are in force for the purposes of subsection (1) of this
section prescribing criteria for the relevant category.
(1) The Minister must, by instrument published in the Gazette,
establish a list of threatened ecological communities divided into the following
categories:
(a) critically endangered;
(b) endangered;
(c) vulnerable.
(2) Subject to subsection (3), the Minister must not include an ecological
community in a particular category of the list, as first established, unless
satisfied that the ecological community is eligible to be included in that
category when the list is first published.
(3) If one or more ecological communities are contained in Schedule 2 to
the Endangered Species Protection Act 1992, as in force immediately
before the commencement of this Act, the list, as first established, must
contain only those communities, and they must be included in the endangered
category.
(4) If the Minister is satisfied that an ecological community included in
the endangered category of the list, as first established under subsection (3),
is not eligible to be included in that or any other category, or is eligible to
be included in another category, the Minister must, within 6 months after the
commencement of this Act, amend the list accordingly in accordance with this
Subdivision.
(5) An instrument (other than an instrument establishing the list
mentioned in subsection (3)) is a disallowable instrument for the purposes of
section 46A of the Acts Interpretation Act 1901.
(1) An ecological community is eligible to be included in the
critically endangered category at a particular time if, at that
time, it is facing an extremely high risk of extinction in the wild in the
immediate future, as determined in accordance with the prescribed
criteria.
(2) An ecological community is eligible to be included in the
endangered category at a particular time if, at that
time:
(a) it is not critically endangered; and
(b) it is facing a very high risk of extinction in the wild in the near
future, as determined in accordance with the prescribed criteria.
(3) An ecological community is eligible to be included in the
vulnerable category at a particular time if, at that
time:
(a) it is not critically endangered nor endangered; and
(b) it is facing a high risk of extinction in the wild in the medium-term
future, as determined in accordance with the prescribed criteria.
(1) The Minister must, by instrument published in the Gazette,
establish a list of threatening processes that are key threatening
processes.
(2) The list, as first established, must contain only the key threatening
processes contained in Schedule 3 to the Endangered Species Protection Act
1992, as in force immediately before the commencement of this Act.
(1) Subject to this Subdivision, the Minister may, by instrument published
in the Gazette, amend a list referred to in section 178, 181 or 183
by:
(a) including items in the list; or
(b) deleting items from the list; or
(c) in the case of the list referred to in section 178 or
181—transferring items from one category in the list to another category
in the list; or
(d) correcting an inaccuracy or updating the name of a listed threatened
species or listed threatened ecological community.
(2) An instrument (other than an instrument mentioned in paragraph (1)(d))
is a disallowable instrument for the purposes of section 46A of the Acts
Interpretation Act 1901.
(3) Despite section 48 of the Acts Interpretation Act 1901 as it
applies in relation to an instrument because of section 46A of that Act,
amendments of the kind mentioned in paragraphs (1)(b) and (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.
(4) 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 an item that has been included in a list by the
instrument—why the item was so included; or
(b) in the case of an item that has been deleted from a list by the
instrument—why the item was so deleted; or
(c) in the case of an item that has been transferred by the instrument
from one category in the list referred to in section 178 or 181 to another
category in that list—why the item has been so transferred.
(5) The Minister must cause a notice summarising the information contained
in an instrument to be published in accordance with the regulations (if
any).
The Minister must take all reasonably practical steps to amend as
necessary:
(a) the list referred to in section 178 so that it contains in each
category all native species that are eligible to be, or under subsection 186(3),
(4) or (5) can be, included in that category; and
(b) the list referred to in section 181 so that it contains in each
category all ecological communities that are eligible to be included in that
category.
(1) Subject to subsections (3), (4) and (5), the Minister must
not:
(a) include (whether as a result of a transfer or otherwise) a native
species in a particular category; or
(b) delete (whether as a result of a transfer or otherwise) a native
species from a particular category;
unless satisfied that the native species is eligible, or is no longer
eligible, as the case requires, to be included in that category.
(2) In deciding whether to include a native species in, or delete a native
species from, a particular category (whether as a result of a transfer or
otherwise), the Minister must not consider any matter that does not relate to
the survival of the native species concerned.
(3) The Minister may include a native species in the critically endangered
category if satisfied that:
(a) it so closely resembles in appearance, at any stage of its biological
development, a species that is eligible to be included in that category (see
subsection 179(3)) that it is difficult to differentiate between the 2 species;
and
(b) this difficulty poses an additional threat to the last-mentioned
species; and
(c) it would substantially promote the objects of this Act if the
first-mentioned species were regarded as critically endangered.
(4) The Minister may include a native species in the endangered category
if satisfied that:
(a) it so closely resembles in appearance, at any stage of its biological
development, a species that is eligible to be included in that category (see
subsection 179(4)) that it is difficult to differentiate between the 2 species;
and
(b) this difficulty poses an additional threat to the last-mentioned
species; and
(c) it would substantially promote the objects of this Act if the
first-mentioned species were regarded as endangered.
(5) The Minister may include a native species in the vulnerable category
if satisfied that:
(a) it so closely resembles in appearance, at any stage of its biological
development, a species that is eligible to be included in that category (see
subsection 179(5)) that it is difficult to differentiate between the 2 species;
and
(b) this difficulty poses an additional threat to the last-mentioned
species; and
(c) it would substantially promote the objects of this Act if the
first-mentioned species were regarded as vulnerable.
(1) The Minister must not:
(a) include (whether as a result of a transfer or otherwise) an ecological
community in a particular category of the list; or
(b) delete (whether as a result of a transfer or otherwise) an ecological
community from a particular category;
unless satisfied that the ecological community is eligible, or is no longer
eligible, as the case requires, to be included in that category.
(2) In deciding whether to include an ecological community in, or delete
an ecological community from, a particular category (whether as a result of a
transfer or otherwise), the Minister must not consider any matter that does not
relate to the survival of the ecological community concerned.
(1) The Minister must not add a threatening process to the list unless
satisfied that it is eligible to be treated as a key threatening
process.
(2) The Minister must not delete a threatening process from the list
unless satisfied that it is no longer eligible to be treated as a key
threatening process.
(3) A process is a threatening process if it threatens, or
may threaten, the survival, abundance or evolutionary development of a native
species or ecological community.
(4) A threatening process is eligible to be treated as a key threatening
process if:
(a) it could cause a native species or an ecological community to become
eligible for listing in any category, other than conservation dependent;
or
(b) it could cause a listed threatened species or a listed threatened
ecological community to become eligible to be listed in another category
representing a higher degree of endangerment; or
(c) it adversely affects 2 or more listed threatened species (other than
species included in the conservation dependent category) or 2 or more listed
threatened ecological communities;
and the preparation and implementation of a nationally co-ordinated threat
abatement plan is a feasible, effective and efficient way to abate the
process.
(5) Before deciding whether a threatening process is eligible to be
treated as a key threatening process, the Minister must take reasonable steps to
consult with 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, on the feasibility, effectiveness or
efficiency of preparing and implementing a nationally co-ordinated threat
abatement plan to abate the process.
(6) Nothing in subsection (5) is taken to prevent the Minister from
consulting with any other person or body.
(1) Subject to section 192, in deciding whether to amend:
(a) the list referred to in section 178 or 181; or
(b) the list referred to in section 183;
the Minister must, in accordance with the regulations (if any), obtain and
consider advice from the Scientific Committee on the proposed
amendment.
(2) In preparing advice under subsection (1), the Scientific 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 a list referred to in
paragraph (1)(a), the Scientific Committee must not consider any matter that
does not relate to the survival of the native species or ecological community
concerned.
(4) If a native species or ecological community has been nominated under
section 191 to be listed, the Scientific Committee must give its advice to the
Minister within 12 months, or such longer period as the Minister specifies,
after the Scientific 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 Scientific Committee’s advice on
the amendment.
(6) A member of the Scientific 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 Scientific 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.
(1) If the Scientific Committee is of the opinion that a native species or
ecological community is not eligible to be included in any category of the list
mentioned in section 178 or 181, the Committee may give advice to the Minister
concerning any action that is necessary to prevent the species or community
becoming threatened.
(2) The Minister is to have regard to any advice given under subsection
(1) in performing any function, or exercising any power, under this Act relevant
to the species or community.
(1) A person may, in accordance with the regulations (if any), nominate to
the Minister:
(a) a native species to be included in a particular category of the list
referred to in section 178; or
(b) an ecological community to be included a particular category of the
list referred to in section 181; or
(c) a threatening process to be included in the list referred to in
section 183.
(2) Subject to subsection (6), the Minister must forward all nominations
to the Scientific Committee.
(3) If the Minister decides that a nominated native species or ecological
community is not eligible to be included in the nominated category, the Minister
must, in accordance with the regulations (if any):
(a) advise the person who made the nomination of the Minister’s
decision; and
(b) give to that person a statement of reasons why the native species or
ecological community is not eligible to be included in the nominated
category.
(4) If the Minister decides that a threatening process is not eligible to
be listed, the Minister must, in accordance with the regulations (if
any):
(a) advise the person who made the nomination of the Minister’s
decision; and
(b) give to that person a statement of reasons why the threatening process
is not eligible to be listed.
(5) 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 such period as the Minister specifies.
(6) The Minister may reject a nomination if satisfied that:
(a) the subject of the nomination has previously been nominated;
or
(b) the nomination is vexatious, frivolous or not made in good faith;
or
(c) the nomination has not been made in accordance with the regulations
(if any); or
(d) any additional information requested under subsection (5) has not been
provided within the specified period, or the information that has been provided
is incomplete.
(1) If the Minister is satisfied that a native species that is listed in
the extinct category has been definitely located in nature since it was last
listed as extinct, the Minister may, under section 184, transfer the species
from the extinct category to another category without considering advice from
the Scientific Committee.
(2) Subsection (1) does not prevent the Minister from making such an
amendment after having considered advice from the Scientific
Committee.
(1) If the Minister is satisfied that a native species poses a serious
threat to human health, the Minister may, by instrument published in the
Gazette, determine that the species is not appropriate for inclusion in
any of the categories of the list referred to in section 178.
(2) While the determination is in force, the species is not to be added to
that list.
(3) A determination is a disallowable instrument for the purposes of
section 46A of the Acts Interpretation Act 1901.
(4) The Minister must cause a notice summarising the information contained
in an instrument to be published in accordance with the regulations (if
any).
The Minister must, in accordance with the regulations (if any), make
copies of up-to-date lists available for purchase, for a reasonable price, at a
prescribed place in each State and self-governing Territory.
This Subdivision does not apply to a member of a listed threatened
species that is a cetacean.
(1) Subject to section 197, a person is guilty of an offence if:
(a) the person kills, injures, takes, trades, keeps or moves a member of a
native species or an ecological community; and
(b) the member is a member of a listed threatened species (other than a
species included in the conservation dependent category) or a listed threatened
ecological community; and
(c) the member is in or on a Commonwealth area.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(2) Subject to section 197, a person is guilty of an offence if:
(a) the person trades, keeps or moves a member of a native species or an
ecological community; and
(b) the member is a member of a listed threatened species (other than a
species included in the conservation dependent category) or a listed threatened
ecological community; and
(c) the member has been taken in or on a Commonwealth area.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(3) Strict liability applies to paragraphs (1)(c) and (2)(c).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(4) An offence against subsection (1) or (2) is punishable on conviction
by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty
units, or both.
Section 196 does not apply to:
(a) an action authorised by a permit that is in force; or
(b) an action provided for by, and done in accordance with, a recovery
plan made or adopted under section 267 and that is in force; or
(c) an action that is covered by an approval in operation under Part 9 for
the purposes of a subsection of section 18; or
(d) an action that:
(i) is one of a class of actions declared by the Minister under section 33
not to require an approval under Part 9 for the purposes of a subsection of 18;
and
(ii) is taken when the declaration is in operation; or
(e) an action that is taken in a humane manner and is reasonably necessary
to relieve or prevent suffering by a member of a listed threatened species or
listed threatened ecological community; or
(f) an action that is reasonably necessary to prevent a risk to human
health; or
(g) 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
(h) an action that is reasonably necessary to deal with an emergency
involving a serious threat to human life or property; or
(i) an action that occurs as a result of an unavoidable accident, other
than an accident caused by negligent or reckless behaviour; or
(j) an action that is taken in accordance with a permit issued under
regulations made under the Great Barrier Reef Marine Park Act 1975 and
that is in force.
Note: A defendant bears an evidential burden in relation to
the matters in this section. See subsection 13.3(3) of the Criminal
Code.
For the avoidance of doubt, sections 196 and 197 do not affect the
operation of section 18.
(1) Subject to subsection (2), this section applies to a person
if:
(a) the person kills, injures, takes, trades, keeps or moves a member of a
listed threatened species (other than a species included in the conservation
dependent category) or a listed threatened ecological community that is in or on
a Commonwealth area; and
(b) the person’s act does not constitute an offence under section
196.
(2) This section does not apply to a person who is the holder of a permit
authorising the person’s act.
Note: A person who is the holder of a permit may be required
to give certain notices in accordance with the conditions of the
permit.
(3) A person must, within 7 days after becoming aware of his or her act,
notify the Secretary in writing or by telephone, or by use of any other
electronic equipment:
(a) that the act occurred; and
(b) of such other particulars about the act (for example, the time and
place of the taking) as are prescribed (if any).
(4) Subsection (3) does not apply to a person if the person, or any other
person or body, is required by or under a law of the Commonwealth to notify the
Secretary of the first-mentioned person’s act.
(5) A person is guilty of an offence punishable on conviction by a fine
not exceeding 100 penalty units if the person:
(a) fails to do an act; and
(b) the failing to do the act results in a contravention of subsection
(3).
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(1) A person may, in accordance with the regulations, apply to the
Minister for a permit to be issued under section 201.
(2) The application must be accompanied by the fee prescribed by the
regulations (if any).
(1) Subject to subsection (3), the Minister may, on application by a
person under section 200, issue a permit to the person.
(2) A permit authorises its holder to take an action specified in the
permit without breaching section 196.
(3) The Minister must not issue the permit unless satisfied
that:
(a) the specified action will contribute significantly to the conservation
of the listed threatened species or listed threatened ecological community
concerned; or
(b) the impact of the specified action on a member of the listed
threatened species or listed threatened ecological community concerned is
incidental to, and not the purpose of, the taking of the action and:
(i) the taking of the action will not adversely affect the survival or
recovery in nature of that species or ecological community; and
(ii) the taking of the action is not inconsistent with a recovery plan
that is in force for that species or ecological community; and
(iii) the holder of the permit will take all reasonable steps to minimise
the impact of the action on that species or ecological community; or
(c) the specified action is of particular significance to indigenous
tradition and will not adversely affect the survival or recovery in nature of
the listed threatened species or listed threatened ecological community
concerned; or
(d) the specified action is necessary in order to control pathogens and is
conducted in a way that will, so far as is practicable, keep to a minimum any
impact on the listed threatened species or listed threatened ecological
community concerned.
(4) In this Act:
indigenous tradition means the body of traditions,
observances, customs and beliefs of indigenous persons generally or of a
particular group of indigenous persons.
(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 further conditions of a permit.
(3) Without limiting subsections (1) and (2), conditions of a permit may
include conditions stating the period within which the acts specified in the
permit may be done.
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.
(1) Subject to subsection (2), the holder of a permit may give to a person
written authority to do for, or on behalf of, the holder any act 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
doing of a particular act by a person if the doing of that act 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 doing of any act by
the holder of the permit.
(5) Except as provided in this section, a permit does not authorise the
doing of any act 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.
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.
The Minister may, in accordance with the regulations:
(a) suspend a permit for a specified period; or
(b) cancel a permit.
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.
The regulations may:
(a) provide for the transportation, treatment and disposal of members of
listed threatened species or listed threatened ecological communities killed,
injured or taken in contravention of this Division; and
(b) provide for the methods or equipment by which members of listed
threatened species or listed threatened ecological communities may be killed or
taken otherwise than in contravention of this Division; and
(c) provide for the gathering and dissemination of information relating to
listed threatened species or listed threatened ecological communities;
and
(d) provide for the protection and conservation of listed threatened
species or listed threatened ecological communities; and
(e) provide for any matter incidental to or connected with any of the
above paragraphs.
(1) The Minister must, by instrument published in the
Gazette:
(a) establish a list of migratory species for the purposes of this Act;
and
(b) amend the list, as necessary, so that it includes all species required
to be included in the list under subsection (3).
(2) The Minister must establish the list within 30 days after the
commencement of this Act.
(3) The list must include:
(a) all species from time to time included in appendices to the Bonn
Convention and for which Australia is a Range State under the Convention;
and
(b) all species from time to time included in lists established under
JAMBA and CAMBA; and
(c) all native species from time to time identified in a list established
under, or an instrument made under, an international agreement approved by the
Minister under subsection (4).
The list must not include any other species.
(4) The Minister may, by instrument published in the Gazette,
approve an international agreement for the purposes of subsection (3) if
satisfied it is an agreement relevant to the conservation of migratory
species.
(5) An instrument mentioned in subsection (4) is a disallowable instrument
for the purposes of section 46A of the Acts Interpretation Act
1901.
(6) The Minister may, by instrument published in the Gazette,
correct an inaccuracy or update the name of a migratory species.
This Subdivision does not apply to a member of a listed migratory species
that is a member of a listed threatened species or a cetacean.
(1) Subject to section 212, a person is guilty of an offence if:
(a) the person kills, injures, takes, trades, keeps or moves a member of a
migratory species; and
(b) the member is a member of a listed migratory species; and
(c) the member is in or on a Commonwealth area.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(2) Subject to section 212, a person is guilty of an offence if:
(a) the person trades, keeps or moves a member of a migratory species;
and
(b) the member is a member of a listed migratory species; and
(c) the member has been taken in or on a Commonwealth area.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(3) Strict liability applies to paragraphs (1)(c) and (2)(c).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(4) An offence against subsection (1) or (2) is punishable on conviction
by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty
units, or both.
Section 211 does not apply to:
(a) an action authorised by a permit that is in force; or
(b) an action provided for by, and taken in accordance with, a wildlife
conservation plan made or adopted under Division 5 and that is in force;
or
(c) an action that is covered by an approval in operation under Part 9 for
the purposes of subsection 20(1); or
(d) an action that:
(i) is one of a class of actions declared by the Minister under section 33
not to require an approval under Part 9 for the purposes of subsection 20(1);
and
(ii) is taken when the declaration is in operation; or
(e) an action that is taken in a humane manner and is reasonably necessary
to relieve or prevent suffering by a member of a listed migratory species;
or
(f) an action that is reasonably necessary to prevent a risk to human
health; or
(g) 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
(h) an action that is reasonably necessary to deal with an emergency
involving a serious threat to human life or property; or
(i) an action that occurs as a result of an unavoidable accident, other
than an accident caused by negligent or reckless behaviour; or
(j) an action that is taken in accordance with a permit issued under
regulations made under the Great Barrier Reef Marine Park Act 1975 and
that is in force.
Note: A defendant bears an evidential burden in relation to
the matters in this section. See subsection 13.3(3) of the Criminal
Code.
For the avoidance of doubt, sections 211 and 212 do not affect the
operation of section 20.
(1) Subject to subsection (2), this section applies to a person
if:
(a) the person kills, injures, takes, trades, keeps or moves a member of a
listed migratory species that is in or on a Commonwealth area; and
(b) the person’s act does not constitute an offence under section
211.
(2) This section does not apply to a person who is the holder of a permit
authorising the person’s act.
Note: A person who is the holder of a permit may be required
to give certain notices in accordance with the conditions of the
permit.
(3) A person must, within 7 days after becoming aware of his or her act,
notify the Secretary in writing or by telephone or by use of any other
electronic equipment:
(a) that the act occurred; and
(b) of such other particulars about the act (for example, the time and
place of the taking) as are prescribed (if any).
(4) Subsection (3) does not apply to a person if the person, or any other
person or body, is required or authorised by or under a law of the Commonwealth
to notify the Secretary of the first-mentioned person’s act.
(5) A person is guilty of an offence punishable on conviction by a fine
not exceeding 100 penalty units if the person:
(a) fails to do an act; and
(b) the failing to do the act results in a contravention of subsection
(3).
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(1) A person may, in accordance with the regulations, apply to the
Minister for a permit to be issued under section 216.
(2) The application must be accompanied by the fee prescribed by the
regulations (if any).
(1) Subject to subsection (3), the Minister may, on application by a
person under section 215, issue a permit to the person.
(2) A permit authorises its holder to take an action specified in the
permit without breaching section 211.
(3) The Minister must not issue the permit unless satisfied
that:
(a) the specified action will contribute significantly to the conservation
of the listed migratory species concerned or other listed migratory species;
or
(b) the impact of the specified action on a member of the listed migratory
species concerned is incidental to, and not the purpose of, the taking of the
action and:
(i) the taking of the action will not adversely affect the conservation
status of that species or a population of that species; and
(ii) the taking of the action is not inconsistent with a wildlife
conservation plan for that species that is in force; and
(iii) the holder of the permit will take all reasonable steps to minimise
the impact of the action on that species; or
(c) the specified action is of particular significance to indigenous
tradition and will not adversely affect the conservation status of the listed
migratory species concerned, or a population of that species; or
(d) the specified action is necessary in order to control pathogens and is
conducted in a way that will, so far as is practicable, keep to a minimum any
impact on the listed migratory species concerned.
(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 further 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.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(1) Subject to subsection (2), the holder of a permit may give to a person
written authority to do for, or on behalf of, the holder any act 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
doing of a particular act by a person if the doing of that act 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 doing of any act by
the holder of the permit.
(5) Except as provided in this section, a permit does not authorise the
doing of any act 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.
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.
The Minister may, in accordance with the regulations:
(a) suspend a permit for a specified period; or
(b) cancel a permit.
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.
The regulations may:
(a) provide for the transportation, treatment and disposal of members of
listed migratory species killed, injured or taken in contravention of this
Division; and
(b) provide for the methods or equipment by which members of listed
migratory species may be killed or taken otherwise than in contravention of this
Division; and
(c) provide for the gathering and dissemination of information relating to
listed migratory species; and
(d) provide for the protection and conservation of listed migratory
species; and
(e) provide for any matter incidental to or connected with any of the
above paragraphs.
(1) This Division extends to acts, omissions, matters and things outside
Australia (whether in a foreign country or not), except so far as the contrary
intention appears.
(2) A provision of this Division that has effect in relation to a place
outside the outer limits of the Australian Whale Sanctuary applies only in
relation to:
(a) Australian citizens; and
(b) persons who:
(i) are not Australian citizens; and
(ii) hold permanent visas under the Migration Act 1958;
and
(iii) are domiciled in Australia or an external Territory; and
(c) corporations incorporated in Australia or an external Territory;
and
(d) the Commonwealth; and
(e) Commonwealth agencies; and
(f) Australian aircraft; and
(g) Australian vessels; and
(h) members of crews of Australian aircraft and Australian vessels
(including persons in charge of aircraft or vessels).
(3) This Division applies to a vessel as if it were an Australian vessel
if:
(a) the vessel is a boat within the meaning of the Fisheries Management
Act 1991; and
(b) a declaration, under subsection 4(2) of that Act, that the vessel is
taken to be an Australian boat is in force.
(1) The Australian Whale Sanctuary is established in order to give formal
recognition of the high level of protection and management afforded to cetaceans
in Commonwealth marine areas and prescribed waters.
(2) The Australian Whale Sanctuary comprises:
(a) the waters of the exclusive economic zone (other than the coastal
waters of a State or the Northern Territory); and
(b) so much of the coastal waters of a State or the Northern Territory as
are prescribed waters; and
(c) any marine or tidal waters that are inside the baseline of the
territorial sea adjacent to an external Territory, whether or not within the
limits of an external Territory.
Note: Generally the baseline is the lowest astronomical tide
along the coast but it also includes lines enclosing bays and indentations that
are not bays and straight baselines that depart from the coast.
(1) The regulations may declare the whole, or a specified part, of the
coastal waters of a State or the Northern Territory to be prescribed
waters.
(2) Before the Governor-General makes a regulation under subsection (1),
the Minister must obtain the agreement of the relevant Minister of the State or
the Northern Territory.
(1) Section 15B of the Acts Interpretation Act 1901 does not apply
in relation to this Division.
(2) The coastal waters of a State or the Northern Territory
are:
(a) the part or parts of the territorial sea that are:
(i) within 3 nautical miles of the baseline of the territorial sea;
and
(ii) adjacent to that State or Territory; and
(b) any marine or tidal waters that are inside that baseline and are
adjacent to that State or Territory but are not within the limits of a State or
that Territory.
Note: Generally the baseline is the lowest astronomical tide
along the coast but it also includes lines enclosing bays and indentations that
are not bays and straight baselines that depart from the coast.
(3) Any part of the territorial sea that is adjacent to the Jervis Bay
Territory is, for the purposes of subsection (2), taken to be adjacent to New
South Wales.
(1) If the Minister is satisfied that a law of a State or the Northern
Territory adequately protects cetaceans in the coastal waters, or a part of the
coastal waters, of the State or Territory, the Minister may make a declaration
accordingly, whether or not those coastal waters or that part are prescribed
waters.
(2) A declaration must be in writing.
(1) Subject to section 231, a person is guilty of an offence if:
(a) the person kills, injures, takes, trades, keeps, moves or interferes
with a cetacean; and
(b) the cetacean is:
(i) in the Australian Whale Sanctuary, other than the coastal waters, or a
part of the coastal waters, of a State or the Northern Territory for which a
declaration under section 228 is in force; or
(ii) in waters beyond the outer limits of the Australian Whale
Sanctuary.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(2) Subject to section 231, a person is guilty of an offence if:
(a) the person treats a cetacean; and
(b) the cetacean has been killed or taken in contravention of subsection
(1).
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(3) Strict liability applies to paragraph (1)(b).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(4) An offence against subsection (1) or (2) is punishable on conviction
by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty
units, or both.
(5) In this Act:
interfere with a cetacean includes to harass, chase, herd,
tag, mark or brand the cetacean.
treat a cetacean means to divide or cut up, or extract any
product from, the cetacean.
(1) Subject to section 231, a person is guilty of an offence if:
(a) the person has in his or her possession:
(i) a cetacean; or
(ii) a part of a cetacean; or
(iii) a product derived from a cetacean; and
(b) the cetacean has been killed, injured or taken in contravention of
subsection 229(1).
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(2) An offence against this section is punishable on conviction by
imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty
units, or both.
Sections 229 and 230 do not apply to:
(a) an action authorised by a permit that is in force; or
(b) an action provided for by, and taken in accordance with, a recovery
plan, or a wildlife conservation plan, made or adopted under Division 5 and that
is in force; or
(c) an action that is taken in a humane manner and is reasonably necessary
to relieve or prevent suffering of a cetacean; or
(d) an action that is reasonably necessary to prevent a risk to human
health; or
(e) 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
(f) an action that is reasonably necessary to deal with an emergency
involving a serious threat to human life or property; or
(g) an action that occurs as a result of an unavoidable accident, other
than an accident caused by negligent or reckless behaviour; or
(h) in the case of an action taken in relation to a cetacean that is not a
member of a listed threatened species—the action was provided for by, and
taken in accordance with, a plan of management that is accredited under section
245.
Note: A defendant bears an evidential burden in relation to
the matters in this section. See subsection 13.3(3) of the Criminal
Code.
(1) Subject to subsection (2), this section applies to a person
if:
(a) the person:
(i) kills, injures or takes a cetacean in the Australian Whale Sanctuary
other than the coastal waters, or a part of the coastal waters, of a State or
the Northern Territory for which a declaration under section 228 is in force;
or
(ii) kills, injures or takes a cetacean in waters beyond the outer limits
of the Australian Whale Sanctuary; or
(iii) treats a cetacean that has been killed, injured or taken in
contravention of subsection 229(1); and
(b) the person’s act does not constitute an offence under section
229.
(2) This section does not apply to a person who is the holder of a permit
authorising the person’s act.
Note: A person who is the holder of a permit may be required
to give certain notices in accordance with the conditions of the
permit.
(3) A person must, within 7 days after becoming aware of his or her act,
notify the Secretary in writing or by telephone or by use of any other
electronic equipment:
(a) that the act occurred; and
(b) of such other particulars about the act (for example, when and where
the act was done) as are prescribed.
(4) Subsection (3) does not apply to a person if the person, or any other
person or body, is required by or under a law of the Commonwealth to notify the
Secretary of the first-mentioned person’s act.
(5) A person is guilty of an offence punishable on conviction by a fine
not exceeding 100 penalty units if the person:
(a) fails to do an act; and
(b) the failing to do the act results in a contravention of subsection
(3).
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(1) Subject to section 235, a person is guilty of an offence if:
(a) the person has in his or her possession:
(i) a cetacean; or
(ii) a part of a cetacean; or
(iii) a product derived from a cetacean; and
(b) the cetacean has been unlawfully imported.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(2) An offence against this section is punishable on conviction by
imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty
units, or both.
(1) Subject to section 235, a person is guilty of an offence if:
(a) the person treats a cetacean; and
(b) the cetacean has been unlawfully imported.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(2) An offence against this section is punishable on conviction by
imprisonment for not more than 2 years or a fine not exceeding 1000 penalty
units, or both.
Sections 233 and 234 do not apply to:
(a) an action authorised by a permit that is in force; or
(b) an action provided for by, and taken in accordance with, a recovery
plan, or a wildlife conservation plan, made or adopted under Division 5 and that
is in force; or
(c) an action that is taken in a humane manner and is reasonably necessary
to relieve or prevent suffering by a cetacean; or
(d) an action that is reasonably necessary to prevent a risk to human
health; or
(e) 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
(f) an action that is reasonably necessary to deal with an emergency
involving a serious threat to human life or property; or
(g) an action that occurs as a result of an unavoidable accident, other
than an accident caused by negligent or reckless behaviour.
Note: A defendant bears an evidential burden in relation to
the matters in this section. See subsection 13.3(3) of the Criminal
Code.
(1) The master of a foreign whaling vessel is guilty of an offence if the
vessel is brought into a port in Australia or an external Territory and the
master has not obtained the written permission of the Minister for the vessel to
be brought into the port.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(2) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
(3) An offence against subsection (1) is punishable on conviction by a
fine not exceeding 500 penalty units.
(4) Subsection (1) does not apply if:
(a) the vessel is brought into the port in accordance with a prescribed
agreement between Australia and any other country or countries; or
(b) the vessel is brought into the port under the direction of a person
exercising powers under a law of the Commonwealth or of a State; or
(c) an unforeseen emergency renders it necessary to bring the vessel into
the port in order to secure the safety of the vessel or human life.
Note: A defendant bears an evidential burden in relation to
the matters in subsection (4). See subsection 13.3(3) of the Criminal
Code.
(5) In this Act:
foreign whaling vessel means a vessel, other than an
Australian vessel, designed, equipped or used for:
(a) killing, taking, treating or carrying whales; or
(b) supporting the operations of a vessel or vessels designed, equipped or
used for killing, taking, treating or carrying whales.
master, in relation to a foreign whaling vessel, means the
person (other than a ship’s pilot) in charge or command of the
vessel.
(1) A person may, in accordance with the regulations, apply to the
Minister for a permit to be issued under section 238.
(2) The application must be accompanied by the fee prescribed by the
regulations (if any).
(1) Subject to subsections (3) and (4), the Minister may, on application
by a person under section 237, issue a permit to the person.
(2) A permit authorises its holder to take an action specified in the
permit without breaching sections 229, 230, 233 and 234.
(3) The Minister must not issue the permit unless satisfied
that:
(a) the specified action will contribute significantly to the conservation
of cetaceans; or
(b) if the specified action will interfere with cetaceans, the
interference is incidental to, and not the purpose of, the taking of the action
and:
(i) the taking of the action will not adversely affect the conservation
status of a species of cetacean or a population of that species; and
(ii) the taking of the action is not inconsistent with a recovery plan or
wildlife conservation plan that is in force for a species of cetacean;
and
(iii) the holder of the permit will take all reasonable steps to minimise
the interference with cetaceans; or
(c) the specified action is whale watching and is carried out in
accordance with the regulations (if any) made for the purposes of this
section.
(4) The Minister must not grant a permit authorising its holder to kill a
cetacean or to take a cetacean for live display.
(5) In this Act:
whale watching means any activity conducted for the purpose
of observing a whale, including but not limited to being in the water for the
purposes of observing or swimming with a whale, or otherwise interacting with a
whale.
(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 further conditions of a permit.
The holder of a permit is guilty of an offence punishable upon 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.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(1) Subject to subsection (2), the holder of a permit may give to a person
written authority to do for or on behalf of the holder any act 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
doing of a particular act by a person if the doing of that act 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 doing of any act by
the holder of the permit.
(5) Except as provided in this section, a permit does not authorise the
doing of any act 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.
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.
The Minister may, in accordance with the regulations:
(a) suspend a permit for a specified period; or
(b) cancel a permit.
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.
The Minister may, by instrument in writing, accredit for the purposes of
this Division:
(a) a plan of management within the meaning of section 17 of the
Fisheries Management Act 1991; or
(b) a plan of management for a fishery made by a State or self-governing
Territory and that is in force in the State or Territory;
if satisfied that:
(c) the plan requires persons engaged in fishing under the plan to take
all reasonable steps to ensure that cetaceans are not killed or injured as a
result of the fishing; and
(d) the fishery to which the plan relates does not, or is not likely to,
adversely affect the conservation status of a species of cetacean or a
population of that species.
(1) If:
(a) a cetacean is:
(i) in the Australian Whale Sanctuary, other than the coastal waters, or a
part of the coastal waters, of a State or the Northern Territory for which a
declaration under section 228 is in force; or
(ii) in waters beyond the outer limits of the Australian Whale Sanctuary;
and
(a) a person kills, injures or takes the cetacean, whether or not in
contravention of this Division;
the cetacean vests, by force of this section, in the
Commonwealth.
(2) The Commonwealth is not liable in any action, suit or proceedings in
respect of any matter relating to a cetacean at any time before the taking of
possession of the cetacean by the Commonwealth.
The regulations may:
(a) provide for the transportation, treatment and disposal of cetaceans
killed, injured or taken in contravention of this Division; and
(b) provide for the methods or equipment by which cetaceans may be killed,
taken or interfered with otherwise than in contravention of this Division;
and
(c) provide for the gathering and dissemination of information relating to
cetaceans; and
(d) provide for the protection and conservation of cetaceans;
and
(e) provide for any matter incidental to or connected with any of the
above paragraphs.
(1) The Minister must, by instrument published in the Gazette,
establish a list of marine species for the purposes of this Part.
(2) The list, as first established, must contain only the
following:
(a) all members of the Family Hydrophiidae;
(b) all members of the Family Laticaudidae;
(c) all members of the Order Pinnipedia;
(d) all members of the Genus Crocodylus;
(e) all members of the Genus Dugong;
(f) all members of the Family Cheloniidae;
(g) all members of the Species Dermochelys coriacea;
(h) all members of the Family Syngnathidae;
(i) all members of the Family Solenostomidae;
(j) all members of the Class Aves that occur naturally in Commonwealth
marine areas.
(3) The Minister must establish the list within 30 days after the
commencement of this Act.
(4) The Minister must cause a notice summarising the information contained
in the instrument to be published in accordance with the regulations (if
any).
(1) Subject to this Subdivision, the Minister may, by instrument published
in the Gazette, amend the list:
(a) by including items in the list; or
(b) by deleting items from the list; or
(c) by correcting an inaccuracy or updating the name of a marine
species.
(2) An instrument mentioned in paragraph (1)(a) or (b) is a disallowable
instrument for the purposes of section 46A of the Acts Interpretation Act
1901.
(3) Despite section 48 of the Acts Interpretation Act 1901 as it
applies in relation to an instrument because of section 46A of that Act,
amendments of a list that delete items from the list 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.
(4) 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 an item that has been included in the list by the
instrument—why the item was so included; or
(b) in the case of an item that has been deleted from the list by the
instrument—why the item was so deleted.
(5) The Minister must cause a notice summarising the information contained
in an instrument to be published in accordance with the regulations (if
any).
(1) The Minister must not add a marine species to the list
unless:
(a) the Minister is satisfied that it is necessary to include the species
in the list in order to ensure the long-term conservation of the species;
and
(b) the species occurs naturally in a Commonwealth marine area.
(2) Before adding a marine species to the list, the Minister must consult
with each Minister who has an interest in a Commonwealth marine area where the
species occurs naturally.
(1) In deciding whether to add an item to, or delete an item from, the
list, the Minister must, in accordance with the regulations (if any), obtain and
consider advice from the Scientific Committee on the scientific aspects of the
addition or deletion of the item concerned.
(2) The Minister must:
(a) decide whether to add an item to, or delete an item from, the list;
and
(b) if the Minister decides to add or delete the item—cause the
necessary instrument to be published in the Gazette;
within 90 days after receiving the Scientific Committee’s advice on
the addition or deletion of the item.
(3) A member of the Scientific 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 Scientific Committee; or
(b) if an instrument is published in the Gazette relating to an
addition or deletion to which the advice relates—occurred after the
publication.
The Minister must, in accordance with the regulations (if any), make
copies of up-to-date lists available for purchase, for a reasonable price, at a
prescribed place in each State and self-governing Territory.
This Subdivision does not apply to a member of a listed marine species
that is a member of a listed migratory species, a member of a listed threatened
species or a cetacean.
(1) Subject to section 255, a person is guilty of an offence if:
(a) the person kills, injures, takes, trades, keeps or moves a member of a
marine species; and
(b) the member is a member of a listed marine species; and
(c) the member is in or on a Commonwealth area.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(2) Subject to section 255, a person is guilty of an offence if:
(a) the person trades, keeps or moves a member of a marine species;
and
(b) the member is a member of a listed marine species; and
(c) the member has been taken in or on a Commonwealth area.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(3) Strict liability applies to paragraphs (1)(c) and (2)(c).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(4) An offence against subsection (1) or (2) is punishable on conviction
by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty
units, or both.
Section 254 does not apply to:
(a) an action authorised by a permit that is in force; or
(b) an action provided for by, and taken in accordance with, a wildlife
conservation plan made under Division 5 and that is in force; or
(c) an action that is covered by an approval in operation under Part 9 for
the purposes of subsection 23(1) or (2), or subsection 26(1) or (2);
or
(d) an action that:
(i) is one of a class of actions declared by the Minister under section 33
not to require an approval under Part 9 for the purposes of subsection 23(1) or
(2), or subsection 26(1) or (2); and
(ii) is taken when the declaration is in operation; or
(e) an action that is taken in a humane manner and is reasonably necessary
to relieve or prevent suffering by an animal; or
(f) an action that is reasonably necessary to prevent a risk to human
health; or
(g) 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
(h) an action that is reasonably necessary to deal with an emergency
involving a serious threat to human life or property; or
(i) an action that occurs as a result of an unavoidable accident, other
than an accident caused by negligent or reckless behaviour; or
(j) an action taken in accordance with a permit issued under regulations
made under the Great Barrier Reef Marine Park Act 1975.
(k) an action provided for by, and taken in accordance with, a plan of
management that is accredited under section 265.
Note: A defendant bears an evidential burden in relation to
the matters in this section. See subsection 13.3(3) of the Criminal
Code.
(1) Subject to subsection (2), this section applies to a person
if:
(a) the person kills, injures, takes, trades, keeps or moves a member of a
listed marine species; and
(b) the member is in or on a Commonwealth area; and
(c) the person’s act does not constitute an offence under section
254.
(2) This section does not apply to the holder of a permit authorising the
person’s act.
Note: A person who is the holder of a permit may be required
to give certain notices in accordance with the conditions of the
permit.
(3) A person must, within 7 days after becoming aware of his or her act,
notify the Secretary in writing or by telephone or by use of any other
electronic equipment:
(a) that the act has occurred; and
(b) of such other particulars about the act (for example, the time and
place of the taking) as are prescribed (if any).
(4) Subsection (3) does not apply to a person if the person, or any other
person or body, is required by or under a law of the Commonwealth to notify the
Secretary of the first-mentioned person’s act.
(5) A person is guilty of an offence punishable on conviction by a fine
not exceeding 100 penalty units if a person:
(a) fails to do an act; and
(b) the failing to do the act results in a contravention of subsection
(3).
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(1) A person may, in accordance with the regulations, apply to the
Minister for a permit to be issued under section 258.
(2) The application must be accompanied by the fee prescribed by the
regulations (if any).
(1) Subject to subsection (3), the Minister may, on application by a
person under section 257, issue a permit to the person.
(2) A permit authorises its holder to take the actions specified in the
permit without breaching section 254.
(3) The Minister must not issue the permit unless satisfied
that:
(a) the specified action will significantly contribute to the conservation
of the listed marine species concerned or other listed marine species;
or
(b) the impact of the specified action on a member of the listed marine
species concerned is incidental to, and not the purpose of, the taking of the
action and:
(i) the taking of the action will not adversely affect the conservation
status of that species or a population of that species; and
(ii) the taking of the action is not inconsistent with a wildlife
conservation plan for that species that is in force; and
(iii) the holder of the permit will take all reasonable steps to minimise
the impact of the action on that species; or
(c) the specified action is of particular significance to indigenous
tradition and will not adversely affect the conservation status of the listed
marine species concerned; or
(d) the specified action is necessary in order to control pathogens and
are conducted in a way that will, so far as is practicable, keep to a minimum
any impact on the listed marine species concerned.
(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 further conditions of a permit.
The holder of a permit is guilty of an offence punishable upon 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.
(1) Subject to subsection (2), the holder of a permit may give to a person
written authority to do for or on behalf of the holder any act 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
doing of a particular act by a person if the doing of that act 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 doing of any act by
the holder of the permit.
(5) Except as provided in this section, a permit does not authorise the
doing of any act 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.
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.
The Minister may, in accordance with the regulations:
(a) suspend a permit for a specified period; or
(b) cancel a permit.
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.
The Minister may, by instrument in writing, accredit for the purposes of
this Division:
(a) a plan of management within the meaning of section 17 of the
Fisheries Management Act 1991; or
(b) a plan of management for a fishery made by a State or self-governing
Territory and that is in force in the State or Territory;
if satisfied that:
(c) the plan requires persons engaged in fishing under the plan to take
all reasonable steps to ensure that members of listed marine species are not
killed or injured as a result of the fishing; and
(d) the fishery to which the plan relates does not, or is not likely to,
adversely affect the conservation status of a listed marine species or a
population of that species.
The regulations may:
(a) provide for the transportation, treatment and disposal of members of
listed marine species killed, injured or taken in contravention of this
Division; and
(b) provide for the methods or equipment by which members of listed marine
species may be killed or taken otherwise than in contravention of this Division;
and
(c) provide for the gathering and dissemination of information relating to
listed marine species; and
(d) the protection and conservation of listed marine species;
and
(e) provide for any matter incidental to or connected with any of the
above paragraphs.
(1) Subject to this section, the Minister must, by instrument in writing,
make:
(a) a recovery plan for the purposes of the protection, conservation and
management of:
(i) a listed threatened species (other than a species that is extinct or
conservation dependent); or
(ii) a listed threatened ecological community; and
(b) a threat abatement plan for the purposes of reducing the effect of a
key threatening process.
(2) Subject to section 277, the Minister may, by instrument in writing,
adopt a plan that has been made by a State or a self-governing Territory, or by
an agency of a State or self-governing Territory (whether or not the plan is in
force in the State or self-governing Territory) as a recovery plan or a threat
abatement plan. The Minister may adopt a plan with such modifications as are
specified in the instrument.
(3) A plan, as modified and adopted under subsection (2), has effect as if
the plan had been made by the Minister under subsection (1).
(4) The Minister must seek the co-operation of the States and
self-governing Territories in which:
(a) a listed threatened species (other than a species that is extinct or
conservation dependent) occurs; or
(b) a listed threatened ecological community occurs; or
(c) a key threatening process occurs;
with a view to making jointly with those States and Territories, or
agencies of those States or Territories, a joint recovery plan or threat
abatement plan unless the species, community or process occurs only in a
Commonwealth area.
(5) The Minister must not make a recovery plan or threat abatement plan
under subsection (1) or (4) unless the plan meets the requirements of section
270 or 271, as the case requires.
(6) Before making a recovery plan or a threat abatement plan under
subsection (1) or (4), the Minister must:
(a) consider the advice of the Scientific Committee given under section
274; and
(b) consult about the plan in accordance with sections 275 and
276.
(7) A recovery plan or a threat abatement 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.
(8) This section does not exclude or limit the concurrent operation of a
law of a State or a self-governing Territory.
A Commonwealth agency must not take any action that contravenes a
recovery plan or a threat abatement plan.
(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.
(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:
(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
(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
(i) in the case of a plan for a listed threatened species that is also a
listed migratory species, a listed marine species or a species of
cetacean—satisfy the requirements of a wildlife conservation plan for that
species; and
(j) meet prescribed criteria (if any) and contain provisions of a
prescribed kind (if any).
(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.
(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
(d) state the estimated duration and cost of the threat abatement process;
and
(e) identify organisations or persons who will be involved in evaluating
the performance of the threat abatement plan; and
(f) 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; 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.
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.
(1) A recovery plan for a listed threatened species or listed threatened
ecological community that occurs only in Commonwealth areas must be
made:
(a) in the case of a native species listed in Schedule 1 to the
Endangered Species Protection Act 1992, for which a recovery plan under
that Act was not in force immediately before the commencement of this
Act—within the remainder of the period allowed by section 36 of that Act
for the preparation of the plan for that species; or
(b) in the case of a listed threatened species (other than a native
species mentioned in paragraph (a)) in:
(i) the critically endangered category—within 2 years after the
species in question became included in that category; or
(ii) the endangered category or the extinct in the wild
category—within 3 years after the species in question became included in
that category; or
(iii) the vulnerable category—within 5 years after the species in
question became included in that category; or
(c) in the case of an ecological community (if any) listed in Schedule 2
to the Endangered Species Protection Act 1992, for which a recovery plan
under that Act was not in force immediately before the commencement of this
Act—within the remainder of the period allowed by section 36 of that Act
for the preparation of the plan for that community; or
(d) in the case of a listed threatened ecological community (other than a
community mentioned in paragraph (c)) in:
(i) the critically endangered category—within 2 years after the
community in question became included in that category; or
(ii) the endangered category—within 3 years after the community in
question became included in that category; or
(iii) the vulnerable category—within 5 years after the community in
question became included in that category.
(2) A recovery plan for a listed threatened species or a listed threatened
ecological community that occurs in and outside a Commonwealth area must be
made:
(a) in the case of a listed threatened species in:
(i) the critically endangered category—within 2 years after the
species in question became included in that category; or
(ii) the endangered category or the extinct in the wild
category—within 3 years after the species in question became included in
that category; or
(iii) the vulnerable category—within 5 years after the species in
question became included in that category; or
(b) in the case of a listed threatened ecological community in:
(i) the critically endangered category—within 2 years after the
community in question became included in that category; or
(ii) the endangered category—within 3 years after the community in
question became included in that category; or
(iii) the vulnerable category—within 5 years after the community in
question became included in that category.
(3) A threat abatement plan for a key threatening process must be
made:
(a) in the case of a key threatening process listed in Schedule 3 to the
Endangered Species Protection Act 1992, for which a threat abatement plan
under that Act was not in force immediately before the commencement of this
Act—within the remainder of the period allowed by section 36 of that Act
for the preparation of the plan for that key threatening process; or
(b) in any other case—within 3 years after the key threatening
process became listed.
(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.
(1) Before making a recovery plan or threat abatement plan under
subsection 267(1) or (4), the Minister must:
(a) take reasonable steps to ensure that copies of the proposed plan are
available for purchase, for a reasonable price, at prescribed places in each
State and self-governing territory; and
(b) give a copy of it, together with a notice of a kind referred to in
subsection (2), to the Scientific Committee; and
(c) cause the notice to be published:
(i) in the Gazette; and
(ii) in a daily newspaper that circulates generally in each State, and
self-governing Territory, in which the relevant listed threatened native
species, listed threatened ecological community or key threatening process
occurs; and
(iii) in any other way required by the regulations (if any).
(2) The notice must:
(a) specify the places where copies of the proposed plan may be purchased;
and
(b) invite persons to make written comments about the proposed plan;
and
(c) specify:
(i) an address for lodgment of comments; and
(ii) a day by which comments must be made.
(3) The day specified must not be a day occurring within 3 months after
the notice is published in the Gazette.
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.
(1) The Minister must not adopt a plan as a recovery plan or a threat
abatement plan under subsection 267(2) unless:
(a) the Minister is satisfied that an appropriate level of consultation
has been undertaken in making the plan; and
(b) the plan meets the requirements of section 270 or 271, as the case
requires.
(2) Before adopting a plan, the Minister must obtain and consider advice
from the Scientific Committee on the content of the plan.
(1) As soon as practicable after the Minister makes or adopts a recovery
plan or a threat abatement plan under section 267, 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.
(1) The Minister may, at any time, review a recovery plan or threat
abatement plan that has been made or adopted under section 267 and consider
whether a variation of it is necessary.
(2) Each plan must be reviewed by the Minister at intervals of not longer
than 5 years.
(3) If the Minister considers that a variation of a plan is necessary, the
Minister may, subject to subsections (4), (5), (6) and (7), vary the
plan.
(4) The Minister must not vary a plan, unless the plan, as so varied,
continues to meet the requirements of section 270 or 271, as the case
requires.
(5) Before varying a plan, the Minister must obtain and consider advice
from the Scientific Committee on the content of the variation.
(6) If the Minister has made a plan jointly with, or adopted a plan that
has been made by, a State or self-governing Territory, or an agency of a State
or self-governing Territory, the Minister must seek the co-operation of that
State or Territory, or that agency, with a view to varying the plan.
(7) Sections 275, 276 and 278 apply to the variation of a plan in the same
way that those sections apply to the making of a recovery plan or threat
abatement plan.
(1) If a State or self-governing Territory varies a plan that:
(a) the Minister has made jointly with the State or self-governing
Territory, or an agency of the State or Territory; or
(b) has been adopted by the Minister as a recovery plan or a threat
abatement plan;
the variation is of no effect for the purposes of this Act unless it is
approved by the Minister.
(2) Before approving a variation, the Minister must obtain and consider
advice from the Scientific Committee on the content of the variation.
(3) The Minister must not approve a variation unless satisfied
that:
(a) an appropriate level of consultation was undertaken in varying the
plan; and
(b) the plan, as so varied, continues to meet the requirements of section
270 or 271, as the case requires.
(4) If the Minister approves a variation of a plan, the plan has effect as
so varied on and after the date of the approval, or such later date as the
Minister determines in writing.
(5) Section 278 applies to the variation of a plan in the same way that it
applies to the making of a recovery plan or threat abatement plan.
(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.
(1) The Scientific Committee is to advise the Minister on the conditions
(if any) to which the giving of assistance under section 281 should be
subject.
(2) In giving advice about assistance for making or implementing a
recovery plan, the Scientific Committee must take into account the following
matters:
(a) the degree of threat to the survival in nature of the species or
ecological community in question;
(b) the potential for the species or community to recover;
(c) the genetic distinctiveness of the species or community;
(d) the importance of the species or community to the ecosystem;
(e) the value to humanity of the species or community;
(f) the efficient and effective use of the resources allocated to the
conservation of species and ecological communities.
(3) In giving advice about assistance for making or implementing 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.
(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.
The Secretary must include in each annual report a report on the making
and adoption under section 267 of each recovery plan and threat abatement plan
during the year to which the report relates.
(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.
(2) The Minister must not make a plan for a listed migratory species, a
listed marine species or a species of cetacean that is a listed threatened
species.
(3) Subject to section 292, the Minister may, by instrument in writing,
adopt a plan that has been made by a State or a self-governing Territory, or by
an agency of a State or self-governing Territory, as a wildlife conservation
plan. The Minister may adopt a plan with such modifications as are specified in
the instrument.
(4) A plan, as modified and adopted under subsection (2), has effect as if
the plan had been made by the Minister under subsection (1).
(5) The Minister must seek the co-operation of the States and
self-governing Territories in which:
(a) a listed migratory species occurs; or
(b) a listed marine species occurs; or
(c) a species of cetacean occurs;
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.
(8) This section does not exclude or limit the concurrent operation of a
law of a State or a self-governing Territory.
A Commonwealth agency must take all reasonable steps to act in accordance
with a wildlife conservation plan.
(1) A wildlife conservation plan must provide for the research and
management actions necessary to support survival of the migratory species,
marine species or species of cetacean 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 or
species of cetacean (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 and species
of cetacean; 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 or species of cetacean to which the plan relates.
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.
(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.
(2) In giving advice under subsection (1), 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.
(1) Before making a wildlife conservation plan under subsection 285(1) or
(5), the Minister must:
(a) take reasonable steps to ensure that copies of the proposed plan are
available for purchase, for a reasonable price, at prescribed places in each
State and self-governing Territory; and
(b) give a copy of it, together with a notice of a kind referred to in
subsection (2), to the Scientific Committee; and
(c) cause the notice to be published:
(i) in the Gazette; and
(ii) in a daily newspaper that circulates generally in each State, and
self-governing Territory; and
(iii) in any other way required by the regulations (if any).
(2) The notice must:
(a) specify the places where copies of the proposed plan may be purchased;
and
(b) invite persons to make written comments about the proposed plan;
and
(c) specify:
(i) an address for lodgment of comments; and
(ii) a day by which comments must be made.
(3) The day specified must not be a day occurring within 3 months after
the notice is published in the Gazette.
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.
(1) The Minister must not adopt a plan as a wildlife conservation plan
under subsection 285(3) unless:
(a) the Minister is satisfied that an appropriate level of consultation
has been undertaken in making the plan; and
(b) the plan meets the requirements of section 287.
(2) Before adopting a plan, the Minister must obtain and consider advice
from the Scientific Committee on the content of the plan.
(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.
(1) The Minister may, at any time, review a wildlife conservation plan
that has been made or adopted under section 285 and consider whether a variation
of it is necessary.
(2) Each plan must be reviewed by the Minister at intervals of not longer
than 5 years.
(3) If the Minister considers that a variation of a plan is necessary, the
Minister may, subject to subsections (4), (5), (6) and (7) vary the
plan.
(4) The Minister must not vary a plan, unless the plan, as so varied,
continues to meet the requirements of section 287.
(5) Before varying a plan, the Minister must obtain and consider advice
from the Scientific Committee on the content of the variation.
(6) If the Minister has made a plan jointly with, or adopted a plan that
has been made by, a State or self-governing Territory, or an agency of a State
or self-governing Territory, the Minister must seek the co-operation of that
State or Territory, or that agency, with a view to varying the plan.
(7) Sections 290, 291 and 293 apply to the variation of a plan in the same
way that those sections apply to the making of a wildlife conservation
plan.
(1) If a State or self-governing Territory varies a plan that:
(a) the Minister has made jointly with the State or self-governing
Territory, or an agency of the State or Territory; or
(b) has been adopted by the Minister as a wildlife conservation
plan;
the variation is of no effect for the purposes of this Act unless it is
approved by the Minister.
(2) Before approving a variation, the Minister must obtain and consider
advice from the Scientific Committee on the content of the variation.
(3) The Minister must not approve a variation under subsection (1) unless
satisfied:
(a) an appropriate level of consultation was undertaken in varying the
plan; and
(b) the plan, as so varied, continues to meet the requirements of section
287.
(4) If the Minister approves a variation of a plan, the plan has effect as
so varied on and after the date of the approval, or such later date as the
Minister determines in writing.
(5) Section 293 applies to the variation of a plan in the same way that it
applies to the making of a wildlife conservation plan.
(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.
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.
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.
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;
the wildlife conservation plan ceases to have effect in relation to the
species on and from the day on which a recovery plan takes effect for the
species.
(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.
(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.
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.
The regulations may make provision for the conservation of biodiversity
in Commonwealth areas.
The object of this Part is to provide for:
(a) conservation agreements between the Commonwealth and persons related
to the protection and conservation of biodiversity; and
(b) the effect of conservation agreements; and
(c) the publication of conservation agreements.
Conservation agreements are agreements whose primary object is to enhance
the conservation of biodiversity. They may relate to private or public land, or
to marine areas.
(1) Subject to subsection (2) the Minister may, on behalf of the
Commonwealth, enter into an agreement, expressed to be a conservation agreement,
with a person for the protection and conservation of biodiversity in the
Australian jurisdiction, including:
(a) the protection, conservation and management of any listed species or
ecological communities, or their habitats; and
(b) the abatement of processes, and the mitigation or avoidance of actions
that might adversely affect biodiversity.
(2) The Minister must not enter into a conservation agreement unless
satisfied that:
(a) the proposed agreement will result in a net benefit to the
conservation of biodiversity; and
(b) the proposed agreement is not inconsistent with a recovery plan,
threat abatement plan or wildlife conservation plan.
(3) For the purposes of paragraph (2)(a), in deciding whether a proposed
agreement will result in a net benefit to biodiversity conservation, the
Minister must have regard to the prescribed matters (if any).
(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
biodiversity;
(b) controlling or prohibiting, in any place covered by the agreement,
actions or processes that might adversely affect the species, ecological
communities, habitats or potential habitats covered by the agreement;
(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;
(f) declaring that specified actions taken in a specified manner, or in
other specified circumstances, do not require approval under Part 9 for the
purpose of a specified provision of Part 3;
(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 biodiversity;
(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 the species, ecological communities, habitats or potential habitats
covered by the agreement;
(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.
A conservation agreement is legally binding on:
(a) the Commonwealth; and
(b) the person or persons with whom the Minister entered into the
agreement on behalf of the Commonwealth; and
(c) anyone else who is a successor to the whole or any part of any
interest that a person mentioned in paragraph (b) had, when the agreement was
entered into, in any place covered by the agreement.
(1) A conservation agreement may be varied by a variation agreement
entered into by the Minister, on behalf of the Commonwealth, and the other party
or parties to the conservation agreement.
(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 other party or parties to the agreement; or
(b) in such other manner, or in such circumstances (if any), as the
agreement specifies.
(4) If the Minister is satisfied that a conservation agreement is not
capable of achieving its purpose, the Minister may, by order published in the
Gazette, terminate the agreement or vary it in any way the Minister
thinks necessary to ensure it becomes capable of achieving its
purpose.
(5) The Minister may make an order under subsection (4) in relation to a
conservation agreement without the agreement of the other party or parties to
the agreement.
(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 other party or
parties to the agreement may, by written notice given to the Minister, terminate
the agreement.
(8) If a conservation agreement is terminated or varied by an order, the
other party or parties to the agreement 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.
(1) As soon as practicable after a conservation agreement has been entered
into or varied, other than by an order under subsection 308(4), the Minister
must:
(a) take reasonable steps to ensure that copies of the agreement or
variation are available for purchase, for a reasonable price, at a prescribed
place in each State and self-governing Territory; and
(b) cause a notice of the agreement or variation to be
published:
(i) in the Gazette; and
(ii) in any other way required by the regulations.
(2) The notice must:
(a) state that the agreement or variation has been entered into or made;
and
(b) specify the places where copies of the agreement or variation may be
purchased.
(3) Subsection (1) does not apply in relation to a conservation agreement,
or a variation of such an agreement, or any part of such an agreement or
variation, if the Minister is satisfied that disclosure of the agreement or
variation, or the part of the agreement or variation, as the case may be,
would:
(a) result in harm being done to components of biodiversity; or
(b) disclose matters that are commercial-in-confidence.
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.
(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.
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.
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.
(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.
(1) The Minister must give notice in the Gazette and in the way (if
any) prescribed by the regulations of any of the following events as soon as
practicable after the event occurs:
(a) the Commonwealth submits a property to the World Heritage Committee
for inclusion in the World Heritage List;
(b) the Commonwealth extends the boundaries of a property submitted to the
World Heritage Committee for inclusion in the World Heritage List;
(c) the Commonwealth restricts the boundaries of a property submitted to
the World Heritage Committee for inclusion in the World Heritage List;
(d) the Commonwealth withdraws the submission of a property for inclusion
in the World Heritage List;
(e) a property submitted by the Commonwealth is included in the World
Heritage List;
(f) all or part of a property is removed from the World Heritage
List.
(2) The notice must specify the area included in, or excluded or deleted
from, the submission or World Heritage List as a result of the event.
(3) A failure to comply with this section does not affect the status of an
area as a declared World Heritage property.
Minister must make plan
(1) The Minister must make a written plan for managing a property that is
included in the World Heritage List and is entirely within one or more
Commonwealth areas. The Minister must do so as soon as practicable after the
property:
(a) is included in the World Heritage List; or
(b) becomes entirely within one or more Commonwealth areas.
Amending and replacing plan
(2) The Minister may make a written plan amending, or revoking and
replacing, a plan made under subsection (1) or this subsection.
Requirements for plan
(3) A plan must not be inconsistent with:
(a) Australia’s obligations under the World Heritage Convention;
or
(b) any Australian World Heritage management principles.
Note: Section 323 explains what Australian World Heritage
management principles are.
Ensuring plans reflect current management principles
(4) If the Australian World Heritage management principles change so that
a plan (the earlier plan) is inconsistent with them, the Minister
must make another plan:
(a) amending the earlier plan so it is not inconsistent with them;
or
(b) revoking and replacing the earlier plan.
Plan may be in same document as another plan
(5) To avoid doubt, a plan under this section for a property may be in the
same document as:
(a) a plan under this section for another property; or
(b) a plan that this Act or another law of the Commonwealth requires or
permits to be prepared.
Commonwealth reserves
(6) Despite subsections (1) and (2), the Minister may not make a plan for
so much of a property as is in a Commonwealth reserve.
Note: A management plan must be prepared under Division 4
for a Commonwealth reserve, taking account of Australia’s obligations
under the World Heritage Convention.
Heard Island and McDonald Islands
(7) Despite subsections (1) and (2), the Minister may not make a plan for
so much of a property as is in the Territory of Heard Island and McDonald
Islands and covered by a plan:
(a) that is in operation under the Environment Protection and
Management Ordinance 1987 of that Territory; and
(b) that the Minister is satisfied is not inconsistent with:
(i) Australia’s obligations under the World Heritage Convention;
or
(ii) any Australian World Heritage management principles.
The Minister must give notice of the making of a plan under section 316,
in accordance with the regulations.
The Commonwealth or a Commonwealth agency must not contravene a plan made
by the Minister under section 316.
(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 (if any) in force at the
time.
Note: Section 323 explains what Australian World Heritage
management principles are.
This Subdivision applies in relation to a property that:
(a) is:
(i) in a State; or
(ii) in a self-governing Territory; or
(iii) on, over or under the seabed vested in a State by the Coastal
Waters (State Title) Act 1980 or in the Northern Territory by the Coastal
Waters (Northern Territory Title) Act 1980; and
(b) is not entirely within one or more Commonwealth areas.
(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 any 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.
(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) any Australian World Heritage management principles; and
(c) if the property is on the World Heritage List and a plan for managing
the property has been prepared as described in section 321—that
plan.
(1) The Australian World Heritage management principles are
the principles (if any) prescribed by the regulations for management of natural
heritage and cultural heritage.
(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.
(1) The Commonwealth may give financial or other assistance for the
protection or conservation of a declared World Heritage property to:
(a) a State or self-governing Territory in which the property occurs;
or
(b) any other person.
(2) The giving of assistance may be made subject to such conditions as the
Minister thinks fit.
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.
(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.
(1) The Minister must give notice in the Gazette and in the way (if
any) prescribed by the regulations of any of the following events as soon as
practicable after the event occurs:
(a) the Commonwealth designates a wetland for inclusion in the List of
Wetlands of International Importance kept under the Ramsar Convention;
(b) the Commonwealth extends the boundaries of a wetland it has included
in the List;
(c) the Commonwealth restricts the boundaries of a wetland it has included
in the List;
(d) the Commonwealth deletes from the List a wetland it previously
included in the List.
(2) The notice must specify the area included in, or excluded or deleted
from, the List as a result of the event.
(3) A failure to comply with this section does not affect the status of an
area as a declared Ramsar wetland.
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) any Australian Ramsar management principles.
Note: Section 335 explains what Australian Ramsar management
principles are.
Ensuring plans reflect current management principles
(4) If the Australian Ramsar management principles change so that a plan
(the earlier plan) is inconsistent with them, the Minister must
make another plan:
(a) amending the earlier plan so it is not inconsistent with them;
or
(b) revoking and replacing the earlier plan.
Plan may be in same document as another plan
(5) To avoid doubt, a plan under this section for a wetland may be in the
same document as:
(a) a plan under this section for another wetland; or
(b) a plan that this Act or another law of the Commonwealth requires or
permits to be prepared.
Commonwealth reserves
(6) Despite subsections (1) and (2), the Minister may not make a plan for
so much of a wetland as is in a Commonwealth reserve.
Note: A management plan must be prepared under Division 4
for a Commonwealth reserve, taking account of Australia’s obligations
under the Ramsar Convention.
Heard Island and McDonald Islands
(7) Despite subsections (1) and (2), the Minister may not make a plan for
so much of a wetland as is in the Territory of Heard Island and McDonald Islands
and covered by a plan:
(a) that is in operation under the Environment Protection and
Management Ordinance 1987 of that Territory; and
(b) that the Minister is satisfied is not inconsistent with:
(i) Australia’s obligations under the Ramsar Convention;
or
(ii) any Australian Ramsar management principles.
The Minister must give notice of the making of a plan under section 328,
in accordance with the regulations.
The Commonwealth or a Commonwealth agency must not contravene a plan made
by the Minister under section 328.
(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 (if any) in force at the time.
Note: Section 335 explains what Australian Ramsar management
principles are.
(1) This section 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.
(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 any 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.
(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 (if any); 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.
(1) The Australian Ramsar management principles are the
principles (if any) prescribed by the regulations for management of wetlands
included in the List of Wetlands of International Importance kept under the
Ramsar Convention.
(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.
(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.
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.
(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 any 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 any Australian
Biosphere reserve management principles.
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) any Australian Biosphere reserve management principles; or
(b) a plan prepared as described in section 338 for managing the Biosphere
reserve.
(1) The Australian Biosphere reserve management principles
are the principles (if any) prescribed by the regulations for management of
Biosphere reserves.
(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.
(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.
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 Secretary 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.
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 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 Secretary must consult publicly before some Proclamations are
made.
Declaring a Commonwealth reserve
(1) The Governor-General may, by Proclamation, declare as a Commonwealth
reserve:
(a) an area of land:
(i) that is owned by the Commonwealth in a Territory; or
(ii) that is owned by the Commonwealth outside a Territory; or
(iii) that is held under lease by the Commonwealth in a Territory;
or
(iv) that is held under lease by the Commonwealth outside a Territory;
or
(v) outside Australia and in respect of which Australia has obligations
relating to biodiversity or heritage under an agreement with one or more other
countries that may appropriately be met by declaring the area a Commonwealth
reserve; or
(b) an area of sea:
(i) in a Commonwealth marine area; or
(ii) outside Australia and in respect of which Australia has obligations
relating to biodiversity or heritage under an agreement with one or more other
countries that may appropriately be met by declaring the area a Commonwealth
reserve; or
(c) an area of land described in paragraph (a) and sea described in
paragraph (b).
Note 1: Section 351 sets out some prerequisites for making
Proclamations.
Note 2: A reference to Australia generally includes its
coastal sea. See section 15B of the Acts Interpretation Act
1901.
Limits on acquiring land for reservation
(2) If land:
(a) is in:
(i) a State or self-governing Territory (except the Northern Territory);
or
(ii) the Northern Territory outside both Uluru-Kata Tjuta
National Park and the Alligator Rivers Region (as defined by the Environment
Protection (Alligator Rivers Region) Act 1978); and
(b) is dedicated or reserved under a law of the State or Territory for
purposes related to nature conservation or the protection of areas of
historical, archaeological or geological importance or of areas having special
significance in relation to indigenous persons;
the Commonwealth must not acquire the land for the purposes of declaring it
a Commonwealth reserve, without the consent of the State or Territory.
Uluru-Kata Tjuta National Park
(3) Uluru-Kata Tjuta National Park is the
Commonwealth reserve (as it exists from time to time) to which the name
Uluru-Kata Tjuta National Park was given by Proclamation continued
in force by the Environmental Reform (Consequential Provisions) Act
1998.
(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).
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 one of the following categories (the IUCN
categories):
(i) strict nature reserve;
(ii) wilderness area;
(iii) national park;
(iv) natural monument;
(v) habitat/species management area;
(vi) protected landscape/seascape;
(vii) managed resource protected area.
Assigning different zones of a reserve to different IUCN
categories
(2) A Proclamation may also divide a reserve into zones and assign each
zone to an IUCN category.
Assigning leasehold land to IUCN categories
(3) Before the Governor-General makes a Proclamation assigning a
Commonwealth reserve or zone including land or seabed held by the Commonwealth
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.
Prerequisite to making Proclamation
(1) 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 listed in subsection (2) for the category;
and
(ii) meets the criteria (if any) prescribed by the regulations for the
category; and
(b) if there are Australian IUCN reserve management principles for the
category—that the reserve or zone should be managed in accordance with
those principles.
Characteristics for IUCN categories
(2) The characteristics are as follows:
(a) for a strict nature reserve—the Commonwealth reserve or zone
contains some outstanding or representative ecosystems, geological or
physiological features or species;
(b) for a wilderness area—the Commonwealth reserve or zone consists
of a large area of land, sea or both that:
(i) is unmodified, or only slightly modified, by modern or colonial
society; and
(ii) retains its natural character; and
(iii) does not contain permanent or significant habitation;
(c) for a national park—the Commonwealth reserve or zone consists of
an area of land, sea or both in natural condition;
(d) for a natural monument—the Commonwealth reserve or zone contains
a specific natural feature, or natural and cultural feature, of outstanding
value because of its rarity, representativeness, aesthetic quality or cultural
significance;
(e) for a habitat/species management area—the Commonwealth reserve
or zone contains habitat for one or more species; and
(f) for a protected landscape/seascape—the Commonwealth reserve or
zone contains an area of land (with or without sea) where the interaction of
people and nature over time has given the area a distinct character with
significant aesthetic, cultural or ecological value;
(g) for a managed resource protected area—the Commonwealth reserve
or zone contains natural systems largely unmodified by modern or colonial
technology.
(1) The Australian IUCN reserve management principles for an
IUCN category are the principles (if any) prescribed by the regulations for that
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.
A Proclamation assigning a Commonwealth reserve, or a zone of a
Commonwealth reserve, to the IUCN category of wilderness area may contain
provisions regulating the circumstances in which, and the manner in which, the
Secretary or his or her agent may do one of the following acts if there is not a
management plan in operation for the reserve:
(a) carry on an excavation;
(b) erect a building or other structure;
(c) carry out works;
(d) fell or take timber;
(e) establish a track;
(f) use a vehicle, aircraft or vessel;
(g) inundate land by means of a dam or other works for affecting the flow
of water (whether they are inside or outside the reserve or zone);
(h) extract water by canals or other works for affecting the flow of water
(whether they are inside or outside the reserve or zone).
(1) The Governor-General may revoke or amend a Proclamation under this
Subdivision by another Proclamation.
Note: Section 351 sets out some prerequisites for making
Proclamations.
(2) Before the Governor-General makes a Proclamation that results in land,
sea or seabed ceasing to be included in a Commonwealth reserve, the Minister
must be satisfied:
(a) that the Proclamation, if made, would be in accordance with a
resolution passed by each House of Parliament on a motion; and
(b) that notice of the motion was given at least 15 sitting days of that
House before the motion was moved.
(3) Subsection (2) does not apply to a Proclamation that results in land,
sea or seabed ceasing to be included in one Commonwealth reserve or zone and
being included in another Commonwealth reserve or zone.
(4) If the Commonwealth 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 Commonwealth 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 Commonwealth surrenders the lease in consideration of the grant to
the Commonwealth of another lease of that land or seabed.
(6) Except as described in subsection (4), land, sea or seabed in a
Commonwealth reserve does not cease to be within the reserve merely because a
usage right relating to the land, sea or seabed is transferred, assigned,
surrendered, extinguished or changed in any way.
(7) A usage right is an estate or a legal or equitable
charge, power, privilege, authority, licence or permit.
Note: Section 22 of the Acts Interpretation Act 1901
defines estate.
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 Secretary on
the matter to be dealt with by the Proclamation.
Procedure for preparing report
(2) In preparing a report, the Secretary 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 Secretary’s views on
the comments.
Content of notice inviting comments
(3) A notice stating the matter to be dealt with by a Proclamation to
declare a Commonwealth reserve must include a statement of:
(a) the proposed name of the reserve; and
(b) the proposed boundaries of the reserve and of any zones into which the
reserve is to be divided; and
(c) the purpose for which the reserve is to be declared; and
(d) which IUCN category the reserve (and, if applicable, each zone of the
reserve) is to be assigned to; and
(e) the purposes for which it is intended to manage and use the
reserve.
Content of notice relating to revocation of Commonwealth
reserve
(4) A notice stating the matter to be dealt with by a Proclamation to
cause any land, sea or seabed to cease to be part of a Commonwealth reserve must
state the boundaries of that land, sea or seabed.
Time for comment
(5) The day specified in the notice as the day by which any comments must
be sent must be at least 60 days after the last day on which the notice is
published in the Gazette or in accordance with any regulations.
When this section does not apply
(6) Subsection (1) does not apply in relation to a Proclamation
that:
(a) declares an area in the Kakadu region to be a Commonwealth reserve;
or
(b) has the effect of changing:
(i) the name of a Commonwealth reserve in the Kakadu region; or
(ii) the purposes for which such a reserve is declared; 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.
(1) If land held by the Commonwealth under lease ceases to be in a
Commonwealth reserve because of a Proclamation made under section 350:
(a) the Commonwealth’s leasehold interest in the land ceases to
exist by force of this paragraph; and
(b) if the land is in a State or Territory—the Secretary may give to
the officer of the State or Territory responsible for registering land titles a
copy of the Proclamation certified by the Secretary; and
(c) the officer may make an entry in his or her registers and do anything
else needed to reflect the effect of paragraph (a).
(2) Paragraph (1)(a) does not apply in relation to a Proclamation that
causes land in one Commonwealth reserve to cease to be part of that reserve and
to become part of another Commonwealth reserve.
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.
(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) carry on an excavation;
(b) erect a building or other structure;
(c) carry out works;
(d) fell or take timber.
Note: These acts are totally prohibited in wilderness areas
(except so far as the Secretary is concerned). See section 360.
(2) However, if a management plan is not in operation for a Commonwealth
reserve, the Secretary or his or her agent 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.
Note: The Secretary may only do these acts in a wilderness
area under a management plan or Proclamation. See section 360.
(3) Subsection (2) does not apply in relation to so much of a Commonwealth
reserve as is in the Kakadu region, the Uluru region or the Jervis Bay
Territory.
Note: Section 385 sets out what the Secretary and his or her
agents 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.
(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 360 (about wilderness areas); and
(iii) item of Part of Schedule to the Environmental Reform
(Consequential Provisions) Act 1998 (about Jabiru); 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).
(1) A person must not carry on mining operations in a Commonwealth reserve
unless:
(a) the Governor-General has approved the operations; and
(b) the person carries them on in accordance with a management plan in
operation for the reserve.
Note: Section 387 generally prohibits mining operations in
Kakadu National Park.
(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.
(4) Subsection (1) does not prevent the doing of anything for the purposes
of building or construction, or the supply of water, in a Commonwealth reserve
unless the purposes are connected with, or incidental to, mining
operations.
(5) This section is subject to:
(a) section 359 (about interests and rights existing before a Commonwealth
reserve); and
(b) section 387 (about mining operations in Kakadu National Park);
and
(c) item of Part of Schedule to the Environmental Reform (Consequential
Provisions) Act 1998 (about Jabiru);
but has effect despite any other law of the Commonwealth, a State or a
Territory.
(1) The regulations may:
(a) regulate or prohibit the pollution of soil, air or water in a manner
that is, or is likely to be, harmful to:
(i) people, biodiversity or heritage in Commonwealth reserves;
or
(ii) the natural features of Commonwealth reserves; and
(b) regulate or prohibit tourism in Commonwealth reserves; and
(c) provide for the protection and preservation of Commonwealth reserves
and property and things in Commonwealth reserves; and
(d) provide for the protection and conservation of biodiversity in
Commonwealth reserves; and
(e) regulate or prohibit access to all or part of a Commonwealth reserve
by persons or classes of persons; and
(f) provide for the removal of trespassers from Commonwealth reserves;
and
(g) regulate or prohibit camping in Commonwealth reserves; and
(h) provide for the safety of persons in Commonwealth reserves;
and
(i) regulate or prohibit the use of fire in Commonwealth reserves;
and
(j) regulate the conduct of persons in Commonwealth reserves;
and
(k) regulate or prohibit the carrying on of any trade or commerce in a
Commonwealth reserve; and
(l) regulate or prohibit the use of vehicles in Commonwealth reserves and
provide for signs and road markings for those purposes; and
(m) provide for:
(i) the removal of vehicles, aircraft or vessels from places in
Commonwealth reserves where they have been left in contravention of the
regulations or have been abandoned; and
(ii) the impounding of such vehicles, aircraft or vessels; and
(n) provide that the person taken for the purposes of the regulations to
be the owner of a motor vehicle involved in a contravention of a provision of
the regulations relating to the parking or stopping of vehicles in a
Commonwealth reserve is, except as provided otherwise, taken to commit an
offence against the provision; and
(o) provide for a person to be taken to be the owner of a motor vehicle
for the purposes of regulations made under paragraph (n) (including a person in
whose name the motor vehicle is registered under the law of a State or
Territory); and
(p) regulate or prohibit the use of vessels in, and the passage of vessels
through, Commonwealth reserves; and
(q) regulate or prohibit the landing and use of aircraft in, and the
flying of aircraft over, Commonwealth reserves; and
(r) provide for the giving of effect to management plans for Commonwealth
reserves; and
(s) regulate or prohibit the taking of animals or plants into or out of
Commonwealth reserves; and
(t) provide for the impounding, removal, destruction or disposal of
animals found straying in Commonwealth reserves; and
(u) regulate or prohibit the taking into Commonwealth reserves, and the
use in Commonwealth reserves, of weapons, traps, nets, snares, fishing apparatus
and other devices; and
(v) regulate or prohibit the laying of baits and the use of explosives and
poisons in Commonwealth reserves; and
(w) provide for the collection of specimens and the pursuit of research in
Commonwealth reserves for scientific purposes; and
(x) provide for the issue of licences, permits and authorities relating to
activities in Commonwealth reserves, the conditions subject to which they are
issued and the charging of fees by the Commonwealth in respect of such licences,
permits and authorities; and
(y) provide for any matter incidental to or connected with a matter
described in another paragraph.
(2) A provision of the regulations regulating or prohibiting the flying of
aircraft over a Commonwealth reserve does not have any effect so far as it is
inconsistent with a law of the Commonwealth. For this purpose, a provision is
not inconsistent with such a law if it can be complied with without
contravention of the law.
(3) A law of a Territory has effect so far as it is not inconsistent with
a provision of the regulations having effect in that Territory. For this
purpose, such a law is not inconsistent with the provision so far as it can
operate concurrently with the provision.
(1) While a management plan is not in operation for a Commonwealth
reserve, the Secretary must exercise his or her powers and perform his or her
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 (if any) 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 Commonwealth holds land or seabed included in the reserve under
lease—the Commonwealth’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 (if any) for the
IUCN category to which the reserve or zone has most recently been assigned
by:
(i) a Proclamation made under Subdivision B; or
(ii) a management plan that was in operation for the reserve (but is no
longer);
(b) if the Commonwealth holds land or seabed included in the reserve under
lease—the Commonwealth’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.
(1) The Commonwealth must not sell or otherwise dispose of a usage right
the Commonwealth holds in relation to land, sea or seabed in a Commonwealth
reserve.
(2) However, the Commonwealth 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 Commonwealth may surrender a lease of land
or seabed within a Commonwealth reserve in consideration of the grant to the
Commonwealth 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.
(1) None of the following provisions affect a usage right that was held by
a person (other than the Commonwealth) in relation to land, sea or seabed
immediately before the land, sea or seabed was included in a Commonwealth
reserve:
(a) provisions of this Act that relate to the reserve (whether or not they
also relate to another Commonwealth reserve);
(b) provisions of the regulations 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.
(1) This section applies only to a Commonwealth reserve, or a zone of a
Commonwealth reserve, that is assigned by a Proclamation under Subdivision B or
a management plan for the reserve to the IUCN category of wilderness
area.
(2) The Commonwealth reserve or zone must be maintained in its natural
state.
(3) A person may use the Commonwealth reserve or zone only for:
(a) scientific research authorised by the Secretary; or
(b) a purpose (except recovery of minerals) specified in the provisions of
the management plan for the reserve that relate to the zone.
(4) A person other than the Secretary or his or her agent must not do any
of the following acts in the Commonwealth reserve or zone:
(a) carry on an excavation;
(b) erect a building or other structure;
(c) carry out works;
(d) fell or take timber;
(e) establish a track;
(f) use a vehicle, aircraft or vessel;
(g) inundate land by means of a dam or other works for affecting the flow
of water (whether they are inside or outside the reserve or zone);
(h) extract water by canals or other works for affecting the flow of water
(whether they are inside or outside the reserve or zone).
(5) The Secretary or his or her agent must not do an act described in
subsection (4) in the Commonwealth reserve or zone, except for purposes
essential to the management of the reserve or zone and in accordance
with:
(a) the provisions of the management plan in operation for the reserve or
zone; or
(b) if there is not a management plan in operation for the reserve or zone
and a Proclamation assigned the reserve or zone to the IUCN category of
wilderness area—the provisions of the Proclamation.
(6) This section has effect despite any other law of the Commonwealth, a
State or a Territory, but is subject to section 359 (about usage rights existing
before a Commonwealth reserve).
The following is a simplified outline of this Subdivision:
The Secretary must manage a Commonwealth reserve to give effect to a
management plan for the reserve. If indigenous people think the Secretary 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.
(1) The Secretary must exercise his or her powers and perform his or her
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.
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 Secretary disagree
about whether the Secretary is exercising his or her powers and performing his
or her functions consistently with a management plan in operation for the
reserve:
(a) the Secretary must inform the Minister; and
(b) the Minister must appoint a person the Minister considers to be
suitably qualified and in a position to deal with the matter impartially to
inquire into the matter; and
(c) the person appointed must inquire into the matter and give the
Minister a report and recommendations; and
(d) the Minister must give the Secretary any directions the Minister
thinks fit; and
(e) the Secretary 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; and
(b) the body corporate was established by or under an Act for the purpose
of holding for the benefit of indigenous persons title to land vested in it by
or under that Act.
Who is an indigenous person?
(4) A person is an indigenous person if he or she
is:
(a) a member of the Aboriginal race of Australia; or
(b) a descendant of an indigenous inhabitant of the Torres Strait
Islands.
What is a jointly managed reserve?
(5) A Commonwealth reserve is a jointly managed reserve
if:
(a) it includes indigenous people’s land held under lease by the
Commonwealth; and
(b) a Board is established for the reserve under Subdivision F.
(1) The Secretary must inform the Minister if the Secretary 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 Secretary and the Board:
(a) the directions the Minister thinks appropriate; and
(b) a statement of reasons for giving the directions; and
(c) a copy of the report and recommendations.
(6) The Secretary and the Board must comply with any directions given by
the Minister.
The following is a simplified outline of this Subdivision:
The Minister may approve a management plan for a Commonwealth reserve
prepared by the Secretary and any Board for the reserve. Before the Minister
approves a plan, he or she may modify it.
Before the Secretary 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 Secretary and a
Board for a reserve over preparation of a plan for the reserve.
Plans required for Commonwealth reserves without Boards
(1) The Secretary must prepare management plans for each Commonwealth
reserve for which there is not a Board to try to ensure that a management plan
for the reserve is in operation:
(a) as soon as practicable after the reserve is declared; and
(b) at all times after the first plan for managing the reserve takes
effect.
Note: Section 368 specifies steps to be taken in preparing a
management plan for a Commonwealth reserve.
Amending or replacing plans for reserves without Boards
(2) The Secretary 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 Secretary, 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 Secretary:
(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.
Mandatory content
(1) A management plan for a Commonwealth reserve must provide for the
protection and conservation of the reserve. In particular, the plan
must:
(a) assign the reserve to an IUCN category (whether or not a Proclamation
has assigned the reserve or a zone of the reserve to that IUCN category);
and
(b) state how the reserve, or each zone of the reserve, is to be managed;
and
(c) state how the natural features of the reserve, or of each zone of the
reserve, are to be protected and conserved; and
(d) if the Commonwealth holds land or seabed included in the reserve under
lease—be consistent with the Commonwealth’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).
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 any 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.
Plans for different reserves may appear together
(5) A management plan for a Commonwealth reserve may be in the same
document as a management plan for another 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.
Overview of process
(1) Before the Secretary gives the Minister a management plan for a
Commonwealth reserve for approval:
(a) the Minister must publish under subsection (2) an invitation to
comment on the proposal to prepare a draft of the plan; and
(b) the Secretary 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 Minister must publish under subsection (5) an invitation to
comment on the draft; and
(d) the Secretary must make publicly available copies of the draft free or
for a reasonable fee determined by the Secretary; and
(e) the Secretary 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 Minister 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 Secretary proposes to prepare a draft of a management
plan for the Commonwealth reserve; and
(b) inviting comments on the proposal from:
(i) members of the public; and
(ii) the Chair or Chairperson of any land council for indigenous
people’s land in the reserve; and
(iii) if the reserve is in a State or self-governing Territory—the
agency (if any) of the State or Territory that is responsible for managing
national parks established in the State or Territory under a law of the State or
Territory; and
(iv) if the Minister has established under Division 4 of Part 19 an
advisory committee with functions relating to the reserve—the committee;
and
(v) if the Commonwealth holds any land or seabed in the reserve under
lease—anyone the Commonwealth 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
Secretary and the Board (if any) for the reserve must take account of:
(a) any report considered by the Minister under section 351 before a
Proclamation declaring the reserve was made; and
(b) the regulation of the use of the reserve for the purpose for which it
was declared; and
(c) the interests of:
(i) any owner of any land or seabed in the reserve; and
(ii) the traditional owners of any indigenous people’s land in the
reserve; and
(iii) any other indigenous persons interested in the reserve;
and
(iv) any person who has a usage right relating to land, sea or seabed in
the reserve that existed (or is derived from a usage right that existed)
immediately before the reserve was declared; and
(d) the protection of the special features of the reserve, including
objects and sites of biological, historical, palaeontological, archaeological,
geological and geographical interest; and
(e) the protection, conservation and management of biodiversity and
heritage within the reserve; and
(f) the protection of the reserve against damage; and
(g) Australia’s obligations under agreements between Australia and
one or more other countries relevant to the protection and conservation of
biodiversity and heritage.
Who are the traditional owners of indigenous people’s
land?
(4) The traditional owners of indigenous people’s land
are:
(a) a local descent group of indigenous persons who:
(i) have common spiritual affiliations to a site on the land under a
primary spiritual responsibility for that site and for the land; and
(ii) are entitled by indigenous tradition to forage as of right over the
land; or
(b) if the land is in the Jervis Bay Territory—the members of the
Wreck Bay Aboriginal Community Council.
Notice inviting comment on draft
(5) The Minister 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 Secretary has prepared a draft of a management plan
for the Commonwealth reserve; and
(b) stating how the draft can be obtained; and
(c) inviting comments on the draft from:
(i) members of the public; and
(ii) the Chair or Chairperson of any land council for any indigenous
people’s land in the reserve; and
(iii) if the reserve is in a State or self-governing Territory—the
agency (if any) of the State or Territory that is responsible for managing
national parks established in the State or Territory under a law of the State or
Territory; and
(iv) if the Minister has established under Division 4 of Part 19 an
advisory committee with functions relating to the reserve—the committee;
and
(v) if the Commonwealth holds any land or seabed in the reserve under
lease—anyone the Commonwealth 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.
(1) The Secretary 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 Secretary 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 Secretary with suggestions under paragraph
370(3)(b)).
(2) If the Minister is advised by the Secretary 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 Secretary and the Board:
(a) the directions the Minister thinks appropriate; and
(b) a statement of reasons for giving the directions; and
(c) a copy of the report and recommendations.
(6) The Secretary and the Board must comply with any directions given by
the Minister.
Giving management plan to Minister for approval
(1) The Secretary 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 Secretary 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 Secretary gives the plan to the Minister, the Secretary 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 Secretary and any Board for the reserve on the
comments.
Minister’s decision
(3) After the Secretary has given the plan, the Minister:
(a) must consider the plan and any comments and views given to the
Minister under subsection (2); and
(b) may either:
(i) approve the plan; or
(ii) give the plan back to the Secretary with suggestions for
consideration by the Secretary and any Board for the reserve.
Note: There are some extra rules about giving back to the
Secretary 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 Secretary with
suggestions:
(a) the Secretary and any Board for the Commonwealth reserve to which the
plan relates must consider the suggestions; and
(b) the Secretary must give the Minister an identical or altered version
of the plan, but only if any Board for the reserve agrees; and
(c) the Secretary must give the Minister, with the plan, the
Secretary’s views on the Minister’s suggestions.
Minister’s decision on re-submitted plan
(5) As soon as practicable after the Secretary 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.
(1) A management plan approved for a Commonwealth reserve by the Minister
is a disallowable instrument for the purposes of section 46A of the Acts
Interpretation Act 1901.
Note: Section 46A of the Acts Interpretation Act 1901
provides for the commencement, tabling and disallowance of disallowable
instruments.
(2) To avoid doubt, the provisions mentioned in section 46A of the Acts
Interpretation Act 1901 apply as if the approval of the management plan were
the making of the plan.
(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.
A management plan for a Commonwealth reserve may amend or revoke and
replace an earlier management plan for the reserve.
A management plan for a Commonwealth reserve ceases to have effect 7
years after it took effect (unless it has already been revoked).
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 Secretary.
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.
This Subdivision provides for Boards for Commonwealth reserves that
consist of, or include, indigenous people’s land held under lease by the
Commonwealth.
(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 Secretary, 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 Secretary and Board over
implementation of plan); or
(b) section 369 (Resolving disagreements between Secretary and Board in
planning process).
(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 Commonwealth holds under lease; or
(b) if there is not such a land council—the traditional owners of
the indigenous people’s land in the reserve that the Commonwealth 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 Commonwealth 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.
Revoking and amending notice establishing Board
(1) The Minister may, by notice in the Gazette:
(a) revoke a notice under section 377 relating to the Board for the
reserve; or
(b) amend a notice under section 377 relating to the Board for the reserve
so as to:
(i) change the specification of the name by which the Board is to be
known; or
(ii) increase the number of members of the Board and specify the
qualifications for appointment to each of the extra positions of member;
or
(iii) decrease the number of positions of member of the Board and specify
which positions are abolished; or
(iv) change the qualifications for appointment to a position of member of
the Board.
Note: The Minister may exercise the power of amendment from
time to time. See subsection 33(1) of the Acts Interpretation Act
1901.
Limits on changing composition of Board
(2) Paragraph (1)(b) has effect subject to subsections 377(4) and
(5).
Note 1: Subsection 377(4) requires a majority of the members
of the Board of a Commonwealth reserve consisting wholly or mostly of indigenous
people’s land held by the Commonwealth under lease to be indigenous
persons nominated by the traditional owners of the land.
Note 2: Subsection 377(5) requires at least one member of a
Board for a reserve in a State or self-governing Territory to be a nominee of
the State or Territory.
Prerequisite to revoking or amending notice
(3) The Minister may revoke or amend a notice under section 377 relating
to a Commonwealth reserve only if the Minister agrees on the revocation or
amendment with:
(a) the land council for indigenous people’s land in the reserve, if
the Board for the reserve was established with the agreement of the land
council; or
(b) the traditional owners of indigenous people’s land in the
reserve, if the Board for the reserve was established with the agreement of the
traditional owners.
Board’s identity not affected by name change
(4) If the Minister amends a notice published under section 377 so as to
alter a Board’s name or constitution, section 25B of the Acts
Interpretation Act 1901 applies in relation to the alteration as if it had
been made by an Act.
Note: This ensures that the Board’s identity and
functions are not affected by the alteration, and that certain references to the
Board under its old name are treated as references to the Board under its new
name.
Appointment of qualified persons
(1) The Minister may appoint a person in writing on a part-time basis to a
position of member of a Board if the person is qualified for appointment to the
position.
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.
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.
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.
(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.
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 for misbehaviour or incapacity
(2) The Minister may terminate the appointment of a member of a Board for
misbehaviour or physical or mental incapacity.
Termination for failure to attend Board meetings
(3) The Minister may terminate the appointment of a member of a Board if
the member is absent, except on leave of absence, from 3 consecutive meetings of
the Board of which the member has had notice.
Termination for engaging in conflicting work
(4) The Minister may terminate the appointment of a member of a Board if
the member engages in paid employment that, in the Minister’s opinion,
conflicts or could conflict with the proper performance of the duties of the
member.
Termination for failure to disclose interests
(5) The Minister must terminate the appointment of a member of a Board
if:
(a) the member does not comply with any requirements prescribed by the
regulations to disclose an interest the member has in a matter being considered
or about to be considered by the Board; and
(b) the member does not have a reasonable excuse for not
complying.
Termination on request by nominator
(6) The Minister must terminate the appointment of a member of a Board
if:
(a) the member was appointed on the nomination of a particular person,
body or group of persons; and
(b) the person, body or group gives the Minister a written request to
terminate the appointment.
Termination for bankruptcy or insolvency
(7) The Minister may terminate the appointment of a member of the Board if
the member:
(a) becomes bankrupt; or
(b) applies to take the benefit of any law for the relief of bankrupt or
insolvent debtors; or
(c) compounds with his or her creditors; or
(d) makes an assignment of his or her remuneration for the benefit of his
or her creditors.
(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.
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.
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 Secretary may perform the Secretary’s functions and
exercise the Secretary’s powers in and in relation to a part of the
reserve in the region, subject to any directions of the Minister.
(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.
(1) A person must not carry out mining operations in Kakadu National
Park.
(2) Subsection (1) and subsection 355(1) do not prevent:
(a) the use, development or reconstruction of the township known as
Jabiru; or
(b) the transportation of anything in Kakadu National Park along routes
(including air routes) prescribed by the regulations for the purposes of this
paragraph; or
(c) the construction and use of pipelines and power lines in Kakadu
National Park along routes prescribed by the regulations for the purposes of
this paragraph; or
(d) the doing of anything for the purposes of building or construction, or
the supply of water, in Kakadu National Park as long as the purposes are not
connected with, or incidental to, mining operations; and
(e) prescribed activities carried on in Kakadu National Park in connection
with, or incidental to, mining operations carried on outside Kakadu National
Park.
(3) Kakadu National Park is the Commonwealth reserve (as it
exists from time to time) to which the name Kakadu National Park was given by
Proclamation continued in force by the Environmental Reform (Consequential
Provisions) Act 1998.
(1) A person may 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) or (3); 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 Commonwealth) may develop a township
only:
(a) on land that the person holds under lease or sub-lease from the
Commonwealth; or
(b) on land that was developed before 9 June 1978, if the township was
established before it was included in the reserve.
(3) The Commonwealth may develop a township only if the township did not
exist before its site became part of the Commonwealth reserve.
(4) A person may only construct, alter or demolish a building or structure
in a township in accordance with the management plan for the Commonwealth
reserve and the town plan.
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:
(a) the site of the township and the general purposes of the township, if
the township was not established before its site was included in the reserve;
and
(b) the terms and conditions of any lease or sub-lease from the
Commonwealth of land on which the township is to be established or developed;
and
(c) the purposes of any zones into which the township is to be
divided.
Town plan provisions
(2) A town plan must make detailed provision relating to the proposed
construction or development of the township, including, in particular, the
provision (if any) to be made for:
(a) housing, shops, offices and other buildings and structures;
and
(b) bridges, railways, roads, streets, footpaths and parking areas;
and
(c) the supply of water, electricity and gas; and
(d) the standards to be maintained in the construction and alteration of
buildings and structures; and
(e) sewerage and drainage; and
(f) public amenities for recreation and other purposes; and
(g) any other matters that are specified for the purposes of this
paragraph by:
(i) the management plan for the Commonwealth reserve containing the
township; or
(ii) the regulations; or
(iii) any lease or sub-lease from the Commonwealth of land on which the
township is to be established or developed.
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) that would not otherwise apply in relation to the township, 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.
Town plans must not be inconsistent with other instruments
(4) A town plan must never be inconsistent with:
(a) the management plan for the Commonwealth reserve that includes the
township; or
(b) any lease or sub-lease from the Commonwealth of land on which the
township is to be established or developed.
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).
(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 Secretary with suggestions under paragraph 370(3)(b) if the Minister
is satisfied that there is a substantial difference of opinion
between:
(a) the Chair or Chairperson of a land council for indigenous
people’s land in the reserve, on the one hand; and
(b) the Secretary, or the Secretary 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 Secretary 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 Conservation 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 Secretary comments on the suggestions within 14 days.
(4) When considering the Minister’s suggestions as required by
paragraph 370(4)(a), the Secretary and any Board for the reserve must also
consider any comments made in response to the Minister’s
invitation.
(5) When the Secretary gives the Minister an identical or altered version
of the plan under paragraph 370(4)(b), the Secretary must also:
(a) give the Minister a copy of the comments (if any) made in response to
the Minister’s invitation, and the Secretary’s views on those
comments; and
(b) give the Chair or Chairperson of each land council for indigenous
people’s land in the reserve a copy of the version of the plan given to
the Minister and of the comments and views (if any) being given to the Minister
under paragraph (a).
(6) The Chair or Chairperson of a land council for indigenous
people’s land in the reserve may make comments to the Minister relating to
the version of the plan within 14 days of receiving the copy of it.
(7) If the Minister receives comments from the Chair or Chairperson of a
land council for indigenous people’s land in the reserve and the Minister
is satisfied that there is a substantial difference of opinion between the Chair
or Chairperson and the Secretary 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).
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 made under |
|
|
1 |
75 |
whether an action is a controlled action |
|
2 |
133 |
whether or not to approve the taking of an action |
|
3 |
201 |
whether or not to grant a permit |
|
4 |
216 |
whether or not to grant a permit |
|
5 |
237 |
whether or not to grant a permit |
|
6 |
258 |
whether or not to grant a permit |
|
7 |
267 |
about making a recovery plan or threat abatement plan or adopting a plan as
a recovery plan or 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 |
|
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 |
|
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 |
|
14 |
370 |
about approving a management plan for a Commonwealth reserve |
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.
(1) The Secretary may make arrangements with the Secretary of another
Department of the Australian Public Service, 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 Department or authority, as the case may be.
(2) The Minister may enter into an arrangement with the appropriate
Minister of a State or of the Australian Capital Territory or of the Northern
Territory for:
(a) officers or employees in the Public Service of the State or Territory,
or in an authority of the State or Territory (including a local government
body); or
(b) members of the police force of the State or Territory;
to perform or exercise all or any of the functions or powers of wardens or
rangers under this Act or the regulations.
(3) The Minister may enter into an arrangement with the appropriate person
holding an office under section 13 of the Norfolk Island Act 1979 for
persons appointed or employed under an enactment referred to in section 61 of
that Act to perform or exercise all or any of the functions or powers of wardens
or rangers under this Act or the regulations.
By force of this section each member or special member of the Australian
Federal Police is a warden.
(1) The Minister must issue to each warden (except a member of a police
force) 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) is guilty of an offence
punishable on conviction by a fine not exceeding one penalty unit.
(1) The Minister may, in writing, appoint a person to be an
inspector.
(2) The Minister may make a written determination that a specified person,
or a person included in a specified class of persons, does not have such of the
powers conferred on an inspector by this Act as are specified in the
determination. The determination has effect accordingly.
(3) If the Minister makes a determination under subsection (2) about a
named individual, the Minister must give the individual a copy of the
determination.
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 section 43 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).
(1) The Minister may enter into an arrangement with the appropriate
Minister of a State or of the Australian Capital Territory or of the Northern
Territory for:
(a) officers or employees of the Public Service of the State or Territory,
or of an authority of the State or Territory (including a local government
body); or
(b) members of the police force of the State or Territory;
to be inspectors, and that arrangement has effect accordingly.
(2) The Minister may enter into an arrangement with the appropriate person
holding an office under section 13 of the Norfolk Island Act 1979 for
persons appointed or employed under an enactment referred to in section 61 of
that Act 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.
(1) The Minister must issue to an inspector, (except a member of a police
force), 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 an inspector, the person must immediately
return his or her identity card to the Minister.
(3) A person who contravenes subsection (2) is guilty of an offence
punishable on conviction by a fine not exceeding one penalty unit.
The regulations may provide for functions and powers to be conferred, and
duties to be imposed, on wardens, rangers and inspectors.
(1) A person is guilty of an offence if:
(a) the person:
(i) impersonates an authorised officer or a ranger on an occasion;
and
(ii) does so knowing it to be an occasion when the officer or ranger would
be on duty and doing an act or attending a place; or
(b) the person:
(i) falsely represents himself or herself to be an authorised officer or a
ranger; and
(ii) does an act or attends a place in the assumed character of that
officer or ranger; or
(c) the person:
(i) impersonates an authorised officer or a ranger or falsely represents
himself or herself to be an authorised officer or a ranger; and
(ii) does so with the intention of obtaining a gain, causing a loss or
influencing the exercise of a public duty.
(2) Subsection (1) does not apply to an authorised officer or a
ranger.
(3) An authorised officer or a ranger is guilty of 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.
(1) A person is guilty of an offence if the person:
(a) uses or threatens violence against another person; and
(b) does so knowing that the other person is an authorised officer or a
ranger; and
(c) does so because of that other person’s status as an authorised
officer or ranger.
(2) An offence against subsection (1) is punishable, on conviction, by
imprisonment for not more than 7 years or a fine not exceeding 420 penalty
units, or both.
(3) A person is guilty of 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.
(1) This section applies to:
(a) any Australian vessel, Australian aircraft or Australian
platform;
(b) any vehicle, vessel or aircraft that is in Australia or an external
Territory;
(c) any vessel, or any aircraft capable of landing on water, that is in
the territorial sea of Australia or an external Territory; and
(d) any aircraft that is over or in Australia or an external
Territory.
(2) If an authorised officer suspects on reasonable grounds that there is
in, or on, a vehicle, vessel, aircraft or platform any evidential material, 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.
(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
which is in the territorial sea of Australia or an external Territory has been
used or otherwise involved in the commission of an offence against this Act or
the regulations, 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) If an authorised officer or the person in command of a Commonwealth
ship or of a Commonwealth aircraft suspects on reasonable grounds
that:
(a) an aircraft has been used or otherwise involved in the commission of
an offence against this Act or the regulations; and
(b) the aircraft is over or in Australia or an external
Territory;
he or she may, by means of an international signal code or other
internationally recognised means of communication with an aircraft, require the
person in charge of the aircraft 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.
(5) An authorised officer may, for the purposes of this Act, require the
person in charge of a vehicle, vessel, aircraft or platform to give information
concerning the vehicle, vessel, aircraft or platform and its crew and any other
person on board the vehicle, vessel, aircraft or platform.
(6) In this Act:
Australian platform means a platform that:
(a) is fixed to the continental shelf of Australia or of an external
Territory, or to the sea-bed between Australian waters; or
(b) is otherwise operating in that part of the sea above the continental
shelf of Australia or of an external Territory, or in the territorial sea of
Australia or an external Territory.
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.
(1) If an authorised officer (other than a member of a police force who is
in uniform) boards a vehicle, vessel, aircraft or platform to which section 403
applies, 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
(b) in any other case—produce his or her identity card for
inspection by that person.
(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 (other than a member of a police force who is
in uniform) 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
(b) in any other case—produce his or her identity card for
inspection by that person;
and, if the authorised officer fails to do so, that person is not obliged
to comply with the requirement.
(4) A person must comply with a requirement made of the person under
section 403.
Penalty: 50 penalty units.
(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.
(1) An authorised officer who boards a vehicle, vessel, aircraft or
platform under section 403, or enters premises under section 405 may:
(a) search the vehicle, vessel, aircraft, platform or premises, as the
case may be; 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; and
(c) inspect, and take samples of, any other evidential material;
and
(d) exercise powers of seizure conferred on the authorised officer by this
Act.
(2) Each of the following things, including any such thing in electronic
form, is evidential material:
(a) a thing with respect to which an offence against this Act or the
regulations has been committed or is suspected, on reasonable grounds, to have
been committed;
(b) a thing as to which there are reasonable grounds for suspecting that
it will afford evidence as to the commission of an offence against this Act or
the regulations;
(c) a thing as to which there are reasonable grounds for suspecting that
it is intended to be used for the purpose of committing an offence against this
Act or the regulations.
(3) For the purposes of exercising a power under subsection (1), an
authorised officer may break open any hold or compartment, or any container or
other receptacle (including any place that could be used as a receptacle), on a
vehicle, vessel, aircraft or platform or on any premises.
For the purposes of this Division, each of the following powers is a
monitoring power in relation to particular premises:
(a) the power to 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;
(d) the power to take extracts from, or make copies of, any document, book
or record on the premises;
(e) the power to take onto the premises any equipment or material
reasonably necessary for the purpose of exercising a power referred to in
paragraph (a), (b), (c) or (d).
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 this Act or the regulations are being 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 this Act or the regulations are being
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
445.
Right to refuse to give consent
(5) Before obtaining the consent of a person for the purposes of this
section, an authorised officer must tell the person that the person may refuse
to give consent.
Consent must be voluntary
(6) An entry by an authorised officer in consequence of the consent of a
person is not lawful unless the person voluntarily consented to the
entry.
Production of identity card etc.
(7) An authorised officer is not entitled to:
(a) enter premises under subsection (1); or
(b) exercise any powers referred to in subsection (3) or (4) in relation
to premises;
if the occupier of the premises has required the officer to produce written
identification for inspection by the occupier and:
(c) if the authorised officer is a member of a police force—the
officer fails to produce, for inspection by the occupier, written evidence of
the fact that he or she is a member of that police force; or
(d) in any other case—the officer fails to produce his or her
identity card for inspection by the occupier.
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.
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
this Act or the regulations are being complied with.
Information about grounds for issue of monitoring warrant
(3) The magistrate must not issue the monitoring warrant unless the
authorised person 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) authorise an authorised officer named in the monitoring warrant, with
such assistance and by such force as is necessary and reasonable, from time to
time while the monitoring warrant remains in force, to enter the premises and
exercise monitoring powers; and
(b) state whether an entry under the monitoring warrant is authorised to
be made at any time of the day or night or during specified hours of the day or
night; and
(c) specify the day (not more than 6 months after the issue of the
monitoring warrant) on which the monitoring warrant ceases to have effect;
and
(d) state the purpose for which the monitoring warrant is
issued.
Seizure powers
(5) If an authorised officer enters premises under a monitoring warrant,
he or she may exercise powers of seizure conferred by section 445.
(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 authorised officer named in the
monitoring warrant must make available to that person a copy of the monitoring
warrant.
(2) The authorised officer named in the monitoring warrant 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.
(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 1C 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.
(1) The authorised officer named in a monitoring warrant must, before any
person enters premises under the monitoring warrant:
(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 monitoring warrant is not
frustrated.
(1) A magistrate may issue a warrant authorising an authorised officer to
search premises if the magistrate is satisfied by information on oath that there
are reasonable grounds for suspecting that there is, or there will be within the
next 72 hours, any evidential material at the premises.
(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 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.
(3) For the purposes of this Act, frisk search
means:
(a) a search of a person conducted by quickly running the hands over the
person’s outer garments; and
(b) an examination of anything worn or carried by the person that is
conveniently and voluntarily removed by the person.
(4) If the authorised officer applying for the warrant suspects that, in
executing the warrant, it will be necessary to use firearms, the authorised
officer must state that suspicion, and the grounds for that suspicion, in the
information.
(5) If the application for the warrant is made under section 416, this
section applies as if subsections (1) and (2) referred to 48 hours rather than
72 hours.
(6) If the applicant for a warrant is a member or special member of the
Australian Federal Police and has, at any time previously, applied for a warrant
relating to the same person or premises, the person must state particulars of
those applications and their outcome in the information.
(1) If a magistrate issues a warrant under section 413, the magistrate is
to state in the warrant:
(a) the offence 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 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) whether the warrant may be executed at any time or only during
particular hours.
(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 to which the warrant
relates; or
(ii) evidential material in relation to another offence against this Act,
where the other offence is an indictable offence;
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 this Act or the
regulations; 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 any evidential material or eligible seizable items in his or her
possession.
(3) For the purposes of this Act, ordinary search means a
search of a person or of articles in the possession of a person that may
include:
(a) requiring the person to remove his or her overcoat, coat or jacket and
any gloves, shoes and hat; and
(b) an examination of those items.
(4) The magistrate is also to state, in a warrant in relation to a
person:
(a) that the warrant authorises the seizure of a thing (other than
evidential material of the kind referred to in paragraph (1)(c)) found, in the
course of the search, on or in the possession of the person or in an aircraft,
vehicle or vessel that the person had operated or occupied at any time within 24
hours before the search began, being a thing that the executing officer or an
officer assisting believes on reasonable grounds to be:
(i) evidential material in relation to an offence to which the warrant
relates; or
(ii) evidential material in relation to another offence against this Act,
where the other offence is an indictable offence;
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 this Act or the
regulations; 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.
(1) A magistrate in a State or internal Territory may:
(a) issue a warrant in relation to premises or a person in that State or
Territory; or
(b) issue a warrant in relation to premises or a person in an external
Territory; or
(c) issue a warrant in relation to premises or a person in another State
or internal Territory (including the Jervis Bay Territory) if he or she is
satisfied that there are special circumstances that make the issue of the
warrant appropriate; or
(d) issue a warrant in relation to a person wherever the person is in
Australia or in an external Territory if he or she is satisfied that it is not
possible to predict where the person may be.
(2) A magistrate in New South Wales or the Australian Capital Territory
may issue a warrant in relation to premises or a person in the Jervis Bay
Territory.
Application
(1) An authorised person may make an application to a magistrate for a
warrant by telephone, telex, facsimile 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.
Issue of warrant
(4) If an application is made to a magistrate under this section and the
magistrate, after considering the information and having received and considered
such further information (if any) as the magistrate required, is satisfied
that:
(a) a warrant in the terms of the application should be issued urgently;
or
(b) the delay that would occur if an application were made in person would
frustrate the effective execution of the warrant;
the magistrate may complete and sign the same form of warrant that would be
issued under section 413.
Notification
(5) If the magistrate decides to issue the warrant, the magistrate is to
inform the applicant, by telephone, telex, facsimile 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—that information duly sworn.
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.
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 to which the warrant
relates; or
(ii) evidential material in relation to another offence against this Act,
where the other offence is an indictable offence;
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 this Act or the
regulations; and
(e) to seize other things found at the premises in the course of the
search that the executing officer or an officer assisting believes on reasonable
grounds to be eligible seizable items; and
(f) if the warrant so allows—to conduct an ordinary search or a
frisk search of a person at or near the premises if the executing officer or an
officer assisting suspects on reasonable grounds that the person has any
evidential material or eligible seizable items in his or her
possession.
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 to which the warrant
relates; or
(ii) evidential material in relation to another offence against this Act,
where the other offence is an indictable offence;
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 this Act or the
regulations; 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 search warrant may be executed
(3) If the warrant states that it may be executed only during particular
hours, the warrant must not be executed outside those hours.
Ordinary searches or frisk searches
(4) If the 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.
(1) In executing a warrant:
(a) the executing officer may obtain such assistance as is necessary and
reasonable in the circumstances; and
(b) the executing officer, or an authorised officer who is assisting in
executing the warrant, may use such force against persons and things as is
necessary and reasonable in the circumstances; and
(c) a person who is not an authorised officer, but who has been authorised
to assist in executing the warrant, may use such force against things as is
necessary and reasonable in the circumstances.
(2) A person who is not an authorised officer must not take part in
searching or arresting a person.
(1) If a warrant in relation to premises is being executed and the
occupier of the premises or another person who apparently represents the
occupier is present at the premises, the executing officer or an officer
assisting must make available to that person a copy of the warrant.
(2) If a warrant in relation to a person is being executed, the executing
officer or an officer assisting must make available to that person a copy of the
warrant.
(3) If a person is searched under a warrant in relation to premises, the
executing officer or an officer assisting must show the person a copy of the
warrant.
(4) The executing officer must identify himself or herself to the person
at the premises or the person being searched, as the case may be.
(5) The copy of the warrant referred to in subsections (1) and (2) need
not include the signature of the magistrate who issued the warrant.
(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.
(1) The executing officer or an officer assisting may bring to the warrant
premises any equipment reasonably necessary for the examination or processing of
things found at the premises in order to determine whether they are things that
may be seized under the warrant.
(2) If:
(a) it is not practicable to examine or process the things at the warrant
premises; or
(b) the occupier of the premises consents in writing;
the things may be moved to another place so that the examination or
processing can be carried out in order to determine whether they are things that
may be seized under the warrant.
(3) If things are moved to another place for the purpose of examination or
processing under subsection (2), the executing officer must, if it is
practicable to do so:
(a) inform the occupier of the address of the place and the time at which
the examination or processing will be carried out; and
(b) allow the occupier or his or her representative to be present during
the examination or processing.
(4) The executing officer or an officer assisting may operate equipment
already at the warrant premises to carry out the examination or processing of a
thing found at the premises in order to determine whether it is a thing that may
be seized under the warrant if the executing officer or an officer assisting
believes on reasonable grounds that:
(a) the equipment is suitable for the examination or processing;
and
(b) the examination or processing can be carried out without damage to the
equipment or thing.
Operation of equipment
(1) The executing officer or an officer assisting may operate electronic
equipment at the premises to see whether evidential material is accessible by
doing so if he or she believes on reasonable grounds that the operation of the
equipment can be carried out without damage to the equipment.
Seizure etc.
(2) If the executing officer or an officer assisting, after operating the
equipment, finds that evidential 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 material can, by using facilities at the premises, be put in
documentary form—operate the facilities to put the material in that form
and seize the documents so produced; or
(c) if the material can be transferred to a disk, tape or other storage
device that:
(i) is brought to the premises; or
(ii) is at the premises and the use of which for the purpose has been
agreed to in writing by the occupier of the premises;
operate the equipment or other facilities to copy the material to the
storage device and take the storage device from the premises.
Limitation on seizure
(3) A person may seize equipment under paragraph (2)(a) only if:
(a) it is not practicable to put the material in document form as
mentioned in paragraph (2)(b) or to copy the material as mentioned in paragraph
(2)(c); or
(b) possession of the equipment by the occupier could constitute an
offence.
Securing equipment
(4) If the executing officer or an officer assisting believes on
reasonable grounds that:
(a) evidential material may be accessible by operating electronic
equipment at the premises; and
(b) expert assistance is required to operate the equipment; and
(c) if he or she does not take action under this subsection, the material
may be destroyed, altered or otherwise interfered with;
he or she may do whatever is necessary to secure the equipment, whether by
locking it up, placing a guard or otherwise.
Notice about securing equipment
(5) The executing officer or an officer assisting must give notice to the
occupier of the premises of his or her intention to secure equipment and of the
fact that the equipment may be secured for up to 24 hours.
Period for which equipment may be secured
(6) The equipment may be secured:
(a) for a period not exceeding 24 hours; or
(b) until the equipment has been operated by the expert;
whichever happens first.
Extension of period
(7) If the executing officer or an officer assisting believes on
reasonable grounds that the expert assistance will not be available within 24
hours, he or she may apply to a magistrate for an extension of that
period.
Notice to occupier
(8) The executing officer or an officer assisting must give notice to the
occupier of the premises of his or her intention to apply for an extension, and
the occupier is entitled to be heard in relation to the application.
Provisions relating to extensions
(9) The provisions of this Division relating to the issue of warrants
apply, with such modifications as are necessary, to the issuing of an
extension.
(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.
(1) Subject to subsection (2), if an authorised officer seizes, under a
warrant relating to premises:
(a) a document, film, computer file or other thing that can be readily
copied; or
(b) a storage device the information in which can be readily
copied;
the authorised officer must, if requested to do so by the occupier of the
premises or another person who apparently represents the occupier and who is
present when the warrant is executed, give a copy of the thing or the
information to that person as soon as practicable after the seizure.
(2) Subsection (1) does not apply if:
(a) the thing that has been seized was seized under paragraph 422(2)(b) or
(c); or
(b) possession of the document, film, computer file, thing or information
by the occupier could constitute an offence.
(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 1C 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.
(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.
A warrant can not authorise a strip search or a search of a
person’s body cavities.
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.
(1) This section applies if an authorised officer suspects, on reasonable
grounds, that:
(a) evidential material in relation to an indictable offence against this
Act is in or on an aircraft, vehicle or vessel; and
(b) it is necessary to exercise a power under subsection (2) in order to
prevent the thing from being concealed, lost or destroyed; and
(c) it is necessary to exercise the power without the authority of a
search warrant because the circumstances are serious and urgent.
(2) The authorised officer may:
(a) stop and detain the aircraft, vehicle or vessel; and
(b) search the aircraft, vehicle or vessel and any container in or on it,
for the evidential material; and
(c) seize the evidential material if he or she finds it there.
(3) If, in the course of searching for the evidential material, the
authorised officer finds any other evidential material in relation to any other
offence against this Act or the regulations, he or she may seize that material
if he or she suspects, on reasonable grounds, that:
(a) it is necessary to seize it in order to prevent its concealment, loss
or destruction; and
(b) it is necessary to seize it without the authority of a search warrant
because the circumstances are serious and urgent.
(4) When an authorised officer exercises a power under this section, he or
she:
(a) may use such assistance as is necessary; and
(b) must search the aircraft, vehicle or vessel in a public place or in
some other place to which members of the public have ready access; and
(c) must not detain the aircraft, vehicle or vessel for longer than is
necessary and reasonable to search it and any container found in or on it;
and
(d) may use such force as is necessary and reasonable in the
circumstances, but must not damage the aircraft, vehicle or vessel or any
container found in or on it by forcing open a part of the aircraft, vehicle or
vessel or container unless:
(i) the person (if any) apparently in charge of the aircraft, vehicle or
vessel has been given a reasonable opportunity to open that part or container;
or
(ii) it is not possible to give that person such an
opportunity.
(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 this Act
or the regulations; and
(b) proceedings against the person by summons would not be
effective.
(2) If an authorised officer (other than a member of a police force who is
in uniform) 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
(b) in any other case—produce his or her identity card for
inspection by that person.
(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.
An authorised officer who arrests a person for an offence against this
Act or the regulations, 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.
An authorised officer who arrests a person for an offence against this
Act or the regulations, 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
this Act or the regulations; 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.
An authorised officer who arrests a person at premises for an offence
against this Act or the regulations, 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
this Act or the regulations; or
(b) an eligible seizable item.
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.
(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.
A person is guilty of 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.
A person must not:
(a) state in a document that purports to be a form of warrant under
section 416 the name of a magistrate unless the magistrate issued the warrant;
or
(b) state on a form of warrant under that section 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 that section 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 that section that is not
the form of warrant that the person purported to execute.
Penalty: Imprisonment for 2 years.
(1) Subject to any contrary order of a court, if a person seizes a thing
under Division 4, 5or 6 the person must return it if:
(a) the reason for its seizure no longer exists or it is decided that it
is not to be used in evidence; or
(b) if the thing was seized under section 429:
(i) the reason for its seizure no longer exists or it is decided that it
is not to be used in evidence; or
(ii) the period of 60 days after its seizure ends;
whichever first occurs;
unless the thing is forfeited or forfeitable to the Commonwealth or is the
subject of a dispute as to ownership.
(2) If a thing is seized by an authorised officer under section 429, at
the end of the 60 days specified in subsection (1), he or she must take
reasonable steps 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) unless:
(a) proceedings in respect of which the thing may afford evidence were
instituted before the end of the 60 days and have not been completed (including
an appeal to a court in relation to those proceedings); or
(b) the authorised officer may retain the thing because of an order under
section 439; or
(c) the 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
or dispose of the thing.
(1) If a thing is seized under section 429, and:
(a) before the end of 60 days after the seizure; or
(b) before the end of a period previously specified in an order of a
magistrate under this section;
proceedings in respect of which the thing may afford evidence have not
commenced, the authorised officer may apply to a magistrate for an order that he
or she may retain the thing for a further period.
(2) If the magistrate is satisfied that it is necessary for the authorised
officer to continue to retain the thing:
(a) for the purposes of an investigation as to whether an offence against
this Act or the regulations has been committed; or
(b) to enable evidence of an offence against this Act or the regulations
to be secured for the purposes of a prosecution;
the magistrate may order that the authorised officer may retain the thing
for a period specified in the order.
(3) Before making the application, the authorised officer must:
(a) take reasonable steps to discover who has an interest in the retention
of the thing; and
(b) if it is practicable to do so, notify each person who the authorised
officer believes to have such an interest in the proposed application.
(4) A function of making an order conferred on a magistrate by this
section is conferred on the magistrate in a personal capacity and not as a court
or a member of a court.
(5) Without limiting the generality of subsection (4), an order made by a
magistrate under this section has effect only by virtue of this Act and is not
taken, by implication, to be made by a court.
(6) A magistrate performing a function of, or connected with, making an
order under this section 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).
(7) The Governor-General may make arrangements with the Governor of a
State, the Chief Minister of the Australian Capital Territory, the Administrator
of the Northern Territory or the Administrator of Norfolk Island for the
performance, by all or any of the persons who from time to time hold office as
magistrates in that State or Territory, of the function of making orders under
this section.
This Part does not affect the law relating to legal professional
privilege.
(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.
(1) Subject to subsection (5), the owner, or person in charge:
(a) of any vehicle, vessel, aircraft or platform boarded by an authorised
officer under section 403; or
(b) of any premises entered by an authorised officer under section
405;
must, if requested by an authorised officer to do so, provide reasonable
assistance to the authorised officer in the performance of the functions, or
carrying out of the duties, or the exercise of the powers, conferred on the
authorised officer under this Act.
(2) A person must not contravene subsection (1).
Penalty: Imprisonment for 12 months.
(3) Subject to subsection (5), the owner, or the person in charge,
of:
(a) premises entered under a warrant; or
(b) an aircraft, vehicle or vessel stopped under section 429;
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 (other than a member of a police force who
is in uniform) 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
(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.
(1) This section applies to any goods that are to be, are being, or have
been, taken on or off a ship that voyages, or an aircraft that flies,
between:
(a) a place in Australia and a place outside Australia; or
(b) a place in an external Territory and a place outside that
Territory.
(2) If an authorised officer believes, on reasonable grounds that goods
are goods to which this section applies, he or she may:
(a) examine the goods; or
(b) if the goods are baggage—open and search the baggage;
or
(c) if the goods are in a container—open and search the
container.
(3) An authorised officer may ask a person who owns, is carrying or is
otherwise associated with, or appears to the authorised officer to be associated
with, goods to which this section applies any question in respect of the
goods.
(4) A person must not refuse or fail to answer a question put to the
person under subsection (3).
Penalty: 60 penalty units.
(5) In this Act:
baggage includes any parcel or other goods that:
(a) a passenger; or
(b) the master, a mate, an engineer or any other member of the crew of a
ship; or
(c) the pilot or any other member of the crew of an aircraft;
has had with him or her on the ship or aircraft.
goods includes baggage.
(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 this Act or the regulations.
(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 is guilty of 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
(b) in any other case—the authorised officer produces his or her
identity card for inspection by the person.
(1) This section applies to any goods, including vehicles, vessels,
aircraft, platforms, documents and organisms.
(2) An authorised officer may seize goods if he or she has reasonable
grounds to suspect that:
(a) the goods have been used or otherwise involved in the commission of an
offence against this Act or the regulations; or
(b) the goods will afford evidence of the commission of an offence against
this Act or the regulations.
(1) Goods seized under section 445 may be retained until:
(a) the end of the period of 60 days after the seizure or the end of such
extended period as is, or such extended periods as are, determined under
subsection (3); or
(b) if:
(i) proceedings for an offence against this Act or the regulations are
instituted within that period; and
(ii) the goods may have been used or otherwise involved in the commission
of the offence or the goods may afford evidence of the commission of the
offence;
the proceedings (including any appeal to a court in relation to those
proceedings) are terminated.
(2) An authorised officer may apply to a magistrate for an extension of
the period during which the authorised officer is entitled to retain particular
goods seized under section 445.
(3) If the magistrate is satisfied that the retention of the goods for an
extended period is warranted, the magistrate may make an order extending the
period during which the goods may be retained. The maximum period of an
individual extension is 30 days.
(4) Subsection (3) does not prevent a magistrate from granting 2 or more
successive extensions under that subsection of the period during which
particular goods may be retained.
(5) A function of making an order conferred on a magistrate by subsection
(3) is conferred on the magistrate in a personal capacity and not as a court or
a member of a court.
(6) Without limiting the generality of subsection (5), an order made by a
magistrate under subsection (3) has effect only by virtue of this Act and is not
taken, by implication, to be made by a court.
(7) A magistrate performing a function of, or connected with, making an
order under subsection (3) has the same protection and immunity as if he or she
were performing that function as, or as a member of, a court (being the court of
which the magistrate is a member).
(8) The Governor-General may make arrangements with the Governor of a
State, the Chief Minister for the Australian Capital Territory, the
Administrator of the Northern Territory or the Administrator of Norfolk Island
for the performance, by all or any of the persons who from time to time hold
office as magistrates in that State or Territory, of the function of making
orders under subsection (3).
If:
(a) goods are seized under section 445; and
(b) apart from this section, the Commonwealth is required to return the
goods to the owner; and
(c) there is no owner or the Secretary cannot, despite making reasonable
efforts, locate the owner;
the Secretary may dispose of the goods in such manner as the Secretary
thinks appropriate.
The Secretary may authorise goods seized under section 445 or anything
in, on or attached to such goods to be released to their owner, or to the person
from whose possession they were 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 their value if they are
forfeited).
(1) If:
(a) a thing is seized under this Division; and
(b) it is reasonably likely that the retention of the thing
would:
(i) constitute a serious threat to the environment; or
(ii) constitute a serious threat to the continued existence, in the wild,
of a particular species of animal or of a particular species of plant;
or
(iii) result in the introduction of an alien species that represents a
threat to ecosystems, habitats or other species; or
(iv) constitute a danger to public health; or
(v) in the case of a live organism—constitute a significant threat
to the health of the organism;
the Secretary may cause the thing to be dealt with in such manner as the
Secretary considers appropriate (including the destruction of the
thing).
(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 Division and giving
the reason for the seizure; and
(e) stating that the thing has been dealt with under subsection (1) and
specifying the manner in which it has been so dealt with and the reason for
doing so; and
(f) setting out the terms of subsection (4).
The notice must be given as soon as practicable after the thing is so dealt
with.
(3) The Secretary need not give a notice under subsection (2) about a
thing if, after making such inquiries as the Secretary thinks appropriate, the
Secretary does not, within 20 days after dealing with the thing, have sufficient
information to enable the notice to be given.
(4) If a thing is dealt with in accordance with subsection (1), the owner
of the thing may bring an action against the Commonwealth in a court of
competent jurisdiction for the recovery of the market value of the thing at the
time it was so dealt with. The action must be brought on the ground that the
thing was not used or otherwise involved in the commission of an offence against
this Act or the regulations.
(1) If a court convicts a person of an offence against this Act or the
regulations, the court may order the forfeiture to the Commonwealth of any thing
used or otherwise involved in the commission of the offence.
(2) A court may make an order under subsection (1) even if the thing has
been seized under this Act.
(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.
(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;
the person must deliver the thing to the Secretary.
(2) A person must not contravene subsection (1).
Penalty: Imprisonment for 2 years.
If a person is authorised under this Part to retain an organism, the
person may do so by causing the organism to be taken to, and kept at, a place
approved by the Secretary for the purpose of keeping organisms seized under this
Division.
(1) If an organism 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;
(b) reasonable costs incurred by the Commonwealth in transporting the
organism;
(c) reasonable costs incurred by the Commonwealth in maintaining the
organism.
(2) If:
(a) an organism is seized under this Division; and
(b) the organism 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.
(3) An amount payable by a person under this section is a debt due by the
person to the Commonwealth.
(4) An amount payable by a person to the Commonwealth under this section
may be recovered by action in a court of competent jurisdiction.
(5) The Secretary may remit an amount payable by a person under this
section.
(6) In addition to its effect apart from this subsection, this section
also has the effect it would have if a liability under this section were, by
express provision, confined to the case of an organism 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.
A person is guilty of an offence punishable upon conviction by
imprisonment for a term not exceeding 2 years if:
(a) the person rescues any goods; and
(b) the goods have been, or are about to be, seized under this
Act.
(1) A person must not:
(a) stave, break or destroy any goods in order to prevent the seizure of
goods, the securing of goods, or the proof of any offence under this Act;
or
(b) destroy any documents relating to any goods in order to prevent the
seizure of goods, the securing of goods, or the proof of any offence under this
Act.
Penalty: Imprisonment for 2 years.
(2) This section applies to vehicles, vessels, aircraft, platforms,
documents and organisms in the same way as it applies to goods.
(1) An authorised officer may exercise in relation to vessels (other than
Australian vessels) and foreign nationals in any place (except the territorial
sea of another country) a power conferred on the authorised officer under
section 403, 406 or 430 if:
(a) one or more authorised officers (whether or not including the
authorised officer exercising the power) have pursued the person or vessel from
a place within the Australian jurisdiction to such a place; and
(b) the pursuit was not terminated or interrupted at any time before the
authorised officer concerned arrived at such a place with a view to exercising
that power.
(2) For the purposes of paragraph (1)(b), a pursuit of a person or vessel
is not taken to be terminated or interrupted only because the authorised officer
or officers concerned lose sight of the person or vessel.
(3) A reference in subsection (2) to losing sight of a person or vessel
includes losing output from a radar or other sensing device.
(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 that the holder has
contravened, or is likely to contravene, a condition of the authority.
(2) The notice must specify:
(a) the matters to be covered by the audit; and
(b) the form of the audit report and the kinds of particulars it is to
contain; and
(c) the date on or before which the report must be given to the
Minister.
(3) Without limiting the matters that may be specified under paragraph
(2)(a), those matters may include all or any of the following:
(a) an evaluation of the nature of the environment that is or will be
affected by the holder’s activities; and
(b) an assessment of the risks to the environment resulting from the
activities; and
(c) an assessment of the holder’s existing capacity to comply with
the authority and the requirements of this Act and the regulations in carrying
on the activities; and
(d) an assessment of what the holder will need to do, or continue to do,
so to comply.
(4) For the purposes of this Act, an environmental authority
is:
(a) an approval under Part 9; or
(b) a permit issued under Chapter 5.
(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.
(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 is guilty of an offence, punishable on conviction by a fine not
exceeding 30 penalty units.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibilities.
(2) If:
(a) an environmental auditor carries out a directed environmental audit;
and
(b) in the course of carrying out the audit, the auditor conceals, or does
not take into account, any information or document; and
(c) the information or document is relevant to the audit;
the auditor is guilty of 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 Division, a directed environmental
audit is an audit required by a notice under section 458.
(1) After completing a directed environmental audit, the environmental
auditor must prepare, and give the holder of the relevant environmental
authority, a written report setting out the results of the audit.
(2) The holder must give the report to the Minister:
(a) on or before the date specified by the Minister under paragraph
458(2)(c); or
(b) on or before such later date as the Minister, on application by the
holder, determines.
(3) If the holder fails to comply with subsection (2), the holder is
guilty of 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 is guilty of 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).
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.
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.
Making conservation orders
(1) The Minister may make a written order (a conservation
order):
(a) prohibiting or restricting specified activities on or in:
(i) all Commonwealth areas; or
(ii) specified Commonwealth areas; or
(b) requiring specified persons to take specified action on or
in:
(i) all Commonwealth areas; or
(ii) specified Commonwealth areas.
Note: Section 470 makes contravening a conservation order an
offence.
Prerequisite to making conservation order
(2) The Minister may only make a conservation order if he or she
reasonably believes that it is necessary to make the order to protect a listed
threatened species or a listed threatened ecological community.
Minister must consider economic and social matters
(3) In considering whether to make a conservation order, the Minister must
be satisfied that making the order is justified, having regard to economic and
social considerations that are consistent with the principles of ecologically
sustainable development.
Minister must consult before making conservation order
(4) Before making a conservation order, the Minister:
(a) must seek the Secretary’s advice on whether it should be made;
and
(b) must consult each Commonwealth agency that may be affected by the
order, and any other Commonwealth agency the Minister thinks appropriate, unless
delay in making the order would result in significant, irreparable damage to a
listed threatened species or listed threatened ecological community.
(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.
(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 environment.
(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.
(1) As soon as practicable after making or reviewing a conservation order,
the Minister must cause the Secretary to be informed of the making of the order,
or the decision on the review, as the case requires.
(2) The Secretary must, as soon as practicable after being so
informed:
(a) cause to be published in the Gazette, in a daily newspaper
circulating in each State or self-governing Territory in which are located
Commonwealth areas to which the order relates and in any other way required by
the regulations, a notice containing:
(i) a copy of the order; and
(ii) a statement to the effect that contravention of the order is an
offence against this Act; and
(iii) if applicable, a statement of the decision on the review;
and
(iv) a statement to the effect that a person affected by the order may
apply to the Minister, within 28 days of the publication (or within such further
period as the Minister allows), for a reconsideration of the order by the
Minister; and
(b) take all reasonable steps to ensure that each person who the Secretary
knows would be affected by the order is given a notice containing:
(i) a copy of the order; and
(ii) if applicable, a statement of the decision on the review;
and
(iii) unless the person is a Commonwealth agency or an agency of a State
or self-governing Territory—a statement to the effect that contravention
of the order is an offence against this Act; and
(iv) a statement to the effect that the person may apply to the Minister,
within 28 days of being given the notice (or within such further period as the
Minister allows), for a reconsideration of the order by the Minister.
(3) Failure to comply with this section does not affect the validity of
the order.
(1) A person affected by a conservation order, or by the decision on a
review of a conservation order, may apply to the Minister to reconsider the
order or the decision, as the case requires.
(2) The application must be in writing.
(3) Subject to subsection (4), the application must be made within 28
days, or within such further period as the Minister allows, after the
publication under paragraph 467(2)(a) of the notice relating to the making of
the order or conduct of the review.
(4) If the person is given a copy of the order after that publication, the
period of 28 days within which that person must make the application is taken to
commence on the day on which the person received the notice.
(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.
(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 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.
(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.
(1) The notice of advice must state whether the Minister thinks that the
proposed action would contravene a conservation order.
(2) If the notice of advice is given to a person who is not a Commonwealth
agency, it must include:
(a) a statement to the effect that, if the person is dissatisfied with the
Minister’s 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.
(1) Applications may be made to the Administrative Appeals Tribunal for
review of the Minister’s decision to give the advice.
(2) Despite section 27 of the Administrative Appeals Tribunal Act
1975, applications are not to be made by or on behalf of Commonwealth
agencies.
(1) On behalf of the Commonwealth, the Secretary may provide assistance to
a person (other than a Commonwealth agency) to comply with prohibitions,
restrictions or requirements imposed on a person by a conservation
order.
(2) The assistance may take any one or more of the following
forms:
(a) payment of money;
(b) provision of goods;
(c) provision of labour;
(d) provision of other services.
(3) The value of the assistance must not exceed that which the Secretary
thinks are the reasonable and direct costs of complying with the prohibitions,
restrictions or requirements in question.
(4) Assistance given under this section must be taken into account in
determining compensation payable under section 519.
Applications for injunctions
(1) If a person has engaged, engages or proposes to engage in conduct
consisting of an act or omission that constitutes an offence or other
contravention of this Act or the regulations:
(a) the Minister; or
(b) an interested person (other than an unincorporated organisation);
or
(c) a person acting on behalf of an unincorporated organisation that is an
interested person;
may apply to the Federal Court for an injunction.
Prohibitory injunctions
(2) If a person has engaged, is engaging or is proposing to engage in
conduct constituting an offence or other contravention of this Act or the
regulations, the Court may grant an injunction restraining the person from
engaging in the conduct.
Additional orders with prohibitory injunctions
(3) If the court grants an injunction restraining a person from engaging
in conduct and in the Court’s opinion it is desirable to do so, the Court
may make an order requiring the person to do something (including repair or
mitigate damage to the environment).
Mandatory injunctions
(4) If a person has refused or failed, or is refusing or failing, or is
proposing to refuse or fail to do an act, and the refusal or failure did, does
or would constitute an offence or other contravention of this Act or the
regulations, the Court may grant an injunction requiring the person to do the
act.
Interim injunctions
(5) Before deciding an application for an injunction under this section,
the Court may grant an interim injunction:
(a) restraining a person from engaging in conduct; or
(b) requiring a person to do an act.
Meaning of interested person—individuals
(6) For the purposes of an application for an injunction relating to
conduct or proposed conduct, an individual is an interested person
if the individual is an Australian citizen or ordinarily resident in Australia
or an external Territory, and:
(a) the individual’s interests have been, are or would be affected
by the conduct or proposed conduct; or
(b) the individual engaged in a series of activities for protection or
conservation of, or research into, the environment at any time in the 2 years
immediately before:
(i) the conduct; or
(ii) in the case of proposed conduct—making the application for the
injunction.
Meaning of interested person—organisations
(7) For the purposes of an application for an injunction relating to
conduct or proposed conduct, an organisation (whether incorporated or not) is an
interested person if it is incorporated (or was otherwise
established) in Australia or an external Territory and one or more of the
following conditions are met:
(a) the organisation’s interests have been, are or would be affected
by the conduct or proposed conduct;
(b) if the application relates to conduct—at any time during the 2
years immediately before the conduct:
(i) the organisation’s objects or purposes included the protection
or conservation of, or research into, the environment; and
(ii) the organisation engaged in a series of activities related to the
protection or conservation of, or research into, the environment;
(c) if the application relates to proposed conduct—at any time
during the 2 years immediately before the making of the application:
(i) the organisation’s objects or purposes included the protection
or conservation of, or research into, the environment; and
(ii) the organisation engaged in a series of activities related to the
protection or conservation of, or research into, the environment.
Applications for injunctions
(1) If a party to a conservation agreement engages or proposes to engage
in conduct consisting of an act or omission that constitutes a contravention of
the agreement, another party to the agreement or the Minister 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 contravening the agreement, the Court may grant an injunction
restraining the person from engaging in the conduct.
Additional orders with prohibitory injunctions
(3) If the court grants an injunction restraining a person from engaging
in conduct and in the Court’s opinion it is desirable to do so, the Court
may make an order requiring the person to do something (including repair or
mitigate damage to the environment).
Mandatory injunctions
(4) If a person has refused or failed, or is refusing or failing, or is
proposing to refuse or fail to do an act, and the refusal or failure was, is or
would be a contravention of the agreement, the Court may grant an injunction
requiring the person to do the act.
Interim injunctions
(5) Before deciding an application for an injunction under this section
the Court may grant an interim injunction:
(a) restraining a person from engaging in conduct; or
(b) requiring a person to do an act.
On application, the Federal Court may discharge or vary an
injunction.
The Federal Court is not to require an applicant for an injunction to
give an undertaking as to damages as a condition of granting an interim
injunction.
Prohibitory injunctions
(1) The Federal Court may grant an injunction restraining a person from
engaging in conduct:
(a) whether or not it appears to the Court that the person intends to
engage again, or to continue to engage, in conduct of that kind; and
(b) whether or not the person has previously engaged in conduct of that
kind; and
(c) whether or not there is a significant risk of injury or damage to
human beings or the environment if the person engages, or continues to engage,
in conduct of that kind.
Mandatory injunctions
(2) The Federal Court may grant an injunction requiring a person to do a
particular act or thing:
(a) whether or not it appears to the Court that the person intends to
refuse or fail again, or to continue to refuse or fail, to do the act or thing;
and
(b) whether or not the person has previously refused or failed to do the
act or thing; and
(c) whether or not there is a significant risk of injury or damage to
human beings or the environment if the person refuses or fails, or continues to
refuse or fail, to do the act or thing.
The powers conferred on the Federal Court by this Division are in
addition to (and do not limit) any other powers of the Court.
Application for order
(1) Within 6 years of a person (the wrongdoer) contravening
a civil penalty provision, the Minister may apply on behalf of the Commonwealth
to the Federal Court for an order that the wrongdoer pay the Commonwealth a
pecuniary penalty.
Court may order wrongdoer to pay pecuniary penalty
(2) If the Court is satisfied that the wrongdoer has contravened a civil
penalty provision, the Court may order the wrongdoer to pay to the Commonwealth
for each contravention the pecuniary penalty that the Court determines is
appropriate (but not more than the relevant amount specified for the
provision).
Determining amount of pecuniary penalty
(3) In determining the pecuniary penalty, the Court must have regard to
all relevant matters, including:
(a) the nature and extent of the contravention; and
(b) the nature and extent of any loss or damage suffered as a result of
the contravention; and
(c) the circumstances in which the contravention took place; and
(d) whether the person has previously been found by the Court in
proceedings under this Act to have engaged in any similar conduct.
Conduct contravening more than one civil penalty provision
(4) If conduct constitutes a contravention of 2 or more civil penalty
provisions, proceedings may be instituted under this Act against a person in
relation to the contravention of any one or more of those provisions. However,
the person is not liable to more than one pecuniary penalty under this section
in respect of the same conduct.
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.
A contravention of a civil penalty provision is not an offence.
(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.
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.
(1) This section applies if it appears to the Minister that a person (the
wrongdoer) may have contravened a civil penalty
provision.
(2) If the Minister, on reasonable grounds, suspects or believes that a
person other than the wrongdoer can give information relevant to an application
for a civil penalty order in relation to the contravention, whether or not such
an application has been made, the Minister may, by writing given to the person,
require the person to give all reasonable assistance in connection with such an
application.
(3) Subsection (2) does not apply in relation to a duly qualified legal
practitioner who is acting, or has acted, for the wrongdoer.
(4) If a person fails to give assistance as required under subsection
(2):
(a) the person contravenes this subsection; and
(b) the Federal Court may, on the application of the Minister, order the
person to comply with the requirement as specified in the order.
(1) This section extends (and does not limit) the meaning of the term
person aggrieved in the Administrative Decisions (Judicial
Review) Act 1977 for the purposes of the application of that Act in relation
to:
(a) a decision made under this Act or the regulations; or
(b) a failure to make a decision under this Act or the regulations;
or
(c) conduct engaged in for the purpose of making a decision under this Act
or the regulations.
(2) An individual is taken to be a person aggrieved by the decision,
failure or conduct if:
(a) the individual is an Australian citizen or ordinarily resident in
Australia or an external Territory; and
(b) at any time in the 2 years immediately before the decision, failure or
conduct, the individual has engaged in a series of activities in Australia or an
external Territory for protection or conservation of, or research into, the
environment.
(3) An organisation or association (whether incorporated or not) is taken
to be a person aggrieved by the decision, failure or conduct if:
(a) the organisation or association is incorporated, or was otherwise
established, in Australia or an external Territory; and
(b) at any time in the 2 years immediately before the decision, failure or
conduct, the organisation or association has engaged in a series of activities
in Australia or an external Territory for protection or conservation of, or
research into, the environment; and
(c) at the time of the decision, failure or conduct, the objects or
purposes of the organisation or association included protection or conservation
of, or research into, the environment.
(4) A term (except person aggrieved) used in this section
and in the Administrative Decisions (Judicial Review) Act 1977 has the
same meaning in this section as it has in that Act.
(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.
(1) A person is guilty of an offence if:
(a) the person provides information in response to a requirement or
request under Part 7, 8, 9 or 13; and
(b) the person is reckless as to whether the information is false or
misleading in a material particular.
Note 1: The fault element in paragraph (1)(b) can be
demonstrated by proof of knowledge. See subsection 5.4(4) of the Criminal
Code.
Note 2: Section 492 provides a defence if the person
informed the recipient that the information was false or misleading and
explained how it was false or misleading.
(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.
(3) Subsection (1) does 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.
(1) A person is guilty of 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 1: The fault element in paragraph (1)(d) can be
demonstrated by proof of knowledge. See subsection 5.4(4) of the Criminal
Code.
Note 2: Section 492 provides a defence if the person
informed the recipient that the information was false or misleading and
explained how it was false or misleading.
(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.
(1) A person is guilty of 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) knowing the information or document is false or misleading in a
material particular.
Note: Section 492 provides a defence if the person informed
the recipient that the information or document was false or misleading and
explained how it was false or misleading.
(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.
Sections 489, 490 and 491 do not apply if the person who provided the
information or document explained to the person to whom the information or
document was provided:
(a) that the information or document was false or misleading;
and
(b) how the information or document was false or misleading.
Note: The defendant bears an evidential burden in relation
to the matter in this section. See subsection 13.3(3) of the Criminal
Code.
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.
(1) If:
(a) a body corporate contravenes a provision of Part 3 that is a civil
penalty provision or section 142; 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.
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 is guilty of 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).
(1) For the purposes of sections 494 and 495, in determining whether an
executive officer of a body corporate failed to take all reasonable steps to
prevent the contravention, a court is to have regard to:
(a) what action (if any) the officer took directed towards ensuring the
following (to the extent that the action is relevant to the
contravention):
(i) that the body arranges regular professional assessments of the
body’s compliance with this Act and the regulations;
(ii) that the body implements any appropriate recommendations arising from
such an assessment;
(iii) that the body has an appropriate system established for managing the
effects of the body’s activities on the environment;
(iv) that the body’s employees, agents and contractors have a
reasonable knowledge and understanding of the requirements to comply with this
Act and the regulations, in so far as those requirements affect the employees,
agents or contractors concerned; and
(b) what action (if any) the officer took when he or she became aware that
the body was contravening:
(i) this Act; or
(ii) the regulations; or
(iii) if the body contravened Part 3 or section 142—any
environmental 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.
(1) The regulations may make provision enabling a person who is alleged to
have committed an offence against the regulations to pay a penalty to the
Commonwealth as an alternative to prosecution.
(2) The penalty must equal one-fifth of the maximum fine that a court
could impose on the person as a penalty for that offence.
(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.
(1) This section applies if the Minister suspects that an act or omission
constitutes a contravention of this Act or the regulations (whether or not the
act or omission is an offence against this Act or the regulations).
(2) On behalf of the Commonwealth, the Minister may cause to be taken such
steps as he or she thinks proper:
(a) to repair or remove any condition that arises from the act or omission
and relates to:
(i) the environment; or
(ii) if the contravention was of a provision of Part 3—the matter
protected by the provision; or
(b) to mitigate any damage that arises from the act or omission and
relates to:
(i) the environment; or
(ii) if the contravention was of a provision of Part 3—the matter
protected by the provision; or
(c) to prevent any damage that is likely to arise from the act or omission
and relates to:
(i) the environment; or
(ii) if the contravention was of a provision of Part 3—the matter
protected by the provision.
(3) If:
(a) a person provided false or misleading information in contravention of
section 489; and
(b) as a result of the contravention the Minister granted an environmental
authority to a person, or set conditions relating to the environmental
authority, unaware of the certainty or likelihood of the action covered by the
authority:
(i) resulting in damage to the environment or to a matter protected by a
provision of Part 3; or
(ii) giving rise to a condition relating to the environment or to a matter
protected by a provision of Part 3; and
(c) the action results in damage to the environment or gives rise to a
condition relating to the environment;
then, for the purposes of this section and section 500, the damage or
condition is taken to arise from the provision of false or misleading
information in contravention of section 489.
(4) This section does not affect the exercise by the Commonwealth or the
Minister of powers under another provision of this Act or under any other
law.
(1) A person (the wrongdoer) who contravenes this Act or the
regulations is liable to pay to another person (the affected
party) who suffers loss or damage arising from the contravention an
amount equal to the other person’s loss or damage.
(2) Without limiting the amount payable under subsection (1), the loss or
damage a person suffers from a contravention of this Act or the regulations
includes the expenses and liabilities (if any) reasonably incurred by the
affected party to:
(a) repair or remove any condition that arises from the act or omission
constituting the contravention and relates to:
(i) the environment; or
(ii) if the contravention was of a provision of Part 3—the matter
protected by the provision; or
(b) mitigate any damage that arises from the act or omission constituting
the contravention and relates to:
(i) the environment; or
(ii) if the contravention was of a provision of Part 3—the matter
protected by the provision; or
(c) prevent any damage likely to arise from the act or omission
constituting the contravention and relates to:
(i) the environment; or
(ii) if the contravention was of a provision of Part 3—the matter
protected by the provision.
Note: This makes the person who contravenes the Act liable
to pay the Commonwealth the expenses reasonably incurred in taking steps under
section 499 in relation to the contravention.
(3) An amount payable under subsection (1) is a debt due to the affected
party, recoverable in a court of competent jurisdiction.
(4) If 2 or more persons are liable under subsection (1) to pay an amount
in respect of the same loss or damage, those persons are jointly and severally
liable to pay the sum.
(5) A finding by a court in criminal proceedings or civil proceedings that
the wrongdoer contravened this Act or the regulations is admissible as evidence
of that fact in proceedings to recover an amount payable under subsection
(1).
(6) This section applies:
(a) whether or not the contravention was an offence; and
(b) whether or not the provision contravened is a civil penalty
provision.
(7) This section does not apply to a decision (or a failure to make a
decision or conduct for the purposes of making a decision) purportedly under
this Act or the regulations that contravenes this Act or the
regulations.
This Division does not affect any other powers or rights under this Act,
the regulations or any other law.
(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.
The functions of the Committee are:
(a) to advise the Minister in accordance with Division 5 of Part 13 in
relation to the making of recovery plans and threat abatement plans;
and
(b) to advise the Minister 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.
(1) The Biological Diversity Advisory Committee is established.
(2) The Minister is to determine in writing the composition of the
Committee, including the qualifications of its members.
(3) The Minister is to appoint the members of the Committee on a part-time
basis, and must appoint one of the members to chair the Committee.
(4) The Minister must ensure that the membership includes members who are
appointed to represent the following:
(a) the body known as the Australian and New Zealand Environment and
Conservation Council;
(b) conservation organisations that are not authorities of the
Commonwealth or of any State or Territory;
(c) the scientific community (including both that part of the scientific
community concerned with marine species and that part of the scientific
community concerned with terrestrial species);
(d) the rural community;
(e) the business community;
(f) the Commonwealth.
(5) The Minister must ensure that, as far as practicable, each one of at
least 5 members:
(a) possess scientific qualifications that the Minister thinks relevant to
the performance of the Committee’s functions; and
(b) is appointed to represent the scientific community and is not
appointed to represent any of the other bodies, groups of bodies or communities
referred to in subsection (4).
(6) The Minister must ensure that a majority of the members are not
persons employed by the Commonwealth or Commonwealth agencies.
The functions of the Committee are:
(a) to advise the Minister, at his or her request, on matters relating to
the conservation and ecologically sustainable use of biological diversity;
and
(b) to perform such other functions as are conferred on the Committee by
this Act or the regulations.
This Division applies to the following Committees:
(a) the Threatened Species Scientific Committee;
(b) the Biological Diversity Advisory Committee.
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.
(1) A member of a Committee is to be paid the remuneration that is
determined by the Remuneration Tribunal. If no determination of that
remuneration by the Tribunal is in operation, the member is to be paid the
remuneration that is prescribed.
(2) A member of a Committee is to be paid the allowances that are
prescribed.
(3) This section has effect subject to the Remuneration Tribunal Act
1973.
Termination when person stops being qualified for
appointment
(1) The appointment of a person to a position of member of a Committee is
terminated when the person ceases to be qualified for appointment to the
position.
Termination for misbehaviour or incapacity
(2) The Minister may terminate the appointment of a member of a Committee
for misbehaviour or physical or mental incapacity.
Termination for failure to attend Committee meetings
(3) The Minister may terminate the appointment of a member of a Committee
if the member is absent, except on leave of absence, from 3 consecutive meetings
of the Committee of which the member has had notice.
Termination for engaging in conflicting work
(4) The Minister may terminate the appointment of a member of a Committee
if the member engages in paid employment that, in the Minister’s opinion,
conflicts or could conflict with the proper performance of the duties of the
member.
Termination for failure to disclose interests
(5) The Minister must terminate the appointment of a member of a Committee
if:
(a) the member does not comply with any requirements prescribed by the
regulations to disclose an interest the member has in a matter being considered
or about to be considered by the Committee; and
(b) the member does not have a reasonable excuse for not
complying.
Termination for bankruptcy or insolvency
(6) The Minister may terminate the appointment of a member of a Committee
if the member:
(a) becomes bankrupt; or
(b) applies to take the benefit of any law for the relief of bankrupt or
insolvent debtors; or
(c) compounds with his or her creditors; or
(d) makes an assignment of his or her remuneration for the benefit of his
or her creditors.
(1) The regulations may provide for:
(a) matters relating to the operation of a Committee, including:
(i) procedures for convening meetings of the Committee; and
(ii) procedures for determining who is to preside at a meeting of the
Committee; and
(iii) determining who may attend a meeting of the Committee; and
(iv) the constitution of a quorum for a meeting of the Committee;
and
(v) procedures relating to a member’s interest in matters being
dealt with by the Committee; and
(vi) the way in which matters are to be resolved by the Committee;
and
(b) the appointment and rights of a deputy of a member of a
Committee.
(2) The regulations may allow a Committee to determine a matter relating
to the operation of the Committee for which the regulations may
provide.
(3) If there are no regulations in force, a Committee may operate in the
way it determines.
(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.
(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.
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.
(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.
(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. 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. The delegate is, in the exercise or performance of a delegated power
or function, subject to the directions of the Secretary.
(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 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.
(1) The Minister may, by instrument in writing, determine that a distinct
population of biological entities is a species for the purposes of this
Act.
(2) A determination is a disallowable instrument for the purposes of
section 46A of the Acts Interpretation Act 1901.
(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.
When compensation is necessary
(1) If, apart from this section, the operation of this Act would result in
an acquisition of property from a person that would be invalid because of
paragraph 51(xxxi) of the Constitution (which deals with acquisition of property
on just terms) the Commonwealth must pay the person a reasonable amount of
compensation.
Definition
(2) In this Act:
acquisition of property has the same meaning as in paragraph
51(xxxi) of the Constitution.
Court can decide amount of compensation
(3) If the Commonwealth and the person do not agree on the amount of
compensation to be paid, the person may apply to the Federal Court for the
recovery from the Commonwealth of a reasonable amount of compensation fixed by
the Court.
Other compensation to be taken into account
(4) In assessing compensation payable by the Commonwealth, the Court must
take into account any other compensation or remedy arising out of the same event
or situation.
(1) The Governor-General may make regulations prescribing all
matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.
(2) The regulations may prescribe penalties for offences against the
regulations. A penalty must not be more than 50 penalty units.
(3) Regulations may be made for and in relation to giving effect to any of
the following agreements:
(a) the Apia Convention;
(b) the Convention for the Protection of the Natural Resources and
Environment of the South Pacific (the SPREP Convention) signed at Noumea on 24
November 1986;
(c) the Bonn Convention;
(d) CAMBA;
(e) JAMBA;
(f) an agreement between the Commonwealth and one or more other countries
relating to whales;
(g) the World Heritage Convention;
(h) the Ramsar Convention;
(i) the Biodiversity Convention;
(j) CITES.
(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.
(5) Subsection (3) does not limit subsection (1).
A fee or charge provided for by or under this Act, and whether prescribed
by the regulations or not, must be reasonably related to the expenses incurred
or to be incurred by the Commonwealth in relation to the matters to which the
fee or charge relates and must not be such as to amount to taxation.
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.
(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).
(2) However, a lawful continuation of a use of land, sea or seabed that
was occurring immediately before the commencement of this Act is not an
action. For this purpose, an enlargement, expansion or
intensification of use is not a continuation of a use.
(1) This section applies to a decision by each of the following kinds of
person (government body):
(a) the Commonwealth; or
(b) a Commonwealth agency; or
(c) a State; or
(d) a self-governing Territory; or
(e) an agency of a State or self-governing Territory; or
(f) an authority established by a law applying in a Territory that is not
a self-governing Territory.
(2) A decision by a government body to grant a governmental authorisation
(however described) for another person to take an action is not an
action.
(3) To avoid doubt, a decision by the Commonwealth or a Commonwealth
agency to grant a governmental authorisation under one of the following Acts is
not an action:
(a) the Customs Act 1901;
(b) the Export Control Act 1982;
(c) the Export Finance and Insurance Corporation Act
1991;
(d) the Fisheries Management Act 1991;
(e) the Foreign Acquisitions and Takeovers Act 1975;
(f) the Petroleum (Submerged Lands) Act 1967;
(g) the Quarantine Act 1908;
(h) the Trade Practices Act 1974.
This subsection does not limit this section.
What is a Commonwealth area?
(1) Each of the following, and any part of it, is a Commonwealth
area:
(a) land owned by the Commonwealth or a Commonwealth agency (including
land owned in Norfolk Island) and airspace over the land;
(b) an area of land held under lease by the Commonwealth or a Commonwealth
agency (including an area held under lease in Norfolk Island) and airspace over
the land;
(c) land in:
(i) an external Territory (except Norfolk Island); or
(ii) the Jervis Bay Territory;
and airspace over the land;
(d) the coastal sea of Australia or an external Territory;
(e) the continental shelf, and the waters and airspace over the
continental shelf;
(f) the waters of the exclusive economic zone, the seabed under those
waters and the airspace above those waters;
(g) any other area of land, sea or seabed that is included in a
Commonwealth reserve.
Territory Land in ACT is not a Commonwealth area
(2) Despite paragraph (1)(a), an area of land that is Territory Land,
within the meaning of the Australian Capital Territory (Planning and Land
Management) Act 1988 is not a Commonwealth area merely because
of that paragraph, unless it is held under lease by the Commonwealth or a
Commonwealth agency.
Coastal waters of States and NT are not Commonwealth areas
(3) Despite paragraphs (1)(d), (e) and (f), none of the following areas
(or parts of them) are Commonwealth areas:
(a) the seabed vested in a State under section 4 of the Coastal Waters
(State Title) Act 1980; and
(b) the seabed vested in the Northern Territory under section 4 of the
Coastal Waters (Northern Territory Title) Act 1980; and
(c) the subsoil under the seabed described in paragraph (a) or (b);
and
(d) any water and airspace over seabed described in paragraph (a) or
(b).
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 Law.
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.
In this Act, unless the contrary intention appears:
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.
agency of a State or self-governing Territory
means:
(a) a Minister of the State or Territory; or
(b) a body corporate established for a public purpose by a law of the
State or Territory; or
(c) a body corporate established by:
(i) the Governor of the State; or
(ii) if the Territory is the Australian Capital Territory—the
Governor-General acting in relation to the Australian Capital Territory;
or
(iii) if the Territory is the Northern Territory or Norfolk
Island—the Administrator of the Territory; or
(iv) a Minister of the State or Territory;
otherwise than by or under a law of the Territory; or
(d) a company in which the whole of the shares or stock, or shares or
stock carrying more than one-half of the voting power, is or are owned by or on
behalf of the State or Territory; or
(e) a body corporate that is a subsidiary of:
(i) a body or company referred to in paragraph (b), (c) or (d);
or
(ii) a body corporate that, because of a previous application or previous
applications of this paragraph, is taken to be an agency of the State or
Territory for the purposes of this definition; or
(f) a person holding, or performing the duties of:
(i) an office established by or under a law of the State or Territory
(except a judicial office or an office of member of a tribunal); or
(ii) an appointment made under a law of the State or Territory (except
appointment to a judicial office or an office of member of a tribunal);
or
(g) a person holding, or performing the duties of, an appointment made
by:
(i) the Governor of the State; or
(ii) if the Territory is the Australian Capital Territory—the
Governor-General acting in relation to the Australian Capital Territory;
or
(iii) if the Territory is the Northern Territory or Norfolk
Island—the Administrator of the Territory; or
(iv) a Minister of the State or Territory;
otherwise than by or under a law of the State or Territory.
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).
Apia Convention means the Convention on Conservation of
Nature in the South Pacific, signed at Apia, Western Samoa, on 12 June 1976, as
in force for Australia immediately before the commencement of this
Act.
Note: The English text of the Convention is set out in
Australian Treaty Series 1990 No. 41.
article includes a substance or a mixture of
substances.
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 IUCN reserve management principles has the meaning
given by subsection 348(1).
Australian jurisdiction has the meaning given by subsection
5(5).
Australian platform has the meaning given by section
403.
Australian Ramsar management principles has the meaning given
by section 335.
Australian vessel has the meaning given by subsection
5(5).
Australian World Heritage management principles has the
meaning given by section 323.
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).
biodiversity means the variability among living organisms
from all sources (including terrestrial, marine and other aquatic ecosystems and
the ecological complexes of which they are part) and includes:
(a) diversity within species and between species; and
(b) diversity of ecosystems.
Biodiversity Convention means the Convention on Biological
Diversity signed at Rio de Janeiro on 5 June 1992, as in force for Australia
immediately before the commencement of this Act.
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.
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 signed at Bonn on 23 June 1979, as in force
for Australia immediately before the commencement of this Act.
Note: The English text of the Convention is set out in
Australian Treaty Series 1991 No. 32.
business day means a day that is not:
(a) a Saturday or a Sunday; or
(b) a public holiday or bank holiday in the place concerned.
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 signed at Canberra on 20 October 1986, as
in force for Australia immediately before the commencement of this
Act.
Note: The English text of the Agreement is set out in
Australian Treaty Series 1988 No. 22.
cetacean means a member of the sub-order Mysticeti or
Odontoceti of the Order Cetacea, and includes a part of such a member and any
product derived from a 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 in force for Australia immediately before the commencement of this
Act.
Note: The English text of the Convention is set out at
Australian Treaty Series 1976 No. 29.
civil penalty provision has the meaning given by section
482.
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.
commissioner means a person holding an appointment under
paragraph 107(1)(a).
Commonwealth agency means:
(a) a Minister; or
(b) a body corporate established for a public purpose by a law of the
Commonwealth; or
(c) a body corporate established by a Minister otherwise than under a law
of the Commonwealth; or
(d) a company in which the whole of the shares or stock, or shares or
stock carrying more than one-half of the voting power, is or are owned by or on
behalf of the Commonwealth; or
(e) a body corporate that is a subsidiary of:
(i) a body or company referred to in paragraph (b), (c) or (d);
or
(ii) a body corporate that, because of a previous application or previous
applications of this paragraph, is taken to be a Commonwealth agency for the
purposes of this definition; or
(f) a person holding, or performing the duties of:
(i) an office established by or under a law of the Commonwealth (except a
judicial office or office of member of a tribunal); or
(ii) an appointment made under a law of the Commonwealth (except an
appointment to a judicial office or office of member of a tribunal);
or
(g) a person holding, or performing the duties of, an appointment made by
the Governor-General, or by a Minister, otherwise than under a law of the
Commonwealth;
but does not include:
(h) a person holding an office established by or under any of the
following Acts, or holding an appointment made under any of them:
(i) the Northern Territory (Self-Government) Act 1978;
(ii) the Norfolk Island Act 1979;
(iii) the Australian Capital Territory (Self-Government) Act 1988;
or
(i) any of the following:
(i) an Aboriginal Land Trust, or an Aboriginal Land Council, established
under the Aboriginal Land Rights (Northern Territory) Act 1976;
(ii) an Aboriginal corporation within the meaning of the Aboriginal
Councils and Associations Act 1976;
(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 land has the meaning given by section
27.
Commonwealth marine area has the meaning given by section
24.
Commonwealth reserve means a reserve declared under Division
4 of Part 15.
Commonwealth ship has the meaning given by section
403.
components of biodiversity has the meaning given by
subsection 171(3).
conservation agreement means an agreement made under section
305.
conservation dependent: a native species may be included in
the conservation dependent category of the list of threatened
native species in accordance with Subdivision A of Division 1 of Part
13.
conservation order means an order made under section 464
(with variations (if any) under section 466 or 469).
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 subsection 523(2).
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.
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.
cultural heritage has the meaning given by subsection
12(4).
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.
declared Ramsar wetland has the meaning given by section
17.
declared World Heritage property has the meaning given by
section 13.
designated proponent of an action means the person designated
under Division 2 of Part 7 as the proponent of the action.
directed environmental audit has the meaning given by
subsection 460(4).
ecological character has the meaning given by subsection
16(3).
ecological community means an assemblage of native species
that:
(a) inhabits a particular area in nature; and
(b) meets the additional criteria specified in the regulations (if any)
made for the purposes of this definition.
ecologically sustainable use of natural resources means use
of the natural resources within their capacity to sustain natural processes
while maintaining the life-support systems of nature and ensuring that the
benefit of the use to the present generation does not diminish the potential to
meet the needs and aspirations of future generations.
ecosystem means a dynamic complex of plant, animal and
micro-organism communities and their non-living environment interacting as a
functional unit.
eligible seizable item means anything that would present a
danger to a person or that could be used to assist a person to escape from
lawful custody.
endangered:
(a) a native species may be included in the endangered
category of the list of threatened native species in accordance with Subdivision
A of Division 1 of Part 13; and
(b) an ecological community may be included in the
endangered category of the list of threatened ecological
communities in accordance with Subdivision A of Division 1 of Part 13.
environment includes:
(a) ecosystems and their constituent parts, including people and
communities; and
(b) natural and physical resources; and
(c) the qualities and characteristics of locations, places and areas;
and
(d) the social, economic and cultural aspects of a thing mentioned in
paragraph (a), (b) or (c).
environmental authority has the meaning given by subsection
458(4).
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, for a warrant, means the person named in
the warrant as being responsible for executing 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.
foreign whaling vessel has the meaning given by subsection
236(5).
forestry operations has the meaning given by subsection
40(2).
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.
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.
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 to whom the
approval applies.
imported in relation to a cetacean or foreign whaling vessel
means brought into the Australian jurisdiction.
indigenous people’s land has the meaning given by
subsection 363(3).
indigenous person has the meaning given by subsection
363(4).
indigenous tradition has the meaning given by section
201.
inspector means:
(a) a person appointed as an inspector under section 396;
(b) a person who is an inspector because of section 397; or
(c) a person who is an inspector because of an arrangement entered into
under section 398.
interested person has the meaning given by section
475.
interfere with a cetacean has the meaning given by subsection
229(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 signed at Tokyo on 6 February 1974,
as in force for Australia immediately before the commencement of this
Act.
Note: The English text of the Agreement is set out in
Australian Treaty Series 1981 No. 6.
jointly managed reserve has the meaning given by subsection
363(5).
Kakadu National Park has the meaning given by subsection
387(3).
Kakadu region has the meaning given by subsection
386(1).
keep a cetacean or member of a listed threatened species,
listed migratory species, listed marine species or listed threatened ecological
community means:
(a) in the case of a cetacean, or a species of animal or community of
animals—have charge or possession of the cetacean or member, either in
captivity or in a domesticated state; and
(b) in the case of a species of plant or community of plants—have
possession of the member.
key threatening process means a threatening process included
in the list referred to in section 183.
land has the meaning given by subsection 345(2).
land council for indigenous people’s land has the
meaning given by subsection 363(2).
large-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.
magistrate means a magistrate who is remunerated by salary or
otherwise.
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 of a listed threatened species, listed migratory
species, listed marine species or listed threatened ecological community,
includes, in the case of a species of animal or community of animals, the whole
or part of the dead body of the member.
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.
native species means a species:
(a) that is indigenous to Australia or an external Territory; or
(b) that is indigenous to the seabed of the coastal sea of Australia or an
external Territory; or
(c) that is indigenous to the continental shelf; or
(d) that is indigenous to the exclusive economic zone; or
(e) members of which periodically or occasionally visit:
(i) Australia or an external Territory; or
(ii) the exclusive economic zone; or
(f) that was present in Australia or an external Territory before
1400.
Note: A reference to Australia or an external Territory
includes a reference to the coastal sea of Australia or the Territory. See
section 15B of the Acts Interpretation Act 1901.
natural heritage has the meaning given by subsection
12(4).
nuclear action has the meaning given by subsection
22(1).
nuclear installation has the meaning given by subsection
22(1).
nuclear reactor 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.
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.
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.
principles of ecologically sustainable development has the
meaning given by subsection 136(3).
radioactive waste has the meaning given by subsection
22(1).
Ramsar Convention means the Convention on Wetlands of
International Importance especially as Waterfowl Habitat adopted by the
International Conference on the Conservation on Wetlands and Waterfowl at
Ramsar, Iran, on 2 February 1971, as in force for Australia immediately before
the commencement of this Act.
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 of a kind referred to in section
267 that has been made or adopted under that section.
regional forest agreement has the meaning given by subsection
38(2).
relevant impacts of an action has the meaning given by
section 82.
reprocessing has the meaning given by subsection
22(1).
RFA forestry operations has the meaning given by subsection
38(2).
RFA region has the meaning given by section 41.
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 to 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.
self-governing Territory means:
(a) the Australian Capital Territory; or
(b) the Northern Territory; or
(c) Norfolk Island.
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
(d) 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.
Note: Determinations under paragraph (d) are disallowable
instruments. See section 517.
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.
terms of reference has the meaning given by paragraph
107(1)(b).
territorial sea means the territorial sea (as defined in the
Seas and Submerged Lands Act 1973) of Australia (including its external
Territories).
threat abatement plan means a plan of a kind referred to in
section 267 that has been made or adopted under that section.
threatening process has the meaning given by subsection
188(3).
trade a cetacean or member of a listed threatened species,
listed migratory species, listed marine species or threatened ecological
community includes:
(a) buy the cetacean or member, agree to receive it under an agreement to
buy, agree to accept it under such an agreement or acquire it by barter;
or
(b) sell the cetacean or 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
(c) export the cetacean or member from Australia or an external Territory
or import it into Australia or an external Territory; or
(d) cause or allow any of the acts referred to in paragraph (a), (b) or
(c) to be done.
traditional owners of indigenous people’s land has the
meaning given by subsection 368(4).
treat a cetacean has the meaning given by subsection
229(4).
Uluru-Kata Tjuta National Park has the meaning
given by subsection 344(3).
Uluru region has the meaning given by subsection
386(2).
usage right has the meaning given by subsection
350(7).
vehicle includes a hovercraft.
vessel means a ship, boat, raft or pontoon or any other thing
capable of carrying persons or goods through or on water and includes a floating
structure and hovercraft.
vulnerable:
(a) a native species may be included in the vulnerable
category of the list of threatened native species in accordance with Subdivision
A of Division 1 of Part 13; and
(b) an ecological community may be included in the
vulnerable category of the list of threatened ecological
communities in accordance with Subdivision A of Division 1 of Part 13.
warden means a person holding an appointment as a warden
under Part 17.
warrant premises means premises in relation to which a
warrant is in force.
wetland has the same meaning as in the Ramsar
Convention.
whale watching has the meaning given by section
238.
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 adopted by the General
Conference of the United Nations Educational, Scientific and Cultural
Organization in Paris on 23 November 1972, as in force for Australia immediately
before the commencement of this Act.
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).