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Texte(s) supplémentaire(s) Volume(s) (1 texte(s)) Volume(s) (1 texte(s)) Anglais Environment Protection and Biodiversity Conservation Act 1999 (consolidated as of October 29, 2018) 1       2      
 Environment Protection and Biodiversity Conservation Act 1999 (consolidated as of October 29, 2018)

Authorised Version C2018C00440 registered 09/11/2018

Environment Protection and Biodiversity

Conservation Act 1999

No. 91, 1999

Compilation No. 52

Compilation date: 29 October 2018

Includes amendments up to: Act No. 12, 2018

Registered: 9 November 2018

This compilation is in 2 volumes

Volume 1: sections 1–266

Volume 2: sections 266B–528

Schedule

Endnotes

Each volume has its own contents

Prepared by the Office of Parliamentary Counsel, Canberra

About this compilation

This compilation

This is a compilation of the Environment Protection and Biodiversity

Conservation Act 1999 that shows the text of the law as amended and in force

on 29 October 2018 (the compilation date).

The notes at the end of this compilation (the endnotes) include information

about amending laws and the amendment history of provisions of the compiled

law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the

compiled law. Any uncommenced amendments affecting the law are accessible

on the Legislation Register (www.legislation.gov.au). The details of

amendments made up to, but not commenced at, the compilation date are

underlined in the endnotes. For more information on any uncommenced

amendments, see the series page on the Legislation Register for the compiled

law.

Application, saving and transitional provisions for provisions and

amendments

If the operation of a provision or amendment of the compiled law is affected by

an application, saving or transitional provision that is not included in this

compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see

the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as

modified but the modification does not amend the text of the law. Accordingly,

this compilation does not show the text of the compiled law as modified. For

more information on any modifications, see the series page on the Legislation

Register for the compiled law.

Self-repealing provisions

If a provision of the compiled law has been repealed in accordance with a

provision of the law, details are included in the endnotes.

Authorised Version C2018C00440 registered 09/11/2018

Authorised Version C2018C00440 registered 09/11/2018

Contents

Chapter 1—Preliminary 1

Part 1—Preliminary 1 1 Short title ...........................................................................................1

2 Commencement.................................................................................1

3 Objects of Act....................................................................................1

3A Principles of ecologically sustainable development ..........................3

4 Act to bind Crown .............................................................................4

5 Application of Act .............................................................................4

6 Extended application of Act to match extended management

of fisheries under the Fisheries Management Act 1991 .....................6

7 Application of the Criminal Code .....................................................8

8 Native title rights not affected ...........................................................8

9 Relationship with other Acts .............................................................8

10 Relationship with State law ...............................................................9

Chapter 2—Protecting the environment 10

Part 2—Simplified outline of this Chapter 10 11 Simplified outline of this Chapter....................................................10

Part 3—Requirements for environmental approvals 11

Division 1—Requirements relating to matters of national

environmental significance 11

Subdivision A—World Heritage 11

12 Requirement for approval of activities with a significant

impact on a declared World Heritage property ................................11

13 What is a declared World Heritage property?.................................12

14 Declaring a property to be a declared World Heritage

property ...........................................................................................12

15 Amending or revoking a declaration of a declared World

Heritage property.............................................................................15

15A Offences relating to declared World Heritage properties.................15

Subdivision AA—National Heritage 17

15B Requirement for approval of activities with a significant

impact on a National Heritage place................................................17

15C Offences relating to National Heritage places .................................19

Subdivision B—Wetlands of international importance 25

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16 Requirement for approval of activities with a significant

impact on a declared Ramsar wetland .............................................25

17 What is a declared Ramsar wetland? ..............................................26

17A Making and revoking declarations of wetlands ...............................26

17B Offences relating to declared Ramsar wetlands ...............................28

Subdivision C—Listed threatened species and communities 29

18 Actions with significant impact on listed threatened species

or endangered community prohibited without approval ..................29

18A Offences relating to threatened species etc. .....................................31

19 Certain actions relating to listed threatened species and listed

threatened ecological communities not prohibited ..........................33

Subdivision D—Listed migratory species 34

20 Requirement for approval of activities with a significant

impact on a listed migratory species................................................34

20A Offences relating to listed migratory species ...................................34

20B Certain actions relating to listed migratory species not

prohibited ........................................................................................36

Subdivision E—Protection of the environment from nuclear

actions 36

21 Requirement for approval of nuclear actions...................................36

22 What is a nuclear action? ................................................................37

22A Offences relating to nuclear actions.................................................39

Subdivision F—Marine environment 41

23 Requirement for approval of activities involving the marine

environment.....................................................................................41

24 What is a Commonwealth marine area?..........................................44

24A Offences relating to marine areas ....................................................44

Subdivision FA—Great Barrier Reef Marine Park 49

24B Requirement for approval of activities in the Great Barrier

Reef Marine Park.............................................................................49

24C Offences relating to Great Barrier Reef Marine Park ......................50

Subdivision FB—Protection of water resources from coal seam

gas development and large coal mining

development 53

24D Requirement for approval of developments with a significant

impact on water resources ...............................................................53

24E Offences relating to water resources................................................55

Subdivision G—Additional matters of national environmental

significance 57

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25 Requirement for approval of prescribed actions ..............................57

Subdivision H—Actions that are taken to be covered by this

Division 59

25A Actions that are taken to be covered by this Division......................59

Subdivision HA—Limitation on liability for actions of third

parties 60

25AA Limitation on liability for actions of third parties............................60

Subdivision I—Evidentiary certificates 62

25B Evidentiary certificates ....................................................................62

25C Certificate to be given to person......................................................63

25D Evidentiary effect of certificate .......................................................63

25E Variation of certificate.....................................................................63

25F Revocation of certificate..................................................................63

Division 2—Protection of the environment from proposals

involving the Commonwealth 65

Subdivision A—Protection of environment from actions involving

Commonwealth land 65

26 Requirement for approval of activities involving

Commonwealth land........................................................................65

27 What is Commonwealth land?.........................................................66

27A Offences relating to Commonwealth land .......................................66

Subdivision AA—Protection of Commonwealth Heritage places

outside the Australian jurisdiction 69

27B Requirement for approval of actions with significant impact

on Commonwealth Heritage places overseas...................................69

27C Offences relating to Commonwealth Heritage places

overseas ...........................................................................................69

Subdivision B—Protection of the environment from

Commonwealth actions 71

28 Requirement for approval of activities of Commonwealth

agencies significantly affecting the environment.............................71

Subdivision C—Actions that are taken to be covered by this

Division 73

28AA Actions that are taken to be covered by this Division......................73

Subdivision D—Limitation on liability for actions of third parties 74

28AB Limitation on liability for actions of third parties............................74

Environment Protection and Biodiversity Conservation Act 1999

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Part 4—Cases in which environmental approvals are not

needed 75

Division 1—Actions covered by bilateral agreements 75

29 Actions declared by agreement not to need approval ......................75

30 Extended operation in State and Northern Territory waters ............76

31 Extended operation in non-self-governing Territories .....................76

Division 2—Actions covered by Ministerial declarations and

accredited management arrangements or accredited

authorisation processes 78

Subdivision A—Effect of declarations 78

32 Actions declared by Minister not to need approval .........................78

Subdivision B—Making declarations 79

33 Making declaration that actions do not need approval under

Part 9 ...............................................................................................79

34 What is matter protected by a provision of Part 3? .........................83

Subdivision C—Prerequisites for making declarations 86

34A Minister may only make declaration if prescribed criteria are

met...................................................................................................86

34B Declarations relating to declared World Heritage properties ...........86

34BA Declarations relating to National Heritage places............................87

34C Declarations relating to declared Ramsar wetlands .........................87

34D Declarations relating to listed threatened species and

ecological communities ...................................................................88

34E Declarations relating to migratory species.......................................89

34F Declarations relating to Commonwealth Heritage places ................90

Subdivision D—Other rules about declarations 91

35 Revoking declarations .....................................................................91

36 Other rules about declarations .........................................................91

36A Minor amendments of accredited management arrangement

or accredited authorisation process..................................................92

Division 3—Actions covered by Ministerial declarations and

bioregional plans 94

Subdivision A—Effect of declarations 94

37 Actions declared by Minister not to need approval .........................94

Subdivision B—Making declarations 94

37A Making declarations that actions do not need approval under

Part 9 ...............................................................................................94

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95Subdivision C—Prerequisites for making declarations

37B General considerations ....................................................................95

37C Minister may make declaration only if prescribed criteria are

met...................................................................................................95

37D Declarations relating to declared World Heritage properties ...........95

37E Declarations relating to National Heritage places............................96

37F Declarations relating to declared Ramsar wetlands .........................96

37G Declarations relating to listed threatened species and

ecological communities ...................................................................97

37H Declarations relating to listed migratory species .............................97

37J No declarations relating to nuclear actions ......................................98

Subdivision D—Other rules about declarations 98

37K Revoking declarations .....................................................................98

37L Other rules about declarations .........................................................98

Division 3A—Actions covered by conservation agreements 100

37M Actions declared by conservation agreement not to need

approval.........................................................................................100

Division 4—Forestry operations in certain regions 101

Subdivision A—Regions covered by regional forest agreements 101

38 Part 3 not to apply to certain RFA forestry operations ..................101

Subdivision B—Regions subject to a process of negotiating a

regional forest agreement 101

39 Object of this Subdivision .............................................................101

40 Forestry operations in regions not yet covered by regional

forest agreements...........................................................................102

41 What is an RFA region?.................................................................103

Subdivision C—Limits on application 104

42 This Division does not apply to some forestry operations .............104

Division 5—Actions in the Great Barrier Reef Marine Park 105

43 Actions taken in accordance with zoning plan...............................105

Division 6—Actions with prior authorisation 106

43A Actions with prior authorisation ....................................................106

43B Actions which are lawful continuations of use of land etc. ...........107

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108Chapter 3—Bilateral agreements

Part 5—Bilateral agreements 108

Division 1—Object of Part 108

44 Object of this Part..........................................................................108

Division 2—Making bilateral agreements 109

Subdivision A—Power to make bilateral agreements 109

45 Minister may make agreement.......................................................109

46 Agreement may declare actions do not need approval under

Part 9 .............................................................................................110

47 Agreement may declare classes of actions do not need

assessment .....................................................................................115

48 Other provisions of bilateral agreements .......................................116

48A Mandatory provisions....................................................................117

49 Certain limits on scope of bilateral agreements .............................119

Subdivision B—Prerequisites for making bilateral agreements 119

49A Consultation on draft agreement....................................................119

50 Minister may only enter into agreement if prescribed criteria

are met ...........................................................................................120

51 Agreements relating to declared World Heritage properties..........120

51A Agreements relating to National Heritage places...........................121

52 Agreements relating to declared Ramsar wetlands ........................121

53 Agreements relating to listed threatened species and

ecological communities .................................................................122

54 Agreements relating to migratory species......................................123

55 Agreements relating to nuclear actions..........................................124

56 Agreements relating to prescribed actions .....................................125

Subdivision C—Minor amendments of bilateral agreements 125

56A Ministerial determination of minor amendments to bilateral

agreements.....................................................................................125

Division 3—Suspending and ending the effect of bilateral

agreements 127

Subdivision A—Suspension and cancellation of effect 127

57 Representations about suspension or cancellation .........................127

58 Consultation before cancellation or suspension.............................128

59 Suspension or cancellation ............................................................128

60 Emergency suspension of effect of bilateral agreement.................130

61 Cancellation during suspension .....................................................131

vi Environment Protection and Biodiversity Conservation Act 1999

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62 Revocation of notice of suspension or cancellation.......................131

63 Cancellation or suspension at request of other party .....................132

64 Cancellation or suspension of bilateral agreement does not

affect certain actions......................................................................133

Subdivision B—Expiry of bilateral agreements 134

65 Expiry and review of bilateral agreements ....................................134

65A Expiry of bilateral agreement does not affect certain actions ........134

Chapter 4—Environmental assessments and

approvals 136

Part 6—Simplified outline of this Chapter 136 66 Simplified outline of this Chapter..................................................136

Part 7—Deciding whether approval of actions is needed 138

Division 1—Referral of proposals to take action 138

67 What is a controlled action?..........................................................138

67A Prohibition on taking controlled action without approval..............138

68 Referral by person proposing to take action ..................................138

68A Actions proposed to be taken under a contract etc.........................139

69 State or Territory may refer proposal to Minister ..........................140

70 Minister may request referral of proposal......................................140

71 Commonwealth agency may refer proposal to Minister ................142

72 Form and content of referrals ........................................................142

73 Informing person proposing to take action of referral ...................142

73A Informing Great Barrier Reef Marine Park Authority of

proposal affecting Great Barrier Reef Marine Park .......................143

74 Inviting provision of information on referred proposal .................143

74A Minister may request referral of a larger action.............................145

74AA Offence of taking action before decision made in relation to

referral etc. ....................................................................................146

Division 1A—Decision that action is clearly unacceptable 149

74B Application of this Division ..........................................................149

74C Informing person proposing to take action that action is

clearly unacceptable ......................................................................149

74D Procedure if Minister is requested to reconsider referral ...............150

Division 2—Ministerial decision whether action needs approval 153

75 Does the proposed action need approval?......................................153

76 Minister may request more information for making decisions ......156

Environment Protection and Biodiversity Conservation Act 1999 vii

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77 Notice and reasons for decision.....................................................157

77A Action to be taken in a particular manner ......................................158

Division 3—Reconsideration of decisions 160

78 Reconsideration of decision...........................................................160

78A Request for reconsideration of decision by person other than

State or Territory Minister .............................................................163

78B Minister must inform interested persons of request and invite

comments ......................................................................................164

78C Minister must reconsider decision and give notice of

outcome .........................................................................................166

79 Reconsideration of decision on request by a State or

Territory ........................................................................................167

Part 8—Assessing impacts of controlled actions 169

Division 1—Simplified outline of this Part 169

80 Simplified outline of this Part........................................................169

Division 2—Application of this Part 170

81 Application ....................................................................................170

82 What are the relevant impacts of an action?..................................170

83 This Part does not apply if action covered by bilateral

agreement ......................................................................................171

84 This Part does not apply if action covered by declaration .............172

Division 3—Decision on assessment approach 175

Subdivision A—Simplified outline of this Division 175

85 Simplified outline of this Division ................................................175

Subdivision B—Deciding on approach for assessment 175

87 Minister must decide on approach for assessment.........................175

88 Timing of decision on assessment approach..................................177

89 Minister may request more information for making decision ........178

90 Directing an inquiry after starting an assessment ..........................179

91 Notice of decision on assessment approach...................................180

Division 3A—Assessment on referral information 181

92 Application of this Division ..........................................................181

93 Recommendation report ................................................................181

Division 4—Assessment on preliminary documentation 183

94 Application of this Division ..........................................................183

95 Direction to publish referral information and invitation to

comment—no further information required...................................183

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95A Direction to publish referral information and invitation to

comment—further information required........................................184

95B Procedure after end of period for comment ...................................185

95C Recommendation report ................................................................186

Division 5—Public environment reports 187

96 Application ....................................................................................187

96A Minister must give designated proponent written guidelines

for preparation of draft public environment report ........................187

96B Standard guidelines .......................................................................188

97 Tailored guidelines ........................................................................188

98 Designated proponent must invite comment on draft public

environment report ........................................................................190

99 Finalising public environment report.............................................191

100 Recommendation report ................................................................192

Division 6—Environmental impact statements 193

101 Application ....................................................................................193

101A Minister must give designated proponent written guidelines

for preparation of draft environmental impact statement...............193

101B Standard guidelines .......................................................................194

102 Tailored guidelines ........................................................................194

103 Designated proponent must invite comment on draft

environmental impact statement ....................................................196

104 Finalising environmental impact statement ...................................197

105 Recommendation report ................................................................198

Division 7—Inquiries 199

Subdivision A—Preliminary 199

106 Simplified outline ..........................................................................199

Subdivision B—Establishment of inquiries 199

107 Appointing commissioners and setting terms of reference ............199

108 Publicising inquiry.........................................................................201

Subdivision C—Conduct of inquiries 201

109 Procedure of inquiries....................................................................201

110 Inquiry to be public .......................................................................202

111 Calling witnesses ...........................................................................202

112 Dealing with witnesses ..................................................................203

113 Dealing with documents given to commission ..............................205

114 Inspections of land, buildings and places ......................................205

115 Entering premises by consent ........................................................206

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116 Entering premises under warrant ...................................................206

117 Warrants by telephone or other electronic means ..........................207

118 Identity cards .................................................................................209

119 Contempt .......................................................................................210

120 Protection of commissioners and witnesses...................................210

Subdivision D—Inquiry reports 212

121 Timing of report ............................................................................212

122 Publication of report ......................................................................213

Subdivision E—Commissioners’ terms and conditions 213

123 Basis of appointment .....................................................................213

124 Remuneration ................................................................................213

125 Leave of absence ...........................................................................214

126 Resignation....................................................................................214

127 Termination of appointment ..........................................................214

128 Disclosure of interests ...................................................................215

129 Other terms and conditions............................................................216

Part 9—Approval of actions 217

Division 1—Decisions on approval and conditions 217

Subdivision A—General 217

131AA Inviting comments before decision from person proposing to

131AB Minister must obtain advice from Independent Expert

Scientific Committee on Coal Seam Gas and Large Coal

130 Timing of decision on approval .....................................................217

131 Inviting comments from other Ministers before decision ..............219

take action and designated proponent ............................................219

Mining Development.....................................................................222

131A Inviting public comment before decision ......................................222

132 Requesting further information for approval decision ...................223

132A Requesting notice from appropriate State or Territory

Minister about certain actions........................................................224

132B Election to have an action management plan approved after

approval of the taking of an action granted ...................................225

133 Grant of approval...........................................................................225

134 Conditions of approval ..................................................................228

134A Inviting public comment before approving action

management plan...........................................................................233

135 Certain approvals and conditions must not give preference ..........233

135A Publication of recommendation reports .........................................234

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Subdivision B—Considerations for approvals and conditions 235

136 General considerations ..................................................................235

137 Requirements for decisions about World Heritage ........................237

137A Requirements for decisions about National Heritage places..........237

138 Requirements for decisions about Ramsar wetlands......................238

139 Requirements for decisions about threatened species and

endangered communities ...............................................................238

140 Requirements for decisions about migratory species.....................239

140A No approval for certain nuclear installations .................................239

Division 2—Requirement to comply with conditions 240

142 Compliance with conditions on approval ......................................240

142A Offence of breaching conditions on approval ................................240

142B Strict liability offence for breach of approval condition ................241

Division 3—Variation of conditions and suspension and

revocation of approvals 243

143 Variation of conditions attached to approval .................................243

143A Variation of action management plan ............................................245

144 Suspension of approval..................................................................246

145 Revocation of approval..................................................................248

145A Reinstating suspended or revoked approval...................................249

Division 4—Transfer of approvals 252

145B Transfer with Minister’s consent ...................................................252

Division 5—Extension of period of effect of approval 254

145C Application to Minister to extend period of effect of

approval.........................................................................................254

145D Minister must decide whether or not to extend approval

period.............................................................................................254

145E Minister may request further information for making

decision..........................................................................................255

Part 10—Strategic assessments 256

Division 1—Strategic assessments generally 256

Subdivision A—Assessment of actions to be taken in accordance

with policy, plan or program 256

146 Minister may agree on strategic assessment ..................................256

Subdivision B—Approval of taking of actions in accordance with

endorsed policy, plan or program 258

146A Definition ......................................................................................258

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146B Minister may approve taking of actions in accordance with

endorsed policy, plan or program ..................................................258

146C Inviting comments from other Ministers before deciding

whether or not to approve taking of actions in accordance

with endorsed policy, plan or program ..........................................260

146D Effect of approval of taking of actions in accordance with

endorsed policy, plan or program ..................................................260

Subdivision C—Considerations for approving taking of actions in

accordance with endorsed policy, plan or program 262

146E Minister must comply with this Subdivision .................................262

146F General considerations ..................................................................262

146G Approvals relating to declared World Heritage properties ............262

146H Approvals relating to National Heritage places .............................263

146J Approvals relating to declared Ramsar wetlands...........................263

146K Approvals relating to listed threatened species and ecological

communities ..................................................................................263

146L Approvals relating to listed migratory species...............................264

146M No approvals relating to nuclear actions........................................264

Division 2—Assessment of Commonwealth-managed fisheries 265

147 Simplified outline of this Division ................................................265

148 Assessment before management plan is determined......................266

149 Assessment before determination that no plan required ................266

150 Assessment of all fisheries without plans must be started

within 5 years ................................................................................267

151 Assessment of all Torres Strait fisheries to be started within

5 years ...........................................................................................268

152 Further assessment if impacts greater than previously

assessed .........................................................................................268

153 Minister must make declaration if he or she endorses plan or

policy.............................................................................................269

154 This Division does not limit Division 1.........................................270

Part 11—Miscellaneous rules about assessments and approvals 271

Division 1—Rules about timing 271

155 This Chapter ceases to apply to lapsed proposals ..........................271

156 General rules about time limits......................................................272

Division 1A—Variation of proposals to take actions 273

156A Request to vary proposal to take an action ....................................273

156B Minister must decide whether or not to accept a varied

proposal .........................................................................................274

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156C Minister may request further information in relation to a

varied proposal ..............................................................................274

156D Effect of Minister’s decision to accept or not accept a varied

proposal .........................................................................................275

156E Notice of decision..........................................................................276

Division 1B—Change of person proposing to take action 277

156F Change of person proposing to take action....................................277

Division 2—Actions in area offshore from a State or the

Northern Territory 279

157 Actions treated as though they were in a State or the

Northern Territory .........................................................................279

Division 3—Exemptions 280

158 Exemptions from Part 3 and this Chapter ......................................280

Division 3A—Approval process decisions not affected by listing

events that happen after section 75 decision made 281

158A Approval process decisions not affected by listing events that

happen after section 75 decision made ..........................................281

Division 4—Application of Chapter to actions that are not

controlled actions 284

Subdivision A—Minister’s advice on authorising actions 284

159 Simplified outline of this Subdivision ...........................................284

160 Requirement to take account of Minister’s advice.........................285

161 Seeking the Minister’s advice........................................................287

161A Minister may decide that advice is not required ............................288

161B Certain provisions of other Acts not to apply if Minister

decides that advice is not required.................................................289

162 Assessment of the action ...............................................................289

163 Providing advice............................................................................290

164 Reporting on response to advice....................................................291

Subdivision C—Assessment under agreement with State or

Territory 291

166 This Subdivision applies if Ministers agree it should ....................291

167 Making an agreement ....................................................................292

168 Content of an agreement................................................................293

169 Application of a Division of Part 8................................................294

170 Application of Subdivision A of Division 1 of Part 10..................296

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Division 5—Publication of information relating to assessments 297

170A Publication of information relating to assessments........................297

170B Information critical to protecting matters of national

environmental significance not to be disclosed .............................298

170BA Designated proponent may request Minister to permit

commercial-in-confidence information not to be disclosed ...........298

Division 6—Withdrawal of referrals 301

170C Withdrawal of referral of proposal to take an action .....................301

Division 7—Miscellaneous 302

170CA Fees ...............................................................................................302

Chapter 5—Conservation of biodiversity and heritage 303

Part 11A—Interpretation 303 170D References to business days are references to Canberra

business days .................................................................................303

Part 12—Identifying and monitoring biodiversity and making

bioregional plans 304

Division 1—Identifying and monitoring biodiversity 304

171 Identifying and monitoring biodiversity ........................................304

172 Inventories of listed threatened species etc. on

Commonwealth land......................................................................305

173 Surveys of cetaceans, listed threatened species etc. in

Commonwealth marine areas ........................................................306

174 Inventories and surveys to be updated ...........................................306

Division 2—Bioregional plans 307

176 Bioregional plans...........................................................................307

177 Obligations under this Act unaffected by lack of bioregional

plans ..............................................................................................308

Part 13—Species and communities 309

Division 1—Listed threatened species and ecological

communities 309

Subdivision A—Listing 309

178 Listing of threatened species .........................................................309

179 Categories of threatened species....................................................310

180 Native species of marine fish.........................................................311

181 Listing of threatened ecological communities ...............................312

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182 Critically endangered, endangered and vulnerable

communities ..................................................................................313

183 Listing of key threatening processes..............................................313

184 Minister may amend lists...............................................................313

186 Amending list of threatened native species ...................................314

187 Amending list of ecological communities .....................................316

188 Amending list of key threatening processes ..................................317

189 Minister must consider advice from Scientific Committee............318

189A Certain information may be kept confidential ...............................319

189B Disclosure of Scientific Committee’s assessments and advice ......320

190 Scientific Committee may provide advice about species or

communities becoming threatened ................................................322

192 Rediscovery of threatened species that were extinct......................322

193 Species posing a serious threat to human health............................322

194 Lists must be publicly available ....................................................323

Subdivision AA—The nomination and listing process

194A Simplified outline ..........................................................................323

194B Definitions.....................................................................................324

194C Meaning of assessment period.......................................................325

194D Minister may determine conservation themes for an

assessment period ..........................................................................325

194E Minister to invite nominations for each assessment period ...........326

194F Minister to give nominations to Scientific Committee ..................327

194G Scientific Committee to prepare proposed priority

assessment list ...............................................................................328

194H Matters to be included in proposed priority assessment list...........330

194J Statement to be given to Minister with proposed priority

assessment list ...............................................................................330

194K The finalised priority assessment list.............................................331

194L Publication of finalised priority assessment list.............................332

194M Scientific Committee to invite comments on items in

finalised priority assessment list ....................................................332

194N Scientific Committee to assess items on finalised priority

assessment list and give assessments to Minister ..........................333

194P Time by which assessments to be provided to Minister ................334

194Q Decision about inclusion of an item in the Subdivision A List......335

194R Scientific Committee may obtain advice .......................................337

194S Co-ordination with Australian Heritage Council—

Committee undertaking assessment...............................................337

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194T Co-ordination with Australian Heritage Council—

Committee given assessment to Minister ......................................339

Subdivision B—Permit system 339

195 Subdivision does not apply to cetaceans........................................339

196 Killing or injuring member of listed threatened species or

community.....................................................................................340

196A Strict liability for killing or injuring member of listed

threatened species or community...................................................340

196B Taking etc. member of listed threatened species or

community.....................................................................................341

196C Strict liability for taking etc. member of listed threatened

species or community ....................................................................342

196D Trading etc. member of listed threatened species or

community taken in Commonwealth area .....................................342

196E Strict liability for trading etc. member of listed threatened

species or community taken in Commonwealth area.....................343

196F Aggravated offence—member of listed threatened species

that is a dugong or turtle ................................................................343

197 Certain actions are not offences.....................................................344

198 Operation of sections 18 and 18A not affected..............................347

199 Failing to notify taking of listed threatened species or listed

ecological community ...................................................................347

200 Application for permits..................................................................348

201 Minister may issue permits............................................................349

202 Conditions of permits ....................................................................350

203 Contravening conditions of a permit .............................................351

204 Authorities under permits ..............................................................351

205 Transfer of permits ........................................................................352

206 Suspension or cancellation of permits ...........................................352

206A Review of decisions about permits ................................................352

207 Fees ...............................................................................................352

Subdivision BA—Protecting critical habitat 353

207A Register of critical habitat..............................................................353

207B Offence of knowingly damaging critical habitat............................354

207C Sale or lease of Commonwealth land containing critical

habitat ............................................................................................354

Subdivision C—Miscellaneous 355

208A Minister may accredit plans, regimes or policies...........................355

208 Regulations....................................................................................356

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357Division 2—Migratory species

Subdivision A—Listing 357

209 Listed migratory species ................................................................357

Subdivision B—Permit system 358

210 Subdivision does not apply to members of listed threatened

species or cetaceans .......................................................................358

211 Killing or injuring member of listed migratory species .................358

211A Strict liability for killing or injuring member of listed

migratory species...........................................................................359

211B Taking etc. member of listed migratory species ............................359

211C Strict liability for taking etc. member of listed migratory

species ...........................................................................................360

211D Trading etc. member of listed migratory species taken in

Commonwealth area ......................................................................360

211E Strict liability for trading etc. member of listed migratory

species taken in Commonwealth area ............................................361

211F Aggravated offence—member of listed migratory species

that is a dugong or turtle ................................................................362

212 Certain actions are not offences.....................................................362

213 Operation of sections 20 and 20A not affected..............................365

214 Failing to notify taking etc. of listed migratory species .................365

215 Application for permits..................................................................367

216 Minister may issue permits............................................................367

217 Conditions of permits ....................................................................368

218 Contravening conditions of a permit .............................................368

219 Authorities under permits ..............................................................369

220 Transfer of permits ........................................................................369

221 Suspension or cancellation of permits ...........................................370

221A Review of decisions about permits ................................................370

222 Fees ...............................................................................................370

Subdivision C—Miscellaneous 370

222A Minister may accredit plans, regimes or policies...........................370

223 Regulations....................................................................................372

Division 3—Whales and other cetaceans 373

Subdivision A—Application of Division 373

224 Application of Division .................................................................373

Subdivision B—Australian Whale Sanctuary and important

cetacean habitat areas 374

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225 Australian Whale Sanctuary ..........................................................374

226 Prescribed waters...........................................................................374

227 Coastal waters................................................................................375

228 Minister may make declaration for coastal waters.........................375

228A Important cetacean habitat areas....................................................376

Subdivision C—Offences 376

229 Killing or injuring a cetacean ........................................................376

229A Strict liability for killing or injuring a cetacean .............................377

229B Intentionally taking etc. a cetacean................................................377

229C Strict liability for taking etc. a cetacean.........................................379

229D Treating cetaceans .........................................................................379

230 Possession of cetaceans .................................................................380

231 Certain actions are not offences.....................................................381

232 Action to be taken on killing etc. cetaceans...................................383

Subdivision E—Miscellaneous offences 385

236 Offences relating to foreign whaling vessels .................................385

Subdivision F—Permit system 386

237 Application for permits..................................................................386

238 Minister may issue permits............................................................386

239 Conditions of permits ....................................................................388

240 Contravening conditions of a permit .............................................388

241 Authorities under permits ..............................................................388

242 Transfer of permits ........................................................................389

243 Suspension or cancellation of permits ...........................................389

243A Review of decisions about permits ................................................390

244 Fees ...............................................................................................390

Subdivision G—Miscellaneous 390

245 Minister may accredit plans, regimes or policies...........................390

246 Vesting of whales in Commonwealth ............................................391

247 Regulations....................................................................................392

Division 4—Listed marine species 393

Subdivision A—Listing 393

248 Listed marine species ....................................................................393

249 Minister may amend list ................................................................393

250 Adding marine species to the list...................................................394

251 Minister must consider advice from Scientific Committee............395

252 Minister to make lists available to the public ................................395

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396Subdivision B—Permit system

253 Subdivision does not apply to members of certain species

and cetaceans.................................................................................396

254 Killing or injuring member of listed marine species......................396

254A Strict liability for killing or injuring member of listed marine

species ...........................................................................................396

254B Taking etc. member of listed marine species.................................397

254C Strict liability for taking etc. member of listed marine species......398

254D Trading etc. member of listed marine species taken in

Commonwealth area ......................................................................398

254E Strict liability for trading etc. member of listed marine

species taken in Commonwealth area ............................................399

254F Aggravated offence—member of listed marine species that is

a dugong or turtle...........................................................................399

255 Certain actions are not offences.....................................................400

256 Failing to notify taking etc. of listed marine wildlife.....................402

257 Application for permits..................................................................404

258 Minister may issue permits............................................................404

259 Conditions of permits ....................................................................405

260 Contravening conditions of a permit .............................................405

261 Authorities under permits ..............................................................406

262 Transfer of permits ........................................................................406

263 Suspension or cancellation of permits ...........................................407

263A Review of decisions about permits ................................................407

264 Fees ...............................................................................................407

Subdivision C—Miscellaneous

265 Minister may accredit plans, regimes or policies...........................407

266 Regulations....................................................................................409

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Preliminary Chapter 1

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Section 1

An Act relating to the protection of the

environment and the conservation of biodiversity,

and for related purposes

Chapter 1—Preliminary

Part 1—Preliminary

1 Short title

This Act may be cited as the Environment Protection and

Biodiversity Conservation Act 1999.

2 Commencement

(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 12 months beginning on the day on which it receives the

Royal Assent, it commences on the first day after the end of that

period.

3 Objects of Act

(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

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(ca) to provide for the protection and conservation of heritage;

and

(d) to promote a co-operative approach to the protection and

management of the environment involving governments, the

community, land-holders and indigenous peoples; and

(e) to assist in the co-operative implementation of Australia’s

international environmental responsibilities; and

(f) to recognise the role of indigenous people in the conservation

and ecologically sustainable use of Australia’s biodiversity;

and

(g) to promote the use of indigenous peoples’ knowledge of

biodiversity with the involvement of, and in co-operation

with, the owners of the knowledge.

(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

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(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

(fa) includes provisions to identify places for inclusion in the

National Heritage List and Commonwealth Heritage List and

to enhance the protection, conservation and presentation of

those places; and

(g) promotes a partnership approach to environmental protection

and biodiversity conservation through:

(i) bilateral agreements with States and Territories; and

(ii) conservation agreements with land-holders; and

(iii) recognising and promoting indigenous peoples’ role in,

and knowledge of, the conservation and ecologically

sustainable use of biodiversity; and

(iv) the involvement of the community in management

planning.

3A Principles of ecologically sustainable development

The following principles are principles of ecologically sustainable

development:

(a) decision-making processes should effectively integrate both

long-term and short-term economic, environmental, social

and equitable considerations;

(b) 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;

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(c) the principle of inter-generational equity—that the present

generation should ensure that the health, diversity and

productivity of the environment is maintained or enhanced

for the benefit of future generations;

(d) the conservation of biological diversity and ecological

integrity should be a fundamental consideration in

decision-making;

(e) improved valuation, pricing and incentive mechanisms

should be promoted.

4 Act to bind Crown

This Act binds the Crown in each of its capacities.

5 Application of Act

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

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(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:

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(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.

6 Extended application of Act to match extended management of

fisheries under the Fisheries Management Act 1991

(1) This section applies if:

(a) under the Fisheries Management Act 1991, a plan of

management in force under that Act applies to particular

fishing activities in a particular area of water; and

(b) the area of water is not within, or is not wholly within:

(i) the Australian jurisdiction; or

(ii) a Commonwealth area; or

(iii) a Commonwealth marine area; and

(c) the area of water is not:

(i) an area of water, 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; or

(ii) an area of water within the limits of a State or the

Northern Territory.

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(2) If, apart from this subsection, a provision of this Act would, or

would not, apply in relation to the fishing activities (or in relation

to fish or other things taken in the course of the activities) because

the area of water mentioned in subsection (1) is not within, or is

not wholly within:

(a) the Australian jurisdiction; or

(b) a Commonwealth area; or

(c) a Commonwealth marine area;

that provision has effect in relation to the fishing activities (and in

relation to fish or other things taken in the course of the activities)

as if the area of water were wholly within:

(d) the Australian jurisdiction; or

(e) a Commonwealth area; or

(f) a Commonwealth marine area;

as the case requires.

Note: This section is subject to subsection 5(3).

Example 1: Fishing activities in an area of water that is not a Commonwealth area

generally do not contravene Part 13. However, because of this

subsection, that Part applies to fishing activities to which this section

applies as if the area of water were within a Commonwealth area. The

fishing activities may therefore contravene that Part.

Example 2: If fish taken in the course of fishing activities in an area of water that

is not within the Australian jurisdiction are brought into Australia, this

generally constitutes an import (being an import by way of

introduction from the sea) of the fish into Australia, which may

contravene Part 13A. However, because of this subsection, that

Part applies to the fish as if the area of water were within the

Australian jurisdiction. The bringing of the fish into Australia

therefore does not constitute an import for the purposes of that Part.

Example 3: This section allows a plan of management to be accredited under

Part 13 in respect of the entire area of water to which the plan relates

(even if some of the area is outside the Australian jurisdiction, a

Commonwealth area or a Commonwealth marine area).

(3) In this section:

fishing has the same meaning as in the Fisheries Management Act

1991.

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7 Application of the Criminal Code

Chapter 2 of the Criminal Code (except Part 2.5) applies to all

offences against this Act.

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

criminal responsibility.

Note 2: Part 2.5 of the Criminal Code (which deals with corporate criminal

responsibility) is excluded from applying to offences against this Act

by subsection 498B(9).

8 Native title rights not affected

(1) 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.

(2) This Act does not affect the operation of:

(a) the Aboriginal Land Rights (Northern Territory) Act 1976; or

(b) the Native Title Act 1993.

9 Relationship with other Acts

Aboriginal Land Rights (Northern Territory) Act 1976

(1A) Subsection 70(1) of the Aboriginal Land Rights (Northern

Territory) Act 1976 does not prevent a person exercising powers or

performing functions or duties under Division 4 or 5 of Part 15, or

Division 5 of Part 19, of this Act from entering or remaining on

land:

(a) in the Kakadu region or Uluru region; and

(b) in which an Aboriginal Land Trust established under that Act

holds an estate in fee simple.

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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.

10 Relationship with State law

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.

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Chapter 2 Protecting the environment

Part 2 Simplified outline of this Chapter

Section 11

Chapter 2—Protecting the environment

Part 2—Simplified outline of this Chapter

11 Simplified outline of this Chapter

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.

Also, an action does not need approval if it is taken in accordance

with Regional Forest Agreements or it is for a purpose for which,

under a zoning plan for a zone made under the Great Barrier Reef

Marine Park Act 1975, the zone may be used or entered without

permission.

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Protecting the environment Chapter 2

Requirements for environmental approvals Part 3

Requirements relating to matters of national environmental significance Division 1

Section 12

Part 3—Requirements for environmental approvals

Division 1—Requirements relating to matters of national

environmental significance

Subdivision A—World Heritage

12 Requirement for approval of activities with a significant impact

on a declared World Heritage property

(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 this section is not a controlling provision for the

action and, if the decision was made because the Minister

believed the action would be taken in a manner specified in

the notice of the decision under section 77, the action is taken

in that manner; 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).

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(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 section:

cultural heritage has the meaning given by the World Heritage

Convention.

natural heritage has the meaning given by the World Heritage

Convention.

13 What is a declared World Heritage property?

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.

14 Declaring a property to be a declared World Heritage property

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:

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(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:

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(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.

Declarations because of threat in force for a year or less

(7) The Minister must not specify that a declaration of a property is to

be in force for more than 12 months if:

(a) the declaration is made in the circumstances described in

paragraph (1)(b); and

(b) the property is not 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.

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15 Amending or revoking a declaration of a declared World

Heritage property

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.

15A Offences relating to declared World Heritage properties

(1) A person commits an offence if:

(a) the person takes an action; and

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(b) the action results or will result in a significant impact on the

world heritage values of a property; and

(c) the property is a declared World Heritage property.

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

criminal responsibility.

(1A) Strict liability applies to paragraph (1)(c).

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

(2) A person commits an offence if:

(a) the person takes an action; and

(b) the action is likely to have a significant impact on the world

heritage values of a property; and

(c) the property is a declared World Heritage property.

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

criminal responsibility.

(2A) Strict liability applies to paragraph (2)(c).

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

(3) An offence against subsection (1) or (2) is punishable on

conviction by imprisonment for a term not more than 7 years, a

fine not more than 420 penalty units, or both.

Note 1: 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.

Note 2: An executive officer of a body corporate convicted of an offence

against this section may also commit an offence against section 495.

Note 3: If a person takes an action on land that contravenes this section, a

landholder may commit an offence against section 496C.

(4) Subsections (1) and (2) do 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

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(c) there is in force a decision of the Minister under Division 2

of Part 7 that this section is not a controlling provision for the

action and, if the decision was made because the Minister

believed the action would be taken in a manner specified in

the notice of the decision under section 77, the action is taken

in that manner; 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).

Note: The defendant bears an evidential burden in relation to the matters in

this subsection. See subsection 13.3(3) of the Criminal Code.

Subdivision AA—National Heritage

15B Requirement for approval of activities with a significant impact

on a National Heritage place

(1) A constitutional corporation, the Commonwealth or a

Commonwealth agency must not take an action that has, will have

or is likely to have a significant impact on the National Heritage

values of a National Heritage place.

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 Territory; or

(d) between 2 Territories;

take an action that has, will have or is likely to have a significant

impact on the National Heritage values of a National Heritage

place.

Civil Penalty:

(a) for an individual—5,000 penalty units;

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(b) for a body corporate—50,000 penalty units.

(3) A person must not take an action in:

(a) a Commonwealth area; or

(b) a Territory;

that has, will have or is likely to have a significant impact on the

National Heritage values of a National Heritage place.

Civil Penalty:

(a) for an individual—5,000 penalty units;

(b) for a body corporate—50,000 penalty units.

(4) A person must not take an action that has, will have or is likely to

have a significant impact on the National Heritage values, to the

extent that they are indigenous heritage values, of a National

Heritage place.

Civil Penalty:

(a) for an individual—5,000 penalty units;

(b) for a body corporate—50,000 penalty units.

Note: For indigenous heritage value, see section 528.

(5) A person must not take an action that has, will have or is likely to

have a significant impact on the National Heritage values of a

National Heritage place in an area in respect of which Australia has

obligations under Article 8 of the Biodiversity Convention.

Civil Penalty:

(a) for an individual—5,000 penalty units;

(b) for a body corporate—50,000 penalty units.

(6) Subsection (5) only applies to actions whose prohibition is

appropriate and adapted to give effect to Australia’s obligations

under Article 8 of the Biodiversity Convention. (However, that

subsection may not apply to certain actions because of

subsection (8).)

(8) Subsections (1) to (5) (inclusive) do not apply to an action if:

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(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 this section is not a controlling provision for the

action and, if the decision was made because the Minister

believed the action would be taken in a manner specified in

the notice of the decision under section 77, the action is taken

in that manner; 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).

15C Offences relating to National Heritage places

(1) A constitutional corporation, or a Commonwealth agency that does

not enjoy the immunities of the Commonwealth, commits an

offence if:

(a) the corporation or agency takes an action; and

(b) the action results or will result in a significant impact on the

heritage values of a place; and

(c) the heritage values are National Heritage values of the place;

and

(d) the place is a National Heritage place.

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

criminal responsibility.

(1A) Strict liability applies to paragraphs (1)(c) and (d).

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

(2) A constitutional corporation, or a Commonwealth agency that does

not enjoy the immunities of the Commonwealth, commits an

offence if:

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(a) the corporation or agency takes an action; and

(b) the action is likely to have a significant impact on the

heritage values of a place; and

(c) the heritage values are National Heritage values of the place;

and

(d) the place is a National Heritage place.

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

criminal responsibility.

(2A) Strict liability applies to paragraphs (2)(c) and (d).

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

(3) A person commits an offence if:

(a) the person takes an action; and

(b) the action is taken for the purposes of trade or commerce:

(i) between Australia and another country; or

(ii) between 2 States; or

(iii) between a State and Territory; or

(iv) between 2 Territories; and

(c) the action results or will result in a significant impact on the

heritage values of a place; and

(d) the heritage values are National Heritage values of the place;

and

(e) the place is a National Heritage place.

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

criminal responsibility.

(3A) Strict liability applies to paragraphs (3)(d) and (e).

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

(4) A person commits an offence if:

(a) the person takes an action; and

(b) the action is taken for the purposes of trade or commerce:

(i) between Australia and another country; or

(ii) between 2 States; or

(iii) between a State and Territory; or

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(iv) between 2 Territories; and

(c) the action is likely to have a significant impact on the

heritage values of a place; and

(d) the heritage values are National Heritage values of the place;

and

(e) the place is a National Heritage place.

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

criminal responsibility.

(4A) Strict liability applies to paragraphs (4)(d) and (e).

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

(5) A person commits an offence if:

(a) the person takes an action; and

(b) the action is taken in:

(i) a Commonwealth area; or

(ii) a Territory; and

(c) the action results or will result in a significant impact on the

heritage values of a place; and

(d) the heritage values are National Heritage values of the place;

and

(e) the place is a National Heritage place.

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

criminal responsibility.

(5A) Strict liability applies to paragraphs (5)(d) and (e).

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

(6) A person commits an offence if:

(a) the person takes an action; and

(b) the action is taken in:

(i) a Commonwealth area; or

(ii) a Territory; and

(c) the action is likely to have a significant impact on the

heritage values of a place; and

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(d) the heritage values are National Heritage values of the place;

and

(e) the place is a National Heritage place.

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

criminal responsibility.

(6A) Strict liability applies to paragraphs (6)(d) and (e).

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

(7) A person commits an offence if:

(a) the person takes an action; and

(b) the action results or will result in a significant impact on the

heritage values, to the extent that they are indigenous

heritage values, of a place; and

(c) the heritage values are National Heritage values of the place;

and

(d) the place is a National Heritage place.

Note 1: For indigenous heritage value, see section 528.

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

criminal responsibility.

(7A) Strict liability applies to paragraphs (7)(c) and (d).

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

(8) A person commits an offence if:

(a) the person takes an action; and

(b) the action is likely to have a significant impact on the

heritage values, to the extent that they are indigenous

heritage values, of a place; and

(c) the heritage values are National Heritage values of the place;

and

(d) the place is a National Heritage place.

Note 1: For indigenous heritage value, see section 528.

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

criminal responsibility.

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(8A) Strict liability applies to paragraphs (8)(c) and (d).

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

(9) A person commits an offence if:

(a) the person takes an action; and

(b) the action results or will result in a significant impact on the

heritage values of a place; and

(ba) the heritage values are National Heritage values of the place;

and

(bb) the place is a National Heritage place; and

(c) the National Heritage place is in an area in respect of which

Australia has obligations under Article 8 of the Biodiversity

Convention.

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

criminal responsibility.

(9A) Strict liability applies to paragraphs (9)(ba), (bb) and (c).

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

(10) A person commits an offence if:

(a) the person takes an action; and

(b) the action is likely to have a significant impact on the

heritage values of a place; and

(ba) the heritage values are National Heritage values of the place;

and

(bb) the place is a National Heritage place; and

(c) the National Heritage place is in an area in respect of which

Australia has obligations under Article 8 of the Biodiversity

Convention.

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

criminal responsibility.

(10A) Strict liability applies to paragraphs (10)(ba), (bb) and (c).

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

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(13) An offence against any of subsections (1) to (10) (inclusive) is

punishable on conviction by imprisonment for a term not more

than 7 years, a fine not more than 420 penalty units, or both.

Note 1: 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.

Note 2: An executive officer of a body corporate convicted of an offence

against this section may also commit an offence against section 495.

Note 3: If a person takes an action on land that contravenes this section, a

landholder may commit an offence against section 496C.

(14) Subsections (9) and (10) only apply to actions whose prohibition is

appropriate and adapted to give effect to Australia’s obligations

under Article 8 of the Biodiversity Convention. (However, those

subsections may not apply to certain actions because of

subsection (16).)

(16) Subsections (1) to (10) (inclusive) do not apply to an action if:

(a) an approval of the taking of the action by the constitutional

corporation, Commonwealth agency or person is in operation

under Part 9 for the purposes of this section; or

(b) Part 4 lets the constitutional corporation, Commonwealth

agency 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 this section is not a controlling provision for the

action and, if the decision was made because the Minister

believed the action would be taken in a manner specified in

the notice of the decision under section 77, the action is taken

in that manner; 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).

Note: The defendant bears an evidential burden in relation to the matters in

this subsection. See subsection 13.3(3) of the Criminal Code.

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Subdivision B—Wetlands of international importance

16 Requirement for approval of activities with a significant impact

on a declared Ramsar wetland

(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 this section is not a controlling provision for the

action and, if the decision was made because the Minister

believed the action would be taken in a manner specified in

the notice of the decision under section 77, the action is taken

in that manner; 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).

(3) In this Act:

ecological character has the same meaning as in the Ramsar

Convention.

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17 What is a declared Ramsar wetland?

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.

17A Making and revoking declarations of wetlands

Declaring threatened wetlands of international importance

(1) 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.

Consulting State or Territory before making declaration

(2) Before the Minister makes a declaration relating to a wetland

wholly or partly within a State or self-governing Territory, the

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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 he or

she is satisfied that the threat mentioned in paragraph (1)(b) 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 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

(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 shorter of the

following periods:

(a) the period the Minister believes the Commonwealth needs to:

(i) decide whether the wetland is of international

significance in terms of ecology, botany, zoology,

limnology or hydrology; and

(ii) designate the wetland for inclusion in the List of

Wetlands of International Importance kept under Article

2 of the Ramsar Convention;

(b) 12 months.

Revocation of declaration of threatened wetland

(7) The Minister must, by notice in the Gazette, revoke a declaration

of a wetland if:

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(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.

17B Offences relating to declared Ramsar wetlands

(1) A person commits an offence if:

(a) the person takes an action; and

(b) the action results or will result in a significant impact on the

ecological character of a wetland; and

(c) the wetland is a declared Ramsar wetland.

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

criminal responsibility.

(1A) Strict liability applies to paragraph (1)(c).

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

(2) A person commits an offence if:

(a) the person takes an action; and

(b) the action is likely to have a significant impact on the

ecological character of a wetland; and

(c) the wetland is a declared Ramsar wetland.

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

criminal responsibility.

(2A) Strict liability applies to paragraph (2)(c).

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

(3) An offence against subsection (1) or (2) is punishable on

conviction by imprisonment for a term not more than 7 years, a

fine not more than 420 penalty units, or both.

Note 1: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body

corporate up to 5 times the maximum amount the court could fine a

person under this subsection.

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Note 2: An executive officer of a body corporate convicted of an offence

against this section may also commit an offence against section 495.

Note 3: If a person takes an action on land that contravenes this section, a

landholder may commit an offence against section 496C.

(4) Subsections (1) and (2) do 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 this section is not a controlling provision for the

action and, if the decision was made because the Minister

believed the action would be taken in a manner specified in

the notice of the decision under section 77, the action is taken

in that manner; 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).

Note: The defendant bears an evidential burden in relation to the matters in

this subsection. See subsection 13.3(3) of the Criminal Code.

Subdivision C—Listed threatened species and communities

18 Actions with significant impact on listed threatened species or

endangered community prohibited without approval

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;

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(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.

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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.

18A Offences relating to threatened species etc.

(1) A person commits an offence if:

(a) the person takes an action; and

(b) the action results or will result in a significant impact on:

(i) a species; or

(ii) an ecological community; and

(c) the species is a listed threatened species, or the community is

a listed threatened ecological community.

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

criminal responsibility.

(1A) Strict liability applies to paragraph (1)(c).

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

(2) A person commits an offence if:

(a) the person takes an action; and

(b) the action is likely to have a significant impact on:

(i) a species; or

(ii) an ecological community; and

(c) the species is a listed threatened species, or the community is

a listed threatened ecological community.

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

criminal responsibility.

(2A) Strict liability applies to paragraph (2)(c).

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

(3) An offence against subsection (1) or (2) is punishable on

conviction by imprisonment for a term not more than 7 years, a

fine not more than 420 penalty units, or both.

Note 1: 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.

Note 2: An executive officer of a body corporate convicted of an offence

against this section may also commit an offence against section 495.

Note 3: If a person takes an action on land that contravenes this section, a

landholder may commit an offence against section 496C.

(4) Subsections (1) and (2) do not apply to an action if:

(a) the listed threatened species subject to the significant impact

(or likely to be subject to the significant impact) is:

(i) a species included in the extinct category of the list

under section 178; or

(ii) a conservation dependent species; or

(b) the listed threatened ecological community subject to the

significant impact (or likely to be subject to the significant

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impact) is an ecological community included in the

vulnerable category of the list under section 181.

Note 1: The defendant bears an evidential burden in relation to the matters in

this subsection. See subsection 13.3(3) of the Criminal Code.

Note 2: Section 19 sets out other defences. The defendant bears an evidential

burden in relation to the matters in that section too. See

subsection 13.3(3) of the Criminal Code.

19 Certain actions relating to listed threatened species and listed

threatened ecological communities not prohibited

(1) A subsection of section 18 or 18A 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 or 18A 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 or 18A 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 the subsection is not a controlling provision for

the action and, if the decision was made because the Minister

believed the action would be taken in a manner specified in

the notice of the decision under section 77, the action is taken

in that manner; 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).

(4) A subsection of section 18 or 18A does not apply to an action, to

the extent that it is covered by subsection 517A(7).

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Subdivision D—Listed migratory species

20 Requirement for approval of activities with a significant impact

on a listed migratory species

(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 this section is not a controlling provision for the

action and, if the decision was made because the Minister

believed the action would be taken in a manner specified in

the notice of the decision under section 77, the action is taken

in that manner; 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).

20A Offences relating to listed migratory species

(1) A person commits an offence if:

(a) the person takes an action; and

(b) the action results or will result in a significant impact on a

species; and

(c) the species is a listed migratory species.

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

criminal responsibility.

(1A) Strict liability applies to paragraph (1)(c).

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

(2) A person commits an offence if:

(a) the person takes an action; and

(b) the action is likely to have a significant impact on a species;

and

(c) the species is a listed migratory species.

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

criminal responsibility.

(2A) Strict liability applies to paragraph (2)(c).

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

(3) An offence against subsection (1) or (2) is punishable on

conviction by imprisonment for a term not more than 7 years, a

fine not more than 420 penalty units, or both.

Note 1: 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.

Note 2: An executive officer of a body corporate convicted of an offence

against this section may also commit an offence against section 495.

Note 3: If a person takes an action on land that contravenes this section, a

landholder may commit an offence against section 496C.

(4) Subsections (1) and (2) do 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 this section is not a controlling provision for the

action and, if the decision was made because the Minister

believed the action would be taken in a manner specified in

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the notice of the decision under section 77, the action is taken

in that manner; 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).

Note: The defendant bears an evidential burden in relation to the matters in

this subsection. See subsection 13.3(3) of the Criminal Code.

20B Certain actions relating to listed migratory species not

prohibited

A subsection of section 20 or 20A does not apply to an action, to

the extent that it is covered by subsection 517A(7).

Subdivision E—Protection of the environment from nuclear

actions

21 Requirement for approval of nuclear actions

(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:

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(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 this section is not a controlling provision for the

action and, if the decision was made because the Minister

believed the action would be taken in a manner specified in

the notice of the decision under section 77, the action is taken

in that manner; 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).

22 What is a nuclear action?

(1) In this Act:

nuclear action means any of the following:

(a) establishing or significantly modifying a nuclear installation;

(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;

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(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 reactor for research or production of nuclear

materials for industrial or medical use (including critical and

sub-critical assemblies);

(b) a plant for preparing or storing fuel for use in a nuclear

reactor as described in paragraph (a);

(c) a nuclear waste storage or disposal facility with an activity

that is greater than the activity level prescribed by regulations

made for the purposes of this section;

(d) a facility for production of radioisotopes with an activity that

is greater than the activity level prescribed by regulations

made for the purposes of this section.

Note: A nuclear waste storage or disposal facility could include a facility for

storing spent nuclear fuel, depending on the regulations.

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.

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22A Offences relating to nuclear actions

(1) A constitutional corporation, or a Commonwealth agency that does

not enjoy the immunities of the Commonwealth, commits an

offence if:

(a) the corporation or agency takes a nuclear action; and

(b) the nuclear action results or will result in a significant impact

on the environment.

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

criminal responsibility.

(2) A constitutional corporation, or a Commonwealth agency that does

not enjoy the immunities of the Commonwealth, commits an

offence if:

(a) the corporation or agency takes a nuclear action; and

(b) the nuclear action is likely to have a significant impact on the

environment and the corporation or agency is reckless as to

that fact.

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

criminal responsibility.

(3) A person commits an offence if:

(a) the person takes a nuclear action; and

(b) the nuclear action is taken 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; and

(c) the nuclear action results or will result in a significant impact

on the environment.

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

criminal responsibility.

(4) A person commits an offence if:

(a) the person takes a nuclear action; and

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(b) the nuclear action is taken 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; and

(c) the nuclear action is likely to have a significant impact on the

environment and the person is reckless as to that fact.

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

criminal responsibility.

(5) A person commits an offence if:

(a) the person takes a nuclear action; and

(b) the nuclear action is taken in a Territory; and

(c) the nuclear action results or will result in a significant impact

on the environment.

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

criminal responsibility.

(6) A person commits an offence if:

(a) the person takes a nuclear action; and

(b) the nuclear action is taken in a Territory; and

(c) the nuclear action is likely to have a significant impact on the

environment and the person is reckless as to that fact.

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

criminal responsibility.

(7) An offence against subsection (1), (2), (3), (4), (5) or (6) is

punishable on conviction by imprisonment for a term not more

than 7 years, a fine not more than 420 penalty units, or both.

Note 1: 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.

Note 2: An executive officer of a body corporate convicted of an offence

against this section may also commit an offence against section 495.

Note 3: If a person takes an action on land that contravenes this section, a

landholder may commit an offence against section 496C.

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(8) Subsections (1), (2), (3), (4), (5) and (6) do 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 this section is not a controlling provision for the

action and, if the decision was made because the Minister

believed the action would be taken in a manner specified in

the notice of the decision under section 77, the action is taken

in that manner; 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).

Note: The defendant bears an evidential burden in relation to the matters in

this subsection. See subsection 13.3(3) of the Criminal Code.

Subdivision F—Marine environment

23 Requirement for approval of activities involving the marine

environment

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:

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(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

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(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 the subsection is not a controlling provision for

the action and, if the decision was made because the Minister

believed the action would be taken in a manner specified in

the notice of the decision under section 77, the action is taken

in that manner; 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).

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 in 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.

Exception—fishing outside Commonwealth marine areas

(6) Subsection (2) does not apply to an action that:

(a) is fishing (as defined in the Fisheries Management Act

1991); and

(b) is permitted under a law of a State or self-governing

Territory.

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24 What is a Commonwealth marine area?

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);

(g) any other area of sea or seabed that is included in a

Commonwealth reserve.

24A Offences relating to marine areas

Actions in Commonwealth marine areas affecting the environment

(1) A person commits an offence if:

(a) the person takes an action; and

(b) the action is taken in a Commonwealth marine area; and

(c) the action results or will result in a significant impact on the

environment.

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Section 24A

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

criminal responsibility.

(1A) Strict liability applies to paragraph (1)(b).

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

Actions in Commonwealth marine areas likely to affect the

environment

(2) A person commits an offence if:

(a) the person takes an action; and

(b) the action is taken in a Commonwealth marine area; and

(c) the action is likely to have a significant impact on the

environment.

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

criminal responsibility.

(2A) Strict liability applies to paragraph (2)(b).

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

Actions outside Commonwealth marine areas affecting those areas

(3) A person commits an offence if:

(a) the person takes an action; and

(b) the action is taken outside a Commonwealth marine area but

in the Australian jurisdiction; and

(c) the action results or will result in a significant impact on the

environment in an area; and

(d) the area is a Commonwealth marine area.

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

criminal responsibility.

(3A) Strict liability applies to paragraphs (3)(b) and (d).

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

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Actions likely to affect environment in Commonwealth marine

areas

(4) A person commits an offence if:

(a) the person takes an action; and

(b) the action is taken outside a Commonwealth marine area but

in the Australian jurisdiction; and

(c) the action is likely to have a significant impact on the

environment in an area; and

(d) the area is a Commonwealth marine area.

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

criminal responsibility.

(4A) Strict liability applies to paragraphs (4)(b) and (d).

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

Fishing with impact in State or Territory waters managed by

Commonwealth

(5) A person commits an offence if:

(a) the person takes an action 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) the action is taken in the coastal waters (as defined in the

Fisheries Management Act 1991) of a State or the Northern

Territory; and

(c) the action results or will result in a significant impact on the

environment in those coastal waters.

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

criminal responsibility.

(5A) Strict liability applies to paragraph (5)(b).

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

Fishing with likely impact in State or Territory waters managed by

Commonwealth

(6) A person commits an offence if:

(a) the person takes an action 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) the action is taken in the coastal waters (as defined in the

Fisheries Management Act 1991) of a State or the Northern

Territory; and

(c) the action is likely to have a significant impact on the

environment in those coastal waters.

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

criminal responsibility.

(6A) Strict liability applies to paragraph (6)(b).

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

Penalties

(7) An offence against subsection (1), (2), (3), (4), (5) or (6) is

punishable on conviction by imprisonment for a term not more

than 7 years, a fine not more than 420 penalty units, or both.

Note 1: 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.

Note 2: An executive officer of a body corporate convicted of an offence

against this section may also commit an offence against section 495.

Note 3: If a person takes an action on land that contravenes this section, a

landholder may commit an offence against section 496C.

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Defences—general

(8) Subsection (1), (2), (3), (4), (5) or (6) 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 the subsection is not a controlling provision for

the action and, if the decision was made because the Minister

believed the action would be taken in a manner specified in

the notice of the decision under section 77, the action is taken

in that manner; 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).

Note: The defendant bears an evidential burden in relation to the matters in

this subsection. See subsection 13.3(3) of the Criminal Code.

Defence—fishing in Commonwealth waters managed by State

(9) Subsections (1) and (2) do not apply to an action if the action:

(a) is fishing (as defined in 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.

Note: The defendant bears an evidential burden in relation to the matters in

this subsection. See subsection 13.3(3) of the Criminal Code.

Defence—fishing outside Commonwealth marine areas

(10) Subsections (3) and (4) do not apply to an action that:

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(a) is fishing (as defined in the Fisheries Management Act

1991); and

(b) is permitted under a law of a State or self-governing

Territory.

Note: The defendant bears an evidential burden in relation to the matters in

this subsection. See subsection 13.3(3) of the Criminal Code.

Subdivision FA—Great Barrier Reef Marine Park

24B Requirement for approval of activities in the Great Barrier

Reef Marine Park

Actions in Great Barrier Reef Marine Park affecting the

environment

(1) A person must not take in the Great Barrier Reef Marine Park 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 Great Barrier Reef Marine Park affecting the

environment in the Marine Park

(2) A person must not take outside the Great Barrier Reef Marine Park

but in the Australian jurisdiction an action that:

(a) has or will have a significant impact on the environment in

the Great Barrier Reef Marine Park; or

(b) is likely to have a significant impact on the environment in

the Great Barrier Reef Marine Park.

Civil penalty:

(a) for an individual—5,000 penalty units;

(b) for a body corporate—50,000 penalty units.

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Exceptions to prohibition

(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) there is in force a decision of the Minister under Division 2

of Part 7 that the subsection is not a controlling provision for

the action and, if the decision was made because the Minister

believed the action would be taken in a manner specified in

the notice of the decision under section 77, the action is taken

in that manner; 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).

Note: Section 28 regulates actions by the Commonwealth or a

Commonwealth agency with a significant impact on the environment.

24C Offences relating to Great Barrier Reef Marine Park

Actions in Great Barrier Reef Marine Park affecting the

environment

(1) A person commits an offence if:

(a) the person takes an action; and

(b) the action is taken in the Great Barrier Reef Marine Park; and

(c) the action results or will result in a significant impact on the

environment.

Penalty: Imprisonment for 7 years or 420 penalty units, or both.

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

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

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Actions in Great Barrier Reef Marine Park likely to affect the

environment

(3) A person commits an offence if:

(a) the person takes an action; and

(b) the action is taken in the Great Barrier Reef Marine Park; and

(c) the action is likely to have a significant impact on the

environment.

Penalty: Imprisonment for 7 years or 420 penalty units, or both.

(4) Strict liability applies to paragraph (3)(b).

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

Actions outside Great Barrier Reef Marine Park affecting

environment in the Marine Park

(5) A person commits an offence if:

(a) the person takes an action; and

(b) the action is taken outside the Great Barrier Reef Marine

Park but in the Australian jurisdiction; and

(c) the action results in or will result in a significant impact on

the environment in an area; and

(d) the area is the Great Barrier Reef Marine Park.

Penalty: Imprisonment for 7 years or 420 penalty units, or both.

(6) Strict liability applies to paragraphs (5)(b) and (d).

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

Actions outside Great Barrier Reef Marine Park likely to affect

environment in the Marine Park

(7) A person commits an offence if:

(a) the person takes an action; and

(b) the action is taken outside the Great Barrier Reef Marine

Park but in the Australian jurisdiction; and

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(c) the action is likely to have a significant impact on the

environment in an area; and

(d) the area is the Great Barrier Reef Marine Park.

Penalty: Imprisonment for 7 years or 420 penalty units, or both.

(8) Strict liability applies to paragraphs (7)(b) and (d).

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

Defences

(9) Subsection (1), (3), (5) or (7) 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 the subsection is not a controlling provision for

the action and, if the decision was made because the Minister

believed the action would be taken in a manner specified in

the notice of the decision under section 77, the action is taken

in that manner; 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).

Note: The defendant bears an evidential burden in relation to the matters in

this subsection. See subsection 13.3(3) of the Criminal Code.

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Subdivision FB—Protection of water resources from coal seam

gas development and large coal mining development

24D Requirement for approval of developments with a significant

impact on water resources

(1) A constitutional corporation, the Commonwealth or a

Commonwealth agency must not take an action if:

(a) the action involves:

(i) coal seam gas development; or

(ii) large coal mining development; and

(b) the action:

(i) has or will have a significant impact on a water

resource; or

(ii) is likely to have a significant impact on a water

resource.

Civil penalty:

(a) for an individual—5,000 penalty units;

(b) for a body corporate—50,000 penalty units.

(2) A person must not take an action if:

(a) the action involves:

(i) coal seam gas development; or

(ii) large coal mining development; and

(b) the action is taken for the purposes of trade or commerce:

(i) between Australia and another country; or

(ii) between 2 States; or

(iii) between a State and Territory; or

(iv) between 2 Territories; and

(c) the action:

(i) has or will have a significant impact on a water

resource; or

(ii) is likely to have a significant impact on a water

resource.

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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 an action if:

(a) the action involves:

(i) coal seam gas development; or

(ii) large coal mining development; and

(b) the action is taken in:

(i) a Commonwealth area; or

(ii) a Territory; and

(c) the action:

(i) has or will have a significant impact on a water

resource; or

(ii) is likely to have a significant impact on a water

resource.

Civil penalty:

(a) for an individual—5,000 penalty units;

(b) for a body corporate—50,000 penalty units.

(4) Subsections (1) to (3) do not apply to an action if:

(a) an approval of the taking of the action by the constitutional

corporation, Commonwealth, Commonwealth agency or

person is in operation under Part 9 for the purposes of this

section; or

(b) Part 4 lets the constitutional corporation, Commonwealth,

Commonwealth agency 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 this section is not a controlling provision for the

action and, if the decision was made because the Minister

believed the action would be taken in a manner specified in

the notice of the decision under section 77, the action is taken

in that manner; or

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(d) the action is an action described in subsection 160(2) (which

describes actions whose authorisation is subject to a special

environmental assessment process).

(5) A person who wishes to rely on subsection (4) in proceedings for a

contravention of a civil penalty provision bears an evidential

burden in relation to the matters in that subsection.

24E Offences relating to water resources

(1) A constitutional corporation, or a Commonwealth agency that does

not enjoy the immunities of the Commonwealth, commits an

offence if:

(a) the corporation or agency takes an action involving:

(i) coal seam gas development; or

(ii) large coal mining development; and

(b) the action:

(i) results or will result in a significant impact on a water

resource; or

(ii) is likely to have a significant impact on a water

resource.

Penalty: Imprisonment for 7 years or 420 penalty units, or both.

Note 1: An executive officer of a body corporate convicted of an offence

against this subsection may also commit an offence against

section 495.

Note 2: If a person takes an action on land that contravenes this subsection, a

landholder may commit an offence against section 496C.

(2) A person commits an offence if:

(a) the person takes an action involving:

(i) coal seam gas development; or

(ii) large coal mining development; and

(b) the action is taken for the purposes of trade or commerce:

(i) between Australia and another country; or

(ii) between 2 States; or

(iii) between a State and Territory; or

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(iv) between 2 Territories; and

(c) the action:

(i) has or will have a significant impact on a water

resource; or

(ii) is likely to have a significant impact on a water

resource.

Penalty: Imprisonment for 7 years or 420 penalty units, or both.

Note 1: An executive officer of a body corporate convicted of an offence

against this subsection may also commit an offence against

section 495.

Note 2: If a person takes an action on land that contravenes this subsection, a

landholder may commit an offence against section 496C.

(3) A person commits an offence if:

(a) the person takes an action involving:

(i) coal seam gas development; or

(ii) large coal mining development; and

(b) the action is taken in:

(i) a Commonwealth area; or

(ii) a Territory; and

(c) the action:

(i) has or will have a significant impact on a water

resource; or

(ii) is likely to have a significant impact on a water

resource.

Penalty: Imprisonment for 7 years or 420 penalty units, or both.

Note 1: An executive officer of a body corporate convicted of an offence

against this subsection may also commit an offence against

section 495.

Note 2: If a person takes an action on land that contravenes this subsection, a

landholder may commit an offence against section 496C.

(4) Subsections (1) to (3) do not apply to an action if:

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(a) an approval of the taking of the action by the constitutional

corporation, Commonwealth agency or person is in operation

under Part 9 for the purposes of this section; or

(b) Part 4 lets the constitutional corporation, Commonwealth

agency 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 this section is not a controlling provision for the

action and, if the decision was made because the Minister

believed the action would be taken in a manner specified in

the notice of the decision under section 77, the action is taken

in that manner; 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).

Note: The defendant bears an evidential burden in relation to the matters in

subsection (4). See subsection 13.3(3) of the Criminal Code.

Subdivision G—Additional matters of national environmental

significance

25 Requirement for approval of prescribed actions

(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 this section is not a controlling provision for the

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action and, if the decision was made because the Minister

believed the action would be taken in a manner specified in

the notice of the decision under section 77, the action is taken

in that manner; 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).

(3) Before the Governor-General makes regulations prescribing an

action for the purposes of subsection (1), the Minister (the

Environment Minister) must:

(a) inform the appropriate Minister of each State and

self-governing Territory of the proposal to prescribe:

(i) the action; and

(ii) a thing as matter protected by this section in relation to

the action; and

(b) invite the appropriate Minister of each State and

self-governing Territory to give the Environment Minister

comments on the proposal within a specified period of at

least 28 days; and

(c) consider the comments (if any); and

(d) if comments have been given as described in paragraph (b)—

take all reasonable steps to consult the appropriate Minister

of each State and self-governing Territory with a view to

agreeing on:

(i) the action to be prescribed; and

(ii) the thing to be prescribed as matter protected by this

section in relation to the action.

Note: Section 34 provides that the matter protected by this section is a thing

prescribed by the regulations in relation to the action.

(3A) To avoid doubt, regulations may be made for the purposes of this

section even if no agreement is reached on the matters described in

paragraph (3)(d).

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(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 obligations under an agreement with one or more

other countries.

(6) Regulations prescribing an action whose regulation is appropriate

and adapted to give effect to Australia’s obligations under an

agreement with one or more countries must specify the agreement.

Subdivision H—Actions that are taken to be covered by this

Division

25A Actions that are taken to be covered by this Division

(1) The regulations may provide that a specified action is taken to be

an action to which a specified regulatory provision applies.

Note: For specification by class, see subsection 13(3) of the Legislation Act

2003.

(2) To avoid doubt, if, as a result of a regulation made for the purposes

of subsection (1), a regulatory provision applies to an action, the

action is taken to be described in the provision.

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(3) Regulations made for the purposes of subsection (1) may only

specify actions:

(a) taken in a Territory; 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 obligations under an agreement with one or more

other countries.

(4) Regulations specifying an action whose regulation is appropriate

and adapted to give effect to Australia’s obligations under an

agreement with one or more countries must specify the agreement.

(5) In this section:

regulatory provision means:

(a) a civil penalty provision set out in this Division; or

(b) a provision of this Division that creates an offence.

Subdivision HA—Limitation on liability for actions of third

parties

25AA Limitation on liability for actions of third parties

(1) A provision mentioned in subsection (2) or (3) does not apply to an

action (the primary action) if:

(a) a person (the primary person) takes the action; and

(b) as a consequence of the primary action, another person (the

secondary person) takes another action (the secondary

action); and

(c) the secondary action is not taken at the direction or request of

the primary person; and

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(d) the significant impact referred to in the provision is a

consequence of the secondary action.

Defence to offences

(2) For the purposes of subsection (1), the following provisions do not

apply to the primary action:

(a) subsections 15A(1) and (2);

(b) subsections 15C(1) to (10);

(c) subsections 17B(1) and (2);

(d) subsections 18A(1) and (2);

(e) subsections 20A(1) and (2);

(f) subsections 22A(1) to (6);

(g) subsections 24A(1) to (6);

(h) subsections 24C(1), (3), (5) and (7);

(i) subsections 24E(1) to (3).

Note: The defendant bears an evidential burden in relation to the matters in

this subsection. See subsection 13.3(3) of the Criminal Code.

Exception to civil penalties

(3) For the purposes of subsection (1), the following provisions do not

apply to the primary action:

(a) subsection 12(1);

(b) subsections 15B(1) to (5) and (7);

(c) subsection 16(1);

(d) subsections 18(1) to (6);

(e) subsection 20(1);

(f) subsections 21(1) to (3);

(g) subsections 23(1) to (3);

(ga) subsections 24B(1) and (2);

(gb) subsections 24D(1) to (3);

(h) subsection 25(1).

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Section 25B

Subdivision I—Evidentiary certificates

25B Evidentiary certificates

Contravention

(1) The Minister may issue a written certificate:

(a) stating that a specified person has contravened, or is

contravening, a specified civil penalty provision set out in

this Division; and

(b) setting out particulars of that contravention.

(2) The Minister may issue a certificate under subsection (1) relating

to a particular contravention if the Minister has reason to believe

that the person concerned has committed, or is committing, the

contravention.

(3) To avoid doubt, a certificate under subsection (1) may be issued

even if any relevant proceedings under section 475, 480A, 480K or

481 have been instituted.

Proposal

(4) The Minister may issue a written certificate stating that, if a

specified person were to carry out a proposal to engage in specified

conduct, that conduct would contravene a specified civil penalty

provision set out in this Division.

(5) The Minister may issue a certificate under subsection (4) if the

Minister has reason to believe that:

(a) the person proposes to engage in the conduct concerned; and

(b) the conduct would contravene the civil penalty provision

concerned.

(6) To avoid doubt, a certificate under subsection (4) may be issued

even if any relevant proceedings under section 475 have been

instituted.

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25C Certificate to be given to person

As soon as practicable after issuing a certificate under

subsection 25B(1) or (4), the Minister must give a copy of the

certificate to the person concerned.

25D Evidentiary effect of certificate

(1) In any proceedings under section 475, 480A, 480K or 481, a

certificate under subsection 25B(1) is prima facie evidence of the

matters in the certificate.

(2) In any proceedings under section 475, a certificate under

subsection 25B(4) is prima facie evidence of the matters in the

certificate.

(3) A document purporting to be a certificate under subsection 25B(1)

or (4) must, unless the contrary is established, be taken to be such a

certificate and to have been properly issued.

(4) The Minister may certify that a document is a copy of a certificate

under subsection 25B(1) or (4).

(5) This section applies to the certified copy as if it were the original.

25E Variation of certificate

(1) The Minister may vary a certificate under subsection 25B(1) or (4)

so long as the variation is of a minor nature.

(2) If a certificate is varied, the Minister must give the person

concerned a written notice setting out the terms of the variation.

25F Revocation of certificate

(1) The Minister may revoke a certificate under subsection 25B(1) or

(4).

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(2) If a certificate is revoked, the Minister must give the person

concerned a written notice stating that the certificate has been

revoked.

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Division 2—Protection of the environment from proposals

involving the Commonwealth

Subdivision A—Protection of environment from actions

involving Commonwealth land

26 Requirement for approval of activities involving Commonwealth

land

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

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(b) Part 4 lets the person take the action without an approval

under Part 9 for the purposes of the subsection; or

(d) there is in force a decision of the Minister under Division 2

of Part 7 that the subsection is not a controlling provision for

the action and, if the decision was made because the Minister

believed the action would be taken in a manner specified in

the notice of the decision under section 77, the action is taken

in that manner; 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

(f) the person taking the action is the Commonwealth or a

Commonwealth agency.

Note 1: This section protects (among other things) the Commonwealth

Heritage values of a Commonwealth Heritage place on

Commonwealth land, because the heritage values of a place are part of

the environment. See the definition of environment in section 528.

Note 2: Section 28 regulates actions by the Commonwealth or a

Commonwealth agency with a significant impact on the environment.

27 What is Commonwealth land?

Commonwealth land is so much of a Commonwealth area as is not

a Commonwealth marine area.

27A Offences relating to Commonwealth land

(1) A person commits an offence if:

(a) the person takes an action; and

(b) the action is taken on Commonwealth land; and

(c) the action results or will result in a significant impact on the

environment.

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

criminal responsibility.

(1A) Strict liability applies to paragraph (1)(b).

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

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(2) A person commits an offence if:

(a) the person takes an action; and

(b) the action is taken on Commonwealth land; and

(c) the action is likely to have a significant impact on the

environment.

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

criminal responsibility.

(2A) Strict liability applies to paragraph (2)(b).

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

(3) A person commits an offence if:

(a) the person takes an action; and

(b) the action is taken outside Commonwealth land but in the

Australian jurisdiction; and

(c) the action results or will result in a significant impact on the

environment in an area; and

(d) the area is Commonwealth land.

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

criminal responsibility.

(3A) Strict liability applies to paragraphs (3)(b) and (d).

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

(4) A person commits an offence if:

(a) the person takes an action; and

(b) the action is taken outside Commonwealth land but in the

Australian jurisdiction; and

(c) the action is likely to have a significant impact on the

environment in an area; and

(d) the area is Commonwealth land.

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

criminal responsibility.

(4A) Strict liability applies to paragraphs (4)(b) and (d).

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

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(5) An offence against subsection (1), (2), (3) or (4) is punishable on

conviction by imprisonment for a term not more than 2 years, a

fine not more than 120 penalty units, or both.

Note 1: 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.

Note 2: An executive officer of a body corporate convicted of an offence

against this section may also commit an offence against section 495.

Note 3: If a person takes an action on land that contravenes this section, a

landholder may commit an offence against section 496C.

(6) Subsection (1), (2), (3) or (4) 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 the subsection is not a controlling provision for

the action and, if the decision was made because the Minister

believed the action would be taken in a manner specified in

the notice of the decision under section 77, the action is taken

in that manner; 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

(e) the person taking the action is a Commonwealth agency.

Note 1: The defendant bears an evidential burden in relation to the matters in

this subsection. See subsection 13.3(3) of the Criminal Code.

Note 2: This section protects (among other things) the Commonwealth

Heritage values of a Commonwealth Heritage place on

Commonwealth land, because the heritage values of a place are part of

the environment. See the definition of environment in section 528.

Note 3: Section 28 regulates actions by the Commonwealth or a

Commonwealth agency with a significant impact on the environment.

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Subdivision AA—Protection of Commonwealth Heritage places

outside the Australian jurisdiction

27B Requirement for approval of actions with significant impact on

Commonwealth Heritage places overseas

(1) A person must not take outside the Australian jurisdiction an action

that has, will have or is likely to have a significant impact on the

environment in a Commonwealth Heritage place outside the

Australian jurisdiction.

Civil Penalty:

(a) for an individual—1,000 penalty units;

(b) for a body corporate—10,000 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 this section is not a controlling provision for the

action and, if the decision was made because the Minister

believed the action would be taken in a manner specified in

the notice of the decision under section 77, the action is taken

in that manner; 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).

Note: Subdivision F of Division 1 and Subdivision A of this Division protect

the environment in Commonwealth Heritage places inside the

Australian jurisdiction because those places are in Commonwealth

marine areas or on Commonwealth land.

27C Offences relating to Commonwealth Heritage places overseas

(1) A person commits an offence if:

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(a) the person takes an action; and

(b) the action is taken outside the Australian jurisdiction; and

(c) the action results or will result in a significant impact on the

environment in a place; and

(ca) the place is a Commonwealth Heritage place; and

(d) the place is outside the Australian jurisdiction.

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

criminal responsibility.

(1A) Strict liability applies to paragraph (1)(ca).

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

(2) A person commits an offence if:

(a) the person takes an action; and

(b) the action is taken outside the Australian jurisdiction; and

(c) the action is likely to have a significant impact on the

environment in a place; and

(d) the place is a Commonwealth Heritage place; and

(e) the place is outside the Australian jurisdiction.

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

criminal responsibility.

(2A) Strict liability applies to paragraph (2)(d).

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

(3) An offence against subsection (1) or (2) is punishable on

conviction by imprisonment for a term not more than 2 years, a

fine not more than 120 penalty units, or both.

Note 1: 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.

Note 2: An executive officer of a body corporate convicted of an offence

against this section may also commit an offence against section 495.

(4) Section 14.1 (standard geographical jurisdiction) of the Criminal

Code does not apply to an offence created by this section.

Note: Section 5 affects the extra-territorial operation of this section.

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(5) Subsections (1) and (2) do 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 this section is not a controlling provision for the

action and, if the decision was made because the Minister

believed the action would be taken in a manner specified in

the notice of the decision under section 77, the action is taken

in that manner; 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).

Note: The defendant bears an evidential burden in relation to the matters in

this subsection. See subsection 13.3(3) of the Criminal Code.

Subdivision B—Protection of the environment from

Commonwealth actions

28 Requirement for approval of activities of Commonwealth

agencies significantly affecting the environment

(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 1: This section protects (among other things) the Commonwealth

Heritage values of a Commonwealth Heritage place from an action

taken by the Commonwealth or a Commonwealth agency, because the

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heritage values of a place are part of the environment. See the

definition of environment in section 528.

Note 2: This section 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 this section is not a controlling provision for the

action and, if the decision was made because the Minister

believed the action would be taken in a manner specified in

the notice of the decision under section 77, the action is taken

in that manner; 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).

(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:

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(a) in taking the actions to which the declaration relates, the

agency must comply with the law of a State or Territory

(including a law of a State that is applied to a

Commonwealth place by virtue of the Commonwealth Places

(Application of Laws) Act 1970), that has either or both of the

following objects (whether express or implied):

(i) to protect the environment;

(ii) to promote the conservation and ecologically

sustainable use of natural resources; and

(b) the impacts that the actions have, will have or are likely to

have on the environment, are adequately addressed under the

State or Territory law.

Subdivision C—Actions that are taken to be covered by this

Division

28AA Actions that are taken to be covered by this Division

(1) The regulations may provide that a specified action is taken to be

an action to which a specified regulatory provision applies.

Note: For specification by class, see subsection 13(3) of the Legislation Act

2003.

(2) To avoid doubt, if, as a result of a regulation made for the purposes

of subsection (1), a regulatory provision applies to an action, the

action is taken to be described in the provision.

(3) In this section:

regulatory provision means:

(a) a civil penalty provision set out in this Division; or

(b) a provision of this Division that creates an offence.

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Subdivision D—Limitation on liability for actions of third

parties

28AB Limitation on liability for actions of third parties

(1) A provision mentioned in subsection (2) or (3) does not apply to an

action (the primary action) if:

(a) a person (the primary person) takes the action; and

(b) as a consequence of the primary action, another person (the

secondary person) takes another action (the secondary

action); and

(c) the secondary action is not taken at the direction or request of

the primary person; and

(d) the significant impact referred to in the provision is a

consequence of the secondary action.

Defence to offences

(2) For the purposes of subsection (1), the following provisions do not

apply to the primary action:

(a) subsections 27A(1) to (4);

(b) subsections 27C(1) and (2).

Note: The defendant bears an evidential burden in relation to the matters in

this subsection. See subsection 13.3(3) of the Criminal Code.

Exception to civil penalties

(3) For the purposes of subsection (1), the following provisions do not

apply to the primary action:

(a) subsections 26(1) and (2);

(b) subsection 27B(1);

(c) subsection 28(1).

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Part 4—Cases in which environmental approvals

are not needed

Division 1—Actions covered by bilateral agreements

29 Actions declared by agreement not to need approval

(1) A person may take an action described in a provision of Part 3,

other than section 24D or 24E, 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 (because the action is approved in

accordance with a management arrangement or authorisation

process that is a bilaterally accredited management

arrangement or a bilaterally accredited authorisation process

for the purposes of the bilateral agreement); and

(c) the provision of the bilateral agreement making the

declaration is in operation in relation to the action; and

(d) either of the following applies:

(i) in the case of a bilaterally accredited management

arrangement—the management arrangement is in force

under a law of the State or Territory identified in or

under the bilateral agreement;

(ii) in the case of a bilaterally accredited authorisation

process—the authorisation process is set out in a law of

the State or Territory, and the law and the authorisation

process are identified in or under the bilateral

agreement; and

(e) the action is taken in accordance with the bilaterally

accredited management arrangement or bilaterally accredited

authorisation process.

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Section 30

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 in the Great Barrier Reef Marine Park, 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.

30 Extended operation in State and Northern Territory waters

(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 or the Great Barrier Reef Marine Park if the

agreement expressly provides that it does. See section 49.

31 Extended operation in non-self-governing Territories

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:

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(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 (because the action

is approved or taken in accordance with a bilaterally

accredited management arrangement or a bilaterally

accredited authorisation process); 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; and

(f) either of the following applies:

(i) in the case of a bilaterally accredited management

arrangement—the management arrangement is in force

under a law of the State or self-governing Territory

identified in or under the bilateral agreement;

(ii) in the case of a bilaterally accredited authorisation

process—the authorisation process is set out in a law of

the State or self-governing Territory, and the law and

the authorisation process are identified in or under the

bilateral agreement; and

(g) the action is taken in accordance with the bilaterally

accredited management arrangement or bilaterally accredited

authorisation process.

Note: Division 3 of Part 5 explains how the operation of a bilateral

agreement may be ended or suspended.

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Section 32

Division 2—Actions covered by Ministerial declarations

and accredited management arrangements or

accredited authorisation processes

Subdivision A—Effect of declarations

32 Actions declared by Minister not to need approval

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 (because the action is approved in

accordance with an accredited management arrangement or

an accredited authorisation process for the purposes of the

declaration); and

(b) the declaration is in operation when the action is taken; and

(c) one of the following applies:

(i) in the case of an accredited management arrangement—

the management arrangement is in operation under a

law of the Commonwealth identified in or under the

declaration;

(ii) in the case of an accredited authorisation process—the

authorisation process is set out in a law of the

Commonwealth, and the law and the authorisation

process are identified in or under the declaration; and

(d) the action is taken in accordance with the accredited

management arrangement or accredited authorisation

process.

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Subdivision B—Making declarations

33 Making declaration that actions do not need approval under

Part 9

Declaration of actions not needing approval

(1) The Minister may declare in writing that actions in a class of

actions specified in the declaration wholly or partly by reference to

the fact that their taking has been approved by the Commonwealth

or a specified Commonwealth agency, in accordance with a

management arrangement or authorisation process that is an

accredited management arrangement or an accredited authorisation

process for the purposes of the declaration, do not require approval

under Part 9 for the purposes of a specified provision of Part 3.

Note 1: Subdivisions C and D set out rules about prerequisites for making a

declaration and limits on making a declaration.

Note 2: Section 35 provides for revocation of a declaration.

What is an accredited management arrangement?

(2) A management arrangement is an accredited management

arrangement for the purposes of a declaration that certain actions

do not require approval under Part 9 for the purposes of a specified

provision of Part 3 if and only if:

(a) the management arrangement is in operation under a law of

the Commonwealth identified in or under the declaration; and

(b) the management arrangement has been accredited in writing

by the Minister in accordance with this section for the

purposes of the declaration.

What is an accredited authorisation process?

(2A) An authorisation process is an accredited authorisation process for

the purposes of a declaration that certain actions do not require

approval under Part 9 for the purposes of a specified provision of

Part 3 if and only if:

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(a) the authorisation process is set out in a law of the

Commonwealth, and the law and the authorisation process

are identified in or under the declaration; and

(b) the authorisation process has been accredited in writing by

the Minister in accordance with this section for the purposes

of the declaration.

Accrediting management arrangement or authorisation process

(3) For the purposes of subsection (2) or (2A), the Minister may

accredit by written instrument a management arrangement or

authorisation process for the purposes of a declaration. However,

the Minister may do so only if the Minister is satisfied that:

(a) the management arrangement or authorisation process and

the law under which it is in operation, or in which it is set

out, meet the criteria prescribed by the regulations; and

(b) there has been or will be adequate assessment of the impacts

that actions approved in accordance with the management

arrangement or authorisation process:

(i) have or will have; or

(ii) are likely to have;

on each matter protected by a provision of Part 3 to which the

declaration relates; and

(c) actions approved or taken in accordance with the

management arrangement or authorisation process will not

have unacceptable or unsustainable impacts on a matter

protected by a provision of Part 3 to which the declaration

relates.

The Minister must publish in accordance with the regulations (if

any) the instrument accrediting the management arrangement or

authorisation process.

Note: Subdivision C sets out more prerequisites for accrediting a

management arrangement or authorisation process.

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Tabling of management arrangement or authorisation process

before accreditation

(4) The Minister must cause to be laid before each House of the

Parliament:

(a) a copy of:

(i) in the case of a management arrangement—the

management arrangement; or

(ii) in the case of an authorisation process—the relevant

part of the law in which the authorisation process is set

out;

that the Minister is considering accrediting for the purposes

of subsection (2) or (2A); and

(b) a notice that the Minister proposes to accredit the

management arrangement or authorisation process for the

purposes of a declaration under this section.

Limitations on accreditation during period for opposition

(5) The Minister must not accredit a management arrangement or

authorisation process for the purposes of subsection (2) or (2A)

under a bilateral agreement:

(a) before, or within 15 sitting days after, a copy of the

management arrangement or authorisation process is laid

before each House of the Parliament under this section; or

(b) if, within those 15 sitting days of a House, notice of a motion

to oppose accreditation of the management arrangement or

authorisation process is given in that House—subject to

subsection (5A), within 15 sitting days of that House after the

notice is given.

(5A) If:

(a) notice of a motion to oppose accreditation of the

management arrangement or authorisation process is given in

a House of the Parliament within 15 sitting days after the

management arrangement or authorisation process is laid

before the House under this section; and

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(b) the notice is withdrawn or otherwise disposed of within 15

sitting days of that House after the notice is given;

then, subject to paragraph (5)(a), the Minister may accredit the

management arrangement or authorisation process after the motion

is withdrawn or otherwise disposed of.

No accreditation after accreditation opposed

(6) The Minister must not accredit the management arrangement or

authorisation process if either House of the Parliament passes a

resolution opposing accreditation of the management arrangement

or authorisation process following a motion of which notice has

been given within 15 sitting days after the management

arrangement or relevant part of the law has been laid before the

House under this section.

No accreditation if motion not defeated in time

(7) The Minister must not accredit the management arrangement or

authorisation process if, at the end of 15 sitting days after notice of

a motion to oppose accreditation of the management arrangement

or authorisation process that was given in a House of the

Parliament within 15 sitting days after the management

arrangement or relevant part of the law was laid before the House

under this section:

(a) the notice has not been withdrawn and the motion has not

been called on; or

(b) the motion has been called on, moved and seconded and has

not been withdrawn or otherwise disposed of.

Extended time after dissolution or prorogation

(8) If:

(a) notice of a motion to oppose the accreditation of the

management arrangement or authorisation process is given in

a House of the Parliament (the opposing House); and

(b) before the end of 15 sitting days of the opposing House after

the notice is given:

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(i) the House of Representatives is dissolved or expires; or

(ii) the Parliament is prorogued; and

(c) at the time of the dissolution, expiry or prorogation (as

appropriate):

(i) the notice has not been withdrawn and the motion has

not been called on; or

(ii) the motion has been called on, moved and seconded and

has not been withdrawn or otherwise disposed of;

the management arrangement or relevant part of the law is taken

for the purposes of subsections (5), (5A), (6) and (7) to have been

laid before the opposing House on the first sitting day of that

House after the dissolution, expiry or prorogation (as appropriate).

34 What is matter protected by a provision of Part 3?

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

1A section 15A the world heritage values of a declared World

Heritage property

1B section 15B the National Heritage values of a National

Heritage place

1C section 15C the National Heritage values of a National

Heritage place

2 section 16 the ecological character of a declared Ramsar

wetland

2A section 17B the ecological character of a declared Ramsar

wetland

3 subsection 1

8(1)

a listed threatened species in the extinct in the

wild category

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Matter protected by provisions of Part 3

Item Provision Matter protected

4 subsection 1 a listed threatened species in the critically

8(2) endangered category

5 subsection 1 a listed threatened species in the endangered

8(3) category

6 subsection 1 a listed threatened species in the vulnerable

8(4) category

7 subsection 1 a listed threatened ecological community in the

8(5) critically endangered category

8 subsection 1 a listed threatened ecological community in the

8(6) endangered category

8A subsection 1 a listed threatened species (except a species

8A(1) or (2) included in the extinct category of the list

referred to in section 178 or a conservation

dependent species) and a listed threatened

ecological community (except an ecological

community included in the vulnerable category

of the list referred to in section 181)

9 section 20 a listed migratory species

9A section 20A a listed migratory species

10 section 21 the environment

10A section 22A the environment

11 subsection 2 the environment

3(1)

12 subsection 2 the environment in a Commonwealth marine

3(2) area

13 subsection 2 the environment in the coastal waters (as

3(3) defined in the Fisheries Management Act

1991) in which the action is taken of the State

or Territory

13A subsection 2 the environment

4A(1) or (2)

13B subsection 2 the environment in a Commonwealth marine

4A(3) or (4) area

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Matter protected by provisions of Part 3

Item Provision Matter protected

13C subsection 2 the environment in the coastal waters (as

4A(5) or (6) defined in the Fisheries Management Act

1991) in which the action is taken of the State

or Territory

13D subsection 2 the environment

4B(1)

13E subsection 2 the environment in the Great Barrier Reef

4B(2) Marine Park

13F subsections the environment

24C(1) and

(3)

13G subsections the environment in the Great Barrier Reef

24C(5) and Marine Park

(7)

13H section 24D a water resource

13J section 24E a water resource

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 2 the environment

6(1)

16 subsection 2 the environment on Commonwealth land

6(2)

16A subsection 2 the environment

7A(1) or (2)

16B subsection 2 the environment on Commonwealth land

7A(3) or (4)

16C section 27B the environment in a Commonwealth Heritage

place outside the Australian jurisdiction

16D subsections the environment in a Commonwealth Heritage

27C(1) and place outside the Australian jurisdiction

(2)

17 section 28 the environment

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Subdivision C—Prerequisites for making declarations

34A Minister may only make declaration if prescribed criteria are

met

The Minister may make a declaration under section 33 only if the

Minister is satisfied that the declaration:

(a) accords with the objects of this Act; and

(b) meets the requirements (if any) prescribed by the regulations.

34B Declarations relating to declared World Heritage properties

(1) The Minister may make a declaration under section 33 relating to a

declared World Heritage property only if:

(a) the Minister is satisfied that the declaration is not

inconsistent with Australia’s obligations under the World

Heritage Convention; and

(b) the Minister is satisfied that the declaration will promote the

management of the property in accordance with the

Australian World Heritage management principles; and

(c) the declaration meets the requirements (if any) prescribed by

the regulations.

(2) The Minister may accredit a management arrangement or

authorisation process under section 33 for the purposes of a

declaration relating to a declared World Heritage property only if:

(a) the Minister is satisfied that the management arrangement or

authorisation process is not inconsistent with Australia’s

obligations under the World Heritage Convention; and

(b) the Minister is satisfied that the management arrangement or

authorisation process will promote the management of the

property in accordance with the Australian World Heritage

management principles.

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34BA Declarations relating to National Heritage places

(1) The Minister may make a declaration under section 33 relating to a

National Heritage place only if:

(a) the Minister is satisfied that the declaration will promote the

management of the place in accordance with the National

Heritage management principles; and

(b) the declaration meets the requirements (if any) prescribed by

the regulations.

(2) The Minister may accredit a management arrangement or

authorisation process under section 33 for the purposes of such a

declaration only if he or she is satisfied that the management

arrangement or authorisation process will promote the management

of the place concerned in accordance with the National Heritage

management principles.

34C Declarations relating to declared Ramsar wetlands

(1) The Minister may make a declaration under section 33 relating to a

declared Ramsar wetland only if:

(a) the Minister is satisfied that the declaration is not

inconsistent with Australia’s obligations under the Ramsar

Convention; and

(b) the Minister is satisfied that the declaration will promote the

management of the wetland in accordance with the

Australian Ramsar management principles; and

(c) the declaration meets the requirements (if any) prescribed by

the regulations.

(2) The Minister may accredit a management arrangement or

authorisation process under section 33 for the purposes of a

declaration relating to a declared Ramsar wetland only if:

(a) the Minister is satisfied that the management arrangement or

authorisation process is not inconsistent with Australia’s

obligations under the Ramsar Convention; and

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(b) the Minister is satisfied that the management arrangement or

authorisation process will promote the management of the

wetland in accordance with the Australian Ramsar

management principles.

34D Declarations relating to listed threatened species and ecological

communities

(1) The Minister may make a declaration under section 33 relating to a

listed threatened species or a listed threatened ecological

community only if:

(a) the Minister is satisfied that the declaration 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 declaration will promote the

survival and/or enhance the conservation status of each

species or community to which the declaration relates; and

(c) the Minister is satisfied that the declaration is not

inconsistent with any recovery plan for the species or

community or a threat abatement plan; and

(ca) the Minister has had regard to any approved conservation

advice for the species or community; and

(d) the declaration meets the requirements (if any) prescribed by

the regulations.

(2) The Minister may accredit a management arrangement or

authorisation process under section 33 for the purposes of a

declaration relating to a listed threatened species or a listed

threatened ecological community only if:

(a) the Minister is satisfied that the management arrangement or

authorisation process is not inconsistent with Australia’s

obligations under:

(i) the Biodiversity Convention; or

(ii) the Apia Convention; or

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(iii) CITES; and

(b) the Minister is satisfied that the management arrangement or

authorisation process will promote the survival and/or

enhance the conservation status of each species or

community to which the declaration relates; and

(c) the Minister is satisfied that the management arrangement or

authorisation process is not inconsistent with any recovery

plan for the species or community or a threat abatement plan;

and

(d) the Minister has had regard to any approved conservation

advice for the species or community.

34E Declarations relating to migratory species

(1) The Minister may make a declaration under section 33 relating to a

listed migratory species only if:

(a) the Minister is satisfied that the declaration 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 declaration will promote the

survival and/or enhance the conservation status of each

species to which the declaration relates; and

(c) the declaration meets the requirements (if any) prescribed by

the regulations.

(2) The Minister may accredit a management arrangement or

authorisation process under section 33 for the purposes of a

declaration relating to a listed migratory species only if:

(a) the Minister is satisfied that the management arrangement or

authorisation process is not inconsistent with the

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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 management arrangement or

authorisation process will promote the survival and/or

enhance the conservation status of each species to which the

declaration relates.

34F Declarations relating to Commonwealth Heritage places

(1) The Minister may make a declaration under section 33 relating to a

Commonwealth Heritage place only if:

(a) the Minister is satisfied that the declaration will promote the

management of the place in accordance with the

Commonwealth Heritage management principles; and

(b) the declaration meets the requirements (if any) prescribed by

the regulations.

(2) The Minister may accredit a management arrangement or

authorisation process under section 33 for the purposes of such a

declaration only if he or she is satisfied that the management

arrangement or authorisation process will promote the management

of the place concerned in accordance with the Commonwealth

Heritage management principles.

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Subdivision D—Other rules about declarations

35 Revoking declarations

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) a declaration made under section 33 is revoked; and

(b) before the revocation, an action was being taken that could be

taken without approval under Part 9 because its taking was

covered by the declaration; and

(c) the action had not been completed before the revocation;

this Act continues to operate in relation to the action as if the

declaration had not been revoked.

36 Other rules about declarations

Minister must not give preference

(1) In making a declaration or accrediting a management arrangement

or authorisation process under section 33, or revoking a declaration

under section 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.

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Publishing declarations

(2) The Minister must publish a declaration made under section 33, an

instrument accrediting a management arrangement or authorisation

process under section 33, or an instrument under section 35

revoking a declaration, in accordance with the regulations.

36A Minor amendments of accredited management arrangement or

accredited authorisation process

(1) If:

(a) a management arrangement or an authorisation process is an

accredited management arrangement or an accredited

authorisation process; and

(b) the management arrangement or authorisation process is

amended, or is proposed to be amended; and

(c) the Minister is satisfied that the amendments are, or will be,

minor; and

(d) the Minister is satisfied that the management arrangement or

authorisation process as amended meets, or will meet, the

requirements of:

(i) paragraphs 33(3)(a), (b) and (c); and

(ii) section 34A; and

(iii) subsection 34B(2), 34BA(2), 34C(2), 34D(2), 34E(2) or

34F(2) (as the case requires);

the Minister may, by instrument in writing, determine that this

section applies to the amendments.

(2) If the Minister makes a determination under subsection (1):

(a) the management arrangement or authorisation process as

amended is, for the purposes of this Act, taken to be an

accredited management arrangement or accredited

authorisation process; and

(b) subsections 33(1) to (8) do not apply in relation to the

amendments to the management arrangement or authorisation

process, or the management arrangement or authorisation

process as amended; and

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(c) actions taken after the determination is made in accordance

with the accredited management arrangement or accredited

authorisation process as amended do not require approval

under Part 9 for the purposes of a specified provision of

Part 3.

(3) The Minister must publish a determination under subsection (1) in

accordance with the regulations (if any).

(4) A determination under subsection (1) is not a legislative

instrument.

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Section 37

Division 3—Actions covered by Ministerial declarations

and bioregional plans

Subdivision A—Effect of declarations

37 Actions declared by Minister not to need approval

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 an action, or one of a class of actions, declared

by the Minister under section 37A not to require approval

under Part 9 for the purposes of the provision (because the

taking of the action is in accordance with a particular

bioregional plan); and

(b) the declaration is in operation when the action is taken; and

(c) the action is taken:

(i) in the bioregion to which the plan applies; and

(ii) in accordance with the plan.

Note: Division 2 of Part 12 deals with bioregional plans.

Subdivision B—Making declarations

37A Making declarations that actions do not need approval under

Part 9

Subject to Subdivisions C and D, the Minister may, by legislative

instrument, declare that an action or class of actions specified in

the declaration, wholly or partly by reference to the fact that the

taking of the action or class of actions is in accordance with a

bioregional plan, do not require approval under Part 9 for the

purposes of a specified provision of Part 3.

Note 1: Subdivisions C and D set out rules about prerequisites for making a

declaration and limits on making a declaration.

Note 2: Section 37K provides for revocation of a declaration.

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Subdivision C—Prerequisites for making declarations

37B General considerations

(1) In deciding whether to make a declaration under section 37A, the

Minister must consider the following, so far as they are not

inconsistent with any other requirements of this Subdivision:

(a) matters relevant to any matter protected by a provision of

Part 3 that the Minister considers is relevant to the action or

class of actions to which the declaration relates;

(b) economic and social matters.

(2) In considering those matters, the Minister must take into account

the principles of ecologically sustainable development.

(3) The Minister must not make a declaration under section 37A in

relation to an action or class of actions and a provision of Part 3 if

the Minister considers that the action, or an action in the class, if

taken, would have unacceptable or unsustainable impacts on a

matter protected by the provision.

37C Minister may make declaration only if prescribed criteria are

met

The Minister may make a declaration under section 37A only if the

Minister is satisfied that the declaration:

(a) accords with the objects of this Act; and

(b) meets the requirements (if any) prescribed by the regulations.

37D Declarations relating to declared World Heritage properties

The Minister may make a declaration under section 37A relating to

a declared World Heritage property only if:

(a) the Minister is satisfied that the declaration is not

inconsistent with Australia’s obligations under the World

Heritage Convention; and

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(b) the Minister is satisfied that the declaration will promote the

management of the property in accordance with the

Australian World Heritage management principles; and

(c) the Minister is satisfied that the declaration is not

inconsistent with a plan that has been prepared for the

management of the declared World Heritage property under

section 316 or as described in section 321.

37E Declarations relating to National Heritage places

The Minister may make a declaration under section 37A relating to

a National Heritage place only if:

(a) the Minister is satisfied that the declaration will promote the

management of the place in accordance with the National

Heritage management principles; and

(b) the Minister is satisfied that the declaration is not

inconsistent with:

(i) an agreement to which the Commonwealth is a party in

relation to the National Heritage place; or

(ii) a plan that has been prepared for the management of the

National Heritage place under section 324S or as

described in section 324X.

37F Declarations relating to declared Ramsar wetlands

The Minister may make a declaration under section 37A relating to

a declared Ramsar wetland only if:

(a) the Minister is satisfied that the declaration is not

inconsistent with Australia’s obligations under the Ramsar

Convention; and

(b) the Minister is satisfied that the declaration will promote the

management of the wetland in accordance with the

Australian Ramsar management principles.

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37G Declarations relating to listed threatened species and ecological

communities

The Minister may make a declaration under section 37A relating to

a listed threatened species or a listed threatened ecological

community only if:

(a) the Minister is satisfied that the declaration 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 declaration will promote the

survival and/or enhance the conservation status of each

species or community to which the declaration relates; and

(c) the Minister is satisfied that the declaration is not

inconsistent with any recovery plan for the species or

community or a threat abatement plan; and

(d) the Minister has had regard to any approved conservation

advice for the species or community.

37H Declarations relating to listed migratory species

The Minister may make a declaration under section 37A relating to

a listed migratory species only if:

(a) the Minister is satisfied that the declaration is not

inconsistent with 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 declaration will promote the

survival and/or enhance the conservation status of each

species to which the declaration relates.

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Division 3 Actions covered by Ministerial declarations and bioregional plans

Section 37J

37J No declarations relating to nuclear actions

The Minister must not make a declaration relating to an action

consisting of, or involving the construction or operation of, any of

the following nuclear installations:

(a) a nuclear fuel fabrication plant;

(b) a nuclear power plant;

(c) an enrichment plant;

(d) a reprocessing facility.

Subdivision D—Other rules about declarations

37K Revoking declarations

Revoking declarations

(1) The Minister may, by legislative instrument, revoke a declaration

made under section 37A.

Revocation does not affect some actions

(2) If:

(a) a declaration made under section 37A is revoked; and

(b) before the revocation, an action was being taken that could be

taken without approval under Part 9 because its taking was

covered by the declaration; and

(c) the action had not been completed before the revocation;

this Act continues to operate in relation to the action as if the

declaration had not been revoked.

37L Other rules about declarations

Minister must not give preference

(1) In making a declaration under section 37A, or revoking a

declaration under section 37K, relating to an action taken:

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(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;

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) Within 10 business days after the Minister makes a declaration

under section 37A, or an instrument under section 37K revoking a

declaration, the Minister must publish the declaration or instrument

in accordance with the regulations.

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Division 3A Actions covered by conservation agreements

Section 37M

Division 3A—Actions covered by conservation agreements

37M Actions declared by conservation agreement not to need

approval

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 included in a class of actions declared in a

conservation agreement, in accordance with section 306A,

not to require approval under Part 9 for the purposes of the

provision; and

(b) the conservation agreement is in operation when the action is

taken; and

(c) the action is taken in accordance with the conditions (if any)

specified in the declaration.

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Forestry operations in certain regions Division 4

Section 38

Division 4—Forestry operations in certain regions

Subdivision A—Regions covered by regional forest agreements

38 Part 3 not to apply to certain RFA forestry operations

(1) Part 3 does not apply to an RFA forestry operation that is

undertaken in accordance with an RFA.

(2) In this Division:

RFA or regional forest agreement has the same meaning as in the

Regional Forest Agreements Act 2002.

RFA forestry operation has the same meaning as in the Regional

Forest Agreements Act 2002.

Note: This section does not apply to some RFA forestry operations. See

section 42.

Subdivision B—Regions subject to a process of negotiating a

regional forest agreement

39 Object of this Subdivision

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.

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Section 40

40 Forestry operations in regions not yet covered by regional forest

agreements

(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 1999.

(2) In this Division:

forestry operations means any of the following done for

commercial purposes:

(a) the planting of trees;

(b) the managing of trees before they are harvested;

(c) the harvesting of forest products;

and includes any related land clearing, land preparation and

regeneration (including burning) and transport operations. For the

purposes of paragraph (c), forest products means live or dead trees,

ferns or shrubs, or parts thereof.

RFA region has the meaning given by section 41.

(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, by legislative instrument, declare that

subsection (1) does not apply to an RFA region.

(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:

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(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.

41 What is an RFA region?

Regions that are RFA regions

(1) Each of the following is an RFA region:

(a) the area delineated as the Eden RFA Region on the map of

that New South Wales Region dated 13 May 1999 and

published by the Bureau of Resource Sciences;

(b) the area delineated as the Lower North East RFA Region on

the map of that New South Wales Region dated 13 May 1999

and published by the Bureau of Resource Sciences;

(c) the area delineated as the Upper North East RFA Region on

the map of that New South Wales Region dated 13 May 1999

and published by the Bureau of Resource Sciences;

(d) the area delineated as the South Region on the map of the

Comprehensive Regional Assessment South CRA Region

dated August 1997 and published by the State Forests GIS

Branch of the organisation known as State Forests of New

South Wales;

(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 Department of Natural Resources

and Environment of Victoria;

(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 Department of Natural

Resources and Environment of Victoria;

(g) the area delineated as the West Region in the map of that

Region dated 3 March 1999 and published by the Forest

Information Section of the Department of Natural Resources

and Environment of Victoria;

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Section 42

(h) the area delineated as the South East Queensland RFA

Region on the map of that Region dated 21 August 1998 and

published by the Bureau of Resource Sciences.

Regulations may amend list of regions

(2) The regulations may amend subsection (1).

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.

Subdivision C—Limits on application

42 This Division does not apply to some forestry operations

Subdivisions A and B of this Division, and subsection 6(4) of the

Regional Forest Agreements Act 2002, do not apply to RFA

forestry operations, or to forestry operations, that are:

(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) incidental to another action whose primary purpose does not

relate to forestry.

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Actions in the Great Barrier Reef Marine Park Division 5

Section 43

Division 5—Actions in the Great Barrier Reef Marine Park

43 Actions taken in accordance with zoning plan

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 zone (within the meaning of the Great

Barrier Reef Marine Park Act 1975) of the Great Barrier

Reef Marine Park; and

(b) it is for a purpose for which, under the zoning plan for the

zone made under the Great Barrier Reef Marine Park Act

1975, the zone may be used or entered without permission.

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Division 6 Actions with prior authorisation

Section 43A

Division 6—Actions with prior authorisation

43A Actions with prior authorisation

(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 consists of a use of land, sea or seabed; and

(b) before the commencement of this Act, the action was

authorised by a specific environmental authorisation; and

(c) immediately before the commencement of this Act, no

further specific environmental authorisation was necessary to

allow the action to be taken lawfully; and

(d) at the time the action is taken, the specific environmental

authorisation continues to be in force.

(1A) For the purposes of paragraphs (1)(c) and (d), a renewal or

extension of a specific environmental authorisation is taken to be a

new specific environmental authorisation unless:

(a) the action that is authorised by the authorisation following

the renewal or extension is the same as the action that was

authorised by the authorisation before the commencement of

this Act; and

(b) the renewal or extension could properly be made or given

without any further consideration of the environmental

impacts of the action.

Note: If a renewal or extension of a specific environmental authorisation is

taken to be a new specific environmental authorisation, the condition

in paragraph (1)(c) or (d) would not be met.

(2) In this Act:

environmental authorisation means an authorisation under a law

of the Commonwealth, a State or a self-governing Territory that

has either or both of the following objects (whether express or

implied):

(a) to protect the environment;

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(b) to promote the conservation and ecologically sustainable use

of natural resources.

specific environmental authorisation means an environmental

authorisation that:

(a) identifies the particular action by reference to acts and

matters uniquely associated with that action; or

(b) was issued or granted following a consideration of the

particular action by reference to acts and matters uniquely

associated with that action.

43B Actions which are lawful continuations of use of land etc.

(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 the action is a lawful continuation of a use of land, sea or seabed

that was occurring immediately before the commencement of this

Act.

(2) However, subsection (1) does not apply to an action if:

(a) before the commencement of this Act, the action was

authorised by a specific environmental authorisation; and

(b) at the time the action is taken, the specific environmental

authorisation continues to be in force.

Note: In that case, section 43A applies instead.

(3) For the purposes of this section, neither of the following is a

continuation of a use of land, sea or seabed:

(a) an enlargement, expansion or intensification of use;

(b) either:

(i) any change in the location of where the use of the land,

sea or seabed is occurring; or

(ii) any change in the nature of the activities comprising the

use;

that results in a substantial increase in the impact of the use

on the land, sea or seabed.

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Chapter 3 Bilateral agreements

Part 5 Bilateral agreements

Division 1 Object of Part

Section 44

Chapter 3—Bilateral agreements

Part 5—Bilateral agreements

Division 1—Object of Part

44 Object of this Part

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).

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Division 2—Making bilateral agreements

Subdivision A—Power to make bilateral agreements

45 Minister may make agreement

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 and 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 notice of intention to enter into agreement

(3) As soon as practicable after starting the process of developing a

draft bilateral agreement with a State or self-governing Territory,

the Minister must publish, in accordance with the regulations (if

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any), notice of his or her intention to develop a draft bilateral

agreement with the State or Territory.

Publishing bilateral agreements and related material

(4) As soon as practicable after entering into a bilateral agreement, the

Minister must publish in accordance with the regulations:

(a) the agreement; and

(b) a statement of the Minister’s reasons for entering into the

agreement; and

(c) a report on the comments (if any) received on the draft of the

agreement published under Subdivision B.

46 Agreement may declare actions do not need approval under

Part 9

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 their taking has been approved by:

(a) the State or self-governing Territory that is party to the

agreement; or

(b) an agency of the State or Territory;

in accordance with a management arrangement or authorisation

process that is a bilaterally accredited management arrangement or

a bilaterally accredited authorisation process for the purposes of

the agreement do not require approval under Part 9 for the

purposes of a specified provision of Part 3, other than section 24D

or 24E.

What is a bilaterally accredited management arrangement?

(2) A management arrangement is a bilaterally accredited

management arrangement for the purposes of a bilateral

agreement declaring that certain actions do not require approval

under Part 9 for the purposes of a specified provision of Part 3,

other than section 24D or 24E, if and only if:

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(a) the management arrangement is in force under a law of the

State or Territory that is a party to the agreement and the law

is identified in or under the agreement; and

(b) the management arrangement has been accredited in writing

by the Minister in accordance with this section for the

purposes of the agreement.

What is a bilaterally accredited authorisation process?

(2A) An authorisation process is a bilaterally accredited authorisation

process for the purposes of a bilateral agreement declaring that

certain actions do not require approval under Part 9 for the

purposes of a specified provision of Part 3, other than section 24D

or 24E, if and only if:

(a) the authorisation process is set out in a law of the State or

Territory that is a party to the agreement, and the law and the

process are identified in or under the agreement; and

(b) the authorisation process has been accredited in writing by

the Minister in accordance with this section for the purposes

of the agreement.

Accrediting management arrangement or authorisation process

(3) For the purposes of subsection (2) or (2A), the Minister may

accredit in writing a management arrangement or an authorisation

process for the purposes of a bilateral agreement with a State or

self-governing Territory. However, the Minister may do so only if

the Minister is satisfied that:

(a) the management arrangement or authorisation process and

the law under which it is in force, or in which it is set out,

meet the criteria prescribed by the regulations; and

(b) there has been or will be adequate assessment of the impacts

that actions approved in accordance with the management

arrangement or authorisation process:

(i) have or will have; or

(ii) are likely to have;

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on each matter protected by a provision of Part 3 in relation

to which the agreement makes a declaration under

subsection (1); and

(c) actions approved in accordance with the management

arrangement or authorisation process will not have

unacceptable or unsustainable impacts on a matter protected

by a provision of Part 3 in relation to which the agreement

makes a declaration under subsection (1).

The Minister must publish in accordance with the regulations (if

any) the instrument accrediting the management arrangement or

authorisation process.

Note: Subdivision B sets out more prerequisites for accrediting a

management arrangement or an authorisation process.

Tabling of management arrangement or authorisation process

before accreditation

(4) The Minister must cause to be laid before each House of the

Parliament a copy of:

(a) in the case of a management arrangement—the management

arrangement; or

(b) in the case of an authorisation process—the relevant part of

the law in which the authorisation process is set out;

that the Minister is considering accrediting for the purposes of

subsection (2) or (2A).

Limitations on accreditation during period for disallowance

(5) The Minister must not accredit a management arrangement or

authorisation process for the purposes of subsection (2) or (2A)

under a bilateral agreement:

(a) before, or within 15 sitting days after, a copy of the

management arrangement or authorisation process is laid

before each House of the Parliament; or

(b) if, within those 15 sitting days of a House, notice of a motion

to disallow the management arrangement or authorisation

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process is given in that House—subject to subsection (5A),

within 15 sitting days of that House after the notice is given.

(5A) If:

(a) notice of a motion to disallow accreditation of the

management arrangement or authorisation process is given in

a House of the Parliament within 15 sitting days after the

management arrangement or authorisation process is laid

before the House under this section; and

(b) the notice is withdrawn or otherwise disposed of within 15

sitting days of that House after the notice is given;

then, subject to paragraph (5)(a), the Minister may accredit the

management arrangement or authorisation process after the motion

is withdrawn or otherwise disposed of.

Disallowance motion passed

(6) The Minister must not accredit the management arrangement or

authorisation process if either House of the Parliament passes a

resolution disallowing the accreditation of the management

arrangement or authorisation process following a motion of which

notice has been given within 15 sitting days after the management

arrangement or relevant part of the law has been laid before the

House.

Disallowance motion not defeated in time

(7) The Minister must not accredit the management arrangement or

authorisation process if, at the end of 15 sitting days after notice of

a motion to disallow the management arrangement or authorisation

process that was given in a House of the Parliament within 15

sitting days after the management arrangement or relevant part of

the law was laid before the House:

(a) the notice has not been withdrawn and the motion has not

been called on; or

(b) the motion has been called on, moved and seconded and has

not been withdrawn or otherwise disposed of.

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Extended time after dissolution or prorogation

(8) If:

(a) notice of a motion to disallow the management arrangement

or authorisation process is given in a House of the Parliament

(the disallowing House); and

(b) before the end of 15 sitting days of the disallowing House

after the notice is given:

(i) the House of Representatives is dissolved or expires; or

(ii) the Parliament is prorogued; and

(c) at the time of the dissolution, expiry or prorogation (as

appropriate):

(i) the notice has not been withdrawn and the motion has

not been called on; or

(ii) the motion has been called on, moved and seconded and

has not been withdrawn or otherwise disposed of;

the management arrangement or relevant part of the law is taken

for the purposes of subsections (5), (5A), (6) and (7) to have been

laid before the disallowing House on the first sitting day of that

House after the dissolution, expiry or prorogation (as appropriate).

No preference

(9) In accrediting a management arrangement or authorisation process

for the purposes of a bilateral agreement making a declaration

relating to an action:

(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.

Requirements for bilateral agreement making declaration

(10) If the declaration is for actions approved in accordance with a

bilaterally accredited management arrangement, the declaration

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does not have effect for the purposes of this Act unless the bilateral

agreement requires the State or self-governing Territory that is

party to the agreement and agencies of the State or Territory:

(a) to act in accordance with the management arrangement; and

(b) not to approve the taking of actions that would be

inconsistent with the management arrangement.

47 Agreement may declare classes of actions do not need assessment

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

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(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.

48 Other provisions of bilateral agreements

(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

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(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.

48A Mandatory provisions

Application

(1) A bilateral agreement with a State or self-governing Territory

including a declaration that is described in section 46 or 47 and

covers actions described in subsection (2) or (3) does not have

effect for the purposes of this Act unless the agreement also

includes the undertaking required by subsection (2) or (3) (as

appropriate).

Agreements including declarations about approvals

(2) A bilateral agreement including a declaration described in

section 46 must include an undertaking by the State or Territory to

ensure that the environmental impacts that the following actions

covered by the declaration have, will have or are likely to have on

a thing that is not a matter protected by a provision of Part 3 for

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which the declaration has effect will be assessed to the greatest

extent practicable:

(a) actions taken in the State or Territory by a constitutional

corporation;

(b) actions taken in the State or Territory by a 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;

(c) actions that are taken in the State or Territory and are actions

whose regulation is appropriate and adapted to give effect to

Australia’s obligations under an agreement with one or more

other countries;

(d) actions taken in the Territory (if applicable).

Agreements including declarations about assessment

(3) A bilateral agreement including a declaration described in

section 47 must include an undertaking by the State or Territory to

ensure that the environmental impacts that the following actions

covered by the declaration have, will have or are likely to have

(other than the relevant impacts of those actions) will be assessed

to the greatest extent practicable:

(a) actions taken in the State or Territory by a constitutional

corporation;

(b) actions taken in the State or Territory by a 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;

(c) actions that are taken in the State or Territory and are actions

whose regulation is appropriate and adapted to give effect to

Australia’s obligations under an agreement with one or more

other countries;

(d) actions taken in the Territory (if applicable).

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Auditing

(4) A bilateral agreement does not have effect for the purposes of this

Act unless it includes a provision recognising that, under the

Auditor-General Act 1997, the Auditor-General may audit the

operations of the Commonwealth public sector (as defined in

section 18 of that Act) relating to the bilateral agreement.

49 Certain limits on scope of bilateral agreements

(1) 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.

(1A) A provision of a bilateral agreement does not have any effect in

relation to an action in the Great Barrier Reef Marine Park, unless

the agreement expressly provides otherwise.

(2) A provision of a bilateral agreement does not have any effect in

relation to an action in Booderee National Park, Kakadu National

Park or Uluru-Kata Tjuta National Park.

(3) Booderee National Park is the Commonwealth reserve (as it exists

from time to time) to which the name Booderee National Park was

given by Proclamation continued in force by the Environmental

Reform (Consequential Provisions) Act 1999.

Subdivision B—Prerequisites for making bilateral agreements

49A Consultation on draft agreement

The Minister may enter into a bilateral agreement only if he or she:

(a) has published in accordance with the regulations:

(i) a draft of the agreement; and

(ii) an invitation for any person to give the Minister

comments on the draft within a specified period of at

least 28 days after the latest day on which the draft or

invitation was published; and

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(b) has taken into account the comments (if any) received in

response to the invitation; and

(c) has considered the role and interests of indigenous peoples in

promoting the conservation and ecologically sustainable use

of natural resources in the context of the proposed agreement,

taking into account Australia’s relevant obligations under the

Biodiversity Convention.

50 Minister may only enter into agreement if prescribed criteria are

met

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.

51 Agreements relating to declared World Heritage properties

(1) 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; and

(c) the provision meets the requirements (if any) prescribed by

the regulations.

(2) The Minister may accredit a management arrangement or an

authorisation process under section 46 for the purposes of a

bilateral agreement containing a provision relating to a declared

World Heritage property only if:

(a) the Minister is satisfied that the management arrangement or

authorisation process is not inconsistent with Australia’s

obligations under the World Heritage Convention; and

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(b) the Minister is satisfied that the management arrangement or

authorisation process will promote the management of the

property in accordance with the Australian World Heritage

management principles.

51A Agreements relating to National Heritage places

(1) The Minister may enter into a bilateral agreement containing a

provision relating to a National Heritage place only if:

(a) the Minister is satisfied that the agreement will promote the

management of the place in accordance with the National

Heritage management principles; and

(b) the provision meets the requirements (if any) prescribed by

the regulations.

(2) The Minister may accredit a management arrangement or an

authorisation process under section 46 for the purposes of such a

bilateral agreement only if he or she is satisfied that the

management arrangement or authorisation process will promote the

management of the place concerned in accordance with the

National Heritage management principles.

52 Agreements relating to declared Ramsar wetlands

(1) 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; and

(c) the provision meets the requirements (if any) prescribed by

the regulations.

(2) The Minister may accredit a management arrangement or an

authorisation process under section 46 for the purposes of a

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bilateral agreement containing a provision relating to a declared

Ramsar wetland only if:

(a) the Minister is satisfied that the management arrangement or

authorisation process is not inconsistent with Australia’s

obligations under the Ramsar Convention; and

(b) the Minister is satisfied that the management arrangement or

authorisation process will promote the management of the

wetland in accordance with the Australian Ramsar

management principles.

53 Agreements relating to listed threatened species and ecological

communities

(1) 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

(ca) the Minister has had regard to any approved conservation

advice for the species or community; and

(d) the provision meets the requirements (if any) prescribed by

the regulations.

(2) The Minister may accredit a management arrangement or an

authorisation process under section 46 for the purposes of a

bilateral agreement containing a provision relating to a listed

threatened species or a listed threatened ecological community

only if:

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(a) the Minister is satisfied that the management arrangement or

authorisation process 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 management arrangement or

authorisation process 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 management arrangement or

authorisation process is not inconsistent with any recovery

plan for the species or community or a threat abatement plan;

and

(d) the Minister has had regard to any approved conservation

advice for the species or community.

54 Agreements relating to migratory species

(1) 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.

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(2) The Minister may accredit a management arrangement or an

authorisation process under section 46 for the purposes of a

bilateral agreement containing a provision relating to a listed

migratory species only if:

(a) the Minister is satisfied that the management arrangement or

authorisation process 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 management arrangement or

authorisation process will promote the survival and/or

enhance the conservation status of each species to which the

provision relates.

55 Agreements relating to nuclear actions

The Minister must not enter into a bilateral agreement, or accredit

for the purposes of a bilateral agreement a management

arrangement or an authorisation process, 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.

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56 Agreements relating to prescribed actions

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.

Subdivision C—Minor amendments of bilateral agreements

56A Ministerial determination of minor amendments to bilateral

agreements

(1) This section applies if:

(a) the Minister intends to develop a draft amendment to a

bilateral agreement (the principal agreement); and

(b) the Minister is satisfied that the amendment will not have a

significant effect on the operation of the principal agreement;

and

(c) the Minister makes a determination, in writing, to that effect.

(2) If the Minister makes a determination under paragraph (1)(c):

(a) the following provisions of this Part do not apply in relation

to the amendment to the principal agreement:

(i) subsection 45(3);

(ii) paragraphs 45(4)(b) and (c);

(iii) section 49A; and

(b) the Minister must publish the principal agreement, as

amended by the amending agreement, at the same time as

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publishing the amending agreement under

paragraph 45(4)(a).

(3) A determination made under paragraph (1)(c) is not a legislative

instrument.

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Division 3—Suspending and ending the effect of bilateral

agreements

Subdivision A—Suspension and cancellation of effect

57 Representations about suspension or cancellation

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.

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58 Consultation before cancellation or suspension

(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.

59 Suspension or cancellation

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

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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

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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.

60 Emergency suspension of effect of bilateral agreement

(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 for the shorter of the following periods:

(a) 3 months;

(b) the period that is specified in the notice (either by reference

to time or by reference to the occurrence of an event).

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(4) Subsection (3) has effect subject to section 62.

(5) As soon as practicable after the Minister (the Environment

Minister) gives the appropriate Minister of the State or Territory

(the State or Territory Minister) notice of the suspension, the

Environment Minister must consult the State or Territory Minister

about the non-compliance.

(6) To avoid doubt, this section has effect despite sections 58 and 59.

61 Cancellation during suspension

(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.

62 Revocation of notice of suspension or cancellation

(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 must revoke the notice of suspension or cancellation

by another written notice:

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(a) given to the appropriate Minister of the State or Territory;

and

(b) published in accordance with the regulations.

However, the Environment Minister must 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.

63 Cancellation or suspension at request of other party

Minister must give notice of cancellation or suspension

(1) The Minister must 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

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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.

64 Cancellation or suspension of bilateral agreement does not affect

certain actions

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 accordance with a

management arrangement or an authorisation process that is a

bilaterally accredited management arrangement or a bilaterally

accredited authorisation process for the purposes of the agreement,

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this Act continues to operate in relation to the action as if the

suspension or cancellation had not occurred.

Subdivision B—Expiry of bilateral agreements

65 Expiry and review of bilateral agreements

(1) A bilateral agreement ceases to have effect for the purposes of this

Act at the time when the agreement provides for it to cease to so

have effect.

Note: The parties to a bilateral agreement may also agree to revoke it.

(2) The Minister must cause a review of the operation of a bilateral

agreement to be carried out at least once every 5 years while the

agreement remains in effect. The Minister must give a copy of the

report of each review to the appropriate Minister of the State or

Territory that is party to the agreement.

Note: A bilateral agreement may also provide for review of its operation.

(3) The Minister must publish the report on each subsection (2) review

in accordance with the regulations.

65A Expiry of bilateral agreement does not affect certain actions

Application of subsection (2)

(1) Subsection (2) 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 agreement ceases to have effect for the purposes of this Act

under section 65.

Actions already approved may be taken

(2) This Act continues to operate in relation to the action as if the

agreement had not ceased to have effect if the action was able to be

taken without approval under Part 9 because its taking had already

been approved in accordance with a management arrangement or

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an authorisation process that was a bilaterally accredited

management arrangement or a bilaterally accredited authorisation

process for the purposes of the agreement.

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Chapter 4—Environmental assessments and

approvals

Part 6—Simplified outline of this Chapter

66 Simplified outline of this Chapter

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 accredited by the Minister; or

(ca) information included in the referral; or

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(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.

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67 What is a controlled action?

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 (or would, but

for section 25AA or 28AB, be) prohibited by the provision. The

provision is a controlling provision for the action.

67A Prohibition on taking controlled action without approval

A person must not take a controlled action unless an approval of

the taking of the action by the person is in operation under Part 9

for the purposes of the relevant provision of Part 3.

Note: A person can be restrained from contravening this section by an

injunction under section 475.

68 Referral by person proposing to take 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.

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(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.

(5) Subsections (1) and (2) do not apply in relation to a person

proposing to take an action if the person has been informed by the

Minister under section 73 that the proposal has been referred to the

Minister.

(6) This section is affected by section 68A.

68A Actions proposed to be taken under a contract etc.

(1) This section applies in relation to an action that is proposed to be

taken under a contract or an agreement, arrangement or

understanding, other than:

(a) a subcontract; or

(b) an agreement, arrangement or understanding entered into for

the purposes of a contract or another agreement, arrangement

or understanding.

Note: A person proposing to take an action under a subcontract, or an

agreement, arrangement or understanding entered into for the

purposes of a contract or another agreement, arrangement or

understanding, is not required or permitted to refer the proposal to

take the action to the Minister under section 68.

(2) For the purposes of section 68 and subject to subsection (3), a

reference to, or relating to, a person proposing to take the action is

a reference to, or relating to, any of the following persons:

(a) a party to the contract, agreement, arrangement or

understanding for whose benefit the action is proposed to be

taken;

(b) a person who:

(i) requested or procured, or proposes to request or procure,

the creation of the contract, agreement, arrangement or

understanding; and

(ii) is to be responsible for controlling and directing the

taking of the proposed action.

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(3) If a person (the first person) referred to in paragraph (2)(a) or (b)

refers a proposal to take the action to the Minister under section 68:

(a) no other person is required or permitted to refer a proposal to

take the action to the Minister under section 68; and

(b) for the purposes of this Chapter, a reference to, or relating to,

the person proposing to take the action is a reference to, or

relating to, the first person.

(4) For the purposes of this section, a reference to a contract or

subcontract or an agreement, arrangement or understanding

includes a reference to a proposed contract, proposed subcontract,

proposed agreement, proposed arrangement or proposed

understanding.

(5) Nothing in this section is intended to affect the capacity of a person

to refer a proposal to take an action to the Minister under

subsection 68(1) or (2) on behalf of the person proposing to take

the action.

69 State or Territory may refer proposal to Minister

(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.

70 Minister may request referral of proposal

(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:

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(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 or a

longer period agreed by the Minister and the requested person,

State, Territory or agency (as appropriate).

Note 1: If the proposal to take the action is not referred, the person 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).

Deemed referral of proposal

(3) If:

(a) the Minister has made a request under subsection (1); and

(b) the period for compliance with the request has ended; and

(c) the requested person has not referred the proposal to the

Minister in accordance with the request;

the Minister may, within 20 business days after the end of that

period, determine in writing that this Act has effect as if:

(d) if paragraph (1)(a) applies—the requested person had

referred the proposal to the Minister under subsection 68(1)

at the time the determination was made; or

(e) if paragraph (1)(b) applies—the requested person had

referred the proposal to the Minister under subsection 69(1)

at the time the determination was made.

(4) A determination under subsection (3) has effect accordingly.

(5) A copy of a determination under subsection (3) is to be given to the

requested person.

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(6) Subsection 68(3) and section 72 do not apply to a referral covered

by subsection (3) of this section.

(8) Subsection 74(3) applies to a referral covered by subsection (3) of

this section as if the reference in paragraph 74(3)(a) to the referral

were a reference to the determination concerned.

71 Commonwealth agency may refer proposal to Minister

(1) A Commonwealth agency 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

agency 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.

72 Form and content of referrals

(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.

(3) A referral of a proposal to take an action may include alternative

proposals relating to any of the following:

(a) the location where the action is to be taken;

(b) the time frames within which the action is to be taken;

(c) the activities that are to be carried out in taking the action.

73 Informing person proposing to take action of referral

As soon as practicable after receiving a referral under section 69 or

71 of a proposal by a person to take an action, the Minister must:

(a) inform the person of the referral; and

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(b) invite the person to give the Minister relevant information

about whether the action is a controlled action, within 10

business days.

73A Informing Great Barrier Reef Marine Park Authority of

proposal affecting Great Barrier Reef Marine Park

If:

(a) a proposal to take an action is referred to the Minister; and

(b) the action, or a component of the action, is to be taken in the

Great Barrier Reef Marine Park;

the Minister must, as soon as practicable after receiving the

referral, give a copy of the referral to the Great Barrier Reef

Marine Park Authority.

74 Inviting provision of information on referred proposal

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 the Australian Heritage Council

(1A) If the Minister thinks, in relation to an action that is the subject of a

proposal referred to the Minister, that section 15B or 15C could be

a controlling provision for the proposed action because of National

Heritage values of a National Heritage place, the Minister may

invite the Australian Heritage Council to give the Minister

comments, within 10 business days (measured in Canberra), on

whether the proposed action is a controlled action.

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Note: Sections 15B and 15C protect the National Heritage values of

National Heritage places.

(1B) If the Minister thinks, in relation to an action that is the subject of a

proposal referred to the Minister, that section 23, 24A, 24B, 24C,

26, 27A, 27B, 27C or 28 could be a controlling provision for the

proposed action because of heritage values of a place, the Minister

may invite the Australian Heritage Council to give the Minister

comments, within 10 business days (measured in Canberra), on

whether the proposed action is a controlled action.

Note: Sections 23, 24A, 24B, 24C, 26, 27A, 27B, 27C and 28 protect the

environment, which includes the heritage values of places. See the

definition of environment in section 528.

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, if he or she 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):

(a) inform the appropriate Minister of the State or Territory; and

(b) invite that Minister to give the Environment Minister within

10 business days:

(i) comments on whether the proposed action is a

controlled action; and

(ii) information relevant to deciding which approach would

be appropriate to assess the relevant impacts of the

action (including if the action could be assessed under a

bilateral agreement).

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 public comment

(3) As soon as practicable after receiving a referral of a proposal to

take an action, the Environment Minister must cause to be

published on the internet:

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(a) the referral; and

(b) an invitation for anyone to give the Minister comments

within 10 business days (measured in Canberra) on whether

the action is a controlled action.

Note: If the action is also the subject of a permit application under

section 200, 215, 237 or 257 and the application is made at the same

time as the referral, the referral and invitation for comments that must

be published under this subsection may be published together with the

application and invitation for comments that must be published under

section 200, 215, 237 or 257.

Non-disclosure of commercial-in-confidence information

(3A) The Environment Minister may refuse to cause to be published on

the internet, under subsection (3), so much of the information

included in a referral as the Minister is satisfied is

commercial-in-confidence.

(3B) The Environment Minister must not be satisfied that particular

information included in a referral is commercial-in-confidence

unless a person demonstrates to the Minister that:

(a) release of the information would cause competitive detriment

to the person; and

(b) the information is not in the public domain; and

(c) the information is not required to be disclosed under another

law of the Commonwealth, a State or a Territory; and

(d) the information is not readily discoverable.

74A Minister may request referral of a larger action

(1) If the Minister receives a referral in relation to a proposal to take

an action by a person, and the Minister is satisfied the action that is

the subject of the referral is a component of a larger action the

person proposes to take, the Minister may decide to not accept the

referral.

(2) If the Minister decides to not accept a referral under subsection (1),

the Minister:

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(a) must give written notice of the decision to the person who

referred the proposal to the Minister; and

(b) must give written notice of the decision to the person who is

proposing to take the action that was the subject of the

referral; and

(c) may, under section 70, request of the person proposing to

take the action that was the subject of the referral, that they

refer the proposal, to take the larger action, to the Minister.

(3) To avoid doubt, sections 73 and 74 do not apply to a referral that

has not been accepted in accordance with subsection (1).

(4) If the Minister decides to accept a referral under subsection (1), the

Minister must, at the time of making a decision under section 75:

(a) give written notice of the decision to the person who referred

the proposal to the Minister;

(b) publish in accordance with the regulations (if any), a copy or

summary of the decision.

74AA Offence of taking action before decision made in relation to

referral etc.

Referral made: taking action while decision making process still

going on

(1) A person commits an offence if:

(a) the person takes an action; and

(b) either:

(i) a proposal to take the action (or a larger action of which

the action is a component) has been referred to the

Minister by the person under section 68; or

(ii) a proposal to take the action (or a larger action of which

the action is a component) has been referred to the

Minister under section 69 or 71 and the person has been

informed of the referral under section 73; and

(c) the referral has not been withdrawn under section 170C; and

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(d) the Minister has not decided under subsection 74A(1) not to

accept the referral; and

(e) provisions of this Chapter are not stopped by Division 1A

from applying in relation to the referral; and

(f) provisions of this Chapter are not stopped by section 155

from applying because of the referral in relation to the action

(or a larger action of which the action is a component); and

(g) no decision that the action (or a larger action of which the

action is a component) is not a controlled action is in

operation under section 75 in relation to the referral; and

(h) no decision is in operation under Part 9 in relation to the

referral approving, or not approving, the taking of the action

(or a larger action of which the action is a component).

Penalty: 500 penalty units.

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

criminal responsibility.

(2) Subsection (1) does not apply to the taking of an action by a person

if:

(a) the taking of the action is reasonably necessary in order to

comply with a requirement or request made under this Part or

Part 8 or 9 in relation to the action (or a larger action of

which the action is a component); and

(b) before taking the action, the person gave the Minister written

notice of the taking of the action; and

(c) the notice was given in accordance with any applicable

requirements of the regulations.

Note: A defendant bears an evidential burden in relation to the matters in

subsection (1): see subsection 13.3(3) of the Criminal Code.

Referral requested: taking action before requested referral is made

(3) A person commits an offence if:

(a) the person takes an action; and

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(b) the Minister, under section 70, has requested the referral by

the person of a proposal to take the action (or a larger action

of which the action is a component) to the Minister; and

(c) the request has not been revoked; and

(d) the referral has not been made.

Penalty: 500 penalty units.

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

criminal responsibility.

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Division 1A—Decision that action is clearly unacceptable

74B Application of this Division

(1) This Division applies to the referral of a proposal to take an action

if, within 20 business days after the Minister receives the referral:

(a) the Minister considers, on the basis of the information in the

referral, that it is clear that the action would have

unacceptable impacts on a matter protected by a provision of

Part 3; and

(b) the Minister decides that this Division should apply to the

referral.

(2) If this Division applies to a referral, any other provisions of this

Chapter that would, apart from this subsection, have applied to the

referral cease to apply to the referral.

(3) Subsection (2) has effect subject to paragraph 74D(6)(a).

74C Informing person proposing to take action that action is clearly

unacceptable

(1) As soon as practicable after making the decision under

paragraph 74B(1)(b) in relation to a referral, the Minister must give

written notice of the decision to:

(a) the person proposing to take the action that is the subject of

the referral; and

(b) the person who referred the proposal to the Minister (if that

person is not the person proposing to take the action that is

the subject of the referral).

(2) The notice must:

(a) state that the Minister considers that the action would have

unacceptable impacts on a matter protected by a provision of

Part 3; and

(b) set out the reasons for the Minister’s decision.

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(3) After receiving the notice under subsection (1), the person

proposing to take the action may:

(a) withdraw the referral and take no further action in relation to

the proposed action; or

(b) withdraw the referral and refer a new proposal to take a

modified action to the Minister in accordance with

Division 1; or

(c) request the Minister, in writing, to reconsider the referral.

Note 1: Section 170C sets out the procedure for withdrawing a referral.

Note 2: A referral of a proposal to take a modified action will be a new

referral for the purposes of this Chapter.

74D Procedure if Minister is requested to reconsider referral

(1) This section applies if the Minister receives a request under

paragraph 74C(3)(c) to reconsider a referral.

Inviting public comment

(2) The Minister must, within 10 business days after receiving the

request, publish on the internet:

(a) a notice stating that the Minister proposes not to approve the

taking of the action that is the subject of the referral; and

(b) the reasons for the Minister’s decision; and

(c) an invitation for anyone to give the Secretary, within 10

business days (measured in Canberra), comments in writing

on:

(i) the impacts that the action would have on a matter

protected by a provision of Part 3; and

(ii) the Minister’s proposal to refuse to approve the taking

of the action.

Report about relevant impacts of action

(3) Within 10 business days after the end of the period for comment

under paragraph (2)(c), the Secretary must:

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(a) prepare a written report about the relevant impacts that the

action has or will have, or is likely to have, on a matter

protected by a provision of Part 3; and

(b) give the Minister:

(i) the report; and

(ii) a copy of any comments received by the Secretary

within the period for comment.

In preparing the report, the Secretary must have regard to the

comments referred to in subparagraph (b)(ii).

Decision following reconsideration

(4) Within 20 business days after receiving the report under

subsection (3), the Minister must:

(a) if the Minister still considers that it is clear that the action

would have unacceptable impacts on a matter protected by a

provision of Part 3—decide to refuse to approve the taking of

the action; or

(b) decide that the referral is to be dealt with under the

provisions of this Chapter that, because of subsection 74B(2),

have ceased to apply to the referral.

(5) If the Minister decides to refuse to approve the taking of the action,

the Minister must, within 10 business days after making the

decision, give notice of the decision to:

(a) the person proposing to take the action; and

(b) the person who referred the proposal to the Minister (if that

person is not the person proposing to take the action).

Note: The person proposing to take the action may request reasons for the

refusal and the Minister must give them. See section 13 of the

Administrative Decisions (Judicial Review) Act 1977.

(6) If the Minister makes a decision under paragraph (4)(b):

(a) the provisions of this Chapter that, because of

subsection 74B(2), have ceased to apply to the referral start

to apply to the referral; and

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(b) for the purposes of the application of those provisions, a day

is not to be counted as a business day if it is:

(i) on or after the day the Minister received the referral;

and

(ii) on or before the day the Minister makes the decision

under paragraph (4)(b).

Note: If the Minister had already complied with section 74 in relation to the

referral before the Minister made the decision under

paragraph 74B(1)(b) in relation to the referral, the Minister is not

required to comply with section 74 again.

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Division 2—Ministerial decision whether action needs

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75 Does the proposed action need approval?

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.

Note: The Minister may revoke a decision made under subsection (1) about

an action and substitute a new decision. See section 78.

(1AA) To avoid doubt, the Minister is not permitted to make a decision

under subsection (1) in relation to an action that was the subject of

a referral that was not accepted under subsection 74A(1).

Minister must consider public comment

(1A) In making a decision under subsection (1) about the action, the

Minister must consider the comments (if any) received:

(a) in response to the invitation under subsection 74(3) for

anyone to give the Minister comments on whether the action

is a controlled action; and

(b) within the period specified in the invitation.

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;

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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.

Note: Impact is defined in section 527E.

(2A) For the purposes of subsection (2), if the provision of Part 3 is

subsection 15B(3), 15C(5), 15C(6), 23(1), 24A(1), 24D(3), 24E(3),

26(1) or 27A(1), then the impacts of the action on the matter

protected by that provision are only those impacts that the part of

the action that is taken in or on a Commonwealth area, a Territory,

a Commonwealth marine area or Commonwealth land:

(a) has or will have; or

(b) is likely to have;

on the matter.

(2AA) For the purposes of subsection (2), if the provision of Part 3 is

subsection 24B(1) or 24C(1) or (3), then the impacts of the action

on the matter protected by that provision are only those impacts

that the part of the action that is taken in the Great Barrier Reef

Marine Park:

(a) has or will have; or

(b) is likely to have;

on the matter.

(2B) Without otherwise limiting any adverse impacts that the Minister

must consider under paragraph (2)(a), the Minister must not

consider any adverse impacts of:

(a) any RFA forestry operation to which, under Division 4 of

Part 4, Part 3 does not apply; or

(b) any forestry operations in an RFA region that may, under

Division 4 of Part 4, be undertaken without approval under

Part 9.

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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 under subsection (1) and, if

applicable, the designation under subsection (3), within 20 business

days after the Minister receives the referral of the proposal to take

the action.

Note: If the Minister decides, under subsection 75(1), that the action is a

controlled action, the Minister must, unless the Minister has requested

more information under subsection 76(3) or section 89, decide on the

approach to be used for assessment of the relevant impacts of the

action on the same day as the Minister makes the decision under

subsection 75(1)—see subsection 88(2).

Time does not run while further information being sought

(6) If the Minister has requested more information under

subsection 76(1) or (2) 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.

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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.

76 Minister may request more information for making decisions

(1) 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.

(2) Before the Minister makes the decisions under subsection 75(1) in

relation to the action, the Minister may request the person

proposing to take the action to provide information about whether

or not the action is a component of a larger action that is proposed

to be taken by the person.

(3) If the Minister believes on reasonable grounds that the information

given to the Minister in relation to the 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 person proposing to take the action to

provide specified information relevant to making the decision.

(4) Without limiting subsection (3), if the action is to be taken in a

State or self-governing Territory, the Minister may request the

person proposing to take the action to provide information about:

(a) whether the relevant impacts of the action have been, or are

being, assessed by the State or Territory; and

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(b) if so, the method of assessment that was, or is being, used

and what stage the assessment has reached.

(5) The Minister may make a request under subsection (3) even if the

Minister has not yet made the decisions under subsection 75(1) in

relation to the action.

77 Notice and reasons for 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.

Reasons for decision

(4) The Minister must give reasons for the decision to a person who:

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(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.

77A Action to be taken in a particular manner

(1) If, in deciding whether the action is a controlled action or not, the

Minister has made a decision (the component decision) that a

particular provision of Part 3 is not a controlling provision for the

action because the Minister believes it will be taken in a particular

manner, the notice, to be provided under section 77, must set out

the component decision, identifying the provision and the manner.

Note: The Minister may decide that a provision of Part 3 is not a controlling

provision for an action because he or she believes that 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 the matter protected by the

provision.

(1A) For the purposes of subsection (1), it does not matter whether or

not the Minister believes that the action will be taken in accordance

with:

(a) an accredited management arrangement or an accredited

authorisation process for the purposes of a declaration under

section 33; or

(b) a bioregional plan to which a declaration made under

section 37A relates; or

(c) a bilaterally accredited management arrangement or a

bilaterally accredited authorisation process for the purposes

of a bilateral agreement.

(2) A person must not take an action, that is the subject of a notice that

includes a particular manner under subsection (1), in a way that is

inconsistent with the manner specified in the notice.

Civil penalty:

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(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.

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Division 3—Reconsideration of decisions

78 Reconsideration of decision

Limited power to vary or substitute decisions

(1) The Minister may revoke a decision (the first decision) made under

subsection 75(1) about an action 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 the availability of substantial new information

about the impacts that the action:

(i) has or will have; or

(ii) is likely to have;

on a matter protected by a provision of Part 3; or

(aa) the Minister is satisfied that the revocation and substitution is

warranted by a substantial change in circumstances that was

not foreseen at the time of the first decision and relates to the

impacts that the action:

(i) has or will have; or

(ii) is likely to have;

on a matter protected by a provision of Part 3; or

(b) the following requirements are met:

(i) 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 under

subsection 77A(1) in the notice given under section 77;

(ii) the Minister is satisfied that the action is not being, or

will not be, taken in the manner identified; or

(ba) the following requirements are met:

(i) the first decision was that the action was not a

controlled action because of a provision of a bilateral

agreement and a management arrangement or an

authorisation process that is a bilaterally accredited

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management arrangement or a bilaterally accredited

authorisation process for the purposes of the agreement;

(ii) the provision of the agreement no longer operates in

relation to the action, or the management arrangement

or authorisation process is no longer in force under, or

set out in, a law of a State or a self-governing Territory

identified in or under the agreement; or

(c) the following requirements are met:

(i) the first decision was that the action was not a

controlled action because of a declaration under

section 33 and a management arrangement or an

authorisation process that is an accredited management

arrangement or an accredited authorisation process for

the purposes of the declaration;

(ii) the declaration no longer operates in relation to the

action, or the management arrangement or authorisation

process is no longer in operation under, or set out in, a

law of the Commonwealth identified in or under the

declaration; or

(ca) the following requirements are met:

(i) the first decision was that the action was not a

controlled action because of a declaration under

section 37A and a bioregional plan to which the

declaration relates;

(ii) the declaration no longer operates in relation to the

action, or the bioregional plan is no longer in force; or

(d) the Minister is requested under section 79 to reconsider the

decision.

Note 1: Subsection 75(1) provides for decisions about whether an action is a

controlled action and what the controlling provisions for the action

are.

Note 2: A person (other than a Minister of a State or self-governing Territory)

may request the Minister to reconsider a decision made under

subsection 75(1) about an action on the basis of a matter referred to in

any of paragraphs 78(1)(a) to (ca). See section 78A.

Note 3: If the Minister decides to revoke a decision under subsection (1) and

substitute a new decision for it, the Minister is not required to carry

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out the processes referred to in sections 73 and 74 again before

making the new decision.

Reversing decision that provision of Part 3 is not controlling

provision

(2) A provision of Part 3 letting an action be taken if the Minister has

decided that a particular provision (the prohibiting provision) of

that Part is not a controlling provision for the action does not

prevent the Minister from acting under subsection (1) to revoke a

decision that the prohibiting provision is not a controlling

provision for an action and substitute a decision that the prohibiting

provision is a controlling provision for the action.

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.

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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.

78A Request for reconsideration of decision by person other than

State or Territory Minister

(1) A person (other than a Minister of a State or self-governing

Territory) may request the Minister to reconsider a decision made

under subsection 75(1) about an action on the basis of a matter

referred to in any of paragraphs 78(1)(a) to (ca).

Note: Section 79 deals with requests for reconsideration by a Minister of a

State or self-governing Territory.

(2) A request under subsection (1) must:

(a) be in writing; and

(b) set out the basis on which the person thinks the decision

should be reconsidered; and

(c) if the regulations specify other requirements for requests

under subsection (1)—comply with those requirements.

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(3) If a request is made under subsection (1) in relation to a decision

that an action is a controlled action, or that particular provisions are

controlling provisions for an action, then:

(a) if the request is made by the designated proponent of the

action—Part 8 ceases to apply in relation to the action until

the Minister makes a decision in relation to the request; but

(b) if the request is made by another person—the application of

Part 8 in relation to the action is not affected by the making

of the request (subject to the outcome of the reconsideration).

(4) If:

(a) because of paragraph (3)(a), Part 8 has ceased to apply in

relation to an action; and

(b) the Minister confirms the decision that is the subject of the

request under subsection (1);

then:

(c) the application of Part 8 in relation to the action resumes (as

does any assessment process under that Part that had

previously commenced in relation to the action); and

(d) for the purposes of the resumed application of Part 8, a day is

not to be counted as a business day if it is:

(i) on or after the day the Minister received the request; and

(ii) on or before the day the Minister confirms the decision.

78B Minister must inform interested persons of request and invite

comments

(1) The Minister (the Environment Minister) must comply with this

section if he or she receives a request under section 78A to

reconsider a decision made under subsection 75(1) about an action.

Informing designated proponent of request and inviting comments

(2) If the request is made by a person other than the designated

proponent of the action, the Environment Minister must:

(a) inform the designated proponent of the request in accordance

with subsection (3); and

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(b) invite the designated proponent to give the Environment

Minister, within 10 business days, comments on the request.

(3) For the purpose of paragraph (2)(a), the Environment Minister

must inform the designated proponent of the request by giving the

designated proponent such information relating to the request as

the Minister considers appropriate. The Minister need not (for

example) reveal the identity of the person who made the request.

Inviting other Commonwealth Ministers to provide information

(4) The Environment Minister must:

(a) inform any other Minister who the Environment Minister

believes has administrative responsibilities relating to the

action of the request; and

(b) invite each Minister informed to give the Environment

Minister, within 10 business days, information about whether

a matter referred to in any of paragraphs 78(1)(a) to (ca) is

applicable in relation to the action.

Inviting comments from appropriate State or Territory Minister

(5) If the request relates to an action proposed to be taken in a State or

self-governing Territory and 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), the Environment Minister must:

(a) inform the appropriate Minister of the State or Territory of

the request; and

(b) invite that Minister to give the Environment Minister, within

10 business days:

(i) comments on whether a matter referred to in any of

paragraphs 78(1)(a) to (ca) is applicable in relation to

the action; and

(ii) any other information that the Minister of the State or

Territory considers relevant to the reconsideration.

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Note: Subsection (5) also applies in relation to a request that relates to an

action that is to be taken in an area offshore from a State or the

Northern Territory. See section 157.

Inviting public comment

(6) The Environment Minister must publish on the internet:

(a) the request; and

(b) an invitation for anyone to give the Environment Minister,

within 10 business days (measured in Canberra), comments

in writing on whether a matter referred to in any of

paragraphs 78(1)(a) to (ca) is applicable in relation to the

action.

78C Minister must reconsider decision and give notice of outcome

Reconsideration of decision

(1) As soon as practicable after the end of the time within which

information or comments may be given under section 78B in

relation to a request under section 78A to reconsider a decision

about an action, the Minister must:

(a) reconsider the decision; and

(b) either:

(i) confirm the decision; or

(ii) revoke the decision in accordance with

subsection 78(1), and substitute a new decision for it.

Notice of outcome of reconsideration

(2) The Minister must give written notice of the outcome of the

reconsideration to:

(a) the person who requested the reconsideration; and

(b) the person proposing to take the action (if that person is not

the person referred to in paragraph (a)); and

(c) the designated proponent of the action (if the designated

proponent is not the person referred to in paragraph (a) or

(b)); and

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(d) if the reconsideration relates to an action referred to in

subsection 78B(5)—the appropriate Minister of the State or

Territory.

(3) After giving notice as described in subsection (2), the Minister

must publish notice of the outcome of the reconsideration. The

regulations may specify how the publication is to be made. Subject

to any such regulations, the publication must be made in a way the

Minister considers appropriate.

Reasons for outcome of reconsideration

(4) The Minister must give reasons for the outcome of the

reconsideration to a person who:

(a) has been given notice of the outcome of the reconsideration

under paragraph (2)(a), (b) or (c); and

(b) within 28 days after 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 after receiving the request.

79 Reconsideration of decision on request by a State or Territory

(1) This section applies if the Minister (the Environment Minister)

has made a decision under subsection 75(1) 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 a self-governing Territory.

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 10 business days after the appropriate Minister of the State

or Territory is notified of the decision under

subparagraph 77(1)(a)(iii), that Minister may request the

Environment Minister to reconsider the Environment Minister’s

decisions made under subsection 75(1).

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(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.

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Part 8—Assessing impacts of controlled actions

Division 1—Simplified outline of this Part

80 Simplified outline of this Part

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) an accredited assessment process;

(aa) an assessment on referral information (see

Division 3A);

(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).

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Division 2—Application of this Part

81 Application

(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.

82 What are the relevant impacts of an action?

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, 2, 3 or 3A 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.

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Relationship between subsections (1) and (2)

(3) Subsection (1) has effect despite subsection (2).

(4) For the purposes of subsections (1) and (2), if subsection 15B(3),

15C(5), 15C(6), 23(1), 24A(1), 24D(3), 24E(3), 26(1) or 27A(1) is,

or would be, a controlling provision for the action, then the impacts

of the action on the matter protected by that provision are only

those impacts that the part of the action that is taken in or on a

Commonwealth area, a Territory, a Commonwealth marine area or

Commonwealth land:

(a) has or will have; or

(b) is likely to have;

on the matter.

(5) For the purposes of subsections (1) and (2), if subsection 24B(1) or

24C(1) or (3) is or would be a controlling provision for the action,

then the impacts of the action on the matter protected by that

provision are only those impacts that the part of the action that is

taken in the Great Barrier Reef Marine Park:

(a) has or will have; or

(b) is likely to have;

on the matter.

83 This Part does not apply if action covered by bilateral agreement

(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.

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Note 2: Section 47 deals with bilateral agreements making declarations

described in paragraph (1)(b).

Note 2A: An action will be in a class of actions declared not to need assessment

under this Part only if the action has been assessed in a manner

specified in the bilateral agreement.

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 in the Great Barrier Reef Marine Park, 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.

84 This Part does not apply if action covered by declaration

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.

Note: An action will be in a class of actions declared not to need assessment

under this Part only if the action has been assessed in a manner

specified in the declaration.

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 a declaration

(3) The Minister may make a declaration only if he or she is satisfied

that:

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(a) assessment of an action in the specified manner will include

assessment of the impacts the action:

(i) has or will have; or

(ii) is likely to have;

on each matter protected by a provision of Part 3; and

(b) the specified manner of assessment meets the standards (if

any) prescribed by the regulations; and

(c) if the taking of an action assessed in the specified manner

must be approved under Part 9, he or she will receive a report

including, or accompanied by, enough information about 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 purpose of each controlling provision) the taking of the

action.

Further requirements for making a declaration

(3A) Sections 34A, 34B, 34BA, 34C, 34D, 34E and 34F apply in

relation to the making of a declaration under this section in the

same way that they apply to the making of a declaration under

section 33.

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.

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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.

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Division 3—Decision on assessment approach

Subdivision A—Simplified outline of this Division

85 Simplified outline of this Division

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) an accredited assessment process;

(aa) an assessment on referral information;

(b) an assessment on preliminary documentation;

(c) a public environment report;

(d) an environmental impact statement;

(e) a public inquiry.

Subdivision B—Deciding on approach for assessment

87 Minister must decide on approach for assessment

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 an action

that the Minister has decided is a controlled action:

(a) assessment by an accredited assessment process;

(aa) assessment on referral information under Division 3A;

(b) assessment on preliminary documentation under Division 4;

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(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.

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; 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 subparagraph 74(2)(b)(ii); and

(d) the matters (if any) prescribed by the regulations; and

(e) the guidelines (if any) published under subsection (6).

Accredited assessment process

(4) The Minister may decide on an assessment by an accredited

assessment process only if the Minister is satisfied that:

(a) the process is to be carried out under a law of the

Commonwealth, a State or a self-governing Territory; and

(b) the process and the law meet the standards (if any) prescribed

by the regulations; and

(c) the process will ensure that the relevant impacts of the action

are adequately assessed; and

(d) 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.

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Assessment on referral information

(4A) The Minister may decide on an assessment on referral information

under Division 3A only if the Minister is satisfied (after

considering the matters in subsection (3)) that the action meets the

criteria prescribed in the regulations for the purposes of this

subsection.

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.

Guidelines for choosing assessment approach

(6) The Minister may publish in the Gazette guidelines setting out

criteria for deciding which approach must be used for assessing the

relevant impacts of an action.

88 Timing of decision on assessment approach

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 the Minister receives the referral of the proposal to take

the action.

Note: Section 156 sets out rules about time limits.

When initial decision must be made

(2) The Minister must make the decision under subsection (1) on the

same day as the Minister has decided, under subsection 75(1), that

the action is a controlled action, unless the Minister has requested

more information under subsection 76(3) or section 89 for the

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purposes of deciding on the approach to be used for assessment of

the relevant impacts of the action.

Time does not run while further information sought

(4) If the Minister has requested more information in relation to the

action under subsection 76(1), (2) or (3) or section 89, 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.

89 Minister may request more information for making decision

(1) 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.

(2) Without limiting subsection (1), if the action is to be taken in a

State or self-governing Territory, the Minister may request the

designated proponent of the action to provide information about:

(a) whether the relevant impacts of the action have been, or are

being, assessed by the State or Territory; and

(b) if so, the method of assessment that was, or is being, used

and what stage the assessment has reached.

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(3) The Minister may make a request in relation to an action under this

section even if the Minister has made a request under

subsection 76(3) in relation to the action.

90 Directing an inquiry after starting an assessment

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 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.

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91 Notice of decision on assessment approach

(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 person proposing to take the action; and

(ia) the designated proponent of the action (if the designated

proponent is not the person proposing to take 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.

(1A) In the written notice of the decision, the Minister must also advise

the person proposing to take the action that the person may elect

under section 132B to submit an action management plan for

approval.

Note: An action management plan is approved after a decision is made

approving the taking of the action.

(2) If the Minister decided that the relevant impacts of the action are to

be assessed by an accredited assessment process, the written notice

and the published notice must specify the process.

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Division 3A—Assessment on referral information

92 Application of this Division

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 referral information under this

Division.

93 Recommendation report

(1) The Secretary must comply with this section within 30 business

days after the Minister makes the decision under section 87.

(2) The Secretary must prepare a draft recommendation report that

includes recommendations on:

(a) whether the taking of the action should be approved under

Part 9; and

(b) if approval is recommended, any conditions that should be

attached to the approval.

(3) The Secretary must publish on the internet:

(a) the draft recommendation report; and

(b) an invitation for anyone to give the Secretary, within 10

business days (measured in Canberra), comments in writing

relating to the draft recommendation report or the action.

(3A) The Secretary may refuse to publish on the internet, under

subsection (3), so much of the draft recommendation report as:

(a) is:

(i) an exempt document under subparagraph 33(a)(i) of the

Freedom of Information Act 1982 (documents affecting

national security, defence or international relations); or

(ii) a conditionally exempt document under section 47C of

that Act (deliberative processes) to which access would,

on balance, be contrary to the public interest for the

purposes of subsection 11A(5) of that Act; or

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(b) the Secretary is satisfied is commercial-in-confidence.

(3B) The Secretary must not be satisfied that a part of the draft

recommendation report is commercial-in-confidence unless a

person demonstrates to the Secretary that:

(a) release of the information in that part would cause

competitive detriment to the person; and

(b) the information in that part is not in the public domain; and

(c) the information in that part is not required to be disclosed

under another law of the Commonwealth, a State or a

Territory; and

(d) the information in that part is not readily discoverable.

(4) After the end of the period for comment, the Secretary must

finalise the draft recommendation report, taking account of any

comments received within that period.

(5) As soon as practicable after finalising the draft recommendation

report, the Secretary must give the Minister:

(a) the finalised recommendation report; and

(b) either:

(i) a copy of any comments received within the period for

comment; or

(ii) if no comments were received within that period—a

written statement to that effect.

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Division 4—Assessment on preliminary documentation

94 Application of this Division

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.

95 Direction to publish referral information and invitation to

comment—no further information required

(1) This section applies if the Minister was satisfied, at the time of

making the decision (the assessment approach decision) under

section 87, that the Minister had enough information in relation to

the action to allow the Minister to assess the relevant impacts of

the action.

(2) At the same time as the Minister gives notice of the assessment

approach decision to the designated proponent of the action under

paragraph 91(1)(a), the Minister must give the designated

proponent a written direction to publish, within the period specified

in the direction (not being less than 10 business days), in

accordance with the regulations:

(a) specified information included in the referral to the Minister

of the proposal to take the action; and

(b) specified information relating to the action that was given to

the Minister after the referral but before the Minister made

the assessment approach decision; and

(c) an invitation for anyone to give the designated proponent,

within the period specified in the direction, comments in

writing relating to the information or the action.

(3) The designated proponent must comply with the direction.

Note: If the designated proponent does not comply with the direction, the

Minister may take action under section 155.

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(4) A direction given under subsection (2) is not a legislative

instrument.

95A Direction to publish referral information and invitation to

comment—further information required

(1) This section applies if the Minister was not satisfied, at the time of

making the decision (the assessment approach decision) under

section 87, that the Minister had enough information in relation to

the action to allow the Minister to assess the relevant impacts of

the action.

(2) Within 10 business days after the Minister gives notice of the

assessment approach decision to the designated proponent of the

action under paragraph 91(1)(a), the Minister must request the

designated proponent to give the Minister specified information

relevant to assessing the relevant impacts of the action, including

information about strategies for mitigating any adverse impacts.

(3) Within 10 business days after receiving the information requested

under subsection (2), the Minister must give the designated

proponent a written direction to publish, within the period specified

in the direction (not being less than 10 business days), in

accordance with the regulations:

(a) specified information included in the referral to the Minister

of the proposal to take the action; and

(b) specified information relating to the action that was given to

the Minister after the referral but before the Minister made

the assessment approach decision; and

(c) specified information relating to the action that was received

in response to the Minister’s request under subsection (2);

and

(d) an invitation for anyone to give the designated proponent,

within the period specified in the direction, comments in

writing relating to the information or the action.

(4) The designated proponent must comply with the direction.

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Note: If the designated proponent does not comply with the direction, the

Minister may take action under section 155.

(5) A direction given under subsection (3) is not a legislative

instrument.

95B Procedure after end of period for comment

Procedure if comments are received

(1) If comments are received by the designated proponent within the

period for comment, the designated proponent must, as soon as

practicable after the end of that period:

(a) prepare a document that:

(i) sets out the information given to the Minister previously

in relation to the action, with any changes or additions

needed to take account of the comments; and

(ii) contains a summary of the comments received and how

those comments have been addressed; and

(b) give the Minister:

(i) a copy of the document prepared under paragraph (a);

and

(ii) a copy of the comments received.

(1A) The designated proponent is taken not to have given the Minister

the documents referred to in paragraph (1)(b) if the required fee

has not been paid.

(2) Within 10 business days after the designated proponent has given

the Minister the documents referred to in paragraph (1)(b), the

designated proponent must publish, in accordance with the

regulations, a copy of the document prepared under

paragraph (1)(a).

Procedure if no comments are received

(3) If no comments are received by the designated proponent within

the period for comment, the designated proponent must, as soon as

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practicable after the end of that period, give the Minister a written

statement to that effect.

(3A) The designated proponent is taken not to have given the Minister

the statement referred to in subsection (3) if the required fee has

not been paid.

(4) Within 10 business days after the designated proponent has given

the Minister the statement referred to in subsection (3), the

designated proponent must publish, in accordance with the

regulations, a copy of the information referred to in paragraphs

95(2)(a) and (b) or 95A(3)(a), (b) and (c), as the case requires.

Definition

(5) In this section:

period for comment means the period within which comments may

be given under 95(2)(c) or 95A(3)(d), as the case requires.

95C Recommendation report

(1) The Secretary must prepare, and give to the Minister, a

recommendation report relating to the action. The report must

include recommendations on:

(a) whether the taking of the action should be approved under

Part 9; and

(b) if approval is recommended, any conditions that should be

attached to the approval.

(2) The recommendation report must be given to the Minister after the

Minister receives the documents under subsection 95B(1) or the

statement under subsection 95B(3), as the case requires, and before

the end of the period applicable under paragraph 130(1B)(c) in

relation to the action.

Note: This is the period within which the Minister must decide whether or

not to approve the taking of the action.

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Division 5—Public environment reports

96 Application

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.

96A Minister must give designated proponent written guidelines for

preparation of draft public environment report

(1) The Minister must give the designated proponent of the action

written guidelines for the preparation of a draft public environment

report about the relevant impacts of the action. The guidelines so

given are referred to as the PER guidelines.

(2) The PER guidelines must be:

(a) one or more sets of standard guidelines prepared under

section 96B that the Minister decides are appropriate for the

preparation of the draft report in relation to the action; or

(b) if the Minister decides that standard guidelines are not

appropriate for the preparation of the draft report in relation

to the action—tailored guidelines prepared under section 97.

(3) In deciding whether one or more sets of standard guidelines are

appropriate for the preparation of the draft report in relation to the

action, the Minister must seek to ensure that the draft report, if

prepared in accordance with those guidelines, 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.

Note: Similar considerations apply in relation to tailored guidelines: see

subsection 97(2).

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(4) The Minister must give the PER guidelines to the designated

proponent:

(a) within 20 business days after the assessment approach

decision was made under section 87; or

(b) if the Minister, under section 97, invites a person to comment

on a draft of tailored guidelines for the preparation of the

draft report within a specified period—within 20 business

days after:

(i) the end of that period; or

(ii) if there is more than one such period, the end of the later

or latest of those periods.

96B Standard guidelines

(1) The Minister may prepare one or more sets of standard guidelines,

in writing, for the preparation of draft public environment reports

about the relevant impacts of actions.

Note: See also subsection 96A(3).

(2) A set of standard guidelines must set out requirements for the

content and presentation of draft public environment reports about

the relevant impacts of actions.

(3) Without limiting subsections (1) and (2), a set of standard

guidelines may relate to:

(a) actions that are proposed to be taken by a specified industry

sector; or

(b) actions for which a specified provision of Part 3 is a

controlling provision.

(4) A set of standard guidelines made under this section is not a

legislative instrument.

97 Tailored guidelines

(1) The Minister must prepare tailored guidelines, in writing, for the

preparation of a draft public environment report about the relevant

impacts of an action if the Minister decides that standard guidelines

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are not appropriate for the preparation of the draft report in relation

to that action.

(1A) Tailored guidelines must set out requirements for the content and

presentation of the draft report in relation to the action.

(2) In preparing tailored 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) Tailored 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; 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; and

(c) the action:

(i) is to be taken 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 or by a constitutional corporation;

or

(ii) is an action whose regulation is appropriate and adapted

to give effect to Australia’s obligations under an

agreement with one or more other countries.

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.

(3A) Tailored guidelines may also provide for the draft report to include

information about other certain and likely impacts of the action if:

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(a) the referral of the proposal to take the action is, because of

section 37AB of the Great Barrier Reef Marine Park Act

1975, taken to be an application for a permission for the

purposes of that Act; and

(b) the Great Barrier Reef Marine Park Authority has asked the

Minister to ensure that the draft report includes information

about those other impacts for the purposes of deciding

whether to grant the permission.

(4) Division 2 does not limit:

(a) subsection (3) or (3A); or

(b) section 98 so far as it relates to tailored guidelines prepared

in reliance on that subsection.

(5) In preparing tailored guidelines, the Minister may:

(a) invite anyone to comment on a draft of tailored guidelines

within a period specified by the Minister; and

(b) take account of the comments received (if any).

(6) Tailored guidelines made under this section are not a legislative

instrument.

98 Designated proponent must invite comment on draft public

environment report

Designated proponent’s obligations

(1) The designated proponent of the action must:

(a) prepare a draft public environment report in accordance with

the PER guidelines about:

(i) the relevant impacts of the action; and

(ii) if the PER guidelines are tailored guidelines that require

the draft report to include information about other

impacts—those other impacts; and

(ab) give the draft report to the Minister; and

(b) obtain the Minister’s approval for publication of the draft

report; and

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(c) publish in accordance with the regulations:

(i) the draft report; and

(ii) an invitation for anyone to give the designated

proponent comments in writing relating to the draft

report or the action 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 is in accordance with

the PER guidelines.

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.

99 Finalising public environment report

(1) After the end of the period specified in the invitation to comment

under section 98, the designated proponent must finalise the draft

public environment report.

(2) The finalised report must:

(a) take account of any comments received within the period for

comment; and

(b) contain a summary of any such comments and how those

comments have been addressed.

(3) As soon as practicable after finalising the draft report, the

designated proponent must give the Minister:

(a) the finalised report; and

(b) either:

(i) a copy of any comments received within the period for

comment; or

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(ii) if no comments were received within that period—a

written statement to that effect.

(3A) The designated proponent is taken not to have given the Minister

the documents required under subsection (3) if the required fee has

not been paid.

(4) Within 10 business days after the designated proponent has given

the Minister the documents required under subsection (3), the

designated proponent must publish the finalised report in

accordance with the regulations.

100 Recommendation report

(1) The Secretary must prepare, and give to the Minister, a

recommendation report relating to the action. The report must

include recommendations on:

(a) whether the taking of the action should be approved under

Part 9; and

(b) if approval is recommended, any conditions that should be

attached to the approval.

(2) The recommendation report must be given to the Minister after the

Minister receives the finalised public environment report under

section 99 and before the end of the period applicable under

paragraph 130(1B)(d) in relation to the action.

Note: This is the period within which the Minister must decide whether or

not to approve the taking of the action.

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Division 6—Environmental impact statements

101 Application

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.

101A Minister must give designated proponent written guidelines

for preparation of draft environmental impact statement

(1) The Minister must give the designated proponent of the action

written guidelines for the preparation of a draft environmental

impact statement about the relevant impacts of the action. The

guidelines so given are referred to as the EIS guidelines.

(2) The EIS guidelines must be:

(a) one or more sets of standard guidelines prepared under

section 101B that the Minister decides are appropriate for the

preparation of the draft statement in relation to the action; or

(b) if the Minister decides that standard guidelines are not

appropriate for the preparation of the draft statement in

relation to the action—tailored guidelines prepared under

section 102.

(3) In deciding whether one or more sets of standard guidelines are

appropriate for the preparation of the draft statement in relation to

the action, the Minister must seek to ensure that the draft

statement, if prepared in accordance with those guidelines, 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.

Note: Similar considerations apply in relation to tailored guidelines: see

subsection 102(2).

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(4) The Minister must give the EIS guidelines to the designated

proponent:

(a) within 20 business days after the assessment approach

decision was made under section 87; or

(b) if the Minister, under section 102, invites a person to

comment on a draft of tailored guidelines for the preparation

of the draft statement within a specified period—within 20

business days after:

(i) the end of that period; or

(ii) if there is more than one such period, the end of the later

or latest of those periods.

101B Standard guidelines

(1) The Minister may prepare one or more sets of standard guidelines,

in writing, for the preparation of draft environmental impact

statements about the relevant impacts of actions.

Note: See also subsection 101A(3).

(2) A set of standard guidelines must set out requirements for the

content and presentation of draft environmental impact statements

about the relevant impacts of actions.

(3) Without limiting subsections (1) and (2), a set of standard

guidelines may relate to:

(a) actions that are proposed to be taken by a specified industry

sector; or

(b) actions for which a specified provision of Part 3 is a

controlling provision.

(4) A set of standard guidelines made under this section is not a

legislative instrument.

102 Tailored guidelines

(1) The Minister must prepare tailored guidelines, in writing, for the

preparation of a draft environmental impact statement about the

relevant impacts of an action if the Minister decides that standard

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guidelines are not appropriate for the preparation of the draft

statement in relation to that action.

(1A) Tailored guidelines must set out requirements for the content and

presentation of the draft statement in relation to the action.

(2) In preparing tailored 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) Tailored 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; 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; and

(c) the action:

(i) is to be taken 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 or by a constitutional corporation;

or

(ii) is an action whose regulation is appropriate and adapted

to give effect to Australia’s obligations under an

agreement with one or more other countries.

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.

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(3A) Tailored guidelines may also provide for the draft statement to

include information about other certain and likely impacts of an

action if:

(a) the referral of the proposal to take the action is, because of

section 37AB of the Great Barrier Reef Marine Park Act

1975, taken to be an application for a permission for the

purposes of that Act; and

(b) the Great Barrier Reef Marine Park Authority has asked the

Minister to ensure that the draft statement includes

information about those other impacts for the purposes of

deciding whether to grant the permission.

(4) Division 2 does not limit:

(a) subsection (3) or (3A); or

(b) section 103 so far as it relates to tailored guidelines prepared

in reliance on that subsection.

(5) In preparing tailored guidelines, the Minister may:

(a) invite anyone to comment on a draft of tailored guidelines

within a period specified by the Minister; and

(b) take account of the comments (if any) received.

(6) Tailored guidelines made under this section are not a legislative

instrument.

103 Designated proponent must invite comment on draft

environmental impact statement

Designated proponent’s obligations

(1) The designated proponent of the action must:

(a) prepare a draft environmental impact statement in accordance

with the EIS guidelines about:

(i) the relevant impacts of the action; and

(ii) if the EIS guidelines are tailored guidelines that require

the draft statement to include information about other

impacts—those other impacts; and

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(ab) give the draft statement to the Minister; 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 in writing relating to the draft

statement or the action 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 is in

accordance with the EIS guidelines.

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.

104 Finalising environmental impact statement

(1) After the end of the period specified in the invitation to comment

under section 103, the designated proponent must finalise the draft

environmental impact statement.

(2) The finalised statement must:

(a) take account of any comments received within the period for

comment; and

(b) contain a summary of any such comments and how those

comments have been addressed.

(3) As soon as practicable after finalising the draft statement, the

designated proponent must give the Minister:

(a) the finalised statement; and

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(b) either:

(i) a copy of any comments received within the period for

comment; or

(ii) if no comments were received within that period—a

written statement to that effect.

(3A) The designated proponent is taken not to have given the Minister

the documents required under subsection (3) if the required fee has

not been paid.

(4) Within 10 business days after the designated proponent has given

the Minister the documents required under subsection (3), the

designated proponent must publish the finalised statement in

accordance with the regulations.

105 Recommendation report

(1) The Secretary must prepare, and give to the Minister, a

recommendation report relating to the action. The report must

include recommendations on:

(a) whether the taking of the action should be approved under

Part 9; and

(b) if approval is recommended, any conditions that should be

attached to the approval.

(2) The recommendation report must be given to the Minister after the

Minister receives the finalised environmental impact statement

under section 104 and before the end of the period applicable under

paragraph 130(1B)(d) in relation to the action.

Note: This is the period within which the Minister must decide whether or

not to approve the taking of the action.

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Division 7—Inquiries

Subdivision A—Preliminary

106 Simplified outline

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.

Subdivision B—Establishment of inquiries

107 Appointing commissioners and setting terms of reference

(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.

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(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) if subsection (4) or (4A) applies—may specify other certain

or likely impacts of the action.

(4) For the purposes of paragraph (3)(b), the Minister may specify

other certain or likely impacts of the action if:

(a) the action is to be taken in a State or self-governing

Territory; 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; and

(c) the action:

(i) is to be taken 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 or by a constitutional corporation;

or

(ii) is an action whose regulation is appropriate and adapted

to give effect to Australia’s obligations under an

agreement with one or more other countries.

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.

(4A) For the purposes of paragraph (3)(b), the Minister may specify

other certain or likely impacts of the action if:

(a) the referral of the proposal to take the action is, because of

section 37AB of the Great Barrier Reef Marine Park Act

1975, taken to be an application for a permission for the

purposes of that Act; and

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(b) the Great Barrier Reef Marine Park Authority has asked the

Minister to ensure that the report includes information about

those other impacts for the purposes of deciding whether to

grant the permission.

(5) The Minister may also specify in the terms of reference the manner

in which the commission is to carry out the inquiry.

108 Publicising 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 draft report or draft

statement has already been published.

Subdivision C—Conduct of inquiries

109 Procedure of inquiries

(1) A commission must comply with the terms of reference in

conducting its inquiry.

(2) Subject to this Division, a commission:

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(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.

110 Inquiry to be public

(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.

111 Calling witnesses

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

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(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) commits 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.

112 Dealing with witnesses

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

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(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) commits 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.

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113 Dealing with documents given to commission

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.

114 Inspections of land, buildings and places

(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) commits an offence punishable on

conviction by imprisonment for not more than 6 months if:

(a) the offender obstructs or hinders another person; and

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(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).

115 Entering premises by consent

(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.

116 Entering premises under warrant

(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

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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.

117 Warrants by telephone or other electronic means

Application

(1) A commissioner may apply to a magistrate for a warrant by

telephone, telex, fax or other electronic means:

(a) in an urgent case; or

(b) if the delay that would occur if an application were made in

person would frustrate the effective execution of the warrant.

Voice communication

(2) The magistrate may require communication by voice to the extent

that is practicable in the circumstances.

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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, fax or other electronic

means, of the terms of the warrant and the day on which and the

time at which it was signed.

Form of warrant

(6) The applicant must then complete a form of warrant in terms

substantially corresponding to those given by the magistrate,

stating on the form the name of the magistrate and the day on

which and the time at which the warrant was signed.

Completed form of warrant to be given to magistrate

(7) The applicant must, not later than the day after the day of expiry of

the warrant or the day after the day on which the warrant was

executed, whichever is the earlier, give or transmit to the

magistrate:

(a) the form of warrant completed by the applicant; and

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(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.

118 Identity cards

(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.

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119 Contempt

(1) A person commits 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 commits 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.

120 Protection of commissioners and witnesses

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

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(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) commits 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.

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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).

Subdivision D—Inquiry reports

121 Timing of report

The commission must report to the Minister on the inquiry within

the period specified by the Minister in the terms of reference.

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122 Publication of report

(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).

Subdivision E—Commissioners’ terms and conditions

123 Basis of appointment

(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.

124 Remuneration

(1) A commissioner who is not appointed or engaged under the Public

Service Act 1999 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.

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125 Leave of absence

(1) 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.

126 Resignation

A commissioner may resign his or her appointment by giving the

Minister a written resignation.

127 Termination of appointment

(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

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(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.

128 Disclosure of interests

(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.

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129 Other terms and conditions

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.

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Part 9—Approval of actions

Division 1—Decisions on approval and conditions

Subdivision A—General

130 Timing of decision on approval

Basic rule

(1) The Minister must decide whether or not to approve, for the

purposes of each controlling provision for a controlled action, the

taking of the action.

(1A) The Minister must make the decision within the relevant period

specified in subsection (1B) that relates to the controlled action, or

such longer period as the Minister specifies in writing.

(1B) The relevant period, in relation to a controlled action, is as

follows:

(a) if the action is the subject of an assessment report—the

period of 30 business days beginning on the first business

day after the Minister receives the assessment report;

(b) if Division 3A of Part 8 (assessment on referral information)

applies to the action—the period of 20 business days

beginning on the first business day after the Minister receives

the finalised recommendation report under subsection 93(5);

(c) if Division 4 of Part 8 (assessment on preliminary

documentation) applies to the action—the period of 40

business days beginning on the first business day after the

Minister receives the documents under subsection 95B(1) or

the statement under subsection 95B(3), as the case requires;

(d) if Division 5 (public environment reports) or Division 6

(environmental impact statements) of Part 8 applies to the

action—the period of 40 business days beginning on the first

business day after the Minister receives the finalised public

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environment report or the finalised environmental impact

statement, as the case requires;

(e) if a commission has conducted an inquiry relating to the

action—the period of 40 business days beginning on the first

business day after the Minister receives the report of the

commission.

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 accredited

assessment processes).

Notice of extension of time

(4) If the Minister specifies a longer period for the purposes of

subsection (1A), 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 awaiting advice from Independent Expert

Scientific Committee

(4A) If, under section 131AB, the Minister is required to obtain advice

from the Independent Expert Scientific Committee on Coal Seam

Gas and Large Coal Mining Development before 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 (1B) if it is:

(a) on or after the day the Minister requested the advice; and

(b) on or before the day on which the Minister obtains the

advice.

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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 (1B) 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.

131 Inviting comments from other Ministers before decision

(1) Before the Minister (the Environment Minister) decides whether

or not to approve, for the purposes of a controlling provision, 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.

131AA Inviting comments before decision from person proposing to

take action and designated proponent

(1) Before the Minister decides whether or not to approve, for the

purposes of a controlling provision, the taking of an action, and

what conditions (if any) to attach to an approval, he or she must:

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(a) inform the person proposing to take the action, and the

designated proponent of the action (if the designated

proponent is not the person proposing to take the action), of:

(i) the decision the Minister proposes to make; and

(ii) if the Minister proposes to approve the taking of the

action—any conditions the Minister proposes to attach

to the approval; and

(b) invite each person informed under paragraph (a) to give the

Minister, within 10 business days (measured in Canberra),

comments in writing on the proposed decision and any

conditions.

(2) If the Minister proposes not to approve, for the purposes of a

controlling provision, the taking of the action, the Minister must

provide to each person informed under paragraph (1)(a), with the

invitation given under paragraph (1)(b):

(a) a copy of whichever of the following documents applies to

the action:

(i) an assessment report;

(ii) a finalised recommendation report given to the Minister

under subsection 93(5);

(iii) a recommendation report given to the Minister under

section 95C, 100 or 105; and

(b) any information relating to economic and social matters that

the Minister has considered; and

(c) any information relating to the history of a person in relation

to environmental matters that the Minister has considered

under subsection 136(4); and

(d) a copy of any document, or part of a document, containing

information of a kind referred to in paragraph 136(2)(e) that

the Minister has considered.

(3) The Minister is not required to provide under subsection (2):

(a) information that is in the public domain; or

(b) a copy of so much of a document as is in the public domain;

or

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(c) in the case of information referred to in paragraph (2)(b) or

(c)—any conclusions or recommendations relating to that

information included in documents or other material prepared

by the Secretary for the Minister.

(4) The Minister must not provide under subsection (2):

(a) a copy of so much of a document as:

(i) is an exempt document under subparagraph 33(a)(i) of

the Freedom of Information Act 1982 (documents

affecting national security, defence or international

relations); or

(ia) is a conditionally exempt document under section 47C

of that Act (deliberative processes) to which access

would, on balance, be contrary to the public interest for

the purposes of subsection 11A(5) of that Act; or

(ii) the Minister is satisfied contains information that is

commercial-in-confidence; or

(b) information that:

(i) is of such a nature that its inclusion in a document

would cause that document to be an exempt document

of the kind referred to in subparagraph (a)(i); or

(ii) the Minister is satisfied is commercial-in-confidence.

(5) The Minister must not be satisfied that information (including

information in a document) is commercial-in-confidence unless a

person demonstrates to the Minister that:

(a) release of the information would cause competitive detriment

to the person; and

(b) the information is not in the public domain; and

(c) the information is not required to be disclosed under another

law of the Commonwealth, a State or a Territory; and

(d) the information is not readily discoverable.

(6) In deciding whether or not to approve, for the purposes of a

controlling provision, the taking of the action, the Minister must

take into account any relevant comments given to the Minister in

response to an invitation given under paragraph (1)(b).

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Section 131AB

(7) This section is taken to be an exhaustive statement of the

requirements of the natural justice hearing rule in relation to:

(a) the Minister’s decision under section 133 whether or not to

approve, for the purposes of a controlling provision, the

taking of the action; and

(b) if the decision is to approve, for the purposes of a controlling

provision, the taking of the action, and the Minister decides,

under section 134, to attach conditions to the approval—the

Minister’s decision under section 134 to attach those

conditions to the approval.

131AB Minister must obtain advice from Independent Expert

Scientific Committee on Coal Seam Gas and Large Coal

Mining Development

(1) This section applies if:

(a) the taking of an action, for the purposes of a controlling

provision, involves:

(i) coal seam gas development; or

(ii) large coal mining development; and

(b) the Minister believes that the taking of the action:

(i) is likely to have a significant impact on water resources,

including any impacts of associated salt production

and/or salinity; and

(ii) may have an adverse impact on a matter protected by a

provision of Part 3.

(2) Before the Minister decides whether or not to approve, for the

purposes of the controlling provision, the taking of the action, the

Minister must obtain the advice of the Independent Expert

Scientific Committee on Coal Seam Gas and Large Coal Mining

Development.

131A Inviting public comment before decision

Before the Minister decides whether or not to approve, for the

purposes of a controlling provision, the taking of an action, and

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what conditions (if any) to attach to an approval, he or she may

publish on the internet:

(a) the proposed decision and, if the proposed decision is to

approve the taking of the action, any conditions that the

Minister proposes to attach to the approval; and

(b) an invitation for anyone to give the Minister, within 10

business days (measured in Canberra), comments in writing

on the proposed decision and any conditions.

132 Requesting further information for approval decision

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;

(d) if:

(i) the action is to be taken in a State or self-governing

Territory; and

(ii) a controlling provision for the action is in Division 1 of

Part 3 (about matters of national environmental

significance); and

(iii) the relevant impacts of the action have been assessed

under a law of the State or Territory;

the appropriate Minister of that State or Territory;

(e) any other person the Minister considers appropriate.

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132A Requesting notice from appropriate State or Territory

Minister about certain actions

(1) This section applies to an action that is to be taken in a State or

self-governing Territory only if the action:

(a) is to be taken 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

(b) is to be taken by a constitutional corporation; or

(c) is an action whose regulation is appropriate and adapted to

give effect to Australia’s obligations under an agreement

with one or more other countries.

Note: This section also applies in relation to actions to be taken in an area

offshore from a State or the Northern Territory. See section 157.

(2) However, this section does not apply to an action if:

(a) the action:

(i) is a nuclear action; or

(ii) is to be taken entirely in a Commonwealth marine area;

or

(iii) is to be taken entirely on Commonwealth land; or

(iv) is to be taken by the Commonwealth or a

Commonwealth agency; and

(b) the relevant impacts of the action have been assessed under

Part 8.

(3) Before the Minister (the Environment Minister) decides whether

or not to approve for the purposes of a controlling provision the

taking of the action, and what conditions (if any) to attach to an

approval, the Environment Minister may request the appropriate

Minister of the State or Territory to give the Environment Minister

a notice stating the method that has been used to assess the certain

and likely impacts of the action on things other than matters

protected by the controlling provisions for the action.

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132B Election to have an action management plan approved after

approval of the taking of an action granted

(1) A person proposing to take an action may, at any time before an

approval of the taking of the action is granted under section 133,

elect to submit an action management plan for approval.

(2) An election must:

(a) be in writing; and

(b) be given to the Minister before the Minister grants an

approval under section 133.

(3) If, after making an election, the person (the first person) notifies

the Minister under section 156F that another person (the second

person) proposes to take the action instead, the second person may

revoke the election made by the first person under this section.

(4) An election cannot be revoked once the Minister has granted an

approval under section 133.

133 Grant of approval

Approval

(1) After receiving the assessment documentation relating to a

controlled action, or the report of a commission that has conducted

an inquiry relating to a controlled action, the Minister may approve

for the purposes of a controlling provision the taking of the action

by a person.

(1A) If the referral of the proposal to take the action included alternative

proposals relating to any of the matters referred to in

subsection 72(3), the Minister may approve, for the purposes of

subsection (1), one or more of the alternative proposals in relation

to the taking of the action.

Content of approval

(2) An approval must:

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(a) be in writing; and

(b) specify the action (including any alternative proposals

approved under subsection (1A)) that may be taken; and

(c) name the person to whom the approval is granted; 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 the conditions attached to the approval.

Note: The period for which the approval has effect may be extended. See

Division 5.

Persons who may take action covered by approval

(2A) An approval granted under this section is an approval of the taking

of the action specified in the approval by any of the following

persons:

(a) the holder of the approval;

(b) a person who is authorised, permitted or requested by the

holder of the approval, or by another person with the consent

or agreement of the holder of the approval, to take the action.

Notice of approval

(3) The Minister must:

(a) give a copy of the approval to the person named in the

approval under paragraph 133(2)(c); 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:

(i) an exempt document under section 47 of the Freedom of

Information Act 1982 (trade secrets etc.); or

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(ii) a conditionally exempt document under section 47G of

that Act (business documents) to which access would,

on balance, be contrary to the public interest for the

purposes of subsection 11A(5) of that Act; 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.

Notice of refusal of approval

(7) If the Minister refuses to approve for the purposes of a controlling

provision the taking of an action by the person who proposed to

take the action, the Minister must give the person notice of the

refusal.

Note: Under section 13 of the Administrative Decisions (Judicial Review)

Act 1977, the person may request reasons for the refusal, and the

Minister must give them.

Definition

(8) In this section:

assessment documentation, in relation to a controlled action,

means:

(a) if the action is the subject of an assessment report—that

report; or

(b) if Division 3A of Part 8 (assessment on referral information)

applies to the action:

(i) the referral of the proposal to take the action; and

(ii) the finalised recommendation report relating to the

action given to the Minister under subsection 93(5); or

(c) if Division 4 of Part 8 (assessment on preliminary

documentation) applies to the action:

(i) the documents given to the Minister under

subsection 95B(1), or the statement given to the

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Minister under subsection 95B(3), as the case requires,

relating to the action; and

(ii) the recommendation report relating to the action given

to the Minister under section 95C; or

(d) if Division 5 of Part 8 (public environment reports) applies to

the action:

(i) the finalised public environment report relating to the

action given to the Minister under section 99; and

(ii) the recommendation report relating to the action given

to the Minister under section 100; or

(e) if Division 6 of Part 8 (environmental impact statements)

applies to the action:

(i) the finalised environmental impact statement relating to

the action given to the Minister under section 104; and

(ii) the recommendation report relating to the action given

to the Minister under section 105.

134 Conditions of approval

Condition to inform persons taking action of conditions attached to

approval

(1A) An approval of the taking of an action by a person (the first

person) is subject to the condition that, if the first person

authorises, permits or requests another person to undertake any part

of the action, the first person must take all reasonable steps to

ensure:

(a) that the other person is informed of any condition attached to

the approval that restricts or regulates the way in which that

part of the action may be taken; and

(b) that the other person complies with any such condition.

For the purposes of this Chapter, the condition imposed by this

subsection is attached to the approval.

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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 (whether or not the protection

is protection from the action); 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).

Examples of kinds of conditions that may be attached

(3) The conditions that may be attached to an approval include:

(aa) conditions requiring specified activities to be undertaken for:

(i) protecting a matter protected by a provision of Part 3 for

which the approval has effect (whether or not the

protection is protection from the action); 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 may or will be, or has been,

caused by the action); and

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(ab) conditions requiring a specified financial contribution to be

made to a person for the purpose of supporting activities of a

kind mentioned in paragraph (aa); and

(a) conditions relating to any security to be given by the holder

of the approval 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 a 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 holder of the approval to insure

against any specified liability of the holder to the

Commonwealth for measures taken by the Commonwealth

under section 499 in relation to the approved action; and

(c) conditions requiring a 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 any person whose taking of the

action is approved; and

(e) if an election has been made, or is taken to have been made,

under section 132B in respect of the approval—conditions

requiring:

(i) an action management plan to be submitted to the

Minister for approval, accompanied by the fee (if any)

prescribed by the regulations; and

(ii) implementation of the plan so approved; and

(f) conditions requiring specified environmental monitoring or

testing to be carried out; and

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(g) conditions requiring compliance with a specified industry

standard or code of practice; and

(h) conditions relating to any alternative proposals in relation to

the taking of the action covered by the approval (as permitted

by subsection 133(1A)).

This subsection does not limit the kinds of conditions that may be

attached to an approval.

Note: Paragraph (e)—an election is taken to have been made if an approval

is varied to add a condition requiring an action management plan, see

subsection 143(1A).

Certain conditions require consent of holder of approval

(3A) The following kinds of condition cannot be attached to the

approval of an action unless the holder of the approval has

consented to the attachment of the condition:

(a) a condition referred to in paragraph (3)(aa), if the activities

specified in the condition are not reasonably related to the

action;

(b) a condition referred to in paragraph (3)(ab).

(3B) If the holder of the approval has given consent, for the purposes of

subsection (3A), to the attachment of a condition:

(a) the holder cannot withdraw that consent after the condition

has been attached to the approval; and

(b) any person to whom the approval is later transferred under

section 145B is taken to have consented to the attachment of

the condition, and cannot withdraw that consent.

Conditions attached under paragraph (3)(c)

(3C) A condition attached to an approval under paragraph (3)(c) may

require a person taking the action to comply with conditions

specified in an instrument of a kind referred to in that paragraph:

(a) as in force at a particular time; or

(b) as is in force or existing from time to time;

even if the instrument does not yet exist at the time the approval

takes effect.

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Conditions attached under paragraph (3)(e)

(3D) When making a decision whether to approve an action

management plan, if the Minister believes on reasonable grounds

that the Minister does not have enough information to make a

decision, the Minister may request the holder of the approval to

provide specified information relevant to making the decision.

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, or the

Minister considers are likely to be imposed, under a law of a

State or self-governing Territory or another law of the

Commonwealth on the taking of the action; and

(aa) information provided by the person proposing to take the

action or by the designated proponent 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 a person taking the action to achieve the object of the

condition.

Effect of conditions requiring compliance with conditions specified

in another instrument

(4A) If:

(a) a condition (the principal condition) attached to an approval

under paragraph (3)(c) requires a person taking the action to

comply with conditions (the other conditions) specified in an

instrument of a kind referred to in that paragraph; and

(b) the other conditions are in excess of the power conferred by

subsection (1);

the principal condition is taken to require the person to comply

with the other conditions only to the extent that they are not in

excess of that power.

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Validity of decision

(5) A failure to consider information as required by paragraph (4)(aa)

does not invalidate a decision about attaching a condition to the

approval.

134A Inviting public comment before approving action management

plan

(1) Before approving an action management plan, the Minister may

publish:

(a) the plan; and

(b) an invitation for anyone to give the Minister, within 11

business days, written comments on the plan.

(2) The regulations may provide for requirements relating to the way

the Minister must publish the plan and invitation to comment.

135 Certain approvals and conditions must not give preference

(1) This section deals with the approval:

(a) for the purposes of section 21 or 22A 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.

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135A Publication of recommendation reports

(1) This section applies in relation to the following reports:

(a) a finalised recommendation report given to the Minister

under subsection 93(5);

(b) a recommendation report given to the Minister under

section 95C, 100 or 105.

(2) Subject to subsections (3) and (4), the Secretary must provide a

copy of a report to which this section applies to a person who asks

for it (either at no charge or at a reasonable charge determined by

the Secretary).

(3) The Secretary is not required to provide a copy of the report under

subsection (2) to anyone until after the Minister has decided, for

the purposes of each controlling provision, whether or not to

approve the taking of the action concerned.

(4) The Secretary may refuse to provide, under subsection (2), a copy

of so much of the report as:

(a) is:

(i) an exempt document under subparagraph 33(a)(i) of the

Freedom of Information Act 1982 (documents affecting

national security, defence or international relations); or

(ii) a conditionally exempt document under section 47C of

that Act (deliberative processes) to which access would,

on balance, be contrary to the public interest for the

purposes of subsection 11A(5) of that Act; or

(b) the Secretary is satisfied is commercial-in-confidence.

(5) The Secretary must not be satisfied that a part of the report is

commercial-in-confidence unless a person demonstrates to the

Secretary that:

(a) release of the information in that part would cause

competitive detriment to the person; and

(b) the information in that part is not in the public domain; and

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(c) the information in that part is not required to be disclosed

under another law of the Commonwealth, a State or a

Territory; and

(d) the information in that part is not readily discoverable.

Subdivision B—Considerations for approvals and conditions

136 General considerations

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 (if any) relating to the action; and

(ba) if Division 3A of Part 8 (assessment on referral information)

applies to the action—the finalised recommendation report

relating to the action given to the Minister under

subsection 93(5); and

(bc) if Division 4 of Part 8 (assessment on preliminary

documentation) applies to the action:

(i) the documents given to the Minister under

subsection 95B(1), or the statement given to the

Minister under subsection 95B(3), as the case requires,

relating to the action; and

(ii) the recommendation report relating to the action given

to the Minister under section 95C; and

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(c) if Division 5 (public environment reports) of Part 8 applies to

the action:

(i) the finalised public environment report relating to the

action given to the Minister under section 99; and

(ii) the recommendation report relating to the action given

to the Minister under section 100; and

(ca) if Division 6 (environmental impact statements) of Part 8

applies to the action:

(i) the finalised environmental impact statement relating to

the action given to the Minister under section 104; and

(ii) the recommendation report relating to the action given

to the Minister under section 105; 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 in accordance

with an invitation under section 131 or 131A; and

(fa) any relevant advice obtained by the Minister from the

Independent Expert Scientific Committee on Coal Seam Gas

and Large Coal Mining Development in accordance with

section 131AB; and

(g) if a notice relating to the action was given to the Minister

under subsection 132A(3)—the information in the notice.

Note: The Minister must also take into account any relevant comments given

to the Minister in response to an invitation under

paragraph 131AA(1)(b). See subsection 131AA(6).

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

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may consider whether the person is a suitable person to be granted

an approval, having regard to:

(a) the person’s history in relation to environmental matters; and

(b) if the person is a body corporate—the history of its executive

officers in relation to environmental matters; and

(c) if the person is a body corporate that is a subsidiary of

another body or company (the parent body)—the history in

relation to environmental matters of the parent body and its

executive officers.

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 Division to consider.

137 Requirements for decisions about World Heritage

In deciding whether or not to approve, for the purposes of

section 12 or 15A, 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 the World Heritage

Convention; or

(b) the Australian World Heritage management principles; or

(c) a plan that has been prepared for the management of a

declared World Heritage property under section 316 or as

described in section 321.

137A Requirements for decisions about National Heritage places

In deciding whether or not to approve for the purposes of

section 15B or 15C the taking of an action, and what conditions to

attach to such an approval, the Minister must not act inconsistently

with:

(a) the National Heritage management principles; or

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(b) an agreement to which the Commonwealth is party in

relation to a National Heritage place; or

(c) a plan that has been prepared for the management of a

National Heritage place under section 324S or as described in

section 324X.

138 Requirements for decisions about Ramsar wetlands

In deciding whether or not to approve for the purposes of

section 16 or 17B 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.

139 Requirements for decisions about threatened species and

endangered communities

(1) In deciding whether or not to approve for the purposes of a

subsection of section 18 or section 18A 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.

(2) If:

(a) the Minister is considering whether to approve, for the

purposes of a subsection of section 18 or section 18A, the

taking of an action; and

(b) the action has or will have, or is likely to have, a significant

impact on a particular listed threatened species or a particular

listed threatened ecological community;

the Minister must, in deciding whether to so approve the taking of

the action, have regard to any approved conservation advice for the

species or community.

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140 Requirements for decisions about migratory species

In deciding whether or not to approve for the purposes of

section 20 or 20A 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).

140A No approval for certain nuclear installations

The Minister must not approve an action consisting of or involving

the construction or operation of any of the following nuclear

installations:

(a) a nuclear fuel fabrication plant;

(b) a nuclear power plant;

(c) an enrichment plant;

(d) a reprocessing facility.

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Section 142

Division 2—Requirement to comply with conditions

142 Compliance with conditions on approval

(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.

(1A) Subsection (1) does not apply to a person who is not the holder of

the approval if:

(a) the person was not informed of the condition; and

(b) the person could not reasonably have been expected to be

aware of the condition.

Note: The defendant bears an evidential burden in relation to the matter in

subsection (1A). See subsection 13.3(3) of the Criminal Code.

(2) A contravention of a condition attached to an approval under this

Part does not invalidate the approval.

142A Offence of breaching conditions on approval

(1) A person whose taking of an action has been approved under this

Part commits an offence if:

(a) the person takes an action or omits to take an action; and

(b) the action or omission contravenes a condition attached to the

approval and the person is reckless as to that fact; and

(c) the action or omission results or will result in a significant

impact on a matter protected by a provision of Part 3.

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

criminal responsibility.

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

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

(3) A person whose taking of an action has been approved under this

Part commits an offence if:

(a) the person takes an action or omits to take an action; and

(b) the action or omission contravenes a condition attached to the

approval and the person is reckless as to that fact; and

(c) the action or omission is likely to have a significant impact

on a matter protected by a provision of Part 3 and the person

is reckless as to that fact.

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

criminal responsibility.

(4) An offence against subsection (1) or (3) is punishable on

conviction by imprisonment for a term not more than 2 years, a

fine not more than 120 penalty units, or both.

Note 1: 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.

Note 2: An executive officer of a body corporate convicted of an offence

against this section may also commit an offence against section 495.

Note 3: If a person takes an action on land that contravenes this section, a

landholder may commit an offence against section 496C.

142B Strict liability offence for breach of approval condition

(1) A person whose taking of an action has been approved under this

Part commits an offence if:

(a) the person takes an action or omits to take an action; and

(b) the action or omission contravenes a condition attached to the

approval.

Penalty: 60 penalty units.

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

criminal responsibility.

Note 2: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body

corporate up to 5 times the maximum amount the court could fine a

person under this subsection.

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Note 3: An executive officer of a body corporate convicted of an offence

against this section may also commit an offence against section 495.

Note 4: If a person takes an action on land that contravenes this section, a

landholder may commit an offence against section 496C.

(2) Subsection (1) does not apply to a person who is not the holder of

the approval if:

(a) the person was not informed of the condition; and

(b) the person could not reasonably have been expected to be

aware of the condition.

Note: The defendant bears an evidential burden in relation to the matter in

subsection (2). See subsection 13.3(3) of the Criminal Code.

(3) Subsection (1) is an offence of strict liability.

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

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Division 3—Variation of conditions and suspension and

revocation of approvals

143 Variation of conditions attached to approval

(1) The Minister may, by written instrument, revoke, vary or add to

any conditions (other than the condition referred to in

subsection 134(1A)) 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

(ba) all of the following conditions are satisfied:

(i) the action has had a significant impact on a 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 is satisfied that the impact is substantially

greater than the impact that was identified in assessing

the action;

(iii) the Minister believes it is necessary to revoke, vary or

add a condition to protect the matter from the impact; or

(c) the holder of the approval agrees to the proposed revocation,

variation or addition, or the Minister has extended the period

for which the approval has effect under section 145D, and the

Minister is satisfied that any conditions attached to the

approval after the proposed revocation, variation or addition

are necessary or convenient for:

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(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).

(1A) If, under paragraph (1)(c), the holder of an approval agrees to

conditions mentioned in paragraph 134(3)(e) (about an action

management plan) being added and attached to the approval, the

holder is taken to have made an election under section 132B before

the approval was granted.

(1B) The holder of an approval may request the Minister, in writing, to

vary a condition attached to an approval of an action.

(2) The Minister may, by written instrument, revoke any condition

(other than the condition referred to in subsection 134(1A))

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:

(a) the person’s history in relation to environmental matters; and

(b) if the person is a body corporate—the history of its executive

officers in relation to environmental matters; and

(c) if the person is a body corporate that is a subsidiary of

another body or company (the parent body)—the history in

relation to environmental matters of the parent body and its

executive officers.

(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:

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(a) give a copy of it to the holder of the approval; and

(b) publish the instrument in accordance with the regulations.

Note: If the holder is not satisfied with changed conditions attached to the

approval of the holder’s action, he or she can ask the Minister to

reverse the change by making another change to the conditions under

this section.

(6) However, the Minister must not publish so much of the instrument

as:

(a) is:

(i) an exempt document under section 47 of the Freedom of

Information Act 1982 (trade secrets etc.); or

(ii) a conditionally exempt document under section 47G of

that Act (business documents) to which access would,

on balance, be contrary to the public interest for the

purposes of subsection 11A(5) of that Act; or

(b) the Minister believes it is in the national interest not to

publish.

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.

143A Variation of action management plan

Written application required

(1) If an action management plan is a condition of an approval of an

action, the holder of the approval may, at any time, apply to the

Minister for a variation of the action management plan.

(2) An application for a variation must be:

(a) in writing; and

(b) accompanied by:

(i) any information or documents required by the

regulations; and

(ii) the application fee (if any) prescribed by the

regulations.

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Minister may approve a variation of action management plan

(3) The Minister may approve a variation to an action management

plan if requested to do so.

(4) When making a decision whether to vary an action management

plan, if the Minister believes on reasonable grounds that the

application does not include enough information, the Minister may

request the applicant to provide specified information relevant to

making the decision.

(5) If the holder of an approval applies for a variation of an action

management plan, the Minister must notify the person, in writing,

of the Minister’s decision.

144 Suspension of approval

(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.

(2A) The Minister may, by written instrument, suspend the effect of an

approval under this Part for the purposes of a specified provision of

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Part 3 for a specified period (which must not start before the day

on which the instrument is made) if:

(a) either:

(i) the Minister believes on reasonable grounds that there

has been a contravention of a condition attached to the

approval; or

(ii) if a condition attached to the approval is to the effect

that the approval is subject to a thing being done within

a particular time—the Minister believes on reasonable

grounds that the thing has not been done within that

time; and

(b) the Minister is satisfied that:

(i) the approval would not have been granted without that

condition being attached; or

(ii) because of the failure to comply with the requirement,

the suspension is reasonably necessary to protect a

matter protected by a provision of Part 3 for which the

approval has effect.

(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:

(a) the person’s history in relation to environmental matters; and

(b) if the person is a body corporate—the history of its executive

officers in relation to environmental matters; and

(c) if the person is a body corporate that is a subsidiary of

another body or company (the parent body)—the history in

relation to environmental matters of the parent body and its

executive officers.

(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 holder of the approval; and

(b) publish the instrument in accordance with the regulations.

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145 Revocation of approval

(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.

(2A) The Minister may, by written instrument, revoke an approval under

this Part of an action for the purposes of a specified provision of

Part 3 if he or she believes that:

(a) the impacts that the action has had, will have or is likely to

have were not accurately identified in information available

to the Minister when the approval was given; and

(b) the information did not accurately identify those impacts

because of negligence or a deliberate act or omission by the

person proposing to take the action or the designated

proponent of the action.

(2B) The Minister may, by written instrument, revoke an approval under

this Part for the purposes of a specified provision of Part 3 if:

(a) either:

(i) the Minister believes on reasonable grounds that there

has been a contravention of a condition attached to the

approval; or

(ii) if a condition attached to the approval is to the effect

that the approval is subject to a thing being done within

a particular time—the Minister believes on reasonable

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grounds that the thing has not been done within that

time; and

(b) the Minister is satisfied that:

(i) the approval would not have been granted without that

condition being attached; or

(ii) because of the failure to comply with the requirement,

the revocation is reasonably necessary to protect a

matter protected by a provision of Part 3 for which the

approval has effect.

(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:

(a) the person’s history in relation to environmental matters; and

(b) if the person is a body corporate—the history of its executive

officers in relation to environmental matters; and

(c) if the person is a body corporate that is a subsidiary of

another body or company (the parent body)—the history in

relation to environmental matters of the parent body and its

executive officers.

(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 who was the holder of the

approval; and

(b) publish the instrument in accordance with the regulations.

145A Reinstating suspended or revoked approval

Application

(1) This section applies if the Minister has, by written instrument:

(a) suspended an approval under this Part of the taking of an

action by a person; or

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(b) revoked an approval under this Part of the taking of an action

by a person.

Requesting reinstatement of approval

(2) Within 2 months after receiving a copy of the instrument under this

Division, the person who was the holder of the approval may

request the Minister to reinstate the approval.

Deciding whether to reinstate approval

(3) Within 20 business days of receiving the request, the Minister must

decide whether or not to reinstate the approval.

Considerations for decision

(4) Subdivision B of Division 1 applies to the decision whether or not

to reinstate the approval in the same way as it applies to a decision

whether or not to approve the taking of an action.

Extra time for decision

(5) A day is not to be counted for the purposes of subsection (3) if:

(a) the Minister and the person who was the holder of the

approval agree in writing that it should not be counted; or

(b) the Minister has requested the person to provide information

under subsection (6) and the day is on or before the day on

which the Minister receives the last of the information

requested.

Requesting information for decision

(6) 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 reinstate the approval, the Minister may request

the person who was the holder of the approval to provide specified

information relevant to making the decision.

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Reversal of decision to suspend or revoke approval

(7) If the Minister decides to reinstate the approval, it and any

conditions attached to it immediately before the suspension or

revocation have effect on and after the day of the decision (subject

to any future suspension or revocation under this Division).

Notice of decision about reversal

(8) The Minister must:

(a) give the person who was the holder of the approval written

notice of the Minister’s decision; and

(b) publish notice of the decision in accordance with the

regulations.

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Division 4 Transfer of approvals

Section 145B

Division 4—Transfer of approvals

145B Transfer with Minister’s consent

Transfer by written agreement

(1) A person (the transferor) who is the holder of an approval under

this Part for the purposes of a provision of Part 3 may transfer the

approval to another person (the transferee) by written agreement,

subject to the Minister’s consent.

Transfer ineffective until Minister consents

(2) The transfer does not have effect for the purposes of this Act until

the Minister consents in writing to the transfer. To avoid doubt, the

Minister’s consent to a transfer cannot take effect before the

Minister gives the consent.

Effect of consent

(3) If the Minister consents to the transfer:

(a) this Act (except Division 3) operates in relation to the

transferor as if the Minister had revoked the approval when

the Minister’s consent took effect; and

(b) this Act operates in relation to the transferee as if, when the

Minister’s consent to the transfer took effect, he or she:

(i) had approved under this Part for the purposes of the

provision of Part 3 the taking of the action by the

transferee; and

(ii) had attached to the approval the conditions that were

attached to the approval of the taking of the action by

the transferor.

Considerations in deciding whether to consent

(4) In deciding whether or not to consent to the transfer, the Minister

may consider:

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(a) whether the transferee would be a suitable person to be

granted the approval, having regard to:

(i) the transferee’s history in relation to environmental

matters; and

(ii) if the transferee is a body corporate—the history of its

executive officers in relation to environmental matters;

and

(iii) if the transferee is a body corporate that is a subsidiary

of another body or company (the parent body)—the

history in relation to environmental matters of the parent

body and its executive officers; and

(b) whether the transferee can comply with the conditions

attached to the approval.

Giving copies of consents to transferor and transferee

(5) The Minister must give the transferor and the transferee a copy of

the consent each.

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Division 5 Extension of period of effect of approval

Section 145C

Division 5—Extension of period of effect of approval

145C Application to Minister to extend period of effect of approval

(1) Subject to subsection (2), the holder of an approval under this

Part may apply, in writing, to the Minister to extend the period (the

approval period) for which the approval has effect.

(2) Subsection (1) does not apply if:

(a) the approval has been suspended or revoked under this

Part and has not been reinstated; or

(b) the approval has otherwise ceased to have effect.

(3) An application under subsection (1) must include the information

(if any) prescribed by the regulations.

145D Minister must decide whether or not to extend approval

period

(1) Within 20 business days after receiving an application under

subsection 145C(1), the Minister must decide, in writing, whether

or not to extend the approval period.

Note: The Minister may request further information for the purpose of

making a decision under this subsection. See section 145E.

(2) The Minister may decide to extend the approval period only if the

Minister is satisfied that the extension will not result in a

substantial increase in, or substantial change in the nature of, the

adverse impacts (if any) the action:

(a) has or will have; or

(b) is likely to have;

on the matter protected by each provision of Part 3 for which the

approval has effect.

(3) In considering the matter referred to in subsection (2), the Minister

must consider the following, so far as they are not inconsistent with

any other requirement of this Division:

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(a) matters relevant to any matter protected by a provision of

Part 3 for which the approval has effect;

(b) economic and social matters.

(4) As soon as possible after deciding whether or not to extend the

approval period, the Minister must:

(a) give a copy of the decision to the holder of the approval; and

(b) if the decision is to extend the approval period—publish the

decision in accordance with the regulations.

145E Minister may request further information for making decision

(1) If the Minister believes on reasonable grounds that he or she does

not have enough information to decide whether or not to extend the

approval period, the Minister may request the holder of the

approval to provide specified information relevant to making the

decision.

(2) If the Minister has requested more information under

subsection (1), a day is not to be counted as a business day for the

purposes of subsection 145D(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.

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Part 10 Strategic assessments

Division 1 Strategic assessments generally

Section 146

Part 10—Strategic assessments

Division 1—Strategic assessments generally

Subdivision A—Assessment of actions to be taken in

accordance with policy, plan or program

146 Minister may agree on strategic assessment

(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 impacts of actions under the policy,

plan or program on a matter protected by a provision of Part 3.

(1A) The agreement may also provide for the assessment of other certain

and likely impacts of actions under the policy, plan or program if:

(a) the actions are to be taken in a State or self-governing

Territory; and

(b) the appropriate Minister of the State or Territory has asked

the Minister administering this section to ensure that the

assessment deal with those other impacts to help the State or

Territory, or an agency of the State or Territory, make

decisions about the actions; and

(c) the actions:

(i) are to be taken 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 or by a constitutional corporation;

or

(ii) are actions whose regulation is appropriate and adapted

to give effect to Australia’s obligation under an

agreement with one or more other countries.

Note: Paragraph (1A)(a) also applies to actions to be taken in an area

offshore from a State or the Northern Territory. See section 157.

(1B) The agreement must provide for:

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(a) the preparation of terms of reference for a report on the

impacts to which the agreement relates; or

(b) all of the following:

(i) the preparation of draft terms of reference for a report

on the impacts to which the agreement relates;

(ii) the publication of the draft terms of reference for public

comment for a period of at least 28 days that is specified

by the Minister;

(iii) the finalisation of the terms of reference, to the

Minister’s satisfaction, taking into account the

comments (if any) received on the draft terms of

reference.

(2) The agreement must provide for:

(a) the preparation of a draft of a report on the impacts to which

the agreement relates; and

(b) the publication of the draft report for public comment for a

period of at least 28 days that is specified by the Minister;

and

(c) the finalisation of the report, taking into account the

comments (if any) received after publication of the draft

report; and

(d) 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 the impacts to which the

agreement relates; 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.

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Section 146A

Note 1: If the 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 a policy, plan or program embodied in a

management arrangement or an authorisation process, the Minister

may declare under section 33, or make a bilateral agreement declaring,

that actions approved in accordance with the management

arrangement or authorisation process do not need approval for the

purposes of a specified provision of Part 3.

(3) If the agreement relates to actions to be taken in a State or

self-governing Territory, the Minister must tell the appropriate

Minister of the State or Territory:

(a) that the agreement has been made; and

(b) what those actions are (in general terms).

Subdivision B—Approval of taking of actions in accordance

with endorsed policy, plan or program

146A Definition

In this Subdivision and Subdivision C:

endorsed policy, plan or program means a policy, plan or program

that has been endorsed by the Minister in accordance with an

agreement as mentioned in paragraph 146(2)(f).

146B Minister may approve taking of actions in accordance with

endorsed policy, plan or program

(1) Subject to Subdivision C, the Minister may approve the taking of

an action or a class of actions in accordance with an endorsed

policy, plan or program.

Note: Subdivision C sets out matters that the Minister must take into account

in deciding whether or not to approve the taking of an action or a class

of actions in accordance with an endorsed policy, plan or program.

(2) An approval of the taking of an action or a class of actions in

accordance with an endorsed policy, plan or program must:

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(a) be in writing; and

(b) specify the action or class of actions that may be taken in

accordance with the endorsed policy, plan or program; and

(c) specify each provision of Part 3 for which the approval has

effect; and

(d) specify the period for which the approval has effect; and

(e) set out the conditions attached to the approval.

(2A) An approval of the taking of an action or a class of actions in

accordance with an endorsed policy, plan or program may specify

the person or persons who may take the action or an action in the

class of actions.

(3) The Minister must:

(a) give a copy of the approval to the person responsible for the

adoption or implementation of the endorsed policy, plan or

program; and

(b) provide a copy of the approval to a person who asks for it

(either at no charge or for a reasonable charge determined by

the Minister).

(4) However, the Minister must not provide under subsection (3) a

copy of so much of the approval as:

(a) is:

(i) an exempt document under section 47 of the Freedom of

Information Act 1982 (trade secrets); or

(ii) a conditionally exempt document under section 47G of

that Act (business documents) to which access would,

on balance, be contrary to the public interest for the

purposes of subsection 11A(5) of that Act; 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.

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(5) An approval given under subsection (1) is not a legislative

instrument.

146C Inviting comments from other Ministers before deciding

whether or not to approve taking of actions in accordance

with endorsed policy, plan or program

(1) Before the Minister (the Environment Minister) decides whether

or not to approve the taking of an action or a class of actions in

accordance with an endorsed policy, plan or program, he or she

must:

(a) inform any other Minister whom the Environment Minister

believes has administrative responsibilities relating to the

action or class of actions of the decision the Environment

Minister proposes to make; and

(b) invite each Minister informed to give the Environment

Minister, within 10 business days, comments on the proposed

decision.

(2) A Minister who is invited to comment may make comments:

(a) that relate to economic and social matters relating to the

action or class of actions to which the proposed decision

relates; and

(b) that 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.

146D Effect of approval of taking of actions in accordance with

endorsed policy, plan or program

(1) If an approval under section 146B is in force, the following

provisions have effect:

(a) the Minister is taken to have decided under Division 2 of

Part 7 that:

(i) each action specified in the approval under

paragraph 146B(2)(b), or each action in a class of

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actions specified in the approval under that paragraph, is

a controlled action; and

(ii) each provision of Part 3 specified in the approval under

paragraph 146B(2)(c) is a controlling provision for each

such controlled action;

(b) the Minister is taken to have approved under Part 9, for the

purposes of each controlling provision for each controlled

action, the taking of the action by any of the following:

(i) the person or persons (if any) specified in the approval

under subsection 146B(2A) as the person or persons

who may take the action;

(ii) any other person who may take the action in accordance

with the endorsed policy, plan or program.

(2) Parts 7 and 8 and paragraph 170A(c) do not apply in relation to an

action if an approval of the taking of the action, or an approval of

the taking of a class of actions that includes the action, in

accordance with an endorsed policy, plan or program is in force

under section 146B.

(3) Subject to subsection (4), section 134 and Divisions 2, 3 and 4 of

Part 9 apply in relation to an approval of the taking of an action

that is taken to have been given under Part 9 because of

paragraph (1)(b).

Note: Section 134 deals with conditions of approvals, Division 2 of Part 9

deals with compliance with conditions, Division 3 of Part 9 deals with

variation of conditions and suspension and revocation of approvals

and Division 4 of Part 9 deals with transfer of approvals.

(4) Subsection 145A(4) applies in relation to a decision whether or not

to reinstate an approval of the taking of an action that is taken to

have been given under Part 9 because of paragraph (1)(b), as if:

(a) the reference to Subdivision B of Division 1 of Part 9 were a

reference to Subdivision C of this Division; and

(b) the reference to a decision whether or not to approve the

taking of an action were a reference to a decision whether or

not to approve, under this Subdivision, the taking of an action

in accordance with an endorsed policy, plan or program.

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Section 146E

Subdivision C—Considerations for approving taking of actions

in accordance with endorsed policy, plan or program

146E Minister must comply with this Subdivision

The Minister must comply with this Subdivision in deciding:

(a) whether or not to approve, under section 146B, the taking of

an action or a class of actions in accordance with an endorsed

policy, plan or program; and

(b) in the case of a decision to approve the taking of such an

action or class of actions, what conditions (if any) to attach to

the approval.

Note: For the meaning of endorsed policy, plan or program, see

section 146A.

146F General considerations

(1) The Minister must consider the following, so far as they are not

inconsistent with any other requirements of this Subdivision:

(a) matters relevant to any matter protected by a provision of

Part 3 that the Minister considers is relevant to the approval;

(b) economic and social matters.

(2) In considering those matters, the Minister must take into account

the principles of ecologically sustainable development.

146G Approvals relating to declared World Heritage properties

If the approval relates to a declared World Heritage property, the

Minister must not act inconsistently with:

(a) Australia’s obligations under the World Heritage

Convention; or

(b) the Australian World Heritage management principles; or

(c) a plan that has been prepared for the management of the

declared World Heritage property under section 316 or as

described in section 321.

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146H Approvals relating to National Heritage places

If the approval relates to a National Heritage place, the Minister

must not act inconsistently with:

(a) the National Heritage management principles; or

(b) an agreement to which the Commonwealth is party in

relation to the National Heritage place; or

(c) a plan that has been prepared for the management of the

National Heritage place under section 324S or as described in

section 324X.

146J Approvals relating to declared Ramsar wetlands

If the approval relates to a declared Ramsar wetland, the Minister

must not act inconsistently with Australia’s obligations under the

Ramsar Convention.

146K Approvals relating to listed threatened species and ecological

communities

(1) This section applies if the approval relates to a listed threatened

species or a listed threatened ecological community.

(2) 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 for the species or community or a threat

abatement plan.

(3) The Minister must have regard to any approved conservation

advice for the species or community.

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Division 1 Strategic assessments generally

Section 146L

146L Approvals relating to listed migratory species

If the approval relates to a listed migratory species, the Minister

must not act inconsistently with whichever of the following

conventions or 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).

146M No approvals relating to nuclear actions

The Minister must not approve the taking of an action or a class of

actions in accordance with an endorsed policy, plan or program if

the action, or an action in the class of actions, consists of, or

involves the construction or operation of, any of the following

nuclear installations:

(a) a nuclear fuel fabrication plant;

(b) a nuclear power plant;

(c) an enrichment plant;

(d) a reprocessing facility.

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Strategic assessments Part 10

Assessment of Commonwealth-managed fisheries Division 2

Section 147

Division 2—Assessment of Commonwealth-managed

fisheries

147 Simplified outline of this Division

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 or 24A (which protect the

marine environment).

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Division 2 Assessment of Commonwealth-managed fisheries

Section 148

148 Assessment before management plan is determined

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 impacts of actions under the plan on each

matter protected by a provision of Part 3; 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 impacts of actions under the plan on each

matter protected by a provision of Part 3; and

(b) consider any recommendations made by the Environment

Minister under the agreement.

149 Assessment before determination that no plan required

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 impacts of actions on each matter protected

by a provision of Part 3, being actions permitted under the

Authority’s policy for managing the fishery; and

(b) consider any recommendations made by the Minister under

the agreement.

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Assessment of Commonwealth-managed fisheries Division 2

Section 150

150 Assessment of all fisheries without plans must be started within

5 years

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 impacts of actions on each matter protected by a

provision of Part 3, being actions that are 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 impacts of actions on each matter protected by a provision of

Part 3, being actions that are 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.

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Division 2 Assessment of Commonwealth-managed fisheries

Section 151

151 Assessment of all Torres Strait fisheries to be started within 5

years

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 impacts of the

actions on each matter protected by a provision of Part 3, being

actions that are 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(2).

152 Further assessment if impacts greater than previously assessed

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

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Section 153

(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.

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).

153 Minister must make declaration if he or she endorses plan or

policy

(1) This section applies if:

(a) the Minister makes an agreement under section 146 as

required by this Division and endorses under the agreement:

(i) a plan of management under the Fisheries Management

Act 1991 for a fishery; or

(ii) 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

(iii) a plan of management under the Torres Strait Fisheries

Act 1984 for a fishery; or

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Section 154

(iv) policies for managing fishing under the Torres Strait

Fisheries Act 1984; and

(b) the Minister accredits, under subsection 33(3) of this Act, as

an accredited arrangement a management plan or regime

consisting of the endorsed plan or policies.

(2) The Minister must make a declaration under section 33 that actions

approved in accordance with the accredited arrangement do not

require an approval under Part 9 for the purposes of

subsection 23(1), (2) or (3) or subsection 24A(1), (2), (3), (4), (5)

or (6).

Note: The declaration and accreditation will allow actions that would

otherwise be prohibited by sections 23 and 24A to be taken without

approval if they are taken in accordance with the accredited

arrangement. See section 32.

154 This Division does not limit Division 1

This Division does not limit Division 1.

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Miscellaneous rules about assessments and approvals Part 11

Rules about timing Division 1

Section 155

Part 11—Miscellaneous rules about assessments

and approvals

Division 1—Rules about timing

155 This Chapter ceases to apply to lapsed proposals

(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.

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Division 1 Rules about timing

Section 156

156 General rules about time limits

(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.

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Variation of proposals to take actions Division 1A

Section 156A

Division 1A—Variation of proposals to take actions

156A Request to vary proposal to take an action

(1) If:

(a) a proposal (the original proposal) by a person to take an

action has been referred to the Minister under Division 1 of

Part 7; and

(b) after the referral is made, the person wishes to change the

original proposal;

the person may, subject to subsection (2), request the Minister to

accept a variation (a varied proposal) of the original proposal.

(2) Subsection (1) does not apply if:

(a) the Minister has made a decision under section 74A to not

accept the referral of the original proposal; or

(b) the Minister has made a decision under section 75 that the

proposed action is not a controlled action; or

(c) a particular manner for taking the proposed action is

identified under subsection 77A(1) in the notice given under

section 77 in relation to the action; or

(d) the Minister has made a decision under section 133

approving or refusing to approve the taking of the proposed

action; or

(e) the referral of the original proposal has been withdrawn

under section 170C.

(3) A request under subsection (1) must:

(a) be made in a way prescribed by the regulations; and

(b) include the information prescribed by the regulations.

(4) If a request is made under subsection (1), any provisions of this

Chapter that would, apart from this subsection, have applied in

relation to the original proposal cease to apply to that proposal.

Note: Provisions that have ceased to apply in relation to the original

proposal under subsection (4) will start to apply to that proposal, or to

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Division 1A Variation of proposals to take actions

Section 156B

the varied proposal, after the Minister has decided whether or not to

accept the varied proposal. See section 156D.

156B Minister must decide whether or not to accept a varied

proposal

(1) Within 20 business days after receiving a request under

subsection 156A(1) to accept a varied proposal to take an action,

the Minister must decide whether or not to accept the varied

proposal.

Note: The Minister may request further information for the purpose of

making a decision under this subsection. See section 156C.

(2) The Minister must not decide to accept the varied proposal unless

the Minister is satisfied that the character of the varied proposal is

substantially the same as the character of the original proposal.

This subsection does not limit the matters the Minister may

consider in deciding whether or not to accept the varied proposal.

(3) In considering, for the purposes of subsection (2), whether or not

the character of the varied proposal is substantially the same as the

character of the original proposal, the Minister must have regard to

the change (if any) in:

(a) the nature of the activities proposed to be carried out in

taking the action; and

(b) the nature and extent of the 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.

156C Minister may request further information in relation to a

varied proposal

(1) If the Minister believes on reasonable grounds that a request under

subsection 156A(1) to accept a varied proposal to take an action

does not include enough information for the Minister to decide

whether or not to accept the varied proposal, the Minister may

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Section 156D

request the person proposing to take the action to provide specified

information relevant to making the decision.

(2) If the Minister has requested more information under

subsection (1), a day is not to be counted as a business day for the

purposes of subsection 156B(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.

156D Effect of Minister’s decision to accept or not accept a varied

proposal

(1) If the Minister decides to accept a varied proposal to take an

action:

(a) any provisions of this Chapter that, because of

subsection 156A(4), have ceased to apply in relation to the

original proposal start to apply in relation to the varied

proposal; and

(b) for the purpose of the application of those provisions,

anything done in relation to the original proposal is taken to

have been done in relation to the varied proposal.

(2) If the Minister decides not to accept a varied proposal to take an

action, any provisions of this Chapter that, because of

subsection 156A(4), have ceased to apply in relation to the original

proposal start to apply in relation to that proposal.

(3) For the purpose of the application of the provisions of this

Chapter in relation to the varied proposal under subsection (1), or

in relation to the original proposal under subsection (2), a day is

not to be counted as a business day if it is:

(a) on or after the day the Minister received the request under

subsection 156A(1) to accept the varied proposal; and

(b) on or before the day the Minister made the decision under

subsection 156B(1).

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Division 1A Variation of proposals to take actions

Section 156E

156E Notice of decision

(1) Within 10 business days after deciding under subsection 156B(1)

whether or not to accept a varied proposal to take an action, the

Minister must give written notice of the decision to:

(a) the person proposing to take the action; and

(b) the designated proponent of the action (if the designated

proponent of the action is not the person proposing to take

the action).

(2) If:

(a) the request to accept the varied proposal related to an action

that 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 (which deals with matters of national environmental

significance); and

(c) the Minister decided to accept the varied proposal;

the Minister must also, within the period referred to in

subsection (1), give written notice of the decision to the

appropriate Minister of the State or Territory.

(3) If the Minister decided to accept the varied proposal, the Minister

must, within the period referred to in subsection (1), publish the

request to accept the varied proposal and notice of the decision in

accordance with the regulations.

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Change of person proposing to take action Division 1B

Section 156F

Division 1B—Change of person proposing to take action

156F Change of person proposing to take action

Notice of change of person proposing to take action

(1) At any time:

(a) after a proposal by a person to take an action has been

referred to the Minister under Division 1 of Part 7; and

(b) before the Minister has approved, or refused to approve, the

taking of the action under section 133;

the person (the first person) proposing to take the action and

another person (the second person) may notify the Minister, in

writing, that:

(c) the first person no longer proposes to take the action; and

(d) the second person proposes to take the action instead.

Note: A person who is the holder of an approval under Part 9 may transfer

the approval to another person under section 145B.

When notice cannot be given

(2) Subsection (1) does not apply if:

(a) the Minister has made a decision under section 74A to not

accept the referral of the proposal to take the action; or

(b) the Minister has made a decision under section 75 that the

action is not a controlled action; or

(c) a particular manner for taking the action is identified under

subsection 77A(1) in the notice given under section 77 in

relation to the action.

Requirements for notice

(3) A notice must:

(a) include the information (if any) prescribed by the regulations;

and

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Section 156F

(b) be accompanied by the fee (if any) prescribed by the

regulations.

Effect of notice

(4) If a notice is given to the Minister under subsection (1):

(a) any provisions of this Chapter that, apart from this paragraph,

would have applied to the first person in relation to the action

cease to apply to that person and start to apply to the second

person; and

(b) for the purposes of the application of those provisions:

(i) the second person is taken to be named in the referral of

the proposal to take the action as the person proposing

to take the action; and

(ii) the second person is taken to have done anything the

first person did in relation to the action; and

(iii) anything done in relation to the first person in relation to

the action is taken to have been done in relation to the

second person.

Publication of notice

(5) Within 10 business days after receiving a notice under

subsection (1), the Minister must publish a copy of the notice in

accordance with the regulations.

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Actions in area offshore from a State or the Northern Territory Division 2

Section 157

Division 2—Actions in area offshore from a State or the

Northern Territory

157 Actions treated as though they were in a State or the Northern

Territory

(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.

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Division 3 Exemptions

Section 158

Division 3—Exemptions

158 Exemptions from Part 3 and this Chapter

(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.

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decision made Division 3A

Section 158A

Division 3A—Approval process decisions not affected by

listing events that happen after section 75

decision made

158A Approval process decisions not affected by listing events that

happen after section 75 decision made

(1) In this section:

approval process decision means any of the following decisions:

(a) a decision under section 75 whether an action is a controlled

action;

(b) a decision under section 75 whether a provision of Part 3 is a

controlling provision for an action;

(c) a decision under section 78 in relation to a decision referred

to in paragraph (a) or (b) of this definition;

(d) a decision under section 87 on the approach for the

assessment of the impacts of an action;

(e) a decision under section 133 whether to approve an action;

(f) a decision under section 134 to attach conditions to an

approval of an action;

(g) a decision under section 143 to revoke, vary or add to

conditions attached to an approval of an action;

(h) any other decision made under a provision of this

Chapter that is specified in the regulations.

listing event means any of the following events:

(a) a property becoming a declared World Heritage property;

(b) a change in the world heritage values of a declared World

Heritage property;

(c) a place becoming a National Heritage place;

(d) a change in the National Heritage values included in the

National Heritage List for a National Heritage place;

(e) a place becoming a Commonwealth Heritage place;

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Section 158A

(f) a change in the Commonwealth Heritage values included in

the Commonwealth Heritage List for a Commonwealth

Heritage place;

(g) a wetland becoming a declared Ramsar wetland;

(h) a change in the boundaries of any of the following:

(i) a World Heritage property;

(ii) a National Heritage place;

(iii) a Commonwealth Heritage place;

(iv) a declared Ramsar wetland;

(v) the Great Barrier Reef Marine Park;

(i) a species becoming a listed threatened species;

(j) an ecological community becoming a listed threatened

ecological community;

(k) a listed threatened species or a listed threatened ecological

community becoming listed in another category representing

a higher degree of endangerment;

(l) a species becoming a listed migratory species;

(m) any other event of a kind specified in the regulations.

(2) This section applies if:

(a) the Minister has, before or after the commencement of this

section, decided under section 75 (the primary decision)

whether an action (the relevant action) is a controlled action

(whether the decision is that the action is a controlled action,

or that the action is not a controlled action); and

(b) at a time that is after the commencement of this section and

after the primary decision was made, a listing event occurs.

(3) The validity of the primary decision, or any other approval process

decision made in relation to the relevant action before the listing

event occurred, is not affected by the listing event, nor can it be

revoked, varied, suspended, challenged, reviewed, set aside or

called in question because of, or for reasons relating to, the listing

event.

(4) After the listing event occurs, the listing event is to be disregarded:

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Approval process decisions not affected by listing events that happen after section 75

decision made Division 3A

Section 158A

(a) in making any further approval process decision in relation to

the relevant action; and

(b) in doing anything under this Chapter, in relation to the

relevant action, because of the making of an approval process

decision in relation to the relevant action (whether that

approval process decision is or was made before or after the

listing event occurred).

(5) This section has effect despite any other provision of this Act and

despite any other law.

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Division 4—Application of Chapter to actions that are not

controlled actions

Subdivision A—Minister’s advice on authorising actions

159 Simplified outline of this Subdivision

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;

(aa) an assessment on referral information under

Division 3A;

(b) an assessment on preliminary documentation under

Division 4 of Part 8;

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(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.

160 Requirement to take account of Minister’s advice

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.

Note: The giving of an authorisation for an action may be constituted by the

renewal of an authorisation of the action or the variation of an

authorisation for a different action.

Minister may decide advice is not required

(1A) Subsection (1) does not apply in relation to an authorisation of an

action if:

(a) the agency or employee has referred a proposal to give the

authorisation to the Minister under subsection 161(1); and

(b) the Minister has decided under subsection 161A(1) that this

Subdivision does not apply in relation to the referral or the

action.

Relevant actions

(2) Subsection (1) applies in relation to:

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(a) the entry by the Commonwealth, under Australia’s foreign

aid program, into a contract, agreement or arrangement for

the implementation of 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.

(2A) Regulations may prescribe an action for the purposes of

paragraph (2)(d):

(a) partly by reference to the action’s having, or being likely to

have, a significant impact on the environment; or

(b) partly by reference to a specified person believing that the

action has, will have or is likely to have a significant impact

on the environment; or

(c) wholly or partly by reference to legislation under which the

authorisation of the action is to be granted.

This does not limit the ways in which regulations may prescribe an

action.

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 (4).

Which actions are like actions?

(4) For the purposes of subsection (3), the agency or employee must be

satisfied that:

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(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).

161 Seeking the Minister’s advice

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

(disregarding subsection 160(1A)) 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:

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(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 (disregarding subsection 160(1A)) 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.

161A Minister may decide that advice is not required

(1) If:

(a) the Minister receives a referral under subsection 161(1) of a

proposal by a Commonwealth agency or employee of the

Commonwealth to give an authorisation of an action; and

(b) the Minister is satisfied, on the basis of the information in the

referral, that the action does not have, will not have or is not

likely to have a significant impact on the environment;

the Minister may decide, in writing, that this Subdivision does not

apply in relation to the referral or the action.

(2) If the Minister decides that this Subdivision does not apply in

relation to the referral or the action, this Act (other than

Divisions 2 and 3 of Part 7) applies as if the Minister had decided

under Division 2 of Part 7 that the action is not a controlled action.

(3) If the Minister decides that this Subdivision does not apply in

relation to the referral or the action, the Minister must:

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(a) give written notice of the decision to the agency or employee

who referred the proposal to give an authorisation of the

action; and

(b) publish notice of the decision in accordance with the

regulations.

161B Certain provisions of other Acts not to apply if Minister

decides that advice is not required

(1) This section applies in relation to a provision of another Act that is

expressed to apply if:

(a) the advice of the Minister is sought under this Subdivision in

relation to a proposal to give an authorisation (however

described) of an action; or

(b) a proposal to give an authorisation (however described) of an

action is referred to the Minister under this Subdivision.

(2) The provision does not apply in relation to an action if:

(a) a proposal to give an authorisation (however described) of

the action has been referred to the Minister under

section 161; and

(b) the Minister has decided under section 161A that this

Subdivision does not apply in relation to the referral or the

action.

Note: See, for example, subsections 94(6A) and 95(3A) of the Airports Act

1996 and subsections 16(5) and 29(5) of the Hazardous Waste

(Regulation of Exports and Imports) Act 1989.

162 Assessment of the action

Part 8 (except sections 82, 83 and 84) 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

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(b) the Minister had decided under Division 2 of Part 7 that the

action was a controlled action when the proposal to give the

authorisation was referred to the Minister; 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 Part 8 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 Part 8 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.

163 Providing advice

(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 business days of

receiving:

(a) a report mentioned in subsection 84(3) relating to the action;

or

(aa) a finalised recommendation report under Division 3A of

Part 8 (as applied by section 162) relating to the action; or

(ab) the documents given to the Minister under subsection 95B(1)

(as applied by section 162), or the statement given to the

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Minister under subsection 95B(3) (as applied by

section 162), as the case requires, relating to the action; or

(ac) a finalised public environment report under Division 5 of

Part 8 (as applied by section 162) relating to the action; or

(ad) a finalised environmental impact statement under Division 6

of Part 8 (as applied by section 162) relating to the action; or

(b) a report of an inquiry under Division 7 of Part 8 (as applied

by section 162) relating to the action.

164 Reporting on response to advice

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.

Subdivision C—Assessment under agreement with State or

Territory

166 This Subdivision applies if Ministers agree it should

(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

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(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.

167 Making an agreement

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 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.

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168 Content of an agreement

Generally

(1) An agreement to apply this Subdivision in relation to an action

must:

(a) specify that one of the following is to apply in relation to the

action:

(i) Division 3A of Part 8;

(ii) Division 4 of Part 8;

(iii) Division 5 of Part 8;

(iv) Division 6 of Part 8;

(v) Division 7 of Part 8;

(vi) Subdivision A of Division 1 of Part 10; and

(b) if it specifies that Division 3A, 4, 5 or 6 of Part 8 is to apply

in relation to the action—specify the person who is taken to

be the designated proponent of the action for the purposes of

that Division.

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 tailored guidelines for the

preparation of a draft report; or

(b) under section 98 to approve publication of a draft report or

specify a period for comment.

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 tailored guidelines for the

preparation of a draft statement; or

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(b) under section 103 to approve publication of a draft statement

or specify a period for comment.

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 Subdivision A of Division 1 of

Part 10 is to apply may:

(a) be in the same document as an agreement mentioned in that

Subdivision; or

(b) specify the manner in which an agreement the Minister

makes under that Subdivision is to provide for matters that

that Subdivision requires that agreement to provide for.

169 Application of a Division of Part 8

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.

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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 Division 4 of Part 8

(3) Also, if the agreement states that Division 4 of Part 8 is to apply in

relation to the action, that Division applies in relation to the action

as if paragraphs 95(2)(a) and (b) and 95A(3)(a), (b) and (c) 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.

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170 Application of Subdivision A of Division 1 of Part 10

If an agreement to apply this Subdivision states that Subdivision A

of Division 1 of Part 10 is to apply:

(a) that Subdivision 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.

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Section 170A

Division 5—Publication of information relating to

assessments

170A Publication of information relating to assessments

The Secretary must publish on the internet every week notice of

the following:

(a) the publication in the immediately preceding week by the

Minister under section 45 of a notice of the Minister’s

intention to develop a draft bilateral agreement;

(b) each referral (if any) of an action received by the Minister

under Division 1 of Part 7 in the immediately preceding

week;

(c) each decision (if any) in the immediately preceding week

under Division 2 of Part 7 that an action is a controlled

action;

(d) each decision (if any) in the immediately preceding week

under Division 3 of Part 8 about which approach is to be used

for assessment of the relevant impacts of an action;

(da) each draft recommendation report and invitation (if any)

published in the immediately preceding week under

Division 3A of Part 8 (about assessment on referral

information);

(e) the information and invitations (if any) published in the

immediately preceding week under Division 4 of Part 8

(about assessment on preliminary documentation);

(f) each set of guidelines (if any) prepared in the immediately

preceding week by the Minister under Division 5 or 6 of

Part 8 for a report or statement;

(g) each public invitation (if any) issued in the immediately

preceding week by the Minister to comment on a draft of

guidelines under Division 5 or 6 of Part 8 for a report or

statement;

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(h) each draft or finalised report or statement published in the

immediately preceding week under Division 5 or 6 of Part 8

by a designated proponent;

(i) each finalised recommendation report given to the Minister

under Division 3A of Part 8 in the immediately preceding

week;

(ia) each recommendation report given to the Minister in the

immediately preceding week under section 95C, 100 or 105;

(j) any other matter prescribed by the regulations.

170B Information critical to protecting matters of national

environmental significance not to be disclosed

(1) The Minister may, by notice in writing to a person, direct the

person not to disclose specified information when publishing a

document or material as required or permitted by a specified

provision of this Chapter, if the Minister considers that the

information is critical to the protection of a matter protected by a

provision of Division 1 of Part 3 (about matters of national

environmental significance).

(2) A provision of this Chapter that is specified in a direction under

subsection (1) has effect as if it did not require or permit the

publication of the information specified in the direction.

(3) A person who is given a direction under subsection (1) must not

contravene the direction.

Civil penalty: 100 penalty units.

170BA Designated proponent may request Minister to permit

commercial-in-confidence information not to be disclosed

(1) This section applies in relation to the assessment documentation

that must be published by the designated proponent of an action to

which Division 4, 5 or 6 of Part 8 applies.

(2) The designated proponent may request the Minister, in writing, to

permit the designated proponent not to publish so much of the

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assessment documentation relating to the action as the designated

proponent considers is commercial-in-confidence.

(3) A request under subsection (2) must include the information

prescribed by the regulations.

(4) If the Minister is satisfied that a part of the assessment

documentation relating to the action is commercial-in-confidence,

the Minister may, by written notice to the designated proponent,

permit the designated proponent not to publish that part of the

assessment documentation.

(5) The Minister must not be satisfied that a part of the assessment

documentation relating to the action is commercial-in-confidence

unless a person demonstrates to the Minister that:

(a) release of the information in that part would cause

competitive detriment to the person; and

(b) the information in that part is not in the public domain; and

(c) the information in that part is not required to be disclosed

under another law of the Commonwealth, a State or a

Territory; and

(d) the information in that part is not readily discoverable.

(6) If the Minister permits the designated proponent not to publish a

part of the assessment documentation that the Minister considers is

commercial-in-confidence, the provision of Division 4, 5 or 6 of

Part 8 that requires the designated proponent to publish the

assessment documentation has effect as if it did not require the

publication of that part of the assessment documentation.

(7) In this section:

assessment documentation, in relation to an action to which

Division 4, 5 or 6 of Part 8 applies, means:

(a) if Division 4 of Part 8 (assessment on preliminary

documentation) applies to the action:

(i) the information referred to in paragraphs 95(2)(a) and

(b) or 95A(3)(a), (b) and (c), as the case requires; and

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(ii) the document prepared under paragraph 95B(1)(a) or

the information referred to in subsection 95B(4), as the

case requires; or

(b) if Division 5 of Part 8 (public environment reports) applies to

the action:

(i) the draft public environment report relating to the action

given to the Minister under paragraph 98(1)(ab); and

(ii) the finalised public environment report relating to the

action given to the Minister under section 99; or

(c) if Division 6 of Part 8 (environmental impact statements)

applies to the action:

(i) the draft environmental impact statement relating to the

action given to the Minister under paragraph 103(1)(ab);

and

(ii) the finalised environmental impact statement relating to

the action given to the Minister under section 104.

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Section 170C

Division 6—Withdrawal of referrals

170C Withdrawal of referral of proposal to take an action

(1) Subject to subsection (2), a person who:

(a) has referred a proposal to take an action to the Minister under

section 68; or

(b) is named as the person proposing to take an action in a

proposal that is referred to the Minister under section 69 or

71;

may withdraw the referral, by written notice to the Minister.

(2) The referral cannot be withdrawn after the Minister has decided,

under Part 9, whether or not to approve the taking of the action.

(3) If the Minister receives a notice withdrawing the referral, the

Minister must publish notice of the withdrawal of the referral in

accordance with the regulations.

(4) If the referral is withdrawn, the provisions of this Chapter that

would, apart from this subsection, have applied to the action cease

to apply to the action.

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Chapter 4 Environmental assessments and approvals

Part 11 Miscellaneous rules about assessments and approvals

Division 7 Miscellaneous

Section 170CA

Division 7—Miscellaneous

170CA Fees

(1) The Minister may, in writing, determine the amounts of fees that

may be charged if the approach for assessing the relevant impacts

of an action that the Minister has decided is a controlled action is:

(a) assessment by inquiry under Division 7 of Part 8; or

(b) assessment by strategic assessment under Division 1 of

Part 10.

(2) Before making a determination, the Minister must consult:

(a) the person proposing to take the action; or

(b) if the person proposing to take the action is not the

designated proponent—the designated proponent; or

(c) if the approach is assessment by strategic assessment—the

person responsible for the adoption or implementation of the

relevant policy, plan or program;

about the amounts of fees to be charged.

(3) The Minister may, in the determination made under subsection (1),

determine the way in which a fee is to be worked out.

(4) A determination made under subsection (1) is not a legislative

instrument.

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Interpretation Part 11A

Section 170D

Chapter 5—Conservation of biodiversity and

heritage

Part 11A—Interpretation

170D References to business days are references to Canberra

business days

A reference in this Chapter to a business day is a reference to a day

that is a business day in Canberra.

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Chapter 5 Conservation of biodiversity and heritage

Part 12 Identifying and monitoring biodiversity and making bioregional plans

Division 1 Identifying and monitoring biodiversity

Section 171

Part 12—Identifying and monitoring biodiversity

and making bioregional plans

Division 1—Identifying and monitoring biodiversity

171 Identifying and monitoring biodiversity

(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

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Identifying and monitoring biodiversity Division 1

Section 172

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.

172 Inventories of listed threatened species etc. on Commonwealth

land

(1) The Minister may prepare an inventory covering an area of

Commonwealth land that identifies, and states the abundance of,

the listed threatened species, listed threatened ecological

communities, listed migratory species and listed marine species on

the area of land if:

(a) the Minister is satisfied that the area of land is of importance

for the conservation of biodiversity; and

(b) the area of land is not covered by a plan that:

(i) has an object (whether express or implied) of either

protecting the environment or promoting the

conservation of biodiversity; and

(ii) is in force under a law of the Commonwealth.

(2) A Commonwealth agency must provide all reasonable assistance in

connection with the preparation of an inventory if:

(a) the inventory is to cover an area of Commonwealth land; and

(b) the agency has an interest in the area of land.

(3) For the purposes of paragraph (2)(b), a Commonwealth agency has

an interest in an area of Commonwealth land if the agency:

(a) has a legal or equitable interest in the area; or

(b) occupies the area; or

(c) has administrative responsibilities relating to the area or to

actions taken in the area.

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Division 1 Identifying and monitoring biodiversity

Section 173

173 Surveys of cetaceans, listed threatened species etc. in

Commonwealth marine areas

(1) The Minister may prepare a survey covering a Commonwealth

marine area that identifies, and states the extent of the range of,

cetaceans, listed threatened species, listed threatened ecological

communities, listed migratory species and listed marine species in

the area if:

(a) the Minister is satisfied that the area is of importance for the

conservation of biodiversity; and

(b) the area is not covered by a plan that:

(i) has an object (whether express or implied) of either

protecting the environment or promoting the

conservation of biodiversity; and

(ii) is in force under a law of the Commonwealth.

(2) A Commonwealth agency must provide all reasonable assistance in

connection with the preparation of a survey if:

(a) the survey is to cover a Commonwealth marine area; and

(b) the agency has an interest in the area.

(3) For the purposes of paragraph (2)(b), a Commonwealth agency has

an interest in a Commonwealth marine area if the agency:

(a) has a legal or equitable interest in the area; or

(b) occupies the area; or

(c) has administrative responsibilities relating to the area or to

actions taken in the area.

174 Inventories and surveys to be updated

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.

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Bioregional plans Division 2

Section 176

Division 2—Bioregional plans

176 Bioregional plans

(1) The Minister may prepare a bioregional plan for a bioregion that is

within a Commonwealth area. In preparing the plan, the Minister

must carry out public consultation on a draft of the plan in

accordance with the regulations.

(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;

(ba) heritage values of places;

(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.

(4A) A bioregional plan prepared under subsection (1) or (2) is not a

legislative instrument.

(5) Subject to this Act, the Minister must have regard to a bioregional

plan in making any decision under this Act to which the plan is

relevant.

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Division 2 Bioregional plans

Section 177

177 Obligations under this Act unaffected by lack of bioregional

plans

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.

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Species and communities Part 13

Listed threatened species and ecological communities Division 1

Section 178

Part 13—Species and communities

Division 1—Listed threatened species and ecological

communities

Subdivision A—Listing

178 Listing of threatened species

(1) The Minister must, by legislative instrument, 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.

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Section 179

(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.

179 Categories of threatened species

(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.

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(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:

(a) 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; or

(b) the following subparagraphs are satisfied:

(i) the species is a species of fish;

(ii) the species is the focus of a plan of management that

provides for management actions necessary to stop the

decline of, and support the recovery of, the species so

that its chances of long term survival in nature are

maximised;

(iii) the plan of management is in force under a law of the

Commonwealth or of a State or Territory;

(iv) cessation of the plan of management would adversely

affect the conservation status of the species.

(7) In subsection (6):

fish includes all species of bony fish, sharks, rays, crustaceans,

molluscs and other marine organisms, but does not include marine

mammals or marine reptiles.

180 Native species of marine fish

(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.

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Section 181

(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.

181 Listing of threatened ecological communities

(1) The Minister must, by legislative instrument, 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) The list, as first established, must contain only the ecological

communities listed in Schedule 2 to the Endangered Species

Protection Act 1992 immediately before the commencement of this

Act, and they must be listed 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) To avoid doubt, the instrument first establishing the list under

subsection (1) is not taken to have been a legislative instrument.

Note: When the list was first established, it was required to be established by

instrument published in the Gazette.

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182 Critically endangered, endangered and vulnerable communities

(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.

183 Listing of key threatening processes

(1) The Minister must, by legislative instrument, 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.

184 Minister may amend lists

Subject to this Subdivision, the Minister may, by legislative

instrument, amend a list referred to in section 178, 181 or 183 by:

(a) including items in the list in accordance with

Subdivision AA; or

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(aa) including items in the list in accordance with

subsection 186(3), (4) or (5); 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 in accordance with Subdivision AA; or

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

threatened species or listed threatened ecological community.

Note: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not

apply to the instrument. See regulations made for the purposes of

paragraph 54(2)(b) of that Act.

186 Amending list of threatened native species

Including native species in a category

(1) Subject to subsections (3), (4) and (5), the Minister must not

include (whether as a result of a transfer or otherwise) a native

species in a particular category unless satisfied that the native

species is eligible to be included in that category.

(2) In deciding whether to include a native species in a particular

category (whether as a result of a transfer or otherwise), the only

matters the Minister may consider are matters relating to:

(a) whether the native species is eligible to be included in that

category; or

(b) the effect that including the native species in that category

could have on the survival of the native species.

Deleting native species from a category

(2A) The Minister must not delete (whether as a result of a transfer or

otherwise) a native species from a particular category unless

satisfied that:

(a) the native species is no longer eligible to be included in that

category; or

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(b) the inclusion of the native species in that category is not

contributing, or will not contribute, to the survival of the

native species.

(2B) In deciding whether to delete a native species from a particular

category (whether as a result of a transfer or otherwise), the only

matters the Minister may consider are matters relating to:

(a) whether the native species is eligible to be included in that

category; or

(b) the effect that the inclusion of the native species in that

category is having, or could have, on the survival of the

native species.

Including similar species to an eligible species

(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.

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(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.

187 Amending list of ecological communities

Including ecological communities in a category

(1) The Minister must not include (whether as a result of a transfer or

otherwise) an ecological community in a particular category unless

satisfied that the ecological community is eligible to be included in

that category.

(2) In deciding whether to include an ecological community in a

particular category (whether as a result of a transfer or otherwise),

the only matters the Minister may consider are matters relating to:

(a) whether the ecological community is eligible to be included

in that category; or

(b) the effect that including the ecological community in that

category could have on the survival of the ecological

community.

Deleting ecological communities from a category

(3) The Minister must not delete (whether as a result of a transfer or

otherwise) an ecological community from a particular category

unless satisfied that:

(a) the ecological community is no longer eligible to be included

in that category; or

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(b) the inclusion of the ecological community in that category is

not contributing, or will not contribute, to the survival of the

ecological community.

(4) In deciding whether to delete an ecological community from a

particular category (whether as a result of a transfer or otherwise),

the only matters the Minister may consider are matters relating to:

(a) whether the ecological community is eligible to be included

in that category; or

(b) the effect that the inclusion of the ecological community in

that category is having, or could have, on the survival of the

ecological community.

188 Amending list of key threatening processes

(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 conservation dependent species) or 2 or more listed

threatened ecological communities.

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189 Minister must consider advice from Scientific Committee

(1) In deciding whether to make an amendment covered by

paragraph 184(1)(aa), (b) or (d), the Minister must, in accordance

with the regulations (if any), obtain and consider advice from the

Scientific Committee on the proposed amendment.

(1A) Subsection (1) has effect subject to section 192.

(1B) If advice from the Scientific Committee for the purposes of

subsection (1) is to the effect that a particular native species, or a

particular ecological community, is eligible to be included in the

relevant list in a particular category, the advice must also contain:

(a) a statement that sets out:

(i) the grounds on which the species or community is

eligible to be included in the category; and

(ii) the main factors that are the cause of it being so eligible;

and

(b) either:

(i) information about what could appropriately be done to

stop the decline of, or support the recovery of, the

species or community; or

(ii) a statement to the effect that there is nothing that could

appropriately be done to stop the decline of, or support

the recovery of, the species or community; and

(c) a recommendation on the question whether there should be a

recovery plan for the species or community.

(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 to delete an item:

(a) included in a category of a list referred to in section 178 or

181; and

(b) that had not been included in that category in accordance

with subsection 186(3), (4) or (5);

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the only matters the Scientific Committee may consider are matters

relating to:

(c) the survival of the native species or ecological community

concerned; or

(d) the effect that the inclusion in the list of the native species or

ecological community concerned is having, or could have, on

the survival of that native species or ecological community.

(3A) In preparing advice for a proposed amendment to:

(a) include a native species in a category of the list referred to in

section 178 in accordance with subsection 186(3), (4) or (5)

because of the species’ resemblance to another species; or

(b) delete a native species from a category of the list referred to

in section 178 that had been included in that category in

accordance with subsection 186(3), (4) or (5) because of the

species’ resemblance to another species;

the only matters the Scientific Committee may consider are matters

relating to:

(c) the survival of either species; or

(d) the effect that the inclusion in the list of the first-mentioned

species is having, or could have, on the survival of either

species.

189A Certain information may be kept confidential

(1) This section applies if the Minister considers that the survival of a

native species or ecological community could be threatened by the

disclosure of some or all of the following information, or by the

presence or actions of persons if some or all of the following

information were disclosed publicly:

(a) the precise location of the species in the wild, or of the

community;

(b) any other information about the species or community.

(2) It is sufficient compliance with this Act if only a general

description of the location of the species or community is included

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in an instrument or other document created for the purposes of this

Act.

189B Disclosure of Scientific Committee’s assessments and advice

(1) A member of the Scientific Committee has a duty not to disclose

the following to a person other than the Minister, an employee in

the Department whose duties relate to the Committee or another

member of the Committee:

(a) an assessment under section 194N in relation to whether an

item is eligible for inclusion (whether as a result of a transfer

or otherwise) in a list referred to in section 178, 181 or 183,

any information relating to the assessment or any information

about the nomination (if any) that led to the making of the

assessment;

(b) advice under section 189 concerning an amendment covered

by subsection 189(1) or any information relating to the

advice.

(2) However:

(a) the duty not to disclose a thing described in paragraph (1)(a)

in relation to an item does not exist after:

(i) registration under Division 3 of Part 4 of the Legislative

Instruments Act 2003 of an instrument made under

section 189 in relation to the item; or

(ii) the Minister decides under paragraph 194Q(1)(b) not to

include the item in a list referred to in section 178, 181

or 183; and

(b) the duty not to disclose a thing described in paragraph (1)(b)

in relation to an amendment does not exist after:

(i) registration under Division 3 of Part 4 of the Legislative

Instruments Act 2003 of an instrument made under

section 189 relating to the amendment; or

(ii) the Minister decides under this Subdivision not to

remove the item from a list referred to in section 178,

181 or 183.

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(3) Subsection (1) does not apply to a disclosure of particular

information if:

(a) the Chair of the Scientific Committee requests the Minister to

give permission to disclose that information to a particular

person (or persons within a particular group of persons); and

(b) the Minister gives that permission; and

(c) the disclosure is made to that person (or a person within that

group).

(4) After a member of the Scientific Committee has ceased under

subsection (2) to have a duty not to disclose:

(a) an assessment under section 194N in relation to whether an

item is eligible for inclusion (whether as a result of a transfer

or otherwise) in a list referred to in section 178, 181 or 183;

or

(b) advice under section 189 concerning an amendment covered

by subsection 189(1);

the member must give a copy of the assessment or advice to

anyone who asks for it.

(5) If:

(a) a member of the Scientific Committee proposes to give a

person under subsection (4):

(i) a copy of an assessment relating to an item concerning a

native species or ecological community; or

(ii) a copy of advice relating to an amendment concerning a

native species or ecological community; and

(b) the member is aware that, under section 189A, it would be

sufficient compliance with this Act if the copy included only

a general location of the species or community;

the member must take reasonable steps to ensure that the copy

given to the person does not include a more detailed description

than is necessary for sufficient compliance with this Act under that

section.

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190 Scientific Committee may provide advice about species or

communities becoming threatened

(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.

192 Rediscovery of threatened species that were extinct

(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.

193 Species posing a serious threat to human health

(1) If the Minister is satisfied that a native species poses a serious

threat to human health, the Minister may, by legislative instrument,

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.

(4) The Minister must cause a notice summarising the information

contained in an instrument to be published in accordance with the

regulations (if any).

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194 Lists must be publicly available

The Minister must ensure that:

(a) up-to-date copies of the lists referred to in sections 178, 181

and 183 are available for free to the public on request; and

(b) up-to-date copies of the lists are available on the internet.

Note: The copies of the lists made publicly available may not contain certain

information kept confidential under section 189A.

Subdivision AA—The nomination and listing process

194A Simplified outline

The following is a simplified outline of this Subdivision:

This Subdivision sets out the usual process for including an item in

a list referred to in section 178, 181 or 183, or transferring an item

from one category in one of those lists to another category in the

list.

The usual process involves an annual cycle that revolves around

12-month periods known as assessment periods. The Minister

determines the start of the first assessment period (see

section 194C).

The usual process involves the following steps for each assessment

period for a list:

(a) the Minister may determine conservation themes

(this step is optional) (see section 194D);

(b) the Minister invites people to nominate items for

inclusion in the list referred to in section 178, 181

or 183, and gives the nominations to the Scientific

Committee (see sections 194E and 194F);

(c) the Scientific Committee prepares, and gives to the

Minister, a list of items (which will mostly be

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items that have been nominated) that it thinks

should be assessed (see sections 194G to 194J);

(d) the Minister finalises the list of items that are to be

assessed (see sections 194K and 194N( �

(e) the Scientific Committee invites people to make

comments about the item in the finalised list (see

section 194M);

(f) the Scientific Committee assesses the item in the

finalised list, and gives the assessments to the

Minister (see sections 194N and 194P);

(g) the Minister decides whether an item that has been

assessed should be included in the list referred to

in section 178, 181 or 183 (see section 194Q).

The steps mentioned in paragraphs (a) to (d) will generally be

completed before the start of the assessment period.

194B Definitions

(1) In this Subdivision:

assessment period has the meaning given by subsection 194C(1).

eligible for assessment consideration, in relation to an assessment

period, has the meaning given by subsection 194G(3).

finalised priority assessment list for an assessment period has the

meaning given by subsection 194K(4).

includes has a meaning affected by subsection (2).

proposed priority assessment list for an assessment period has the

meaning given by subsection 194G(1).

Subdivision A List means a list referred to in section 178, 181 or

183.

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(2) A reference in this Subdivision to including an item in a list

referred to in section 178 or 181 includes a reference to

transferring the item from one category in the list to another

category in the list.

194C Meaning of assessment period

(1) For the purposes of this Subdivision, each of the following is an

assessment period for a Subdivision A List:

(a) the period of 12 months starting on the day determined in

writing by the Minister for the purposes of this paragraph in

relation to the Subdivision A List;

(b) each period of 12 months starting on an anniversary of the

day so determined.

(2) The Minister must make a determination under paragraph (1)(a)

within 3 months after the commencement of this section. The day

so determined must not be more than 12 months after that

commencement.

(3) A determination under paragraph (1)(a) is a legislative instrument,

but section 42 (disallowance) of the Legislation Act 2003 does not

apply to the determination.

Note: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not

apply to the determination. See regulations made for the purposes of

paragraph 54(2)(b) of that Act.

194D Minister may determine conservation themes for an

assessment period

(1) Before the Minister invites nominations for an assessment period

for a Subdivision A List under section 194E, the Minister may

determine one or more conservation themes that the Minister

considers should be given priority in relation to the assessment

period for the Subdivision A List.

(2) Without limiting subsection (1), the Minister may determine as a

conservation theme that priority should be given to the

conservation of:

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(a) particular groups of species; or

(b) particular species; or

(c) particular regions of Australia.

(3) The Minister may request advice from the Scientific Committee for

the purpose of making a determination under subsection (1), and

may have regard to any advice the Committee provides in response

to the request.

(4) A determination under subsection (1) is a legislative instrument,

but section 42 (disallowance) of the Legislation Act 2003 does not

apply to the determination.

194E Minister to invite nominations for each assessment period

(1) Before the start of each assessment period for a Subdivision A List,

the Minister must publish a notice inviting people to nominate

items for inclusion in the Subdivision A List.

Note: Nominations can be for the transfer of an item already on a list

covered by section 178 or 181 from one category in the list to another

category in the list (see subsection 194B(2)).

(2) A notice under subsection (1):

(a) must be published in accordance with the regulations referred

to in paragraph (3)(a); and

(b) must invite people to nominate, to the Minister, items for

inclusion in the Subdivision A List; and

(c) must identify the assessment period to which the notice

relates; and

(d) must specify a date (the cut-off date) by which nominations

must be received, which must be at least 40 business days

after the notice has been published as required by

paragraph (a); and

(e) must specify, or refer to, the information requirements, and

the manner and form requirements, that, under regulations

referred to in paragraphs (3)(b) and (c), apply to making

nominations; and

(f) may also include:

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(i) information related to any conservation themes that the

Minister has determined under section 194D should be

given priority in relation to the assessment period for

the Subdivision A List; and

(ii) any other information that the Minister considers

appropriate.

(3) The regulations must provide for the following:

(a) how a notice under subsection (1) is to be published;

(b) the manner and form for making nominations;

(c) what information is to be included in a nomination.

194F Minister to give nominations to Scientific Committee

Nominations in relation to first assessment period

(1) Within 30 business days after the cut-off date specified in the

notice under subsection 194E(1) for the first assessment period, the

Minister must give the Scientific Committee the nominations that

the Minister:

(a) had received before the end of that cut-off date; and

(b) had not already forwarded to the Scientific Committee, under

section 191 (as in force before the commencement of this

section), to assess; and

(c) had not already rejected under section 191 (as in force before

the commencement of this section); and

(d) does not reject under subsection (3).

Nominations in relation to later assessment periods

(2) Within 30 business days after the cut-off date (the current cut-off

date) specified in the notice under subsection 194E(1) for an

assessment period (other than the first) for a Subdivision A List,

the Minister must give the Scientific Committee the nominations

that were received by the Minister in the period:

(a) starting immediately after the end of the cut-off date

specified in the notice under subsection 194E(1) for the

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immediately preceding assessment period for the

Subdivision A List; and

(b) ending at the end of the current cut-off date for the

Subdivision A List;

other than any such nominations that the Minister has rejected

under subsection (3).

Minister may reject nominations

(3) The Minister may, in writing, reject a nomination if the Minister

considers that:

(a) the nomination is vexatious, frivolous or not made in good

faith; or

(b) the Minister considers that regulations referred to in

paragraph 194E(3)(b) or (c) have not been complied with in

relation to the nomination.

(4) If a nomination is rejected under paragraph (3)(b), the Minister

must, if practicable, notify the person who made the nomination of

the rejection of the nomination and the reason for the rejection.

Definition

(5) In this section:

nomination means a nomination of an item for inclusion in a

Subdivision A List.

194G Scientific Committee to prepare proposed priority assessment

list

(1) Within 40 business days after the Scientific Committee receives

the nominations as required by subsection 194F(1) in relation to an

assessment period for a Subdivision A List, the Committee must

prepare and give to the Minister a list (the proposed priority

assessment list) for the assessment period for the Subdivision A

List.

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(2) The proposed priority assessment list for the Subdivision A List is

to consist of such of the items that are eligible for assessment

consideration in relation to the assessment period for the

Subdivision A List as the Scientific Committee considers it

appropriate to include in the proposed priority assessment list,

having regard to:

(a) any conservation themes determined by the Minister under

section 194D in relation to the assessment period for the

Subdivision A List; and

(b) the Committee’s own views about what should be given

priority in relation to the assessment period for the

Subdivision A List; and

(c) the Committee’s capacity to make assessments under this

Division while still performing its other functions; and

(d) any other matters that the Committee considers appropriate.

(3) An item is eligible for assessment consideration in relation to the

assessment period for a Subdivision A List if:

(a) the item has been nominated by a nomination referred to in

subsection (1); or

(b) the Committee itself wishes to nominate the item for

inclusion in the Subdivision A List; or

(c) the item was eligible for assessment consideration, otherwise

than because of this paragraph, in relation to the immediately

preceding assessment period (if any) for the Subdivision A

List but was not included in the finalised priority assessment

list for that assessment period for the Subdivision A List.

(4) Without limiting the generality of the Scientific Committee’s

discretion under subsection (2), the Committee does not have to

include in the proposed priority assessment list an item that has

been nominated if the Committee considers that:

(a) if the item is not on the Subdivision A List concerned—it is

unlikely that the item is eligible to be included in the

Subdivision A List; or

(b) if the nomination is for the transfer of the item to another

category in the Subdivision A List concerned—it is unlikely

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that the item is eligible to be included in that other category

of the Subdivision A List.

(5) For the purposes of subsection (4), the Committee is not required

to have regard to any information beyond the information that was

included in the nomination.

(6) The proposed priority assessment list is not a legislative

instrument.

194H Matters to be included in proposed priority assessment list

(1) The proposed priority assessment list for an assessment period for

a Subdivision A List is to include, for each item in the proposed

priority assessment list:

(a) a description of the item; and

(b) an assessment completion time; and

(c) any other information required by the regulations.

(2) The assessment completion time for an item must be either:

(a) a time that is at or before the end of the assessment period for

the proposed priority assessment list; or

(b) if the Scientific Committee considers it likely that making an

assessment in relation to the item will take a period that is

longer than 12 months—the end of that longer period

(calculated from the start of the assessment period for the

proposed priority assessment list).

194J Statement to be given to Minister with proposed priority

assessment list

(1) When the Scientific Committee gives the Minister the proposed

priority assessment list for an assessment period for a

Subdivision A List, the Committee must also give the Minister a

statement setting out such information as the Committee considers

appropriate relating to:

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(a) for each item that is included in the proposed priority

assessment list—why the Committee included the item in the

list; and

(b) for each item that is not included in the proposed priority

assessment list but that was eligible for assessment

consideration because of paragraph 194G(3)(a) or (c)—why

the Committee did not include the item in the proposed

priority assessment list.

(2) The statement must also identify, as items nominated by the

Scientific Committee, any items that are included in the proposed

priority assessment list because the Committee itself wishes to

nominate them (see paragraph 194G(3)(b)).

194K The finalised priority assessment list

(1) Within 20 business days after the Minister, under section 194G,

receives the proposed priority assessment list for an assessment

period for a Subdivision A List, the Minister may, in writing, make

changes to the proposed priority assessment list as mentioned in

subsection (2).

(2) The changes the Minister may make are as follows:

(a) including an item in the proposed priority assessment list

(and also including the matters referred to in

subsection 194H(1));

(b) omitting an item from the proposed priority assessment list

(and also omitting the matters referred to in

subsection 194H(1));

(c) changing the assessment completion time for an item in the

proposed priority assessment list;

(d) any other changes of a kind permitted by the regulations.

(3) In exercising the power to make changes, the Minister may have

regard to any matters that the Minister considers appropriate.

(4) At the end of the period of 20 business days referred to in

subsection (1), the proposed priority assessment list, as changed (if

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at all) by the Minister, becomes the finalised priority assessment

list for the assessment period for the Subdivision A List.

(5) The Minister must notify the Scientific Committee of all changes

that the Minister makes to the proposed priority assessment list.

(6) The finalised priority assessment list is not a legislative instrument.

194L Publication of finalised priority assessment list

(1) The Scientific Committee must publish the finalised priority

assessment list for an assessment period for a Subdivision A List

on the internet.

(2) The Scientific Committee must also publish the finalised priority

assessment list in accordance with any requirements of the

regulations.

194M Scientific Committee to invite comments on items in finalised

priority assessment list

(1) In relation to each item included in the finalised priority

assessment list for an assessment period for a Subdivision A List,

the Scientific Committee must publish a notice inviting people to

make comments on the item.

(2) The Scientific Committee may, under subsection (1), publish a

single notice relating to all of the items on the finalised priority

assessment list, or may publish a number of separate notices, each

of which relates to one or more of the items.

(3) A notice under subsection (1), in relation to an item or items:

(a) must be published in accordance with the regulations referred

to in paragraph (4)(a); and

(b) must identify the item or items to which the notice relates;

and

(c) if the Subdivision A List is the list referred to in section 178

or 181—must identify the category of the Subdivision A List

in which the item or items are proposed to be included; and

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(d) must invite people to make comments, to the Scientific

Committee, setting out:

(i) if the Subdivision A List is the list referred to in

section 178 or 181—views about whether the item or

items are eligible for inclusion in that category of the

Subdivision A List; and

(ii) if the Subdivision A List is the list referred to in

section 183—views whether the item or items are

eligible for inclusion in the Subdivision A List; and

(iii) reasons supporting those views; and

(e) must specify the date (the cut-off date) by which comments

must be received, which must be at least 30 business days

after the notice has been published as required by

paragraph (a); and

(f) must specify, or refer to, the manner and form requirements

that, under regulations referred to in paragraph (4)(b), apply

to making comments; and

(g) may also invite people to comment on other matters that the

Scientific Committee considers appropriate; and

(h) may also include any other information that the Scientific

Committee considers appropriate.

(4) The regulations must provide for the following:

(a) how a notice under subsection (1) is to be published;

(b) the manner and form for making comments.

194N Scientific Committee to assess items on finalised priority

assessment list and give assessments to Minister

(1) In relation to each item included in the finalised priority

assessment list for an assessment period for a Subdivision A List,

the Scientific Committee must (by the time required by

section 194P):

(a) make a written assessment of:

(i) whether the item is eligible for inclusion in the

Subdivision A List; and

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(ii) if the Subdivision A List is the list referred to in

section 178 or 181—the category of that List in which

the item is eligible to be included; and

(b) give to the Minister:

(i) the written assessment (or a copy of it); and

(ii) a copy of the comments referred to in paragraphs (2)(a)

and (b) (whether or not they have all been taken into

account under subsection (2)).

(2) In making an assessment in relation to an item, the Scientific

Committee, subject to subsections (3) and (4):

(a) must take into account the comments the Committee receives

in response to the notice under subsection 194M(1) in

relation to the item; and

(b) may seek, and have regard to, information or advice from any

source.

(3) The Scientific Committee is not required to take a comment

referred to in paragraph (2)(a) into account if:

(a) the Committee does not receive the comment until after the

cut-off date specified in the notice under subsection 194M(1)

in relation to the item; or

(b) the Committee considers that regulations referred to in

paragraph 194M(4)(b) have not been complied with in

relation to the comment.

(4) In making an assessment, the only matters the Scientific

Committee may consider are matters relating to:

(a) whether the item is eligible for inclusion in the Subdivision A

List; or

(b) the effect that including the item in that List could have on

the survival of the native species or ecological community

concerned.

194P Time by which assessments to be provided to Minister

(1) Subsection 194N(1) must be complied with, in relation to an item

included in the finalised priority assessment list for an assessment

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period for a Subdivision A List, by the assessment completion time

specified in the finalised priority assessment list for the item, or by

that time as extended under this section.

(2) The Scientific Committee may request the Minister to extend the

assessment completion time (or that time as previously extended) if

the Committee considers that it needs more time to make the

assessment.

(3) The Minister may, in response to a request under subsection (2),

extend the assessment completion time (or that time as previously

extended) by such period (if any) as the Minister considers

appropriate. However, the total length of all extensions of the

assessment completion time must not be more than 5 years.

(4) An extension under subsection (3) must be made in writing.

(5) If the Minister grants an extension under this section, the Minister

must publish particulars of the extension in a way that the Minister

considers appropriate.

194Q Decision about inclusion of an item in the Subdivision A List

Minister to decide whether or not to include item

(1) After receiving from the Scientific Committee an assessment under

section 194N of an item, the Minister must:

(a) include the item in the Subdivision A List concerned; or

(b) in writing, decide not to include the item in the

Subdivision A List concerned.

Note 1: Under this subsection the Minister can transfer an item already on a

Subdivision A List to a different category in the List (see

subsection 194B(1)).

Note 2: Sections 186, 187 and 188 contain rules about including items in a

Subdivision A List.

(2) If, under subsection (1), the Minister transfers an item to a category

of the Subdivision A List, the Minister must at the same time

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delete the item from the category in which it was included before

the transfer.

(3) Subject to subsection (4), the Minister must comply with

subsection (1) within 90 business days after the day on which the

Minister receives the assessment.

(4) The Minister may, in writing, extend or further extend the period

for complying with subsection (1).

(5) Particulars of an extension or further extension under

subsection (4) must be published on the internet and in any other

way required by regulations.

(6) For the purpose of deciding what action to take under

subsection (1) in relation to the item:

(a) the Minister must have regard to:

(i) the Scientific Committee’s assessment of the item; and

(ii) the comments (if any), a copy of which were given to

the Minister under subsection 194N(1) with the

assessment; and

(b) the Minister may seek, and have regard to, information or

advice from any source.

Additional requirements if Minister decides to include item

(7) If the Minister includes the item in the Subdivision A List, he or

she must, within a reasonable time:

(a) if the item was nominated by a person in response to a notice

under subsection 194E(1)—advise the person that the item

has been included in the Subdivision A List; and

(b) publish a copy of the instrument referred to in

paragraph (1)(a) on the internet; and

(c) publish a copy or summary of that instrument in accordance

with any other requirements specified in the regulations.

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Additional requirements if Minister decides not to include item

(8) If the Minister decides not to include the item in the Subdivision A

List, the Minister must, within 10 business days after making the

decision:

(a) publish the decision on the internet; and

(b) if the item was nominated by a person in response to a notice

under subsection 194E(1)—advise the person of the decision,

and of the reasons for the decision.

194R Scientific Committee may obtain advice

In performing its functions under this Subdivision, the Scientific

Committee may obtain advice from a person with expertise

relevant to the inclusion of an item in a Subdivision A List.

194S Co-ordination with Australian Heritage Council—Committee

undertaking assessment

(1) This section applies if:

(a) the Scientific Committee undertakes an assessment under this

Subdivision; and

(b) before giving the assessment to the Minister, the Committee

becomes aware that:

(i) the Australian Heritage Council is undertaking, or has

undertaken, an assessment of a place under

Subdivision BA or BB of Division 1A of Part 15 or

under Subdivision BA or BB of Division 3A of Part 15;

and

(ii) there is a matter that is relevant to both the assessment

referred to in paragraph (a) and the assessment referred

to in subparagraph (i).

(2) A member of the Scientific Committee may discuss the matter with

a member of the Australian Heritage Council.

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(3) Before the Scientific Committee gives an assessment to the

Minister under this Subdivision, the Committee must comply with

subsection (4) or (6).

(4) If the Australian Heritage Council has not yet given the Minister an

assessment that deals with that matter, the Scientific Committee

must:

(a) give the Council a copy of the assessment that the Committee

proposes to give to the Minister; and

(b) invite the Council to give the Committee its comments in

relation to that matter; and

(c) take into account, in finalising the assessment that the

Committee gives the Minister, any comments that the

Council makes in relation to that matter in response to that

invitation within 14 days, or such longer period as is

specified in the invitation, after being given the invitation.

(5) If the Scientific Committee gives the Australian Heritage Council a

copy of a proposed assessment under paragraph (4)(a), the

Committee must also give the Council a copy of the assessment

that the Committee gives the Minister.

(6) If:

(a) the Australian Heritage Council has already given the

Minister an assessment that deals with that matter; and

(b) the Scientific Committee has been given a copy of that

assessment;

the Committee must take that assessment into account in finalising

the assessment that the Committee gives the Minister.

(7) If, under section 324JR, 324JS, 341JQ or 341JR, the Australian

Heritage Council gives the Scientific Committee a proposed

assessment, or an assessment, that deals with a particular matter

because the Committee is undertaking an assessment that deals

with that matter, a member of the Committee may discuss that

matter with a member of the Council.

(8) Subsection (2), paragraph (4)(a) and subsections (5) and (7) have

effect despite section 189B.

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194T Co-ordination with Australian Heritage Council—Committee

given assessment to Minister

(1) This section applies if:

(a) the Scientific Committee has given to the Minister an

assessment under this Subdivision; and

(b) the Committee is or becomes aware that:

(i) the Australian Heritage Council is undertaking an

assessment of a place under Subdivision BA or BB of

Division 1A of Part 15 or under Subdivision BA or BB

of Division 3A of Part 15; and

(ii) there is a matter that is relevant to both the assessment

referred to in paragraph (a) and the assessment referred

to in subparagraph (i).

(2) The Scientific Committee must, within 7 days after giving the

assessment to the Minister, or becoming aware, as referred to in

paragraph (1)(b):

(a) ensure the Australian Heritage Council is aware of the

existence of the paragraph (1)(a) assessment dealing with the

matter; and

(b) give the Council a copy of the assessment.

(3) A member of the Scientific Committee may discuss the matter with

a member of the Australian Heritage Council.

(4) Subsections (2) and (3) have effect despite section 189B.

Subdivision B—Permit system

195 Subdivision does not apply to cetaceans

This Subdivision does not apply to a member of a listed threatened

species that is a cetacean.

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196 Killing or injuring member of listed threatened species or

community

(1) A person commits an offence if:

(a) the person takes an action; and

(b) the action results in the death or injury of a member of a

species or a member of an ecological community; and

(c) the member is a member of a listed threatened species

(except a conservation dependent species) or of a listed

threatened ecological community; and

(d) the member is in or on a Commonwealth area.

Penalty:

(a) in the case of an aggravated offence—imprisonment for 2

years or 3,000 penalty units, or both;

(b) in any other case—imprisonment for 2 years or 1,000 penalty

units, or both.

Note 1: For the extra element of an aggravated offence, see section 196F.

Note 2: This section does not apply in the circumstances described in

section 197. A defendant bears an evidential burden in relation to

those circumstances. See subsection 13.3(3) of the Criminal Code.

(2) Strict liability applies to paragraphs (1)(c) and (d).

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

196A Strict liability for killing or injuring member of listed

threatened species or community

(1) A person commits an offence if:

(a) the person takes an action; and

(b) the action results in the death or injury of a member of a

native species or a member of an ecological community; and

(c) the member is a member of a listed threatened species

(except a conservation dependent species) or of a listed

threatened ecological community; and

(d) the member is in or on a Commonwealth area.

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Penalty:

(a) in the case of an aggravated offence—1,500 penalty units;

(b) in any other case—500 penalty units.

Note 1: For the extra element of an aggravated offence, see section 196F.

Note 2: This section does not apply in the circumstances described in

section 197. A defendant bears an evidential burden in relation to

those circumstances. See subsection 13.3(3) of the Criminal Code.

(2) Strict liability applies to paragraphs (1)(a), (b), (c) and (d).

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

196B Taking etc. member of listed threatened species or community

(1) A person commits an offence if:

(a) the person takes, trades, keeps or moves a member of a

species or a member of an ecological community; and

(b) the member is a member of a listed threatened species

(except a conservation dependent species) or a listed

threatened ecological community; and

(c) the member is in or on a Commonwealth area.

Penalty:

(a) in the case of an aggravated offence—imprisonment for 2

years or 3,000 penalty units, or both;

(b) in any other case—imprisonment for 2 years or 1,000 penalty

units, or both.

Note 1: For the extra element of an aggravated offence, see section 196F.

Note 2: This section does not apply in the circumstances described in

section 197. A defendant bears an evidential burden in relation to

those circumstances. See subsection 13.3(3) of the Criminal Code.

(2) Strict liability applies to paragraphs (1)(b) and (c).

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

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196C Strict liability for taking etc. member of listed threatened

species or community

(1) A person commits an offence if:

(a) the person takes, trades, keeps or moves a member of a

native species or a member of an ecological community; and

(b) the member is a member of a listed threatened species

(except a conservation dependent species) or a listed

threatened ecological community; and

(c) the member is in or on a Commonwealth area.

Penalty:

(a) in the case of an aggravated offence—1,500 penalty units;

(b) in any other case—500 penalty units.

Note 1: For the extra element of an aggravated offence, see section 196F.

Note 2: This section does not apply in the circumstances described in

section 197. A defendant bears an evidential burden in relation to

those circumstances. See subsection 13.3(3) of the Criminal Code.

(2) Strict liability applies to paragraphs (1)(a), (b) and (c).

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

196D Trading etc. member of listed threatened species or

community taken in Commonwealth area

(1) A person commits an offence if:

(a) the person trades, keeps or moves a member of a species or a

member of an ecological community; and

(b) the member is a member of a listed threatened species

(except a conservation dependent species) or a listed

threatened ecological community; and

(c) the member has been taken in or on a Commonwealth area.

Penalty:

(a) in the case of an aggravated offence—imprisonment for 2

years or 3,000 penalty units, or both;

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(b) in any other case—imprisonment for 2 years or 1,000 penalty

units, or both.

Note 1: For the extra element of an aggravated offence, see section 196F.

Note 2: This section does not apply in the circumstances described in

section 197. A defendant bears an evidential burden in relation to

those circumstances. See subsection 13.3(3) of the Criminal Code.

(2) Strict liability applies to paragraphs (1)(b) and (c).

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

196E Strict liability for trading etc. member of listed threatened

species or community taken in Commonwealth area

(1) A person commits an offence if:

(a) the person trades, keeps or moves a member of a native

species or a member of an ecological community; and

(b) the member is a member of a listed threatened species

(except a conservation dependent species) or a listed

threatened ecological community; and

(c) the member has been taken in or on a Commonwealth area.

Penalty:

(a) in the case of an aggravated offence—1,500 penalty units;

(b) in any other case—500 penalty units.

Note 1: For the extra element of an aggravated offence, see section 196F.

Note 2: This section does not apply in the circumstances described in

section 197. A defendant bears an evidential burden in relation to

those circumstances. See subsection 13.3(3) of the Criminal Code.

(2) Strict liability applies to paragraphs (1)(a), (b) and (c).

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

196F Aggravated offence—member of listed threatened species that

is a dugong or turtle

(1) For the purposes of this Subdivision, an offence against

section 196, 196A, 196B, 196C, 196D or 196E (the underlying

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offence) is an aggravated offence if the member to which the

underlying offence relates is:

(a) a member of a listed threatened species; and

(b) a member of a species mentioned in paragraph 248(2)(f), (g)

or (h).

Note: Marine turtles and leatherback turtles are members of the species

mentioned in paragraphs 248(2)(g) and (h), and on the day this section

commenced, these species were listed threatened species.

(2) If the prosecution intends to prove an aggravated offence, the

charge must allege the relevant aggravated offence.

(3) Strict liability applies to the physical elements of circumstance,

that the member is:

(a) a member of a listed threatened species; and

(b) a member of a species mentioned in paragraph 248(2)(f), (g)

or (h).

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

197 Certain actions are not offences

Sections 196, 196A, 196B, 196C, 196D, 196E and 207B do not

apply to:

(a) an action authorised by a permit that was issued under

section 201 and is in force; or

(b) an action provided for by, and done in accordance with, a

recovery plan in force under Division 5; or

(c) an action that is covered by an approval in operation under

Part 9 for the purposes of subsection 18(1), (2), (3), (4), (5)

or (6) or 18A(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 18(1), (2), (3), (4), (5), or

(6) or 18A(1) or (2); and

(ii) is taken in accordance with a management arrangement

or authorisation process that is an accredited

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management arrangement or an accredited authorisation

process for the purposes of the declaration; or

(da) an action that:

(i) is an action, or one of a class of actions, declared by the

Minister under section 37A not to require an approval

under Part 9 for the purposes of subsection 18(1), (2),

(3), (4), (5), or (6) or 18A(1) or (2); and

(ii) is taken in accordance with the bioregional plan to

which the declaration relates; or

(db) in the case of sections 196B, 196C, 196D and 196E—an

action that is trading, keeping or moving a member of a listed

threatened species or a listed ecological community, if:

(i) when the member of the species or community was

taken, the species or community was not a listed

threatened species or a listed threatened ecological

community, as the case requires; and

(ii) the trading, keeping or moving of the member of the

species or community occurs during the period of 6

months that started when the species or community

became a listed threatened species or a listed threatened

ecological community, as the case requires; 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

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(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 in force; or

(k) an action provided for by, and taken in accordance with, a

plan or regime that is accredited under section 208A; or

(l) an action, to the extent that it is covered by

subsection 517A(7); or

(m) an action provided for by, and done in accordance with, a

conservation agreement in force under Part 14; or

(n) an action taken in a Commonwealth reserve in accordance

with a management plan made under Part 15 and in operation

for the reserve; or

(o) an action provided for by, and taken in accordance with, a

traditional use of marine resources agreement that:

(i) was made and accredited in accordance with regulations

made under the Great Barrier Reef Marine Park Act

1975; and

(ii) is in force; or

(p) an action that is taken in accordance with a permit that:

(i) was issued under the Antarctic Treaty (Environment

Protection) Act 1980 or under regulations made under

that Act; and

(ii) is in force; or

(q) an action that consists of the transit of a member through a

Commonwealth area in circumstances where the member

was:

(i) obtained from an area that is not a Commonwealth area;

or

(ii) taken from a Commonwealth area in circumstances

covered by paragraph (a), (c), (d), (da), (db), (j), (k),

(m), (n), (o) or (p).

Note: A defendant bears an evidential burden in relation to the matters in

this section. See subsection 13.3(3) of the Criminal Code.

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Section 198

198 Operation of sections 18 and 18A not affected

To avoid doubt, sections 196, 196A, 196B, 196C, 196D, 196E,

196F and 197 do not affect the operation of section 18 or 18A.

199 Failing to notify taking of listed threatened species or listed

ecological community

(1) This section applies to an action taken by a person if all of the

following conditions are met:

(a) the person’s action either:

(i) results in the death or injury of a member of a listed

threatened species (except a conservation dependent

species), or a member of a listed threatened ecological

community, that is in or on a Commonwealth area; or

(ii) consists of, or involves, trading, taking, keeping or

moving a member of a listed threatened species (except

a conservation dependent species), or a member of a

listed threatened ecological community, that is in or on

a Commonwealth area;

(b) the person’s action does not constitute an offence against

section 196, 196A, 196B, 196C, 196D or 196E, otherwise

than because of paragraph 197(db);

(c) the person’s action is not an action that the person was

authorised by a permit to take.

Note 1: Section 197 sets out most of the circumstances in which an action

described in paragraph (1)(a) will not be an offence against

section 196, 196A, 196B, 196C, 196D or 196E.

Note 2: A person is authorised by a permit to take an action if the person is the

holder of the permit or the person is given an authority under

section 204 by the holder of the permit to take the action.

Note 3: The conditions of a permit may require the holder of the permit to

give certain notices.

(2) Within 7 days of becoming aware of the action, the person must

notify the Secretary in writing, by telephone or by use of any other

electronic equipment:

(a) that the action was taken; and

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(b) of other particulars (if any) about the action that are

prescribed by the regulations.

(3) An example of the particulars about the action that the regulations

may prescribe is the time and place of taking the action. This does

not limit the particulars the regulations may prescribe.

(4) Subsection (2) does not apply if:

(a) the person, or any other person or body, is required by or

under a law of the Commonwealth to notify the Secretary of

the action; or

(b) the action is in a class of actions:

(i) that is specified in an agreement or arrangement

between the Secretary and a Commonwealth agency, or

an agency of a State or self-governing Territory; and

(ii) that the agreement or arrangement provides is to be

notified to the Secretary by the agency.

Note: The defendant bears an evidential burden in relation to the matters in

this subsection. See subsection 13.3(3) of the Criminal Code.

(5) A person commits 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 (2).

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

criminal responsibility.

200 Application for permits

(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).

(3) As soon as practicable after receiving the application, the Minister

must cause to be published on the internet:

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(a) details of the application; and

(b) an invitation for anyone to give the Minister comments

within 10 business days (measured in Canberra) on whether

the permit should be issued.

Note: If the action is also the subject of a referral under Division 1 of Part 7

and the referral is made at the same time as the application, the

application and invitation for comments that must be published under

this subsection may be published together with the referral and

invitation for comments that must be published under

subsection 74(3).

201 Minister may issue permits

(1) Subject to subsections (3) and (3A), 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, 196A, 196B, 196C, 196D,

196E or 207B.

(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

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(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.

(3A) The Minister must, in deciding whether to issue the permit, have

regard to any approved conservation advice for 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.

(5) In making a decision on the application, the Minister must consider

the comments (if any) received:

(a) in response to the invitation under subsection 200(3) for

anyone to give the Minister comments on whether the permit

should be issued; and

(b) within the period specified in the invitation.

202 Conditions of permits

(1) A permit is subject to such conditions as are specified in the permit

or as are imposed under subsection (2).

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

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

(b) impose 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 action

specified in the permit may be taken.

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203 Contravening conditions of a permit

The holder of a permit commits 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.

204 Authorities under permits

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

person written authority to take for or on behalf of the holder any

action authorised by the permit. The authority may be given

generally or as otherwise provided by the instrument of authority.

(2) The holder of a permit must not give an authority unless:

(a) the permit contains a condition permitting the holder to do

so; and

(b) the authority is given in accordance with any requirements

set out in the condition.

(3) A permit is, for the purposes of this Act, taken to authorise the

taking of a particular action by a person if the taking of that action

by the person is authorised by an authority given by the holder of

the permit.

(4) The giving of an authority does not prevent the taking of any action

by the holder of the permit.

(5) Except as provided in this section, a permit does not authorise the

taking of any action by a person for or on behalf of the holder of

the permit.

(6) A person who gives an authority must give to the Minister written

notice of it within 14 days after giving the authority.

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205 Transfer of permits

On the application, in accordance with the regulations, of the

holder of a permit, the Minister may, in accordance with the

regulations, transfer the permit to another person.

206 Suspension or cancellation of permits

The Minister may, in accordance with the regulations:

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

(b) cancel a permit.

206A Review of decisions about permits

(1) Subject to subsection (2), an application may be made to the

Administrative Appeals Tribunal for review of a decision:

(a) to issue or refuse a permit; or

(b) to specify, vary or revoke a condition of a permit; or

(c) to impose a further condition of a permit; or

(d) to transfer or refuse to transfer a permit; or

(e) to suspend or cancel a permit.

(2) Subsection (1) does not apply to a decision made personally by the

Minister (but the subsection does apply to a decision made by a

delegate of the Minister).

207 Fees

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

following:

(a) the grant or the transfer of a permit;

(b) the variation or revocation of a condition of a permit;

(c) the imposition of a further condition of a permit.

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Section 207A

Subdivision BA—Protecting critical habitat

207A Register of critical habitat

(1) The Minister must cause to be kept in accordance with the

regulations (if any) a register in which the Minister may list habitat

identified by the Minister in accordance with the regulations as

being critical to the survival of a listed threatened species or listed

threatened ecological community.

(1A) In considering whether to list habitat, the Minister must take into

account the potential conservation benefit of listing the habitat.

(1B) Subsection (1) does not limit the matters:

(a) that the Minister may take into account in considering

whether to list habitat; or

(b) that the regulations may require or permit the Minister to take

into account in considering whether to list habitat.

(2) The regulations must require the Minister to consider scientific

advice in identifying the habitat.

(3) The register must be made available for public inspection in

accordance with the regulations (if any).

(3A) Particular material included in the register does not have to be

made available for public inspection if the Minister considers that

the interests of relevant landholders could be impeded or

compromised by:

(a) the disclosure of the material; or

(b) without limiting paragraph (a)—the presence or actions of

persons if the material were disclosed.

(4) Habitat listed in the register in relation to a species or ecological

community is critical habitat for the species or ecological

community.

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Division 1 Listed threatened species and ecological communities

Section 207B

207B Offence of knowingly damaging critical habitat

(1) A person commits an offence if:

(a) the person takes an action; and

(b) the person knows that the action significantly damages or

will significantly damage critical habitat for a listed

threatened species (except a conservation dependent species)

or of a listed threatened ecological community; and

(c) the habitat is in or on a Commonwealth area.

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

criminal responsibility.

Note 2: This section does not apply in the circumstances described in

section 197. A defendant bears an evidential burden in relation to

those circumstances. See subsection 13.3(3) of the Criminal Code.

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

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

(3) The offence is punishable on conviction by imprisonment for not

more than 2 years or a fine not exceeding 1,000 penalty units, or

both.

(4) To avoid doubt, this section does not affect the operation of

Division 2, 3 or 4.

207C Sale or lease of Commonwealth land containing critical

habitat

(1) This section applies to a Commonwealth agency that executes a

contract for the sale or lease to someone else of Commonwealth

land that includes critical habitat for a listed threatened species or

listed threatened ecological community. It does not matter whether

the Commonwealth agency executes the contract for the

Commonwealth or on its own behalf.

(2) The Commonwealth agency must ensure that the contract includes

a covenant the effect of which is to protect the critical habitat.

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Section 208A

(3) The Commonwealth agency must take reasonable steps to ensure

as far as practicable that the covenant binds the successors in title

of the buyer or lessee (as appropriate).

Subdivision C—Miscellaneous

208A Minister may accredit plans, regimes or policies

(1) 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 within the meaning of section 15A of

the Torres Strait Fisheries Act 1984; or

(c) a plan of management, or a policy, regime or any other

arrangement, for a fishery, that is:

(i) made by a State or self-governing Territory; and

(ii) in force under a law of the State or self-governing

Territory; or

(d) a regime determined in writing by the Australian Fisheries

Management Authority under the Fisheries Administration

Act 1991 for managing a fishery for which a plan of

management (within the meaning of section 17 of the

Fisheries Management Act 1991) is not in force; or

(e) a policy formulated by the Protected Zone Joint Authority

under paragraph 34(b) of the Torres Strait Fisheries Act 1984

for managing a fishery for which a plan of management

(within the meaning of section 15A of the Torres Strait

Fisheries Act 1984) is not in force;

if the Minister is satisfied that:

(f) the plan, regime or policy requires persons engaged in fishing

under the plan, regime or policy to take all reasonable steps

to ensure that members of listed threatened species (other

than conservation dependent species) are not killed or injured

as a result of the fishing; and

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Section 208

(g) the fishery to which the plan, regime or policy relates does

not, or is not likely to, adversely affect the survival or

recovery in nature of the species.

Note 1: The Minister may accredit a plan, regime or policy subject to

conditions (see section 303AA).

Note 2: If a plan, regime or policy that is accredited under this section is, or is

proposed to be, amended, the Minister may determine under

section 303AB that the plan, regime or policy as amended is, for the

purposes of this Act, taken to be accredited under subsection (1) of

this section.

(2) An instrument under subsection (1) is not a legislative instrument.

208 Regulations

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.

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Migratory species Division 2

Section 209

Division 2—Migratory species

Subdivision A—Listing

209 Listed migratory species

(1) The Minister must:

(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 migratory species that are:

(i) native species; and

(ii) from time to time included in the appendices to the

Bonn Convention; and

(b) all migratory species from time to time included in annexes

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 legislative instrument, approve an

international agreement for the purposes of subsection (3) if

satisfied it is an agreement relevant to the conservation of

migratory species.

(6) The Minister may correct an inaccuracy or update the name of a

migratory species.

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Section 210

(7) The list of migratory species made under subsection (1), and any

amendments to the list made under paragraph (1)(b) or

subsection (6), are legislative instruments, but section 42

(disallowance) of the Legislation Act 2003 does not apply to the

list or any amendments.

Note: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not

apply to the list or any amendments. See regulations made for the

purposes of paragraph 54(2)(b) of that Act.

(8) In this Act:

migratory species has the meaning given by Article I of the Bonn

Convention.

Subdivision B—Permit system

210 Subdivision does not apply to members of listed threatened

species or cetaceans

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.

211 Killing or injuring member of listed migratory species

(1) A person commits an offence if:

(a) the person takes an action; and

(b) the action results in the death or injury of a member of a

species; and

(c) the member is a member of a listed migratory species; and

(d) the member is in or on a Commonwealth area.

Penalty:

(a) in the case of an aggravated offence—imprisonment for 2

years or 3,000 penalty units, or both;

(b) in any other case—imprisonment for 2 years or 1,000 penalty

units, or both.

Note 1: For the extra element of an aggravated offence, see section 211F.

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Section 211A

Note 2: This section does not apply in the circumstances described in

section 212. A defendant bears an evidential burden in relation to

those circumstances. See subsection 13.3(3) of the Criminal Code.

(2) Strict liability applies to paragraphs (1)(c) and (d).

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

211A Strict liability for killing or injuring member of listed

migratory species

(1) A person commits an offence if:

(a) the person takes an action; and

(b) the action results in the death or injury of a member of a

migratory species; and

(c) the member is a member of a listed migratory species; and

(d) the member is in or on a Commonwealth area.

Penalty:

(a) in the case of an aggravated offence—1,500 penalty units;

(b) in any other case—500 penalty units.

Note 1: For the extra element of an aggravated offence, see section 211F.

Note 2: This section does not apply in the circumstances described in

section 212. A defendant bears an evidential burden in relation to

those circumstances. See subsection 13.3(3) of the Criminal Code.

(2) Strict liability applies to paragraphs (1)(a), (b), (c) and (d).

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

211B Taking etc. member of listed migratory species

(1) A person commits an offence if:

(a) the person takes, trades, keeps or moves a member of a

species; and

(b) the member is a member of a listed migratory species; and

(c) the member is in or on a Commonwealth area.

Penalty:

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Section 211C

(a) in the case of an aggravated offence—imprisonment for 2

years or 3,000 penalty units, or both;

(b) in any other case—imprisonment for 2 years or 1,000 penalty

units, or both.

Note 1: For the extra element of an aggravated offence, see section 211F.

Note 2: This section does not apply in the circumstances described in

section 212. A defendant bears an evidential burden in relation to

those circumstances. See subsection 13.3(3) of the Criminal Code.

(2) Strict liability applies to paragraphs (1)(b) and (c).

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

211C Strict liability for taking etc. member of listed migratory

species

(1) A person commits an offence if:

(a) the person 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.

Penalty:

(a) in the case of an aggravated offence—1,500 penalty units;

(b) in any other case—500 penalty units.

Note 1: For the extra element of an aggravated offence, see section 211F.

Note 2: This section does not apply in the circumstances described in

section 212. A defendant bears an evidential burden in relation to

those circumstances. See subsection 13.3(3) of the Criminal Code.

(2) Strict liability applies to paragraphs (1)(a), (b) and (c).

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

211D Trading etc. member of listed migratory species taken in

Commonwealth area

(1) A person commits an offence if:

(a) the person trades, keeps or moves a member of a species; and

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Section 211E

(b) the member is a member of a listed migratory species; and

(c) the member has been taken in or on a Commonwealth area.

Penalty:

(a) in the case of an aggravated offence—imprisonment for 2

years or 3,000 penalty units, or both;

(b) in any other case—imprisonment for 2 years or 1,000 penalty

units, or both.

Note 1: For the extra element of an aggravated offence, see section 211F.

Note 2: This section does not apply in the circumstances described in

section 212. A defendant bears an evidential burden in relation to

those circumstances. See subsection 13.3(3) of the Criminal Code.

(2) Strict liability applies to paragraphs (1)(b) and (c).

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

211E Strict liability for trading etc. member of listed migratory

species taken in Commonwealth area

(1) A person commits 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.

Penalty:

(a) in the case of an aggravated offence—1,500 penalty units;

(b) in any other case—500 penalty units.

Note 1: For the extra element of an aggravated offence, see section 211F.

Note 2: This section does not apply in the circumstances described in

section 212. A defendant bears an evidential burden in relation to

those circumstances. See subsection 13.3(3) of the Criminal Code.

(2) Strict liability applies to paragraphs (1)(a), (b) and (c).

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

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Section 211F

211F Aggravated offence—member of listed migratory species that

is a dugong or turtle

(1) For the purposes of this Subdivision, an offence against

section 211, 211A, 211B, 211C, 211D or 211E (the underlying

offence) is an aggravated offence if the member to which the

underlying offence relates is a member of a species mentioned in

paragraph 248(2)(f), (g) or (h).

Note: Dugong, marine turtles and leatherback turtles are members of the

species mentioned in paragraphs 248(2)(f), (g) and (h), and on the day

this section commenced, these species were listed migratory species.

(2) If the prosecution intends to prove an aggravated offence, the

charge must allege the relevant aggravated offence.

(3) Strict liability applies to the physical element of circumstance, that

the member is a member of a species mentioned in

paragraph 248(2)(f), (g) or (h).

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

212 Certain actions are not offences

(1) Sections 211, 211A, 211B, 211C, 211D and 211E do not apply to:

(a) an action authorised by a permit that was issued under

section 216 and 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 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 20A(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 20(1) or 20A(1) or (2);

and

(ii) is taken in accordance with a management arrangement

or an authorisation process that is an accredited

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Section 212

management arrangement or an accredited authorisation

process for the purposes of the declaration; or

(da) an action that:

(i) is an action, or one of a class of actions, declared by the

Minister under section 37A not to require an approval

under Part 9 for the purposes of subsection 20(1) or

20A(1) or (2); and

(ii) is taken in accordance with the bioregional plan to

which the declaration relates; or

(db) in the case of sections 211B, 211C, 211D and 211E—an

action that is trading, keeping or moving a member of a listed

migratory species, if:

(i) when the member of the species was taken, the species

was not a listed migratory species; and

(ii) the trading, keeping or moving of the member of the

species occurs during the period of 6 months that started

when the species became a listed migratory species; 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 in force; or

(k) an action provided for by, and taken in accordance with, a

plan or regime that is accredited under section 222A; or

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Section 212

(l) an action, to the extent that it is covered by

subsection 517A(7); or

(m) an action provided for by, and done in accordance with, a

conservation agreement in force under Part 14; or

(n) an action taken in a Commonwealth reserve in accordance

with a management plan made under Part 15 and in operation

for the reserve; or

(o) an action provided for by, and taken in accordance with, a

traditional use of marine resources agreement that:

(i) was made and accredited in accordance with regulations

made under the Great Barrier Reef Marine Park Act

1975; and

(ii) is in force; or

(p) an action that is taken in accordance with a permit that:

(i) was issued under the Antarctic Treaty (Environment

Protection) Act 1980 or under regulations made under

that Act; and

(ii) is in force; or

(q) an action that consists of the transit of a member through a

Commonwealth area in circumstances where the member

was:

(i) obtained from an area that is not a Commonwealth area;

or

(ii) taken from a Commonwealth area in circumstances

covered by paragraph (a), (c), (d), (da), (db), (j), (k),

(m), (n), (o) or (p); or

(r) an action that is taken in the course of recreational fishing

and the action:

(i) consists of, or involves, taking, trading, keeping or

moving; or

(ii) results in the death or injury of;

a shortfin mako shark, a longfin mako shark or a porbeagle

shark.

Note: A defendant bears an evidential burden in relation to the matters in

this section. See subsection 13.3(3) of the Criminal Code.

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Section 213

(2) For the purposes of paragraph (1)(r), recreational fishing includes

(but is not limited to) the following types of fishing:

(a) fishing from a charter boat (within the meaning of the

Fisheries Management Act 1991), including fishing by the

person in charge of the boat, the crew of the boat or any other

person on the boat;

(b) fishing in a fishing competition (whether or not in a

professional capacity);

(c) fishing that is undertaken primarily for:

(i) inclusion on a website, or in a film, video, television

program or radio program; or

(ii) description or representation in a magazine, newspaper,

book or other such document.

213 Operation of sections 20 and 20A not affected

To avoid doubt, sections 211, 211A, 211B, 211C, 211D, 211E,

211F and 212 do not affect the operation of section 20 or 20A.

214 Failing to notify taking etc. of listed migratory species

(1) This section applies to an action taken by a person if all of the

following conditions are met:

(a) the person’s action either:

(i) results in the death or injury of a member of a listed

migratory species that is in or on a Commonwealth area;

or

(ii) consists of, or involves, trading, taking, keeping or

moving a member of a listed migratory species that is in

or on a Commonwealth area;

(b) the person’s action does not constitute an offence against

section 211, 211A, 211B, 211C, 211D or 211E, otherwise

than because of paragraph 212(db) or (r);

(c) the person’s action is not an action that the person was

authorised by a permit to take.

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Section 214

Note 1: Section 212 sets out most of the circumstances in which an action

described in paragraph (1)(a) will not be an offence against

section 211, 211A, 211B, 211C, 211D or 211E.

Note 2: A person is authorised by a permit to take an action if the person is the

holder of the permit or the person is given an authority under

section 219 by the holder of the permit to take the action.

Note 3: The conditions of a permit may require the holder of the permit to

give certain notices.

(2) Within 7 days of becoming aware of the action, the person must

notify the Secretary in writing, by telephone or by use of any other

electronic equipment:

(a) that the action was taken; and

(b) of other particulars (if any) about the action that are

prescribed by the regulations.

(3) An example of the particulars about the action that the regulations

may prescribe is the time and place of taking the action. This does

not limit the particulars the regulations may prescribe.

(4) Subsection (2) does not apply if:

(a) the person, or any other person or body, is required by or

under a law of the Commonwealth to notify the Secretary of

the action; or

(b) the action is in a class of actions:

(i) that is specified in an agreement or arrangement

between the Secretary and a Commonwealth agency, or

an agency of a State or self-governing Territory; and

(ii) that the agreement or arrangement provides is to be

notified to the Secretary by the agency.

Note: The defendant bears an evidential burden in relation to the matters in

this subsection. See subsection 13.3(3) of the Criminal Code.

(5) A person commits 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 (2).

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Section 215

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

criminal responsibility.

215 Application for permits

(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).

(3) As soon as practicable after receiving the application, the Minister

must cause to be published on the internet:

(a) details of the application; and

(b) an invitation for anyone to give the Minister comments

within 10 business days (measured in Canberra) on whether

the permit should be issued.

Note: If the action is also the subject of a referral under Division 1 of Part 7

and the referral is made at the same time as the application, the

application and invitation for comments that must be published under

this subsection may be published together with the referral and

invitation for comments that must be published under

subsection 74(3).

216 Minister may issue permits

(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, 211A, 211B, 211C, 211D or

211E.

(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:

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(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.

(4) In making a decision on the application, the Minister must consider

the comments (if any) received:

(a) in response to the invitation under subsection 215(3) for

anyone to give the Minister comments on whether the permit

should be issued; and

(b) within the period specified in the invitation.

217 Conditions of permits

(1) A permit is subject to such conditions as are specified in the permit

or as are imposed under subsection (2).

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

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

(b) impose further conditions of a permit.

218 Contravening conditions of a permit

The holder of a permit commits an offence punishable on

conviction by a fine not exceeding 300 penalty units if:

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(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.

219 Authorities under permits

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

person written authority to take for or on behalf of the holder any

action authorised by the permit. The authority may be given

generally or as otherwise provided by the instrument of authority.

(2) The holder of a permit must not give an authority unless:

(a) the permit contains a condition permitting the holder to do

so; and

(b) the authority is given in accordance with any requirements

set out in the condition.

(3) A permit is, for the purposes of this Act, taken to authorise the

taking of a particular action by a person if the taking of that action

by the person is authorised by an authority given by the holder of

the permit.

(4) The giving of an authority does not prevent the taking of any action

by the holder of the permit.

(5) Except as provided in this section, a permit does not authorise the

taking of any action by a person for or on behalf of the holder of

the permit.

(6) A person who gives an authority must give to the Minister written

notice of it within 14 days after giving the authority.

220 Transfer of permits

On the application, in accordance with the regulations, of the

holder of a permit, the Minister may, in accordance with the

regulations, transfer the permit to another person.

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Section 221

221 Suspension or cancellation of permits

The Minister may, in accordance with the regulations:

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

(b) cancel a permit.

221A Review of decisions about permits

(1) Subject to subsection (2), an application may be made to the

Administrative Appeals Tribunal for review of a decision:

(a) to issue or refuse a permit; or

(b) to specify, vary or revoke a condition of a permit; or

(c) to impose a further condition of a permit; or

(d) to transfer or refuse to transfer a permit; or

(e) to suspend or cancel a permit.

(2) Subsection (1) does not apply to a decision made personally by the

Minister (but the subsection does apply to a decision made by a

delegate of the Minister).

222 Fees

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

following:

(a) the grant or the transfer of a permit;

(b) the variation or revocation of a condition of a permit;

(c) the imposition of a further condition of a permit.

Subdivision C—Miscellaneous

222A Minister may accredit plans, regimes or policies

(1) 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

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(b) a plan of management within the meaning of section 15A of

the Torres Strait Fisheries Act 1984; or

(c) a plan of management, or a policy, regime or any other

arrangement, for a fishery, that is:

(i) made by a State or self-governing Territory; and

(ii) in force under a law of the State or self-governing

Territory; or

(d) a regime determined in writing by the Australian Fisheries

Management Authority under the Fisheries Administration

Act 1991 for managing a fishery for which a plan of

management (within the meaning of section 17 of the

Fisheries Management Act 1991) is not in force; or

(e) a policy formulated by the Protected Zone Joint Authority

under paragraph 34(b) of the Torres Strait Fisheries Act 1984

for managing a fishery for which a plan of management

(within the meaning of section 15A of the Torres Strait

Fisheries Act 1984) is not in force;

if the Minister is satisfied that:

(f) the plan, regime or policy requires persons engaged in fishing

under the plan, regime or policy to take all reasonable steps

to ensure that members of listed migratory species are not

killed or injured as a result of the fishing; and

(g) the fishery to which the plan, regime or policy relates does

not, or is not likely to, adversely affect the conservation

status of a listed migratory species or a population of that

species.

Note 1: The Minister may accredit a plan, regime or policy subject to

conditions (see section 303AA).

Note 2: If a plan, regime or policy that is accredited under this section is, or is

proposed to be, amended, the Minister may determine under

section 303AB that the plan, regime or policy as amended is, for the

purposes of this Act, taken to be accredited under subsection (1) of

this section.

(2) An instrument under subsection (1) is not a legislative instrument.

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223 Regulations

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.

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Section 224

Division 3—Whales and other cetaceans

Subdivision A—Application of Division

224 Application of Division

(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.

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Subdivision B—Australian Whale Sanctuary and important

cetacean habitat areas

225 Australian Whale Sanctuary

(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) 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; and

(b) 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); and

(c) so much of the coastal waters of a State or the Northern

Territory as are prescribed waters.

Note: This subsection is subject to subsection 5(3).

226 Prescribed waters

(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.

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(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.

227 Coastal waters

(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.

228 Minister may make declaration for coastal waters

(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.

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Section 228A

228A Important cetacean habitat areas

(1) The Minister may, by legislative instrument, declare a specified

area in the Australian Whale Sanctuary to be an important cetacean

habitat area.

(2) The regulations may specify criteria to be applied by the Minister

in determining whether to declare an area to be an important

cetacean habitat area. If regulations are made for the purposes of

this section, the Minister may declare an area to be an important

cetacean habitat area only if he or she is satisfied that the area

meets the criteria prescribed by the regulations.

Subdivision C—Offences

229 Killing or injuring a cetacean

(1) A person commits an offence if:

(a) the person takes an action; and

(b) the action results in the death or injury of a cetacean; and

(c) the cetacean is in:

(i) the Australian Whale Sanctuary (but not 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) waters beyond the outer limits of the Australian Whale

Sanctuary.

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

criminal responsibility.

Note 2: This section does not apply in the circumstances described in

section 231. A defendant bears an evidential burden in relation to

those circumstances. See subsection 13.3(3) of the Criminal Code.

(1A) Strict liability applies to paragraph (1)(c).

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

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(2) The offence is punishable on conviction by imprisonment for not

more than 2 years or a fine not exceeding 1,000 penalty units, or

both.

229A Strict liability for killing or injuring a cetacean

(1) A person commits an offence if:

(a) the person takes an action; and

(b) the action results in the death or injury of a cetacean; and

(c) the cetacean is in:

(i) the Australian Whale Sanctuary (but not 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) waters beyond the outer limits of the Australian Whale

Sanctuary.

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

criminal responsibility.

Note 2: This section does not apply in the circumstances described in

section 231. A defendant bears an evidential burden in relation to

those circumstances. See subsection 13.3(3) of the Criminal Code.

(2) Strict liability applies to paragraphs (1)(a), (b) and (c).

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

(3) The offence is punishable on conviction by a fine not exceeding

500 penalty units.

229B Intentionally taking etc. a cetacean

(1) A person commits an offence if:

(a) the person takes, trades, keeps, moves or interferes with a

cetacean; and

(b) the cetacean is in:

(i) the Australian Whale Sanctuary (but not the coastal

waters, or a part of the coastal waters, of a State or the

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Northern Territory for which a declaration under

section 228 is in force); or

(ii) waters beyond the outer limits of the Australian Whale

Sanctuary.

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

criminal responsibility.

Note 2: This section does not apply in the circumstances described in

section 231. A defendant bears an evidential burden in relation to

those circumstances. See subsection 13.3(3) of the Criminal Code.

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

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

(3) The offence is punishable on conviction by imprisonment for not

more than 2 years or a fine not exceeding 1,000 penalty units, or

both.

(4) In this Act:

interfere with a cetacean includes harass, chase, herd, tag, mark or

brand the cetacean.

trade a cetacean:

(a) includes:

(i) buy the cetacean, agree to receive it under an agreement

to buy, agree to accept it under such an agreement or

acquire it by barter; or

(ii) sell the cetacean, offer it for sale, agree to sell it, have it

in possession for the purpose of sale, deliver it for the

purpose of sale, receive it for the purpose of sale or

dispose of it by barter for the purpose of gain or

advancement; or

(iii) cause or allow any of the acts referred to in

subparagraph (i) or (ii) to be done; but

(b) does not include export the cetacean from Australia or an

external Territory or import it into Australia or an external

Territory.

Note: For provisions relating to export or import, see Part 13A.

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Section 229C

229C Strict liability for taking etc. a cetacean

(1) A person commits an offence if:

(a) the person takes, trades, keeps, moves or interferes with a

cetacean; and

(b) the cetacean is in:

(i) the Australian Whale Sanctuary (but not 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) waters beyond the outer limits of the Australian Whale

Sanctuary.

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

criminal responsibility.

Note 2: This section does not apply in the circumstances described in

section 231. A defendant bears an evidential burden in relation to

those circumstances. See subsection 13.3(3) of the Criminal Code.

(2) Strict liability applies to paragraphs (1)(a) and (b).

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

(3) The offence is punishable on conviction by a fine not exceeding

500 penalty units.

229D Treating cetaceans

Treating unlawfully killed or taken cetaceans

(1) A person commits an offence if:

(a) the person treats a cetacean; and

(b) the cetacean has been:

(i) killed in contravention of section 229 or 229A; or

(ii) taken in contravention of section 229B or 229C.

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

criminal responsibility.

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Note 2: This section does not apply in the circumstances described in

section 231. A defendant bears an evidential burden in relation to

those circumstances. See subsection 13.3(3) of the Criminal Code.

(2) An offence against subsection (1) is punishable on conviction by

imprisonment for not more than 2 years or a fine not exceeding

1,000 penalty units, or both.

Treating unlawfully imported cetaceans

(2A) A person commits an offence if:

(a) the person treats a cetacean; and

(b) the cetacean has been unlawfully imported.

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

criminal responsibility.

Note 2: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body

corporate up to 5 times the maximum amount the court could fine a

person under this subsection.

(2B) An offence against subsection (2A) is punishable on conviction by

imprisonment for not more than 5 years or a fine not exceeding

1,000 penalty units, or both.

(3) In this Act:

treat a cetacean means divide or cut up, or extract any product

from, the cetacean.

230 Possession of cetaceans

Possession of unlawfully killed cetaceans

(1) A person commits 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:

(i) killed in contravention of section 229 or 229A; or

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(ii) taken in contravention of section 229B or 229C.

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

criminal responsibility.

(2) An offence against subsection (1) is punishable on conviction by

imprisonment for not more than 2 years or a fine not exceeding

1,000 penalty units, or both.

Possession of unlawfully imported cetaceans

(3) A person commits 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, part or product, as the case may be, has been

unlawfully imported.

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

criminal responsibility.

Note 2: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body

corporate up to 5 times the maximum amount the court could fine a

person under this subsection.

(4) An offence against subsection (3) is punishable on conviction by

imprisonment for not more than 5 years or a fine not exceeding

1,000 penalty units, or both.

231 Certain actions are not offences

Sections 229, 229A, 229B, 229C, 229D and 230 do not apply to:

(a) an action authorised by a permit that was issued under

section 238 and is in force; or

(aa) an action that is whale watching carried out in accordance

with regulations referred to in paragraph 238(3)(c), but only

if:

(i) the whale watching is not carried out for a commercial

purpose; or

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(ii) the whale watching is carried out in an area that is not

an important cetacean habitat area; 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 in force; or

(ba) an action that is covered by an approval in operation under

Part 9 for the purposes of subsection 23(1) or (2), 24A(1),

(2), (3) or (4), 24B(1) or (2) or 24C(1), (3), (5) or (7); or

(bb) 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), 24A(1), (2),

(3) or (4), 24B(1) or (2) or 24C(1), (3), (5) or (7); and

(ii) is taken in accordance with a management arrangement

or an authorisation process that is an accredited

management arrangement or an accredited authorisation

process for the purposes of the declaration; or

(bc) an action that:

(i) is an action, or one of a class of actions, declared by the

Minister under section 37A not to require an approval

under Part 9 for the purposes of subsection 23(1) or (2),

24A(1), (2), (3) or (4), 24B(1) or (2) or 24C(1), (3), (5)

or (7); and

(ii) is taken in accordance with the bioregional plan to

which the declaration relates; 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

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(g) an action that occurs as a result of an unavoidable accident,

other than an accident caused by negligent or reckless

behaviour; or

(ga) an action that is taken in accordance with a permit issued

under regulations made under the Great Barrier Reef Marine

Park Act 1975 and in force; or

(h) an action provided for by, and taken in accordance with, a

plan or regime that is accredited under section 245; or

(i) an action provided for by, and done in accordance with, a

conservation agreement in force under Part 14; or

(j) an action taken in a Commonwealth reserve in accordance

with a management plan made under Part 15 and in operation

for the reserve; or

(k) an action that consists of the transit of a cetacean through a

Commonwealth area in circumstances where the cetacean

was:

(i) obtained from an area that is not a Commonwealth area;

or

(ii) taken from a Commonwealth area in circumstances

covered by paragraph (a), (ba), (bb), (bc), (ga), (h), (i)

or (j).

Note: A defendant bears an evidential burden in relation to the matters in

this section. See subsection 13.3(3) of the Criminal Code.

232 Action to be taken on killing etc. cetaceans

(1) This section applies to an action taken by a person if all of the

following conditions are met:

(a) the person’s action:

(i) results in the injury or death of a cetacean, or consists of

taking a cetacean, in the Australian Whale Sanctuary

(but not 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 in waters

beyond the outer limits of the Australian Whale

Sanctuary; or

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(ii) consists of treating a cetacean killed, injured or taken in

contravention of section 229, 229A, 229B or 229C;

(b) the person’s action does not constitute an offence against

section 229, 229A, 229B, 229C or 229D;

(c) the person’s action is not an action that the person was

authorised by a permit to take.

Note 1: Section 231 sets out most of the circumstances in which an action

described in paragraph (1)(a) will not be an offence against

section 229, 229A, 229B, 229C or 229D.

Note 2: A person is authorised by a permit to take an action if the person is the

holder of the permit or the person is given an authority under

section 241 by the holder of the permit to take the action.

Note 3: The conditions of a permit may require the holder of the permit to

give certain notices.

(2) Within 7 days of becoming aware of the action, the person must

notify the Secretary in writing, by telephone or by use of any other

electronic equipment:

(a) that the action was taken; and

(b) of other particulars (if any) about the action that are

prescribed by the regulations.

(3) An example of the particulars about the action that the regulations

may prescribe is the time and place of taking the action. This does

not limit the particulars the regulations may prescribe.

(4) Subsection (2) does not apply if:

(a) the person, or any other person or body, is required by or

under a law of the Commonwealth to notify the Secretary of

the action; or

(b) the action is in a class of actions:

(i) that are specified in an agreement or arrangement

between the Secretary and a Commonwealth agency, or

an agency of a State or self-governing Territory; and

(ii) that the agreement or arrangement provides are to be

notified to the Secretary by the agency.

Note: The defendant bears an evidential burden in relation to the matters in

this subsection. See subsection 13.3(3) of the Criminal Code.

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(5) A person commits 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 (2).

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

criminal responsibility.

Subdivision E—Miscellaneous offences

236 Offences relating to foreign whaling vessels

(1) The master of a foreign whaling vessel commits 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.

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(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 cetaceans; or

(b) supporting the operations of a vessel or vessels designed,

equipped or used for killing, taking, treating or carrying

cetaceans.

master, in relation to a foreign whaling vessel, means the person

(other than a ship’s pilot) in charge or command of the vessel.

Subdivision F—Permit system

237 Application for permits

(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).

(3) As soon as practicable after receiving the application, the Minister

must cause to be published on the internet:

(a) details of the application; and

(b) an invitation for anyone to give the Minister comments

within 10 business days (measured in Canberra) on whether

the permit should be issued.

Note: If the action is also the subject of a referral under Division 1 of Part 7

and the referral is made at the same time as the application, the

application and invitation for comments that must be published under

this subsection may be published together with the referral and

invitation for comments that must be published under

subsection 74(3).

238 Minister may issue permits

(1) Subject to subsections (3) to (4), the Minister may, on application

by a person under section 237, issue a permit to the person.

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Section 238

(2) A permit authorises its holder to take an action specified in the

permit without breaching sections 229, 229A, 229B, 229C, 229D

and 230.

(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 (other than whale

watching covered by paragraph 231(aa)) and:

(i) the whale watching is carried out in accordance with the

regulations (if any) made for the purposes of this

section; or

(ii) the whale watching will not adversely affect the

conservation status of a species of cetacean or a

population of that species, and is not inconsistent with a

recovery plan or wildlife conservation plan that is in

force for a species of cetacean.

(3AA) If the specified action would or could relate to a species of

cetacean that is a listed threatened species, the Minister must, in

deciding whether to issue the permit, have regard to any approved

conservation advice for the species of cetacean.

(3A) In making a decision on the application, the Minister must consider

the comments (if any) received:

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Section 239

(a) in response to the invitation under subsection 237(3) for

anyone to give the Minister comments on whether the permit

should be issued; and

(b) within the period specified in the invitation.

(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 cetacean, including but not limited to being in the

water for the purposes of observing or swimming with a cetacean,

or otherwise interacting with a cetacean.

239 Conditions of permits

(1) A permit is subject to such conditions as are specified in the permit

or as are imposed under subsection (2).

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

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

(b) impose further conditions of a permit.

240 Contravening conditions of a permit

The holder of a permit commits 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.

241 Authorities under permits

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

person written authority to take for or on behalf of the holder any

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Section 242

action authorised by the permit. The authority may be given

generally or as otherwise provided by the instrument of authority.

(2) The holder of a permit must not give an authority unless:

(a) the permit contains a condition permitting the holder to do

so; and

(b) the authority is given in accordance with any requirements

set out in the condition.

(3) A permit is, for the purposes of this Act, taken to authorise the

taking of a particular action by a person if the taking of that action

by the person is authorised by an authority given by the holder of

the permit.

(4) The giving of an authority does not prevent the taking of any action

by the holder of the permit.

(5) Except as provided in this section, a permit does not authorise the

taking of any action by a person for or on behalf of the holder of

the permit.

(6) A person who gives an authority must give to the Minister written

notice of it within 14 days after giving the authority.

242 Transfer of permits

On the application, in accordance with the regulations, of the

holder of a permit, the Minister may, in accordance with the

regulations, transfer the permit to another person.

243 Suspension or cancellation of permits

The Minister may, in accordance with the regulations:

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

(b) cancel a permit.

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Section 243A

243A Review of decisions about permits

(1) Subject to subsection (2), an application may be made to the

Administrative Appeals Tribunal for review of a decision:

(a) to issue or refuse a permit; or

(b) to specify, vary or revoke a condition of a permit; or

(c) to impose a further condition of a permit; or

(d) to transfer or refuse to transfer a permit; or

(e) to suspend or cancel a permit.

(2) Subsection (1) does not apply to a decision made personally by the

Minister (but the subsection does apply to a decision made by a

delegate of the Minister).

244 Fees

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

following:

(a) the grant or the transfer of a permit;

(b) the variation or revocation of a condition of a permit;

(c) the imposition of a further condition of a permit.

Subdivision G—Miscellaneous

245 Minister may accredit plans, regimes or policies

(1) 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 within the meaning of section 15A of

the Torres Strait Fisheries Act 1984; or

(c) a plan of management, or a policy, regime or any other

arrangement, for a fishery, that is:

(i) made by a State or self-governing Territory; and

(ii) in force under a law of the State or self-governing

Territory; or

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Section 246

(d) a regime determined in writing by the Australian Fisheries

Management Authority under the Fisheries Administration

Act 1991 for managing a fishery for which a plan of

management (within the meaning of section 17 of the

Fisheries Management Act 1991) is not in force; or

(e) a policy formulated by the Protected Zone Joint Authority

under paragraph 34(b) of the Torres Strait Fisheries Act 1984

for managing a fishery for which a plan of management

(within the meaning of section 15A of the Torres Strait

Fisheries Act 1984) is not in force;

if the Minister is satisfied that:

(f) the plan, regime or policy requires persons engaged in fishing

under the plan, regime or policy to take all reasonable steps

to ensure that cetaceans are not killed or injured as a result of

the fishing; and

(g) the fishery to which the plan, regime or policy relates does

not, or is not likely to, adversely affect the conservation

status of a species of cetacean or a population of that species.

Note 1: The Minister may accredit a plan, regime or policy subject to

conditions (see section 303AA).

Note 2: If a plan, regime or policy that is accredited under this section is, or is

proposed to be, amended, the Minister may determine under

section 303AB that the plan, regime or policy as amended is, for the

purposes of this Act, taken to be accredited under subsection (1) of

this section.

(2) An instrument under subsection (1) is not a legislative instrument.

246 Vesting of whales in Commonwealth

(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

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Section 247

(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.

247 Regulations

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.

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Section 248

Division 4—Listed marine species

Subdivision A—Listing

248 Listed marine species

(1) The Minister must, by legislative instrument, 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 species in the Family Hydrophiidae (sea-snakes);

(b) all species in the Family Laticaudidae (sea-snakes);

(c) all species in the Family Otariidae (eared seals);

(d) all species in the Family Phocidae (“true” seals);

(e) all species in the Genus Crocodylus (crocodiles);

(f) all species in the Genus Dugong (dugong);

(g) all species in the Family Cheloniidae (marine turtles);

(h) the species Dermochelys coriacea (leatherback turtles);

(i) all species in the Family Syngnathidae (seahorses,

sea-dragons and pipefish);

(j) all species in the Family Solenostomidae (ghost pipefish);

(k) all species in the Class Aves (birds) 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).

249 Minister may amend list

(1) Subject to this Subdivision, the Minister may, by legislative

instrument, amend the list by:

(a) including or deleting items from the list; or

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(b) correcting an inaccuracy or updating the name of a marine

species.

(2) Amendments of a list that delete items from the list take effect on

the first day the amendments are no longer liable to be disallowed,

or to be taken to have been disallowed, under section 42 of the

Legislation Act 2003.

(3) Section 42 (disallowance) of the Legislation Act 2003 does not

apply to a legislative instrument to which paragraph (1)(b) of this

section applies.

(4) When an instrument is laid before each House of the Parliament in

accordance with Part 2 of Chapter 3 of the Legislation Act 2003,

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 amendment under subsection (1) to be published in

accordance with the regulations (if any).

250 Adding marine species to the list

(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.

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Section 251

251 Minister must consider advice from Scientific Committee

(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—amend the

list accordingly under subsection 249(1);

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) relates to an addition or deletion included in an amendment

of the list that has already been registered as a legislative

instrument under the Legislation Act 2003.

Note: Amendments of the list to add or delete an item are legislative

instruments (see section 249).

252 Minister to make lists available to the public

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.

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Section 253

Subdivision B—Permit system

253 Subdivision does not apply to members of certain species and

cetaceans

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.

254 Killing or injuring member of listed marine species

(1) A person commits an offence if:

(a) the person takes an action; and

(b) the action results in the death or injury of a member of a

species; and

(c) the member is a member of a listed marine species; and

(d) the member is in or on a Commonwealth area.

Penalty:

(a) in the case of an aggravated offence—imprisonment for 2

years or 3,000 penalty units, or both;

(b) in any other case—imprisonment for 2 years or 1,000 penalty

units, or both.

Note 1: For the extra element of an aggravated offence, see section 254F.

Note 2: This section does not apply in the circumstances described in

section 255. A defendant bears an evidential burden in relation to

those circumstances. See subsection 13.3(3) of the Criminal Code.

(2) Strict liability applies to paragraphs (1)(c) and (d).

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

254A Strict liability for killing or injuring member of listed marine

species

(1) A person commits an offence if:

(a) the person takes an action; and

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(b) the action results in the death or injury of a member of a

marine species; and

(c) the member is a member of a listed marine species; and

(d) the member is in or on a Commonwealth area.

Penalty:

(a) in the case of an aggravated offence—1,500 penalty units;

(b) in any other case—500 penalty units.

Note 1: For the extra element of an aggravated offence, see section 254F.

Note 2: This section does not apply in the circumstances described in

section 255. A defendant bears an evidential burden in relation to

those circumstances. See subsection 13.3(3) of the Criminal Code.

(2) Strict liability applies to paragraphs (1)(a), (b), (c) and (d).

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

254B Taking etc. member of listed marine species

(1) A person commits an offence if:

(a) the person takes, trades, keeps or moves a member of a

species; and

(b) the member is a member of a listed marine species; and

(c) the member is in or on a Commonwealth area.

Penalty:

(a) in the case of an aggravated offence—imprisonment for 2

years or 3,000 penalty units, or both;

(b) in any other case—imprisonment for 2 years or 1,000 penalty

units, or both.

Note 1: For the extra element of an aggravated offence, see section 254F.

Note 2: This section does not apply in the circumstances described in

section 255. A defendant bears an evidential burden in relation to

those circumstances. See subsection 13.3(3) of the Criminal Code.

(2) Strict liability applies to paragraphs (1)(b) and (c).

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

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Section 254C

254C Strict liability for taking etc. member of listed marine species

(1) A person commits an offence if:

(a) the person 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.

Penalty:

(a) in the case of an aggravated offence—1,500 penalty units;

(b) in any other case—500 penalty units.

Note 1: For the extra element of an aggravated offence, see section 254F.

Note 2: This section does not apply in the circumstances described in

section 255. A defendant bears an evidential burden in relation to

those circumstances. See subsection 13.3(3) of the Criminal Code.

(2) Strict liability applies to paragraphs (1)(a), (b) and (c).

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

254D Trading etc. member of listed marine species taken in

Commonwealth area

(1) A person commits an offence if:

(a) the person trades, keeps or moves a member of a 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.

Penalty:

(a) in the case of an aggravated offence—imprisonment for 2

years or 3,000 penalty units, or both;

(b) in any other case—imprisonment for 2 years or 1,000 penalty

units, or both.

Note 1: For the extra element of an aggravated offence, see section 254F.

Note 2: This section does not apply in the circumstances described in

section 255. A defendant bears an evidential burden in relation to

those circumstances. See subsection 13.3(3) of the Criminal Code.

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Section 254E

(2) Strict liability applies to paragraphs (1)(b) and (c).

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

254E Strict liability for trading etc. member of listed marine species

taken in Commonwealth area

(1) A person commits 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.

Penalty:

(a) in the case of an aggravated offence—1,500 penalty units;

(b) in any other case—500 penalty units.

Note 1: For the extra element of an aggravated offence, see section 254F.

Note 2: This section does not apply in the circumstances described in

section 255. A defendant bears an evidential burden in relation to

those circumstances. See subsection 13.3(3) of the Criminal Code.

(2) Strict liability applies to paragraphs (1)(a), (b) and (c).

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

254F Aggravated offence—member of listed marine species that is a

dugong or turtle

(1) For the purposes of this Subdivision, an offence against

section 254, 254A, 254B, 254C, 254D or 254E (the underlying

offence) is an aggravated offence if the member to which the

underlying offence relates is a member of a listed marine species

mentioned in paragraph 248(2)(f), (g) or (h).

Note: Dugong, marine turtles and leatherback turtles are the listed marine

species mentioned in paragraphs 248(2)(f), (g) and (h).

(2) If the prosecution intends to prove an aggravated offence, the

charge must allege the relevant aggravated offence.

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(3) Strict liability applies to the physical element of circumstance, that

the member is a listed marine species mentioned in

paragraph 248(2)(f), (g) or (h).

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

255 Certain actions are not offences

Sections 254, 254A, 254B, 254C, 254D and 254E do not apply to:

(a) an action authorised by a permit that was issued under

section 258 and is in force; or

(b) an action provided for by, and taken in accordance with, a

wildlife conservation plan made under Division 5 and 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), 24A(1),

(2), (3) or (4), 24B(1) or (2) or 24C(1), (3), (5) or (7), 26(1)

or (2) or 27A(1), (2), (3) or (4); 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), 24A(1), (2),

(3) or (4), 24B(1) or (2) or 24C(1), (3), (5) or (7), 26(1)

or (2) or 27A(1), (2), (3) or (4); and

(ii) is taken in accordance with a management arrangement

or an authorisation process that is an accredited

management arrangement or an accredited authorisation

process for the purposes of the declaration; or

(da) an action that:

(i) is an action, or one of a class of actions, declared by the

Minister under section 37A not to require an approval

under Part 9 for the purposes of subsection 23(1) or (2),

24A(1), (2), (3) or (4), 24B(1) or (2) or 24C(1), (3), (5)

or (7), 26(1) or (2) or 27A(1), (2), (3) or (4); and

(ii) is taken in accordance with the bioregional plan to

which the declaration relates; or

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(db) in the case of sections 254B, 254C, 254D and 254E—an

action that is trading, keeping or moving a member of a listed

marine species, if:

(i) when the member of the species was taken, the species

was not a listed marine species; and

(ii) the trading, keeping or moving of the member of the

species occurs during the period of 6 months that started

when the species became a listed marine species; 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 and in force; or

(k) an action provided for by, and taken in accordance with, a

plan or regime that is accredited under section 265; or

(l) an action, to the extent that it is covered by

subsection 517A(7); or

(m) an action provided for by, and done in accordance with, a

conservation agreement in force under Part 14; or

(n) an action taken in a Commonwealth reserve in accordance

with a management plan made under Part 15 and in operation

for the reserve; or

(o) an action provided for by, and taken in accordance with, a

traditional use of marine resources agreement that:

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(i) was made and accredited in accordance with regulations

made under the Great Barrier Reef Marine Park Act

1975; and

(ii) is in force; or

(p) an action that is taken in accordance with a permit that:

(i) was issued under the Antarctic Treaty (Environment

Protection) Act 1980 or under regulations made under

that Act; and

(ii) is in force; or

(q) an action that consists of the transit of a member through a

Commonwealth area in circumstances where the member

was:

(i) obtained from an area that is not a Commonwealth area;

or

(ii) taken from a Commonwealth area in circumstances

covered by paragraph (a), (c), (d), (da), (db), (j), (k), (l),

(m), (n), (o) or (p).

Note: A defendant bears an evidential burden in relation to the matters in

this section. See subsection 13.3(3) of the Criminal Code.

256 Failing to notify taking etc. of listed marine wildlife

(1) This section applies to an action taken by a person if all of the

following conditions are met:

(a) the person’s action either:

(i) results in the death or injury of a member of a listed

marine species that is in or on a Commonwealth area; or

(ii) consists of, or involves, trading, taking, keeping or

moving a member of a listed marine species that is in or

on a Commonwealth area;

(b) the person’s action does not constitute an offence against

section 254, 254A, 254B, 254C, 254D or 254E, otherwise

than because of paragraph 255(db);

(c) the person’s action is not an action that the person was

authorised by a permit to take.

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Section 256

Note 1: Section 255 sets out most of the circumstances in which an action

described in paragraph (1)(a) will not be an offence against

section 254, 254A, 254B, 254C, 254D or 254E.

Note 2: A person is authorised by a permit to take an action if the person is the

holder of the permit or the person is given an authority under

section 261 by the holder of the permit to take the action.

Note 3: The conditions of a permit may require the holder of the permit to

give certain notices.

(2) Within 7 days of becoming aware of the action, the person must

notify the Secretary in writing, by telephone or by use of any other

electronic equipment:

(a) that the action was taken; and

(b) of other particulars (if any) about the action that are

prescribed by the regulations.

(3) An example of the particulars about the action that the regulations

may prescribe is the time and place of taking the action. This does

not limit the particulars the regulations may prescribe.

(4) Subsection (2) does not apply if:

(a) the person, or any other person or body, is required by or

under a law of the Commonwealth to notify the Secretary of

the action; or

(b) the action is in a class of actions:

(i) that is specified in an agreement or arrangement

between the Secretary and a Commonwealth agency, or

an agency of a State or self-governing Territory; and

(ii) that the agreement or arrangement provides is to be

notified to the Secretary by the agency.

Note: The defendant bears an evidential burden in relation to the matters in

this subsection. See subsection 13.3(3) of the Criminal Code.

(5) A person commits 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 (2).

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Division 4 Listed marine species

Section 257

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

criminal responsibility.

257 Application for permits

(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).

(3) As soon as practicable after receiving the application, the Minister

must cause to be published on the internet:

(a) details of the application; and

(b) an invitation for anyone to give the Minister comments

within 10 business days (measured in Canberra) on whether

the permit should be issued.

Note: If the action is also the subject of a referral under Division 1 of Part 7

and the referral is made at the same time as the application, the

application and invitation for comments that must be published under

this subsection may be published together with the referral and

invitation for comments that must be published under

subsection 74(3).

258 Minister may issue permits

(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, 254A, 254B, 254C, 254D or

254E.

(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:

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(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 is conducted in a way that will, so far as is practicable,

keep to a minimum any impact on the listed marine species

concerned.

(4) In making a decision on the application, the Minister must consider

the comments (if any) received:

(a) in response to the invitation under subsection 257(3) for

anyone to give the Minister comments on whether the permit

should be issued; and

(b) within the period specified in the invitation.

259 Conditions of permits

(1) A permit is subject to such conditions as are specified in the permit

or as are imposed under subsection (2).

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

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

(b) impose further conditions of a permit.

260 Contravening conditions of a permit

The holder of a permit commits 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

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Section 261

(b) doing, or failing to do, the act or thing results in a

contravention of a condition of the permit.

261 Authorities under permits

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

person written authority to take for or on behalf of the holder any

action authorised by the permit. The authority may be given

generally or as otherwise provided by the instrument of authority.

(2) The holder of a permit must not give an authority unless:

(a) the permit contains a condition permitting the holder to do

so; and

(b) the authority is given in accordance with any requirements

set out in the condition.

(3) A permit is, for the purposes of this Act, taken to authorise the

taking of a particular action by a person if the taking of that action

by the person is authorised by an authority given by the holder of

the permit.

(4) The giving of an authority does not prevent the taking of any action

by the holder of the permit.

(5) Except as provided in this section, a permit does not authorise the

taking of any action by a person for or on behalf of the holder of

the permit.

(6) A person who gives an authority must give to the Minister written

notice of it within 14 days after giving the authority.

262 Transfer of permits

On the application, in accordance with the regulations, of the

holder of a permit, the Minister may, in accordance with the

regulations, transfer the permit to another person.

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Section 263

263 Suspension or cancellation of permits

The Minister may, in accordance with the regulations:

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

(b) cancel a permit.

263A Review of decisions about permits

(1) Subject to subsection (2), an application may be made to the

Administrative Appeals Tribunal for review of a decision:

(a) to issue or refuse a permit; or

(b) to specify, vary or revoke a condition of a permit; or

(c) to impose a further condition of a permit; or

(d) to transfer or refuse to transfer a permit; or

(e) to suspend or cancel a permit.

(2) Subsection (1) does not apply to a decision made personally by the

Minister (but the subsection does apply to a decision made by a

delegate of the Minister).

264 Fees

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

following:

(a) the grant or the transfer of a permit;

(b) the variation or revocation of a condition of a permit;

(c) the imposition of a further condition of a permit.

Subdivision C—Miscellaneous

265 Minister may accredit plans, regimes or policies

(1) 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

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Section 266

(b) a plan of management within the meaning of section 15A of

the Torres Strait Fisheries Act 1984; or

(c) a plan of management, or a policy, regime or any other

arrangement, for a fishery, that is:

(i) made by a State or self-governing Territory; and

(ii) in force under a law of the State or self-governing

Territory; or

(d) a regime determined in writing by the Australian Fisheries

Management Authority under the Fisheries Administration

Act 1991 for managing a fishery for which a plan of

management (within the meaning of section 17 of the

Fisheries Management Act 1991) is not in force; or

(e) a policy formulated by the Protected Zone Joint Authority

under paragraph 34(b) of the Torres Strait Fisheries Act 1984

for managing a fishery for which a plan of management

(within the meaning of section 15A of the Torres Strait

Fisheries Act 1984) is not in force;

if the Minister is satisfied that:

(f) the plan, regime or policy requires persons engaged in fishing

under the plan, regime or policy 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

(g) the fishery to which the plan, regime or policy relates does

not, or is not likely to, adversely affect the conservation

status of a listed marine species or a population of that

species.

Note 1: The Minister may accredit a plan, regime or policy subject to

conditions (see section 303AA).

Note 2: If a plan, regime or policy that is accredited under this section is, or is

proposed to be, amended, the Minister may determine under

section 303AB that the plan, regime or policy as amended is, for the

purposes of this Act, taken to be accredited under subsection (1) of

this section.

(2) An instrument under subsection (1) is not a legislative instrument.

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Section 266

266 Regulations

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) provide for the protection and conservation of listed marine

species; and

(e) provide for any matter incidental to or connected with any of

the above paragraphs.

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Environment Protection and Biodiversity

Conservation Act 1999

No. 91, 1999

Compilation No. 52

Compilation date: 29 October 2018

Includes amendments up to: Act No. 12, 2018

Registered: 9 November 2018

This compilation is in 2 volumes

Volume 1: sections 1–266

Volume 2: sections 266B–528

Schedule

Endnotes

Each volume has its own contents

Prepared by the Office of Parliamentary Counsel, Canberra

About this compilation

This compilation

This is a compilation of the Environment Protection and Biodiversity

Conservation Act 1999 that shows the text of the law as amended and in force

on 29 October 2018 (the compilation date).

The notes at the end of this compilation (the endnotes) include information

about amending laws and the amendment history of provisions of the compiled

law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the

compiled law. Any uncommenced amendments affecting the law are accessible

on the Legislation Register (www.legislation.gov.au). The details of

amendments made up to, but not commenced at, the compilation date are

underlined in the endnotes. For more information on any uncommenced

amendments, see the series page on the Legislation Register for the compiled

law.

Application, saving and transitional provisions for provisions and

amendments

If the operation of a provision or amendment of the compiled law is affected by

an application, saving or transitional provision that is not included in this

compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see

the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as

modified but the modification does not amend the text of the law. Accordingly,

this compilation does not show the text of the compiled law as modified. For

more information on any modifications, see the series page on the Legislation

Register for the compiled law.

Self-repealing provisions

If a provision of the compiled law has been repealed in accordance with a

provision of the law, details are included in the endnotes.

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Contents

Chapter 5—Conservation of biodiversity and heritage 1

Part 13—Species and communities 1

Division 5—Conservation advice, recovery plans, threat

abatement plans and wildlife conservation plans 1

Subdivision AA—Approved conservation advice 1

266B Approved conservation advice for listed threatened

species and listed threatened ecological

communities ......................................................................1

Subdivision A—Recovery plans and threat abatement plans 3

267 Simplified outline of this Subdivision ...............................3

268 Compliance with recovery plans and threat

abatement plans .................................................................3

269 Implementing recovery and threat abatement plans ..........4

269AA Decision whether to have a recovery plan .........................4

269A Making or adopting a recovery plan..................................7

270 Content of recovery plans..................................................9

270A Decision whether to have a threat abatement plan...........11

270B Making or adopting a threat abatement plan ...................13

271 Content of threat abatement plans ...................................15

272 Eradication of non-native species....................................16

273 Ensuring plans are in force ..............................................16

274 Scientific Committee to advise on plans .........................18

275 Consultation on plans ......................................................18

276 Consideration of comments .............................................19

277 Adoption of State plans ...................................................19

278 Publication of plans .........................................................20

279 Variation of plans by the Minister ...................................20

280 Variation by a State or Territory of joint plans and

plans adopted by the Minister..........................................21

281 Commonwealth assistance...............................................22

282 Scientific Committee to advise on assistance ..................22

283 Plans may cover more than one species etc. ....................23

283A Revoking a plan...............................................................23

284 Reports on preparation and implementation of

plans ................................................................................24

Subdivision B—Wildlife conservation plans 24

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285 Wildlife conservation plans.............................................24

286 Acting in accordance with wildlife conservation

plans ................................................................................25

287 Content of wildlife conservation plans ............................25

288 Eradication of non-native species....................................27

289 Scientific Committee to advise on scheduling of

plans ................................................................................27

290 Consultation on plans ......................................................27

291 Consideration of comments .............................................28

292 Adoption of State plans ...................................................28

293 Publication, review and variation of plans.......................29

294 Variation of plans by the Minister ...................................29

295 Variation by a State or Territory of joint plans and

plans adopted by the Minister..........................................30

296 Commonwealth assistance...............................................31

297 Plans may cover more than one species etc. ....................31

298 Reports on preparation and implementation of

plans ................................................................................31

Subdivision C—Miscellaneous 32

299 Wildlife conservation plans cease to have effect .............32

300 Document may contain more than one plan ....................32

300A State and Territory laws not affected...............................32

300B Assistance from the Scientific Committee.......................32

Division 6—Access to biological resources 34

301 Control of access to biological resources ........................34

Division 6A—Control of non-native species 35

301A Regulations for control of non-native species .................35

Division 7—Aid for conservation of species in foreign countries 36

302 Aid for conservation of species in foreign

countries ..........................................................................36

Division 8—Miscellaneous 37

303 Regulations......................................................................37

303A Exemptions from this Part ...............................................37

303AA Conditions relating to accreditation of plans,

regimes and policies ........................................................38

303AB Amended policies, regimes or plans taken to be

accredited ........................................................................39

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Part 13A—International movement of wildlife specimens 40

Division 1—Introduction 40

303BA Objects of Part.................................................................40

303BAA Certain indigenous rights not affected .............................40

303BB Simplified outline............................................................41

303BC Definitions.......................................................................42

Division 2—CITES species 44

Subdivision A—CITES species and CITES specimens 44

303CA Listing of CITES species.................................................44

303CB Stricter domestic measures ..............................................45

Subdivision B—Offences and permit system 46

303CC Exports of CITES specimens...........................................46

303CD Imports of CITES specimens...........................................47

303CE Applications for permits ..................................................49

303CF Further information .........................................................49

303CG Minister may issue permits..............................................49

303CH Specific conditions relating to the export or import

of CITES specimens for commercial purposes................51

303CI Time limit for making permit decision ............................55

303CJ Duration of permits .........................................................56

303CK Register of applications and decisions.............................56

Subdivision C—Application of CITES 56

303CL Application of CITES—Management Authority

and Scientific Authority ..................................................56

303CM Interpretation of CITES provisions .................................57

303CN Resolutions of the Conference of the Parties to

CITES..............................................................................57

Division 3—Exports of regulated native specimens 58

Subdivision A—Regulated native specimens 58

303DA Regulated native specimens ............................................58

303DB Listing of exempt native specimens ................................58

303DC Minister may amend list ..................................................59

Subdivision B—Offence and permit system 61

303DD Exports of regulated native specimens ............................61

303DE Applications for permits ..................................................62

303DF Further information .........................................................62

303DG Minister may issue permits..............................................62

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303DH Time limit for making permit decision ............................65

303DI Duration of permits .........................................................66

303DJ Register of applications and decisions.............................66

Division 4—Imports of regulated live specimens 67

Subdivision A—Regulated live specimens 67

303EA Regulated live specimens ................................................67

303EB Listing of specimens suitable for live import ..................67

303EC Minister may amend list ..................................................68

Subdivision B—Assessments relating to the amendment of the list

of specimens suitable for import 69

303ED Amendment of list on the Minister’s own initiative ........69

303EE Application for amendment of list...................................70

303EF Requirement for assessments ..........................................71

303EG Timing of decision about proposed amendment ..............72

303EH Requesting further information .......................................72

303EI Notice of refusal of proposed amendment .......................73

303EJ Reviews ...........................................................................73

Subdivision C—Offence and permit system 73

303EK Imports of regulated live specimens ................................73

303EL Applications for permits ..................................................74

303EM Further information .........................................................74

303EN Minister may issue permits..............................................74

303EO Time limit for making permit decision ............................75

303EP Duration of permits .........................................................76

303EQ Register of applications and decisions.............................76

Subdivision D—Marking of certain specimens for the purposes of

identification 76

303ER Object ..............................................................................76

303ES Specimens to which Subdivision applies.........................77

303ET Extended meaning of marking.........................................77

303EU Secretary may make determinations about marking

of specimens....................................................................78

303EV Offences ..........................................................................79

303EW This Subdivision does not limit conditions of

permits.............................................................................80

Division 5—Concepts relating to permit criteria 81

Subdivision A—Non-commercial purpose exports and imports 81

303FA Eligible non-commercial purpose exports .......................81

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303FB Eligible non-commercial purpose imports.......................81

303FC Export or import for the purposes of research .................82

303FD Export or import for the purposes of education ...............83

303FE Export or import for the purposes of exhibition ..............83

303FF Export or import for conservation breeding or

propagation......................................................................84

303FG Export or import of household pets .................................85

303FH Export or import of personal items..................................86

303FI Export or import for the purposes of a travelling

exhibition.........................................................................87

Subdivision B—Commercial purpose exports and imports 87

303FJ Eligible commercial purpose exports ..............................87

303FK Export or import from an approved captive

breeding program ............................................................88

303FL Export from an approved artificial propagation

program ...........................................................................88

303FLA Export from an approved cultivation program ................88

303FM Export from an approved aquaculture program...............89

303FN Approved wildlife trade operation...................................89

303FO Approved wildlife trade management plan......................92

303FP Accredited wildlife trade management plan ....................94

303FQ Consultation with State and Territory agencies ...............95

303FR Public consultation ..........................................................96

303FRA Assessments ....................................................................96

303FS Register of declarations ...................................................97

303FT Additional provisions relating to declarations .................97

303FU Approved commercial import program ...........................99

Division 6—Miscellaneous 100

303GA Permit decision—controlled action, and action for

which a non-Part 13A permit is required.......................100

303GB Exceptional circumstances permit .................................102

303GC Permit authorising the Secretary to export or

import specimens...........................................................104

303GD Testing permit—section 303EE assessments ................106

303GE Conditions of permits ....................................................108

303GF Contravening conditions of a permit .............................109

303GG Authorities under permits ..............................................111

303GH Transfer of permits ........................................................112

303GI Suspension or cancellation of permits ...........................112

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303GJ Review of decisions.......................................................112

303GK Permit to be produced....................................................113

303GL Pre-CITES certificate to be produced............................114

303GM Fees ...............................................................................115

303GN Possession of illegally imported specimens...................115

303GO Regulations relating to welfare......................................117

303GP Cruelty—export or import of animals ...........................118

303GQ Imports of specimens contrary to the laws of a

foreign country ..............................................................119

303GR Evidence........................................................................119

303GS Evidence of examiner ....................................................120

303GT Protection of witness .....................................................122

303GU Forms and declarations—persons arriving in

Australia or an external Territory ..................................123

303GV Saving of other laws ......................................................123

303GW Part not to apply to certain specimens ...........................123

303GX Part not to apply to certain specimens used by

traditional inhabitants ....................................................125

303GY When a specimen is lawfully imported ..........................127

Part 14—Conservation agreements 129 304 Object of this Part..........................................................129

305 Minister may enter into conservation agreements .........130

306 Content of conservation agreements..............................134

306A Conservation agreement may include declaration

that actions do not need approval under Part 9..............137

307 Conservation agreements to be legally binding .............137

307A Conservation agreements may deal with

remediation or mitigation measures...............................138

308 Variation and termination of conservation

agreements.....................................................................139

309 Publication of conservation agreements ........................140

310 List of conservation agreements ....................................142

311 Commonwealth, State and Territory laws .....................142

312 Minister must not give preference .................................142

Part 15—Protected areas 143

Division 1—Managing World Heritage properties 143

Subdivision A—Simplified outline of this Division 143

313 Simplified outline of this Division ................................143

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Subdivision B—Seeking agreement on World Heritage listing 144

314 Special provisions relating to World Heritage

nominations ...................................................................144

Subdivision C—Notice of submission of property for listing 144

315 Minister must give notice of submission of

property for listing etc. ..................................................144

Subdivision D—Plans for listed World Heritage properties in

Commonwealth areas 145

316 Making plans.................................................................145

317 Notice of plans ..............................................................146

318 Commonwealth compliance with plans.........................147

319 Review of plans every 5 years .......................................147

Subdivision E—Managing World Heritage properties in States

and self-governing Territories 147

320 Application....................................................................147

321 Co-operating to prepare and implement plans ...............148

322 Commonwealth responsibilities ....................................148

Subdivision F—Australian World Heritage management

principles 149

323 Australian World Heritage management principles.......149

Subdivision G—Assistance for protecting World Heritage

properties 149

324 Commonwealth assistance for protecting declared

World Heritage properties .............................................149

Division 1A—Managing National Heritage places 151

Subdivision A—Preliminary 151

324A Simplified outline of this Division ................................151

Subdivision B—The National Heritage List 152

324C The National Heritage List ............................................152

324D Meaning of National Heritage values ...........................152

Subdivision BA—Inclusion of places in the National Heritage List:

usual process 153

324E Simplified outline..........................................................153

324F Definitions.....................................................................154

324G Meaning of assessment period ......................................155

324H Minister may determine heritage themes for an

assessment period..........................................................155

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324J Minister to invite nominations for each assessment

period ............................................................................156

324JA Minister to give nominations to Australian

Heritage Council ...........................................................157

324JB Australian Heritage Council to prepare proposed

priority assessment list ..................................................158

324JC Matters to be included in proposed priority

assessment list ...............................................................159

324JD Statement to be given to Minister with proposed

priority assessment list ..................................................160

324JE The finalised priority assessment list.............................160

324JF Publication of finalised priority assessment list.............161

324JG Australian Heritage Council to invite comments on

places in finalised priority assessment list .....................161

324JH Australian Heritage Council to assess places on

finalised priority assessment list and give

assessments to Minister .................................................163

324JI Time by which assessments to be provided to

Minister .........................................................................165

324JJ Decision about inclusion of a place in the National

Heritage List..................................................................165

Subdivision BB—Inclusion of places in the National Heritage List:

emergency process 168

324JK Simplified outline..........................................................168

324JL Minister may include place in National Heritage

List if under threat .........................................................169

324JM Minister to ask Australian Heritage Council for

assessment .....................................................................170

324JN Publication of listing of place and inviting

comments ......................................................................171

324JO Australian Heritage Council to assess place and

give assessment to Minister...........................................172

324JP Time by which assessments to be provided to

Minister .........................................................................172

324JQ Decision about place remaining in the National

Heritage List..................................................................173

Subdivision BC—Other provisions relating to the National

Heritage List 176

324JR Co-ordination with Scientific Committee—

Council undertaking assessment....................................176

324JS Co-ordination with Scientific Committee—

Council given assessment to Minister ...........................178

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324K Listing process not affected by changing

boundaries of a place.....................................................178

324L Removal of places or National Heritage values

from the National Heritage List.....................................179

324M Minister must consider advice of the Australian

Heritage Council and public comments.........................180

324N Specifying one or more additional National

Heritage values for a National Heritage place ...............181

324P National Heritage List must be publicly available.........182

324Q Certain information may be kept confidential ...............182

324R Disclosure of Australian Heritage Council’s

assessments and advice .................................................182

Subdivision C—Management plans for National Heritage places

in Commonwealth areas 184

324S Management plans for National Heritage places in

Commonwealth areas ....................................................184

324T Restriction on ability to make plans ..............................186

324U Compliance with plans by the Commonwealth and

Commonwealth agencies...............................................186

324V Multiple plans in the same document ............................186

324W Review of plans at least every 5 years...........................187

Subdivision D—Management of National Heritage places in States

and self-governing Territories 187

324X Plans and Commonwealth responsibilities ....................187

Subdivision E—The National Heritage management principles 188

324Y National Heritage management principles.....................188

Subdivision F—Obligations of Commonwealth agencies 189

324Z Obligation to assist the Minister and the Australian

Heritage Council ...........................................................189

324ZA Protecting National Heritage values of places sold

or leased ........................................................................189

Subdivision G—Assistance for protecting National Heritage

places 191

324ZB Commonwealth assistance for protecting National

Heritage places ..............................................................191

Subdivision H—Reviewing and reporting on the National

Heritage List 191

324ZC Reviewing and reporting on the National Heritage

List ................................................................................191

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Division 2—Managing wetlands of international importance 193

Subdivision A—Simplified outline of this Division 193

325 Simplified outline of this Division ................................193

Subdivision B—Seeking agreement on Ramsar designation 194

326 Commonwealth must seek agreement before

designation ....................................................................194

Subdivision C—Notice of designation of wetland 194

327 Minister must give notice of designation of

wetland etc. ...................................................................194

Subdivision D—Plans for listed wetlands in Commonwealth areas 195

328 Making plans.................................................................195

329 Notice of plans ..............................................................196

330 Commonwealth compliance with plans.........................196

331 Review of plans every 5 years .......................................197

Subdivision E—Management of wetlands in States and

self-governing Territories 197

332 Application....................................................................197

333 Co-operating to prepare and implement plans ...............198

334 Commonwealth responsibilities ....................................198

Subdivision F—Australian Ramsar management principles 198

335 Australian Ramsar management principles ...................198

Subdivision G—Assistance for protecting wetlands 199

336 Commonwealth assistance for protecting declared

Ramsar wetlands ...........................................................199

Division 3—Managing Biosphere reserves 200

337 Definition of Biosphere reserve ....................................200

338 Planning for management of Biosphere reserves...........200

339 Commonwealth activities in Biosphere reserves ...........200

340 Australian Biosphere reserve management

principles .......................................................................201

341 Commonwealth assistance for protecting

Biosphere reserves.........................................................201

Division 3A—Managing Commonwealth Heritage places 202

Subdivision A—Preliminary 202

341A Simplified outline of this Division ................................202

341B Extension to places etc. outside the Australian

jurisdiction.....................................................................202

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203Subdivision B—The Commonwealth Heritage List

341C The Commonwealth Heritage List ................................203

341D Meaning of Commonwealth Heritage values ................203

Subdivision BA—Inclusion of places in the Commonwealth

Heritage List: usual process 204

341E Simplified outline..........................................................204

341F Definitions.....................................................................205

341G Meaning of assessment period ......................................206

341H Minister to invite nominations for each assessment

period ............................................................................206

341J Minister to give nominations to Australian

Heritage Council ...........................................................207

341JA Australian Heritage Council to prepare proposed

priority assessment list ..................................................209

341JB Matters to be included in proposed priority

assessment list ...............................................................210

341JC Statement to be given to Minister with proposed

priority assessment list ..................................................210

341JD The finalised priority assessment list.............................211

341JE Publication of finalised priority assessment list.............212

341JF Australian Heritage Council to invite comments on

places in finalised priority assessment list .....................212

341JG Australian Heritage Council to assess places on

finalised priority assessment list and give

assessments to Minister .................................................213

341JH Time by which assessments to be provided to

Minister .........................................................................215

341JI Decision about inclusion of a place in the

Commonwealth Heritage List........................................216

Subdivision BB—Inclusion of places in the Commonwealth

Heritage List: emergency process 219

341JJ Simplified outline..........................................................219

341JK Minister may include place in Commonwealth

Heritage List if under threat ..........................................219

341JL Minister to ask Australian Heritage Council for

assessment .....................................................................221

341JM Publication of listing of place and inviting

comments ......................................................................221

341JN Australian Heritage Council to assess place and

give assessment to Minister...........................................222

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341JO Time by which assessments to be provided to

Minister .........................................................................223

341JP Decision about place remaining in the

Commonwealth Heritage List........................................223

Subdivision BC—Other provisions relating to the Commonwealth

Heritage List 227

341JQ Co-ordination with Scientific Committee—

Council undertaking assessment....................................227

341JR Co-ordination with Scientific Committee—

Council given assessment to Minister ...........................228

341K Listing process not affected by changing

boundaries of a place.....................................................229

341L Removal of places or Commonwealth Heritage

values from the Commonwealth Heritage List ..............229

341M Minister must consider advice of the Australian

Heritage Council and public comments.........................231

341N Specifying one or more additional Commonwealth

Heritage values for a Commonwealth Heritage

place ..............................................................................232

341P Commonwealth Heritage List must be publicly

available ........................................................................233

341Q Certain information may be kept confidential ...............233

341R Disclosure of Australian Heritage Council’s

assessments and advice .................................................234

Subdivision C—Management plans for Commonwealth Heritage

places 236

341S Management plans for Commonwealth Heritage

places.............................................................................236

341T Endorsing management plans for Commonwealth

Heritage places ..............................................................237

341U Restriction on ability to make plans ..............................238

341V Compliance with plans by the Commonwealth and

Commonwealth agencies...............................................238

341W Multiple plans in the same document ............................238

341X Review of plans at least every 5 years...........................239

Subdivision D—The Commonwealth Heritage management

principles 239

341Y Commonwealth Heritage management principles .........239

Subdivision E—Obligations of Commonwealth agencies 240

341Z Obligation to assist the Minister and the Australian

Heritage Council ...........................................................240

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341ZA Heritage strategies .........................................................240

341ZB Heritage assessments and registers................................241

341ZC Minimising adverse impact on heritage values..............242

341ZE Protecting Commonwealth Heritage values of

places sold or leased ......................................................242

Subdivision G—Assistance for protecting Commonwealth

Heritage places 244

341ZG Commonwealth assistance for protecting

Commonwealth Heritage places ....................................244

Subdivision H—Reviewing and reporting on the Commonwealth

Heritage List 244

341ZH Reviewing and reporting on the Commonwealth

Heritage List..................................................................244

Division 4—Commonwealth reserves 246

Subdivision A—Simplified outline of this Division 246

342 Simplified outline of this Division ................................246

Subdivision B—Declaring and revoking Commonwealth reserves 247

343 Simplified outline of this Subdivision ...........................247

344 Declaring Commonwealth reserves...............................247

345 Extent of Commonwealth reserve .................................249

345A Commonwealth usage rights vest in Director................249

346 Content of Proclamation declaring Commonwealth

reserve ...........................................................................250

347 Assigning Commonwealth reserves and zones to

IUCN categories ............................................................251

348 Australian IUCN reserve management principles .........251

350 Revocation and alteration of Commonwealth

reserves..........................................................................251

351 Report before making Proclamation..............................253

352 What happens to Director’s usage rights when

Commonwealth reserve is revoked................................254

Subdivision C—Activities in Commonwealth reserves 255

353 Simplified outline of this Subdivision ...........................255

354 Activities that may be carried on only under

management plan...........................................................256

354A Offences relating to activities that may only be

carried on under management plan................................257

355 Limits on mining operations in Commonwealth

reserves..........................................................................262

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355A Offence relating to mining operations ...........................264

356 Regulations controlling activities relating to

Commonwealth reserves ...............................................266

356A Charges for activities in Commonwealth reserves.........268

357 Managing Commonwealth reserves while a

management plan is not in operation .............................269

358 Restriction on disposal of Director’s interests in

Commonwealth reserves ...............................................270

359 Prior usage rights relating to Commonwealth

reserves continue to have effect.....................................271

359A Traditional use of Commonwealth reserves by

indigenous persons ........................................................272

359B Director’s approval of actions and mining

operations when a management plan is not in

operation........................................................................272

Subdivision D—Complying with management plans for

Commonwealth reserves 274

361 Simplified outline of this Subdivision ...........................274

362 Commonwealth and Commonwealth agencies to

comply with management plan for Commonwealth

reserve ...........................................................................275

363 Resolving disagreement between land council and

Director over implementation of plan............................275

364 Resolving disagreement between Director and

Board over implementation of plan ...............................277

Subdivision E—Approving management plans for

Commonwealth reserves 278

365 Simplified outline of this Subdivision ...........................278

366 Obligation to prepare management plans for

Commonwealth reserves ...............................................278

367 Content of a management plan for a

Commonwealth reserve .................................................279

368 Steps in preparing management plans for

Commonwealth reserves ...............................................282

369 Resolving disagreements between Director and

Board in planning process .............................................285

370 Approval of management plans for

Commonwealth reserves ...............................................286

371 Approved management plans are legislative

instruments ....................................................................287

372 Amendment and revocation of management plans

for Commonwealth reserves..........................................288

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373 Expiry of management plans for Commonwealth

reserves..........................................................................288

Subdivision F—Boards for Commonwealth reserves on

indigenous people’s land 288

374 Simplified outline of this Subdivision ...........................288

375 Application....................................................................289

376 Functions of a Board for a Commonwealth reserve ......289

377 Minister must establish Board if land council or

traditional owners agree ................................................289

378 Altering the constitution of a Board or abolishing a

Board.............................................................................290

379 Appointment of Board members ...................................292

379A Fit and proper person.....................................................293

380 Terms and conditions ....................................................293

381 Remuneration ................................................................294

382 Termination of appointments of Board members ..........294

383 Procedure of a Board.....................................................296

Subdivision G—Special rules for some Commonwealth reserves in

the Northern Territory or Jervis Bay Territory 297

384 Simplified outline of this Subdivision ...........................297

385 Activities in Commonwealth reserve without

management plan...........................................................297

386 What are the Kakadu region and the Uluru region?......298

387 No mining operations in Kakadu National Park ............298

388 Establishment and development of townships in

the Kakadu region and Uluru region .............................299

389 Planning for townships..................................................299

390 Special rules to protect Aboriginal interests in

planning process............................................................300

390A Appointment of Northern Territory nominee to

Board.............................................................................302

Division 5—Conservation zones 304

390B Simplified outline of this Division ................................304

390C Object of this Division ..................................................304

390D Proclamation of conservation zones ..............................304

390E Regulating activities generally ......................................305

390F Charges for activities in conservation zones..................307

390G Other laws and regulations made for this Division........307

390H Prior usage rights relating to conservation zones

continue to have effect ..................................................308

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390J Revoking and altering conservation zones ....................309

Chapter 5A—The List of Overseas Places of Historic

Significance to Australia 310

Part 15A—The List of Overseas Places of Historic Significance

to Australia 310 390K The List of Overseas Places of Historic

Significance to Australia ...............................................310

390L Inclusion of places in the List of Overseas Places

of Historic Significance to Australia .............................310

390M Removal of places from the List of Overseas

Places of Historic Significance to Australia or

variation of statement of historic significance ...............311

390N Inviting comments from other Ministers before

taking action ..................................................................311

390P Minister may ask Australian Heritage Council for

advice etc.......................................................................311

390Q List of Overseas Places of Historic Significance to

Australia to be publicly available ..................................312

390R Disclosure of Australian Heritage Council’s

assessments and advice .................................................312

Chapter 5B—Declared commercial fishing activities 313

Part 15B—Declared commercial fishing activities 313

Division 1—Prohibition 313

390SA Civil penalty—declared commercial fishing

activities ........................................................................313

390SB Offence—declared commercial fishing activities..........313

Division 2—Declaring a commercial fishing activity 314

Subdivision A—What is a declared commercial fishing activity? 314

390SC What is a declared commercial fishing activity? ...........314

Subdivision B—Interim declaration 314

390SD Interim declaration ........................................................314

390SE Consultation ..................................................................316

Subdivision C—Final declaration 317

390SF Final declaration............................................................317

Subdivision D—Revoking declarations 318

390SG Revoking an interim or final declaration .......................318

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Division 3—Expert panel assessment of declared commercial

fishing activity 319

390SH Establishment of expert panel .......................................319

390SI Terms and conditions ....................................................320

390SJ Procedure for assessment ..............................................320

390SK Timing of the report ......................................................320

390SL Publication of the report ................................................320

Division 4—Sunsetting of this Part 321

390SM Sunsetting of this Part....................................................321

Chapter 6—Administration 322

Part 16—Precautionary principle and other considerations in

making decisions 322 391 Minister must consider precautionary principle in

making decisions ...........................................................322

Part 17—Enforcement 325

Division 1—Wardens, rangers and inspectors 325

Subdivision A—Wardens and rangers 325

392 Appointment of wardens and rangers ............................325

393 Arrangements for certain officers or employees to

exercise powers etc. of wardens or rangers ...................325

394 Wardens ex officio ........................................................326

395 Identity cards .................................................................326

Subdivision B—Inspectors 326

396 Appointment of inspectors ............................................326

397 Inspectors ex officio ......................................................327

398 Arrangements for State and Territory officers to be

inspectors.......................................................................327

399 Identity cards .................................................................328

Subdivision BA—Exercise of powers of authorised officers outside

the territorial sea 329

399A Powers to be exercised consistently with

UNCLOS.......................................................................329

Subdivision BB—Exercise of powers of authorised officers in

relation to Great Barrier Reef Marine Park 329

399B Certain powers to be exercised only by certain

authorised officers .........................................................329

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Subdivision C—Miscellaneous 330

400 Regulations may give wardens, rangers and

inspectors extra powers, functions and duties ...............330

401 Impersonating authorised officers and rangers ..............330

402 Offences against authorised officers and rangers ..........331

Division 2—Boarding of vessels etc. and access to premises 333

403 Boarding of vessels etc. by authorised officers .............333

404 Authorised officers to produce identification ................336

405 Access to premises ........................................................337

406 Powers of authorised officers ........................................338

406A Searches under paragraph 406(1)(ba) ............................340

406AA Taking things into possession........................................340

406B Thing taken into possession is not a thing seized ..........341

Division 3—Monitoring of compliance 342

407 Monitoring powers ........................................................342

407A Operation of electronic equipment at premises .............343

407B Compensation for damage to electronic equipment.......346

408 Monitoring searches with occupier’s consent................347

409 Monitoring warrants ......................................................349

409A Monitoring warrants by telephone or other

electronic means ............................................................350

409B Executing officer to be in possession of warrant ...........352

410 Details of monitoring warrant to be given to

occupier etc. ..................................................................353

411 Occupier entitled to be present during search................353

412 Announcement before entry ..........................................353

412A Other powers when on premises under monitoring

warrant ..........................................................................354

Division 4—Search warrants 355

413 When search warrants can be issued .............................355

414 Statements in warrants...................................................356

415 Powers of magistrate .....................................................358

416 Warrants by telephone or other electronic means..........359

417 The things that are authorised by a search warrant........361

418 Availability of assistance, and use of force, in

executing a warrant .......................................................363

418A Executing officer to be in possession of warrant ...........364

419 Details of warrant to be given to occupier etc. ..............364

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420 Specific powers available to person executing

warrant ..........................................................................365

421 Use of equipment to examine or process things ............365

422 Use of electronic equipment at premises .......................366

423 Compensation for damage to electronic equipment.......369

424 Copies of seized things to be provided ..........................369

425 Occupier entitled to be present during search................370

426 Receipts for things seized under warrant.......................370

427 Restrictions on personal searches ..................................371

428 When a thing is in the possession of a person ...............371

Division 6—Arrest and related matters 372

430 Powers of arrest .............................................................372

431 Power to conduct a frisk search of an arrested

person ............................................................................373

432 Power to conduct an ordinary search of an arrested

person ............................................................................373

433 Power to conduct search of arrested person’s

premises ........................................................................373

433A Interaction of this Division with Schedule 1 .................374

Division 6A—Provisions relating to detention of suspected

foreign offenders 375

433B Provisions relating to detention of suspected

foreign offenders ...........................................................375

Division 7—Miscellaneous provisions about searches, entry to

premises, warrants etc. 376

434 Conduct of ordinary searches and frisk searches ...........376

435 Announcement before entry ..........................................376

436 Offence of making false statements in warrants ............376

437 Offences relating to telephone warrants ........................376

438 Retention of things seized under Division 4 or 6...........377

440 Law relating to legal professional privilege not

affected..........................................................................378

441 Other laws about search, arrest etc. not affected ...........378

442 Persons to assist authorised officers ..............................378

Division 8—Power to search goods, baggage etc. 381

443 Power to search goods, baggage etc. .............................381

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Division 8A—Power to ask questions about specimens 383

443A Authorised officer may ask questions about the

nature or origin of specimens ........................................383

Division 9—Power to ask for names and addresses 385

444 Authorised person may ask for person’s name and

address...........................................................................385

Division 10—Seizure and forfeiture etc. 386

Subdivision AA—Seizure of specimens involved in a

contravention of Part 13A 386

444A Seizure of specimens involved in a contravention

of Part 13A ....................................................................386

444B Notice about seizure ......................................................386

444C Applications for return of specimen ..............................387

444D Court action for return of specimen...............................388

444E Consignment of specimen with consent of owner .........388

444G Retention of specimen ...................................................389

444H Forfeiture of specimen after end of retention

period ............................................................................390

Subdivision AB—Seizure of things (other than specimens involved

in a contravention of Part 13A) 391

445 Seizure of things (other than specimens involved

in a contravention of Part 13A) .....................................391

446 Retention of things seized under this Subdivision .........392

Subdivision AC—Direction to deliver seizable items 394

447 Direction to deliver seizable items ................................394

Subdivision B—Disposal of seized items 395

449 Immediate disposal of seized items ...............................395

449A Disposal of seized items if Secretary cannot locate

or identify person entitled etc. .......................................397

Subdivision BA—Release of seized items to owner etc. 398

449BA Release of seized items to owner etc. ............................398

449BB How this Part applies in relation to things released

conditionally..................................................................398

Subdivision C—Forfeiture of seized items 399

450 Court-ordered forfeiture: order by court dealing

with offence proceedings...............................................399

450A Court-ordered forfeiture: other situations ......................400

450B Forfeiture of seized items by consent etc. .....................401

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451 Dealings in forfeited items ............................................402

452 Delivery of forfeited items to the Commonwealth ........402

Subdivision F—Keeping of organisms or specimens that have

been seized 403

453 Keeping of organisms or specimens retained under

this Part .........................................................................403

454 Recovery of costs of storing or keeping organisms

or specimens..................................................................403

Subdivision G—Rescuing things 404

455 Rescuing things .............................................................404

456 Breaking or destroying things or documents to

prevent seizure etc. ........................................................404

Subdivision H—Seizure of cages or containers 405

456AA Power to seize cages or containers containing

seizable things ...............................................................405

456AB Retention of seized cage or container ............................405

456AC Retention of non-seizable things contained in

seized cages or containers .............................................406

Division 12—Environmental audits 408

458 Directed environmental audits.......................................408

459 Appointment of auditor and carrying out of audit .........409

460 Nature of directed environmental audit .........................409

461 Audit reports..................................................................410

462 Directed environmental audits do not affect other

audit obligations ............................................................411

Division 13—Conservation orders 412

Subdivision A—Simplified outline 412

463 Simplified outline of this Division ................................412

Subdivision B—Making and reviewing conservation orders 412

464 Minister may make conservation orders........................412

465 Duration of conservation orders ....................................413

466 Reviews of conservation orders.....................................414

467 Publication of conservation orders ................................414

468 Application for reconsideration of conservation

orders or decisions on review ........................................415

469 Reconsideration of conservation orders and

decisions on review .......................................................416

Subdivision C—Complying with conservation orders 417

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470 Contravening conservation orders is an offence ............417

471 Minister to consider proposed actions etc......................417

472 Contents of notices of advice ........................................418

473 Review by the Administrative Appeals Tribunal...........418

474 Assistance in complying with conservation orders........418

Division 14—Injunctions 420

475 Injunctions for contravention of the Act........................420

476 Injunctions for contraventions of conservation

agreements.....................................................................422

477 Discharge of injunctions................................................423

479 Certain considerations for granting injunctions not

relevant..........................................................................423

480 Powers conferred are in addition to other powers

of the Court ...................................................................424

Division 14A—Federal Court’s power to make remediation

orders 425

480A Remediation orders........................................................425

480B Discharge of remediation orders....................................426

480C Powers conferred are in addition to other powers

of the Court ...................................................................426

Division 14B—Minister’s power to make remediation

determinations 427

Subdivision A—Making of remediation determinations 427

480D Minister may make remediation determination .............427

480E Contents of a remediation determination.......................427

480F Notifying owners and occupiers of land of

proposed remediation determination .............................428

480G Notifying that remediation determination has been

made ..............................................................................429

480H Duration of remediation determinations ........................429

480J Ministerial reconsideration of remediation

determinations ...............................................................429

Subdivision B—Federal Court may set aside remediation

determination 430

480K Applying to Federal Court to have remediation

determination set aside ..................................................430

Subdivision C—Complying with remediation determinations 431

480L Federal Court may order compliance with

remediation determination.............................................431

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480M Civil penalty for contravention of remediation

determination.................................................................432

Subdivision D—Variation or revocation of remediation

determinations 432

480N Variation or revocation of remediation

determination.................................................................432

Division 15—Civil penalties 433

Subdivision A—Obtaining an order for a civil penalty 433

481 Federal Court may order person to pay pecuniary

penalty for contravening civil penalty provision ...........433

482 What is a civil penalty provision?..................................434

483 Contravening a civil penalty provision is not an

offence...........................................................................434

484 Persons involved in contravening civil penalty

provision........................................................................434

485 Recovery of a pecuniary penalty ...................................435

Subdivision B—Civil penalty proceedings and criminal

proceedings 435

486A Civil proceedings after criminal proceedings ................435

486B Criminal proceedings during civil proceedings .............435

486C Criminal proceedings after civil proceedings ................435

486D Evidence given in proceedings for penalty not

admissible in criminal proceedings ...............................436

Subdivision C—Enforceable undertakings relating to

contraventions of Part 3 civil penalty provisions 436

486DA Acceptance of undertakings relating to

contraventions of Part 3 civil penalty provisions...........436

486DB Enforcement of undertakings ........................................437

Division 15A—Notices to produce or attend 438

486E Application of Division .................................................438

486F Minister may require person to provide

information etc. .............................................................438

486G Minister may require person to appear before

Minister .........................................................................439

486H Persons to whom notices may not be given ...................440

486J Self-incrimination..........................................................440

Division 16—Review of administrative decisions 442

487 Extended standing for judicial review ...........................442

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488 Applications on behalf of unincorporated

organisations .................................................................443

Division 17—Duty to provide accurate information 444

489 Providing false or misleading information to

obtain approval or permit ..............................................444

490 Providing false or misleading information in

response to a condition on an approval or permit ..........445

491 Providing false or misleading information to

authorised officer etc. ....................................................446

Division 18—Liability of executive officers for corporations 447

493 Who is an executive officer of a body corporate? ..........447

494 Civil penalties for executive officers of bodies

corporate........................................................................447

495 Criminal liability of executive officers of bodies

corporate........................................................................448

496 Did an executive officer take reasonable steps to

prevent contravention? ..................................................449

Division 18A—Liability of landholders for other people’s actions 451

496A Who is a landholder? ....................................................451

496B Civil penalties for landholders.......................................451

496C Criminal liability of landholders....................................451

496D Did a landholder take reasonable steps to prevent a

contravention? ...............................................................453

Division 19—Infringement notices 454

497 Infringement notices......................................................454

Division 20—Publicising contraventions 455

498 Minister may publicise contraventions of this Act

or the regulations...........................................................455

Division 21—Immunity of officers 456

498A Immunity of officers and assistants ...............................456

Division 22—Conduct of directors, employees and agents 457

498B Conduct of directors, employees and agents .................457

Part 18—Remedying environmental damage 460 499 Commonwealth powers to remedy environmental

damage ..........................................................................460

500 Liability for loss or damage caused by

contravention.................................................................461

501 Other powers not affected .............................................462

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Part 19—Organisations 463

Division 1—Establishment and functions of the Threatened

Species Scientific Committee 463

502 Establishment ................................................................463

503 Functions of the Committee ..........................................463

Division 2A—Indigenous Advisory Committee 464

505A Establishment ................................................................464

505B Functions of the Committee ..........................................464

Division 2B—Establishment and functions of the Independent

Expert Scientific Committee on Coal Seam Gas and

Large Coal Mining Development 465

505C Establishment ................................................................465

505D Functions of the Committee ..........................................466

505E Declared States and Territories......................................467

Division 3—Members and procedures of Committees 469

506 Application....................................................................469

507 Terms and conditions ....................................................469

508 Remuneration ................................................................469

509 Termination of appointments of Committee

members ........................................................................470

510 Procedure of a Committee .............................................471

Division 4—Advisory committees 473

511 Minister may establish advisory committees .................473

512 Appointments ................................................................473

513 Members of advisory committees..................................473

514 Committee procedure ....................................................474

Division 5—Director of National Parks 475

Subdivision A—Establishment, functions and powers 475

514A Continuation..................................................................475

514B Functions.......................................................................475

514C Powers ...........................................................................476

514D Requirements relating to functions and powers.............477

Subdivision B—Constitution of Director of National Parks 478

514E Constitution ...................................................................478

514F Appointment..................................................................478

514G Acting appointments......................................................479

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Subdivision C—Terms and conditions of appointment 479

514H Term of office................................................................479

514J Remuneration ................................................................479

514K Outside employment......................................................480

514M Leave of absence ...........................................................480

514N Resignation....................................................................480

514P Termination ...................................................................480

514Q Other terms and conditions............................................481

Subdivision D—Australian National Parks Fund 481

514R Australian National Parks Fund.....................................481

514S Payments to Australian National Parks Fund ................481

514T Application of money....................................................482

Subdivision E—Accountability 482

514U Application of Public Governance, Performance

and Accountability Act 2013 .........................................482

514V Extra matters to be included in annual report ................483

Subdivision F—Miscellaneous 483

514W Exemption from taxation...............................................483

514X Changes in office of Director ........................................483

Part 19A—Reconsideration of fees 484 514Y Applications for reconsideration of fee .........................484

514YA Reconsideration of fee...................................................484

514YB Deadline for reconsideration .........................................485

Part 20—Delegation 486 515 Delegation .....................................................................486

515AA Delegation by Minister in relation to Great Barrier

Reef Marine Park ..........................................................486

515AB Delegation by Secretary in relation to Great

Barrier Reef Marine Park ..............................................487

Part 20A—Publication of information on the internet 489 515A Publication of information on the internet .....................489

Part 21—Reporting 490

Division 1—Annual reports 490

516 Annual report on operation of Act.................................490

516A Annual reports to deal with environmental matters .......490

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Division 2—State of the environment reports 492

516B State of the environment reports....................................492

Chapter 7—Miscellaneous 493

Part 22—Miscellaneous 493 517 Determinations of species..............................................493

517A Exemption for activities that might harm particular

species introduced into particular areas .........................493

518 Non-compliance with time limits ..................................496

519 Compensation for acquisition of property .....................496

520 Regulations....................................................................497

520A Statements about the application of the Act ..................499

521 Fees and charges must not be taxes ...............................499

521A Time does not run if all or part of fee remains

unpaid............................................................................500

522 Financial assistance etc. to be paid out of

appropriated money.......................................................500

522A Review of operation of Act ...........................................501

Chapter 8—Definitions 502

Part 23—Definitions 502

Division 1—Some definitions relating to particular topics 502

Subdivision A—Actions 502

523 Actions...........................................................................502

524 Things that are not actions ............................................502

524A Provision of grant funding is not an action....................503

Subdivision B—Areas 503

525 Commonwealth areas ....................................................503

Subdivision C—Entities 505

526 Subsidiaries of bodies corporate....................................505

Subdivision D—Criminal law 505

527 Convictions ...................................................................505

Subdivision E—Specimens 505

527A Specimens .....................................................................505

527B Breeding in captivity .....................................................507

527C Artificial propagation ....................................................507

527D Things represented to be CITES specimens ..................507

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Subdivision F—Impacts 508

527E Meaning of impact ........................................................508

Division 2—General list of definitions 510

528 Definitions.....................................................................510

Schedule 1—Provisions relating to detention of

suspected foreign offenders 538

Part 1—Preliminary 538

Division 1—Objects of this Schedule 538

1 Main objects of this Schedule........................................538

Division 2—Definitions 540

2 Definitions.....................................................................540

Division 3—Appointment etc. of detention officers 541

3 Minister may appoint persons to be detention

officers ..........................................................................541

4 Detention officers subject to directions .........................541

5 Detention officer etc. not liable to certain actions .........541

Division 4—Approval of authorised officers and detention

officers 543

6 The Secretary may approve authorised officers and

detention officers...........................................................543

7 Persons who are authorised officers for purposes

of the Migration Act 1958 are taken to be

approved for this Schedule ............................................543

Part 2—Detaining suspected foreign offenders 546

Division 1—Initial detention by an authorised officer 546

8 Power to detain..............................................................546

9 Relationship with Part IC of the Crimes Act 1914.........546

Division 2—Continued detention by a detention officer 547

10 Detention officer may detain person already

detained by authorised officer .......................................547

Division 3—Detention on behalf of an authorised officer or

detention officer 548

11 Detention on behalf of an authorised officer or

detention officer ............................................................548

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Division 4—Moving detainees 549

12 Power to move detainees ...............................................549

Division 5—End of detention 550

13 End of detention ............................................................550

Division 6—Offence of escaping from detention 551

14 Escape from detention ...................................................551

Part 3—Searching and screening detainees and screening their

visitors 552

Division 1—Searches of detainees 552

15 Searches of detainees.....................................................552

Division 2—Screening of detainees 554

16 Power to conduct a screening procedure .......................554

Division 3—Strip searches of detainees 556

17 Power to conduct a strip search .....................................556

18 Rules for conducting a strip search................................558

Division 4—Keeping of things found by screening or strip search

of detainees 561

19 Possession and retention of certain things obtained

during a screening procedure or strip search .................561

20 Approved officer may apply for a thing to be

retained for a further period...........................................562

21 Magistrate may order that thing be retained ..................563

Division 5—Screening detainees’ visitors 564

22 Powers concerning entry to premises where

detainee is detained .......................................................564

Division 6—Law applying to detainee in State or Territory

prison etc. 566

23 Detainees held in State or Territory prisons or

remand centres...............................................................566

Part 4—Detainees’ rights to facilities for obtaining legal advice

etc. 567 24 Detainee may have access to certain advice,

facilities etc. ..................................................................567

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Part 5—Identifying detainees 568

Division 1—Preliminary 568

25 Definitions.....................................................................568

26 Meaning of personal identifier ......................................568

27 Limiting the types of identification tests that

approved officers may carry out ....................................570

Division 2—Identification of detainees 571

Subdivision A—Provision of personal identifiers 571

28 Detainees must provide personal identifiers ..................571

29 Approved officers must require and carry out

identification tests .........................................................572

30 Information to be provided before carrying out

identification tests .........................................................573

Subdivision B—How identification tests are carried out 573

31 General rules for carrying out identification tests..........573

32 Use of force in carrying out identification tests.............574

33 Identification tests not to be carried out in cruel,

inhuman or degrading manner etc. ................................576

34 Approved officer may get help to carry out

identification tests .........................................................576

35 Identification tests to be carried out by approved

officer of same sex as non-citizen .................................576

36 Independent person to be present ..................................577

37 Recording of identification tests....................................577

38 Retesting........................................................................577

Subdivision C—Obligations relating to video recordings of

identification tests 580

39 Definitions.....................................................................580

40 Accessing video recordings ...........................................581

41 Authorising access to video recordings .........................581

42 Providing video recordings............................................582

43 Unauthorised modification of video recordings ............584

44 Unauthorised impairment of video recordings ..............584

45 Meanings of unauthorised modification and

unauthorised impairment etc. ........................................584

46 Destroying video recordings..........................................585

Division 3—Identification of minors and incapable persons 586

47 Minors ...........................................................................586

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48 Incapable persons ..........................................................586

Division 4—Obligations relating to detainees’ identifying

information 588

Subdivision A—Preliminary 588

49 Definitions.....................................................................588

50 Application....................................................................589

Subdivision B—Accessing identifying information 589

51 Accessing identifying information ................................589

52 Authorising access to identifying information...............590

Subdivision C—Disclosing identifying information 591

53 Disclosing identifying information................................591

54 Authorising disclosure of identifying information

to foreign countries etc. .................................................593

Subdivision D—Modifying and impairing identifying information 594

55 Unauthorised modification of identifying

information....................................................................594

56 Unauthorised impairment of identifying

information....................................................................594

57 Meanings of unauthorised modification and

unauthorised impairment etc. ........................................595

Subdivision E—Retaining identifying information 595

58 Identifying information may be indefinitely

retained..........................................................................595

Part 6—Disclosure of detainees’ personal information 597 59 Disclosure of detainees’ personal information ..............597

Endnotes 598

Endnote 1—About the endnotes 598

Endnote 2—Abbreviation key 600

Endnote 3—Legislation history 601

Endnote 4—Amendment history 610

Endnote 5—Editorial changes 653

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plans Division 5

Section 266B

Chapter 5—Conservation of biodiversity and

heritage

Part 13—Species and communities

Division 5—Conservation advice, recovery plans, threat

abatement plans and wildlife conservation plans

Subdivision AA—Approved conservation advice

266B Approved conservation advice for listed threatened species

and listed threatened ecological communities

Minister to ensure there is approved conservation advice

(1) The Minister must ensure that there is approved conservation

advice for each listed threatened species (except one that is extinct

or that is a conservation dependent species), and each listed

threatened ecological community, at all times while the species or

community continues to be listed.

(2) For this purpose, approved conservation advice is a document,

approved in writing by the Minister (and as changed from time to

time in accordance with subsection (3)), that contains:

(a) a statement that sets out:

(i) the grounds on which the species or community is

eligible to be included in the category in which it is

listed; and

(ii) the main factors that are the cause of it being so eligible;

and

(b) either:

(i) information about what could appropriately be done to

stop the decline of, or support the recovery of, the

species or community; or

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(ii) a statement to the effect that there is nothing that could

appropriately be done to stop the decline of, or support

the recovery of, the species or community.

Changing approved conservation advice

(3) The Minister may, in writing, approve changes to approved

conservation advice.

Consultation with Scientific Committee

(4) If the Minister proposes to approve a document as approved

conservation advice, the Minister must consult the Scientific

Committee about the document, unless its content is substantially

the same as material that the Committee has previously provided to

the Minister.

(5) If the Minister proposes to approve a change to approved

conservation advice, the Minister must consult the Scientific

Committee about the change, unless the change is substantially the

same as a change that the Scientific Committee has previously

advised the Minister should be made.

Publication requirements

(6) If the Minister approves a document as approved conservation

advice, the Minister must:

(a) within 10 days of the approval of the document, publish the

approved conservation advice on the internet; and

(b) comply with any other publication requirements of the

regulations.

(7) If the Minister approves a change to approved conservation advice,

the Minister must:

(a) within 10 days of the approval of the change, publish the

advice, as changed, on the internet; and

(b) comply with any other publication requirements of the

regulations.

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Section 267

Instruments of approval are not legislative instruments

(8) An instrument of approval under subsection (2) or (3) is not a

legislative instrument.

Subdivision A—Recovery plans and threat abatement plans

267 Simplified outline of this Subdivision

The following is a simplified outline of this Subdivision:

Recovery plans for listed threatened species and ecological

communities and threat abatement plans for key threatening

processes bind the Commonwealth and Commonwealth agencies.

The Minister need ensure that a recovery plan is in force for a

listed threatened species or ecological community only if the

Minister decides to have a recovery plan. The Minister must decide

whether to have a recovery plan for the species or community

within 90 days after it becomes listed. The Minister may, at any

other time, decide whether to have such a plan.

The Minister need ensure a threat abatement plan is in force for a

key threatening process only if the Minister decides that a plan is a

feasible, effective and efficient way of abating the process. The

Minister must consult before making such a decision.

A recovery plan or threat abatement plan can be made by the

Minister alone or jointly with relevant States and Territories, or the

Minister can adopt a State or Territory plan. There must be public

consultation and advice from the Scientific Committee about the

plan, regardless of how it is made or adopted.

268 Compliance with recovery plans and threat abatement plans

A Commonwealth agency must not take any action that

contravenes a recovery plan or a threat abatement plan.

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269 Implementing recovery and threat abatement plans

(1) Subject to subsection (2), the Commonwealth must implement a

recovery plan or threat abatement plan to the extent to which it

applies in Commonwealth areas.

(2) If a recovery plan or a threat abatement plan applies outside

Commonwealth areas in a particular State or self-governing

Territory, the Commonwealth must seek the co-operation of the

State or Territory with a view to implementing the plan jointly with

the State or Territory to the extent to which the plan applies in the

State or Territory.

269AA Decision whether to have a recovery plan

Minister has an initial obligation and then a discretion

(1) The Minister must decide whether to have a recovery plan for a

listed threatened species (except one that is extinct or that is a

conservation dependent species) or a listed threatened ecological

community within 90 days after the species or community becomes

listed. The Minister may, at any other time, decide whether to have

a recovery plan for the species or community.

(2) In this section:

(a) the decision that the Minister is required by subsection (1) to

make in relation to the species or community within the 90

day period referred to in that subsection is the initial

recovery plan decision; and

(b) any subsequent decision that the Minister makes under

subsection (1) in relation to the species or community is a

subsequent recovery plan decision.

Making the initial recovery plan decision

(3) In making the initial recovery plan decision, the Minister must

have regard to the recommendation (the initial recommendation)

made by the Scientific Committee as mentioned in

paragraph 189(1B)(c) in relation to the species or community.

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Section 269AA

Making a subsequent recovery plan decision (unless subsection (5)

applies)

(4) In making a subsequent recovery plan decision in relation to the

species or community, other than a decision to which

subsection (5) applies:

(a) the Minister must have regard to the initial recommendation

in relation to the species or community; and

(b) the Minister must have regard to any advice subsequently

provided to the Minister by the Scientific Committee about

whether there should be a recovery plan for the species or

community.

Changing from a decision to have a recovery plan to a decision not

to have a recovery plan—additional requirements

(5) If, at a time when a decision to have a recovery plan for the species

or community is in force (whether or not the plan has yet been

made), the Minister is proposing to make a subsequent recovery

plan decision that there should not be a recovery plan for the

species or community:

(a) the Minister must ask the Scientific Committee for advice

relating to the proposed decision; and

(b) the Minister must publish a notice inviting comments on the

proposed decision in accordance with subsection (7); and

(c) the Minister must, in deciding whether to make the proposed

decision, take account of:

(i) any advice provided by the Scientific Committee in

relation to the proposed decision; and

(ii) subject to subsection (6), the comments the Minister

receives in response to the notice referred to in

paragraph (b).

(6) The Minister is not required to take a comment referred to in

subparagraph (5)(c)(ii) into account if:

(a) the Minister does not receive the comment until after the

cut-off date specified in the notice under paragraph (5)(b); or

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(b) the Minister considers that regulations referred to in

paragraph (8)(b) have not been complied with in relation to

the comment.

(7) The notice referred to in paragraph (5)(b):

(a) must be published in accordance with the regulations referred

to in paragraph (8)(a); and

(b) must set out the decision the Minister proposed to make; and

(c) must invite people to make comments, to the Minister, about

the proposed decision; and

(d) must specify the date (the cut-off date) by which comments

must be received, which must be at least 30 business days

after the notice has been published as required by

paragraph (a); and

(e) must specify, or refer to, the manner and form requirements

that, under regulations referred to in paragraph (8)(b), apply

to making comments; and

(f) may also include any other information that the Minister

considers appropriate.

(8) The regulations must provide for the following:

(a) how a notice referred to in paragraph (5)(b) is to be

published;

(b) the manner and form for making comments.

General publication requirements

(9) The Minister must publish the following:

(a) the Minister’s initial recovery plan decision, and the reasons

for it;

(b) each subsequent recovery plan decision (if any), and the

reasons for it.

The regulations may specify how the publication is to be made.

Subject to any such regulations, the publication must be made in a

way that the Minister considers appropriate.

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Section 269A

Note: This subsection must be complied with, even if the Minister has

already published notice of the proposed decision in accordance with

subsections (5) and (7).

Decisions not legislative instruments

(10) An instrument making a decision under subsection (1) is not a

legislative instrument.

269A Making or adopting a recovery plan

Application

(1) This section applies only if the Minister’s most recent decision

under section 269AA in relation to a listed threatened species

(except one that is extinct or that is a conservation dependent

species) or a listed threatened ecological community is to have a

recovery plan for the species or community.

Note: Subsection 273(1) sets a deadline of 3 years from the decision for

ensuring that a recovery plan is in force for the species or community.

Subsection 273(2) allows that period to be extended.

Making a plan

(2) The Minister may make a written recovery plan for the purposes of

the protection, conservation and management of:

(a) a listed threatened species (except one that is extinct or is a

conservation dependent species); or

(b) a listed threatened ecological community.

Making a plan jointly with a State or Territory

(3) The Minister may make a written recovery plan for the purposes of

the protection, conservation and management of a listed threatened

species (except one that is extinct or is a conservation dependent

species) or a listed threatened ecological community jointly with

one or more of the States and self-governing Territories in which

the species or community occurs, or with agencies of one or more

of those States and Territories.

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Content of a plan

(4) The Minister must not make a recovery plan under subsection (2)

or (3) unless the plan meets the requirements of section 270.

Prerequisites to making a plan

(5) Before making a recovery plan under subsection (2) or (3) for a

listed threatened species or listed threatened ecological community,

the Minister must:

(a) consult the appropriate Minister of each State and

self-governing Territory in which the species or community

occurs, and in which actions that the plan would provide for

would occur, with a view to:

(i) taking the views of each of those States and Territories

into account in making the plan under subsection (2); or

(ii) making the plan jointly under subsection (3);

unless the species or community occurs only in a

Commonwealth area; and

(b) consider the advice of the Scientific Committee given under

section 274; and

(c) consult about the plan and consider comments in accordance

with sections 275 and 276.

Limits on making a plan

(6) The Minister must not make a recovery plan under subsection (2)

for a species or ecological community that occurs wholly or partly

outside a Commonwealth area unless the Minister is satisfied that it

is not reasonably practicable, within the period of 3 years referred

to in subsection 273(1), to make the plan under subsection (3) of

this section with each State or Territory:

(a) in which the species or community occurs; and

(b) in which actions that the plan would provide for would occur,

if the plan were made under subsection (2) of this section.

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Section 270

Adopting a State or Territory plan

(7) The Minister may, by instrument in writing, adopt as a recovery

plan a plan made by a State, a self-governing Territory or an

agency of a State or self-governing Territory (whether or not the

plan is in force in the State or Territory). The Minister may adopt

the plan with such modifications as are specified in the instrument.

This subsection has effect subject to section 277.

Note: Section 277 requires that:

(a) an adopted plan have the content required for a recovery plan by section 270; and

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

(c) the Minister consult the Scientific Committee about the content of the plan.

Effect of adopting a plan

(8) A plan adopted under subsection (7) has effect as if it had been

made under subsection (2) (whether it was adopted with

modifications or not).

270 Content of recovery plans

(1) A recovery plan must provide for the research and management

actions necessary to stop the decline of, and support the recovery

of, the listed threatened species or listed threatened ecological

community concerned so that its chances of long-term survival in

nature are maximised.

(2) In particular, a recovery plan must (subject to subsection (2A)):

(a) state the objectives to be achieved (for example, removing a

species or community from a list, or indefinite protection of

existing populations of a species or community); and

(b) state criteria against which achievement of the objectives is

to be measured (for example, a specified number and

distribution of viable populations of a species or community,

or the abatement of threats to a species or community); and

(c) specify the actions needed to achieve the objectives; and

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(ca) identify threats to the species or community; and

(d) identify the habitats that are critical to the survival of the

species or community concerned and the actions needed to

protect those habitats; and

(e) identify any populations of the species or community

concerned that are under particular pressure of survival and

the actions needed to protect those populations; and

(f) state the estimated duration and cost of the recovery process;

and

(g) identify:

(i) interests that will be affected by the plan’s

implementation; and

(ii) organisations or persons who will be involved in

evaluating the performance of the recovery plan; and

(h) specify any major benefits to native species or ecological

communities (other than those to which the plan relates) that

will be affected by the plan’s implementation; and

(j) meet prescribed criteria (if any) and contain provisions of a

prescribed kind (if any).

(2A) A recovery plan need only address the matters mentioned in

paragraphs (2)(d), (e), (f), (g) and (h) to the extent to which it is

practicable to do so.

(3) In making a recovery plan, regard must be had to:

(a) the objects of this Act; and

(b) the most efficient and effective use of the resources that are

allocated for the conservation of species and ecological

communities; and

(c) minimising any significant adverse social and economic

impacts, consistently with the principles of ecologically

sustainable development; and

(d) meeting Australia’s obligations under international

agreements between Australia and one or more countries

relevant to the species or ecological community to which the

plan relates; and

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Section 270A

(e) the role and interests of indigenous people in the

conservation of Australia’s biodiversity.

270A Decision whether to have a threat abatement plan

Decision

(1) The Minister may at any time decide whether to have a threat

abatement plan for a threatening process in the list of key

threatening processes established under section 183. The Minister

must do so:

(a) within 90 days of the threatening process being included in

the list; and

(b) within 5 years of the last decision whether to have a threat

abatement plan for the process, if that decision was not to

have a threat abatement plan for the process.

Basis for decision

(2) The Minister must decide to have a threat abatement plan for the

process if he or she believes that having and implementing a threat

abatement plan is a feasible, effective and efficient way to abate

the process. The Minister must decide not to have a threat

abatement plan if he or she does not believe that.

Consultation before making a decision

(3) Before making a decision under this section, the Minister must:

(a) request the Scientific Committee to give advice within a

specified period; and

(b) take reasonable steps to request any Commonwealth agency,

any State, any self-governing Territory, and any agency of a

State or self-governing Territory, that would be affected by

or interested in abatement of the process to give advice

within a specified period;

on the feasibility, effectiveness or efficiency of having and

implementing a threat abatement plan to abate the process.

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Consulting others

(4) Subsection (3) does not prevent the Minister from requesting any

other person or body to give advice within a specified period on the

feasibility, effectiveness or efficiency of having and implementing

a threat abatement plan to abate the process.

Request may be made before listing

(5) A request for advice on the feasibility, effectiveness or efficiency

of having and implementing a threat abatement plan to abate the

process may be made before or after the process is included in the

list of key threatening processes established under section 183.

Time for giving advice

(6) The Minister must not make a decision whether to have a threat

abatement plan for the process before the end of the period within

which he or she has requested a person or body to give advice on

the feasibility, effectiveness or efficiency of having and

implementing a threat abatement plan to abate the process.

Considering views expressed in consultation

(7) When the Minister is making a decision under this section, he or

she must consider the advice that a person or body gave on request

within the period specified in the request.

Publishing decision and reasons

(8) The Minister must publish in accordance with the regulations (if

any):

(a) a decision whether or not to have a threat abatement plan for

a key threatening process; and

(b) the Minister’s reasons for the decision.

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Section 270B

Special rules for processes included in original list

(9) Subsections (3), (4), (5), (6) and (7) do not apply in relation to a

decision about a process included in the list under section 183 as

first established.

270B Making or adopting a threat abatement plan

Application

(1) This section applies only if the Minister’s most recent decision

under section 270A in relation to a key threatening process is to

have a threat abatement plan for the process.

Note: Section 273 sets a deadline of 3 years from the decision for ensuring

that a threat abatement plan is in force for the process.

Making a plan

(2) The Minister may make a written threat abatement plan for the

purposes of reducing the effect of the process.

Making a plan jointly with a State or Territory

(3) The Minister may make a written threat abatement plan for the

purposes of reducing the effect of the process, jointly with the

States and self-governing Territories in which the process occurs or

with agencies of those States and Territories.

Content of a plan

(4) The Minister must not make a threat abatement plan under

subsection (2) or (3) unless the plan meets the requirements of

section 271.

Prerequisites to making a plan

(5) Before making a threat abatement plan for the process under

subsection (2) or (3), the Minister must:

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(a) consult the appropriate Minister of each State and

self-governing Territory in which the process occurs, with a

view to:

(i) taking the views of each of those States and Territories

into account in making the plan under subsection (2); or

(ii) making the plan jointly under subsection (3);

unless the process occurs only in a Commonwealth area; and

(b) consider the advice of the Scientific Committee given under

section 274; and

(c) consult about the plan and consider comments in accordance

with sections 275 and 276.

Limits on making a plan

(6) The Minister must not make a threat abatement plan under

subsection (2) for a process that occurs wholly or partly outside a

Commonwealth area unless the Minister is satisfied that it is not

reasonably practicable to make the plan:

(a) jointly with each of the States and self-governing Territories

in which the process occurs; and

(b) within 3 years of the decision to have the plan.

Adopting a State or Territory plan

(7) The Minister may, by instrument in writing, adopt as a threat

abatement plan for the process a plan made by a State, a

self-governing Territory or an agency of a State or self-governing

Territory (whether or not the plan is in force in the State or

Territory). The Minister may adopt the plan with such

modifications as are specified in the instrument. This subsection

has effect subject to section 277.

Note: Section 277 requires that:

(a) an adopted plan have the content required for a threat abatement plan by section 271; and

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

(c) the Minister consult the Scientific Committee about the content of the plan.

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Effect of adopting a plan

(8) A plan adopted under subsection (7) has effect as if it had been

made under subsection (2), whether it was adopted with

modifications or not.

271 Content of threat abatement plans

(1) A threat abatement plan must provide for the research,

management and other actions necessary to reduce the key

threatening process concerned to an acceptable level in order to

maximise the chances of the long-term survival in nature of native

species and ecological communities affected by the process.

(2) In particular, a threat abatement plan must:

(a) state the objectives to be achieved; and

(b) state criteria against which achievement of the objectives is

to be measured; and

(c) specify the actions needed to achieve the objectives; and

(g) meet prescribed criteria (if any) and contain provisions of a

prescribed kind (if any).

(3) In making a threat abatement plan, regard must be had to:

(a) the objects of this Act; and

(b) the most efficient and effective use of the resources that are

allocated for the conservation of species and ecological

communities; and

(c) minimising any significant adverse social and economic

impacts consistently with the principles of ecologically

sustainable development; and

(d) meeting Australia’s obligations under international

agreements between Australia and one or more countries

relevant to the species or ecological community threatened

by the key threatening process that is the subject of the plan;

and

(e) the role and interests of indigenous people in the

conservation of Australia’s biodiversity.

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(4) A threat abatement plan may:

(a) state the estimated duration and cost of the threat abatement

process; and

(b) identify organisations or persons who will be involved in

evaluating the performance of the threat abatement plan; and

(c) specify any major ecological matters (other than the species

or communities threatened by the key threatening process

that is the subject of the plan) that will be affected by the

plan’s implementation.

(5) Subsection (4) does not limit the matters that a threat abatement

plan may include.

272 Eradication of non-native species

If:

(a) the actions specified under paragraph 270(2)(c) in a recovery

plan, or under paragraph 271(2)(c) in a threat abatement plan,

include the eradication of a non-native species; and

(b) the species is threatened in a country in which its native

habitat occurs;

the recovery plan, or threat abatement plan, must require the

Commonwealth to offer to provide stock of the species to that

country before the eradication proceeds.

273 Ensuring plans are in force

When a plan comes into force

(1A) A recovery plan or a threat abatement plan comes into force on the

day on which it is made or adopted, or on a later day specified by

the Minister in writing.

Deadline for recovery plan

(1) Subject to subsection (2), a recovery plan for a listed threatened

species or a listed threatened ecological community must be made

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and in force within 3 years of the decision under section 269AA to

have the plan.

(2) The Minister may, in writing, extend the period within which a

recovery plan must be made. Only one extension can be granted for

the making of the plan, and the period of the extension must not be

more than 3 years.

Ensuring recovery plan is in force

(3) Once the first recovery plan for a listed threatened species or a

listed threatened ecological community is in force, the Minister

must exercise his or her powers under this Subdivision to ensure

that a recovery plan is in force for the species or community until

the Minister decides under section 269AA not to have a recovery

plan for the species or community.

Note: The Minister may revoke a recovery plan for a listed threatened

species or a listed threatened ecological community if the Minister

decides under section 269AA not to have a recovery plan for the

species or community. See section 283A.

Deadline for threat abatement plan

(4) A threat abatement plan for a key threatening process must be

made and in force within 3 years of the decision under

section 270A to have the plan.

Ensuring threat abatement plan is in force

(5) Once the first threat abatement plan for a key threatening process is

in force, the Minister must exercise his or her powers under this

Subdivision to ensure that a threat abatement plan is in force for

the process until the Minister decides under section 270A not to

have a threat abatement plan for the process.

Note: The Minister may revoke a threat abatement plan for a key threatening

process if the Minister decides under section 270A not to have a threat

abatement plan for the process. See section 283A.

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274 Scientific Committee to advise on plans

(1) The Minister must obtain and consider the advice of the Scientific

Committee on:

(a) the content of recovery and threat abatement plans; and

(b) the times within which, and the order in which, such plans

should be made.

(2) In giving advice about a recovery plan, the Scientific Committee

must take into account the following matters:

(a) the degree of threat to the survival in nature of the species or

ecological community in question;

(b) the potential for the species or community to recover;

(c) the genetic distinctiveness of the species or community;

(d) the importance of the species or community to the

ecosystem;

(e) the value to humanity of the species or community;

(f) the efficient and effective use of the resources allocated to

the conservation of species and ecological communities.

(3) In giving advice about a threat abatement plan, the Scientific

Committee must take into account the following matters:

(a) the degree of threat that the key threatening process in

question poses to the survival in nature of species and

ecological communities;

(b) the potential of species and ecological communities so

threatened to recover;

(c) the efficient and effective use of the resources allocated to

the conservation of species and ecological communities.

275 Consultation on plans

(1) Before making a recovery plan or threat abatement plan under this

Subdivision, the Minister must:

(a) take reasonable steps to ensure that copies of the proposed

plan are available for purchase, for a reasonable price, at

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Section 276

prescribed places in each State and self-governing territory;

and

(b) give a copy of it, together with a notice of a kind referred to

in subsection (2), to the Scientific Committee; and

(c) cause the notice to be published:

(i) in the Gazette; and

(ii) in a daily newspaper that circulates generally in each

State, and self-governing Territory, in which the

relevant listed threatened native species, listed

threatened ecological community or key threatening

process occurs; and

(iii) in any other way required by the regulations (if any).

(2) The notice must:

(a) specify the places where copies of the proposed plan may be

purchased; and

(b) invite persons to make written comments about the proposed

plan; and

(c) specify:

(i) an address for lodgment of comments; and

(ii) a day by which comments must be made.

(3) The day specified must not be a day occurring within 3 months

after the notice is published in the Gazette.

276 Consideration of comments

The Minister:

(a) must, in accordance with the regulations (if any), consider all

comments on a proposed recovery plan or threat abatement

plan made in response to an invitation under section 275; and

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

277 Adoption of State plans

(1) The Minister must not adopt a plan as a recovery plan or a threat

abatement plan under this Subdivision unless:

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(a) the Minister is satisfied that an appropriate level of

consultation has been undertaken in making the plan; and

(b) the plan meets the requirements of section 270 or 271, as the

case requires.

(2) Before adopting a plan, the Minister must obtain and consider

advice from the Scientific Committee on the content of the plan.

278 Publication of plans

(1) As soon as practicable after the Minister makes or adopts a

recovery plan or a threat abatement plan under this Subdivision,

the Minister must:

(a) make copies of the plan available for purchase, for a

reasonable price, at a prescribed place in each State and

self-governing Territory; and

(b) give notice of the making or adopting of each such plan; and

(c) publish the notice:

(i) in the Gazette; and

(ii) in a daily newspaper that circulates generally in each

State, and self-governing Territory; and

(iii) in any other way required by the regulations (if any).

(2) The notice must:

(a) state that the Minister has made or adopted the plan; and

(b) specify the day on which the plan comes into force; and

(c) specify the places where copies of the plan may be

purchased.

279 Variation of plans by the Minister

(1) The Minister may, at any time, review a recovery plan or threat

abatement plan that has been made or adopted under this

Subdivision and consider whether a variation of it is necessary.

(2) Each plan must be reviewed by the Minister at intervals of not

longer than 5 years.

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(3) If the Minister considers that a variation of a plan is necessary, the

Minister may, subject to subsections (4), (5), (6) and (7), vary the

plan.

(4) The Minister must not vary a plan, unless the plan, as so varied,

continues to meet the requirements of section 270 or 271, as the

case requires.

(5) Before varying a plan, the Minister must obtain and consider

advice from the Scientific Committee on the content of the

variation.

(6) If the Minister has made a plan jointly with, or adopted a plan that

has been made by, a State or self-governing Territory, or an agency

of a State or self-governing Territory, the Minister must seek the

co-operation of that State or Territory, or that agency, with a view

to varying the plan.

(7) Sections 275, 276 and 278 apply to the variation of a plan in the

same way that those sections apply to the making of a recovery

plan or threat abatement plan.

280 Variation by a State or Territory of joint plans and plans

adopted by the Minister

(1) If a State or self-governing Territory varies a plan that:

(a) the Minister has made jointly with the State or self-governing

Territory, or an agency of the State or Territory; or

(b) has been adopted by the Minister as a recovery plan or a

threat abatement plan;

the variation is of no effect for the purposes of this Act unless it is

approved by the Minister.

(2) Before approving a variation, the Minister must obtain and

consider advice from the Scientific Committee on the content of

the variation.

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

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(a) an appropriate level of consultation was undertaken in

varying the plan; and

(b) the plan, as so varied, continues to meet the requirements of

section 270 or 271, as the case requires.

(4) If the Minister approves a variation of a plan, the plan has effect as

so varied on and after the date of the approval, or such later date as

the Minister determines in writing.

(5) Section 278 applies to the variation of a plan in the same way that

it applies to the making of a recovery plan or threat abatement

plan.

281 Commonwealth assistance

(1) The Commonwealth may give to a State or self-governing

Territory, or to an agency of a State or a self-governing Territory,

financial assistance, and any other assistance, to make or

implement a recovery plan or a threat abatement plan.

(2) The Commonwealth may give to a person (other than a State or a

self-governing Territory, or an agency of a State or Territory)

financial assistance, and any other assistance, to implement a

recovery plan or a threat abatement plan.

(3) The giving of assistance may be made subject to such conditions as

the Minister thinks fit. The Minister is to have regard to the advice

of the Scientific Committee under section 282 before determining

those conditions.

282 Scientific Committee to advise on assistance

(1) The Scientific Committee is to advise the Minister on the

conditions (if any) to which the giving of assistance under

section 281 should be subject.

(2) In giving advice about assistance for making or implementing a

recovery plan, the Scientific Committee must take into account the

following matters:

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(a) the degree of threat to the survival in nature of the species or

ecological community in question;

(b) the potential for the species or community to recover;

(c) the genetic distinctiveness of the species or community;

(d) the importance of the species or community to the

ecosystem;

(e) the value to humanity of the species or community;

(f) the efficient and effective use of the resources allocated to

the conservation of species and ecological communities.

(3) In giving advice about assistance for making or implementing a

threat abatement plan, the Scientific Committee must take into

account the following matters:

(a) the degree of threat that the key threatening process in

question poses to the survival in nature of species and

ecological communities;

(b) the potential of species and ecological communities so

threatened to recover;

(c) the efficient and effective use of the resources allocated to

the conservation of species and ecological communities.

283 Plans may cover more than one species etc.

(1) A recovery plan made or adopted under this Subdivision may deal

with one or more listed threatened species and/or one or more

listed ecological communities.

(2) A threat abatement plan made or adopted under this

Subdivision may deal with one or more key threatening processes.

283A Revoking a plan

(1) The Minister may, by legislative instrument:

(a) revoke a recovery plan for a listed threatened species or a

listed threatened ecological community if the Minister

decides under section 269AA not to have a recovery plan for

the species or community; or

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(b) revoke a threat abatement plan for a key threatening process

if the Minister decides under section 270A not to have a

threat abatement plan for the process.

(2) The Minister must publish in accordance with the regulations (if

any):

(a) the instrument revoking the plan; and

(b) the Minister’s reasons for revoking the plan.

284 Reports on preparation and implementation of plans

The Secretary must include in each annual report a report on the

making and adoption under this Subdivision of each recovery plan

and threat abatement plan during the year to which the report

relates.

Subdivision B—Wildlife conservation plans

285 Wildlife conservation plans

(1) Subject to this section, the Minister may make, by instrument in

writing, and implement a wildlife conservation plan for the

purposes of the protection, conservation and management of the

following:

(a) a listed migratory species that occurs in Australia or an

external Territory;

(b) a listed marine species that occurs in Australia or an external

Territory;

(c) a species of cetacean that occurs in the Australian Whale

Sanctuary;

(d) a conservation dependent species.

(2) The Minister must not make a wildlife conservation plan for a

species that is a listed threatened species (except a conservation

dependent species).

(3) Subject to section 292, the Minister may, by instrument in writing,

adopt a plan that has been made by a State or a self-governing

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Territory, or by an agency of a State or self-governing Territory, as

a wildlife conservation plan. The Minister may adopt a plan with

such modifications as are specified in the instrument.

(4) A plan, as modified and adopted under subsection (2), has effect as

if the plan had been made by the Minister under subsection (1).

(5) The Minister must seek the co-operation of the States and

self-governing Territories in which:

(a) a listed migratory species occurs; or

(b) a listed marine species occurs; or

(c) a species of cetacean occurs; or

(d) a conservation dependent species occurs;

with a view to making and implementing jointly with those States

and Territories, or agencies of those States or Territories, a joint

wildlife conservation plan unless the species occurs only in a

Commonwealth area.

(6) Before making a wildlife conservation plan under subsection (1) or

(5), the Minister must:

(a) consider the advice of the Scientific Committee given under

section 289; and

(b) consult about the plan in accordance with sections 290 and

291.

(7) A wildlife conservation plan comes into force on the day on which

it is made or adopted, or on such later day as the Minister specifies

in writing.

286 Acting in accordance with wildlife conservation plans

A Commonwealth agency must take all reasonable steps to act in

accordance with a wildlife conservation plan.

287 Content of wildlife conservation plans

(1) A wildlife conservation plan must provide for the research and

management actions necessary to support survival of the migratory

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species, marine species, species of cetacean or conservation

dependent species concerned.

(2) In particular, a wildlife conservation plan must:

(a) state the objectives to be achieved; and

(b) state criteria against which achievement of the objectives is

to be measured; and

(c) specify the actions needed to achieve the objectives; and

(d) identify the habitats of the species concerned and the actions

needed to protect those habitats; and

(e) identify:

(i) interests that will be affected by the plan’s

implementation; and

(ii) organisations or persons who will be involved in

evaluating the performance of the plan; and

(f) specify any major benefits to migratory species, marine

species, species of cetacean or conservation dependent

species (other than those to which the plan relates) that will

be affected by the plan’s implementation; and

(g) meet prescribed criteria (if any) and contain provisions of a

prescribed kind (if any).

(3) In making a wildlife conservation plan, regard must be had to:

(a) the objects of this Act; and

(b) the most efficient and effective use of the resources that are

allocated for the conservation of migratory species, marine

species, species of cetacean and conservation dependent

species; and

(c) minimising any significant adverse social and economic

impacts, consistently with the principles of ecologically

sustainable development; and

(d) meeting Australia’s obligations under international

agreements between Australia and one or more countries

relevant to the migratory species, marine species, species of

cetacean or conservation dependent species to which the plan

relates; and

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(e) the role and interests of indigenous people in the

conservation of Australia’s biodiversity.

288 Eradication of non-native species

If:

(a) the actions specified under section 287 in a wildlife

conservation plan include the eradication of a non-native

species; and

(b) the species is threatened in a country in which its native

habitat occurs;

the wildlife conservation plan must require the Commonwealth to

offer to provide stock of the species to that country before the

eradication proceeds.

289 Scientific Committee to advise on scheduling of plans

(1) The Minister may seek advice from the Scientific Committee on

the need for wildlife conservation plans and the order in which

they should be made.

(1A) The Scientific Committee may advise the Minister on its own

initiative to make a wildlife conservation plan for a specified

species described in subsection 285(1).

(2) In giving advice under subsection (1) or (1A), the Scientific

Committee must take into account the resources available for

making plans.

(3) Before making a plan, the Minister must obtain and consider

advice from the Scientific Committee on the content of the plan.

290 Consultation on plans

(1) Before making a wildlife conservation plan under

subsection 285(1) or (5), the Minister must:

(a) take reasonable steps to ensure that copies of the proposed

plan are available for purchase, for a reasonable price, at

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prescribed places in each State and self-governing Territory;

and

(b) give a copy of it, together with a notice of a kind referred to

in subsection (2), to the Scientific Committee; and

(c) cause the notice to be published:

(i) in the Gazette; and

(ii) in a daily newspaper that circulates generally in each

State, and self-governing Territory; and

(iii) in any other way required by the regulations (if any).

(2) The notice must:

(a) specify the places where copies of the proposed plan may be

purchased; and

(b) invite persons to make written comments about the proposed

plan; and

(c) specify:

(i) an address for lodgment of comments; and

(ii) a day by which comments must be made.

(3) The day specified must not be a day occurring within 3 months

after the notice is published in the Gazette.

291 Consideration of comments

The Minister:

(a) must, in accordance with the regulations (if any), consider all

comments on a proposed wildlife conservation plan made in

response to an invitation under section 290; and

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

292 Adoption of State plans

(1) The Minister must not adopt a plan as a wildlife conservation plan

under subsection 285(3) unless:

(a) the Minister is satisfied that an appropriate level of

consultation has been undertaken in making the plan; and

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(b) the plan meets the requirements of section 287.

(2) Before adopting a plan, the Minister must obtain and consider

advice from the Scientific Committee on the content of the plan.

293 Publication, review and variation of plans

(1) As soon as practicable after the Minister makes or adopts a wildlife

conservation plan under section 285, the Minister must:

(a) make copies of the plan available for purchase, for a

reasonable price, at a prescribed place in each State and

self-governing Territory; and

(b) give notice of the making or adoption of each such plan; and

(c) publish the notice:

(i) in the Gazette; and

(ii) in a daily newspaper that circulates generally in each

State, and self-governing Territory; and

(iii) in any other way required by the regulations (if any).

(2) The notice must:

(a) state that the Minister has made or adopted the plan; and

(b) specify the day on which the plan comes into force; and

(c) specify the places where copies of the plan may be

purchased.

294 Variation of plans by the Minister

(1) The Minister may, at any time, review a wildlife conservation plan

that has been made or adopted under section 285 and consider

whether a variation of it is necessary.

(2) Each plan must be reviewed by the Minister at intervals of not

longer than 5 years.

(3) If the Minister considers that a variation of a plan is necessary, the

Minister may, subject to subsections (4), (5), (6) and (7) vary the

plan.

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Section 295

(4) The Minister must not vary a plan, unless the plan, as so varied,

continues to meet the requirements of section 287.

(5) Before varying a plan, the Minister must obtain and consider

advice from the Scientific Committee on the content of the

variation.

(6) If the Minister has made a plan jointly with, or adopted a plan that

has been made by, a State or self-governing Territory, or an agency

of a State or self-governing Territory, the Minister must seek the

co-operation of that State or Territory, or that agency, with a view

to varying the plan.

(7) Sections 290, 291 and 293 apply to the variation of a plan in the

same way that those sections apply to the making of a wildlife

conservation plan.

295 Variation by a State or Territory of joint plans and plans

adopted by the Minister

(1) If a State or self-governing Territory varies a plan that:

(a) the Minister has made jointly with the State or self-governing

Territory, or an agency of the State or Territory; or

(b) has been adopted by the Minister as a wildlife conservation

plan;

the variation is of no effect for the purposes of this Act unless it is

approved by the Minister.

(2) Before approving a variation, the Minister must obtain and

consider advice from the Scientific Committee on the content of

the variation.

(3) The Minister must not approve a variation under subsection (1)

unless satisfied:

(a) an appropriate level of consultation was undertaken in

varying the plan; and

(b) the plan, as so varied, continues to meet the requirements of

section 287.

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(4) If the Minister approves a variation of a plan, the plan has effect as

so varied on and after the date of the approval, or such later date as

the Minister determines in writing.

(5) Section 293 applies to the variation of a plan in the same way that

it applies to the making of a wildlife conservation plan.

296 Commonwealth assistance

(1) The Commonwealth may give to a State or self-governing

Territory, or to an agency of a State or a self-governing Territory,

financial assistance, and any other assistance, to make a wildlife

conservation plan.

(2) The Commonwealth may give to a person (other than a State or a

self-governing Territory, or an agency of a State or Territory)

financial assistance, and any other assistance, to implement a

wildlife conservation plan.

(3) The giving of assistance may be made subject to such conditions as

the Minister thinks fit.

297 Plans may cover more than one species etc.

A wildlife conservation plan made or adopted under this

Subdivision may deal with all or any of the following:

(a) one or more listed migratory species;

(b) one or more listed marine species;

(c) one or more species of cetacean;

(d) one or more conservation dependent species.

298 Reports on preparation and implementation of plans

The Secretary must include in each annual report a report on the

making and adoption under section 285 of each wildlife

conservation plan during the year to which the report relates.

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Section 299

Subdivision C—Miscellaneous

299 Wildlife conservation plans cease to have effect

If:

(a) a wildlife conservation plan is in force for all or any of the

following:

(i) a listed migratory species;

(ii) a listed marine species;

(iii) a species of cetacean; and

(b) the species becomes a listed threatened species (except a

conservation dependent species);

the wildlife conservation plan ceases to have effect in relation to

the species on and from the day on which the species becomes a

listed threatened species as mentioned in paragraph (b).

300 Document may contain more than one plan

(1) All or any of the plans made under this Division may be included

in the same document.

(2) All or any of the plans adopted under this Division may be

included in the same instrument of adoption.

300A State and Territory laws not affected

Sections 269A, 270A, 270B, 273 and 285 do not exclude or limit

the concurrent operation of a law of a State or self-governing

Territory.

300B Assistance from the Scientific Committee

(1) The Minister may, at any time, ask the Scientific Committee to

provide the Minister with a statement, information or advice for the

purpose of assisting the Minister in the performance or exercise of

the Minister’s functions or powers under section 266B, 269AA or

270A.

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(2) The Scientific Committee may, at any time, provide the Minister

with a statement, information or advice for the purpose of assisting

the Minister in the performance or exercise of the Minister’s

functions or powers under section 266B, 269AA or 270A (whether

or not the Committee is acting in response to a request under

subsection (1) of this section).

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Division 6 Access to biological resources

Section 301

Division 6—Access to biological resources

301 Control of access to biological resources

(1) The regulations may provide for the control of access to biological

resources in Commonwealth areas.

(2) Without limiting subsection (1), the regulations may contain

provisions about all or any of the following:

(a) the equitable sharing of the benefits arising from the use of

biological resources in Commonwealth areas;

(b) the facilitation of access to such resources;

(c) the right to deny access to such resources;

(d) the granting of access to such resources and the terms and

conditions of such access.

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Section 301A

Division 6A—Control of non-native species

301A Regulations for control of non-native species

The regulations may:

(a) provide for the establishment and maintenance of a list of

species, other than native species, whose members:

(i) do or may threaten biodiversity in the Australian

jurisdiction; or

(ii) would be likely to threaten biodiversity in the Australian

jurisdiction if they were brought into the Australian

jurisdiction; and

(b) regulate or prohibit the bringing into the Australian

jurisdiction of members of a species included in the list

mentioned in paragraph (a); and

(c) regulate or prohibit trade in members of a species included in

the list mentioned in paragraph (a):

(i) between Australia and another country; or

(ii) between 2 States; or

(iii) between 2 Territories; or

(iv) between a State and a Territory; or

(v) by a constitutional corporation; and

(d) regulate and prohibit actions:

(i) involving or affecting members of a species included in

the list mentioned in paragraph (a); and

(ii) whose regulation or prohibition is appropriate and

adapted to give effect to Australia’s obligations under

an agreement with one or more other countries; and

(e) provide for the making and implementation of plans to

reduce, eliminate or prevent the impacts of members of

species included in the list mentioned in paragraph (a) on

biodiversity in the Australian jurisdiction.

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Division 7 Aid for conservation of species in foreign countries

Section 302

Division 7—Aid for conservation of species in foreign

countries

302 Aid for conservation of species in foreign countries

On behalf of the Commonwealth, the Minister may give financial

assistance to the governments of foreign countries and

organisations in foreign countries to help the recovery and

conservation, in those countries, of species covered by

international agreements to which Australia is a party.

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Miscellaneous Division 8

Section 303

Division 8—Miscellaneous

303 Regulations

(1) The regulations may make provision for the conservation of

biodiversity in Commonwealth areas.

(2) In particular, the regulations may prohibit or regulate actions

affecting a member of a native species in a Commonwealth area.

This does not limit subsection (1).

303A Exemptions from this Part

(1) A person proposing to take an action that would contravene a

provision of this Part apart from this section may apply in writing

to the Minister for an exemption from the provision.

(2) The Minister must decide within 20 business days of receiving the

application whether or not to grant the exemption.

(3) The Minister may, by written notice, exempt a specified person

from the application of a specified provision of this Part in relation

to a specified action.

(4) The Minister may do so only if he or she is satisfied that it is in the

national interest that the provision not apply in relation to the

person or the action.

(5) In determining the national interest, the Minister may consider

Australia’s defence or security or a national emergency. This does

not limit the matters the Minister may consider.

(6) A provision specified in the notice does not apply in relation to the

specified person or action on or after the day specified in the

notice. The Minister must not specify a day earlier than the day the

notice is made.

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Section 303AA

(7) Within 10 business days after making the notice, the Minister

must:

(a) publish a copy of the notice and his or her reasons for

granting the exemption in accordance with the regulations;

and

(b) give a copy of the notice to the person specified in the notice.

303AA Conditions relating to accreditation of plans, regimes and

policies

(1) This section applies to an accreditation of a plan, regime or policy

under section 208A, 222A, 245 or 265.

(2) The Minister may accredit a plan, regime or policy under that

section even though he or she considers that the plan, regime or

policy should be accredited only:

(a) during a particular period; or

(b) while certain circumstances exist; or

(c) while a certain condition is complied with.

In such a case, the instrument of accreditation is to specify the

period, circumstances or condition.

(3) If an accreditation specifies a particular period as mentioned in

subsection (2), the accreditation ceases to be in force at the end of

that period.

(4) If an accreditation specifies circumstances as mentioned in

subsection (2), the Minister must, in writing, revoke the

accreditation if he or she is satisfied that those circumstances have

ceased to exist.

(5) The Minister may, in writing, vary an accreditation by:

(a) specifying one or more conditions (or further conditions) to

which the accreditation is subject; or

(b) revoking or varying a condition:

(i) specified in the instrument of accreditation; or

(ii) specified under paragraph (a).

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(6) A condition may relate to reporting or monitoring.

(7) The Minister must, in writing, revoke an accreditation if he or she

is satisfied that a condition of the accreditation has been

contravened.

303AB Amended policies, regimes or plans taken to be accredited

(1) If:

(a) a plan, regime or policy is accredited under section 208A,

222A, 245 or 265; and

(b) the plan, regime or policy is amended, or is proposed to be

amended; and

(c) the Minister is satisfied that the amendments are, or will be,

minor; and

(d) the Minister is satisfied that the plan, regime or policy as

amended meets, or will meet, the requirements of

subsection 208A(1), 222A(1), 245(1) or 265(1) (as the case

may be);

the Minister may, by instrument in writing, determine that this

subsection applies to the amendments.

(2) If the Minister makes a determination under subsection (1), the

plan, regime or policy as amended is, for the purposes of this Act,

taken to be accredited under subsection 208A(1), 222A(2), 245(1)

or 265(1) (as the case may be).

(3) A determination under subsection (1) of this section is not a

legislative instrument.

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Division 1 Introduction

Section 303BA

Part 13A—International movement of wildlife

specimens

Division 1—Introduction

303BA Objects of Part

(1) The objects of this Part are as follows:

(a) to ensure that Australia complies with its obligations under

CITES and the Biodiversity Convention;

(b) to protect wildlife that may be adversely affected by trade;

(c) to promote the conservation of biodiversity in Australia and

other countries;

(d) to ensure that any commercial utilisation of Australian native

wildlife for the purposes of export is managed in an

ecologically sustainable way;

(e) to promote the humane treatment of wildlife;

(f) to ensure ethical conduct during any research associated with

the utilisation of wildlife;

(h) to ensure that the precautionary principle is taken into

account in making decisions relating to the utilisation of

wildlife.

Note: CITES means the Convention on International Trade in Endangered

Species—see section 528.

(2) In order to achieve its objects, this Part includes special provisions

to conserve the biodiversity of Australian native wildlife.

303BAA Certain indigenous rights not affected

To avoid doubt, nothing in this Part prevents an indigenous person

from continuing in accordance with law the traditional use of an

area for:

(a) hunting (except for the purposes of sale); or

(b) food gathering (except for the purposes of sale); or

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Section 303BB

(c) ceremonial or religious purposes.

303BB Simplified outline

The following is a simplified outline of this Part:

• This Part sets up a system for regulating the international

movement of wildlife specimens.

• A CITES specimen is a specimen of a species included in

Appendix I, II or III to the Convention on International Trade

in Endangered Species (CITES).

• It is an offence to export or import a CITES specimen unless:

(a) the exporter or importer holds a permit; or

(b) an exemption applies.

• A regulated native specimen is a specimen of a native species

subject to export control under this Part.

• It is an offence to export a regulated native specimen unless:

(a) the exporter holds a permit; or

(b) an exemption applies.

• A regulated live specimen is a live specimen of a species

subject to import control under this Part.

• It is an offence to import a regulated live specimen unless the

importer holds a permit.

• It is an offence to possess a specimen that was imported in

contravention of this Part.

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Section 303BC

303BC Definitions

In this Part, unless the contrary intention appears:

eligible listed threatened species means a listed threatened species

other than a species in the conservation dependent category.

engage in conduct means:

(a) do an act; or

(b) omit to perform an act.

export means:

(a) export from Australia or from an external Territory; or

(b) export from the sea;

but does not include:

(c) export from Australia to an external Territory; or

(d) export from an external Territory to Australia; or

(e) export from an external Territory to another external

Territory.

export from the sea, in relation to a specimen, means take in a

Commonwealth marine area and then take out of that area to

another country without bringing into Australia or into an external

Territory.

import means:

(a) import into Australia or into an external Territory; or

(b) import by way of introduction from the sea;

but does not include:

(c) import into Australia from an external Territory; or

(d) import into an external Territory from Australia; or

(e) import into an external Territory from another external

Territory.

import by way of introduction from the sea, in relation to a

specimen, means take in the marine environment not under the

jurisdiction of any country and then bring into Australia or into an

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external Territory without having been imported into any other

country.

marine environment means the sea, and includes:

(a) the air space above the sea; and

(b) the seabed and subsoil beneath the sea.

recipient means:

(a) in relation to a specimen that is exported—the person in the

country to which the specimen is exported who is to have the

care and custody of the specimen after the export; and

(b) in relation to a specimen that is imported into Australia or

into an external Territory—the person in Australia or that

Territory, as the case may be, who is to have the care and

custody of the specimen after the import.

relevant CITES authority, in relation to a country, means:

(a) if the country is a party to CITES—a Management Authority

of that country; or

(b) if the country is not a party to CITES—a competent authority

of that country within the meaning of Article X of CITES.

sender, in relation to a specimen that is imported into Australia or

an external Territory, means the person in the country from which

the specimen is imported who exports it from that country to

Australia or to that Territory, as the case may be.

take includes:

(a) in relation to an animal—harvest, catch, capture, trap and

kill; and

(b) in relation to a plant specimen—harvest, pick, gather and cut.

trade means trade within the ordinary meaning of that expression.

Note: See also section 528.

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Division 2 CITES species

Section 303CA

Division 2—CITES species

Subdivision A—CITES species and CITES specimens

303CA Listing of CITES species

(1) The Minister must, by legislative instrument, establish a list of

CITES species for the purposes of this Act.

(2) The Minister must ensure that the list is established on the

commencement of this section.

Note: See section 4 of the Acts Interpretation Act 1901.

(3) The list must include all species from time to time included in any

of Appendices I, II and III to CITES. The list must not include any

other species.

(4) For each species included in the list, there is to be a notation:

(a) describing the specimens belonging to that species that are

included in a particular Appendix to CITES; and

(b) identifying the Appendix in which the species is included;

and

(c) identifying the date on which the provisions of CITES first

applied to the specimens.

(5) A description mentioned in paragraph (4)(a):

(a) may cover all specimens that belong to the species; or

(b) may cover specified kinds of specimens that belong to the

species; or

(c) may state that the inclusion of a specimen in a particular

Appendix to CITES is subject to restrictions or conditions.

(6) A restriction or condition mentioned in paragraph (5)(c) may:

(a) impose a quantitative limit in relation to the export or import

of a specimen; or

(b) relate to the imposition of a quota in relation to the export or

import of specimens; or

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(c) relate to a particular population of a species; or

(d) reflect any other restriction or condition set out in the

relevant Appendix to CITES.

(7) Subsection (6) does not limit paragraph (5)(c).

(8) A notation in the list is to be consistent with CITES.

(9) The Minister may, by legislative instrument:

(a) correct an inaccuracy or update the name of a species; or

(b) amend the list, as necessary, so that it includes all species

required to be included in the list under subsection (3); or

(c) amend the list, as necessary, so that the notations in the list

are consistent with CITES.

(11) For the purposes of this section, it is to be assumed that the

definition of specimen in CITES includes a reference to a thing

that is a specimen for the purposes of this Act.

Note: See also section 303CB.

303CB Stricter domestic measures

(1) The Minister may, by legislative instrument, declare that the list

referred to in section 303CA has effect as if it were modified as set

out in the declaration.

Note: For variation and revocation, see subsection 33(3) of the Acts

Interpretation Act 1901.

(2) The Minister must not make a declaration under subsection (1)

unless:

(a) the modification has the effect of treating a specified

specimen that is included in Appendix II to CITES as if the

specimen were included in Appendix I to CITES; or

(b) the modification has the effect of broadening the range of

specimens included in a specified Appendix to CITES in

relation to a specified species; or

(c) the modification has the effect of decreasing a quantitative

limit in relation to the export or import of a specimen; or

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(d) the modification has the effect of treating a specified

specimen that is not included in Appendix I, II or III to

CITES as if the specimen were included in Appendix I to

CITES; or

(e) the modification has the effect of treating a specified

specimen that is not included in Appendix I, II or III to

CITES as if the specimen were included in Appendix II to

CITES.

(5) A reference in this Act to the list referred to in section 303CA is a

reference to that list as modified under this section.

Subdivision B—Offences and permit system

303CC Exports of CITES specimens

(1) A person commits an offence if:

(a) the person exports a specimen; and

(b) the specimen is a CITES specimen.

Penalty: Imprisonment for 10 years or 1,000 penalty units, or

both.

Authorised export—permit

(2) Subsection (1) does not apply if the specimen is exported in

accordance with a permit that was issued under section 303CG,

303GB or 303GC and is in force.

Authorised export—CITES exemptions

(3) Subsection (1) does not apply if the export of the specimen is an

export that, in accordance with a determination made by the

Minister under the regulations, is taken to be part of a registered,

non-commercial exchange of scientific specimens between

scientific organisations.

(4) Subsection (1) does not apply if the Minister issues a certificate

under subsection (5) in relation to the specimen.

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Section 303CD

(5) If the Minister is satisfied that a specimen was acquired before the

provisions of CITES applied to the specimen, the Minister may

issue a certificate to that effect.

(6) Subsection (1) does not apply if the export of the specimen is an

export that, under the regulations, is taken to be an export of a

personal or household effect.

Note 1: See paragraph 3 of Article VII of CITES.

Note 2: The defendant bears an evidential burden in relation to the matters in

subsections (2), (3), (4) and (6) (see subsection 13.3(3) of the

Criminal Code).

303CD Imports of CITES specimens

(1) A person commits an offence if:

(a) the person imports a specimen; and

(b) the specimen is a CITES specimen.

Penalty: Imprisonment for 10 years or 1,000 penalty units, or

both.

Authorised import—permit

(2) Subsection (1) does not apply if the specimen is imported in

accordance with a permit that was issued under section 303CG,

303GB or 303GC and is in force.

Authorised import—CITES exemptions

(3) Subsection (1) does not apply if the import of the specimen is an

import that, under the regulations, is taken to be an import of a

personal or household effect.

Note: See paragraph 3 of Article VII of CITES.

(4) Subsection (1) does not apply if:

(a) the specimen is a CITES II specimen; and

(b) the specimen is not a live specimen; and

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Section 303CE

(c) the specimen belongs to a species that is not specified in the

regulations; and

(d) in a case where a quantitative limit is applicable to the

specimen under a notation in the list referred to in

section 303CA—the quantity of the specimen does not

exceed that limit; and

(e) the specimen is within the personal baggage of a person

entering Australia or an external Territory; and

(f) the specimen is not intended for sale or for any other

commercial purpose; and

(g) both:

(i) the country from which the specimen is proposed to be

imported has a relevant CITES authority; and

(ii) permission to export the specimen from that country has

been given by a relevant CITES authority of that

country.

(5) Subsection (1) does not apply if the import of the specimen is an

import that, in accordance with a determination made by the

Minister under the regulations, is taken to be part of a registered,

non-commercial exchange of scientific specimens between

scientific organisations.

(6) Subsection (1) does not apply if:

(a) the country from which the specimen is proposed to be

imported has a relevant CITES authority; and

(b) a relevant CITES authority of that country has issued a

certificate under paragraph 2 of Article VII of CITES in

respect of the specimen.

Note 1: Paragraph 2 of Article VII of CITES deals with a specimen that was

acquired before the provisions of CITES applied to the specimen.

Note 2: The defendant bears an evidential burden in relation to the matters in

subsections (2), (3), (4), (5) and (6) (see subsection 13.3(3) of the

Criminal Code).

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Section 303CE

303CE Applications for permits

(1) A person may, in accordance with the regulations, apply to the

Minister for a permit to be issued under section 303CG.

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

by the regulations.

303CF Further information

(1) The Minister may, within 40 business days after the application is

made, request the applicant to give the Minister, within the period

specified in the request, further information for the purpose of

enabling the Minister to deal with the application.

(2) The Minister may refuse to consider the application until the

applicant gives the Minister the information in accordance with the

request.

303CG Minister may issue permits

(1) The Minister may, on application made by a person under

section 303CE, issue a permit to the person. This subsection has

effect subject to subsection (3).

(2) A permit authorises its holder to take the action or actions specified

in the permit, in the permitted period, without breaching

section 303CC, 303CD, 303DD or 303EK.

(2A) For the purpose of subsection (2), the permitted period is the

period specified in the permit as the period during which the action

or actions specified in the permit may be taken. The period so

specified must start on the date of issue of the permit and end not

later than 6 months after that date.

(3) The Minister must not issue a permit unless the Minister is

satisfied that:

(a) the action or actions specified in the permit will not be

detrimental to, or contribute to trade which is detrimental to:

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(i) the survival of any taxon to which the specimen

belongs; or

(ii) the recovery in nature of any taxon to which the

specimen belongs; or

(iii) any relevant ecosystem (for example, detriment to

habitat or biodiversity); and

(b) the specimen was not obtained in contravention of, and the

action or actions specified in the permit would not involve

the contravention of, any law of the Commonwealth, of a

State or of a Territory; and

(c) if the specimen is a live specimen that belongs to a taxon

specified in the regulations—the conditions that, under the

regulations, are applicable to the welfare of the specimen

have been, or are likely to be, complied with; and

(d) if any restriction or condition is applicable to the specimen

under a notation in the list referred to in section 303CA—that

restriction or condition has been, or is likely to be, complied

with; and

(e) if the permit authorises the export of a CITES specimen:

(i) the proposed export would be an eligible

non-commercial purpose export (within the meaning of

section 303FA); or

(ii) the relevant conditions set out in the table in

section 303CH have been met; and

(f) if the permit authorises the import of a CITES specimen:

(i) the proposed import would be an eligible

non-commercial purpose import (within the meaning of

section 303FB); or

(ii) the relevant conditions set out in the table in

section 303CH have been met; and

(g) if:

(i) the permit authorises the import of a CITES II

specimen; and

(ii) the proposed import would be an eligible

non-commercial purpose import (within the meaning of

section 303FB);

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the country from which the specimen is proposed to be

imported has a relevant CITES authority and permission to

export the specimen from that country has been given by a

relevant CITES authority of that country; and

(h) if the permit authorises the export of a CITES specimen that

is a regulated native specimen—the conditions set out in

subsection 303DG(4) have been met; and

(i) if the permit authorises the import of a CITES specimen that

is a regulated live specimen—the conditions set out in

subsection 303EN(3) have been met.

(4) Subsection (3) does not apply in relation to a permit to export from

Australia or an external Territory a specimen (other than a live

animal) that has been imported into Australia or that Territory, as

the case may be.

(5) The Minister must not issue a permit to export a specimen (other

than a live animal) that has been imported into Australia or an

external Territory, unless the Minister is satisfied that:

(a) the specimen was lawfully imported (section 303GY); and

(b) if the specimen is a CITES I specimen:

(i) the country to which the specimen is proposed to be

exported has a relevant CITES authority; and

(ii) permission to import that specimen into that country has

been given by a relevant CITES authority of that

country.

(6) This section has effect subject to section 303GA.

Note: Section 303GA deals with controlled actions, and actions for which a

non-Part 13A permit is required.

303CH Specific conditions relating to the export or import of CITES

specimens for commercial purposes

(1) The following table sets out the conditions mentioned in

paragraphs 303CG(3)(e) and (f):

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Specific conditions

Item Category of Action Specific conditions

specimen

CITES I Import (a) the proposed import would be an import from

an approved CITES-registered captive

breeding program in accordance with

section 303FK; or

(b) the specimen is, or is derived from, a plant

that was artificially propagated

(section 527C).

CITES I Export (a) the specimen is not a live native mammal, a

live native amphibian, a live native reptile or a

live native bird; and

(b) the country to which the specimen is proposed

to be exported has a relevant CITES authority,

and permission to import that specimen into

that country has been given by a relevant

CITES authority of that country; and

(c) the proposed export would be an export from:

(i) an approved CITES-registered captive

breeding program in accordance with

section 303FK; or

(ii) an approved artificial propagation

program in accordance with

section 303FL.

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Specific conditions

Item Category of Action Specific conditions

specimen

CITES II Import (a) for any specimen—the country from which the

specimen is proposed to be imported has a

relevant CITES authority and permission to

export the specimen from that country has

been given by a relevant CITES authority of

that country; and

(b) for a specimen that:

(i) is specified by the Minister under

subsection (2) as a declared specimen;

and

(ii) is not, or is not derived from, an animal

that was bred in captivity

(section 527B); and

(iii) is not, or is not derived from, a plant

that was artificially propagated

(section 527C);

the proposed import of the specimen would be

an import from an approved commercial

import program in accordance with

section 303FU.

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Specific conditions

Item Category of Action Specific conditions

specimen

CITES II Export (a) the specimen is not a live native mammal, a

live native amphibian, a live native reptile or a

live native bird; and

(b) the proposed export of the specimen would be:

(i) an export from an approved captive

breeding program in accordance with

section 303FK; or

(ii) an export from an approved artificial

propagation program in accordance

with section 303FL; or

(iia) an export from an approved

cultivation program in accordance with

section 303FLA; or

(iii) an export in accordance with an

approved wildlife trade operation

(section 303FN); or

(iv) an export in accordance with an

approved wildlife trade management

plan (section 303FO).

CITES III Import The country from which the specimen is proposed

to be imported has a relevant CITES authority,

and permission to export the specimen from that

country has been given by a relevant CITES

authority of that country.

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Specific conditions

Item Category of Action Specific conditions

specimen

CITES III Export (a) the specimen is not a live native mammal, a

live native amphibian, a live native reptile or a

live native bird; and

(b) the proposed export of the specimen would be:

(i) an export from an approved captive

breeding program in accordance with

section 303FK; or

(ii) an export from an approved artificial

propagation program in accordance

with section 303FL; or

(iia) an export from an approved

cultivation program in accordance with

section 303FLA; or

(iii) an export in accordance with an

approved wildlife trade operation

(section 303FN); or

(iv) an export in accordance with an

approved wildlife trade management

plan (section 303FO).

(2) The Minister may, by notifiable instrument, specify a specimen as

a declared specimen for the purposes of subparagraph (b)(i) of

item 3 of the table in subsection (1).

Note: Notifiable instruments must be registered under the Legislation Act

2003, but they are not subject to parliamentary scrutiny or sunsetting

under that Act.

303CI Time limit for making permit decision

If an application for a permit is made under section 303CE, the

Minister must either issue, or refuse to issue, the permit within 40

business days after whichever is the latest of the following days:

(a) the day on which the application is made;

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(b) if a request for further information in relation to the

application is made under section 303CF—the day on which

the applicant complies with the request;

(c) if section 303GA applies to the application—the day that is

applicable under subsection 303GA(2).

303CJ Duration of permits

A permit under section 303CG:

(a) comes into force on the date on which it is issued; and

(b) unless it is sooner cancelled, remains in force until all of the

following periods have ended:

(i) the permitted period (within the meaning of

subsection 303CG(2A));

(ii) each period for which one or more conditions of the

permit are expressed to apply.

303CK Register of applications and decisions

(1) As soon as practicable after the commencement of this section, the

Minister must cause to be established a register that sets out:

(a) prescribed particulars of applications made under

section 303CE after the establishment of the register; and

(b) prescribed particulars of decisions made by the Minister

under section 303CG after the establishment of the register.

(2) The register may be maintained by electronic means.

(3) The register is to be made available for inspection on the internet.

Subdivision C—Application of CITES

303CL Application of CITES—Management Authority and

Scientific Authority

For the purposes of the application of CITES to Australia:

(a) the Minister is the Management Authority; and

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(b) the Secretary is the Scientific Authority.

303CM Interpretation of CITES provisions

(1) Except so far as the contrary intention appears, an expression that:

(a) is used in the CITES provisions without definition; and

(b) is used in CITES (whether or not it is defined in, or a

particular meaning is assigned to it by, CITES);

has, in the CITES provisions, the same meaning as it has in CITES.

(2) For the purposes of subsection (1), the CITES provisions consist

of:

(a) this Division; and

(b) any other provision of this Act in so far as that other

provision relates to, or to permits under, this Division.

303CN Resolutions of the Conference of the Parties to CITES

(1) In making a decision under this Part in relation to a CITES

specimen, the Minister may have regard to a relevant resolution of

the Conference of the Parties under Article XI of CITES.

(2) Subsection (1) applies to a resolution, whether made before or after

the commencement of this section.

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Section 303DA

Division 3—Exports of regulated native specimens

Subdivision A—Regulated native specimens

303DA Regulated native specimens

For the purposes of this Act, a regulated native specimen is a

specimen that:

(a) is, or is derived from, a native animal or a native plant; and

(b) is not included in the list referred to in section 303DB.

303DB Listing of exempt native specimens

(1) The Minister must, by legislative instrument, establish a list of

exempt native specimens.

(2) For each specimen included in the list, there is to be a notation that

states whether the inclusion of the specimen in the list is subject to

restrictions or conditions and, if so, the nature of those restrictions

or conditions.

(3) A restriction or condition mentioned in subsection (2) may:

(a) consist of a quantitative limit in relation to the export of the

specimen; or

(b) relate to the circumstances of the export of the specimen; or

(c) relate to the source of the specimen; or

(d) relate to the circumstances in which the specimen was taken

or, if the specimen is derived from another specimen that was

taken, the circumstances in which the other specimen was

taken; or

(e) relate to an expiry date for the inclusion of the specimen on

the list.

(4) Subsection (3) does not limit subsection (2).

(5) The list, as first established, must:

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(a) contain the specimens referred to in Part I of Schedule 4 to

the Wildlife Protection (Regulation of Exports and Imports)

Act 1982, as in force immediately before the commencement

of this section; and

(b) reflect the restrictions and conditions that are applicable to

the inclusion of those specimens in that Part of that Schedule.

(6) The list must not include a specimen that belongs to an eligible

listed threatened species unless:

(a) the Minister is satisfied that the export of the specimen will

not:

(i) adversely affect the conservation status of the species

concerned; and

(ii) be inconsistent with any recovery plan or wildlife

conservation plan for that species; and

(aa) the Minister has had regard to any approved conservation

advice for that species; and

(b) the inclusion of the specimen on the list is subject to a

restriction or condition to the effect that:

(i) the specimen must be, or be derived from, a plant that

was artificially propagated (section 527C); and

(ii) the specimen was propagated in an operation that has

derived its stock in a way that did not breach a law of

the Commonwealth, a State or a Territory.

303DC Minister may amend list

(1) The Minister may, by legislative instrument, amend the list

referred to in section 303DB by:

(a) doing any of the following:

(i) including items in the list;

(ii) deleting items from the list;

(iii) imposing a condition or restriction to which the

inclusion of a specimen in the list is subject;

(iv) varying or revoking a condition or restriction to which

the inclusion of a specimen in the list is subject; or

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

(1A) In deciding whether to amend the list referred to in section 303DB

to include a specimen derived from a commercial fishery, the

Minister must rely primarily on the outcomes of any assessment in

relation to the fishery carried out for the purposes of Division 1 or

2 of Part 10.

(1B) Subsection (1A) does not apply to an amendment mentioned in

paragraph (1)(b).

(1C) Subsection (1A) does not limit the matters that may be taken into

account in deciding whether to amend the list referred to in

section 303DB to include a specimen derived from a commercial

fishery.

(1D) In this section:

fishery has the same meaning as in section 303FN.

(2) For the purposes of paragraph (1)(b), correcting an inaccuracy

includes ensuring that the list complies with subsection 303DB(5).

(3) Before amending the list referred to in section 303DB as

mentioned in paragraph (1)(a) of this section, the Minister:

(a) must consult such other Minister or Ministers as the Minister

considers appropriate; and

(b) must consult such other Minister or Ministers of each State

and self-governing Territory as the Minister considers

appropriate; and

(c) may consult such other persons and organisations as the

Minister considers appropriate.

(4) Section 42 (disallowance) of the Legislation Act 2003 does not

apply to a legislative instrument to which paragraph (1)(b) of this

section applies.

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Section 303DD

Subdivision B—Offence and permit system

303DD Exports of regulated native specimens

(1) A person commits an offence if:

(a) the person exports a specimen; and

(b) the specimen is a regulated native specimen.

Penalty: Imprisonment for 10 years or 1,000 penalty units, or

both.

Exemption—permit

(2) Subsection (1) does not apply if the specimen is exported in

accordance with a permit that was issued under section 303CG,

303DG, 303GB or 303GC and is in force.

Exemption—accredited wildlife trade management plan

(3) Subsection (1) does not apply if:

(a) the export of the specimen would be an export in accordance

with an accredited wildlife trade management plan

(section 303FP); and

(b) the specimen is not a live native mammal, a live native

reptile, a live native amphibian or a live native bird; and

(ba) either:

(i) the specimen is not a live terrestrial invertebrate, or a

live freshwater fish, prescribed by the regulations for

the purposes of this subparagraph; or

(ii) the export is an export from an approved aquaculture

program in accordance with section 303FM; and

(c) the specimen is not a CITES specimen; and

(d) the specimen does not belong to an eligible listed threatened

species.

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Exemption—exchange of scientific specimens

(4) Subsection (1) does not apply if the export of the specimen is an

export that, in accordance with a determination made by the

Minister under the regulations, is taken to be part of a registered,

non-commercial exchange of scientific specimens between

scientific organisations.

Note: The defendant bears an evidential burden in relation to the matters in

subsections (2), (3) and (4) (see subsection 13.3(3) of the Criminal

Code).

303DE Applications for permits

(1) A person may, in accordance with the regulations, apply to the

Minister for a permit to be issued under section 303DG.

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

by the regulations.

303DF Further information

(1) The Minister may, within 40 business days after the application is

made, request the applicant to give the Minister, within the period

specified in the request, further information for the purpose of

enabling the Minister to deal with the application.

(2) The Minister may refuse to consider the application until the

applicant gives the Minister the information in accordance with the

request.

303DG Minister may issue permits

(1) The Minister may, on application made by a person under

section 303DE, issue a permit to the person. This subsection has

effect subject to subsections (3) to (4A).

(2) A permit authorises its holder to take the action or actions specified

in the permit, in the permitted period, without breaching

section 303DD.

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(2A) For the purpose of subsection (2), the permitted period is the

period specified in the permit as the period during which the action

or actions specified in the permit may be taken. The period so

specified must start on the date of issue of the permit and end not

later than 3 years after that date.

(3) The Minister must not issue a permit authorising the export of a

live native mammal, a live native reptile, a live native amphibian

or a live native bird unless the Minister is satisfied that the

proposed export would be an eligible non-commercial purpose

export (within the meaning of section 303FA).

(3A) The Minister must not issue a permit authorising the export of a

live terrestrial invertebrate, or a live freshwater fish, prescribed by

the regulations for the purposes of paragraph 303DD(3)(ba) unless

the Minister is satisfied that:

(a) the proposed export would be an eligible non-commercial

purpose export (within the meaning of section 303FA); or

(b) the proposed export would be an export from an approved

aquaculture program in accordance with section 303FM.

(4) The Minister must not issue a permit unless the Minister is

satisfied that:

(a) the export of the specimen will not be detrimental to, or

contribute to trade which is detrimental to:

(i) the survival of any taxon to which the specimen

belongs; or

(ii) any relevant ecosystem (for example, detriment to

habitat or biodiversity); and

(b) if the specimen is a live specimen that belongs to a taxon

specified in the regulations—the conditions that, under the

regulations, are applicable to the welfare of the specimen

have been, or are likely to be, complied with; and

(c) the specimen was not obtained in contravention of, and the

export would not involve the contravention of, any law of the

Commonwealth, of a State or of a Territory; and

(d) if the specimen belongs to an eligible listed threatened

species—the export of the specimen is covered by

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subsection (7) or (8), and the export would not be

inconsistent with any recovery plan for that species; and

(e) if the specimen does not belong to an eligible listed

threatened species:

(i) the proposed export would be an eligible

non-commercial purpose export (within the meaning of

section 303FA); or

(ii) the proposed export would be an eligible commercial

purpose export (within the meaning of section 303FJ).

(4A) If the Minister is considering whether to issue a permit relating to a

specimen that belongs to a particular eligible listed threatened

species, the Minister must, in deciding whether to issue the permit,

have regard to any approved conservation advice for the species.

(5) Subsection (4) does not apply in relation to a permit to export from

Australia or an external Territory a specimen (other than a live

animal) that has been imported into Australia or that Territory, as

the case may be.

(6) The Minister must not issue a permit to export from Australia or an

external Territory a specimen (other than a live animal) that has

been imported into Australia or that Territory, as the case may be,

unless the Minister is satisfied that the specimen was lawfully

imported (section 303GY).

Eligible listed threatened species

(7) This subsection covers the export of a specimen if:

(a) the export of the specimen would be an export from an

approved captive breeding program in accordance with

section 303FK; or

(b) the export of the specimen would be an export from an

approved artificial propagation program in accordance with

section 303FL; or

(ba) the export of the specimen would be an export from an

approved cultivation program in accordance with

section 303FLA; or

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(c) the export of the specimen would be an export from an

approved aquaculture program in accordance with

section 303FM;

and the export of the specimen will not adversely affect the

conservation status of the species concerned.

Note: See also subsection (3).

(8) This subsection covers the export of a specimen if:

(a) the export of the specimen would be an export for the

purposes of research in accordance with section 303FC; or

(b) the export of the specimen would be an export for the

purposes of education in accordance with section 303FD; or

(c) the export of the specimen would be an export for the

purposes of exhibition in accordance with section 303FE; or

(d) the export of the specimen would be an export for the

purposes of conservation breeding or propagation in

accordance with section 303FF.

Section has effect subject to section 303GA

(9) This section has effect subject to section 303GA.

Note: Section 303GA deals with controlled actions, and actions for which a

non-Part 13A permit is required.

303DH Time limit for making permit decision

If an application for a permit is made under section 303DE, the

Minister must either issue, or refuse to issue, the permit within 40

business days after whichever is the latest of the following days:

(a) the day on which the application is made;

(b) if a request for further information in relation to the

application is made under section 303DF—the day on which

the applicant complies with the request;

(c) if section 303GA applies to the application—the day that is

applicable under subsection 303GA(2).

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Section 303DI

303DI Duration of permits

A permit under section 303DG:

(a) comes into force on the date on which it is issued; and

(b) unless it is sooner cancelled, remains in force until all of the

following periods have ended:

(i) the permitted period (within the meaning of

subsection 303DG(2A));

(ii) each period for which one or more conditions of the

permit are expressed to apply.

303DJ Register of applications and decisions

(1) As soon as practicable after the commencement of this section, the

Minister must cause to be established a register that sets out:

(a) prescribed particulars of applications made under

section 303DE after the establishment of the register; and

(b) prescribed particulars of decisions made by the Minister

under section 303DG after the establishment of the register.

(2) The register may be maintained by electronic means.

(3) The register is to be made available for inspection on the internet.

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Section 303EA

Division 4—Imports of regulated live specimens

Subdivision A—Regulated live specimens

303EA Regulated live specimens

For the purposes of this Act, a regulated live specimen is a

specimen that:

(a) is a live animal or a live plant; and

(b) is not included in Part 1 of the list referred to in

section 303EB.

303EB Listing of specimens suitable for live import

(1) The Minister must, by legislative instrument, establish a list of

specimens that are taken to be suitable for live import.

(2) The list is to be divided into 2 Parts, as follows:

(a) Part 1 is to be a list of unregulated specimens;

(b) Part 2 is to be a list of allowable regulated specimens.

(3) The list may only contain specimens that are live animals or live

plants.

(4) Part 1 of the list, as first established, must contain only the

specimens referred to in Part I of Schedule 5 or Part I of

Schedule 6 to the Wildlife Protection (Regulation of Exports and

Imports) Act 1982, as in force immediately before the

commencement of this section.

(5) Part 1 of the list must not contain a CITES specimen.

(6) Part 1 of the list is taken to include a live plant the introduction of

which into Australia is not inconsistent with the Biosecurity Act

2015.

(7) For each specimen included in Part 2 of the list (except a specimen

referred to in subsection (11A)), there is to be a notation that states

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whether the inclusion of the specimen in that part of the list is

subject to restrictions or conditions and, if so, the nature of those

restrictions or conditions.

(8) A restriction or condition referred to in subsection (7) may:

(a) consist of a quantitative limit in relation to the import of the

specimen; or

(b) relate to the circumstances of the import of the specimen; or

(c) relate to the source of the specimen; or

(d) relate to the circumstances in which the specimen was taken.

(9) Subsection (8) does not limit subsection (7).

(10) Part 2 of the list, as first established, must contain only specimens

that were, at any time before the commencement of this section,

the subject of an import permit granted under the Wildlife

Protection (Regulation of Exports and Imports) Act 1982.

(11) For the purposes of subsection (10), a specimen is taken to have

been the subject of an import permit if, and only if, the specimen

was identified in the permit at the species or sub-species level.

(11A) Part 2 of the list is taken to include a live plant that is a CITES

specimen the introduction of which into Australia is not

inconsistent with the Biosecurity Act 2015.

303EC Minister may amend list

(1) The Minister may, by legislative instrument, amend the list

referred to in section 303EB by:

(a) doing any of the following:

(i) including items in a particular part of the list;

(ii) deleting items from a particular part of the list;

(iii) imposing a restriction or condition to which the

inclusion of a specimen in Part 2 of the list is subject;

(iv) varying or revoking a restriction or condition to which

the inclusion of a specimen in Part 2 of the list is

subject; or

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

(2) For the purposes of paragraph (1)(b), correcting an inaccuracy

includes ensuring that the list complies with subsections 303EB(4)

and (10).

(3) Before amending the list referred to in section 303EB as mentioned

in paragraph (1)(a) of this section, the Minister:

(a) must consult such other Minister or Ministers as the Minister

considers appropriate; and

(b) must consult such other Minister or Ministers of each State

and self-governing Territory as the Minister considers

appropriate; and

(c) may consult such other persons and organisations as the

Minister considers appropriate.

(5) The Minister must not amend the list referred to in section 303EB

by including an item in the list, unless:

(a) the amendment is made following consideration of a relevant

report under section 303ED or 303EE; or

(b) the amendment is made following consideration of a relevant

review under section 303EJ.

(6) Section 42 (disallowance) of the Legislation Act 2003 does not

apply to a legislative instrument to which paragraph (1)(b) of this

section applies.

Subdivision B—Assessments relating to the amendment of the

list of specimens suitable for import

303ED Amendment of list on the Minister’s own initiative

(1) The Minister may formulate a proposal for the list referred to in

section 303EB to be amended by including an item.

(2) Unless subsection (3) applies, the Minister must:

(a) cause to be conducted an assessment of the potential impacts

on the environment of the proposed amendment; and

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(b) cause to be prepared a report on those impacts.

The report must be prepared in accordance with section 303EF and

be given to the Minister.

(3) This subsection applies if:

(a) Biosecurity Australia has prepared a report (whether before

or after the amendment was proposed) on the potential

impacts on the environment if the specimen were to be

imported; and

(b) the report is of a type specified in regulations made for the

purposes of this paragraph; and

(c) the report is given to the Minister; and

(d) the Minister determines that subsection (2) does not apply to

the proposed amendment.

(4) A determination made under paragraph (3)(d) is not a legislative

instrument.

303EE Application for amendment of list

(1) A person may, in accordance with the regulations, apply to the

Minister for the list referred to in section 303EB to be amended by

including an item.

(2) The Minister must not consider the application unless either

subsection (3) or (4) applies to the proposed amendment.

(3) This subsection applies to the proposed amendment if:

(a) subsection (4) does not apply to the proposed amendment;

and

(b) an assessment is made of the potential impacts on the

environment of the proposed amendment; and

(c) a report on those impacts is given to the Minister.

The report must be prepared in accordance with section 303EF.

(4) This subsection applies to the proposed amendment if:

(a) Biosecurity Australia has prepared a report (whether before

or after the amendment was proposed) on the potential

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impacts on the environment if the specimen were to be

imported; and

(b) the report is of a type specified in regulations made for the

purposes of this paragraph; and

(c) the report has been given to the Minister; and

(d) the Minister determines that subsection (3) does not apply to

the proposed amendment.

(5) A determination made under paragraph (4)(d) is not a legislative

instrument.

303EF Requirement for assessments

(1) The assessment under subsection 303ED(2) or 303EE(3) must

provide for:

(a) if the Minister determines that this paragraph applies—the

preparation of terms of reference for a report on the relevant

impacts; or

(b) if the Minister determines that this paragraph applies—all of

the following:

(i) the preparation of draft terms of reference for a report

on the relevant impacts;

(ii) the publication of the draft terms of reference for public

comment for a period of at least 10 business days that is

specified by the Minister;

(iii) the finalisation of the terms of reference, to the

Minister’s satisfaction, taking into account the

comments (if any) received on the draft terms of

reference.

(2) The assessment must also provide for:

(a) the preparation of a draft of a report on the relevant impacts;

and

(b) the publication of the draft report for public comment for a

period of at least 20 business days that is specified by the

Minister; and

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(c) the finalisation of the report, taking into account the

comments (if any) received after publication of the draft

report; and

(d) any other matter prescribed by the regulations.

(3) A determination made under paragraph (1)(a) or (b) is not a

legislative instrument.

303EG Timing of decision about proposed amendment

(1) If the Minister receives a report under section 303ED or 303EE in

relation to a proposed amendment, the Minister must decide

whether or not to make the proposed amendment within:

(a) 30 business days; or

(b) if the Minister, by writing, specifies a longer period—that

longer period;

after the first business day after the day on which the report was

received.

Notice of extension of time

(2) If the Minister specifies a longer period for the purposes of

subsection (1), he or she must:

(a) if section 303EE applies—give a copy of the specification to

the applicant; and

(b) publish the specification in accordance with the regulations.

303EH Requesting further information

(1) If:

(a) section 303EE applies; and

(b) the Minister believes on reasonable grounds that he or she

does not have enough information to make an informed

decision whether or not to make the proposed amendment;

the Minister may request the applicant to give the Minister, within

the period specified in the request, information relevant to making

the decision.

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(2) The Minister may refuse to consider the application until the

applicant gives the Minister the information in accordance with the

request.

303EI Notice of refusal of proposed amendment

If section 303EE applies and the Minister refuses to make the

proposed amendment, the Minister must give the applicant notice

of the refusal.

303EJ Reviews

If, following consideration of a relevant report under

section 303ED or 303EE, the Minister has made a decision to

include, or refusing to include, an item in the list referred to in

section 303EB, the Minister may review that decision at any time

during the period of 5 years after the decision was made.

Subdivision C—Offence and permit system

303EK Imports of regulated live specimens

(1) A person commits an offence if:

(a) the person imports a specimen; and

(b) the specimen is a regulated live specimen.

Penalty: Imprisonment for 10 years or 1,000 penalty units, or

both.

Exemption—permit

(2) Subsection (1) does not apply if:

(a) the specimen is included in Part 2 of the list referred to in

section 303EB; and

(b) the specimen is imported in accordance with a permit that

was issued under section 303CG, 303EN, 303GB or 303GC

and is in force.

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Exemption—testing permit

(3) Subsection (1) does not apply if the specimen is imported in

accordance with a permit that was issued under section 303GD and

is in force.

Note: The defendant bears an evidential burden in relation to the matters in

subsections (2) and (3) (see subsection 13.3(3) of the Criminal Code).

303EL Applications for permits

(1) A person may, in accordance with the regulations, apply to the

Minister for a permit to be issued under section 303EN.

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

by the regulations.

303EM Further information

(1) The Minister may, within 40 business days after the application is

made, request the applicant to give the Minister, within the period

specified in the request, further information for the purpose of

enabling the Minister to deal with the application.

(2) The Minister may refuse to consider the application until the

applicant gives the Minister the information in accordance with the

request.

303EN Minister may issue permits

(1) The Minister may, on application made by a person under

section 303EL, issue a permit to the person. This subsection has

effect subject to subsection (3).

(2) A permit authorises its holder to take the action or actions specified

in the permit, in the permitted period, without breaching

section 303EK.

(2A) For the purpose of subsection (2), the permitted period is the

period specified in the permit as the period during which the action

or actions specified in the permit may be taken. The period so

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specified must start on the date of issue of the permit and end not

later than 3 years after that date.

(3) The Minister must not issue a permit unless the Minister is

satisfied that:

(a) the proposed import would not be:

(i) likely to threaten the conservation status of a species or

ecological community; or

(ii) likely to threaten biodiversity; and

(b) the specimen is included in Part 2 of the list referred to in

section 303EB; and

(c) if any restriction or condition is applicable to the specimen

under a notation in Part 2 of the list referred to in

section 303EB—that restriction or condition has been, or is

likely to be, complied with; and

(d) the specimen was not obtained in contravention of, and the

import would not involve the contravention of, any law of the

Commonwealth, of a State or of a Territory; and

(e) if the specimen belongs to a taxon specified in the

regulations—the conditions that, under the regulations, are

applicable to the welfare of the specimen have been, or are

likely to be, complied with.

(4) This section has effect subject to section 303GA.

Note: Section 303GA deals with controlled actions, and actions for which a

non-Part 13A permit is required.

303EO Time limit for making permit decision

If an application for a permit is made under section 303EL, the

Minister must either issue, or refuse to issue, the permit within 40

business days after whichever is the latest of the following days:

(a) the day on which the application is made;

(b) if a request for further information in relation to the

application is made under section 303EM—the day on which

the applicant complies with the request;

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(c) if section 303GA applies to the application—the day that is

applicable under subsection 303GA(2).

303EP Duration of permits

A permit under section 303EN:

(a) comes into force on the date on which it is issued; and

(b) unless it is sooner cancelled, remains in force until all of the

following periods have ended:

(i) the permitted period (within the meaning of

subsection 303EN(2A));

(ii) each period for which one or more conditions of the

permit are expressed to apply.

303EQ Register of applications and decisions

(1) As soon as practicable after the commencement of this section, the

Minister must cause to be established a register that sets out:

(a) prescribed particulars of applications made under

section 303EL after the establishment of the register; and

(b) prescribed particulars of decisions made by the Minister

under section 303EN after the establishment of the register.

(2) The register may be maintained by electronic means.

(3) The register is to be made available for inspection on the internet.

Subdivision D—Marking of certain specimens for the purposes

of identification

303ER Object

The object of this Subdivision is:

(a) to comply with Australia’s obligations under:

(i) the Biodiversity Convention; and

(ii) CITES; and

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(b) otherwise to further the protection and conservation of the

wild fauna and flora of Australia and of other countries;

by requiring the marking of certain live specimens for the purposes

of identification.

Note: See Article 8 of the Biodiversity Convention.

303ES Specimens to which Subdivision applies

This Subdivision applies to a regulated live specimen if:

(a) the specimen has been imported in accordance with:

(i) a permit under this Division; or

(ii) a permit or authority under the Wildlife Protection

(Regulation of Exports and Imports) Act 1982; or

(b) the specimen is the progeny of a specimen referred to in

paragraph (a).

303ET Extended meaning of marking

A reference in this Subdivision to the marking of a specimen

includes a reference to the following:

(a) in the case of a live plant:

(i) the marking or labelling of a container in which the

plant is kept or in which the plant is growing; and

(ii) the placement of a label or tag on the plant;

(b) in the case of a live animal:

(i) the implantation of a scannable device in the animal;

and

(ii) the placement of a band on any part of the animal; and

(iii) the placement (whether by piercing or otherwise) of a

tag or ring on any part of the animal; and

(iv) the marking or labelling of a container within which the

animal is kept.

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303EU Secretary may make determinations about marking of

specimens

Determinations

(1) The Secretary may, by legislative instrument, make a

determination about the marking of specified kinds of specimens

for the purposes of identification.

Matters that may be covered by determination

(2) Without limiting subsection (1), a determination by the Secretary

under that subsection may:

(a) require specimens to be marked; and

(b) deal with the manner in which specimens are to be marked;

and

(c) deal with the times at which marking is to occur; and

(d) deal with the removal or destruction of marks; and

(e) deal with the replacement or modification of marks; and

(f) require that marking be carried out by persons approved in

writing by the Secretary under that determination; and

(g) deal with the circumstances in which marks may be, or are

required to be, rendered useless; and

(h) in the case of a mark that consists of a label, tag, band or

device:

(i) set out specifications relating to the label, tag, band or

device; and

(ii) require that any destruction or removal of the label, tag,

band or device be carried out by a person approved in

writing by the Secretary under that determination.

Marking of animals not to involve undue pain etc.

(3) In the case of a live animal, a determination under subsection (1)

must not require marking that involves:

(a) undue pain or distress to the animal; or

(b) undue risk of the death of the animal.

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Marking of plants not to involve undue risk of death

(4) In the case of a live plant, a determination under subsection (1)

must not require marking that involves undue risk of the death of

the plant.

303EV Offences

Owner to ensure specimens marked etc.

(1) If a determination under section 303EU applies to a specimen, the

owner of the specimen must comply with the determination.

Person not to remove or interfere with mark etc.

(2) A person contravenes this subsection if:

(a) a specimen is marked in accordance with a determination

under section 303EU; and

(b) the person engages in conduct; and

(c) the conduct causes the removal of the mark or interference

with the mark, or renders the mark unusable.

Offence

(3) A person who contravenes subsection (1) or (2) commits an

offence punishable on conviction by a fine not exceeding 120

penalty units.

(4) Subsection (2) does not apply if the person engages in the conduct

in accordance with a determination under section 303EU.

Note: The defendant bears an evidential burden in relation to the matter in

subsection (4). See subsection 13.3(3) of the Criminal Code.

(5) In subsections (1) and (2), strict liability applies to the

circumstance that a determination was made under section 303EU.

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

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303EW This Subdivision does not limit conditions of permits

This Subdivision does not limit section 303GE (which deals with

conditions of permits).

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Division 5—Concepts relating to permit criteria

Subdivision A—Non-commercial purpose exports and imports

303FA Eligible non-commercial purpose exports

For the purposes of this Part, the export of a specimen is an eligible

non-commercial purpose export if, and only if:

(a) the export of the specimen would be an export for the

purposes of research in accordance with section 303FC; or

(b) the export of the specimen would be an export for the

purposes of education in accordance with section 303FD; or

(c) the export of the specimen would be an export for the

purposes of exhibition in accordance with section 303FE; or

(d) the export of the specimen would be an export for the

purposes of conservation breeding or propagation in

accordance with section 303FF; or

(e) the export of the specimen would be an export of a household

pet in accordance with section 303FG; or

(f) the export of the specimen would be an export of a personal

item in accordance with section 303FH; or

(g) the export of a specimen would be an export for the purposes

of a travelling exhibition in accordance with section 303FI.

303FB Eligible non-commercial purpose imports

For the purposes of this Part, the import of a specimen is an

eligible non-commercial purpose import if, and only if:

(a) the import of the specimen would be an import for the

purposes of research in accordance with section 303FC; or

(b) the import of the specimen would be an import for the

purposes of education in accordance with section 303FD; or

(c) the import of the specimen would be an import for the

purposes of exhibition in accordance with section 303FE; or

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(d) the import of the specimen would be an import for the

purposes of conservation breeding or propagation in

accordance with section 303FF; or

(e) the import of the specimen would be an import of a

household pet in accordance with section 303FG; or

(f) the import of the specimen would be an import of a personal

item in accordance with section 303FH; or

(g) the import of a specimen would be an import for the purposes

of a travelling exhibition in accordance with section 303FI.

303FC Export or import for the purposes of research

(1) The export of a specimen is an export for the purposes of research

in accordance with this section if:

(a) the specimen will be used for the purpose of scientific

research; and

(b) the objects of the research are covered by any or all of the

following subparagraphs:

(i) the acquisition of a better understanding, and/or

increased knowledge, of a taxon to which the specimen

belongs;

(ii) the conservation of biodiversity;

(iii) the maintenance and/or improvement of human health;

and

(c) the export is not primarily for commercial purposes; and

(d) such other conditions (if any) as are specified in the

regulations have been, or are likely to be, satisfied.

(2) The import of a specimen is an import for the purposes of research

in accordance with this section if:

(a) the specimen will be used for the purpose of scientific

research; and

(b) the objects of the research are covered by any or all of the

following subparagraphs:

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(i) the acquisition of a better understanding, and/or

increased knowledge, of a taxon to which the specimen

belongs;

(ii) the conservation of biodiversity;

(iii) the maintenance and/or improvement of human health;

and

(c) the import is not primarily for commercial purposes; and

(d) such other conditions (if any) as are specified in the

regulations have been, or are likely to be, satisfied.

303FD Export or import for the purposes of education

(1) The export of a specimen is an export for the purposes of education

in accordance with this section if:

(a) the specimen will be used for the purpose of education or

training; and

(b) the export is not primarily for commercial purposes; and

(c) such other conditions (if any) as are specified in the

regulations have been, or are likely to be, satisfied.

(2) The import of a specimen is an import for the purposes of

education in accordance with this section if:

(a) the specimen will be used for the purpose of education or

training; and

(b) the import is not primarily for commercial purposes; and

(c) such other conditions (if any) as are specified in the

regulations have been, or are likely to be, satisfied.

303FE Export or import for the purposes of exhibition

(1) The export of a specimen is an export for the purposes of

exhibition in accordance with this section if:

(a) the specimen will be used for the purpose of an exhibition;

and

(b) the export is not primarily for commercial purposes; and

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(c) such other conditions (if any) as are specified in the

regulations have been, or are likely to be, satisfied.

(2) The import of a specimen is an import for the purposes of

exhibition in accordance with this section if:

(a) the specimen will be used for the purpose of an exhibition;

and

(b) the import is not primarily for commercial purposes; and

(c) such other conditions (if any) as are specified in the

regulations have been, or are likely to be, satisfied.

(3) In this section:

exhibition includes a zoo or menagerie.

303FF Export or import for conservation breeding or propagation

(1) The export of a specimen is an export for the purposes of

conservation breeding or propagation in accordance with this

section if:

(a) the specimen is a live animal or a live plant; and

(b) the specimen is for use in a program the object of which is

the establishment and/or maintenance of a breeding

population; and

(c) the program is a program that, under the regulations, is taken

to be an approved co-operative conservation program; and

(d) the export is not primarily for commercial purposes; and

(e) such other conditions (if any) as are specified in the

regulations have been, or are likely to be, satisfied.

(2) The import of a specimen is an import for the purposes of

conservation breeding or propagation in accordance with this

section if:

(a) the specimen is a live animal or a live plant; and

(b) the specimen is for use in a program the object of which is

the establishment and/or maintenance of a breeding

population; and

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(c) the program is a program that, under the regulations, is taken

to be an approved co-operative conservation program; and

(d) the import is not primarily for commercial purposes; and

(e) such other conditions (if any) as are specified in the

regulations have been, or are likely to be, satisfied.

303FG Export or import of household pets

Export of live native animals

(1) The export of a live native animal (other than a CITES specimen)

is an export of a household pet in accordance with this section if:

(a) the animal is included in the list referred to in subsection (4);

and

(b) the export is not primarily for commercial purposes; and

(c) such other conditions as are specified in the regulations have

been, or are likely to be, satisfied.

Export of live CITES specimens

(2) The export of a CITES specimen is an export of a household pet in

accordance with this section if:

(a) the specimen is a live animal; and

(b) if the animal is a native animal—the animal is included in the

list referred to in subsection (4); and

(c) the export is not primarily for commercial purposes; and

(d) such other conditions as are specified in the regulations have

been, or are likely to be, satisfied.

Import of live animals

(3) The import of a live animal is an import of a household pet in

accordance with this section if:

(a) the conditions specified in the regulations have been, or are

likely to be, satisfied; and

(b) the import is not primarily for commercial purposes; and

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(c) the animal is included in Part 2 of the list referred to in

section 303EB.

Listing of native household pet animals

(4) The Minister must, by legislative instrument, establish a list of

native household pet animals.

(5) The list, as first established, must contain the animals referred to in

Schedule 7 to the Wildlife Protection (Regulation of Exports and

Imports) Act 1982, as in force immediately before the

commencement of this section.

(6) The Minister may, by legislative instrument, amend the list

referred to in subsection (4) by:

(a) including or deleting items from the list; or

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

(7) Section 42 (disallowance) of the Legislation Act 2003 does not

apply to a legislative instrument to which paragraph (6)(b) of this

section applies.

303FH Export or import of personal items

(1) The export of a specimen is an export of a personal item in

accordance with this section if:

(a) the specimen is not a live specimen; and

(b) the export is not primarily for commercial purposes; and

(c) the conditions specified in the regulations have been, or are

likely to be, satisfied.

(2) The import of a specimen is an import of a personal item in

accordance with this section if:

(a) the specimen is not a live specimen; and

(b) the import is not primarily for commercial purposes; and

(c) the conditions specified in the regulations have been, or are

likely to be, satisfied.

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303FI Export or import for the purposes of a travelling exhibition

(1) The export of a specimen is an export for the purposes of a

travelling exhibition in accordance with this section if:

(a) the export is not primarily for commercial purposes; and

(b) the conditions specified in the regulations have been, or are

likely to be, satisfied.

(2) The import of a specimen is an import for the purposes of a

travelling exhibition in accordance with this section if:

(a) the import is not primarily for commercial purposes; and

(b) the conditions specified in the regulations have been, or are

likely to be, satisfied.

Subdivision B—Commercial purpose exports and imports

303FJ Eligible commercial purpose exports

For the purposes of this Part, the export of a specimen is an eligible

commercial purpose export if, and only if:

(a) the export of the specimen would be an export from an

approved captive breeding program in accordance with

section 303FK; or

(b) the export of the specimen would be an export from an

approved artificial propagation program in accordance with

section 303FL; or

(ba) the export of the specimen would be an export from an

approved cultivation program in accordance with

section 303FLA; or

(c) the export of the specimen would be an export from an

approved aquaculture program in accordance with

section 303FM; or

(d) the export of the specimen would be an export in accordance

with an approved wildlife trade operation (section 303FN); or

(e) the export of the specimen would be an export in accordance

with an approved wildlife trade management plan

(section 303FO).

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Note: See also subsection 303DD(3), which deals with accredited wildlife

trade management plans.

303FK Export or import from an approved captive breeding

program

(1) The export of a specimen is an export from an approved captive

breeding program in accordance with this section if the specimen

was sourced from a program that, under the regulations, is taken to

be an approved captive breeding program.

(2) The export of a specimen is an export from an approved

CITES-registered captive breeding program in accordance with

this section if the specimen was sourced from a program that,

under the regulations, is taken to be an approved CITES-registered

captive breeding program.

(3) The import of a specimen is an import from an approved

CITES-registered captive breeding program in accordance with

this section if the specimen was sourced from a program that,

under the regulations, is taken to be an approved CITES-registered

captive breeding program.

303FL Export from an approved artificial propagation program

The export of a specimen is an export from an approved artificial

propagation program in accordance with this section if the

specimen was sourced from a program that, under the regulations,

is taken to be an approved artificial propagation program.

303FLA Export from an approved cultivation program

The export of a specimen is an export from an approved cultivation

program in accordance with this section if the specimen was

sourced from a program that, under the regulations, is taken to be

an approved cultivation program.

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303FM Export from an approved aquaculture program

The export of a specimen is an export from an approved

aquaculture program in accordance with this section if the

specimen was sourced from a program that, under the regulations,

is taken to be an approved aquaculture program.

303FN Approved wildlife trade operation

(1) The export of a specimen is an export in accordance with an

approved wildlife trade operation if the specimen is, or is derived

from, a specimen that was taken in accordance with a wildlife trade

operation declared by a declaration in force under subsection (2) to

be an approved wildlife trade operation.

(2) The Minister may, by instrument published in the Gazette, declare

that a specified wildlife trade operation is an approved wildlife

trade operation for the purposes of this section.

(3) The Minister must not declare an operation under subsection (2)

unless the Minister is satisfied that:

(a) the operation is consistent with the objects of this Part; and

(b) the operation will not be detrimental to:

(i) the survival of a taxon to which the operation relates; or

(ii) the conservation status of a taxon to which the operation

relates; and

(ba) the operation will not be likely to threaten any relevant

ecosystem including (but not limited to) any habitat or

biodiversity; and

(c) if the operation relates to the taking of live specimens that

belong to a taxon specified in the regulations—the conditions

that, under the regulations, are applicable to the welfare of

the specimens are likely to be complied with; and

(d) such other conditions (if any) as are specified in the

regulations have been, or are likely to be, satisfied.

(4) In deciding whether to declare an operation under subsection (2),

the Minister must have regard to:

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(a) the significance of the impact of the operation on an

ecosystem (for example, an impact on habitat or

biodiversity); and

(b) the effectiveness of the management arrangements for the

operation (including monitoring procedures).

(5) In deciding whether to declare an operation under subsection (2),

the Minister must have regard to:

(a) whether legislation relating to the protection, conservation or

management of the specimens to which the operation relates

is in force in the State or Territory concerned; and

(b) whether the legislation applies throughout the State or

Territory concerned; and

(c) whether, in the opinion of the Minister, the legislation is

effective.

(6) A declaration under subsection (2) ceases to be in force at the

beginning of the third anniversary of the day on which the

declaration took effect. However, this rule does not apply if a

period of less than 3 years is specified in the declaration in

accordance with subsection 303FT(4).

(7) If a declaration ceases to be in force, this Act does not prevent the

Minister from making a fresh declaration under subsection (2).

(8) A fresh declaration may be made during the 90-day period before

the time when the current declaration ceases to be in force.

(9) A fresh declaration that is made during that 90-day period takes

effect immediately after the end of that period.

(10) For the purposes of this section, an operation is a wildlife trade

operation if, and only if, the operation is an operation for the

taking of specimens and:

(a) the operation is an operation that, under the regulations, is

taken to be a market-testing operation; or

(b) the operation is an operation that, under the regulations, is

taken to be a small-scale operation; or

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(c) the operation is an operation that, under the regulations, is

taken to be a developmental operation; or

(d) the operation is a commercial fishery; or

(e) the operation is an operation that, under the regulations, is

taken to be a provisional operation; or

(f) the operation is an operation of a kind specified in the

regulations.

(10A) In deciding whether to declare that a commercial fishery is an

approved wildlife trade operation for the purposes of this section,

the Minister must rely primarily on the outcomes of any

assessment in relation to the fishery carried out for the purposes of

Division 1 or 2 of Part 10.

(10B) Subsection (10A) does not limit the matters that may be taken into

account in deciding whether to declare that a fishery is an approved

wildlife trade operation for the purposes of this section.

(11) In this section:

fish includes all species of bony fish, sharks, rays, crustaceans,

molluscs and other marine organisms, but does not include marine

mammals or marine reptiles.

fishery means a class of activities by way of fishing, including

activities identified by reference to all or any of the following:

(a) a species or type of fish;

(b) a description of fish by reference to sex or any other

characteristic;

(c) an area of waters or of seabed;

(d) a method of fishing;

(e) a class of vessels;

(f) a class of persons;

(g) a purpose of activities.

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303FO Approved wildlife trade management plan

(1) The export of a specimen is an export in accordance with an

approved wildlife trade management plan if the specimen is, or is

derived from, a specimen that was taken in accordance with a plan

declared by a declaration in force under subsection (2) to be an

approved wildlife trade management plan.

(2) The Minister may, by instrument published in the Gazette, declare

that a specified plan is an approved wildlife trade management

plan for the purposes of this section.

(3) The Minister must not declare a plan under subsection (2) unless

the Minister is satisfied that:

(a) the plan is consistent with the objects of this Part; and

(b) there has been an assessment of the environmental impact of

the activities covered by the plan, including (but not limited

to) an assessment of:

(i) the status of the species to which the plan relates in the

wild; and

(ii) the extent of the habitat of the species to which the plan

relates; and

(iii) the threats to the species to which the plan relates; and

(iv) the impacts of the activities covered by the plan on the

habitat or relevant ecosystems; and

(c) the plan includes management controls directed towards

ensuring that the impacts of the activities covered by the plan

on:

(i) a taxon to which the plan relates; and

(ii) any taxa that may be affected by activities covered by

the plan; and

(iii) any relevant ecosystem (for example, impacts on habitat

or biodiversity);

are ecologically sustainable; and

(d) the activities covered by the plan will not be detrimental to:

(i) the survival of a taxon to which the plan relates; or

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(ii) the conservation status of a taxon to which the plan

relates; or

(iii) any relevant ecosystem (for example, detriment to

habitat or biodiversity); and

(e) the plan includes measures:

(i) to mitigate and/or minimise the environmental impact of

the activities covered by the plan; and

(ii) to monitor the environmental impact of the activities

covered by the plan; and

(iii) to respond to changes in the environmental impact of

the activities covered by the plan; and

(f) if the plan relates to the taking of live specimens that belong

to a taxon specified in the regulations—the conditions that,

under the regulations, are applicable to the welfare of the

specimens are likely to be complied with; and

(g) such other conditions (if any) as are specified in the

regulations have been, or are likely to be, satisfied.

(4) In deciding whether to declare a plan under subsection (2), the

Minister must have regard to:

(a) whether legislation relating to the protection, conservation or

management of the specimens to which the plan relates is in

force in the State or Territory concerned; and

(b) whether the legislation applies throughout the State or

Territory concerned; and

(c) whether, in the opinion of the Minister, the legislation is

effective.

(5) A declaration under subsection (2) ceases to be in force at the

beginning of the fifth anniversary of the day on which the

declaration took effect. However, this rule does not apply if a

period of less than 5 years is specified in the declaration in

accordance with subsection 303FT(4).

(6) If a declaration ceases to be in force, this Act does not prevent the

Minister from making a fresh declaration under subsection (2).

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(7) A fresh declaration may be made during the 90-day period before

the time when the current declaration ceases to be in force.

(8) A fresh declaration that is made during that 90-day period takes

effect immediately after the end of that period.

303FP Accredited wildlife trade management plan

(1) The export of a specimen is an export in accordance with an

accredited wildlife trade management plan if the specimen is, or is

derived from, a specimen that was taken in accordance with a plan

declared by a declaration in force under subsection (2) to be an

accredited wildlife trade management plan.

(2) The Minister may, by instrument published in the Gazette, declare

that a specified plan is an accredited wildlife trade management

plan for the purposes of this section.

(3) The Minister must not declare a plan under subsection (2) unless

the Minister is satisfied that:

(a) the plan is in force under a law of the Commonwealth or of a

State or Territory; and

(b) the conditions set out in subsection 303FO(3) have been met

in relation to the plan; and

(c) the plan imposes limits in relation to the taking of specimens;

and

(d) the compliance and enforcement measures relating to the

plan are likely to be effective in preventing specimens taken

in breach of the plan from being traded or exported; and

(e) the plan provides for the monitoring of:

(i) the taking of specimens under the plan; and

(ii) the export of specimens taken under the plan; and

(iii) the status of the species to which the plan relates in the

wild; and

(iv) the impacts of the activities under the plan on the habitat

of the species to which the plan relates; and

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(f) the plan provides for statistical reports about specimens taken

under the plan to be given to the Minister on a regular basis;

and

(g) such other conditions (if any) as are specified in the

regulations have been, or are likely to be, satisfied.

(4) A declaration under subsection (2) ceases to be in force at the

beginning of the fifth anniversary of the day on which the

declaration took effect. However, this rule does not apply if a

period of less than 5 years is specified in the declaration in

accordance with subsection 303FT(4).

(5) If a declaration ceases to be in force, this Act does not prevent the

Minister from making a fresh declaration under subsection (2).

(6) A fresh declaration may be made during the 90-day period before

the time when the current declaration ceases to be in force.

(7) A fresh declaration that is made during that 90-day period takes

effect immediately after the end of that period.

(8) The Minister must publish on the internet copies of reports given

as mentioned in paragraph (3)(f).

(9) The Minister is not required to comply with subsection (8) to the

extent to which compliance could reasonably be expected to:

(a) prejudice substantially the commercial interests of a person;

or

(b) be detrimental to:

(i) the survival of a taxon to which the plan relates; or

(ii) the conservation status of a taxon to which the plan

relates.

303FQ Consultation with State and Territory agencies

Before making a declaration under section 303FO or 303FP, the

Minister must consult a relevant agency of each State and

self-governing Territory affected by the declaration.

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303FR Public consultation

(1) Before making a declaration under section 303FN, 303FO or

303FP, the Minister must cause to be published on the internet a

notice:

(a) setting out the proposal to make the declaration; and

(b) setting out sufficient information to enable persons and

organisations to consider adequately the merits of the

proposal; and

(c) inviting persons and organisations to give the Minister,

within the period specified in the notice, written comments

about the proposal.

(2) A period specified in a notice under subsection (1) must not be

shorter than 20 business days after the date on which the notice

was published on the internet.

(3) In making a decision about whether to make a declaration under

section 303FN, 303FO or 303FP, the Minister must consider any

comments about the proposal to make the declaration that were

given in response to an invitation under subsection (1).

303FRA Assessments

(1) The regulations may prescribe an assessment process that is to be

used for the purposes of sections 303FN, 303FO and 303FP to

assess the potential impacts on the environment of:

(a) a wildlife trade operation; or

(b) the activities covered by a plan;

where the operation is, or the activities are, likely to have a

significant impact on the environment.

(2) If regulations made for the purposes of subsection (1) apply to a

wildlife trade operation or to a plan, the Minister must not declare:

(a) the operation under subsection 303FN(2); or

(b) the plan under subsection 303FO(2) or 303FP(2);

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unless the assessment process prescribed by those regulations has

been followed in relation to the assessment of the operation or

plan, as the case may be.

(3) Without limiting subsection (1), regulations made for the purposes

of that subsection may make provision for:

(a) the application of Part 8 (except sections 82, 83 and 84) and

the other provisions of this Act (so far as they relate to that

Part) in relation to the assessment process, subject to such

modifications as are specified in the regulations; and

(b) exemptions from the assessment process.

(4) In this section:

wildlife trade operation has the same meaning as in

subsection 303FN(10), but does not include an operation

mentioned in paragraph 303FN(10)(d).

303FS Register of declarations

(1) The Minister must cause to be maintained a register that sets out

declarations made under section 303FN, 303FO or 303FP.

(2) The register may be maintained by electronic means.

(3) The register is to be made available for inspection on the internet.

303FT Additional provisions relating to declarations

(1) This section applies to a declaration under section 303FN, 303FO

or 303FP.

(2) A declaration may be made:

(a) on the Minister’s own initiative; or

(b) on written application being made to the Minister.

(3) The Minister may make a declaration about a plan or operation

even though he or she considers that the plan or operation should

be the subject of the declaration only to the extent that the plan or

operation relates to a particular class of specimens. In such a case:

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(a) the instrument of declaration is to specify that class of

specimens; and

(b) the plan or operation is covered by the declaration only to the

extent that the plan or operation relates to that class of

specimens.

(4) The Minister may make a declaration about a plan or operation

even though he or she considers that the plan or operation should

be the subject of the declaration only:

(a) during a particular period; or

(b) while certain circumstances exist; or

(c) while a certain condition is complied with.

In such a case, the instrument of declaration is to specify the

period, circumstances or condition.

(5) If a declaration specifies a particular period as mentioned in

subsection (4), the declaration ceases to be in force at the end of

that period.

(6) If a declaration specifies circumstances as mentioned in

subsection (4), the Minister must, by instrument published in the

Gazette, revoke the declaration if he or she is satisfied that those

circumstances have ceased to exist.

(7) The Minister may, by instrument published in the Gazette, vary a

declaration by:

(a) specifying one or more conditions (or further conditions) to

which the declaration is subject; or

(b) revoking or varying a condition:

(i) specified in the instrument of declaration; or

(ii) specified under paragraph (a).

(8) A condition may relate to reporting or monitoring.

(9) The Minister must, by instrument published in the Gazette, revoke

a declaration if he or she is satisfied that a condition of the

declaration has been contravened.

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(10) The Minister may, by instrument published in the Gazette, revoke a

declaration at any time.

(11) A copy of an instrument under section 303FN, 303FO or 303FP or

this section is to be made available for inspection on the internet.

303FU Approved commercial import program

The import of a specimen is an import from an approved

commercial import program in accordance with this section if the

specimen is sourced from a program that, under the regulations, is

taken to be an approved commercial import program.

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Section 303GA

Division 6—Miscellaneous

303GA Permit decision—controlled action, and action for which a

non-Part 13A permit is required

(1) This section applies if:

(a) an application is made under section 303CE, 303DE or

303EL for a permit (the first permit) to authorise the taking

of an action (the proposed action); and

(b) the Minister considers that:

(i) the proposed action may be or is a controlled action; or

(ii) the proposed action is related to an action (the related

action) that may be or is a controlled action; or

(iii) the proposed action is an action for which a

non-Part 13A permit is required; or

(iv) the proposed action is related to an action (the related

action) that is an action for which a non-Part 13A

permit is required.

Deferral of decision

(2) The Minister must neither issue, nor refuse to issue, the first permit

before whichever is the latest of the following days:

(a) if subparagraph (1)(b)(i) applies—the day on which the

Minister makes a decision under section 75 about whether

the proposed action is a controlled action;

(b) if subparagraph (1)(b)(i) applies and the Minister makes a

decision under section 75 that the proposed action is a

controlled action—the day on which the Minister makes a

decision under section 133 approving, or refusing to approve,

the taking of the controlled action;

(c) if subparagraph (1)(b)(ii) applies—the day on which the

Minister makes a decision under section 75 about whether

the related action is a controlled action;

(d) if subparagraph (1)(b)(ii) applies and the Minister makes a

decision under section 75 that the related action is a

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controlled action—the day on which the Minister makes a

decision under section 133 approving, or refusing to approve,

the taking of the controlled action;

(e) if subparagraph (1)(b)(iii) applies—the day on which a

decision is made to issue, or to refuse to issue, the

non-Part 13A permit referred to in that subparagraph;

(f) if subparagraph (1)(b)(iv) applies—the day on which a

decision is made to issue, or to refuse to issue, the

non-Part 13A permit referred to in that subparagraph.

Refusal of permit

(3) The Minister must not issue the first permit if:

(a) subparagraph (1)(b)(i) applies; and

(b) the Minister makes a decision under section 75 that the

proposed action is a controlled action; and

(c) the Minister makes a decision under section 133 refusing to

approve the taking of the controlled action.

(4) The Minister must not issue the first permit if:

(a) subparagraph (1)(b)(ii) applies; and

(b) the Minister makes a decision under section 75 that the

related action is a controlled action; and

(c) the Minister makes a decision under section 133 refusing to

approve the taking of the controlled action.

(5) The Minister must not issue the first permit if:

(a) subparagraph (1)(b)(iii) applies; and

(b) a decision is made to refuse to issue the non-Part 13A permit

referred to in that subparagraph.

(6) The Minister must not issue the first permit if:

(a) subparagraph (1)(b)(iv) applies; and

(b) a decision is made to refuse to issue the non-Part 13A permit

referred to in that subparagraph.

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Section 303GB

Action for which a non-Part 13A permit is required

(7) For the purposes of this section, an action that a person proposes to

take is an action for which a non-Part 13A permit is required if

the taking of the action by the person without a non-Part 13A

permit would be prohibited by this Act or the regulations if it were

assumed that this Part had not been enacted.

(8) For the purposes of this section, a non-Part 13A permit is a permit

issued under this Act (other than this Part) or the regulations.

Related action

(9) For the purposes of this section, if a specimen was taken, the action

of exporting or importing the specimen is related to:

(a) that taking; and

(b) any action that affected the specimen after that taking and

before that export or import.

(10) For the purposes of this section, if a specimen is derived from a

specimen that was taken, the action of exporting or importing the

first-mentioned specimen is related to:

(a) that taking; and

(b) any action that affected the first-mentioned specimen, or

either of those specimens, after that taking and before that

export or import.

303GB Exceptional circumstances permit

(1) If:

(a) the Minister is considering an application by a person for a

permit to be issued under section 303CG, 303DG or 303EN

in relation to a specimen; and

(b) under this Part, the Minister is precluded from issuing that

permit unless the Minister is satisfied in relation to a matter;

and

(c) even though the Minister is not satisfied in relation to that

matter, the Minister is satisfied that:

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(i) the export or import of the specimen, as the case may

be, would not be contrary to the objects of this Part; and

(ii) exceptional circumstances exist that justify the proposed

export or import of the specimen; and

(iii) the export or import of the specimen, as the case may

be, would not adversely affect biodiversity;

the Minister may issue a permit to the person.

(1A) The Minister must not issue a permit under this section unless the

grant of that permit would not be contrary to CITES.

(2) A permit under this section authorises the holder of the permit to

take the action or actions specified in the permit, in the permitted

period, without breaching section 303CC, 303CD, 303DD or

303EK.

(2A) For the purpose of subsection (2), the permitted period is the

period specified in the permit as the period during which the action

or actions specified in the permit may be taken. The period so

specified must start on the date of issue of the permit and end not

later than:

(a) if the permit relates to a CITES specimen—6 months after

that date; or

(b) if the permit relates to a specimen other than a CITES

specimen—12 months after that date.

Duration of permit

(3) A permit under this section:

(a) comes into force on the date on which it is issued; and

(b) unless it is sooner cancelled, remains in force until all of the

following periods have ended:

(i) the permitted period (within the meaning of

subsection (2A));

(ii) each period for which one or more conditions of the

permit are expressed to apply.

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Further information

(5) The Minister may, within 40 business days after an application is

made as mentioned in subsection (1), request the applicant to give

the Minister, within the period specified in the request, further

information for the purpose of enabling the Minister to deal with

the application.

(6) The Minister may refuse to consider the application until the

applicant gives the Minister the information in accordance with the

request.

Public consultation

(7) Before issuing a permit under this section, the Minister must cause

to be published on the internet a notice:

(a) setting out the proposal to issue the permit; and

(b) setting out sufficient information to enable persons and

organisations to consider adequately the merits of the

proposal; and

(c) inviting persons and organisations to give the Minister,

within the period specified in the notice, written comments

about the proposal.

(8) A period specified in a notice under subsection (7) must not be

shorter than 5 business days after the date on which the notice was

published on the internet.

(9) In making a decision under subsection (1) about whether to issue a

permit, the Minister must consider any comments about the

proposal to issue the permit that were given in response to an

invitation under subsection (7).

303GC Permit authorising the Secretary to export or import

specimens

(1) The Secretary may apply to the Minister for a permit to be issued

under subsection (2).

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(2) The Minister may, on application made by the Secretary under

subsection (1), issue a permit to the Secretary. This subsection has

effect subject to subsections (4) and (5).

(3) A permit under subsection (2) authorises the Secretary to take the

action or actions specified in the permit, in the permitted period,

without breaching section 303CC, 303CD, 303DD or 303EK.

(3A) For the purpose of subsection (3), the permitted period is the

period specified in the permit as the period during which the action

or actions specified in the permit may be taken. The period so

specified must start on the date of issue of the permit and end not

later than 12 months after that date.

(4) The Minister must not issue a permit under this section to export a

specimen unless the Minister is satisfied that:

(a) both:

(i) the recipient of the specimen will be a relevant CITES

authority of a country; and

(ii) the specimen will be used by that relevant CITES

authority for the purpose of the identification of a

specimen and/or for the purpose of education or

training; or

(b) both:

(i) the specimen has been seized under this Act; and

(ii) the specimen will be used to facilitate investigations in

or outside Australia in relation to trade relating to

wildlife.

(5) The Minister must not issue a permit under this section to import a

specimen unless the Minister is satisfied that:

(a) the specimen will be used by the Secretary for the purposes

of the identification of a specimen; or

(b) both:

(i) the sender of the specimen will be a relevant CITES

authority of a country; and

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(ii) the specimen will be used for the purpose of the

identification of a specimen and/or for the purpose of

education or training; or

(c) the specimen was exported from Australia in contravention

of:

(i) this Part; or

(ii) the Wildlife Protection (Regulation of Exports and

Imports) Act 1982; or

(d) the specimen will be used to facilitate investigations in or

outside Australia in relation to trade relating to wildlife.

(6) A permit under this section:

(a) comes into force on the date on which it is issued; and

(b) unless it is sooner cancelled, remains in force until all of the

following periods have ended:

(i) the permitted period (within the meaning of

subsection (3A));

(ii) each period for which one or more conditions of the

permit are expressed to apply.

303GD Testing permit—section 303EE assessments

Applications for permits

(1) A person may, in accordance with the regulations, apply to the

Minister for a permit to be issued under subsection (5).

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

by the regulations.

Further information

(3) The Minister may, within 40 business days after the application is

made, request the person to give the Minister, within the period

specified in the request, further information for the purpose of

enabling the Minister to deal with the application.

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(4) The Minister may refuse to consider the application until the

person gives the Minister the information in accordance with the

request.

Minister may issue permits

(5) The Minister may, on application made by a person under

subsection (1), issue a permit to the person. This subsection has

effect subject to subsections (7) and (8).

(6) A permit authorises its holder to take the action or actions specified

in the permit, in the permitted period, without breaching

section 303EK.

(6A) For the purpose of subsection (6), the permitted period is the

period specified in the permit as the period during which the action

or actions specified in the permit may be taken. The period so

specified must start on the date of issue of the permit and end not

later than 6 months after that date.

(7) The Minister must not issue a permit to a person unless the

Minister is satisfied that:

(a) the person has made an application to the Minister under

section 303EE for the list referred to in section 303EB to be

amended by including an item; and

(b) if the proposed amendment were made, the specimen would

be covered by the item; and

(c) the specimen is not a CITES specimen; and

(d) if an assessment is to be made under subsection 303EE(3) of

the potential impacts on the environment of the proposed

amendment—the terms of reference for a report on the

assessment have been:

(i) prepared as mentioned in paragraph 303EF(1)(a); or

(ii) finalised as mentioned in

subparagraph 303EF(1)(b)(iii); and

(e) the person proposes to conduct tests on the specimen in

Australia in order to obtain information for the assessment;

and

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(f) the information is required for the assessment; and

(g) it is not reasonably practicable for the person to obtain the

information without conducting the tests in Australia; and

(h) the tests will be conducted in a controlled environment.

(8) The Minister must not issue a permit under this section unless the

permit is subject to one or more conditions about holding the

specimen in quarantine.

Duration of permit

(9) A permit under this section:

(a) comes into force on the date on which it is issued; and

(b) unless it is sooner cancelled, remains in force until all of the

following periods have ended:

(i) the permitted period (within the meaning of

subsection (6A));

(ii) each period for which one or more conditions of the

permit are expressed to apply.

Investigations

(10) A reference in this section to tests on the specimen includes a

reference to investigations relating to the specimen.

303GE Conditions of permits

(1) This section applies to a permit issued under this Part.

(2) A permit is subject to such conditions as are specified in the permit

or as are imposed under subsection (3).

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

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

(b) impose further conditions of a permit.

(4) The Minister’s powers under subsection (3) may be exercised:

(a) on the Minister’s own initiative; or

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(b) on the application of the holder of the permit concerned.

(5) If a permit authorises its holder to take a particular action, a

condition of the permit may require the holder to do, or not do, an

act or thing before, at or after the time when the action takes place.

(5A) Without limiting subsection (5), a condition of a permit may be

expressed to apply for a period that will not end until after the

export or import of a specimen under the permit has occurred,

including for example:

(a) a period the length of which is known when the condition is

imposed (such as a period that is expressed as a specified

number of years); or

(b) a period the length of which is unknown when the condition

is imposed (such as a period that is expressed as the life of

the specimen, or the life of progeny of the specimen).

Note: Conditions may, for example, relate to how a specimen, and its

progeny, are kept or dealt with during their lifetimes.

(6) If a person is given an authority under section 303GG by the holder

of a permit, subsections (5) and (5A) apply to the person in a

corresponding way to the way in which they apply to the holder of

the permit.

(7) Subsections (4), (5), (5A) and (6) are to be disregarded in

determining the meaning of a provision of this Act (other than a

provision of this Part) that relates to conditions of permits issued

otherwise than under this Part.

303GF Contravening conditions of a permit

(1) This section applies to a permit issued under this Part.

(2) A person commits an offence if:

(a) the person is:

(i) the holder of a permit; or

(ii) a person to whom an authority under section 303GG has

been given by the holder of a permit; and

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(b) the person engages in conduct; and

(c) the conduct results in a contravention of a condition of the

permit.

Penalty: 300 penalty units.

(3) The holder of a permit commits an offence if:

(a) the person is:

(i) the holder of a permit; or

(ii) a person to whom an authority under section 303GG has

been given by the holder of a permit; and

(b) the person engages in conduct; and

(c) the conduct results in a contravention of a condition of the

permit; and

(d) the condition relates to:

(i) the sale or other disposal of a live animal or a live plant;

or

(ii) the sale or other disposal of the progeny of a live animal

or a live plant; or

(iii) the release from captivity of a live animal; or

(iv) the release from captivity of the progeny of a live

animal; or

(v) the escape of a live plant.

Penalty: 600 penalty units.

(4) For the purposes of subsection (3), a person is taken to have

released an animal from captivity if:

(a) that animal has escaped from captivity; and

(b) either:

(i) the person allowed the animal to escape; or

(ii) the person failed to take all reasonable measures to

prevent the animal from escaping.

(4A) For the purposes of subsection (3), a person is taken to have

allowed a plant to escape if:

(a) the plant has grown or propagated in the wild; and

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(b) either:

(i) the person allowed the plant to escape; or

(ii) the person failed to take all reasonable measures to

prevent the plant from growing or propagating in the

wild.

(5) In subsections (2) and (3), strict liability applies to the

circumstance that the person was given an authority under

section 303GG.

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

303GG Authorities under permits

(1) This section applies to a permit issued under this Part.

(2) Except as provided in this section, a permit does not authorise the

taking of any action by a person for or on behalf of the holder of

the permit.

(3) Subject to subsection (4), the holder of a permit may give a person

written authority to take for or on behalf of the holder any action

authorised by the permit. The authority may be given generally or

as otherwise provided by the instrument of authority.

(4) The holder of a permit must not give an authority unless:

(a) the permit contains a condition permitting the holder to do

so; and

(b) the authority is given in accordance with any requirements

set out in the condition.

(5) A permit is, for the purposes of this Act, taken to authorise the

taking of a particular action by a person if the taking of that action

by the person is authorised by an authority given by the holder of

the permit.

(6) The giving of an authority does not prevent the taking of any action

by the holder of the permit.

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(7) A person who gives an authority must give to the Minister written

notice of it within 14 days after giving the authority.

303GH Transfer of permits

(1) This section applies to a permit issued under this Part.

(2) On the application, in accordance with the regulations, of the

holder of a permit, the Minister may, in accordance with the

regulations, transfer the permit to another person.

(3) In deciding whether to transfer the permit to another person, the

Minister must consider whether the transferee is a suitable person

to hold the permit, having regard to the matters set out in the

regulations.

303GI Suspension or cancellation of permits

(1) This section applies to a permit issued under this Part.

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

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

(b) cancel a permit.

303GJ Review of decisions

(1) Subject to subsection (2), an application may be made to the

Administrative Appeals Tribunal for review of a decision:

(a) to issue or refuse a permit; or

(b) to specify, vary or revoke a condition of a permit; or

(c) to impose a further condition of a permit; or

(d) to transfer or refuse to transfer a permit; or

(e) to suspend or cancel a permit; or

(f) to issue or refuse a certificate under subsection 303CC(5); or

(g) of the Secretary under a determination in force under

section 303EU; or

(h) to make or refuse a declaration under section 303FN, 303FO

or 303FP; or

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(i) to vary or revoke a declaration under section 303FN, 303FO

or 303FP.

(2) Subsection (1) does not apply to a decision made personally by the

Minister (but the subsection does apply to a decision made by a

delegate of the Minister).

(3) In this section:

permit means a permit under this Part.

303GK Permit to be produced

Export permit

(1) For the purposes of this Part, if the holder of a permit to export a

specimen exports that specimen, he or she is not to be taken to

have exported that specimen in accordance with that permit unless,

before exporting the specimen, he or she:

(a) produced the permit, or caused the permit to be produced, to

an authorised officer doing duty in relation to the export of

the specimen; or

(b) received written notice from the Secretary authorising the

export of the specimen without the production of the permit.

(2) The Secretary must not give the notice referred to in

paragraph (1)(b) unless he or she:

(a) is satisfied that the production of the permit is impracticable;

and

(b) endorses a copy of the permit to show that the notice is being

given; and

(c) makes that copy available to an authorised officer doing duty

in relation to the export of the specimen.

Import permit

(3) For the purposes of this Part, if the holder of a permit to import a

specimen imports that specimen, he or she is not to be taken to

have imported that specimen in accordance with that permit unless,

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before or within a reasonable time after importing the specimen, he

or she produced the permit, or caused the permit to be produced, to

an authorised officer doing duty in relation to the import of the

specimen.

Authorities under section 303GG

(4) If a person is given an authority under section 303GG by the holder

of a permit, this section applies to the person in a corresponding

way to the way in which it applies to the holder of the permit.

303GL Pre-CITES certificate to be produced

Export certificate

(1) If a person exports a specimen and wishes to rely on a certificate

issued under subsection 303CC(5), he or she is not entitled to rely

on that certificate unless, before exporting the specimen, he or she:

(a) produced the certificate, or caused the certificate to be

produced, to an authorised officer doing duty in relation to

the export of the specimen; or

(b) received written notice from the Secretary authorising the

export of the specimen without the production of the

certificate.

(2) The Secretary must not give the notice referred to in

paragraph (1)(b) unless he or she:

(a) is satisfied that the production of the certificate is

impracticable; and

(b) endorses a copy of the certificate to show that the notice is

being given; and

(c) makes that copy available to an authorised officer doing duty

in relation to the export of the specimen.

Import certificate

(3) If a person imports a specimen and wishes to rely on a certificate

referred to in paragraph 303CD(6)(b), he or she is not entitled to

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rely on the certificate unless, before or within a reasonable time

after importing the specimen, he or she produced the certificate, or

caused the certificate to be produced, to an authorised officer doing

duty in relation to the import of the specimen.

303GM Fees

(1) This section applies to a permit under this Part.

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

following:

(a) the issue or the transfer of a permit;

(b) the variation or revocation of a condition of a permit;

(c) the imposition of a further condition of a permit.

303GN Possession of illegally imported specimens

Object

(1) The object of this section is:

(a) to comply with Australia’s obligations under:

(i) the Biodiversity Convention; and

(ii) CITES; and

(b) to otherwise further the objects of this Part;

by prohibiting the possession of illegally imported specimens and

the progeny of such specimens.

Note: See Article 8 of the Biodiversity Convention.

Possession of CITES specimens and unlisted regulated live

specimens

(2) A person commits an offence if:

(a) the person has in the person’s possession, in the Australian

jurisdiction, a specimen; and

(b) the specimen is:

(i) a CITES specimen; or

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(ii) a regulated live specimen that is not included in the list

referred to in section 303EB;

and the person is reckless as to that fact; and

(c) the specimen does not belong to a native species.

Penalty: Imprisonment for 5 years or 1,000 penalty units, or both.

(3) Subsection (2) does not apply if:

(a) the specimen was lawfully imported; or

(b) the specimen was not imported, but all of the specimens of

which it is the progeny were lawfully imported.

Note 1: For lawfully imported, see section 303GY.

Note 2: The defendant bears an evidential burden in relation to the matters in

subsection (3) (see subsection 13.3(3) of the Criminal Code).

(4) Subsection (2) does not apply if the specimen was neither

imported, nor the progeny of any other specimen that was

imported.

Note: The defendant bears an evidential burden in relation to the matters in

subsection (4) (see subsection 13.3(3) of the Criminal Code).

(5) Subsection (2) does not apply if the defendant has a reasonable

excuse.

Note: The defendant bears an evidential burden in relation to the matter in

subsection (5) (see subsection 13.3(3) of the Criminal Code).

Possession of listed regulated live specimens

(6) A person commits an offence if:

(a) the person has in the person’s possession, in the Australian

jurisdiction, a specimen; and

(b) the specimen is a regulated live specimen that is included in

Part 2 of the list referred to in section 303EB, and the person

is reckless as to that fact; and

(c) the specimen does not belong to a native species; and

(d) either:

(i) the specimen was unlawfully imported; or

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(ii) the specimen was not imported, but any of the

specimens of which it is the progeny was unlawfully

imported.

Penalty: Imprisonment for 5 years or 1,000 penalty units, or both.

(7) Subsection (6) does not apply if the defendant has a reasonable

excuse.

Note: The defendant bears an evidential burden in relation to the matter in

subsection (7) (see subsection 13.3(3) of the Criminal Code).

Unlawfully imported

(8) For the purposes of this section, a specimen is unlawfully imported

if, and only if, it was imported, but was not lawfully imported

(section 303GY).

303GO Regulations relating to welfare

(1) This section applies to regulations made for the purposes of

paragraph 303CG(3)(c), 303DG(4)(b), 303EN(3)(e), 303FN(3)(c)

or 303FO(3)(f).

(2) The conditions specified in those regulations in relation to a live

animal may:

(a) deal with the welfare of the animal:

(i) when the animal is taken; or

(ii) when the animal is being held after it has been taken; or

(iii) when the animal is being prepared or shipped; or

(iv) when the animal is under the control of the proposed

recipient; and

(b) may deal with eliminating or minimising the risk of:

(i) injury to the animal; or

(ii) adverse effects on the health of the animal; or

(iii) cruel treatment of the animal.

(3) The conditions specified in those regulations in relation to a live

plant may:

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(a) deal with the welfare of the plant:

(i) when the plant is taken; or

(ii) when the plant is being held after it has been taken; or

(iii) when the plant is being prepared or shipped; or

(iv) when the plant is under the control of the proposed

recipient; and

(b) may deal with eliminating or minimising the risk of:

(i) injury to the plant; or

(ii) adverse effects on the health of the plant.

(4) Subsections (2) and (3) do not limit paragraph 303CG(3)(c),

303DG(4)(b), 303EN(3)(e), 303FN(3)(c) or 303FO(3)(f).

303GP Cruelty—export or import of animals

(1) A person commits an offence if:

(a) the person exports or imports a live animal in a manner that

subjects the animal to cruel treatment; and

(b) the person knows that, or is reckless as to whether, the export

or import subjects the animal to cruel treatment; and

(c) the animal is a CITES specimen; and

(d) the person contravenes section 303CC or 303CD in relation

to the export or import of the animal.

Penalty: Imprisonment for 2 years.

(2) A person commits an offence if:

(a) the person exports a live animal in a manner that subjects the

animal to cruel treatment; and

(b) the person knows that, or is reckless as to whether, the export

subjects the animal to cruel treatment; and

(c) the animal is a regulated native specimen; and

(d) the person contravenes section 303DD in relation to the

export of the animal.

Penalty: Imprisonment for 2 years.

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(3) A person commits an offence if:

(a) the person imports a live animal in a manner that subjects the

animal to cruel treatment; and

(b) the person knows that, or is reckless as to whether, the import

subjects the animal to cruel treatment; and

(c) the animal is a regulated live specimen; and

(d) the person contravenes section 303EK in relation to the

import of the animal.

Penalty: Imprisonment for 2 years.

(4) This section does not limit section 303GE.

303GQ Imports of specimens contrary to the laws of a foreign

country

(1) A person must not intentionally import a specimen if the person

knows that:

(a) the specimen was exported from a foreign country; and

(b) at the time the specimen was exported, the export of the

specimen was prohibited by a law of the foreign country that

corresponds to this Part.

Penalty: Imprisonment for 5 years.

(2) A prosecution must not be instituted for an offence against this

section unless a relevant CITES authority of the foreign country

has requested:

(a) the investigation of the offence; or

(b) assistance in relation to a class of offences in which the

offence is included.

303GR Evidence

(1) In any proceedings for an offence against this Part:

(a) any record kept in accordance with the regulations or another

law of the Commonwealth or a law of a State or Territory is

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admissible as prima facie evidence of the facts stated in the

record; and

(b) a copy of an entry in such a record, being a copy certified by

the person by whom the record is kept to be a true copy of

the entry, is admissible as prima facie evidence of the facts

stated in the entry; and

(c) a document purporting to be a record kept in accordance with

the regulations or another law of the Commonwealth, or a

law of a State or Territory, or purporting to be such a

certified copy as is referred to in paragraph (b), is taken,

unless the contrary is established, to be such a record or

certified copy, as the case may be.

(2) If, in any proceedings for an offence against this Part, a record

referred to in paragraph (1)(a) is tendered as prima facie evidence

of a fact stated in the record, the person alleged to have committed

the offence may require the person who kept that record to be

called as a witness for the prosecution in the proceedings.

303GS Evidence of examiner

(1) The Minister may, by writing, appoint appropriately qualified

persons to be examiners for the purposes of this Part.

(2) Subject to subsection (4), a certificate signed by an examiner

appointed under subsection (1) setting out, in relation to a

substance, matter, specimen or thing, one or more of the following:

(a) that he or she is appointed as the examiner under

subsection (1);

(b) when and from whom the substance, matter, specimen or

thing was received;

(c) what labels or other means of identification accompanied the

substance, matter, specimen or thing when it was received;

(d) what container held the substance, matter, specimen or thing

when it was received;

(e) a description, including the weight, of the substance, matter,

specimen or thing when it was received;

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(f) the name of any method used to analyse the substance,

matter, specimen or thing or any portion of it;

(g) the results of any such analysis;

(h) how the substance, matter, specimen or thing was dealt with

after handling by the examiner, including details of:

(i) the quantity of the substance, matter, specimen or thing

retained after analysis; and

(ii) names of any persons to whom any of the substance,

matter, specimen or thing was given after analysis; and

(iii) measures taken to secure any retained quantity of the

substance, matter, specimen or thing after analysis;

is admissible in any proceeding for an offence against this Part as

prima facie evidence of the matters in the certificate and the

correctness of the results of the analysis.

(3) For the purposes of this section, a document purporting to be a

certificate referred to in subsection (2) is taken to be such a

certificate unless the contrary is established.

(4) A certificate is not to be admitted in evidence in accordance with

subsection (2) in proceedings for an offence against this

Part unless:

(a) the person charged with the offence; or

(b) a solicitor who has appeared for the person in those

proceedings;

has, at least 14 days before the certificate is sought to be admitted,

been given a copy of the certificate together with reasonable notice

of the intention to produce the certificate as evidence in the

proceedings.

(5) Subject to subsection (6), if, under subsection (2), a certificate is

admitted in evidence in proceedings for an offence against this

Part, the person charged with the offence may require the person

giving the certificate to be called as a witness for the prosecution

and cross-examined as if he or she had given evidence of the

matters stated in the certificate.

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(6) Subsection (5) does not entitle the person charged to require the

person giving a certificate to be called as a witness for the

prosecution unless:

(a) the prosecutor has been given at least 4 days notice of the

person’s intention to require the examiner to be so called; or

(b) the court, by order, allows the person charged to require the

person giving the certificate to be so called.

(7) Any evidence given in support, or in rebuttal, of a matter stated in

a certificate given under subsection (2) must be considered on its

merits and the credibility and probative value of such evidence

must be neither increased nor diminished by reason of this section.

303GT Protection of witness

(1) A witness for the prosecution in any proceedings for an offence

against this Part is not to be compelled to disclose:

(a) the fact that the witness received any information; or

(b) the nature of any information received by the witness; or

(c) the name of the person who gave the witness any

information.

(2) An authorised officer who is a witness in any proceedings for an

offence against this Part is not to be compelled to produce any

report:

(a) that was made or received by the authorised officer in

confidence in his or her capacity as an authorised officer; or

(b) that contains information received by the authorised officer

in confidence.

(3) Subsections (1) and (2) are to be disregarded in determining the

compellability of witnesses in proceedings for an offence against a

provision of this Act other than this Part.

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303GU Forms and declarations—persons arriving in Australia or an

external Territory

The regulations may provide for forms to be completed, or

declarations to be made, in relation to specimens by persons

arriving in Australia or an external Territory.

303GV Saving of other laws

(1) This Part is in addition to the following laws:

(a) the Customs Act 1901;

(b) the Biosecurity Act 2015;

(c) any other law of the Commonwealth or of an external

Territory, whether passed or made before or after the

commencement of this Part.

(2) The holder of a permit under this Part authorising the export or

import of a specimen is not, by reason only of being the holder of

the permit, exempt from compliance with any law referred to in

paragraph (1)(a), (b) or (c) that applies in relation to that specimen.

(3) Without limiting subsection (1), this Part, and regulations made for

the purposes of this Part, do not authorise or permit the doing of

any act in contravention of the Biosecurity Act 2015 or of a law of

an external Territory relating to quarantine.

303GW Part not to apply to certain specimens

Transhipment

(1) For the purposes of this Part, if a specimen is brought into

Australia from a country:

(a) for the purpose of transhipment to another country; or

(b) as part of an aircraft’s stores or ship’s stores;

that specimen:

(c) is taken not to have been imported into Australia; and

(d) when it leaves Australia, is taken not to be exported from

Australia.

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(2) For the purposes of this Part, if a specimen is brought into an

external Territory:

(a) for the purpose of transhipment to another country; or

(b) as part of an aircraft’s stores or ship’s stores;

that specimen:

(c) is taken not to have been imported into that Territory; and

(d) when it leaves that Territory, is taken not to be exported from

that Territory.

(3) For the purposes of subsection (1), a specimen is to be taken to be

brought into Australia for the purpose of transhipment to another

country if, and only if:

(a) the specimen is brought into Australia in the course of being

transported to an identified person in the other country; and

(b) any delay in its leaving Australia will be due solely to the

arrangements for its transport; and

(c) it will be under customs control under the Customs Act 1901

all the time that it is in Australia.

(4) For the purposes of subsection (2), a specimen is taken to be

brought into an external Territory for the purpose of transhipment

to another country if, and only if:

(a) the specimen is brought into that Territory in the course of

being transported to an identified person in the other country;

and

(b) any delay in its leaving that Territory will be due solely to the

arrangements for its transport; and

(c) it will be under the control of an authorised officer all the

time that it is in that Territory.

Emergency

(5) For the purposes of this Part, if:

(a) the Minister, the Director of Biosecurity, a prescribed person

or a prescribed organisation is satisfied that, in order to meet

an emergency involving danger to the life or health of a

human or an animal, it is necessary or desirable that a

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specimen that could be used in treating that person or animal

should be sent out of, or brought into, Australia or an

external Territory; and

(b) that specimen is sent out of, or brought into, Australia or that

Territory, as the case requires, to meet that emergency;

that specimen is taken not to have been exported or imported, as

the case may be.

Quarantine

(6) Subject to subsections (1), (2) and (5), if, in accordance with the

Biosecurity Act 2015 or a law of an external Territory relating to

quarantine, a person exercising powers under that Act or law

imports a specimen that is subject to biosecurity control under the

Biosecurity Act 2015 or subject to quarantine, then, for the

purposes of this Part, that specimen is taken to have been imported

by:

(a) if a person holds a permit to import that specimen—the

holder of that permit; or

(b) in any other case—a person whose identity is not known;

but this subsection does not affect the commission of any offence

committed before the importation of that specimen.

Definitions

(7) In this section:

aircraft’s stores and ship’s stores have the same meanings

respectively as they have in Part VII of the Customs Act 1901.

303GX Part not to apply to certain specimens used by traditional

inhabitants

(1) In this section:

area in the vicinity of the Protected Zone means an area in respect

of which a notice is in force under subsection (2).

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Australian place means a place in Australia that is in the Protected

Zone or in an area in the vicinity of the Protected Zone.

Papua New Guinea place means a place in Papua New Guinea

that is in the Protected Zone or in an area in the vicinity of the

Protected Zone.

prescribed specimen means a specimen of a kind specified in a

notice in force under subsection (3).

Protected Zone means the zone established under Article 10 of the

Torres Strait Treaty, being the area bounded by the line described

in Annex 9 to that treaty.

Torres Strait Treaty means the Treaty between Australia and the

Independent State of Papua New Guinea that was signed at Sydney

on 18 December 1978.

traditional activities has the same meaning as in the Torres Strait

Treaty.

traditional inhabitants has the same meaning as in the Torres

Strait Fisheries Act 1984.

(2) The Minister may, by notifiable instrument, declare an area

adjacent to the Protected Zone to be an area in the vicinity of the

Protected Zone for the purposes of this section.

(3) The Minister may, by notifiable instrument, declare that a

specimen of a kind specified in the notice is a prescribed specimen

for the purposes of this section.

Note: Notifiable instruments must be registered under the Legislation Act

2003, but they are not subject to parliamentary scrutiny or sunsetting

under that Act.

(4) For the purposes of this Part, if a prescribed specimen that is

owned by, or is under the control of, a traditional inhabitant and

that has been used, is being used or is intended to be used by him

or her in connection with the performance of traditional activities

in the Protected Zone or in an area in the vicinity of the Protected

Zone, is:

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(a) brought to an Australian place from a Papua New Guinea

place; or

(b) taken from an Australian place to a Papua New Guinea place;

then, subject to subsection (5), that specimen:

(c) in the case where the specimen is brought into Australia as

mentioned in paragraph (a)—is taken not to have been

imported into Australia; and

(d) in the case where the specimen is taken from Australia as

mentioned in paragraph (b)—is taken not to have been

exported from Australia.

(5) If:

(a) a prescribed specimen that has been brought into Australia is,

under subsection (4), taken not to have been imported into

Australia; and

(b) that prescribed specimen is brought to a place in Australia

that is not in the Protected Zone or in an area in the vicinity

of the Protected Zone;

the prescribed specimen is taken to have been imported into

Australia upon being brought to the place referred to in

paragraph (b).

303GY When a specimen is lawfully imported

For the purposes of this Part, a specimen is lawfully imported if,

and only if, it was imported and:

(a) in a case where the specimen was imported after the

commencement of this Part—it was not imported in

contravention of this Part; or

(b) in a case where the specimen was imported when the Wildlife

Protection (Regulation of Exports and Imports) Act 1982 was

in force—it was not imported in contravention of that Act; or

(c) in a case where the specimen was imported before the

commencement of the Wildlife Protection (Regulation of

Exports and Imports) Act 1982—it was not imported in

contravention of:

(i) the Customs (Endangered Species) Regulations; or

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(ii) the Customs (Prohibited Imports) Regulations.

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Part 14—Conservation agreements

304 Object of this Part

(1) The object of this Part is to provide for:

(a) conservation agreements between the Commonwealth and

persons related to the protection and conservation of the

following:

(i) biodiversity;

(ii) the world heritage values of declared World Heritage

properties;

(iii) the National Heritage values of National Heritage

places;

(iv) the Commonwealth Heritage values of Commonwealth

Heritage places;

(v) the ecological character of a declared Ramsar wetland;

(vi) the environment, in respect of the impact of a nuclear

action;

(vii) the environment in a Commonwealth marine area;

(viia) a water resource, in respect of the impact of an action

involving coal seam gas development or large coal

mining development;

(viii) the environment on Commonwealth land; and

(b) the effect of conservation agreements; and

(c) the publication of conservation agreements.

(2) Conservation agreements are agreements whose primary object is

to enhance the conservation of matters referred to in

paragraph (1)(a). They may relate to private or public land, or to

marine areas.

Note: Conservation agreements cannot cover all or part of a Commonwealth

reserve (see subsection 305(4)).

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305 Minister may enter into conservation agreements

(1) The Minister may, on behalf of the Commonwealth, enter into an

agreement (a conservation agreement) with a person for the

protection and conservation of all or any of the following:

(a) biodiversity in the Australian jurisdiction;

(b) the world heritage values of a declared World Heritage

property in the Australian jurisdiction;

(c) the National Heritage values of a National Heritage place;

(d) the Commonwealth Heritage values of a Commonwealth

Heritage place (whether inside or outside the Australian

jurisdiction);

(e) the ecological character of a declared Ramsar wetland in the

Australian jurisdiction;

(f) the environment, in respect of the impact of a nuclear action

in the Australian jurisdiction;

(g) the environment in a Commonwealth marine area in the

Australian jurisdiction;

(ga) a water resource, in respect of the impact of an action

involving coal seam gas development or large coal mining

development in the Australian jurisdiction;

(h) the environment on Commonwealth land in the Australian

jurisdiction.

Note: Conservation agreements cannot cover all or part of a Commonwealth

reserve (see subsection 305(4)).

(1A) The protection and conservation of the matters in subsection (1)

include all or any of the following:

(a) the protection, conservation and management of any listed

species or ecological communities, or their habitats;

(b) the management of things in a way necessary for the

protection and conservation of:

(i) the world heritage values of a declared World Heritage

property; or

(ii) the National Heritage values of a National Heritage

place; or

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(iii) the Commonwealth Heritage values of a

Commonwealth Heritage place; or

(iv) the ecological character of a declared Ramsar wetland;

or

(v) the environment, in respect of the impact of a nuclear

action; or

(vi) the environment in a Commonwealth marine area; or

(via) a water resource, in respect of the impact of an action

involving coal seam gas development or large coal

mining development; or

(vii) the environment on Commonwealth land;

(c) the abatement of processes, and the mitigation or avoidance

of actions, that might adversely affect:

(i) biodiversity; or

(ii) the world heritage values of a declared World Heritage

property; or

(iii) the National Heritage values of a National Heritage

place; or

(iv) the Commonwealth Heritage values of a

Commonwealth Heritage place; or

(v) the ecological character of a declared Ramsar wetland;

or

(vi) the environment, in respect of the impact of a nuclear

action; or

(vii) the environment in a Commonwealth marine area; or

(viia) a water resource, in respect of the impact of an action

involving coal seam gas development or large coal

mining development; or

(viii) the environment on Commonwealth land.

Note: When the Minister is considering entering into a conservation

agreement, the Minister must take into account any responsibilities of

other Commonwealth Ministers that may be affected by the

agreement.

(2) However, the Minister must not enter into a conservation

agreement unless satisfied that:

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(a) in the case of a proposed agreement wholly or partly for the

protection and conservation of biodiversity—the agreement:

(i) will result in a net benefit to the conservation of

biodiversity; and

(ii) is not inconsistent with a recovery plan, threat

abatement plan or wildlife conservation plan; and

(b) in the case of a proposed agreement wholly or partly for the

protection and conservation of heritage values—the

agreement:

(i) will result in a net benefit to the conservation of those

heritage values; and

(ii) is not inconsistent with at least one of the Australian

World Heritage management principles, the National

Heritage management principles and the

Commonwealth Heritage management principles; and

(c) in the case of a proposed agreement wholly or partly for the

protection and conservation of the ecological character of a

declared Ramsar wetland—the agreement:

(i) will result in a net benefit to the conservation of that

ecological character; and

(ii) is not inconsistent with the Australian Ramsar

management principles; and

(d) in the case of a proposed agreement wholly or partly for the

protection and conservation of the environment, in respect of

the impact nuclear actions—the agreement does not relate to

the construction or operation of any of the following nuclear

installations:

(i) a nuclear fuel fabrication plant;

(ii) a nuclear power plant;

(iii) an enrichment plant;

(iv) a reprocessing facility; and

(e) in the case of a proposed agreement wholly or partly for the

protection and conservation of the environment in a

Commonwealth marine area—the agreement will result in a

net benefit to the conservation of the environment in that

area; and

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(ea) in the case of a proposed agreement wholly or partly for the

protection and conservation of a water resource, in respect of

the impacts of actions involving coal seam gas development

or large coal mining development—the agreement will result

in a net benefit to the conservation of the water resource; and

(f) in the case of a proposed agreement wholly or partly for the

protection and conservation of the environment on

Commonwealth land—the agreement will result in a net

benefit to the conservation of the environment on that land.

(3) For the purposes of subsection (2), in deciding whether a proposed

agreement will result in a net benefit to the conservation as

mentioned in paragraph (2)(a), (b), (c), (e) or (f), the Minister must

have regard to the matters (if any) prescribed by the regulations.

(3A) If:

(a) the Minister is considering whether to enter into a proposed

conservation agreement that is wholly or partly for the

protection and conservation of biodiversity; and

(b) the agreement would or could affect a particular listed

threatened species or listed threatened ecological community;

the Minister must, in deciding whether to enter into the agreement,

have regard to any approved conservation advice for the species or

community.

(4) A conservation agreement must not cover all or part of a

Commonwealth reserve.

(5) Under subsection (1), the Minister may enter into a conservation

agreement covering land with one of the following persons who

has a usage right relating to the land:

(a) an indigenous person;

(b) a body corporate wholly owned by indigenous persons;

(c) a body corporate established by or under an Act for the

purposes of holding for the benefit of indigenous persons

land vested in it by or under that Act;

(d) the trustee of a trust that holds land for the benefit of

indigenous persons.

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This does not limit subsection (1).

(6) The Minister must take account of the following when entering

into a conservation agreement that is wholly or partly for the

protection and conservation of biodiversity as described in

subsection (5):

(a) paragraph (j) of Article 8 of the Biodiversity Convention;

(b) paragraph (c) of Article 10 of the Biodiversity Convention;

(c) paragraph 4 of Article 18 of the Biodiversity Convention;

(d) objective 1.8.2 of the National Strategy for the Conservation

of Australia’s Biological Diversity, published by the

Commonwealth in 1996.

306 Content of conservation agreements

(1) Without limiting section 305, a conservation agreement may

provide, for example, for all or any of the following:

(a) activities that promote the protection and conservation of all

or any of the following:

(i) biodiversity;

(ii) the world heritage values of a declared World Heritage

property;

(iii) the National Heritage values of a National Heritage

place;

(iv) the Commonwealth Heritage values of a

Commonwealth Heritage place;

(v) the ecological character of a declared Ramsar wetland;

(vi) the environment, in respect of the impact of a nuclear

action;

(vii) the environment in a Commonwealth marine area;

(viia) a water resource, in respect of the impact of an action

involving coal seam gas development or large coal

mining development;

(viii) the environment on Commonwealth land;

(b) controlling or prohibiting, in any place covered by the

agreement, actions or processes that might adversely affect:

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(i) the species, ecological communities, habitats or

potential habitats covered by the agreement; or

(ii) the world heritage values of a declared World Heritage

property; or

(iii) the National Heritage values of a National Heritage

place; or

(iv) the Commonwealth Heritage values of a

Commonwealth Heritage place; or

(v) the ecological character of a declared Ramsar wetland;

or

(vi) the environment, in respect of the impact of a nuclear

action; or

(vii) the environment in a Commonwealth marine area; or

(viia) a water resource, in respect of the impact of an action

involving coal seam gas development or large coal

mining development; or

(viii) the environment on Commonwealth land;

(c) requiring a person bound by the agreement not to obstruct

access by a person authorised under the agreement to places

covered by the agreement for the purpose of monitoring

compliance with the agreement;

(d) requiring a person bound by the agreement to give such an

authorised person information requested by the authorised

person that is in the first-mentioned person’s control and is

relevant to compliance with the agreement;

(e) requiring the Commonwealth to provide financial, technical

or other assistance to a person bound by the agreement;

(g) the commencement and duration of the agreement.

(2) Without limiting section 305 or subsection (1) of this section, a

conservation agreement entered into with the owner of a place may

provide, for example, for all or any of the following:

(a) requiring the owner to carry out specified activities, or to do

specified things, that promote the conservation of all or any

of the following:

(i) biodiversity;

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(ii) the world heritage values of a declared World Heritage

property;

(iii) the National Heritage values of a National Heritage

place;

(iv) the Commonwealth Heritage values of a

Commonwealth Heritage place;

(v) the ecological character of a declared Ramsar wetland;

(vi) the environment, in respect of the impact of a nuclear

action;

(vii) the environment in a Commonwealth marine area;

(viia) a water resource, in respect of the impact of an action

involving coal seam gas development or large coal

mining development;

(viii) the environment on Commonwealth land;

(b) restricting the use of the place, or requiring the owner to

refrain from, control or refuse to permit, actions or processes

that may adversely affect:

(i) the species, ecological communities, habitats or

potential habitats covered by the agreement; or

(ii) the world heritage values of a declared World Heritage

property; or

(iii) the National Heritage values of a National Heritage

place; or

(iv) the Commonwealth Heritage values of a

Commonwealth Heritage place; or

(v) the ecological character of a declared Ramsar wetland;

or

(vi) the environment, in respect of the impact of a nuclear

action; or

(vii) the environment in a Commonwealth marine area; or

(viia) a water resource, in respect of the impact of an action

involving coal seam gas development or large coal

mining development; or

(viii) the environment on Commonwealth land;

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(c) requiring the owner to permit access to the place by specified

persons;

(d) requiring the owner to contribute towards costs incurred in

implementing the agreement;

(e) specifying the manner in which any money paid to the owner

under the agreement is to be applied by the owner;

(f) requiring the owner to repay to the Commonwealth any

money paid to the owner under the agreement if the owner

commits a specified breach of the agreement or in other

specified circumstances;

(g) providing for any other matter relating to the conservation or

enhancement of the place, including the preparation and

implementation of a plan of management for the place.

306A Conservation agreement may include declaration that actions

do not need approval under Part 9

(1) A conservation agreement may include a declaration to the effect

that actions in a specified class do not need approval under Part 9

for the purposes of a specified provision of Part 3. The declaration

may specify conditions relating to the taking of actions in the class.

(2) The Minister must not enter into a conservation agreement that

contains a declaration under subsection (1) unless the Minister is

satisfied that the actions to which the declaration relates are not

likely to have a significant impact on the matter protected by the

provision of Part 3 proposed to be specified in the declaration.

307 Conservation agreements to be legally binding

A conservation agreement is legally binding on:

(a) the Commonwealth; and

(b) the person or persons with whom the Minister entered into

the agreement on behalf of the Commonwealth; and

(c) anyone else who is a successor to the whole or any part of

any interest that a person mentioned in paragraph (b) had,

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when the agreement was entered into, in any place covered

by the agreement.

307A Conservation agreements may deal with remediation or

mitigation measures

When this section applies

(1) This section applies if the Minister considers that an action taken

by a person after the commencement of this section contravened,

or may have contravened, a provision of Part 3.

Conservation agreements may provide for measures to repair or

mitigate damage

(2) The Minister may enter into a conservation agreement with the

person that provides for the protection and conservation of a matter

referred to in section 305 by providing for the taking of measures

to repair or mitigate damage to the matter protected by the

provision of Part 3 (whether or not the damage may or will be, or

has been, caused by the action).

(3) The conservation agreement may state that specified provisions of

the agreement, being provisions for the taking of measures as

mentioned in subsection (2), are provisions that may be enforced in

the Federal Court under this section. A provision of the agreement

to which such a statement applies is a remediation provision.

(4) If the conservation agreement contains a statement as mentioned in

subsection (3), that statement must specify the provision of Part 3

referred to in subsection (1).

Federal Court may order compliance with remediation provision

(5) If the Minister considers that the person has contravened a

remediation provision, the Minister may apply to the Federal Court

for an order under subsection (6).

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(6) If the Federal Court is satisfied that the person has contravened a

remediation provision, the Court may make one or more of the

following orders:

(a) an order directing the person to comply with the remediation

provision;

(b) any other order that the Court considers appropriate.

Civil penalty for contravention of remediation provision

(7) The person must not contravene a remediation provision.

(8) Subsection (7) is a civil penalty provision. Under section 481, the

Federal Court may order the person to pay a pecuniary penalty not

more than the pecuniary penalty the Court could order the person

to pay under that section for a contravention of the provision of

Part 3 referred to in subsection (1).

This section does not limit sections 305, 306 and 307

(9) This section does not limit anything in sections 305, 306 and 307.

308 Variation and termination of conservation agreements

(1) A conservation agreement may be varied by a variation agreement

entered into by the Minister, on behalf of the Commonwealth, and

the person or persons bound by the conservation agreement under

paragraph 307(b) or (c).

(2) Sections 305 and 306 apply in relation to variation agreements in

the same way as they apply in relation to conservation agreements.

(3) A conservation agreement may be terminated:

(a) by agreement between the Minister, on behalf of the

Commonwealth, and the person or persons bound by the

conservation agreement under paragraph 307(b) or (c); or

(b) in such other manner, or in such circumstances (if any), as

the agreement specifies.

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(4) If the Minister is satisfied that a conservation agreement is not

capable of achieving its purpose, the Minister may, by order

published in the Gazette, terminate the agreement or vary it in any

way the Minister thinks necessary to ensure it becomes capable of

achieving its purpose.

(5) The Minister may make an order under subsection (4) in relation to

a conservation agreement without the agreement of the person or

persons bound by the conservation agreement under

paragraph 307(b) or (c).

(6) The Minister must cause a copy of an order to be laid before each

House of the Parliament within the prescribed period after the

publication of the order.

(7) If a conservation agreement is varied by an order, the person or

persons bound by the conservation agreement under

paragraph 307(b) or (c) may, by written notice given to the

Minister, terminate the agreement.

(8) If a conservation agreement is terminated or varied by an order, the

person or persons bound by the conservation agreement under

paragraph 307(b) or (c) are not entitled to any compensation in

respect of the termination or variation.

Note: See Parts 17 and 18 for remedies for breach of conservation

agreements.

309 Publication of conservation agreements

(1) As soon as practicable after a conservation agreement has been

entered into or varied, other than by an order under

subsection 308(4), the Minister must:

(a) take reasonable steps to ensure that copies of the agreement

or variation are available for purchase, for a reasonable price,

at a prescribed place in each State and self-governing

Territory; and

(b) cause a notice of the agreement or variation to be published:

(i) in the Gazette; and

(ii) in any other way required by the regulations.

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(2) The notice must:

(a) state that the agreement or variation has been entered into or

made; and

(b) specify the places where copies of the agreement or variation

may be purchased.

(3) Subsection (1) does not apply in relation to a conservation

agreement, or a variation of such an agreement, or any part of such

an agreement or variation, if the Minister is satisfied that disclosure

of the agreement or variation, or the part of the agreement or

variation, as the case may be, would result in harm being done to:

(a) components of biodiversity; or

(b) the world heritage values of a declared World Heritage

property; or

(c) the National Heritage values of a National Heritage place; or

(d) the Commonwealth Heritage values of a Commonwealth

Heritage place.

(4) Subsection (1) does not apply in relation to a conservation

agreement, or a variation of such an agreement, or any part of such

an agreement or variation, if the Minister is satisfied that disclosure

of the agreement or variation, or the part of the agreement or

variation, as the case may be, would disclose matters that the

Minister is satisfied are commercial-in-confidence.

(5) The Minister must not be satisfied that matter is

commercial-in-confidence unless a person demonstrates to the

Minister that:

(a) release of information under subsection (1) about the matter

would cause competitive detriment to the person; and

(b) the information is not in the public domain; and

(c) the information is not required to be disclosed under another

law of the Commonwealth, a State or a Territory; and

(d) the information is not readily discoverable.

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310 List of conservation agreements

The Minister must:

(a) maintain an up-to-date list of conservation agreements that

are in force; and

(b) take reasonable steps to ensure that copies of the list are

available for purchase, for a reasonable price, at a prescribed

place in each State and self-governing Territory.

311 Commonwealth, State and Territory laws

(1) A provision of a conservation agreement has no effect to the extent

(if any) to which it is inconsistent with a law of the

Commonwealth, or of a State or Territory.

(2) For the purposes of subsection (1), a provision of a conservation

agreement is not taken to be inconsistent with a law of the

Commonwealth, or of a State or Territory, if both the provision and

the law are capable of being complied with.

312 Minister must not give preference

The Minister must not, in exercising powers on behalf of the

Commonwealth under this Part, give preference to one State or any

part thereof within the meaning of section 99 of the Constitution.

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Section 313

Part 15—Protected areas

Division 1—Managing World Heritage properties

Subdivision A—Simplified outline of this Division

313 Simplified outline of this Division

The following is a simplified outline of this Division:

The Commonwealth may submit a property for inclusion in the

World Heritage List only after seeking the agreement of relevant

States, self-governing Territories and land-holders.

The Minister must make plans for managing properties on the

World Heritage List that are entirely in Commonwealth areas. The

Commonwealth and Commonwealth agencies must not contravene

such plans.

The Commonwealth must try to prepare and implement

management plans for other properties on the World Heritage List,

in co-operation with the relevant States and self-governing

Territories.

The Commonwealth and Commonwealth agencies have duties

relating to World Heritage properties in States and Territories.

The Commonwealth can provide assistance for the protection or

conservation of declared World Heritage properties.

Note: Section 12 prohibits an action that has a significant impact on the

world heritage values of a declared World Heritage property, unless

the person taking the action has the approval of the Minister

administering that section or certain other requirements are met.

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Subdivision B—Seeking agreement on World Heritage listing

314 Special provisions relating to World Heritage nominations

(1) The Commonwealth may submit to the World Heritage Committee

for inclusion in the World Heritage List a property containing an

area owned or occupied by another person only if the Minister is

satisfied that the Commonwealth has used its best endeavours to

reach agreement with the other person on:

(a) the proposed submission of the property (so far as it relates to

the area); and

(b) management arrangements for the property (so far as they

relate to the area).

(2) The Commonwealth may submit to the World Heritage Committee

for inclusion in the World Heritage List a property in a State or

self-governing Territory only if the Minister is satisfied that the

Commonwealth has used its best endeavours to reach agreement

with the State or Territory on:

(a) the proposed submission of the property; and

(b) management arrangements for the property.

(3) A failure to comply with this section does not affect the submission

of a property to the World Heritage Committee for inclusion in the

World Heritage List or the status of a property as a declared World

Heritage property.

Subdivision C—Notice of submission of property for listing

315 Minister must give notice of submission of property for listing

etc.

(1) The Minister must give notice in the Gazette and in the way (if

any) prescribed by the regulations of any of the following events as

soon as practicable after the event occurs:

(a) the Commonwealth submits a property to the World Heritage

Committee for inclusion in the World Heritage List;

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(b) the Commonwealth extends the boundaries of a property

submitted to the World Heritage Committee for inclusion in

the World Heritage List;

(c) the Commonwealth restricts the boundaries of a property

submitted to the World Heritage Committee for inclusion in

the World Heritage List;

(d) the Commonwealth withdraws the submission of a property

for inclusion in the World Heritage List;

(e) a property submitted by the Commonwealth is included in

the World Heritage List;

(f) all or part of a property is removed from the World Heritage

List.

(2) The notice must specify the area included in, or excluded or

deleted from, the submission or World Heritage List as a result of

the event.

(3) A failure to comply with this section does not affect the status of

an area as a declared World Heritage property.

Subdivision D—Plans for listed World Heritage properties in

Commonwealth areas

316 Making plans

Minister must make plan

(1) The Minister must make a written plan for managing a property

that is included in the World Heritage List and is entirely within

one or more Commonwealth areas. The Minister must do so as

soon as practicable after the property:

(a) is included in the World Heritage List; or

(b) becomes entirely within one or more Commonwealth areas.

Amending and replacing plan

(2) The Minister may make a written plan amending, or revoking and

replacing, a plan made under subsection (1) or this subsection.

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Requirements for plan

(3) A plan must not be inconsistent with:

(a) Australia’s obligations under the World Heritage

Convention; or

(b) the Australian World Heritage management principles.

Note: Section 323 explains what Australian World Heritage management

principles are.

Ensuring plans reflect current management principles

(4) If the Australian World Heritage management principles change so

that a plan (the earlier plan) is inconsistent with them, the Minister

must make another plan:

(a) amending the earlier plan so it is not inconsistent with them;

or

(b) revoking and replacing the earlier plan.

Plan may be in same document as another plan

(5) To avoid doubt, a plan under this section for a property may be in

the same document as:

(a) a plan under this section for another property; or

(b) a plan that this Act or another law of the Commonwealth

requires or permits to be prepared.

Commonwealth reserves

(6) Despite subsections (1) and (2), the Minister may not make a plan

for so much of a property as is in a Commonwealth reserve.

Note: A management plan must be prepared under Division 4 for a

Commonwealth reserve, taking account of Australia’s obligations

under the World Heritage Convention.

317 Notice of plans

The Minister must give notice of the making of a plan under

section 316, in accordance with the regulations.

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318 Commonwealth compliance with plans

(1) The Commonwealth or a Commonwealth agency must not:

(a) contravene a plan made under section 316; or

(b) authorise another person to do, or omit to do, anything that, if

it were done or omitted to be done by the Commonwealth or

the Commonwealth agency (as appropriate), would

contravene such a plan.

(2) If there is no plan in force under section 316 for a particular

property described in subsection (1) of that section, the

Commonwealth and each Commonwealth agency must take all

reasonable steps to ensure that its acts (if any) relating to the

property are not inconsistent with the Australian World Heritage

management principles.

319 Review of plans every 5 years

(1) The Minister must cause a review of a plan made under section 316

to be carried out at least once in each period of 5 years after the

plan is made.

(2) The review must consider whether the plan is consistent with the

Australian World Heritage management principles in force at the

time.

Note: Section 323 explains what Australian World Heritage management

principles are.

Subdivision E—Managing World Heritage properties in States

and self-governing Territories

320 Application

This Subdivision applies in relation to a property that:

(a) is:

(i) in a State; or

(ii) in a self-governing Territory; or

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(iii) on, over or under the seabed vested in a State by the

Coastal Waters (State Title) Act 1980 or in the Northern

Territory by the Coastal Waters (Northern Territory

Title) Act 1980; and

(b) is not entirely within one or more Commonwealth areas.

321 Co-operating to prepare and implement plans

(1) This section applies in relation to a property that is included in the

World Heritage List.

(2) The Commonwealth must use its best endeavours to ensure a plan

for managing the property in a way that is not inconsistent with

Australia’s obligations under the World Heritage Convention or the

Australian World Heritage management principles is prepared and

implemented in co-operation with the State or Territory.

Note: The Commonwealth and the State or Territory could make a bilateral

agreement adopting the plan and providing for its implementation.

(3) Subsection (2) does not apply in relation to so much of a property

as is in the Great Barrier Reef Marine Park.

Note: A zoning plan must be prepared under the Great Barrier Reef Marine

Park Act 1975 for areas that are part of the Great Barrier Reef Marine

Park. In preparing a zoning plan, regard must be had to the Australian

World Heritage management principles.

322 Commonwealth responsibilities

(1) This section applies in relation to a property that is a declared

World Heritage property.

(2) The Commonwealth and each Commonwealth agency must take all

reasonable steps to ensure it exercises its powers and performs its

functions in relation to the property in a way that is not inconsistent

with:

(a) the World Heritage Convention; and

(b) the Australian World Heritage management principles; and

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(c) if the property is on the World Heritage List and a plan for

managing the property has been prepared as described in

section 321—that plan.

Subdivision F—Australian World Heritage management

principles

323 Australian World Heritage management principles

(1) The regulations must prescribe principles for the management of

natural heritage and cultural heritage. The principles prescribed are

the Australian World Heritage management principles.

(2) Before the Governor-General makes regulations prescribing

principles, the Minister must be satisfied that the principles to be

prescribed are consistent with Australia’s obligations under the

World Heritage Convention.

(3) In this section:

cultural heritage has the meaning given by the World Heritage

Convention.

natural heritage has the meaning given by the World Heritage

Convention.

Subdivision G—Assistance for protecting World Heritage

properties

324 Commonwealth assistance for protecting declared World

Heritage properties

(1) The Commonwealth may give financial or other assistance for the

protection or conservation of a declared World Heritage property

to:

(a) a State or self-governing Territory in which the property

occurs; or

(b) any other person.

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(2) The giving of assistance may be made subject to such conditions as

the Minister thinks fit.

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Section 324A

Division 1A—Managing National Heritage places

Subdivision A—Preliminary

324A Simplified outline of this Division

The following is a simplified outline of this Division:

The Minister may only include a place in the National Heritage

List if the Minister is satisfied that the place has one or more

National Heritage values.

The Minister must ask the Australian Heritage Council for an

assessment of the place’s National Heritage values and may invite

public comments on the proposed inclusion of the place in the

National Heritage List.

The Minister must make plans to protect and manage the National

Heritage values of National Heritage places. The Commonwealth

and Commonwealth agencies must not contravene those plans.

The Commonwealth must try to prepare and implement plans for

managing other National Heritage places, in co-operation with the

States and self-governing Territories.

The Commonwealth and Commonwealth agencies have duties

relating to National Heritage places in States and Territories.

The Commonwealth can provide assistance for the identification,

promotion, protection or conservation of National Heritage places.

Note: Section 15B prohibits an action that has a significant impact on the National Heritage values of a National Heritage place, unless the person taking the action has the approval of the Minister or certain other requirements are met.

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Section 324C

Subdivision B—The National Heritage List

324C The National Heritage List

(1) The Minister must keep a written record of places and their

heritage values in accordance with this Subdivision and

Subdivisions BA, BB and BC. The record is called the National

Heritage List.

(2) A place may be included in the National Heritage List only if:

(a) the place is within the Australian jurisdiction; and

(b) the Minister is satisfied that the place has one or more

National Heritage values (subject to the provisions in

Subdivision BB about the emergency process).

(3) A place that is included in the National Heritage List is called a

National Heritage place.

(4) The National Heritage List is not a legislative instrument.

324D Meaning of National Heritage values

(1) A place has a National Heritage value if and only if the place

meets one of the criteria (the National Heritage criteria)

prescribed by the regulations for the purposes of this section. The

National Heritage value of the place is the place’s heritage value

that causes the place to meet the criterion.

(2) The National Heritage values of a National Heritage place are the

National Heritage values of the place included in the National

Heritage List for the place.

(3) The regulations must prescribe criteria for the following:

(a) natural heritage values of places;

(b) indigenous heritage values of places;

(c) historic heritage values of places.

The regulations may prescribe criteria for other heritage values of

places.

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(4) To avoid doubt, a criterion prescribed by the regulations may relate

to one or more of the following:

(a) natural heritage values of places;

(b) indigenous heritage values of places;

(c) historic heritage values of places;

(d) other heritage values of places.

Subdivision BA—Inclusion of places in the National Heritage

List: usual process

324E Simplified outline

The following is a simplified outline of this Subdivision:

This Subdivision sets out the usual process for the inclusion of

places in the National Heritage List.

The usual process involves an annual cycle that revolves around

12-month periods known as assessment periods. The Minister

determines the start of the first assessment period (see

section 324G).

The usual process involves the following steps for each assessment

period:

(a) the Minister may determine heritage themes (this

step is optional) (see section 324H);

(b) the Minister invites people to nominate places for

inclusion in the National Heritage List, and gives

the nominations to the Australian Heritage Council

(see sections 324J and 324JA);

(c) the Australian Heritage Council prepares, and

gives to the Minister, a list of places (which will

mostly be places that have been nominated) that it

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thinks should be assessed (see sections 324JB,

324JC and 324JD);

(d) the Minister finalises the list of places that are to

be assessed (see sections 324JE and 324JF);

(e) the Australian Heritage Council invites people to

make comments about the places in the finalised

list (see section 324JG);

(f) the Australian Heritage Council assesses the places

in the finalised list, and gives the assessments to

the Minister (see sections 324JH and 324JI);

(g) the Minister decides whether a place that has been

assessed should be included in the National

Heritage List (see section 324JJ).

The steps mentioned in paragraphs (a) to (d) will generally be

completed before the start of the assessment period.

324F Definitions

In this Subdivision:

assessment period has the meaning given by subsection 324G(1).

eligible for assessment consideration, in relation to an assessment

period, has the meaning given by subsection 324JB(3).

finalised priority assessment list for an assessment period has the

meaning given by subsection 324JE(4).

proposed priority assessment list for an assessment period has the

meaning given by subsection 324JB(1).

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324G Meaning of assessment period

(1) For the purposes of this Subdivision, each of the following is an

assessment period:

(a) the period of 12 months starting on the day determined in

writing by the Minister for the purposes of this paragraph;

(b) each period of 12 months starting on an anniversary of the

day so determined.

(2) The Minister must make a determination under paragraph (1)(a)

within 3 months after the commencement of this section. The day

so determined must not be more than 12 months after that

commencement.

(3) A determination under paragraph (1)(a) is a legislative instrument,

but section 42 (disallowance) of the Legislation Act 2003 does not

apply to the determination.

Note: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not

apply to the determination. See regulations made for the purposes of

paragraph 54(2)(b) of that Act.

324H Minister may determine heritage themes for an assessment

period

(1) Before the Minister invites nominations for an assessment period

under section 324J, the Minister may determine one or more

heritage themes that the Minister considers should be given priority

in relation to the assessment period.

(2) The Minister may request advice from the Australian Heritage

Council for the purpose of making a determination under

subsection (1), and may have regard to any advice the Council

provides in response to the request.

(3) A determination under subsection (1) is a legislative instrument,

but section 42 (disallowance) of the Legislation Act 2003 does not

apply to the determination.

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324J Minister to invite nominations for each assessment period

(1) Before the start of each assessment period, the Minister must

publish a notice inviting people to nominate places for inclusion in

the National Heritage List.

(2) A notice under subsection (1):

(a) must be published in accordance with the regulations referred

to in paragraph (3)(a); and

(b) must invite people to nominate, to the Minister, places for

inclusion in the National Heritage List; and

(c) must identify the assessment period to which the notice

relates; and

(d) must specify a date (the cut-off date) by which nominations

must be received, which must be at least 40 business days

after the notice has been published as required by

paragraph (a); and

(e) must specify, or refer to, the information requirements, and

the manner and form requirements, that, under regulations

referred to in paragraphs (3)(b) and (c), apply to making

nominations; and

(f) may also include:

(i) information related to any heritage themes that the

Minister has determined under section 324H should be

given priority in relation to the assessment period; and

(ii) any other information that the Minister considers

appropriate.

(3) The regulations must provide for the following:

(a) how a notice under subsection (1) is to be published;

(b) the manner and form for making nominations;

(c) what information is to be included in a nomination.

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324JA Minister to give nominations to Australian Heritage Council

Nominations in relation to first assessment period

(1) Within 30 business days after the cut-off date specified in the

notice under subsection 324J(1) for the first assessment period, the

Minister must give the Australian Heritage Council the

nominations that the Minister:

(a) had received before the end of that cut-off date; and

(b) had not already requested the Australian Heritage Council,

under section 324E (as in force before the commencement of

this section), to assess; and

(c) had not already rejected under section 324E (as in force

before the commencement of this section); and

(d) does not reject under subsection (4).

(2) Subsection (1) does not apply to a nomination of a place if:

(a) the place is outside the Australian jurisdiction; or

(b) the Minister had, before the commencement of this section,

included the place in the National Heritage List under

section 324F (as in force before the commencement of this

section).

Nominations in relation to later assessment periods

(3) Within 30 business days after the cut-off date (the current cut-off

date) specified in the notice under subsection 324J(1) for an

assessment period (other than the first), the Minister must give the

Australian Heritage Council the nominations that were received by

the Minister in the period:

(a) starting immediately after the end of the cut-off date

specified in the notice under subsection 324J(1) for the

immediately preceding assessment period; and

(b) ending at the end of the current cut-off date;

other than any such nominations that the Minister rejects under

subsection (4).

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Minister may reject nominations

(4) The Minister may, in writing, reject a nomination if the Minister

considers that:

(a) the nomination is vexatious, frivolous or not made in good

faith; or

(b) the Minister considers that regulations referred to in

paragraph 324J(3)(b) or (c) have not been complied with in

relation to the nomination.

(5) If a nomination is rejected under paragraph (4)(b), the Minister

must, if practicable, notify the person who made the nomination of

the rejection of the nomination and the reason for the rejection.

Definition

(6) In this section:

nomination means a nomination of a place for inclusion in the

National Heritage List.

324JB Australian Heritage Council to prepare proposed priority

assessment list

(1) Within 40 business days after the Australian Heritage Council

receives the nominations as required by subsection 324JA(1) in

relation to an assessment period, the Council must prepare and give

to the Minister a list (the proposed priority assessment list) for the

assessment period.

(2) The proposed priority assessment list is to consist of such of the

places that are eligible for assessment consideration in relation to

the assessment period as the Australian Heritage Council considers

it appropriate to include in the list, having regard to:

(a) any heritage themes determined by the Minister under

section 324H in relation to the assessment period; and

(b) the Council’s own views about what should be given priority

in relation to the assessment period; and

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(c) the Council’s capacity to make assessments under this

Division while still performing its other functions; and

(d) any other matters that the Council considers appropriate.

(3) A place is eligible for assessment consideration in relation to the

assessment period if:

(a) the place has been nominated by a nomination referred to in

subsection (1); or

(b) the Council itself wishes to nominate the place for inclusion

in the National Heritage List; or

(c) the place was eligible for assessment consideration,

otherwise than because of this paragraph, in relation to the

immediately preceding assessment period (if any) but was

not included in the finalised priority assessment list for that

assessment period; or

(d) each part of the place is either a place to which paragraph (a)

applies, a place to which paragraph (b) applies or a place to

which paragraph (c) applies.

(4) Without limiting the generality of the Australian Heritage

Council’s discretion under subsection (2), the Council does not

have to include in the proposed priority assessment list a place that

has been nominated if the Council considers that it is unlikely that

the place has any National Heritage values. For this purpose, the

Council is not required to have regard to any information beyond

the information that was included in the nomination.

(5) The proposed priority assessment list is not a legislative

instrument.

324JC Matters to be included in proposed priority assessment list

(1) The proposed priority assessment list for an assessment period is to

include, for each place in the list:

(a) a description of the place; and

(b) an assessment completion time; and

(c) any other information required by the regulations.

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(2) The assessment completion time for a place must be either:

(a) a time that is at or before the end of the assessment period to

which the list relates; or

(b) if the Australian Heritage Council considers it likely that

making an assessment in relation to the place will take a

period that is longer than 12 months—the end of that longer

period (calculated from the start of the assessment period).

324JD Statement to be given to Minister with proposed priority

assessment list

(1) When the Australian Heritage Council gives the Minister the

priority assessment list for an assessment period, the Council must

also give the Minister a statement setting out such information as

the Council considers appropriate relating to:

(a) for each place that is included in the list—why the Council

included the place in the list; and

(b) for each place that is not included in the list but that was

eligible for assessment consideration because of

paragraph 324JB(3)(a) or (c)—why the Council did not

include the place in the list.

(2) The statement must also identify, as places nominated by the

Australian Heritage Council:

(a) any places that are included in the list because the Council

itself wishes to nominate them (see paragraph 324JB(3)(b));

and

(b) any places that are included in the list because of

paragraph 324JB(3)(d) that consist of one or more places to

which paragraph 324JB(3)(b) applies.

324JE The finalised priority assessment list

(1) Within 20 business days after the Minister, under section 324JB,

receives the proposed priority assessment list for an assessment

period, the Minister may, in writing, make changes to the list as

mentioned in subsection (2).

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(2) The changes the Minister may make are as follows:

(a) including a place in the list (and also including the matters

referred to in subsection 324JC(1));

(b) omitting a place from the list (and also omitting the matters

referred to in subsection 324JC(1));

(c) changing the assessment completion time for a place in the

list;

(d) any other changes of a kind permitted by the regulations.

(3) In exercising the power to make changes, the Minister may have

regard to any matters that the Minister considers appropriate.

(4) At the end of the period of 20 business days referred to in

subsection (1), the list, as changed (if at all) by the Minister,

becomes the finalised priority assessment list for the assessment

period.

(5) The Minister must notify the Australian Heritage Council of all

changes that the Minister makes to the list.

(6) The finalised priority assessment list is not a legislative instrument.

324JF Publication of finalised priority assessment list

(1) The Australian Heritage Council must publish the finalised priority

assessment list for an assessment period on the internet.

(2) The Australian Heritage Council must also publish the finalised

priority assessment list in accordance with any requirements of the

regulations.

324JG Australian Heritage Council to invite comments on places in

finalised priority assessment list

(1) In relation to each place included in the finalised priority

assessment list for an assessment period, the Australian Heritage

Council must publish a notice inviting people to make comments

on the place.

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(2) The Australian Heritage Council may, under subsection (1),

publish a single notice relating to all of the places on the finalised

priority assessment list, or may publish a number of separate

notices, each of which relates to one or more of the places.

(3) A notice under subsection (1), in relation to a place or places:

(a) must be published in accordance with the regulations referred

to in paragraph (4)(a); and

(b) must identify the place or places to which the notice relates;

and

(c) must invite people to make comments, to the Australian

Heritage Council, about:

(i) whether the place or places meet any of the National

Heritage criteria; and

(ii) whether the place or places should be included in the

National Heritage List; and

(d) must specify the date (the cut-off date) by which comments

must be received, which must be at least 30 business days

after the notice has been published as required by

paragraph (a); and

(e) must specify, or refer to, the manner and form requirements

that, under regulations referred to in paragraph (4)(b), apply

to making comments; and

(f) may also invite people to comment on other matters that the

Australian Heritage Council considers appropriate; and

(g) may also include any other information that the Australian

Heritage Council considers appropriate.

(4) The regulations must provide for the following:

(a) how a notice under subsection (1) is to be published;

(b) the manner and form for making comments.

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324JH Australian Heritage Council to assess places on finalised

priority assessment list and give assessments to Minister

(1) In relation to each place included in the finalised priority

assessment list for an assessment period, the Australian Heritage

Council must (by the time required by section 324JI):

(a) make a written assessment whether the place meets any of

the National Heritage criteria; and

(b) give to the Minister:

(i) the written assessment (or a copy of it); and

(ii) a copy of the comments referred to in paragraphs (2)(a)

and (b) (whether or not they have all been taken into

account under subsection (2)).

(2) In making an assessment in relation to a place, the Australian

Heritage Council, subject to subsections (3) and (4):

(a) must take into account the comments the Council receives in

response to the notice under subsection 324JG(1) in relation

to the place; and

(b) may take into account the comments the Council receives in

response to the opportunity referred to in paragraph (5)(c);

and

(c) may seek, and have regard to, information or advice from any

source.

(3) The Australian Heritage Council is not required to take a comment

referred to in paragraph (2)(a) into account if:

(a) the Council does not receive the comment until after the

cut-off date specified in the notice under subsection 324JG(1)

in relation to the place; or

(b) the Council considers that regulations referred to in

paragraph 324JG(4)(b) have not been complied with in

relation to the comment.

(4) In making an assessment, the Australian Heritage Council must not

consider any matter that does not relate to the question whether the

place meets any of the National Heritage criteria.

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(5) If, in making an assessment, the Australian Heritage Council

considers that a place might have one or more National Heritage

values, the Council must:

(a) take all practicable steps:

(i) to identify each person who is an owner or occupier of

all or part of the place; and

(ii) if the Council considers the place might have an

indigenous heritage value—to identify each Indigenous

person who has rights or interests in all or part of the

place; and

(b) take all practicable steps to advise each person identified that

the Council is assessing whether the place meets any of the

National Heritage criteria; and

(c) give persons advised at least 20 business days to comment in

writing whether the place should be included in the National

Heritage List.

(6) If the Australian Heritage Council is satisfied that there are likely

to be at least 50 persons referred to in subparagraph (5)(a)(i), the

Council may satisfy the requirements of subsection (5) in relation

to those persons by including the information referred to in

paragraphs (5)(b) and (c) in one or more of the following:

(a) advertisements in a newspaper, or newspapers, circulating in

the area in which the place is located;

(b) letters addressed to “The owner or occupier” and left at all

the premises that are wholly or partly within the place;

(c) displays in public buildings at or near the place.

(7) If:

(a) the Australian Heritage Council considers that the place

might have an indigenous heritage value; and

(b) there are Indigenous persons who:

(i) have rights or interests in all or part of the place; and

(ii) are neither owners nor occupiers of all or part of the

place; and

(c) the Australian Heritage Council is satisfied that there is a

body, or there are bodies, that can appropriately represent

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those Indigenous persons in relation to those rights and

interests;

the Australian Heritage Council may satisfy the requirements of

subsection (5) in relation to those Indigenous persons by giving the

information referred to in paragraphs (5)(b) and (c) to that body or

those bodies.

324JI Time by which assessments to be provided to Minister

(1) Subsection 324JH(1) must be complied with, in relation to a place

included in the finalised priority assessment list for an assessment

period, by the assessment completion time specified in the list for

the place, or by that time as extended under this section.

(2) The Australian Heritage Council may request the Minister to

extend the assessment completion time (or that time as previously

extended) if the Council considers that it needs more time to make

the assessment.

(3) The Minister may, in response to a request under subsection (2),

extend the assessment completion time (or that time as previously

extended) by such period (if any) as the Minister considers

appropriate. However, the total length of all extensions of the

assessment completion time must not be more than 5 years.

(4) An extension under subsection (3) must be made in writing.

(5) If the Minister grants an extension under this section, the Minister

must publish particulars of the extension in a way that the Minister

considers appropriate.

324JJ Decision about inclusion of a place in the National Heritage

List

Minister to decide whether or not to include place

(1) After receiving from the Australian Heritage Council an

assessment under section 324JH whether a place (the assessed

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place) meets any of the National Heritage criteria, the Minister

must:

(a) by instrument published in the Gazette, include in the

National Heritage List:

(i) the assessed place or a part of the assessed place; and

(ii) the National Heritage values of the assessed place, or

that part of the assessed place, that are specified in the

instrument; or

(b) in writing, decide not to include the assessed place in the

National Heritage List.

Note: The Minister may include a place in the National Heritage List only if

the Minister is satisfied that the place has one or more National

Heritage values (see subsection 324C(2)).

(2) Subject to subsection (3), the Minister must comply with

subsection (1) within 90 business days after the day on which the

Minister receives the assessment.

(3) The Minister may, in writing, extend or further extend the period

for complying with subsection (1).

(4) Particulars of an extension or further extension under

subsection (3) must be published on the internet and in any other

way required by the regulations.

(5) For the purpose of deciding what action to take under

subsection (1) in relation to the assessed place:

(a) the Minister must have regard to:

(i) the Australian Heritage Council’s assessment whether

the assessed place meets any of the National Heritage

criteria; and

(ii) the comments (if any), a copy of which were given to

the Minister under subsection 324JH(1) with the

assessment; and

(b) the Minister may seek, and have regard to, information or

advice from any source.

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Additional requirements if Minister decides to include place

(6) If the Minister includes the assessed place, or a part of the assessed

place (the listed part of the assessed place), in the National

Heritage List, he or she must, within a reasonable time:

(a) take all practicable steps to:

(i) identify each person who is an owner or occupier of all

or part of the assessed place; and

(ii) advise each person identified that the assessed place, or

the listed part of the assessed place, has been included

in the National Heritage List; and

(b) if the assessed place:

(i) was nominated; or

(ii) was included in a place that was nominated; or

(iii) includes a place that was nominated;

by a person in response to a notice under

subsection 324J(1)—advise the person that the assessed

place, or the listed part of the assessed place, has been

included in the National Heritage List; and

(c) publish a copy of the instrument referred to in

paragraph (1)(a) on the internet; and

(d) publish a copy or summary of that instrument in accordance

with any other requirements specified in the regulations.

(7) If the Minister is satisfied that there are likely to be at least 50

persons referred to in subparagraph (6)(a)(i), the Minister may

satisfy the requirements of paragraph (6)(a) in relation to those

persons by including the advice referred to in that paragraph in one

or more of the following:

(a) advertisements in a newspaper, or newspapers, circulating in

the area in which the assessed place is located;

(b) letters addressed to “The owner or occupier” and left at all

the premises that are wholly or partly within the assessed

place;

(c) displays in public buildings at or near the assessed place.

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Additional requirements if Minister decides not to include place

(8) If the Minister decides not to include the assessed place in the

National Heritage List, the Minister must, within 10 business days

after making the decision:

(a) publish the decision on the internet; and

(b) if the assessed place:

(i) was nominated; or

(ii) was included in a place that was nominated; or

(iii) includes a place that was nominated;

by a person in response to a notice under

subsection 324J(1)—advise the person of the decision, and of

the reasons for the decision.

Note: Subsection (8) applies in a case where the Minister decides that none

of the assessed place is to be included in the National Heritage List.

Subdivision BB—Inclusion of places in the National Heritage

List: emergency process

324JK Simplified outline

The following is a simplified outline of this Subdivision:

This Subdivision sets out the emergency process for the inclusion

of places in the National Heritage List.

The emergency process involves the following steps:

(a) the Minister may include a place in the National

Heritage List if it is under threat (see

section 324JN( �

(b) the Minister asks the Australian Heritage Council

to assess the place (see section 324JM);

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(c) the Australian Heritage Council publishes notice of

the listing and invites comments (see

section 324JN);

(d) the Australian Heritage Council assesses the place,

and gives the assessment to the Minister (see

sections 324JO and 324JP);

(e) the Minister has 12 months from the listing of the

place to decide whether it should continue to be

listed, and the listing will lapse if the Minister does

not make a decision within that period (see

section 324JQ).

324JL Minister may include place in National Heritage List if under

threat

(1) If the Minister believes that:

(a) a place has or may have one or more National Heritage

values; and

(b) any of those values is under threat of a significant adverse

impact; and

(c) that threat is both likely and imminent;

the Minister may, by instrument published in the Gazette, include

in the National Heritage List the place and the National Heritage

values the Minister believes the place has or may have.

(2) If:

(a) the place is included in the National Heritage List under

subsection (1); and

(b) before that inclusion of the place, the place was being

considered for inclusion in the List under the process set out

in Subdivision BA;

that process ceases to apply to the place when it is included in the

List under subsection (1).

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Note: Subsection (2) does not prevent the process in Subdivision BA again

starting to apply to the place if (for example) the place ceases to be

listed because of subsection 324JQ(1) or (4) and a person

subsequently nominates the place under that Subdivision.

(3) If the place is included in the National Heritage List under

subsection (1), the Minister must:

(a) within 10 business days after the inclusion of the place,

publish a copy of the instrument under subsection (1):

(i) on the internet; and

(ii) in accordance with any other requirements specified in

the regulations; and

(b) take all practicable steps to:

(i) identify each person who is an owner or occupier of all

or part of the place; and

(ii) advise each person identified that the place has been

included in the National Heritage List.

(4) If the Minister is satisfied that there are likely to be at least 50

persons referred to in subparagraph (3)(b)(i), the Minister may

satisfy the requirements of paragraph (3)(b) in relation to those

persons by including the advice referred to in that paragraph in one

or more of the following:

(a) advertisements in a newspaper, or newspapers, circulating in

the area in which the place is located;

(b) letters addressed to “The owner or occupier” and left at all

the premises that are wholly or partly within the place;

(c) displays in public buildings at or near the place.

324JM Minister to ask Australian Heritage Council for assessment

(1) If the Minister includes a place in the National Heritage List under

section 324JL, the Minister must, in writing, request the Australian

Heritage Council to give the Minister an assessment of whether the

place meets any of the National Heritage criteria.

(2) The request must specify the assessment completion time for the

assessment.

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Note: When specifying an assessment completion time, the 12-month period

referred to in subsection 324JQ(1) should be considered.

324JN Publication of listing of place and inviting comments

(1) If the Australian Heritage Council receives a request under

subsection 324JM(1) in relation to a place that has been included in

the National Heritage List, the Council must publish a notice

inviting people to comment on the listing of the place.

(2) A notice under subsection (1) in relation to a place:

(a) must be published in accordance with the regulations referred

to in paragraph (3)(a); and

(b) must contain the following:

(i) a description of the place;

(ii) a statement that the place has been included in the

National Heritage List, and that specifies the National

Heritage values that have been included in the List in

relation to the place;

(iii) the date on which the place was so included; and

(c) must invite people to make comments, to the Australian

Heritage Council, about:

(i) whether the place meets any of the National Heritage

criteria; and

(ii) whether the place should continue to be included in the

National Heritage List; and

(d) must specify the date (the cut-off date) by which comments

must be received, which must be at least 30 business days

after the notice has been published as required by

paragraph (a); and

(e) must specify, or refer to, the manner and form requirements

that, under regulations referred to in paragraph (3)(b), apply

to making comments.

(3) The regulations may provide for either or both of the following:

(a) how a notice under subsection (1) is to be published;

(b) the manner and form for making comments.

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324JO Australian Heritage Council to assess place and give

assessment to Minister

(1) Section 324JH applies in relation to a request under

subsection 324JM(1) as if:

(a) a reference in section 324JH to a place included in the

finalised priority assessment list for an assessment period

were a reference to the place to which the request relates; and

(b) a reference in section 324JH to the notice under

subsection 324JG(1) in relation to the place were a reference

to the notice under subsection 324JN(1) in relation to the

place; and

(c) a reference in section 324JH to regulations referred to in

paragraph 324JG(4)(b) were a reference to regulations

referred to in paragraph 324JN(3)(b); and

(d) a reference in section 324JH to whether the place should be

included in the National Heritage List were a reference to

whether the place should continue to be included in the

National Heritage List.

(2) A reference in another provision of this Act to section 324JH, or to

a provision of that section, includes a reference to that section or

provision as it applies because of this section.

324JP Time by which assessments to be provided to Minister

(1) Section 324JI applies in relation to a request under

subsection 324JM(1) as if:

(a) a reference in section 324JI to a place included in the

finalised priority assessment list for an assessment period

were a reference to the place to which the request relates; and

(b) a reference in section 324JI to the assessment completion

time specified in the list for the place were a reference to the

assessment completion time specified in the request.

(2) A reference in another provision of this Act to section 324JI, or to

a provision of that section, includes a reference to that section or

provision as it applies because of this section.

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324JQ Decision about place remaining in the National Heritage List

Minister to decide whether place should remain listed

(1) Within 12 months after the inclusion of a place in the National

Heritage List under section 324JL, the Minister must, by

instrument published in the Gazette, subject to subsections (2) and

(3):

(a) do one of the following:

(i) state that the place remains in the National Heritage List

with its boundary unaltered;

(ii) alter the boundary of the place described in the National

Heritage List (whether or not the alteration results in an

overall increase or decrease in the extent of the place

included in the List);

(iii) remove from the National Heritage List the place and its

National Heritage values; and

(b) if the place is not removed from the National Heritage List

under subparagraph (a)(iii)—do all or any of the following:

(i) state that specified National Heritage values included in

the List under section 324JL for the place remain in the

List for the place;

(ii) include in the List for the place specified National

Heritage values of the place that were not included in

the List under section 324JL for the place;

(iii) remove from the List for the place specified National

Heritage values that were included in the List under

section 324JL for the place.

(2) The Minister must not take action under subsection (1) unless the

Minister has received an assessment from the Australian Heritage

Council under section 324JH in relation to the place.

(3) The Minister must not take action under subsection (1) that results

in the place remaining in the National Heritage List (whether or not

with the same or a different boundary) unless the Minister is

satisfied that the place has one or more National Heritage values.

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Listing lapses automatically if action not taken within 12 months of

listing

(4) If the Minister does not take action under subsection (1) within the

period referred to in that subsection, the place, and its listed

National Heritage values, are automatically removed from the

National Heritage List, by force of this subsection, at the end of

that period.

Note: This subsection applies even if the Minister is prevented from taking

action under subsection (1) because of subsection (2).

Matters to be considered

(5) For the purpose of deciding what action to take under

subsection (1) in relation to the place:

(a) the Minister must have regard to:

(i) the Australian Heritage Council’s assessment whether

the place meets any of the National Heritage criteria;

and

(ii) the comments (if any), a copy of which were given to

the Minister under subsection 324JH(1) with the

assessment; and

(b) the Minister may seek, and have regard to, information or

advice from any source.

Disapplying section 324L

(6) Section 324L does not apply to:

(a) an alteration of the boundary of the place, under

subparagraph (1)(a)(ii) of this section, that has the effect of

removing part of the place from the National Heritage List;

or

(b) the removal of the place and its National Heritage values

under subparagraph (1)(a)(iii) of this section; or

(c) the removal of a National Heritage value of the place under

subparagraph (1)(b)(iii) of this section.

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Minister to publish copy or summary of subsection (1) notice

(7) The Minister must publish a copy or summary of the instrument

referred to in subsection (1). The regulations may specify how the

publication is to be made. Subject to any such regulations, the

publication must be made in a way that the Minister considers

appropriate.

Additional requirements if place etc. is removed under

subsection (1)

(8) If, under subsection (1), the Minister removes from the National

Heritage List the place or a National Heritage value of the place, or

alters the boundary of the place described in the List, the Minister

must, within 10 business days after the removal or alteration:

(a) publish a copy of the instrument referred to in subsection (1)

on the internet; and

(b) advise each person identified by the Minister as an owner or

occupier of all or part of the place of the removal or

alteration.

Note: For the obligation to identify owners or occupiers, see

subsection 324JL(3).

Requirements if place is removed under subsection (4)

(9) If, under subsection (4), the place, and its listed National Heritage

values, are removed from the National Heritage List, the Minister

must, within 10 business days after the removal:

(a) publish notice of the removal on the internet; and

(b) advise each person identified by the Minister as an owner or

occupier of all or part of the place of the removal.

Note: For the obligation to identify owners or occupiers, see

subsection 324JL(3).

Alternative methods of notifying owners and occupiers

(10) If the Minister is satisfied that there are likely to be at least 50

persons referred to in paragraph (8)(b) or (9)(b), the Minister may

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satisfy the requirements of that paragraph in relation to those

persons by including the advice referred to in that paragraph in one

or more of the following:

(a) advertisements in a newspaper, or newspapers, circulating in

the area in which the place is located;

(b) letters addressed to “The owner or occupier” and left at all

the premises that are wholly or partly within the place;

(c) displays in public buildings at or near the place.

Subdivision BC—Other provisions relating to the National

Heritage List

324JR Co-ordination with Scientific Committee—Council

undertaking assessment

(1) This section applies if:

(a) the Australian Heritage Council undertakes an assessment of

a place under Subdivision BA or Subdivision BB; and

(b) before giving the assessment to the Minister, the Council

becomes aware that:

(i) the Scientific Committee is undertaking, or has

undertaken, an assessment under Division 1 of Part 13;

and

(ii) there is a matter that is relevant to both the assessment

referred to in paragraph (a) and the assessment referred

to in subparagraph (i).

(2) A member of the Australian Heritage Council may discuss the

matter with a member of the Scientific Committee.

(3) Before the Australian Heritage Council gives an assessment of the

place to the Minister under Subdivision BA or Subdivision BB, the

Council must comply with subsection (4) or (6).

(4) If the Scientific Committee has not yet given the Minister an

assessment that deals with that matter, the Australian Heritage

Council must:

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(a) give the Scientific Committee a copy of the assessment of the

place that the Council proposes to give to the Minister; and

(b) invite the Scientific Committee to give the Council its

comments in relation to that matter; and

(c) take into account, in finalising the assessment of the place

that the Council gives the Minister, any comments that the

Scientific Committee makes in relation to that matter in

response to that invitation within 14 days, or such longer

period as is specified in the invitation, after being given the

invitation.

(5) If the Australian Heritage Council gives the Scientific Committee a

copy of a proposed assessment of a place under paragraph (4)(a),

the Council must also give the Scientific Committee a copy of the

assessment of that place that the Council gives the Minister.

(6) If:

(a) the Scientific Committee has already given the Minister an

assessment that deals with that matter; and

(b) the Australian Heritage Council has been given a copy of that

assessment;

the Australian Heritage Council must take that assessment into

account in finalising the assessment of the place that the Council

gives the Minister.

(7) If, under section 194S or 194T, the Scientific Committee gives the

Australian Heritage Council a proposed assessment, or an

assessment, that deals with a particular matter because the Council

is undertaking an assessment that deals with that matter, a member

of the Council may discuss that matter with a member of the

Scientific Committee.

(8) Subsection (2), paragraph (4)(a) and subsections (5) and (7) have

effect despite section 324R.

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324JS Co-ordination with Scientific Committee—Council given

assessment to Minister

(1) This section applies if:

(a) the Australian Heritage Council has given to the Minister an

assessment of a place under Subdivision BA or

Subdivision BB; and

(b) the Council is aware that:

(i) the Scientific Committee is undertaking an assessment

under Division 1 of Part 13; and

(ii) there is a matter that is relevant to both the assessment

referred to in paragraph (a) and the assessment referred

to in subparagraph (i).

(2) The Australian Heritage Council must, within 7 days after

becoming aware as referred to in paragraph (1)(b):

(a) ensure the Scientific Committee is aware of the existence of

the paragraph (1)(a) assessment dealing with the matter; and

(b) give the Scientific Committee a copy of the assessment.

(3) A member of the Australian Heritage Council may discuss the

matter with a member of the Scientific Committee.

(4) Subsections (2) and (3) have effect despite section 324R.

324K Listing process not affected by changing boundaries of a place

(1) This section is about compliance with a provision of

Subdivision BA or BB that requires or permits an act to be done in

relation to the place identified by express or implied reference to

an earlier provision of that Subdivision.

(2) It is sufficient compliance with the provision if the act is done in

relation to a place whose boundary overlaps the boundary of the

place identified by reference to the earlier provision.

(3) This section does not affect the validity of the act so far as that

depends on something other than the act being done in relation to

the place.

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324L Removal of places or National Heritage values from the

National Heritage List

(1) The Minister may remove all or part of a place from the National

Heritage List only if the Minister is satisfied that:

(a) ignoring subsection 324D(2), the place no longer has any

National Heritage values or the part no longer contributes to

any of the National Heritage values of the place; or

(b) it is necessary in the interests of Australia’s defence or

security to do so.

Note: A place or part of a place may also be removed from the National

Heritage List under subsection 324JQ(1).

(2) The Minister may remove one or more National Heritage values

included in the National Heritage List for a National Heritage place

only if the Minister is satisfied that:

(a) ignoring subsection 324D(2), the place no longer has the

National Heritage value or values; or

(b) it is necessary in the interests of Australia’s defence or

security to do so.

(3) The Minister may remove all or part of a place, or a National

Heritage value of a place, only by an instrument including a

statement of the reasons for the removal.

Note 1: The Minister must first obtain and consider the advice of the

Australian Heritage Council (see section 324M).

Note 2: For requirements relating to the instrument under the Legislation Act

2003, see subsections (5) and (6) of this section.

(4) The instrument must deal with only one of the following kinds of

removal:

(a) removal (removal for loss of value) of a place, part or

National Heritage value because of paragraph (1)(a) or (2)(a);

(b) removal of a place, part or National Heritage value because

of paragraph (1)(b) or (2)(b).

If the instrument purports to deal with both kinds, it has no effect

so far as it deals with a removal for loss of value.

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(5) If the instrument deals only with removal for loss of value:

(a) it is a legislative instrument; and

(b) it takes effect on the first day it is no longer liable to be

disallowed, or to be taken to have been disallowed, under

section 42 of the Legislation Act 2003.

(6) If subsection (5) does not apply to the instrument, it is a notifiable

instrument.

Note: Notifiable instruments must be registered under the Legislation Act 2003, but they are not subject to parliamentary scrutiny or sunsetting under that Act.

324M Minister must consider advice of the Australian Heritage

Council and public comments

(1) Before the Minister removes from the National Heritage List under

section 324L all or part of a place or one or more of a place’s

National Heritage values in a removal for loss of value, the

Minister must:

(a) give the Chair of the Australian Heritage Council a written

request for the Council to give the Minister advice on the

proposed removal; and

(b) publish, on the internet, in a daily newspaper circulating in

each State and self-governing Territory and in each other way

required by the regulations (if any), a notice:

(i) describing the proposed removal; and

(ii) inviting anyone to give the Minister comments, within

20 business days, on the proposed removal.

The Minister must publish the notice within 20 business days of

giving the request.

(2) The Australian Heritage Council must give the advice to the

Minister within the period specified by the Minister.

(3) The Minister must consider the advice, if he or she receives it by

the end of that period, and the comments (if any) received in

accordance with the notice.

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(4) In preparing the advice, the Australian Heritage Council must not

consider any matter that does not relate to the National Heritage

values of the place concerned.

(5) The Minister must:

(a) decide whether to remove from the National Heritage List the

place or part concerned, or the National Heritage value or

values of the place concerned; and

(b) if the Minister decides to remove the place or part, or the

National Heritage value or values of the place—ensure that

an instrument removing the place, part or National Heritage

value or values is made under subsection 324L(3);

within 60 business days after the earlier of the advice being

received by the Minister and the specified period for giving advice

to the Minister ending.

324N Specifying one or more additional National Heritage values for

a National Heritage place

(1) The regulations may make provision for, or in relation to, the

specification in the National Heritage List of additional National

Heritage values in relation to National Heritage places.

(2) Without limiting the generality of subsection (1), regulations may

make provision as mentioned in that subsection by specifying

modifications of provisions of this Act. However, regulations must

not:

(a) increase, or have the effect of increasing, the maximum

penalty for any offence; or

(b) widen, or have the effect of widening, the scope of any

offence.

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324P National Heritage List must be publicly available

The Minister must ensure that:

(a) up-to-date copies of the National Heritage List are available

for free to the public on request; and

(b) an up-to-date copy of the National Heritage List is available

on the internet.

Note: The copies of the National Heritage List made publicly available may

not contain certain information kept confidential under section 324Q.

324Q Certain information may be kept confidential

(1) This section applies if the Minister considers that the heritage

values of a place could be significantly damaged by the disclosure

of some or all of the following information, or by the presence or

actions of persons if some or all of the following information were

disclosed publicly:

(a) the place’s precise location;

(b) the place’s heritage values;

(c) any other information about the place.

(2) It is sufficient compliance with this Act if only a general

description of the place, its location or its National Heritage values

is included in:

(a) the National Heritage List as made publicly available; or

(b) an instrument or other document created for the purposes of

this Act.

324R Disclosure of Australian Heritage Council’s assessments and

advice

(1) A member of the Australian Heritage Council has a duty not to

disclose the following to a person other than the Minister, an

employee in the Department whose duties relate to the Council or

another member of the Council:

(a) an assessment under section 324JH whether a place meets

any of the National Heritage criteria, any information relating

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to the assessment or any information about the nomination (if

any) that led to the making of the assessment;

(b) advice under section 324M concerning a place or any

information relating to the advice.

(2) However:

(a) the duty not to disclose a thing described in paragraph (1)(a)

in relation to a place does not exist after:

(i) publication in the Gazette of an instrument under

paragraph 324JJ(1)(a) or subsection 324JQ(1) in

relation to the place; or

(ii) the Minister decides under paragraph 324JJ(1)(b) not to

include the place in the National Heritage List; and

(b) the duty not to disclose a thing described in paragraph (1)(b)

in relation to a place does not exist after:

(i) registration under the Legislation Act 2003 of a

legislative instrument under section 324L relating to the

place; or

(ii) the Minister decides under section 324M not to remove

the place or a part of the place, or one or more of the

place’s National Heritage values, from the National

Heritage List.

(2A) This section does not prevent the Australian Heritage Council from

informing a person, or having discussions with a person, about the

consequences that result or may result from:

(a) a place being, or not being, included in the National Heritage

List; or

(b) National Heritage values of a place being, or not being,

included in the List; or

(c) a place or part of a place, or one or more National Heritage

values of a place, being removed from the List.

(2B) Subsection (1) does not apply to a disclosure of particular

information if:

(a) the Chair of the Australian Heritage Council requests the

Minister to give permission to disclose that information to a

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particular person (or persons within a particular group of

persons); and

(b) the Minister gives that permission; and

(c) the disclosure is made to that person (or a person within that

group).

(3) After a member of the Australian Heritage Council has ceased

under subsection (2) to have a duty not to disclose:

(a) an assessment under section 324JH whether a place meets the

National Heritage criteria; or

(b) advice under section 324M concerning a place;

the member must give a copy of the assessment or advice to

anyone who asks for it.

(4) If:

(a) a member of the Australian Heritage Council proposes to

give a person under subsection (3) a copy of an assessment or

advice relating to a place; and

(b) the member is aware that, under section 324Q, it would be

sufficient compliance with this Act if the copy included only

a general description of the place, its location or its National

Heritage values;

the member must take reasonable steps to ensure that the copy

given to the person does not include a more detailed description

than is necessary for sufficient compliance with this Act under that

section.

Subdivision C—Management plans for National Heritage

places in Commonwealth areas

324S Management plans for National Heritage places in

Commonwealth areas

(1) The Minister must make a written plan to protect and manage the

National Heritage values of each National Heritage place that is

entirely within one or more Commonwealth areas. The Minister

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must do so as soon as practicable after the first time the place

satisfies both of the following paragraphs:

(a) the place is included in the National Heritage List;

(b) the place is entirely within one or more Commonwealth

areas.

Note: However, section 324T precludes the Minister from making plans for

managing certain places.

(2) The Minister may, in writing, amend a plan or revoke and replace a

plan.

(3) The Minister must give notice, in accordance with the regulations,

if the Minister:

(a) makes a plan for a National Heritage place; or

(b) amends such a plan; or

(c) revokes and replaces such a plan.

(4) A plan must:

(a) address the matters prescribed by the regulations; and

(b) not be inconsistent with the National Heritage management

principles (see Subdivision E).

(5) If the National Heritage management principles change so that a

plan (the earlier plan) is inconsistent with them, the Minister must

as soon as practicable make a written instrument:

(a) amending the earlier plan to make it consistent with the

principles; or

(b) revoking and replacing the earlier plan.

(6) Before making, amending or revoking and replacing a plan, the

Minister must:

(a) seek in accordance with the regulations, and consider,

comments from anyone about the matters to be addressed by

the proposed plan or amendment; and

(b) seek and consider comments from the Australian Heritage

Council about those matters.

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(7) A plan, an amendment of a plan, or a revocation and replacement

of a plan, is a legislative instrument.

324T Restriction on ability to make plans

Despite section 324S, the Minister must not make a plan for

managing so much of a National Heritage place as is in a

Commonwealth reserve and covered by another plan under this

Act.

324U Compliance with plans by the Commonwealth and

Commonwealth agencies

(1) The Commonwealth or a Commonwealth agency must not:

(a) contravene a plan made under section 324S; or

(b) authorise another person to do, or omit to do, anything that, if

it were done or omitted to be done by the Commonwealth or

the Commonwealth agency (as appropriate), would

contravene such a plan.

(2) If there is no plan in force under section 324S for a particular

National Heritage place described in subsection (1) of that section,

the Commonwealth and each Commonwealth agency must take all

reasonable steps to ensure that its acts (if any) relating to the place

are not inconsistent with the National Heritage management

principles.

324V Multiple plans in the same document

To avoid doubt, a plan for managing a National Heritage place may

be in the same document as:

(a) one or more other plans for managing National Heritage

places; or

(b) one or more other plans that this Act or another law of the

Commonwealth requires or permits to be prepared.

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324W Review of plans at least every 5 years

(1) At least once in every 5 year period after a plan for managing a

National Heritage place is made under section 324S, the Minister

must cause a review of the plan to be carried out.

(2) The review must:

(a) assess whether the plan is consistent with the National

Heritage management principles in force at the time; and

(b) assess whether the plan is effective in protecting and

conserving the National Heritage values of the place; and

(c) make recommendations for the improved protection of the

National Heritage values of the place.

(3) The person carrying out the review must publish, on the internet

and in a daily newspaper circulating in each State and

self-governing Territory, a notice inviting anyone to give the

person comments within 20 business days on:

(a) whether the plan is consistent with the National Heritage

management principles; and

(b) the effectiveness of the plan in protecting and conserving the

National Heritage values of the place.

(4) In carrying out the review, the person must consider the comments

(if any) received in accordance with the notice.

Subdivision D—Management of National Heritage places in

States and self-governing Territories

324X Plans and Commonwealth responsibilities

(1) This section applies to a National Heritage place that is not entirely

within one or more Commonwealth areas and is:

(a) in a State; or

(b) in a self-governing Territory; or

(c) on, over or under the seabed vested in a State by the Coastal

Waters (State Title) Act 1980 or in the Northern Territory by

the Coastal Waters (Northern Territory Title) Act 1980.

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(2) The Commonwealth must use its best endeavours to ensure a plan

for managing the place, that is not inconsistent with the National

Heritage management principles, is prepared and implemented in

co-operation with the State or Territory.

(2A) Subsection (2) does not apply in relation to so much of a place as is

in the Great Barrier Reef Marine Park.

Note: A zoning plan must be prepared under the Great Barrier Reef Marine

Park Act 1975 for areas that are part of the Great Barrier Reef Marine

Park. In preparing a zoning plan, regard must be had to the National

Heritage management principles.

(3) The Commonwealth, and each Commonwealth agency, must take

all reasonable steps to ensure it exercises its powers and performs

its functions in relation to the place in a way that is not inconsistent

with:

(a) the National Heritage management principles; or

(b) the plan for managing the place, if one has been prepared

under subsection (2).

Subdivision E—The National Heritage management principles

324Y National Heritage management principles

(1) The regulations must prescribe principles for managing National

Heritage places. The principles prescribed are the National

Heritage management principles.

(2) The regulations may prescribe obligations to implement or give

effect to the National Heritage management principles if the

obligations relate to:

(a) a constitutional corporation, the Commonwealth or a

Commonwealth agency; or

(b) trade or commerce:

(i) between Australia and another country; or

(ii) between 2 States; or

(iii) between a State and Territory; or

(iv) between 2 Territories; or

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(c) either or both of the following:

(i) a Commonwealth area;

(ii) a Territory; or

(d) the National Heritage values, to the extent that they are

indigenous heritage values, of a National Heritage place; or

(e) the National Heritage values of a National Heritage place in

an area in respect of which Australia has obligations under

Article 8 of the Biodiversity Convention.

(3) A person must comply with the regulations to the extent that they

impose obligations on the person.

(4) Paragraph (2)(e) applies only to a prescribed obligation that is

appropriate and adapted to give effect to Australia’s obligations

under Article 8 of the Biodiversity Convention.

Subdivision F—Obligations of Commonwealth agencies

324Z Obligation to assist the Minister and the Australian Heritage

Council

(1) A Commonwealth agency that owns or controls a place that has, or

might have, one or more National Heritage values must take all

reasonable steps to assist the Minister and the Australian Heritage

Council in the identification, assessment and monitoring of the

place’s National Heritage values.

(2) A Commonwealth agency that owns or controls all or part of a

National Heritage place must take all reasonable steps to assist the

Minister to make a plan under section 324S for the place.

324ZA Protecting National Heritage values of places sold or leased

(1) This section applies if a Commonwealth agency executes a

contract for the sale or lease to someone else of a Commonwealth

area in the Australian jurisdiction that is or includes all or part of a

National Heritage place. It does not matter whether the agency

executes the contract for the Commonwealth or on its own behalf.

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(1A) The Commonwealth agency must give the Minister at least 40

business days’ notice before executing the contract.

(2) The Commonwealth agency must ensure that the contract includes

a covenant the effect of which is to protect the National Heritage

values of the place, unless the agency is satisfied that:

(a) having regard to other means of protecting those values,

including such a covenant in the contract is unnecessary to

protect them or is unreasonable; or

(b) including such a covenant in the contract is impracticable.

(3) The Commonwealth agency must inform the Minister before

executing the contract if:

(a) such a covenant:

(i) would not, or could not be made to, bind the successors

in title of the buyer or lessee; or

(ii) could be insufficient to ensure the ongoing protection of

the National Heritage values of the place; or

(b) the agency is satisfied as described in subsection (2).

The information must include written reasons why paragraph (a)

applies or why the agency is satisfied as described in

subsection (2).

(4) If the Minister is informed of a matter in paragraph (3)(a) or that

the Commonwealth agency is satisfied that it is unreasonable or

impracticable to include such a covenant in the contract, the

Minister must:

(a) take all reasonable measures to enter into a conservation

agreement with the prospective buyer or lessee for the

protection and conservation of the National Heritage values

of the place; or

(b) advise the agency about measures to ensure the ongoing

protection of the National Heritage values of the place.

(5) If the Minister is informed that the Commonwealth agency is

satisfied that it is unnecessary to include such a covenant in the

contract, the Minister may advise the agency about measures to

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ensure the ongoing protection of the National Heritage values of

the place.

(6) If the Minister advises the Commonwealth agency under this

section about measures to ensure the ongoing protection of the

National Heritage values of the place, the agency must take all

reasonable steps to ensure that the measures are taken.

Subdivision G—Assistance for protecting National Heritage

places

324ZB Commonwealth assistance for protecting National Heritage

places

(1) The Commonwealth may give financial or other assistance for the

identification, promotion, protection or conservation of a National

Heritage place to:

(a) a State or self-governing Territory in which the place or part

of the place is located; or

(b) any other person.

(2) The Commonwealth may give the assistance subject to conditions.

Subdivision H—Reviewing and reporting on the National

Heritage List

324ZC Reviewing and reporting on the National Heritage List

(1) At least once in every 5 year period after the National Heritage List

is established, the Minister must ensure that:

(a) a review of the National Heritage List is carried out; and

(b) a report of that review is tabled in each House of the

Parliament.

(2) The report must include details of:

(a) the number of places included in the National Heritage List;

and

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(b) any significant damage or threat to the National Heritage

values of those places; and

(c) how many plans under Subdivisions C and D for managing

National Heritage places have been made, or are being

prepared, and how effectively the plans that have been made

are operating; and

(d) the operation of any conservation agreements under Part 14

that affect National Heritage places; and

(e) all nominations, assessments and changes to the National

Heritage List under this Division during the period of review;

and

(f) compliance with this Act in relation to National Heritage

places; and

(g) any other matters that the Minister considers relevant.

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Section 325

Division 2—Managing wetlands of international

importance

Subdivision A—Simplified outline of this Division

325 Simplified outline of this Division

The following is a simplified outline of this Division:

The Commonwealth may designate a wetland for inclusion in the

List of Wetlands of International Importance kept under the

Ramsar Convention only after seeking the agreement of relevant

States, self-governing Territories and land-holders.

The Minister must make plans for managing wetlands listed under

the Ramsar Convention that are entirely in Commonwealth areas.

The Commonwealth and Commonwealth agencies must not

contravene such plans.

The Commonwealth must try to prepare and implement

management plans for other wetlands listed under the Ramsar

Convention, in co-operation with the relevant States and

self-governing Territories.

The Commonwealth and Commonwealth agencies have duties

relating to declared Ramsar wetlands in States and Territories.

The Commonwealth can provide assistance for the protection or

conservation of declared Ramsar wetlands.

Note: Section 16 prohibits an action that has a significant impact on an

internationally important wetland, unless the person taking the action

has the approval of the Minister administering that section or certain

other requirements are met.

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Subdivision B—Seeking agreement on Ramsar designation

326 Commonwealth must seek agreement before designation

(1) The Commonwealth may designate for inclusion in the List of

Wetlands of International Importance kept under the Ramsar

Convention a wetland containing an area owned or occupied by

another person only if the Minister is satisfied that the

Commonwealth has used its best endeavours to reach agreement

with the other person on:

(a) the proposed designation of the wetland (so far as it relates to

the area); and

(b) management arrangements for the wetland (so far as they

relate to the area).

(2) The Commonwealth may designate a wetland in a State or

self-governing Territory for inclusion in the List of Wetlands of

International Importance kept under the Ramsar Convention only if

the Minister is satisfied that the Commonwealth has used its best

endeavours to reach agreement with the State or Territory on:

(a) the proposed submission of the wetland; and

(b) management arrangements for the wetland.

(3) A failure to comply with this section does not affect the

designation of a wetland for inclusion in the List of Wetlands of

International Importance kept under the Ramsar Convention or the

status of a wetland as a declared Ramsar wetland.

Subdivision C—Notice of designation of wetland

327 Minister must give notice of designation of wetland etc.

(1) The Minister must give notice in the Gazette and in the way (if

any) prescribed by the regulations of any of the following events as

soon as practicable after the event occurs:

(a) the Commonwealth designates a wetland for inclusion in the

List of Wetlands of International Importance kept under the

Ramsar Convention;

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(b) the Commonwealth extends the boundaries of a wetland it

has included in the List;

(c) the Commonwealth restricts the boundaries of a wetland it

has included in the List;

(d) the Commonwealth deletes from the List a wetland it

previously included in the List.

(2) The notice must specify the area included in, or excluded or

deleted from, the List as a result of the event.

(3) A failure to comply with this section does not affect the status of

an area as a declared Ramsar wetland.

Subdivision D—Plans for listed wetlands in Commonwealth

areas

328 Making plans

Minister must make plan

(1) The Minister must make a written plan for managing a wetland that

is included in the List of Wetlands of International Importance kept

under the Ramsar Convention and is entirely within one or more

Commonwealth areas. The Minister must do so as soon as

practicable after the wetland:

(a) is included in the List; or

(b) becomes entirely within one or more Commonwealth areas.

Amending and replacing plan

(2) The Minister may make a written plan amending, or revoking and

replacing, a plan made under subsection (1) or this subsection.

Requirements for plan

(3) A plan must not be inconsistent with:

(a) Australia’s obligations under the Ramsar Convention; or

(b) the Australian Ramsar management principles.

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Note: Section 335 explains what Australian Ramsar management principles

are.

Ensuring plans reflect current management principles

(4) If the Australian Ramsar management principles change so that a

plan (the earlier plan) is inconsistent with them, the Minister must

make another plan:

(a) amending the earlier plan so it is not inconsistent with them;

or

(b) revoking and replacing the earlier plan.

Plan may be in same document as another plan

(5) To avoid doubt, a plan under this section for a wetland may be in

the same document as:

(a) a plan under this section for another wetland; or

(b) a plan that this Act or another law of the Commonwealth

requires or permits to be prepared.

Commonwealth reserves

(6) Despite subsections (1) and (2), the Minister may not make a plan

for so much of a wetland as is in a Commonwealth reserve.

Note: A management plan must be prepared under Division 4 for a

Commonwealth reserve, taking account of Australia’s obligations

under the Ramsar Convention.

329 Notice of plans

The Minister must give notice of the making of a plan under

section 328, in accordance with the regulations.

330 Commonwealth compliance with plans

(1) The Commonwealth or a Commonwealth agency must not:

(a) contravene a plan made under section 328; or

(b) authorise another person to do, or omit to do, anything that, if

it were done or omitted to be done by the Commonwealth or

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the Commonwealth agency (as appropriate), would

contravene such a plan.

(2) If there is no plan in force under section 328 for a particular

wetland described in subsection (1) of that section, the

Commonwealth and each Commonwealth agency must take all

reasonable steps to ensure that its acts (if any) relating to the

wetland are not inconsistent with the Australian Ramsar

management principles.

331 Review of plans every 5 years

(1) The Minister must cause a review of a plan made under section 328

to be carried out at least once in each period of 5 years after the

plan is made.

(2) The review must consider whether the plan is consistent with the

Australian Ramsar management principles in force at the time.

Note: Section 335 explains what Australian Ramsar management principles

are.

Subdivision E—Management of wetlands in States and

self-governing Territories

332 Application

This Subdivision applies in relation to a wetland that:

(a) is:

(i) in a State; or

(ii) in a self-governing Territory; or

(iii) on, over or under the seabed vested in a State by the

Coastal Waters (State Title) Act 1980 or in the Northern

Territory by the Coastal Waters (Northern Territory

Title) Act 1980; and

(b) is not entirely within one or more Commonwealth areas.

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333 Co-operating to prepare and implement plans

(1) This section applies in relation to a wetland that is included in the

List of Wetlands of International Importance kept under the

Ramsar Convention.

(2) The Commonwealth must use its best endeavours to ensure a plan

for managing the wetland in a way that is not inconsistent with

Australia’s obligations under the Ramsar Convention or the

Australian Ramsar management principles is prepared and

implemented in co-operation with the State or Territory.

Note: The Commonwealth and the State or Territory could make a bilateral

agreement adopting the plan and providing for its implementation.

334 Commonwealth responsibilities

(1) This section applies in relation to a wetland that is a declared

Ramsar wetland.

(2) The Commonwealth and each Commonwealth agency must take all

reasonable steps to ensure it exercises its powers and performs its

functions in relation to the wetland in a way that is not inconsistent

with:

(a) the Ramsar Convention; and

(b) the Australian Ramsar management principles; and

(c) if the wetland is included in the List of Wetlands of

International Importance kept under the Ramsar Convention

and a plan for managing the property has been prepared as

described in section 333—that plan.

Subdivision F—Australian Ramsar management principles

335 Australian Ramsar management principles

(1) The regulations must prescribe principles for the management of

wetlands included in the List of Wetlands of International

Importance kept under the Ramsar Convention. The principles

prescribed are the Australian Ramsar management principles.

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(2) Before the Governor-General makes regulations prescribing

principles, the Minister must be satisfied that the principles to be

prescribed are consistent with Australia’s obligations under the

Ramsar Convention.

Subdivision G—Assistance for protecting wetlands

336 Commonwealth assistance for protecting declared Ramsar

wetlands

(1) The Commonwealth may give financial or other assistance for the

protection or conservation of a declared Ramsar wetland to:

(a) a State or self-governing Territory in which the wetland

occurs; or

(b) any other person.

(2) The giving of assistance may be made subject to such conditions as

the Minister thinks fit.

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Section 337

Division 3—Managing Biosphere reserves

337 Definition of Biosphere reserve

A Biosphere reserve is an area designated for inclusion in the

World Network of Biosphere Reserves by the International

Co-ordinating Council of the Man and the Biosphere program of

the United Nations Educational, Scientific and Cultural

Organization.

338 Planning for management of Biosphere reserves

(1) The Minister may make and implement a written plan for

managing a Biosphere reserve, or a part of a Biosphere reserve,

entirely within one or more Commonwealth areas. The plan must

not be inconsistent with the Australian Biosphere reserve

management principles.

(2) The Commonwealth may co-operate with a State or self-governing

Territory to prepare and implement a plan for managing a

Biosphere reserve in the State or Territory. The plan must not be

inconsistent with the Australian Biosphere reserve management

principles.

339 Commonwealth activities in Biosphere reserves

The Commonwealth and each Commonwealth agency must take all

reasonable steps to ensure that it exercises its powers and performs

its functions in relation to a Biosphere reserve in a way that is not

inconsistent with:

(a) the Australian Biosphere reserve management principles; or

(b) a plan prepared as described in section 338 for managing the

Biosphere reserve.

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340 Australian Biosphere reserve management principles

(1) The regulations must prescribe principles for the management of

Biosphere reserves. The principles prescribed are the Australian

Biosphere reserve management principles.

(2) Before the Governor-General makes regulations prescribing

principles, the Minister must be satisfied that the principles to be

prescribed are consistent with the Statutory Framework of the

World Network of Biosphere Reserves established under the Man

and the Biosphere program of the United Nations Educational,

Scientific and Cultural Organization.

341 Commonwealth assistance for protecting Biosphere reserves

(1) The Commonwealth may give financial or other assistance for the

protection or conservation of a Biosphere reserve to:

(a) a State or self-governing Territory in which the reserve or

part of the reserve occurs; or

(b) any other person.

(2) The giving of assistance may be made subject to such conditions as

the Minister thinks fit.

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Section 341A

Division 3A—Managing Commonwealth Heritage places

Subdivision A—Preliminary

341A Simplified outline of this Division

The following is a simplified outline of this Division:

The Minister may only include a place in the Commonwealth

Heritage List if the place is in a Commonwealth area, or is owned

or leased by the Commonwealth or a Commonwealth agency

outside the Australian jurisdiction, and the Minister is satisfied that

the place has one or more Commonwealth Heritage values.

The Minister must ask the Australian Heritage Council for an

assessment of the place’s Commonwealth Heritage values and may

invite public comments on the proposed inclusion of the place in

the Commonwealth Heritage List.

Commonwealth agencies must make plans to protect and manage

the Commonwealth Heritage values of Commonwealth Heritage

places. The Commonwealth and Commonwealth agencies must not

contravene those plans.

Commonwealth agencies also have other obligations.

The Commonwealth can provide assistance for the identification,

promotion, protection or conservation of Commonwealth Heritage

places.

341B Extension to places etc. outside the Australian jurisdiction

This Division extends to places, acts and omissions outside the

Australian jurisdiction, except so far as the contrary intention

appears.

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Subdivision B—The Commonwealth Heritage List

341C The Commonwealth Heritage List

(1) The Minister must keep a written record of places and their

heritage values in accordance with this Subdivision and

Subdivisions BA, BB and BC. The record is called the

Commonwealth Heritage List.

(2) A place may be included in the Commonwealth Heritage List only

if:

(a) the place either:

(i) is entirely within a Commonwealth area; or

(ii) is outside the Australian jurisdiction and is owned or

leased by the Commonwealth or a Commonwealth

Authority; and

(b) the Minister is satisfied that the place has one or more

Commonwealth Heritage values (subject to the provisions in

Subdivision BB about the emergency process).

(3) A place that is included in the Commonwealth Heritage List is

called a Commonwealth Heritage place.

(4) The Commonwealth Heritage List is not a legislative instrument.

341D Meaning of Commonwealth Heritage values

(1) A place has a Commonwealth Heritage value if and only if the

place meets one of the criteria (the Commonwealth Heritage

criteria) prescribed by the regulations for the purposes of this

section. The Commonwealth Heritage value of the place is the

place’s heritage value that causes the place to meet the criterion.

(2) The Commonwealth Heritage values of a Commonwealth

Heritage place are the Commonwealth Heritage values of the place

included in the Commonwealth Heritage List for the place.

(3) The regulations must prescribe criteria for the following:

(a) natural heritage values of places;

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(b) indigenous heritage values of places;

(c) historic heritage values of places.

The regulations may prescribe criteria for other heritage values of

places.

(4) To avoid doubt, a criterion prescribed by the regulations may relate

to one or more of the following:

(a) natural heritage values of places;

(b) indigenous heritage values of places;

(c) historic heritage values of places;

(d) other heritage values of places.

Subdivision BA—Inclusion of places in the Commonwealth

Heritage List: usual process

341E Simplified outline

The following is a simplified outline of this Subdivision:

This Subdivision sets out the usual process for the inclusion of

places in the Commonwealth Heritage List.

The usual process involves an annual cycle that revolves around

12-month periods known as assessment periods. The Minister

determines the start of the first assessment period (see

section 341G).

The usual process involves the following steps for each assessment

period:

(a) the Minister invites people to nominate places for

inclusion in the Commonwealth Heritage List, and

gives the nominations to the Australian Heritage

Council (see sections 341H and 341J);

(b) the Australian Heritage Council prepares, and

gives to the Minister, a list of places (which will

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mostly be places that have been nominated) that it

thinks should be assessed (see sections 341JA,

341JB and 341JC);

(c) the Minister finalises the list of places that are to

be assessed (see sections 341JD and 341JE);

(d) the Australian Heritage Council invites people to

make comments about the places in the finalised

list (see section 341JF);

(e) the Australian Heritage Council assesses the places

in the finalised list, and gives the assessments to

the Minister (see sections 341JG and 341JH);

(f) the Minister decides whether a place that has been

assessed should be included in the Commonwealth

Heritage List (see section 341JI).

The steps mentioned in paragraphs (a) to (c) will generally be

completed before the start of the assessment period.

341F Definitions

In this Subdivision:

assessment period has the meaning given by subsection 341G(1).

eligible for assessment consideration, in relation to an assessment

period, has the meaning given by subsection 341JA(3).

finalised priority assessment list for an assessment period has the

meaning given by subsection 341JD(4).

proposed priority assessment list for an assessment period has the

meaning given by subsection 341JA(1).

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341G Meaning of assessment period

(1) For the purposes of this Subdivision, each of the following is an

assessment period:

(a) the period of 12 months starting on the day determined in

writing by the Minister for the purposes of this paragraph;

(b) each period of 12 months starting on an anniversary of the

day so determined.

(2) The Minister must make a determination under paragraph (1)(a)

within 3 months after the commencement of this section. The day

so determined must not be more than 12 months after that

commencement.

(3) A determination under paragraph (1)(a) is a legislative instrument,

but section 42 (disallowance) of the Legislation Act 2003 does not

apply to the determination.

Note: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not

apply to the determination. See regulations made for the purposes of

paragraph 54(2)(b) of that Act.

341H Minister to invite nominations for each assessment period

(1) Before the start of each assessment period, the Minister must

publish a notice inviting people to nominate places for inclusion in

the Commonwealth Heritage List.

Note: For which places can be included in the Commonwealth Heritage List,

see subsection 341C(2).

(2) A notice under subsection (1):

(a) must be published in accordance with the regulations referred

to in paragraph (3)(a); and

(b) must invite people to nominate, to the Minister, places for

inclusion in the Commonwealth Heritage List; and

(c) must identify the assessment period to which the notice

relates; and

(d) must specify a date (the cut-off date) by which nominations

must be received, which must be at least 40 business days

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after the notice has been published as required by

paragraph (a); and

(e) must specify, or refer to, the information requirements, and

the manner and form requirements, that, under regulations

referred to in paragraphs (3)(b) and (c), apply to making

nominations; and

(f) may also include any other information that the Minister

considers appropriate.

(3) The regulations must provide for the following:

(a) how a notice under subsection (1) is to be published;

(b) the manner and form for making nominations;

(c) what information is to be included in a nomination.

341J Minister to give nominations to Australian Heritage Council

Nominations in relation to first assessment period

(1) Within 30 business days after the cut-off date specified in the

notice under subsection 341H(1) for the first assessment period, the

Minister must give the Australian Heritage Council the

nominations that the Minister:

(a) had received before the end of that cut-off date; and

(b) had not already requested the Australian Heritage Council,

under section 341E (as in force before the commencement of

this section), to assess; and

(c) had not already rejected under section 341E (as in force

before the commencement of this section); and

(d) does not reject under subsection (4).

(2) Subsection (1) does not apply to a nomination of a place if the

Minister had, before the commencement of this section, included

the place in the Commonwealth Heritage List under section 341F

(as in force before the commencement of this section).

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Nominations in relation to later assessment periods

(3) Within 30 business days after the cut-off date (the current cut-off

date) specified in the notice under subsection 341H(1) for an

assessment period (other than the first), the Minister must give the

Australian Heritage Council the nominations that were received by

the Minister in the period:

(a) starting immediately after the end of the cut-off date

specified in the notice under subsection 341H(1) for the

immediately preceding assessment period; and

(b) ending at the end of the current cut-off date;

other than any such nominations that the Minister has rejected

under subsection (4).

Minister may reject nominations

(4) The Minister may, in writing, reject a nomination if the Minister

considers that:

(a) the nomination is vexatious, frivolous or not made in good

faith; or

(b) the Minister considers that regulations referred to in

paragraph 341H(3)(b) or (c) have not been complied with in

relation to the nomination.

(5) If a nomination is rejected under paragraph (4)(b), the Minister

must, if practicable, notify the person who made the nomination of

the rejection of the nomination and the reason for the rejection.

Definition

(6) In this section:

nomination means a nomination of a place for inclusion in the

Commonwealth Heritage List.

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341JA Australian Heritage Council to prepare proposed priority

assessment list

(1) Within 40 business days after the Australian Heritage Council

receives the nominations as required by subsection 341J(1) in

relation to an assessment period, the Council must prepare and give

to the Minister a list (the proposed priority assessment list) for the

assessment period.

(2) The proposed priority assessment list is to consist of such of the

places that are eligible for assessment consideration in relation to

the assessment period as the Australian Heritage Council considers

it appropriate to include in the list, having regard to:

(a) the Council’s own views about what should be given priority

in relation to the assessment period; and

(b) the Council’s capacity to make assessments under this

Division while still performing its other functions; and

(c) any other matters that the Council considers appropriate.

(3) A place is eligible for assessment consideration in relation to the

assessment period if:

(a) the place has been nominated by a nomination referred to in

subsection (1); or

(b) the Council itself wishes to nominate the place for inclusion

in the Commonwealth Heritage List; or

(c) the place was eligible for assessment consideration,

otherwise than because of this paragraph, in relation to the

immediately preceding assessment period (if any) but was

not included in the finalised priority assessment list for that

assessment period; or

(d) each part of the place is either a place to which paragraph (a)

applies, a place to which paragraph (b) applies or a place to

which paragraph (c) applies.

(4) Without limiting the generality of the Australian Heritage

Council’s discretion under subsection (2), the Council does not

have to include in the proposed priority assessment list a place that

has been nominated if the Council considers that it is unlikely that

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the place has any Commonwealth Heritage values. For this

purpose, the Council is not required to have regard to any

information beyond the information that was included in the

nomination.

(5) The proposed priority assessment list is not a legislative

instrument.

341JB Matters to be included in proposed priority assessment list

(1) The proposed priority assessment list for an assessment period is to

include, for each place in the list:

(a) a description of the place; and

(b) an assessment completion time; and

(c) any other information required by the regulations.

(2) The assessment completion time for a place must be either:

(a) a time that is at or before the end of the assessment period to

which the list relates; or

(b) if the Australian Heritage Council considers it likely that

making an assessment in relation to the place will take a

period that is longer than 12 months—the end of that longer

period (calculated from the start of the assessment period).

341JC Statement to be given to Minister with proposed priority

assessment list

(1) When the Australian Heritage Council gives the Minister the

priority assessment list for an assessment period, the Council must

also give the Minister a statement setting out such information as

the Council considers appropriate relating to:

(a) for each place that is included in the list—why the Council

included the place in the list; and

(b) for each place that is not included in the list but that was

eligible for assessment consideration because of

paragraph 341JA(3)(a) or (c)—why the Council did not

include the place in the list.

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(2) The statement must also identify, as places nominated by the

Australian Heritage Council:

(a) any places that are included in the list because the Council

itself wishes to nominate them (see paragraph 341JA(3)(b));

and

(b) any places that are included in the list because of

paragraph 341JA(3)(d) that consist of one or more places to

which paragraph 341JA(3)(b) applies.

341JD The finalised priority assessment list

(1) Within 20 business days after the Minister, under section 341JA,

receives the proposed priority assessment list for an assessment

period, the Minister may, in writing, make changes to the list as

mentioned in subsection (2).

(2) The changes the Minister may make are as follows:

(a) including a place in the list (and also including the matters

referred to in subsection 341JA(1));

(b) omitting a place from the list (and also omitting the matters

referred to in subsection 341JA(1));

(c) changing the assessment completion time for a place in the

list;

(d) any other changes of a kind permitted by the regulations.

(3) In exercising the power to make changes, the Minister may have

regard to any matters that the Minister considers appropriate.

(4) At the end of the period of 20 business days referred to in

subsection (1), the list, as changed (if at all) by the Minister,

becomes the finalised priority assessment list for the assessment

period.

(5) The Minister must notify the Australian Heritage Council of all

changes that the Minister makes to the list.

(6) The finalised priority assessment list is not a legislative instrument.

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341JE Publication of finalised priority assessment list

(1) The Australian Heritage Council must publish the finalised priority

assessment list for an assessment period on the internet.

(2) The Australian Heritage Council must also publish the finalised

priority assessment list in accordance with any requirements of the

regulations.

341JF Australian Heritage Council to invite comments on places in

finalised priority assessment list

(1) In relation to each place included in the finalised priority

assessment list for an assessment period, the Australian Heritage

Council must publish a notice inviting people to make comments

on the place.

(2) The Australian Heritage Council may, under subsection (1),

publish a single notice relating to all of the places on the finalised

priority assessment list, or may publish a number of separate

notices, each of which relates to one or more of the places.

(3) A notice under subsection (1), in relation to a place or places:

(a) must be published in accordance with the regulations referred

to in paragraph (4)(a); and

(b) must identify the place or places to which the notice relates;

and

(c) must invite people to make comments, to the Australian

Heritage Council, about:

(i) whether the place or places meet any of the

Commonwealth Heritage criteria; and

(ii) whether the place or places should be included in the

Commonwealth Heritage List; and

(d) must specify the date (the cut-off date) by which comments

must be received, which must be at least 30 business days

after the notice has been published as required by

paragraph (a); and

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(e) must specify, or refer to, the manner and form requirements

that, under regulations referred to in paragraph (4)(b), apply

to making comments; and

(f) may also invite people to comment on other matters that the

Australian Heritage Council considers appropriate; and

(g) may also include any other information that the Australian

Heritage Council considers appropriate.

(4) The regulations must provide for the following:

(a) how a notice under subsection (1) is to be published;

(b) the manner and form for making comments.

341JG Australian Heritage Council to assess places on finalised

priority assessment list and give assessments to Minister

(1) In relation to each place included in the finalised priority

assessment list for an assessment period, the Australian Heritage

Council must (by the time required by section 341JH):

(a) make a written assessment whether the place meets any of

the Commonwealth Heritage criteria; and

(b) give to the Minister:

(i) the written assessment (or a copy of it); and

(ii) a copy of the comments referred to in paragraphs (2)(a)

and (b) (whether or not they have all been taken into

account under subsection (2)).

(2) In making an assessment in relation to a place, the Australian

Heritage Council, subject to subsections (3) and (4):

(a) must take into account the comments the Council receives in

response to the notice under subsection 341JF(1) in relation

to the place; and

(b) may take into account the comments the Council receives in

response to the opportunity referred to in paragraph (5)(c);

and

(c) may seek, and have regard to, information or advice from any

source.

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(3) The Australian Heritage Council is not required to take a comment

referred to in paragraph (2)(a) into account if:

(a) the Council does not receive the comment until after the

cut-off date specified in the notice under subsection 341JF(1)

in relation to the place; or

(b) the Council considers that regulations referred to in

paragraph 341JF(4)(b) have not been complied with in

relation to the comment.

(4) In making an assessment, the Australian Heritage Council must not

consider any matter that does not relate to the question whether the

place meets any of the Commonwealth Heritage criteria.

(5) If, in making an assessment, the Australian Heritage Council

considers that a place within the Australian jurisdiction might have

one or more Commonwealth Heritage values, the Council must:

(a) take all practicable steps:

(i) to identify each person who is an owner or occupier of

all or part of the place; and

(ii) if the Council considers the place might have an

indigenous heritage value—to identify each Indigenous

person who has rights or interests in all or part of the

place; and

(b) take all practicable steps to advise each person identified that

the Council is assessing whether the place meets any of the

Commonwealth Heritage criteria; and

(c) give persons advised at least 20 business days to comment in

writing whether the place should be included in the

Commonwealth Heritage List.

(6) If the Australian Heritage Council is satisfied that there are likely

to be at least 50 persons referred to in subparagraph (5)(a)(i), the

Council may satisfy the requirements of subsection (5) in relation

to those persons by including the information referred to in

paragraphs (5)(b) and (c) in one or more of the following:

(a) advertisements in a newspaper, or newspapers, circulating in

the area in which the place is located;

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(b) letters addressed to “The owner or occupier” and left at all

the premises that are wholly or partly within the place;

(c) displays in public buildings at or near the place.

(7) If:

(a) the Australian Heritage Council considers that the place

might have an indigenous heritage value; and

(b) there are Indigenous persons who:

(i) have rights or interests in all or part of the place; and

(ii) are neither owners nor occupiers of all or part of the

place; and

(c) the Australian Heritage Council is satisfied that there is a

body, or there are bodies, that can appropriately represent

those Indigenous persons in relation to those rights and

interests;

the Australian Heritage Council may satisfy the requirements of

subsection (5) in relation to those Indigenous persons by giving the

information referred to in paragraphs (5)(b) and (c) to that body or

those bodies.

341JH Time by which assessments to be provided to Minister

(1) Subsection 341JG(1) must be complied with, in relation to a place

included in the finalised priority assessment list for an assessment

period, by the assessment completion time specified in the list for

the place, or by that time as extended under this section.

(2) The Australian Heritage Council may request the Minister to

extend the assessment completion time (or that time as previously

extended) if the Council considers that it needs more time to make

the assessment.

(3) The Minister may, in response to a request under subsection (2),

extend the assessment completion time (or that time as previously

extended) by such period (if any) as the Minister considers

appropriate. However, the total length of all extensions of the

assessment completion time must not be more than 5 years.

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(4) An extension under subsection (3) must be made in writing.

(5) If the Minister grants an extension under this section, the Minister

must publish particulars of the extension in a way that the Minister

considers appropriate.

341JI Decision about inclusion of a place in the Commonwealth

Heritage List

Minister to decide whether or not to include place

(1) After receiving from the Australian Heritage Council an

assessment under section 341JG whether a place (the assessed

place) meets any of the Commonwealth Heritage criteria, the

Minister must:

(a) by instrument published in the Gazette, include in the

Commonwealth Heritage List:

(i) the assessed place or a part of the assessed place; and

(ii) the Commonwealth Heritage values of the assessed

place, or that part of the assessed place, that are

specified in the instrument; or

(b) in writing, decide not to include the assessed place in the

Commonwealth Heritage List.

Note: The Minister may include a place in the Commonwealth Heritage List

only if the Minister is satisfied that the place has one or more

Commonwealth Heritage values (see subsection 341C(2)).

(2) Subject to subsection (3), the Minister must comply with

subsection (1) within 90 business days after the day on which the

Minister receives the assessment.

(3) The Minister may, in writing, extend or further extend the period

for complying with subsection (1).

(4) Particulars of an extension or further extension under

subsection (3) must be published on the internet and in any other

way required by regulations.

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(5) For the purpose of deciding what action to take under

subsection (1) in relation to the assessed place:

(a) the Minister must have regard to:

(i) the Australian Heritage Council’s assessment whether

the assessed place meets any of the Commonwealth

Heritage criteria; and

(ii) the comments (if any), a copy of which were given to

the Minister under subsection 341JG(1) with the

assessment; and

(b) the Minister may seek, and have regard to, information or

advice from any source.

Additional requirements if Minister decides to include place

(6) If the Minister includes the assessed place, or a part of the assessed

place (the listed part of the assessed place), in the Commonwealth

Heritage List, he or she must, within a reasonable time:

(a) take all practicable steps to:

(i) identify each person who is an owner or occupier of all

or part of the assessed place; and

(ii) advise each person identified that the assessed place, or

the listed part of the assessed place, has been included

in the Commonwealth Heritage List; and

(b) if the assessed place:

(i) was nominated; or

(ii) was included in a place that was nominated; or

(iii) includes a place that was nominated;

by a person in response to a notice under

subsection 341H(1)—advise the person that the assessed

place, or the listed part of the assessed place, has been

included in the Commonwealth Heritage List; and

(c) publish a copy of the instrument referred to in

paragraph (1)(a) on the internet; and

(d) publish a copy or summary of that instrument in accordance

with any other requirements specified in the regulations.

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(7) Paragraph (6)(a) does not apply unless the assessed place is within

the Australian jurisdiction.

(8) If the Minister is satisfied that there are likely to be at least 50

persons referred to in subparagraph (6)(a)(i), the Minister may

satisfy the requirements of that paragraph in relation to those

persons by including the advice referred to in that paragraph in one

or more of the following:

(a) advertisements in a newspaper, or newspapers, circulating in

the area in which the assessed place is located;

(b) letters addressed to “The owner or occupier” and left at all

the premises that are wholly or partly within the assessed

place;

(c) displays in public buildings at or near the assessed place.

Additional requirements if Minister decides not to include place

(9) If the Minister decides not to include the assessed place in the

Commonwealth Heritage List, the Minister must, within 10

business days after making the decision:

(a) publish the decision on the internet; and

(b) if the assessed place:

(i) was nominated; or

(ii) was included in a place that was nominated; or

(iii) includes a place that was nominated;

by a person in response to a notice under

subsection 341H(1)—advise the person of the decision, and

of the reasons for the decision.

Note: Subsection (9) applies in a case where the Minister decides that none

of the assessed place is to be included in the Commonwealth Heritage

List.

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Subdivision BB—Inclusion of places in the Commonwealth

Heritage List: emergency process

341JJ Simplified outline

The following is a simplified outline of this Subdivision:

This Subdivision sets out the emergency process for the inclusion

of places in the Commonwealth Heritage List.

The emergency process involves the following steps:

(a) the Minister may include a place in the

Commonwealth Heritage List if it is under threat

(see section 341JK);

(b) the Minister asks the Australian Heritage Council

to assess the place (see section 341JN( �

(c) the Australian Heritage Council publishes notice of

the listing and invites comments (see

section 341JM);

(d) the Australian Heritage Council assesses the place,

and gives the assessment to the Minister (see

sections 341JN and 341JO);

(e) the Minister has 12 months from the listing of the

place to decide whether it should continue to be

listed, and the listing will lapse if the Minister does

not make a decision within that period (see

section 341JP).

341JK Minister may include place in Commonwealth Heritage List

if under threat

(1) If the Minister believes:

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(a) a place has or may have one or more Commonwealth

Heritage values; and

(b) any of those values is under threat of a significant adverse

impact; and

(c) that threat is both likely and imminent;

the Minister may, by instrument published in the Gazette, include

in the Commonwealth Heritage List the place and the

Commonwealth Heritage values the Minister believes the place has

or may have.

Note: For which places can be included in the Commonwealth Heritage List,

see subsection 341C(2).

(2) If:

(a) the place is included in the Commonwealth Heritage List

under subsection (1); and

(b) before that inclusion of the place, the place was being

considered for inclusion in the List under the process set out

in Subdivision BA;

that process ceases to apply to the place when it is included in the

List under subsection (1).

Note: Subsection (2) does not prevent the process in Subdivision BA again

starting to apply to the place if (for example) the place ceases to be

listed because of subsection 341JP(1) or (4) and a person subsequently

nominates the place under that Subdivision.

(3) If the place is included in the Commonwealth Heritage List under

subsection (1), the Minister must:

(a) in any case—within 10 business days after the inclusion of

the place, publish a copy of the instrument under

subsection (1):

(i) on the internet; and

(ii) in accordance with any other requirements specified in

the regulations; and

(b) if the place is within the Australian jurisdiction—take all

practicable steps to:

(i) identify each person who is an owner or occupier of all

or part of the place; and

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(ii) advise each person identified that the place has been

included in the Commonwealth Heritage List.

(4) If the Minister is satisfied that there are likely to be at least 50

persons referred to in subparagraph (3)(b)(i), the Minister may

satisfy the requirements of paragraph (3)(b) in relation to those

persons by including the advice referred to in that paragraph in one

or more of the following:

(a) advertisements in a newspaper, or newspapers, circulating in

the area in which the place is located;

(b) letters addressed to “The owner or occupier” and left at all

the premises that are wholly or partly within the place;

(c) displays in public buildings at or near the place.

341JL Minister to ask Australian Heritage Council for assessment

(1) If the Minister includes a place in the Commonwealth Heritage List

under section 341JK, the Minister must, in writing, request the

Australian Heritage Council to give the Minister an assessment of

whether the place meets any of the Commonwealth Heritage

criteria.

(2) The request must specify the assessment completion time for the

assessment.

Note: When specifying an assessment completion time, the 12-month period

referred to in subsection 341JP(1) should be considered.

341JM Publication of listing of place and inviting comments

(1) If the Australian Heritage Council receives a request under

subsection 341JL(1) in relation to a place that has been included in

the Commonwealth Heritage List, the Council must publish a

notice inviting people to comment on the listing of the place.

(2) A notice under subsection (1) in relation to a place:

(a) must be published in accordance with the regulations referred

to in paragraph (3)(a); and

(b) must contain the following:

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(i) a description of the place;

(ii) a statement that the place has been included in the

Commonwealth Heritage List, and that specifies the

Commonwealth Heritage values that have been included

in the List in relation to the place;

(iii) the date on which the place was so included; and

(c) must invite people to make comments, to the Australian

Heritage Council, about:

(i) whether the place meets any of the Commonwealth

Heritage criteria; and

(ii) whether the place should continue to be included in the

Commonwealth Heritage List; and

(d) must specify the date (the cut-off date) by which comments

must be received, which must be at least 30 business days

after the notice has been published as required by

paragraph (a); and

(e) must specify, or refer to, the manner and form requirements

that, under regulations referred to in paragraph (3)(b), apply

to making comments.

(3) The regulations may provide for either or both of the following:

(a) how a notice under subsection (1) is to be published;

(b) the manner and form for making comments.

341JN Australian Heritage Council to assess place and give

assessment to Minister

(1) Section 341JG applies in relation to a request under

subsection 341JL(1) as if:

(a) a reference in section 341JG to a place included in the

finalised priority assessment list for an assessment period

were a reference to the place to which the request relates; and

(b) a reference in section 341JG to the notice under

subsection 341JF(1) in relation to the place were a reference

to the notice under subsection 341JM(1) in relation to the

place; and

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(c) a reference in section 341JG to regulations referred to in

paragraph 341JF(4)(b) were a reference to regulations

referred to in paragraph 341JM(3)(b); and

(d) a reference in section 341JG to whether the place should be

included in the Commonwealth Heritage List were a

reference to whether the place should continue to be included

in the Commonwealth Heritage List.

(2) A reference in another provision of this Act to section 341JG, or to

a provision of that section, includes a reference to that section or

provision as it applies because of this section.

341JO Time by which assessments to be provided to Minister

(1) Section 341JH applies in relation to a request under

subsection 341JL(1) as if:

(a) a reference in section 341JH to a place included in the

finalised priority assessment list for an assessment period

were a reference to the place to which the request relates; and

(b) a reference in section 341JH to the assessment completion

time specified in the list for the place were a reference to the

assessment completion time specified in the request.

(2) A reference in another provision of this Act to section 341JH, or to

a provision of that section, includes a reference to that section or

provision as it applies because of this section.

341JP Decision about place remaining in the Commonwealth

Heritage List

Minister to decide whether place should remain listed

(1) Within 12 months after the inclusion of a place in the

Commonwealth Heritage List under section 341JK, the Minister

must, by instrument published in the Gazette, subject to

subsections (2) and (3):

(a) do one of the following:

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(i) state that the place remains in the Commonwealth

Heritage List with its boundary unaltered;

(ii) alter the boundary of the place described in the

Commonwealth Heritage List (whether or not the

alteration results in an overall increase or decrease in

the extent of the place included in the List);

(iii) remove from the Commonwealth Heritage List the place

and its Commonwealth Heritage values; and

(b) if the place is not removed from the Commonwealth Heritage

List under subparagraph (a)(iii)—do all or any of the

following:

(i) state that specified Commonwealth Heritage values

included in the List under section 341JK for the place

remain in the List for the place;

(ii) include in the List for the place specified

Commonwealth Heritage values of the place that were

not included in the List under section 341JK for the

place;

(iii) remove from the List for the place specified

Commonwealth Heritage values that were included in

the List under section 341JK for the place.

(2) The Minister must not take action under subsection (1) unless the

Minister has received an assessment from the Australian Heritage

Council under section 341JG in relation to the place.

(3) The Minister must not take action under subsection (1) that results

in the place remaining in the Commonwealth Heritage List

(whether or not with the same or a different boundary) unless the

Minister is satisfied that the place has one or more Commonwealth

Heritage values.

Listing lapses automatically if action not taken within 12 months of

listing

(4) If the Minister does not take action under subsection (1) within the

period referred to in that subsection, the place, and its listed

Commonwealth Heritage values, are automatically removed from

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the Commonwealth Heritage List, by force of this subsection, at

the end of that period.

Note: This subsection applies even if the Minister is prevented from taking

action under subsection (1) because of subsection (2).

Matters to be considered

(5) For the purpose of deciding what action to take under

subsection (1) in relation to the place:

(a) the Minister must have regard to:

(i) the Australian Heritage Council’s assessment whether

the place meets any of the Commonwealth Heritage

criteria; and

(ii) the comments (if any), a copy of which were given to

the Minister under subsection 341JG(1) with the

assessment; and

(b) the Minister may seek, and have regard to, information or

advice from any source.

Disapplying section 341L

(6) Section 341L does not apply to:

(a) an alteration of the boundary of the place, under

subparagraph (1)(a)(ii) of this section, that has the effect of

removing part of the place from the Commonwealth Heritage

List; or

(b) the removal of the place and its Commonwealth Heritage

values under subparagraph (1)(a)(iii) of this section; or

(c) the removal of a Commonwealth Heritage value of the place

under subparagraph (1)(b)(iii) of this section.

Minister to publish copy or summary of subsection (1) notice

(7) The Minister must publish a copy or summary of the instrument

referred to in subsection (1). The regulations may specify how the

publication is to be made. Subject to any such regulations, the

publication must be made in a way that the Minister considers

appropriate.

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Additional requirements if place etc. is removed under

subsection (1)

(8) If, under subsection (1), the Minister removes from the

Commonwealth Heritage List the place or a Commonwealth

Heritage value of the place, or alters the boundary of the place

described in the List, the Minister must, within 10 business days

after the removal or alteration:

(a) in any case—publish a copy of the instrument referred to in

subsection (1) on the internet; and

(b) if the place is within the Australian jurisdiction—advise each

person identified by the Minister as an owner or occupier of

all or part of the place of the removal or alteration.

Note: For the obligation to identify owners or occupiers, see

subsection 341JK(3).

Requirements if place is removed under subsection (4)

(9) If, under subsection (4), the place, and its listed Commonwealth

Heritage values, are removed from the Commonwealth Heritage

List, the Minister must, within 10 business days after the removal:

(a) in any case—publish notice of the removal on the internet;

and

(b) if the place is within the Australian jurisdiction—advise each

person identified by the Minister as an owner or occupier of

all or part of the place of the removal.

Note: For the obligation to identify owners or occupiers, see

subsection 341JK(3).

Alternative methods of notifying owners and occupiers

(10) If the Minister is satisfied that there are likely to be at least 50

persons referred to in paragraph (8)(b) or (9)(b), the Council may

satisfy the requirements of that paragraph in relation to those

persons by including the advice referred to in that paragraph in one

or more of the following:

(a) advertisements in a newspaper, or newspapers, circulating in

the area in which the place is located;

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(b) letters addressed to “The owner or occupier” and left at all

the premises that are wholly or partly within the place;

(c) displays in public buildings at or near the place.

Subdivision BC—Other provisions relating to the

Commonwealth Heritage List

341JQ Co-ordination with Scientific Committee—Council

undertaking assessment

(1) This section applies if:

(a) the Australian Heritage Council undertakes an assessment of

a place under Subdivision BA or Subdivision BB; and

(b) before giving the assessment to the Minister, the Council

becomes aware that:

(i) the Scientific Committee is undertaking, or has

undertaken, an assessment under Division 1 of Part 13;

and

(ii) there is a matter that is relevant to both the assessment

referred to in paragraph (a) and the assessment referred

to in subparagraph (i).

(2) A member of the Australian Heritage Council may discuss the

matter with a member of the Scientific Committee.

(3) Before the Australian Heritage Council gives an assessment of the

place to the Minister under Subdivision BA or Subdivision BB, the

Council must comply with subsection (4) or (6).

(4) If the Scientific Committee has not yet given the Minister an

assessment that deals with that matter, the Australian Heritage

Council must:

(a) give the Scientific Committee a copy of the assessment of the

place that the Council proposes to give to the Minister; and

(b) invite the Scientific Committee to give the Council its

comments in relation to that matter; and

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(c) take into account, in finalising the assessment of the place

that the Council gives the Minister, any comments that the

Scientific Committee makes in relation to that matter in

response to that invitation within 14 days, or such longer

period as is specified in the invitation, after being given the

invitation.

(5) If the Australian Heritage Council gives the Scientific Committee a

copy of a proposed assessment of a place under paragraph (4)(a),

the Council must also give the Scientific Committee a copy of the

assessment of that place that the Council gives the Minister.

(6) If:

(a) the Scientific Committee has already given the Minister an

assessment that deals with that matter; and

(b) the Australian Heritage Council has been given a copy of that

assessment;

the Australian Heritage Council must take that assessment into

account in finalising the assessment of the place that the Council

gives the Minister.

(7) If, under section 194S or 194T, the Scientific Committee gives the

Australian Heritage Council a proposed assessment, or an

assessment, that deals with a particular matter because the Council

is undertaking an assessment that deals with that matter, a member

of the Council may discuss that matter with a member of the

Scientific Committee.

(8) Subsection (2), paragraph (4)(a) and subsections (5) and (7) have

effect despite section 341R.

341JR Co-ordination with Scientific Committee—Council given

assessment to Minister

(1) This section applies if:

(a) the Australian Heritage Council has given to the Minister an

assessment of a place under Subdivision BA or

Subdivision BB; and

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(b) the Council is aware that:

(i) the Scientific Committee is undertaking an assessment

under Division 1 of Part 13; and

(ii) there is a matter that is relevant to both the assessment

referred to in paragraph (a) and the assessment referred

to in subparagraph (i).

(2) The Australian Heritage Council must, within 7 days after

becoming aware as referred to in paragraph (1)(b):

(a) ensure the Scientific Committee is aware of the existence of

the paragraph (1)(a) assessment dealing with the matter; and

(b) give the Scientific Committee a copy of the assessment.

(3) A member of the Australian Heritage Council may discuss the

matter with a member of the Scientific Committee.

(4) Subsections (2) and (3) have effect despite section 341R.

341K Listing process not affected by changing boundaries of a place

(1) This section is about compliance with a provision of

Subdivision BA or BB that requires or permits an act to be done in

relation to the place identified by express or implied reference to

an earlier provision of that Subdivision.

(2) It is sufficient compliance with the provision if the act is done in

relation to a place whose boundary overlaps the boundary of the

place identified by reference to the earlier provision.

(3) This section does not affect the validity of the act so far as that

depends on something other than the act being done in relation to

the place.

341L Removal of places or Commonwealth Heritage values from the

Commonwealth Heritage List

(1) The Minister must remove all or part of a place from the

Commonwealth Heritage List as soon as practicable after the

Minister becomes aware that:

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(a) the place or part is no longer in a Commonwealth area; or

(b) the place or part is no longer owned or leased by the

Commonwealth or a Commonwealth agency, if the place or

part is outside the Australian jurisdiction.

(2) The Minister may remove all or part of a place from the

Commonwealth Heritage List only if the Minister is satisfied that:

(a) ignoring subsection 341D(2), the place no longer has any

Commonwealth Heritage values or the part no longer

contributes to any of the Commonwealth Heritage values of

the place; or

(b) it is necessary in the interests of Australia’s defence or

security to do so.

Note: A place or part of a place may also be removed from the

Commonwealth Heritage List under subsection 341JP(1).

(3) The Minister may remove one or more Commonwealth Heritage

values included in the Commonwealth Heritage List for a

Commonwealth Heritage place only if the Minister is satisfied that:

(a) ignoring subsection 341D(2), the place no longer has the

Commonwealth Heritage value or values; or

(b) it is necessary in the interests of Australia’s defence or

security to do so.

(4) The Minister may remove all or part of a place, or a

Commonwealth Heritage value of a place, only by an instrument

including a statement of the reasons for the removal.

Note 1: The Minister must first obtain and consider the advice of the

Australian Heritage Council (see section 341M).

Note 2: For requirements relating to the instrument under the Legislation Act

2003, see subsections (6) and (7) of this section.

(5) The instrument must deal with only one of the following kinds of

removal:

(a) removal (removal for loss of value) of a place, part or

Commonwealth Heritage value because of paragraph (2)(a)

or (3)(a);

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(b) removal of a place, part or Commonwealth Heritage value

because of subsection (1) or paragraph (2)(b) or (3)(b).

If the instrument purports to deal with both kinds, it has no effect

so far as it deals with a removal for loss of value.

(6) If the instrument deals only with removal for loss of value:

(a) it is a legislative instrument; and

(b) it takes effect on the first day it is no longer liable to be

disallowed, or to be taken to have been disallowed, under

section 42 of the Legislation Act 2003.

(7) If subsection (6) does not apply to the instrument, it is a notifiable

instrument.

Note: Notifiable instruments must be registered under the Legislation Act

2003, but they are not subject to parliamentary scrutiny or sunsetting

under that Act.

341M Minister must consider advice of the Australian Heritage

Council and public comments

(1) Before the Minister removes from the Commonwealth Heritage

List under section 341L all or part of a place or one or more of a

place’s Commonwealth Heritage values in a removal for loss of

value, the Minister must:

(a) give the Chair of the Australian Heritage Council a written

request for the Council to give the Minister advice on the

proposed removal; and

(b) publish, on the internet, in a daily newspaper circulating in

each State and self-governing Territory and in each other way

required by the regulations (if any), a notice:

(i) describing the proposed removal; and

(ii) inviting anyone to give the Minister comments, within

20 business days, on the proposed removal.

The Minister must publish the notice within 20 business days of

giving the request.

(2) The Australian Heritage Council must give the advice to the

Minister within the period specified by the Minister.

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(3) The Minister must consider the advice, if he or she receives it by

the end of that period, and the comments (if any) received in

accordance with the notice.

(4) In preparing the advice, the Australian Heritage Council must not

consider any matter that does not relate to the Commonwealth

Heritage values of the place concerned.

(5) The Minister must:

(a) decide whether to remove from the Commonwealth Heritage

List the place or part concerned, or the Commonwealth

Heritage value or values of the place concerned; and

(b) if the Minister decides to remove the place or part, or the

Commonwealth Heritage value or values of the place—

ensure that an instrument removing the place, part or

Commonwealth Heritage value or values is made under

subsection 341L(4);

within 60 business days after the earlier of the advice being

received by the Minister and the specified period for giving advice

to the Minister ending.

(6) However, the time limit in subsection (5) does not apply if the

place is wholly or partly outside the Australian jurisdiction.

341N Specifying one or more additional Commonwealth Heritage

values for a Commonwealth Heritage place

(1) The regulations may make provision for, or in relation to, the

specification in the Commonwealth Heritage List of additional

Commonwealth Heritage values in relation to Commonwealth

Heritage places.

(2) Without limiting the generality of subsection (1), regulations may

make provision as mentioned in that subsection by specifying

modifications of provisions of this Act. However, regulations must

not:

(a) increase, or have the effect of increasing, the maximum

penalty for any offence; or

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(b) widen, or have the effect of widening, the scope of any

offence.

341P Commonwealth Heritage List must be publicly available

The Minister must ensure that:

(a) up-to-date copies of the Commonwealth Heritage List are

available for free to the public on request; and

(b) an up-to-date copy of the Commonwealth Heritage List is

available on the internet.

Note: The copies of the Commonwealth Heritage List made publicly

available may not contain certain information kept confidential under

section 341Q.

341Q Certain information may be kept confidential

(1) This section applies if the Minister considers that the heritage

values of a place could be significantly damaged by the disclosure

of some or all of the following information, or by the presence or

actions of persons if some or all of the following information were

disclosed publicly:

(a) the place’s precise location;

(b) the place’s heritage values;

(c) any other information about the place.

(2) It is sufficient compliance with this Act if only a general

description of the place, its location or its Commonwealth Heritage

values is included in:

(a) the Commonwealth Heritage List as made publicly available;

or

(b) an instrument or other document created for the purposes of

this Act.

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341R Disclosure of Australian Heritage Council’s assessments and

advice

(1) A member of the Australian Heritage Council has a duty not to

disclose the following to a person other than the Minister, an

employee in the Department whose duties relate to the Council or

another member of the Council:

(a) an assessment under section 341JG whether a place meets

any of the Commonwealth Heritage criteria, any information

relating to the assessment or any information about the

nomination (if any) that led to the making of the assessment;

(b) advice under section 341M concerning a place or any

information relating to the advice.

(2) However:

(a) the duty not to disclose a thing described in paragraph (1)(a)

in relation to a place does not exist after:

(i) publication in the Gazette of an instrument under

paragraph 341JI(1)(a) or subsection 341JP(1) in relation

to the place; or

(ii) the Minister decides under paragraph 341JI(1)(b) not to

include the place in the Commonwealth Heritage List;

and

(b) the duty not to disclose a thing described in paragraph (1)(b)

in relation to a place does not exist after:

(i) registration under the Legislation Act 2003 of an

instrument under section 341L relating to the place; or

(ii) the Minister decides under section 341M not to remove

the place or a part of the place, or one or more of the

place’s Commonwealth Heritage values, from the

Commonwealth Heritage List.

(2A) This section does not prevent the Australian Heritage Council from

informing a person, or having discussions with a person, about the

consequences that result or may result from:

(a) a place being, or not being, included in the Commonwealth

Heritage List; or

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(b) Commonwealth Heritage values of a place being, or not

being, included in the List; or

(c) a place or part of a place, or one or more Commonwealth

Heritage values of a place, being removed from the List.

(2B) Subsection (1) does not apply to a disclosure of particular

information if:

(a) the Chair of the Australian Heritage Council requests the

Minister to give permission to disclose that information to a

particular person (or persons within a particular group of

persons); and

(b) the Minister gives that permission; and

(c) the disclosure is made to that person (or a person within that

group).

(3) After a member of the Australian Heritage Council has ceased

under subsection (2) to have a duty not to disclose:

(a) an assessment under section 341JG whether a place meets the

Commonwealth Heritage criteria; or

(b) advice under section 341M concerning a place;

the member must give a copy of the assessment or advice to

anyone who asks for it.

(4) If:

(a) a member of the Australian Heritage Council proposes to

give a person under subsection (3) a copy of an assessment or

advice relating to a place; and

(b) the member is aware that, under section 341Q, it would be

sufficient compliance with this Act if the copy included only

a general description of the place, its location or its

Commonwealth Heritage values;

the member must take reasonable steps to ensure that the copy

given to the person does not include a more detailed description

than is necessary for sufficient compliance with this Act under that

section.

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Subdivision C—Management plans for Commonwealth

Heritage places

341S Management plans for Commonwealth Heritage places

(1) A Commonwealth agency must make a written plan to protect and

manage the Commonwealth Heritage values of a Commonwealth

Heritage place it owns or controls. The agency must do so within

the period mentioned either:

(a) at the time the agency starts owning or controlling the place,

in the agency’s heritage strategy under section 341ZA; or

(b) after that time, in the agency’s first such strategy.

Note: However, a Commonwealth agency must not make plans for

managing certain places (see section 341U).

(2) The Commonwealth agency may, in writing, amend the plan or

revoke and replace the plan.

(3) A Commonwealth agency must give notice, in accordance with the

regulations, if the agency:

(a) makes a plan for a Commonwealth Heritage place; or

(b) amends such a plan; or

(c) revokes and replaces such a plan.

Note: Subdivision E imposes other obligations on Commonwealth agencies.

(4) A plan must:

(a) address the matters prescribed by the regulations; and

(b) not be inconsistent with the Commonwealth Heritage

management principles (see Subdivision D).

(5) If the Commonwealth Heritage management principles change so

that a plan (the earlier plan) is inconsistent with them, the agency

concerned must as soon as practicable make a written instrument:

(a) amending the earlier plan to make it consistent with the

principles; or

(b) revoking and replacing the earlier plan.

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(6) Before making, amending or revoking and replacing a plan, the

agency concerned must:

(a) ask the Minister for advice on the proposed plan or

amendment and must take account of any such advice

received from the Minister; and

(b) seek in accordance with the regulations, and consider,

comments from anyone about the matters to be addressed by

the proposed plan or amendment.

(7) The Minister must consult with the Australian Heritage Council in

preparing an advice for the purposes of this section.

(8) A plan, an amendment of a plan, or a revocation and replacement

of a plan, is a legislative instrument.

341T Endorsing management plans for Commonwealth Heritage

places

(1) A Commonwealth agency that makes a plan for managing a

Commonwealth Heritage place may ask the Minister to endorse the

plan. If the Commonwealth agency does so, it must give the

Minister a copy of the plan.

(1A) The Minister must decide within 60 business days of being given

the copy of the plan whether or not to endorse the plan.

(1B) Within 10 business days of making the decision, the Minister must

inform the Commonwealth agency in writing of the decision and

publish on the internet a notice of the decision.

(2) The Minister:

(a) may only endorse a plan that the Minister is satisfied

provides for the conservation of the Commonwealth Heritage

values of the place concerned; and

(b) must not endorse a plan that the Minister considers is

inconsistent with the Commonwealth Heritage management

principles (see Subdivision D).

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(3) The Minister may, at any time, revoke an endorsement of a plan if

the Minister considers it appropriate to do so.

341U Restriction on ability to make plans

Despite section 341S, a Commonwealth agency must not make a

plan for managing so much of a Commonwealth Heritage place as

is in a Commonwealth reserve and covered by another plan under

this Act.

341V Compliance with plans by the Commonwealth and

Commonwealth agencies

(1) The Commonwealth or a Commonwealth agency must not:

(a) contravene a plan made under section 341S; or

(b) authorise another person to do, or omit to do, anything that, if

it were done or omitted to be done by the Commonwealth or

the Commonwealth agency (as appropriate), would

contravene such a plan.

(2) If there is no plan in force under section 341S for a particular

Commonwealth Heritage place, the Commonwealth and each

Commonwealth agency must take all reasonable steps to ensure

that its acts (if any) relating to the place are not inconsistent with

the Commonwealth Heritage management principles.

341W Multiple plans in the same document

To avoid doubt, a plan for managing a Commonwealth Heritage

place may be in the same document as:

(a) one or more other plans for managing Commonwealth

Heritage places; or

(b) one or more other plans that this Act or another law of the

Commonwealth requires or permits to be prepared.

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341X Review of plans at least every 5 years

(1) At least once in every 5 year period after a plan for managing a

Commonwealth Heritage place is made under section 341S, the

Commonwealth agency concerned must cause a review of the plan

to be carried out.

(2) The review must:

(a) assess whether the plan is consistent with the Commonwealth

Heritage management principles in force at the time; and

(b) assess whether the plan is effective in protecting and

conserving the Commonwealth Heritage values of the place;

and

(c) make recommendations for the improved protection of the

Commonwealth Heritage values of the place.

(3) The person carrying out the review must publish, on the internet

and in a daily newspaper circulating in each State and

self-governing Territory, a notice inviting anyone to give the

person comments within 20 business days on:

(a) whether the plan is consistent with the Commonwealth

Heritage management principles; and

(b) the effectiveness of the plan in protecting and conserving the

Commonwealth Heritage values of the place.

(4) In carrying out the review, the person must consider the comments

(if any) received in accordance with the notice.

Subdivision D—The Commonwealth Heritage management

principles

341Y Commonwealth Heritage management principles

(1) The regulations must prescribe principles for managing

Commonwealth Heritage places. The principles prescribed are the

Commonwealth Heritage management principles.

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(2) The regulations may prescribe obligations to implement or give

effect to the Commonwealth Heritage management principles.

(3) A person must comply with the regulations to the extent that they

impose obligations on the person.

Subdivision E—Obligations of Commonwealth agencies

341Z Obligation to assist the Minister and the Australian Heritage

Council

A Commonwealth agency that owns or controls a place that has, or

might have, one or more Commonwealth Heritage values must take

all reasonable steps to assist the Minister and the Australian

Heritage Council in the identification, assessment and monitoring

of the place’s Commonwealth Heritage values.

341ZA Heritage strategies

(1) If a Commonwealth agency owns or controls one or more places,

the agency must:

(a) prepare a written heritage strategy for managing the places to

protect and conserve their Commonwealth Heritage values;

and

(b) give a copy of the strategy to the Minister;

as soon as practicable and in any event within 2 years after the later

of:

(c) the time the agency first owns or controls a place; and

(d) the commencement of this section.

Note: The heritage strategy will apply to every place the agency owns or

controls.

(1A) Before making a heritage strategy, the Commonwealth agency

must consult the Australian Heritage Council and take into account

any advice the agency receives from the Council.

(2) The Commonwealth agency may, in writing, amend the heritage

strategy or revoke and replace the heritage strategy. The

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Commonwealth agency must give the Minister a copy of the

amended or replacement strategy within 20 business days of the

amendment or replacement.

(3) A heritage strategy must:

(a) mention the period within which the Commonwealth agency

must make a plan under section 341S; and

(b) mention the period within which the Commonwealth agency

must do the things mentioned in subsection 341ZB(1); and

(c) address the matters prescribed by the regulations (if any); and

(d) not be inconsistent with the Commonwealth Heritage

management principles.

(4) The Minister must advise the Commonwealth agency whether or

not the agency’s heritage strategy (whether original, amended or

replacement) is inconsistent with the Commonwealth Heritage

management principles.

(5) At least once in every 3 year period after a heritage strategy is

made, the Commonwealth agency concerned must cause a review

of the strategy to be carried out.

(6) The agency must give the Minister a written report of the review.

The report must address the matters prescribed by the regulations

(if any).

341ZB Heritage assessments and registers

(1) A Commonwealth agency must do all of the following within the

period mentioned in its heritage strategy:

(a) conduct a program to identify Commonwealth Heritage

values for each place it owns or controls;

(b) produce a register that sets out, for each place it owns or

controls, the Commonwealth Heritage values (if any) of that

place;

(c) give the Minister a written report that includes:

(i) details of the program; and

(ii) a copy of the register.

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(2) The regulations may prescribe all or any of the following:

(a) how Commonwealth heritage values may be identified for a

place;

(b) matters a register must address;

(c) matters a report to the Minister must address.

(3) A Commonwealth agency must keep its register up to date.

(4) A register may be kept electronically.

(5) If a report under paragraph (1)(c) indicates that a place owned or

controlled by a Commonwealth agency may have one or more

Commonwealth Heritage values, information from the report may

be used or referred to in a nomination of the place for inclusion in

the Commonwealth Heritage List.

341ZC Minimising adverse impact on heritage values

A Commonwealth agency must not take an action that has, will

have or is likely to have an adverse impact on the National

Heritage values of a National Heritage place or the Commonwealth

Heritage values of a Commonwealth Heritage place, unless:

(a) there is no feasible and prudent alternative to taking the

action; and

(b) all measures that can reasonably be taken to mitigate the

impact of the action on those values are taken.

341ZE Protecting Commonwealth Heritage values of places sold or

leased

(1) This section applies if a Commonwealth agency executes a

contract for the sale or lease to someone else of a Commonwealth

area in the Australian jurisdiction that is or includes all or part of a

Commonwealth Heritage place. It does not matter whether the

agency executes the contract for the Commonwealth or on its own

behalf.

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(1A) The Commonwealth agency must give the Minister at least 40

business days’ notice before executing the contract.

(2) The Commonwealth agency must ensure that the contract includes

a covenant the effect of which is to protect the Commonwealth

Heritage values of the place, unless the agency is satisfied that:

(a) having regard to other means of protecting those values,

including such a covenant in the contract is unnecessary to

protect them or is unreasonable; or

(b) including such a covenant in the contract is impracticable.

(3) The Commonwealth agency must inform the Minister before

executing the contract if:

(a) such a covenant:

(i) would not, or could not be made to, bind the successors

in title of the buyer or lessee; or

(ii) could be insufficient to ensure the ongoing protection of

the Commonwealth Heritage values of the place; or

(b) the agency is satisfied as described in subsection (2).

The information must include written reasons why paragraph (a)

applies or why the agency is satisfied as described in

subsection (2).

(4) If the Minister is informed of a matter in paragraph (3)(a) or that

the Commonwealth agency is satisfied that it is unreasonable or

impracticable to include such a covenant in the contract, the

Minister must:

(a) take all reasonable measures to enter into a conservation

agreement with the prospective buyer or lessee for the

protection and conservation of the Commonwealth Heritage

values of the place; or

(b) advise the agency about measures to ensure the ongoing

protection of the Commonwealth Heritage values of the

place.

(5) If the Minister is informed that the Commonwealth agency is

satisfied that it is unnecessary to include such a covenant in the

contract, the Minister may advise the agency about measures to

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ensure the ongoing protection of the Commonwealth Heritage

values of the place.

(6) If the Minister advises the Commonwealth agency under this

section about measures to ensure the ongoing protection of the

Commonwealth Heritage values of the place, the agency must take

all reasonable steps to ensure that the measures are taken.

Subdivision G—Assistance for protecting Commonwealth

Heritage places

341ZG Commonwealth assistance for protecting Commonwealth

Heritage places

(1) The Commonwealth may give financial or other assistance for the

identification, promotion, protection or conservation of a

Commonwealth Heritage place to any person.

(2) The Commonwealth may give the assistance subject to conditions.

Subdivision H—Reviewing and reporting on the

Commonwealth Heritage List

341ZH Reviewing and reporting on the Commonwealth Heritage

List

(1) At least once in every 5 year period after the Commonwealth

Heritage List is established, the Minister must ensure that:

(a) a review of the Commonwealth Heritage List is carried out;

and

(b) a report of that review is tabled in each House of the

Parliament.

(2) The report must include details of:

(a) the number of places included in the Commonwealth

Heritage List; and

(b) any significant damage or threat to the Commonwealth

Heritage values of those places; and

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(c) how many plans under Subdivision C for managing

Commonwealth Heritage places have been made, or are

being prepared, and how effectively the plans that have been

made are operating; and

(d) the operation of any conservation agreements under Part 14

that affect Commonwealth Heritage places; and

(e) all nominations, assessments and changes to the

Commonwealth Heritage List under this Division during the

period of review; and

(f) compliance with this Act in relation to Commonwealth

Heritage places; and

(g) any other matters that the Minister considers relevant.

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Division 4—Commonwealth reserves

Subdivision A—Simplified outline of this Division

342 Simplified outline of this Division

The following is a simplified outline of this Division:

Commonwealth reserves can be declared over areas of land or sea:

(a) that the Commonwealth owns or leases; or

(b) that are in a Commonwealth marine area; or

(c) outside Australia that the Commonwealth has

international obligations to protect.

A Proclamation must assign the reserve to a particular category,

that affects how the reserve is managed and used.

Some activities can be undertaken in a reserve only if a

management plan provides for them. Commonwealth agencies

must comply with a management plan. Regulations can be made to

control a wide range of activities in reserves.

The Minister may approve a management plan prepared by the

Director and any Board for a reserve.

In agreement with indigenous people, the Minister can set up a

Board for a reserve including land leased from indigenous people.

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Subdivision B—Declaring and revoking Commonwealth

reserves

343 Simplified outline of this Subdivision

The following is a simplified outline of this Subdivision:

The Governor-General can proclaim Commonwealth reserves over

areas of land or sea:

(a) that the Commonwealth owns; or

(b) that the Commonwealth or the Director leases; or

(c) that are in a Commonwealth marine area; or

(d) outside Australia that the Commonwealth has

international obligations to protect.

A Proclamation must assign the reserve to a particular category

that affects how the reserve is managed and used.

Proclamations can be made to alter and revoke reserves.

The Director must consult publicly before some Proclamations are

made.

344 Declaring Commonwealth reserves

Declaring a Commonwealth reserve

(1) The Governor-General may, by Proclamation, declare as a

Commonwealth reserve:

(a) an area of land:

(i) that is owned by the Commonwealth in a Territory; or

(ii) that is owned by the Commonwealth outside a Territory;

or

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(iii) that is held under lease by the Commonwealth or the

Director in a Territory; or

(iv) that is held under lease by the Commonwealth or the

Director outside a Territory; or

(v) outside Australia and in respect of which Australia has

obligations relating to biodiversity or heritage under an

agreement with one or more other countries that may

appropriately be met by declaring the area a

Commonwealth reserve; or

(b) an area of sea:

(i) in a Commonwealth marine area; or

(ii) outside Australia and in respect of which Australia has

obligations relating to biodiversity or heritage under an

agreement with one or more other countries that may

appropriately be met by declaring the area a

Commonwealth reserve; or

(c) an area of land described in paragraph (a) and sea described

in paragraph (b).

Note 1: Section 351 sets out some prerequisites for making Proclamations.

Note 2: A reference to Australia generally includes its coastal sea. See

section 15B of the Acts Interpretation Act 1901.

Limits on acquiring land for reservation

(2) If land:

(a) is in:

(i) a State or self-governing Territory (except the Northern

Territory); or

(ii) the Northern Territory outside both Uluru-Kata Tjuta

National Park and the Alligator Rivers Region (as

defined by the Environment Protection (Alligator Rivers

Region) Act 1978); and

(b) is dedicated or reserved under a law of the State or Territory

for purposes related to nature conservation or the protection

of areas of historical, archaeological or geological

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importance or of areas having special significance in relation

to indigenous persons;

the Commonwealth must not acquire the land for the purposes of

declaring it a Commonwealth reserve, without the consent of the

State or Territory.

Uluru-Kata Tjuta National Park

(3) Uluru-Kata Tjuta National Park is the Commonwealth reserve (as

it exists from time to time) to which the name Uluru-Kata Tjuta

National Park was given by Proclamation continued in force by the

Environmental Reform (Consequential Provisions) Act 1999.

345 Extent of Commonwealth reserve

(1) A Commonwealth reserve includes:

(a) land or seabed to the depth stated in the Proclamation

declaring the Commonwealth reserve; and

(b) the waters and seabed under any sea in the area declared as a

Commonwealth reserve.

(2) In this Act:

land includes subsoil of land and any body of water (whether

flowing or not) except the sea.

seabed includes:

(a) the surface of a coral formation; and

(b) subsoil of seabed (including coral beneath the surface of a

coral formation).

345A Commonwealth usage rights vest in Director

(1) When a Commonwealth reserve is declared, a usage right that

relates to land or seabed in the reserve and is held by the

Commonwealth vests in the Director, by force of this subsection.

(2A) However, subsection (2) does not apply to:

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(a) a usage right acquired by the Commonwealth in relation to

the Jabiru town land (within the meaning of the Aboriginal

Land Rights (Northern Territory) Act 1976); or

(b) a usage right acquired by the Commonwealth that is

prescribed by the regulations for the purposes of this

paragraph.

(2) If the Commonwealth acquires a usage right relating to land or

seabed in a Commonwealth reserve, the usage right vests in the

Director.

(3) This section does not vest in the Director a usage right in respect of

minerals, despite subsections (1) and (2).

346 Content of Proclamation declaring Commonwealth reserve

Content of Proclamation

(1) The Proclamation declaring an area to be a Commonwealth reserve

must:

(a) give a name to the reserve; and

(b) state the purposes for which the reserve is declared; and

(c) state the depth of any land included in the reserve; and

(d) state the depth of the seabed that is under any sea included in

the reserve; and

(e) assign the reserve to a category (an IUCN category)

prescribed in regulations made for the purposes of this

subsection.

Assigning different zones of a reserve to different IUCN categories

(2) A Proclamation may also divide a reserve into zones and assign

each zone to an IUCN category.

Assigning leasehold land to IUCN categories

(3) Before the Governor-General makes a Proclamation assigning a

Commonwealth reserve or zone including land or seabed held by

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the Commonwealth or the Director under lease to a particular

IUCN category, the Minister must be satisfied that the category to

which it is proposed to assign the reserve or zone is consistent with

the terms of the lease.

347 Assigning Commonwealth reserves and zones to IUCN

categories

Before the Governor-General makes a Proclamation assigning a

Commonwealth reserve, or a zone within a Commonwealth

reserve, to a particular IUCN category, the Minister must be

satisfied:

(a) that the reserve or zone:

(i) has the characteristics (if any) prescribed by the

regulations for the category; and

(ii) meets the criteria (if any) prescribed by the regulations

for the category; and

(b) that the reserve or zone should be managed in accordance

with the Australian IUCN reserve management principles for

the category.

348 Australian IUCN reserve management principles

(1) The regulations must prescribe principles for each IUCN category.

The principles prescribed for an IUCN category are the Australian

IUCN reserve management principles for the category.

(2) The principles prescribed for an IUCN category must identify the

purpose or purposes for which a Commonwealth reserve, or zone

of a Commonwealth reserve, assigned to the category is primarily

to be managed.

350 Revocation and alteration of Commonwealth reserves

(1) The Governor-General may revoke or amend a Proclamation under

this Subdivision by another Proclamation.

Note: Section 351 sets out some prerequisites for making Proclamations.

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(2) Before the Governor-General makes a Proclamation that results in

land, sea or seabed ceasing to be included in a Commonwealth

reserve, the Minister must be satisfied:

(a) that the Proclamation, if made, would be in accordance with

a resolution passed by each House of Parliament on a motion;

and

(b) that notice of the motion was given at least 15 sitting days of

that House before the motion was moved.

(3) Subsection (2) does not apply to a Proclamation that results in land,

sea or seabed ceasing to be included in one Commonwealth reserve

or zone and being included in another Commonwealth reserve or

zone.

(4) If the Director ceases to hold land or seabed in a Commonwealth

reserve under lease:

(a) the land or seabed ceases to be part of the reserve by force of

this paragraph; and

(b) the Governor-General must make a Proclamation revoking or

amending the Proclamation that included the land or seabed

in a Commonwealth reserve, to reflect the fact that the land

or seabed is no longer part of the reserve.

(5) Subsection (4) does not apply if the Director ceases to hold the

land or seabed under a lease because:

(a) the Commonwealth becomes the owner of the land or seabed;

or

(b) the Director surrenders the lease in consideration of the grant

to the Director of another lease of that land or seabed.

(6) Except as described in subsection (4), land, sea or seabed in a

Commonwealth reserve does not cease to be within the reserve

merely because a usage right relating to the land, sea or seabed is

transferred, assigned, surrendered, extinguished or changed in any

way.

(7) A usage right is an estate or a legal or equitable charge, power,

privilege, authority, licence or permit.

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Note: Section 2B of the Acts Interpretation Act 1901 defines estate.

351 Report before making Proclamation

Minister must consider report before Proclamation made

(1) Before the Governor-General makes a Proclamation under this

Subdivision, the Minister must consider a report prepared by the

Director on the matter to be dealt with by the Proclamation.

Procedure for preparing report

(2) In preparing a report, the Director must:

(a) publish in the Gazette and in accordance with the regulations

(if any) a notice:

(i) stating the matter to be dealt with by the Proclamation;

and

(ii) inviting the public to comment on the matter to be dealt

with by the Proclamation; and

(iii) specifying the address to which comments may be sent;

and

(iv) specifying the day by which any comments must be

sent; and

(b) consider any comments made in response to the invitation;

and

(c) include in the report the comments and the Director’s views

on the comments.

Content of notice inviting comments

(3) A notice stating the matter to be dealt with by a Proclamation to

declare a Commonwealth reserve must include a statement of:

(a) the proposed name of the reserve; and

(b) the proposed boundaries of the reserve and of any zones into

which the reserve is to be divided; and

(c) the purpose for which the reserve is to be declared; and

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(d) which IUCN category the reserve (and, if applicable, each

zone of the reserve) is to be assigned to; and

(e) the purposes for which it is intended to manage and use the

reserve.

Content of notice relating to revocation of Commonwealth reserve

(4) A notice stating the matter to be dealt with by a Proclamation to

cause any land, sea or seabed to cease to be part of a

Commonwealth reserve must state the boundaries of that land, sea

or seabed.

Time for comment

(5) The day specified in the notice as the day by which any comments

must be sent must be at least 60 days after the last day on which

the notice is published in the Gazette or in accordance with any

regulations.

When this section does not apply

(6) Subsection (1) does not apply in relation to a Proclamation that:

(a) declares an area in the Kakadu region to be a Commonwealth

reserve; or

(b) has the effect of changing the name of a Commonwealth

reserve in the Kakadu region; or

(c) results in land, sea or seabed ceasing to be included in one

Commonwealth reserve and being included in another

Commonwealth reserve without changing the IUCN category

to which the land, sea or seabed is assigned.

352 What happens to Director’s usage rights when Commonwealth

reserve is revoked

(1) This section applies in relation to land or seabed that ceases to be

included in a Commonwealth reserve because of a Proclamation

made under section 350, except a Proclamation that causes the land

or seabed:

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(a) to cease to be included in one Commonwealth reserve; and

(b) to be included in another Commonwealth reserve.

(2) A usage right relating to the land or seabed that the Director held

vests in the Commonwealth, by force of this subsection.

(3) However, if the usage right is a lease of indigenous people’s land,

the usage right ceases to exist, by force of this subsection.

(4) If the land is in a State or Territory:

(a) the Director may give the officer of the State or Territory

responsible for registering land titles a copy of the

Proclamation, certified by the Director; and

(b) the officer may make an entry in his or her registers and do

anything else needed to reflect the effect of this section.

Subdivision C—Activities in Commonwealth reserves

353 Simplified outline of this Subdivision

The following is a simplified outline of this Subdivision:

Many works cannot be carried out in a Commonwealth reserve

unless permitted by a management plan.

If there is not a management plan in force for a reserve, it must be

managed in a way appropriate for the category it has been assigned

to by a Proclamation or an earlier management plan.

Regulations can be made to control activities in reserves.

People who have rights relating to an area that is later included in a

reserve can continue to exercise those rights in the reserve.

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354 Activities that may be carried on only under management plan

(1) A person must not do one of the following acts in a

Commonwealth reserve except in accordance with a management

plan in operation for the reserve:

(a) kill, injure, take, trade, keep or move a member of a native

species; or

(b) damage heritage; or

(c) carry on an excavation; or

(d) erect a building or other structure; or

(e) carry out works; or

(f) take an action for commercial purposes.

Civil penalty:

(a) for an individual—500 penalty units;

(b) for a body corporate—5,000 penalty units.

(1A) Subsection (1) does not apply to an action taken in the course of

carrying on mining operations.

Note: Mining operations are covered by sections 355, 355A and 387.

(2) However, if a management plan is not in operation for a

Commonwealth reserve, the Director may do an act described in

subsection (1) for:

(a) preserving or protecting the reserve; or

(b) protecting or conserving biodiversity or heritage in the

reserve; or

(c) controlling authorised scientific research; or

(d) protecting persons or property in the reserve; or

(e) managing the effects of actions taken under a usage right

described in section 359.

(3) Subsection (2) does not apply in relation to so much of a

Commonwealth reserve as is in the Kakadu region, the Uluru

region or the Jervis Bay Territory.

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Note: Section 385 sets out what the Director may do in a Commonwealth

reserve in the Kakadu region, Uluru region or Jervis Bay Territory

when there is not a management plan in operation for the reserve.

(3A) Subsection (1) does not apply to an action that is covered by an

approval in force under subsection 359B(1). For this purpose, an

action is covered by such an approval if:

(a) a management plan is not in operation for the

Commonwealth reserve; and

(b) the action is, or is in the class of actions, specified in the

approval; and

(c) the action is taken in accordance with the approval by the

person, or a person in the class of persons, specified in the

approval in the area specified in the approval.

(4) This section has effect despite any other law of the

Commonwealth, a State or a Territory, but:

(a) subsections (1) and (2) are subject to:

(i) section 359 (about interests and rights existing before a

Commonwealth reserve); and

(ii) section 359A (about traditional use of an area in a

reserve); and

(iii) the Antarctic Treaty (Environment Protection) Act

1980; and

(b) subsection (1) is also subject to section 385 (about activities

in Commonwealth reserves in the Kakadu region, Uluru

region or Jervis Bay Territory without management plans).

354A Offences relating to activities that may only be carried on

under management plan

Causing death etc to native species or damage to heritage

(1) A person commits an offence if:

(a) the person takes an action; and

(b) the action is taken in a Commonwealth reserve; and

(c) the action:

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(i) results in the death, injury, taking, trade, keeping or

moving of a member of a native species in the reserve;

or

(ii) results in damage to heritage in the reserve.

Penalty: Imprisonment for 2 years or 1,000 penalty units, or both.

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

criminal responsibility.

Note 2: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body

corporate up to 5 times the maximum amount the court could fine a

person under this subsection.

(2) Strict liability applies:

(a) to paragraph (1)(b); and

(b) to the physical element of circumstance in paragraph (1)(c),

that the member of the native species or the heritage is in the

reserve.

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

Erection of buildings etc.

(3) A person commits an offence if:

(a) the person takes any of the following actions:

(i) erecting a building or structure;

(ii) carrying on an excavation;

(iii) carrying out works; and

(b) the action is taken in a Commonwealth reserve.

Penalty: Imprisonment for 2 years or 1,000 penalty units, or both.

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

criminal responsibility.

Note 2: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body

corporate up to 5 times the maximum amount the court could fine a

person under this subsection.

(4) Strict liability applies to paragraph (3)(b).

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

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Actions taken for commercial purposes

(5) A person commits an offence if:

(a) the person takes an action; and

(b) the person takes the action for a commercial purpose; and

(c) the action is taken in a Commonwealth reserve.

Penalty: Imprisonment for 2 years or 1,000 penalty units, or both.

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

criminal responsibility.

Note 2: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body

corporate up to 5 times the maximum amount the court could fine a

person under this subsection.

(6) Paragraph (5)(b) states the fault element for paragraph (5)(a).

(7) Strict liability applies to paragraph (5)(c).

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

Exception for actions in accordance with a management plan

(8) Subsections (1), (3) and (5) do not apply to an action if the action

is in accordance with a management plan in operation for the

Commonwealth reserve in which the action is taken.

Note 1: The defendant bears an evidential burden in relation to the matters in

this subsection. See subsection 13.3(3) of the Criminal Code.

Note 2: This exception might not apply in relation to actions taken in the

Antarctic (see subsection (16)).

Exception for mining operations

(9) Subsections (1), (3) and (5) do not apply to an action if the action

is taken in the course of carrying on mining operations.

Note 1: Mining operations are covered by sections 355, 355A and 387.

Note 2: The defendant bears an evidential burden in relation to the matters in

this subsection. See subsection 13.3(3) of the Criminal Code.

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Exception for certain actions taken by the Director—actions in

places other than Kakadu, Uluru or Jervis Bay

(10) Subsections (1), (3) and (5) do not apply to an action taken by the

Director if:

(a) a management plan is not in operation for the

Commonwealth reserve in which the action is taken; and

(b) the action is not taken in the Kakadu region, the Uluru region

or the Jervis Bay Territory; and

(c) the Director takes the action for the purpose of:

(i) preserving or protecting the reserve; or

(ii) protecting or conserving biodiversity or heritage in the

reserve; or

(iii) controlling authorised scientific research; or

(iv) protecting persons or property in the reserve; or

(v) managing the effects of actions taken under a usage

right described in section 359.

Note 1: The defendant bears an evidential burden in relation to the matters in

this subsection. See subsection 13.3(3) of the Criminal Code.

Note 2: This exception might not apply in relation to actions taken in the

Antarctic (see subsection (16)).

Exception for certain actions taken by the Director—conduct in

Kakadu, Uluru or Jervis Bay

(11) Subsections (1), (3) and (5) do not apply to an action taken by the

Director in accordance with section 385.

Note: The defendant bears an evidential burden in relation to the matters in

this subsection. See subsection 13.3(3) of the Criminal Code.

Exception for prior usage rights

(12) Subsections (1), (3) and (5) do not apply to an action that is

covered by a usage right, or a right arising out of a usage right, to

which section 359 applies.

Note 1: The defendant bears an evidential burden in relation to the matters in

this subsection. See subsection 13.3(3) of the Criminal Code.

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Note 2: This exception might not apply in relation to actions taken in the

Antarctic (see subsection (16)).

Exception for prior traditional use

(13) Subsections (1), (3) and (5) do not apply to an action that is

covered by section 359A.

Note: The defendant bears an evidential burden in relation to the matters in

this subsection. See subsection 13.3(3) of the Criminal Code.

Exception for actions approved under section 359B

(14) Subsections (1), (3) and (5) do not apply to an action that is

covered by an approval in force under subsection 359B(1). For this

purpose, an action is covered by such an approval if:

(a) a management plan is not in operation for the

Commonwealth reserve; and

(b) the action is, or is in the class of actions, specified in the

approval; and

(c) the action is taken in accordance with the approval by the

person, or a person in the class of persons, specified in the

approval in the area specified in the approval.

Note: The defendant bears an evidential burden in relation to the matters in

this subsection. See subsection 13.3(3) of the Criminal Code.

Actions in the Antarctic

(15) Subsections (1), (3) and (5) do not apply to an action taken in the

Antarctic if:

(a) taking the action is an element of an offence under the

Antarctic Treaty (Environment Protection) Act 1980; and

(b) the person has a defence under that Act in relation to the

offence.

Note: The defendant bears an evidential burden in relation to the matters in

this subsection. See subsection 13.3(3) of the Criminal Code.

(16) The exceptions in subsections (8), (10) and (12) of this section do

not apply in relation to an action taken in the Antarctic if taking the

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action is an element of an offence under the Antarctic Treaty

(Environment Protection) Act 1980.

Note: Although the exception in subsection (9) can still apply, mining

operations in the Antarctic are prohibited in any case under the

Antarctic Treaty (Environment Protection) Act 1980. The exceptions

in subsections (11) and (13) cannot apply to actions taken in the

Antarctic.

Sentencing restriction for offences in the exclusive economic zone

(17) A court must not impose a sentence of imprisonment on a person

for an offence under subsection (1) or (5) if:

(a) fishing (as defined in the Fisheries Management Act 1991)

constituted a physical element of the offence; and

(b) the fishing was done:

(i) in the exclusive economic zone; and

(ii) otherwise than from an Australian vessel (or a vessel

declared to be an Australian boat under subsection 4(2)

of the Fisheries Management Act 1991); and

(c) at the time of the fishing, the person was not an Australian

citizen or a person who held a permanent visa under the

Migration Act 1958 and was domiciled in Australia or an

external territory.

Section has effect despite other laws

(18) Except as provided in this section, this section has effect despite

any other law of the Commonwealth or of a State or Territory.

355 Limits on mining operations in Commonwealth reserves

(1) A person must not carry on mining operations in a Commonwealth

reserve except in accordance with a management plan in operation

for the reserve.

Civil penalty:

(a) for an individual—500 penalty units;

(b) for a body corporate—5,000 penalty units.

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(1A) Subsection (1) does not apply in relation to the Kakadu National

Park or the Antarctic.

Note: Section 387 generally prohibits mining operations in the Kakadu

National Park. Sections 19A and 19B of the Antarctic Treaty

(Environment Protection) Act 1980 prohibit mining activities in the

Antarctic.

(2) The following are mining operations:

(a) operations or activities connected with, or incidental to, the

mining or recovery of minerals or the production of material

from minerals, including:

(i) prospecting and exploration for minerals; and

(ii) milling, refining, treatment and processing of minerals;

and

(iii) storage and disposal of minerals and materials produced

from minerals;

(b) the construction and use of towns, camps, dams, pipelines

power lines or other structures for the purposes of operations

or activities described in paragraph (a);

(c) the performance of any other work for the purposes of

operations or activities described in paragraph (a).

(3) A mineral is a naturally occurring substance or mixture of

substances.

(3A) Subsection (1) does not apply to mining operations that are covered

by an approval in force under subsection 359B(2). For this

purpose, mining operations are covered by such an approval if:

(a) a management plan is not in operation for the

Commonwealth reserve; and

(b) the mining operations are, or are in the class of mining

operations, specified in the approval; and

(c) the mining operations are carried on in accordance with the

approval by the person, or a person in the class of persons,

specified in the approval in the area specified in the approval.

(4) Subsection (1) does not prevent the doing of anything for the

purposes of building or construction, or the supply of water, in a

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Commonwealth reserve unless the purposes are connected with, or

incidental to, mining operations.

(5) This section is subject to:

(a) section 359 (about interests and rights existing before a

Commonwealth reserve); and

(b) section 359A (about traditional use of an area in a reserve);

but has effect despite any other law of the Commonwealth, a State

or a Territory.

355A Offence relating to mining operations

Offence of carrying on mining operations

(1) A person commits an offence if:

(a) the person carries on mining operations; and

(b) the mining operations are carried on in a Commonwealth

reserve.

Penalty: Imprisonment for 2 years or 1,000 penalty units, or both.

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

criminal responsibility.

Note 2: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body

corporate up to 5 times the maximum amount the court could fine a

person under this subsection.

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

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

(3) To avoid doubt, subsection (1) does not prevent the doing of

anything for the purposes of building or construction, or the supply

of water, in a Commonwealth reserve unless the purposes are

connected with, or incidental to, mining operations.

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Exception for mining operations carried on in accordance with a

management plan

(4) Subsection (1) does not apply to the carrying on of mining

operations in accordance with a management plan in operation for

the Commonwealth reserve in which the operations are carried on.

Note: The defendant bears an evidential burden in relation to the matters in

this subsection. See subsection 13.3(3) of the Criminal Code.

Exception in relation to Kakadu National Park and the Antarctic

(5) Subsection (1) does not apply to the carrying on of mining

operations in the Kakadu National Park or in the Antarctic.

Note 1: Section 387 generally prohibits mining operations in the Kakadu

National Park. Sections 19A and 19B of the Antarctic Treaty

(Environment Protection) Act 1980 prohibit mining activities in the

Antarctic.

Note 2: The defendant bears an evidential burden in relation to the matters in

this subsection. See subsection 13.3(3) of the Criminal Code.

Exception for prior usage rights

(6) Subsection (1) does not apply to mining operations that are covered

by a usage right, or a right arising out of a usage right, to which

section 359 applies.

Note: The defendant bears an evidential burden in relation to the matters in

this subsection. See subsection 13.3(3) of the Criminal Code.

Exception for prior traditional use

(7) Subsection (1) does not apply to an action that is covered by

section 359A.

Note: The defendant bears an evidential burden in relation to the matters in

this subsection. See subsection 13.3(3) of the Criminal Code.

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Section 356

Exception for mining operations approved under section 359B

(8) Subsection (1) does not apply to mining operations that are covered

by an approval in force under subsection 359B(2). For this

purpose, mining operations are covered by such an approval if:

(a) a management plan is not in operation for the

Commonwealth reserve; and

(b) the mining operations are, or are in the class of mining

operations, specified in the approval; and

(c) the mining operations are carried on in accordance with the

approval by the person, or a person in the class of persons,

specified in the approval in the area specified in the approval.

Note: The defendant bears an evidential burden in relation to the matters in

this subsection. See subsection 13.3(3) of the Criminal Code.

Section has effect despite other laws

(9) Except as provided in this section, this section has effect despite

any other law of the Commonwealth or of a State or Territory.

356 Regulations controlling activities relating to Commonwealth

reserves

(1) The regulations may:

(a) regulate or prohibit the pollution of soil, air or water in a

manner that is, or is likely to be, harmful to:

(i) people, biodiversity or heritage in Commonwealth

reserves; or

(ii) the natural features of Commonwealth reserves; and

(b) regulate or prohibit tourism in Commonwealth reserves; and

(c) provide for the protection and preservation of

Commonwealth reserves and property and things in

Commonwealth reserves; and

(d) provide for the protection and conservation of biodiversity in

Commonwealth reserves; and

(e) regulate or prohibit access to all or part of a Commonwealth

reserve by persons or classes of persons; and

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(f) provide for the removal of trespassers from Commonwealth

reserves; and

(g) regulate or prohibit camping in Commonwealth reserves; and

(h) provide for the safety of persons in Commonwealth reserves;

and

(i) regulate or prohibit the use of fire in Commonwealth

reserves; and

(j) regulate the conduct, or prohibit certain kinds of conduct, of

persons in Commonwealth reserves; and

(k) regulate or prohibit the carrying on of any trade or commerce

in a Commonwealth reserve; and

(l) regulate or prohibit the use of vehicles in Commonwealth

reserves and provide for signs and road markings for those

purposes; and

(m) provide for:

(i) the removal of vehicles, aircraft or vessels from places

in Commonwealth reserves where they have been left in

contravention of the regulations or have been

abandoned; and

(ii) the impounding of such vehicles, aircraft or vessels; and

(n) provide that the person taken for the purposes of the

regulations to be the owner of a motor vehicle involved in a

contravention of a provision of the regulations relating to the

parking or stopping of vehicles in a Commonwealth reserve

is, except as provided otherwise, taken to commit an offence

against the provision; and

(o) provide for a person to be taken to be the owner of a motor

vehicle for the purposes of regulations made under

paragraph (n) (including a person in whose name the motor

vehicle is registered under the law of a State or Territory);

and

(p) regulate or prohibit the use of vessels in, and the passage of

vessels through, Commonwealth reserves; and

(q) regulate or prohibit the landing and use of aircraft in, and the

flying of aircraft over, Commonwealth reserves; and

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(r) provide for the giving of effect to management plans for

Commonwealth reserves; and

(s) regulate or prohibit the taking of animals or plants into or out

of Commonwealth reserves; and

(t) provide for the impounding, removal, destruction or disposal

of animals found straying in Commonwealth reserves; and

(u) regulate or prohibit the taking into Commonwealth reserves,

and the use in Commonwealth reserves, of weapons, traps,

nets, snares, fishing apparatus and other devices; and

(v) regulate or prohibit the laying of baits and the use of

explosives and poisons in Commonwealth reserves; and

(w) provide for the collection of specimens and the pursuit of

research in Commonwealth reserves for scientific purposes;

and

(x) provide for the issue of licences, permits and authorities

relating to activities in Commonwealth reserves, the

conditions subject to which they are issued and the charging

of fees by the Commonwealth in respect of such licences,

permits and authorities; and

(y) provide for any matter incidental to or connected with a

matter described in another paragraph.

(2) A provision of the regulations regulating or prohibiting the flying

of aircraft over a Commonwealth reserve does not have any effect

so far as it is inconsistent with a law of the Commonwealth. For

this purpose, a provision is not inconsistent with such a law if it

can be complied with without contravention of the law.

(3) A law of a Territory has effect so far as it is not inconsistent with a

provision of the regulations having effect in that Territory. For this

purpose, such a law is not inconsistent with the provision so far as

it can operate concurrently with the provision.

356A Charges for activities in Commonwealth reserves

Subject to the approval of the Minister, the Director may determine

and impose charges for:

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(a) entering or using a Commonwealth reserve or part of a

Commonwealth reserve; and

(b) using services or facilities provided by the Director in or in

connection with a Commonwealth reserve; and

(c) the parking or stopping of vehicles in a Commonwealth

reserve; and

(d) the mooring or landing of vessels in a Commonwealth

reserve; and

(e) the landing of aircraft in a Commonwealth reserve; and

(f) the use of vehicles and vessels in a Commonwealth reserve.

357 Managing Commonwealth reserves while a management plan is

not in operation

(1) While a management plan is not in operation for a Commonwealth

reserve, the Director must exercise the Director’s powers and

perform the Director’s functions in relation to the reserve or to a

zone of the reserve so as to manage the reserve in accordance with:

(a) the Australian IUCN reserve management principles for the

IUCN category to which the reserve or zone has most

recently been assigned by:

(i) a Proclamation made under Subdivision B; or

(ii) a management plan that was in operation for the reserve

(but is no longer); and

(b) if the Director holds land or seabed included in the reserve

under lease—the Director’s obligations under the lease.

(2) While a management plan is not in operation for a Commonwealth

reserve, the Commonwealth or a Commonwealth agency must not

exercise its powers or perform its functions in relation to the

reserve or a zone of the reserve inconsistently with either or both of

the following:

(a) the Australian IUCN reserve management principles for the

IUCN category to which the reserve or zone has most

recently been assigned by:

(i) a Proclamation made under Subdivision B; or

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(ii) a management plan that was in operation for the reserve

(but is no longer);

(b) if the Director holds land or seabed included in the reserve

under lease—the Director’s obligations under the lease.

(3) If:

(a) a zone of a Commonwealth reserve is assigned to an IUCN

category at or after the time the reserve was most recently

assigned to an IUCN category; and

(b) the IUCN category for the zone is different from the IUCN

category for the reserve;

disregard the IUCN category to which the reserve has been

assigned for the purposes of the application of this section in

relation to the zone.

358 Restriction on disposal of Director’s interests in Commonwealth

reserves

(1) The Director must not sell or otherwise dispose of a usage right the

Director holds in relation to land, sea or seabed in a

Commonwealth reserve.

(2) However, the Director may grant a lease or sub-lease of, or a

licence relating to, land or seabed in a Commonwealth reserve, but

only in accordance with a management plan in operation for the

reserve.

(3) Despite subsection (1), the Director may surrender a lease of land

or seabed within a Commonwealth reserve in consideration of the

grant to the Director of a new lease of land or seabed that includes

that land or seabed.

(4) The Lands Acquisition Act 1989 does not apply to the grant or

surrender of a lease or sub-lease under this section.

(5) This section has effect despite any law of the Commonwealth or of

a State or Territory.

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359 Prior usage rights relating to Commonwealth reserves continue

to have effect

(1) None of the following provisions affect a usage right that was held

by a person (other than the Commonwealth or the Director) in

relation to land or seabed immediately before the land or seabed

was included in a Commonwealth reserve:

(a) provisions of this Division that relate to the reserve (whether

or not they also relate to another Commonwealth reserve);

(b) provisions of the regulations made for the purposes of this

Division that relate to the reserve (whether or not they also

relate to another Commonwealth reserve);

(c) provisions of a management plan for the reserve.

(2) None of the provisions described in subsection (1) affect the

application of a law of a State or Territory in relation to the usage

right.

(3) The usage right may be renewed or have its term extended only:

(a) with the Minister’s written consent; and

(b) subject to any conditions determined by the Minister.

This subsection has effect despite subsections (1) and (2) and any

other law of the Commonwealth, a State or a Territory.

(4) Subsections (1) and (2) apply in relation to a usage right relating to

minerals on, in or under land or seabed included in a

Commonwealth reserve as if the usage right were a usage right

relating to the land or seabed.

(5) This section applies to a right arising out of a usage right in the

same way as it applies to the usage right.

(6) This section does not apply in relation to:

(a) a usage right relating to minerals in Kakadu National Park; or

(b) a usage right so far as it relates to mining operations for those

minerals.

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359A Traditional use of Commonwealth reserves by indigenous

persons

(1) This Division and regulations made for the purposes of this

Division do not prevent an indigenous person from continuing in

accordance with law the traditional use of an area in a

Commonwealth reserve for:

(a) hunting or food-gathering (except for purposes of sale); or

(b) ceremonial and religious purposes.

(2) However, regulations made for the purposes of this Division do

affect an indigenous person’s traditional use of an area in a

Commonwealth reserve if they:

(a) are made for the purpose of conserving biodiversity in the

area; and

(b) expressly affect the traditional use of the area by indigenous

persons.

359B Director’s approval of actions and mining operations when a

management plan is not in operation

Approval of actions (other than mining operations)

(1) The Director may, in writing, approve the taking of a specified

action or a specified class of actions, by a specified person or a

specified class of persons, in a specified area that is or is part of a

Commonwealth reserve, if:

(a) the Director is satisfied that:

(i) no management plan has yet come into operation for the

reserve; and

(ii) immediately before the area became included in the

reserve, the person, or the persons in the class of

persons, held a usage right, or a right arising out of a

usage right, that entitled the person or persons to take

the action, or the actions in the class of actions, in the

area; and

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(iii) the usage right is not a right in relation to land or seabed

to which section 359 applies; or

(b) the Director is satisfied that:

(i) a management plan for the reserve has ceased to be in

operation, and no further management plan for the

reserve has yet come into operation; and

(ii) immediately before the management plan ceased to be

in operation, the person, or the persons in the class of

persons, were taking the action, or the actions in the

class of actions, in the area without contravening

section 354 or 354A; and

(iii) the action or class of actions is not mining operations.

Note 1: In exercising the power to give approvals, the Director must comply

with section 357.

Note 2: If an action taken without approval would not contravene section 354

or 354A, the action does not need approval under this subsection.

Approval of mining operations

(2) The Director may, in writing, approve the carrying on of specified

mining operations, or a specified class of mining operations, by a

specified person or a specified class of persons, in a specified area

that is or is part of a Commonwealth reserve, if:

(a) the Director is satisfied that no management plan has yet

come into operation for the reserve; or

(b) the Director is satisfied that a management plan for the

reserve has ceased to be in operation, and no further

management plan for the reserve has yet come into operation.

Note 1: In exercising the power to give approvals, the Director must comply

with section 357.

Note 2: If an action taken without approval would not contravene section 355

or 355A, the action does not need approval under this subsection.

Limits on approvals in relation to the Kakadu National Park and

the Antarctic

(3) The Director must not approve:

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(a) an action in the Antarctic that would be an element of an

offence under the Antarctic Treaty (Environment Protection)

Act 1980 (whether or not a defence would be available under

that Act); or

(b) mining operations in the Kakadu National Park or the

Antarctic.

Approvals may be subject to conditions

(4) An approval given under subsection (1) or (2) may be expressed to

be subject to specified conditions.

When approvals come into force

(5) An approval given under subsection (1) or (2) comes into force on

the day the Director gives the approval, or on a later day specified

in the approval.

Variation and revocation of approvals

(6) The Director may, in writing, vary or revoke an approval:

(a) under subsection (1)—if the Director considers that the

action, or an action in the class of actions, to which the

approval relates is not being taken in accordance with the

approval; or

(b) under subsection (2)—if the Director considers that the

mining operations, or mining operations in the class of

mining operations, to which the approval relates are not

being carried on in accordance with the approval.

(7) An approval given under subsection (1) or (2), or a variation or

revocation of an approval, is not a legislative instrument.

Subdivision D—Complying with management plans for

Commonwealth reserves

361 Simplified outline of this Subdivision

The following is a simplified outline of this Subdivision:

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The Director must manage a Commonwealth reserve to give effect

to a management plan for the reserve. If indigenous people think

the Director is not doing this for a reserve including their land, they

can take the matter up with the Minister.

Commonwealth agencies must act so as not to contravene a

management plan.

362 Commonwealth and Commonwealth agencies to comply with

management plan for Commonwealth reserve

(1) The Director must exercise the Director’s powers and perform the

Director’s functions to give effect to a management plan that is in

operation for a Commonwealth reserve.

(2) The Commonwealth or a Commonwealth agency must not perform

its functions or exercise its powers in relation to a Commonwealth

reserve inconsistently with a management plan that is in operation

for the reserve.

(3) To avoid doubt, if a management plan for a Commonwealth

reserve prohibits the exercise of a specified power, or the

performance of a specified function, under an Act (including a

power or function under an instrument made under an Act), the

power or function must not be exercised in or in relation to the

reserve while the plan is in operation.

363 Resolving disagreement between land council and Director over

implementation of plan

Minister to resolve disagreement

(1) If the Chair or Chairperson of a land council for indigenous

people’s land in a jointly managed reserve and the Director

disagree about whether the Director is exercising the Director’s

powers and performing the Director’s functions consistently with a

management plan in operation for the reserve:

(a) the Director must inform the Minister; and

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(b) the Minister must appoint a person the Minister considers to

be suitably qualified and in a position to deal with the matter

impartially to inquire into the matter; and

(c) the person appointed must inquire into the matter and give

the Minister a report and recommendations; and

(d) the Minister must give the Director any directions the

Minister thinks fit; and

(e) the Director must comply with any direction.

What is a land council?

(2) The land council for indigenous people’s land in a Commonwealth

reserve is:

(a) if the land is in the area of an Aboriginal Land Council

established by or under the Aboriginal Land Rights (Northern

Territory) Act 1976—that Aboriginal Land Council; and

(b) if the land is in Jervis Bay Territory—the Wreck Bay

Aboriginal Community Council established by the

Aboriginal Land Grant (Jervis Bay Territory) Act 1986; and

(c) if the land is elsewhere—a body corporate that:

(i) is established by or under an Act; and

(ii) has functions relating to the indigenous people’s land in

the reserve; and

(iii) consists of indigenous persons who either live in an area

to which one or more of the body’s functions relate or

are registered as traditional owners of indigenous

people’s land in an area to which one or more of the

body’s functions relate.

What is indigenous people’s land?

(3) Land is indigenous people’s land if:

(a) a body corporate holds an estate that allows the body to lease

the land to the Commonwealth or the Director; and

(b) the body corporate was established by or under an Act for the

purpose of holding for the benefit of indigenous persons title

to land vested in it by or under that Act.

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Who is an indigenous person?

(4) A person is an indigenous person if he or she is:

(a) a member of the Aboriginal race of Australia; or

(b) a descendant of an indigenous inhabitant of the Torres Strait

Islands.

What is a jointly managed reserve?

(5) A Commonwealth reserve is a jointly managed reserve if:

(a) it includes indigenous people’s land held under lease by the

Director; and

(b) a Board is established for the reserve under Subdivision F.

364 Resolving disagreement between Director and Board over

implementation of plan

(1) The Director must inform the Minister if the Director believes that:

(a) a decision of a Board for a Commonwealth reserve is likely

to be substantially detrimental to the good management of

the reserve; or

(b) a decision of a Board for a Commonwealth reserve is

contrary to a management plan in operation for the reserve.

(2) The Minister must take the steps he or she thinks fit to resolve the

matter.

(3) If the Minister cannot resolve the matter, the Minister must appoint

as an arbitrator to inquire into the matter a person whom the

Minister thinks is suitably qualified and in a position to deal with

the matter impartially.

(4) The person appointed must inquire into the matter and give the

Minister a report and recommendations.

(5) After the Minister receives the report and recommendations, he or

she must give the Director and the Board:

(a) the directions the Minister thinks appropriate; and

(b) a statement of reasons for giving the directions; and

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(c) a copy of the report and recommendations.

(6) The Director and the Board must comply with any directions given

by the Minister.

Subdivision E—Approving management plans for

Commonwealth reserves

365 Simplified outline of this Subdivision

The following is a simplified outline of this Subdivision:

The Minister may approve a management plan for a

Commonwealth reserve prepared by the Director and any Board

for the reserve. Before the Minister approves a plan, he or she may

modify it.

Before the Director gives a plan to the Minister for approval, there

are 2 opportunities for the public and others with an interest in the

reserve to comment.

The Minister can resolve any disagreements between the Director

and a Board for a reserve over preparation of a plan for the reserve.

366 Obligation to prepare management plans for Commonwealth

reserves

Plans required for Commonwealth reserves without Boards

(1) The Director must prepare management plans for each

Commonwealth reserve for which there is not a Board to try to

ensure that a management plan for the reserve is in operation:

(a) as soon as practicable after the reserve is declared; and

(b) at all times after the first plan for managing the reserve takes

effect.

Note: Section 368 specifies steps to be taken in preparing a management

plan for a Commonwealth reserve.

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Amending or replacing plans for reserves without Boards

(2) The Director may prepare a management plan for a

Commonwealth reserve for which there is not a Board:

(a) to amend a management plan that is in operation for the

reserve; or

(b) to revoke and replace a management plan that is in operation

for the reserve.

Plans required for Commonwealth reserves with Boards

(3) A Board for a Commonwealth reserve must prepare management

plans for the reserve in conjunction with the Director, to try to

ensure that a management plan for the reserve is in operation:

(a) as soon as practicable after the Board is established; and

(b) at all times after a plan for managing the reserve first takes

effect after the establishment of the Board.

Note: Section 368 specifies steps to be taken in preparing a management

plan for a Commonwealth reserve.

Amending or replacing plans for reserves with Boards

(4) The Board for a Commonwealth reserve may prepare a

management plan for the reserve in conjunction with the Director:

(a) to amend a management plan that is in operation for the

reserve; or

(b) to revoke and replace a management plan that is in operation

for the reserve.

367 Content of a management plan for a Commonwealth reserve

Mandatory content

(1) A management plan for a Commonwealth reserve must provide for

the protection and conservation of the reserve. In particular, the

plan must:

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(a) assign the reserve to an IUCN category (whether or not a

Proclamation has assigned the reserve or a zone of the

reserve to that IUCN category); and

(b) state how the reserve, or each zone of the reserve, is to be

managed; and

(c) state how the natural features of the reserve, or of each zone

of the reserve, are to be protected and conserved; and

(d) if the Director holds land or seabed included in the reserve

under lease—be consistent with the Director’s obligations

under the lease; and

(e) specify any limitation or prohibition on the exercise of a

power, or performance of a function, under an Act in or in

relation to the reserve; and

(f) specify any mining operation, major excavation or other

work that may be carried on in the reserve, and the conditions

under which it may be carried on; and

(g) specify any other operation or activity that may be carried on

in the reserve; and

(h) indicate generally the activities that are to be prohibited or

regulated in the reserve, and the means of prohibiting or

regulating them; and

(i) indicate how the plan takes account of Australia’s obligations

under each agreement with one or more other countries that

is relevant to the reserve (including the World Heritage

Convention and the Ramsar Convention, if appropriate); and

(j) if the reserve includes a National Heritage place:

(i) not be inconsistent with the National Heritage

management principles; and

(ii) address the matters prescribed by regulations made for

the purposes of paragraph 324S(4)(a); and

(k) if the reserve includes a Commonwealth Heritage place:

(i) not be inconsistent with the Commonwealth Heritage

management principles; and

(ii) address the matters prescribed by regulations made for

the purposes of paragraph 341S(4)(a).

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Plan may assign different zones to different IUCN categories

(2) A management plan for a Commonwealth reserve may divide the

reserve into zones and assign each zone to an IUCN category

(whether or not a Proclamation has assigned the reserve or each

zone of the reserve to that IUCN category). The category to which

a zone is assigned may differ from the category to which the

reserve is assigned.

Consistency with Australian IUCN reserve management principles

(3) The provisions of a management plan for a Commonwealth reserve

that relate to the reserve or a particular zone of the reserve must not

be inconsistent with the Australian IUCN reserve management

principles for the IUCN category to which the reserve or zone is

assigned by the plan.

If zone is in different category from reserve

(4) If the management plan for a Commonwealth reserve assigns the

reserve to one IUCN category and assigns a zone of the reserve to

a different IUCN category, disregard the IUCN category to which

the reserve is assigned for the purposes of the application of

subsection (3) in relation to the zone.

(5) A single management plan may be the management plan for more

than one Commonwealth reserve.

Plans for proposed extension of reserve

(6) A management plan for a Commonwealth reserve may include

provisions relating to an area that is proposed to be included in the

reserve, but they do not have effect until the area is included in the

reserve.

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368 Steps in preparing management plans for Commonwealth

reserves

Overview of process

(1) Before the Director gives the Minister a management plan for a

Commonwealth reserve for approval:

(a) the Director must publish under subsection (2) an invitation

to comment on the proposal to prepare a draft of the plan;

and

(b) the Director and the Board (if any) for the reserve must

prepare a draft of the plan, taking into account any comments

received in response to the invitation; and

(c) the Director must publish under subsection (5) an invitation

to comment on the draft; and

(d) the Director must make publicly available copies of the draft

free or for a reasonable fee determined by the Director; and

(e) the Director and the Board (if any) must consider any

comments received in response to the invitation to comment

on the draft and may alter the draft.

Notice inviting comments on proposal to prepare draft

(2) The Director must publish a notice in the Gazette, in a daily

newspaper circulating in each State and self-governing Territory

and in accordance with the regulations (if any):

(a) stating that the Director proposes to prepare a draft of a

management plan for the Commonwealth reserve; and

(b) inviting comments on the proposal from:

(i) members of the public; and

(ii) the Chair or Chairperson of any land council for

indigenous people’s land in the reserve; and

(iii) if the reserve is in a State or self-governing Territory—

the agency (if any) of the State or Territory that is

responsible for managing national parks established in

the State or Territory under a law of the State or

Territory; and

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(iv) if the Minister has established under Division 4 of

Part 19 an advisory committee with functions relating to

the reserve—the committee; and

(v) if the Director holds any land or seabed in the reserve

under lease—anyone the Director is obliged under the

lease to consult about management of the land or

seabed; and

(c) specifying the address to which comments may be sent; and

(d) specifying a day (at least 30 days after the last day on which

the notice is published in the Gazette or in accordance with

the regulations (if any)) by which comments must be sent.

Considerations in preparing a management plan

(3) In preparing a management plan for a Commonwealth reserve, the

Director and the Board (if any) for the reserve must take account

of:

(a) any report considered by the Minister under section 351

before a Proclamation declaring the reserve was made; and

(b) the regulation of the use of the reserve for the purpose for

which it was declared; and

(c) the interests of:

(i) any owner of any land or seabed in the reserve; and

(ii) the traditional owners of any indigenous people’s land

in the reserve; and

(iii) any other indigenous persons interested in the reserve;

and

(iv) any person who has a usage right relating to land, sea or

seabed in the reserve that existed (or is derived from a

usage right that existed) immediately before the reserve

was declared; and

(d) the protection of the special features of the reserve, including

objects and sites of biological, historical, palaeontological,

archaeological, geological and geographical interest; and

(e) the protection, conservation and management of biodiversity

and heritage within the reserve; and

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(f) the protection of the reserve against damage; and

(g) Australia’s obligations under agreements between Australia

and one or more other countries relevant to the protection and

conservation of biodiversity and heritage.

Who are the traditional owners of indigenous people’s land?

(4) The traditional owners of indigenous people’s land are:

(a) a local descent group of indigenous persons who:

(i) have common spiritual affiliations to a site on the land

under a primary spiritual responsibility for that site and

for the land; and

(ii) are entitled by indigenous tradition to forage as of right

over the land; or

(b) if the land is in the Jervis Bay Territory—the members of the

Wreck Bay Aboriginal Community Council.

Notice inviting comment on draft

(5) The Director must publish a notice in the Gazette, in a daily

newspaper circulating in each State and self-governing Territory

and in accordance with the regulations (if any):

(a) stating that the Director has prepared a draft of a

management plan for the Commonwealth reserve; and

(b) stating how the draft can be obtained; and

(c) inviting comments on the draft from:

(i) members of the public; and

(ii) the Chair or Chairperson of any land council for any

indigenous people’s land in the reserve; and

(iii) if the reserve is in a State or self-governing Territory—

the agency (if any) of the State or Territory that is

responsible for managing national parks established in

the State or Territory under a law of the State or

Territory; and

(iv) if the Minister has established under Division 4 of

Part 19 an advisory committee with functions relating to

the reserve—the committee; and

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(v) if the Director holds any land or seabed in the reserve

under lease—anyone the Director is obliged under the

lease to consult about management of the land or

seabed; and

(d) specifying the address to which comments may be sent; and

(e) specifying a day (at least 30 days after the last day on which

the notice is published in the Gazette or in accordance with

the regulations (if any)) by which comments must be sent.

369 Resolving disagreements between Director and Board in

planning process

(1) The Director and the Board for a Commonwealth reserve must

inform the Minister if they cannot agree on:

(a) the content of a management plan they are preparing for the

reserve; or

(b) any changes to be made following comment made in

response to an invitation to comment on a draft management

plan for the reserve; or

(c) whether the Director should give a management plan for the

reserve to the Minister for approval (either initially or after

the Minister has given the plan back to the Director with

suggestions under paragraph 370(3)(b)).

(2) If the Minister is advised by the Director and a Board of a

disagreement, the Minister must take the steps the Minister thinks

fit to resolve the disagreement.

(3) If the Minister cannot resolve the disagreement, the Minister must

appoint as an arbitrator to inquire into the matter a person whom

the Minister thinks is suitably qualified and in a position to deal

with the matter impartially.

(4) The appointed arbitrator must inquire into the matter and give the

Minister a report and recommendations.

(5) After the Minister receives the report and recommendations, he or

she must give the Director and the Board:

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(a) the directions the Minister thinks appropriate; and

(b) a statement of reasons for giving the directions; and

(c) a copy of the report and recommendations.

(6) The Director and the Board must comply with any directions given

by the Minister.

370 Approval of management plans for Commonwealth reserves

Giving management plan to Minister for approval

(1) The Director must give the Minister a management plan for a

Commonwealth reserve for approval, but only if the Board (if any)

for the reserve agrees. The Director must do so as soon as

practicable after considering under paragraph 368(1)(e) the

comments (if any) on a draft of the management plan.

Things to be given to Minister with management plan

(2) When the Director gives the plan to the Minister, the Director must

also give the Minister:

(a) any comments received in response to the invitation to

comment on a draft of the plan; and

(b) the views of the Director and any Board for the reserve on

the comments.

Minister’s decision

(3) Within 60 days of the Director giving the plan, the Minister:

(a) must consider the plan and any comments and views given to

the Minister under subsection (2); and

(b) must either:

(i) approve the plan; or

(ii) give the plan back to the Director with suggestions for

consideration by the Director and any Board for the

reserve.

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Note: There are some extra rules about giving back to the Director a

management plan for a Commonwealth reserve in the Kakadu region,

the Uluru region or Jervis Bay Territory. See section 390.

Procedure if Minister gives plan back

(4) If the Minister gives the plan back to the Director with suggestions:

(a) the Director and any Board for the Commonwealth reserve to

which the plan relates must consider the suggestions; and

(b) the Director must give the Minister an identical or altered

version of the plan, but only if any Board for the reserve

agrees; and

(c) the Director must give the Minister, with the plan, the

Director’s views on the Minister’s suggestions.

Minister’s decision on re-submitted plan

(5) As soon as practicable after the Director has given the Minister a

version of the plan under subsection (4), the Minister:

(a) must consider it and the views given to the Minister under

subsection (4); and

(b) must approve the plan with any modifications the Minister

considers appropriate.

Considerations for Minister assigning reserve to IUCN category

(6) When approving a management plan for a Commonwealth reserve

to assign the reserve, or a zone of a reserve, to a particular IUCN

category, the Minister must be satisfied of the matters specified in

section 347 that he or she would have to be satisfied of before the

Governor-General could make a Proclamation to assign the reserve

or zone to that IUCN category.

371 Approved management plans are legislative instruments

(1) A management plan for a Commonwealth reserve prepared by the

Director, and the Board (if any) for the reserve, and approved by

the Minister, is a legislative instrument made by the Minister on

the day the plan is approved.

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(3) When the management plan is laid before each House of the

Parliament, there must also be laid before the House copies of any

comments, views, report or recommendations given to the Minister

under this Division in relation to the plan that have not been given

effect to in the plan.

372 Amendment and revocation of management plans for

Commonwealth reserves

A management plan for a Commonwealth reserve may amend or

revoke and replace an earlier management plan for the reserve.

373 Expiry of management plans for Commonwealth reserves

A management plan for a Commonwealth reserve ceases to have

effect 10 years after it took effect (unless it has already been

revoked).

Subdivision F—Boards for Commonwealth reserves on

indigenous people’s land

374 Simplified outline of this Subdivision

The following is a simplified outline of this Subdivision:

The Minister must establish a Board for a Commonwealth reserve

that is wholly or partly on indigenous people’s land, if the land

council for that land (or traditional owners) and the Minister agree

that there should be a Board for the reserve.

The Board’s role is to make decisions and plans for management of

the reserve, in conjunction with the Director.

A majority of Board members must be indigenous people

nominated by traditional owners if the reserve is wholly or mostly

on indigenous people’s land.

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375 Application

This Subdivision provides for Boards for Commonwealth reserves

that consist of, or include, indigenous people’s land held under

lease by the Director.

376 Functions of a Board for a Commonwealth reserve

(1) The functions of a Board established for a Commonwealth reserve

are:

(a) to make decisions relating to the management of the reserve

that are consistent with the management plan in operation for

the reserve; and

(b) in conjunction with the Director, to:

(i) prepare management plans for the reserve; and

(ii) monitor the management of the reserve; and

(iii) advise the Minister on all aspects of the future

development of the reserve.

(2) When performing its functions, a Board must comply with a

direction given by the Minister to the Board under:

(a) section 364 (Resolving disagreement between Director and

Board over implementation of plan); or

(b) section 369 (Resolving disagreements between Director and

Board in planning process).

377 Minister must establish Board if land council or traditional

owners agree

(1) The Minister must establish a Board for a specified

Commonwealth reserve by notice published in the Gazette and in

the way (if any) prescribed by the regulations if he or she agrees on

the matters set out in subsection (2) with:

(a) the land council for the indigenous people’s land in the

reserve that the Director holds under lease; or

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(b) if there is not such a land council—the traditional owners of

the indigenous people’s land in the reserve that the Director

holds under lease.

(2) The matters to be agreed on are:

(a) that a Board should be established for the reserve; and

(b) the name of the Board; and

(c) the number of positions of member of the Board; and

(d) the qualifications for appointment to each position of

member of the Board.

(3) The notice must specify each of the matters described in

paragraphs (2)(b), (c) and (d).

Note: The notice may specify different qualifications for different positions.

See subsection 33(3A) of the Acts Interpretation Act 1901.

(4) If the reserve consists wholly or mostly of indigenous people’s

land held by the Director under lease, a majority of the members of

the Board must be indigenous persons nominated by the traditional

owners of the indigenous people’s land.

(5) If the reserve is in a State or self-governing Territory, at least one

member of the Board must be a person nominated by the State or

Territory.

Note: By agreement between the Minister and the land council or traditional

owners, more than one member of a Board may be a person

nominated by the State or Territory.

378 Altering the constitution of a Board or abolishing a Board

Revoking and amending notice establishing Board

(1) The Minister may, by notice in the Gazette:

(a) revoke a notice under section 377 relating to the Board for

the reserve; or

(b) amend a notice under section 377 relating to the Board for

the reserve so as to:

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(i) change the specification of the name by which the

Board is to be known; or

(ii) increase the number of members of the Board and

specify the qualifications for appointment to each of the

extra positions of member; or

(iii) decrease the number of positions of member of the

Board and specify which positions are abolished; or

(iv) change the qualifications for appointment to a position

of member of the Board.

Note: The Minister may exercise the power of amendment from time to

time. See subsection 33(1) of the Acts Interpretation Act 1901.

Limits on changing composition of Board

(2) Paragraph (1)(b) has effect subject to subsections 377(4) and (5).

Note 1: Subsection 377(4) requires a majority of the members of the Board of

a Commonwealth reserve consisting wholly or mostly of indigenous

people’s land held by the Director under lease to be indigenous

persons nominated by the traditional owners of the land.

Note 2: Subsection 377(5) requires at least one member of a Board for a

reserve in a State or self-governing Territory to be a nominee of the

State or Territory.

Prerequisite to revoking or amending notice

(3) The Minister may revoke or amend a notice under section 377

relating to a Commonwealth reserve only if the Minister agrees on

the revocation or amendment with:

(a) the land council for indigenous people’s land in the reserve,

if the Board for the reserve was established with the

agreement of the land council; or

(b) the traditional owners of indigenous people’s land in the

reserve, if the Board for the reserve was established with the

agreement of the traditional owners.

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Board’s identity not affected by name change

(4) If the Minister amends a notice published under section 377 so as

to alter a Board’s name or constitution, section 25B of the Acts

Interpretation Act 1901 applies in relation to the alteration as if it

had been made by an Act.

Note: This ensures that the Board’s identity and functions are not affected

by the alteration, and that certain references to the Board under its old

name are treated as references to the Board under its new name.

379 Appointment of Board members

Appointment of persons

(1) The Minister may, in writing, appoint a person on a part-time basis

to a position of member of a Board if:

(a) the person is qualified for appointment to the position; and

(b) the Minister is satisfied that the person is a fit and proper

person to be a member of the Board (see section 379A).

Note: Subsection (1) is subject to section 390A, which deals with the

appointment of a Northern Territory nominee as a member of the

Board for a Commonwealth reserve consisting wholly or mostly of

indigenous people’s land held by the Director under lease in the

Territory.

Replacement appointments

(2) As soon as practicable after a position of member of a Board

becomes vacant, the Minister must appoint a person to the position

under subsection (1).

Validity of appointments

(3) A deficiency or irregularity relating to the nomination, selection or

appointment of a member of a Board does not invalidate the

member’s appointment.

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379A Fit and proper person

In determining for the purposes of this Subdivision whether a

person is a fit and proper person to be a member of a Board, the

Minister may have regard to the matters specified in regulations

made for the purposes of this section. The Minister may also have

regard to any other matter the Minister considers appropriate.

Note: The question whether a person is a fit and proper person is relevant to

subsection 379(1) (which is about appointments to Boards), and

subsection 382(1A) (which is about termination of appointments).

380 Terms and conditions

Term of office

(1) A member of a Board holds office for the period specified in the

instrument of appointment. The period must not exceed 5 years.

Note: Section 382 sets out the circumstances in which a member’s

appointment may be (or must be) terminated.

Avoiding doubt—future terms of office

(1A) To avoid doubt, subsection (1) does not prevent a person from

being appointed as a member of a Board again. This subsection

does not affect the operation of section 33AA of the Acts

Interpretation Act 1901 in relation to this Act.

Resignation

(2) A member of a Board may resign his or her appointment by giving

the Minister a written resignation.

Other terms and conditions

(3) A member of a Board holds office on the terms and conditions (if

any) that are determined by the Minister in relation to matters not

covered by this Act or the regulations.

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381 Remuneration

(1) A member of a Board is to be paid the remuneration that is

determined by the Remuneration Tribunal. If no determination of

that remuneration by the Tribunal is in operation, the member is to

be paid the remuneration that is prescribed.

(2) A member of a Board is to be paid the allowances that are

prescribed.

(3) This section has effect subject to the Remuneration Tribunal Act

1973.

382 Termination of appointments of Board members

Termination when person stops being qualified for appointment

(1) The appointment of a person to a position of member of a Board is

terminated when the person ceases to be qualified for appointment

to the position.

Termination if person is not fit and proper

(1A) The Minister must terminate the appointment of a member of a

Board if the Minister is satisfied that the member is not a fit and

proper person to be a member of the Board. For this purpose, in

having regard to matters as mentioned in section 379A, the

Minister may consider things that happened either before or after

the member’s appointment.

Termination for misbehaviour or incapacity

(2) The Minister may terminate the appointment of a member of a

Board for misbehaviour or physical or mental incapacity.

Termination for failure to attend Board meetings

(3) The Minister may terminate the appointment of a member of a

Board if the member is absent, except on leave of absence, from 3

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consecutive meetings of the Board of which the member has had

notice.

Termination for engaging in conflicting work

(4) The Minister may terminate the appointment of a member of a

Board if the member engages in paid employment that, in the

Minister’s opinion, conflicts or could conflict with the proper

performance of the duties of the member.

Termination for conduct inimical to Board

(4A) The Minister may terminate the appointment of a member of a

Board for a reserve if the Minister is satisfied that the person has

acted in a way that is not in the interest of the Board as a whole.

However, the Minister may not terminate under this subsection the

appointment of a member nominated by traditional owners of

indigenous people’s land in the reserve.

Termination for failure to disclose interests

(5) The Minister must terminate the appointment of a member of a

Board if:

(a) the member does not comply with any requirements

prescribed by the regulations to disclose an interest the

member has in a matter being considered or about to be

considered by the Board; and

(b) the member does not have a reasonable excuse for not

complying.

Termination on request by nominator

(6) The Minister must terminate the appointment of a member of a

Board if:

(a) the member was appointed on the nomination of a particular

person, body or group of persons; and

(b) the person, body or group gives the Minister a written request

to terminate the appointment.

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Termination for bankruptcy or insolvency

(7) The Minister may terminate the appointment of a member of the

Board if the member:

(a) becomes bankrupt; or

(b) applies to take the benefit of any law for the relief of

bankrupt or insolvent debtors; or

(c) compounds with his or her creditors; or

(d) makes an assignment of his or her remuneration for the

benefit of his or her creditors.

383 Procedure of a Board

(1) The regulations may provide for:

(a) matters relating to the operation of a Board, including:

(i) procedures for convening meetings of the Board; and

(ii) procedures for determining who is to preside at a

meeting of the Board; and

(iii) determining who may attend a meeting of the Board;

and

(iv) the constitution of a quorum for a meeting of the Board;

and

(v) procedures relating to a member’s interest in matters

being dealt with by the Board; and

(vi) the way in which matters are to be resolved by the

Board; and

(b) the appointment and rights of a deputy of a member of a

Board.

(2) The regulations may allow a Board to determine a matter relating

to the operation of the Board for which the regulations may

provide.

(3) If there are no regulations in force, a Board may operate in the way

it determines.

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(4) A meeting of a Board for a Commonwealth reserve consisting

wholly of indigenous people’s land:

(a) must not start; and

(b) must not continue;

unless the majority of the members of the Board present are

persons nominated by the traditional owners of the indigenous

people’s land for appointment as members.

(5) Subsection (4) has effect despite subsections (1), (2) and (3).

Subdivision G—Special rules for some Commonwealth reserves

in the Northern Territory or Jervis Bay Territory

384 Simplified outline of this Subdivision

The following is a simplified outline of this Subdivision:

Special rules apply to Commonwealth reserves in the Kakadu

region, Uluru region and Jervis Bay Territory, affecting the

activities that can be carried on in those reserves.

Special procedures apply to planning for management of reserves

in the Kakadu region, Uluru region and Jervis Bay Territory. These

provide for extra involvement of indigenous people in the planning

process.

385 Activities in Commonwealth reserve without management plan

When a management plan is not in operation for a particular

Commonwealth reserve wholly or partly in the Kakadu region,

Uluru region or Jervis Bay Territory, the Director may perform the

Director’s functions and exercise the Director’s powers in and in

relation to a part of the reserve in the region, subject to any

directions of the Minister.

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386 What are the Kakadu region and the Uluru region?

(1) The Kakadu region is the part of the Alligator Rivers Region (as

defined in the Environment Protection (Alligator Rivers Region)

Act 1978) that excludes:

(a) the area shown as the Arnhem Land Aboriginal Reserve on

the map mentioned in that definition; and

(b) the areas that are pastoral leases and are described on that

map as Mount Bundey and Eva Valley.

(2) The Uluru region is the area of land described under the heading

“Uluru” in Schedule 1 to the Aboriginal Land Rights (Northern

Territory) Act 1976.

387 No mining operations in Kakadu National Park

(1) A person must not carry out mining operations in Kakadu National

Park.

(2) Subsection (1) does not prevent:

(a) the use, development or reconstruction of the township

known as Jabiru; or

(b) the transportation of anything in Kakadu National Park along

routes (including air routes) prescribed by the regulations for

the purposes of this paragraph; or

(c) the construction and use of pipelines and power lines in

Kakadu National Park along routes prescribed by the

regulations for the purposes of this paragraph; or

(d) the doing of anything for the purposes of building or

construction, or the supply of water, in Kakadu National Park

as long as the purposes are not connected with, or incidental

to, mining operations; and

(e) prescribed activities carried on in Kakadu National Park in

connection with, or incidental to, mining operations carried

on outside Kakadu National Park.

(3) Kakadu National Park is the Commonwealth reserve (as it exists

from time to time) to which the name Kakadu National Park was

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given by Proclamation continued in force by the Environmental

Reform (Consequential Provisions) Act 1999.

388 Establishment and development of townships in the Kakadu

region and Uluru region

(1) A person may use or develop a township in a part of a

Commonwealth reserve, but only if:

(a) the part is in the Kakadu region or the Uluru region; and

(b) the person does so in accordance with:

(i) subsection (2); and

(ii) the management plan for the reserve; and

(iii) a town plan prepared and approved in accordance with

the regulations.

(2) A person (other than the Director) may use or develop a township

only on land that the person holds under lease or sub-lease from:

(a) the Commonwealth; or

(b) the Director; or

(c) the Kakadu Aboriginal Land Trust (within the meaning of the

Aboriginal Land Rights (Northern Territory) Act 1976); or

(d) the Northern Territory; or

(e) the Aboriginal and Torres Strait Islander corporation referred

to in subsection 19(3F) of the Aboriginal Land Rights

(Northern Territory) Act 1976.

389 Planning for townships

Management plan provisions

(1) The provisions of a management plan for a Commonwealth reserve

that relate to a township must include provisions for and in relation

to the use and development of the township.

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Town plan provisions

(2) A town plan must make detailed provision in relation to the use

and development of the township, including, in particular, the

provision (if any) to be made for any matters that are specified for

the purposes of this subsection by:

(a) the management plan for the Commonwealth reserve

containing the township; or

(b) the regulations.

Town plans may adopt, apply or incorporate other instruments

(3) For the purposes of subsection (2), a town plan may apply, adopt or

incorporate, with or without modification:

(a) the provisions of any law of the Northern Territory (or a part

of the Territory), as in force at a specified time or as in force

from time to time; or

(b) any matter contained in any instrument or writing as in force

or existing at a specified time.

Revocation and variation of town plans

(5) A town plan may be revoked or amended in the manner provided

by the regulations.

Note: Town plans are to be prepared and approved in accordance with the

regulations. See subparagraph 388(1)(b)(iii).

390 Special rules to protect Aboriginal interests in planning process

(1) This section sets out some extra rules about the process of

preparing management plans for a Commonwealth reserve wholly

or partly within the Kakadu region, the Uluru region or Jervis Bay

Territory.

(2) The Minister must give a management plan for a Commonwealth

reserve back to the Director with suggestions under

paragraph 370(3)(b) if the Minister is satisfied that there is a

substantial difference of opinion between:

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(a) the Chair or Chairperson of a land council for indigenous

people’s land in the reserve, on the one hand; and

(b) the Director, or the Director and the Board for the reserve (if

it is a jointly managed reserve), on the other hand.

(3) If the Minister gives the plan back to the Director with suggestions

under paragraph 370(3)(b) (whether because of subsection (2) or

not), the Minister must:

(a) give a copy of the suggestions to:

(i) the Chair or Chairperson of each land council for

indigenous people’s land in the reserve; and

(ii) the Parks and Wildlife Commission of the Northern

Territory, if the plan is for a Commonwealth reserve

wholly or partly in the Territory; and

(b) invite each person to whom the Minister gave a copy of the

suggestions to give the Director comments on the suggestions

within 14 days.

(4) When considering the Minister’s suggestions as required by

paragraph 370(4)(a), the Director and any Board for the reserve

must also consider any comments made in response to the

Minister’s invitation.

(5) When the Director gives the Minister an identical or altered version

of the plan under paragraph 370(4)(b), the Director must also:

(a) give the Minister a copy of the comments (if any) made in

response to the Minister’s invitation, and the Director’s

views on those comments; and

(b) give the Chair or Chairperson of each land council for

indigenous people’s land in the reserve a copy of the version

of the plan given to the Minister and of the comments and

views (if any) being given to the Minister under

paragraph (a).

(6) The Chair or Chairperson of a land council for indigenous people’s

land in the reserve may make comments to the Minister relating to

the version of the plan within 14 days of receiving the copy of it.

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(7) If the Minister receives comments from the Chair or Chairperson

of a land council for indigenous people’s land in the reserve and

the Minister is satisfied that there is a substantial difference of

opinion between the Chair or Chairperson and the Director over the

plan:

(a) the Minister may appoint a person the Minister considers to

be suitably qualified and in a position to deal with the matter

impartially to inquire into the matter; and

(b) the person appointed must inquire into the matter and give

the Minister a report and recommendations.

(8) The Minister:

(a) must also consider:

(i) the comments (if any) made to the Minister by the Chair

or Chairperson under subsection (6); and

(ii) the report and recommendations (if any) given to the

Minister under subsection (7);

when considering under subsection 370(5) the version of the

plan given to the Minister under paragraph 370(4)(b); and

(b) must not approve the plan before the end of the period

described in subsection (6).

390A Appointment of Northern Territory nominee to Board

(1) This section makes special provision for the appointment of a

person nominated by the Northern Territory as a member of the

Board for a Commonwealth reserve consisting wholly or mostly of

indigenous people’s land held by the Director under lease in the

Territory.

(2) Despite subsection 379(1), the Minister must not appoint the

person unless:

(a) the members of the Board nominated by the traditional

owners of the land consent to the appointment; or

(b) the appointment has been recommended under

subsection (5).

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(3) The Northern Territory may inform the Minister if it believes that

the members of the Board nominated by the traditional owners of

the land are unreasonably withholding consent to the appointment.

(4) If the Northern Territory informs the Minister, he or she must refer

the matter to the person (the Ombudsman) holding the office of

Commonwealth Ombudsman under the Ombudsman Act 1976.

(5) If the Ombudsman is satisfied that the members of the Board

nominated by the traditional owners of the land are unreasonably

withholding consent to the appointment, the Ombudsman must

recommend to the Minister that the Minister make the

appointment.

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Section 390B

Division 5—Conservation zones

390B Simplified outline of this Division

The following is a simplified outline of this Division:

The Governor-General can proclaim a Commonwealth area to be a

conservation zone, to protect biodiversity in the area while it is

being assessed for inclusion in a Commonwealth reserve.

Regulations can be made to regulate a wide range of activities in a

conservation zone.

People who have rights relating to an area that is later included in a

conservation zone can continue to exercise those rights in the zone.

A conservation zone can be revoked if the Minister is satisfied the

area concerned should not be included in a Commonwealth

reserve. It is revoked automatically if it is included in a

Commonwealth reserve.

390C Object of this Division

The object of this Division is to provide for the protection of

biodiversity, other natural features and heritage in Commonwealth

areas while they are being assessed for inclusion in a

Commonwealth reserve.

390D Proclamation of conservation zones

(1) The Governor-General may, by Proclamation, declare a

Commonwealth area outside a Commonwealth reserve to be a

conservation zone.

(2) Before the Governor-General makes a Proclamation declaring a

Commonwealth area to be a conservation zone, the Minister must

be satisfied that the area should be assessed to determine whether

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the biodiversity, other natural features and heritage in the area

should be protected by including the area in a Commonwealth

reserve.

390E Regulating activities generally

(1) The regulations may:

(a) regulate or prohibit the pollution of soil, air or water in a

manner that is, or is likely to be, harmful to:

(i) people, biodiversity or heritage in conservation zones;

or

(ii) the natural features of conservation zones; and

(b) regulate tourism in conservation zones; and

(c) provide for the protection and preservation of conservation

zones and property and things in conservation zones; and

(d) provide for the protection and conservation of biodiversity in

conservation zones; and

(e) regulate or prohibit access to all or part of a conservation

zone by persons or classes of persons; and

(f) provide for the removal of trespassers from conservation

zones; and

(g) regulate camping in conservation zones; and

(h) provide for the safety of persons in conservation zones; and

(i) regulate the use of fire in conservation zones; and

(j) regulate the conduct of persons in conservation zones; and

(k) regulate the carrying on of any trade or commerce in a

conservation zone; and

(l) regulate the use of vehicles in conservation zones and

provide for signs and road markings for those purposes; and

(m) provide for:

(i) the removal of vehicles, aircraft or vessels from places

in conservation zones where they have been left in

contravention of the regulations or have been

abandoned; and

(ii) the impounding of such vehicles, aircraft or vessels; and

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(n) provide that the person taken for the purposes of the

regulations to be the owner of a motor vehicle involved in a

contravention of a provision of the regulations relating to the

parking or stopping of vehicles in a conservation zone is,

except as provided otherwise, taken to commit an offence

against the provision; and

(o) provide for a person to be taken to be the owner of a motor

vehicle for the purposes of regulations made under

paragraph (n) (including a person in whose name the motor

vehicle is registered under the law of a State or Territory);

and

(p) regulate the use of vessels in, and the passage of vessels

through, conservation zones; and

(q) regulate the landing and use of aircraft in, and the flying of

aircraft over, conservation zones; and

(r) regulate or prohibit the taking of animals or plants into or out

of conservation zones; and

(s) provide for the impounding, removal, destruction or disposal

of animals found straying in conservation zones; and

(t) regulate or prohibit the taking into conservation zones, and

the use in conservation zones, of weapons, traps, nets, snares,

fishing apparatus and other devices; and

(u) regulate or prohibit the laying of baits and the use of

explosives and poisons in conservation zones; and

(v) provide for the collection of specimens and the pursuit of

research in conservation zones for scientific purposes; and

(w) provide for the issue of licences, permits and authorities

relating to activities in conservation zones, the conditions

subject to which they are issued and the charging of fees by

the Commonwealth in respect of such licences, permits and

authorities; and

(x) provide for any matter incidental to or connected with a

matter described in another paragraph.

(2) Regulations relating to conservation zones may also:

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(a) regulate the carrying on of mining operations, fishing,

pastoral or agricultural activities for commercial purposes;

and

(b) regulate the construction or alteration of buildings and

structures; and

(c) regulate the construction or establishment of bridges,

railways, roads, tracks, port facilities and air-strips and the

carrying out of any other works; and

(d) regulate the felling or taking of timber; and

(e) provide for and in relation to the powers to be exercised, and

the functions and duties to be performed, in and in relation to

conservation zones by wardens, by rangers and by other

persons included in specified classes of persons; and

(f) provide for and in relation to the giving of securities for

compliance with regulations made for the purposes of this

section by persons doing, or proposing to do, anything to

which those regulations relate.

(3) Regulations made for the purposes of this section have no effect to

the extent that they are inconsistent with the terms and conditions

of a right (however described) to explore for minerals, or to mine

for or recover minerals, granted under section 124 of the Lands

Acquisition Act 1989.

390F Charges for activities in conservation zones

Subject to the approval of the Minister, the Director may determine

and impose charges for using services or facilities provided by the

Director in or in connection with a conservation zone.

390G Other laws and regulations made for this Division

Regulations regulating aircraft subject to other Commonwealth

laws

(1) A provision of the regulations regulating the flying of aircraft over

a conservation zone does not have any effect so far as it is

inconsistent with a law of the Commonwealth. For this purpose, a

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Section 390H

provision is not inconsistent with such a law if it can be complied

with without contravention of the law.

Territory laws subject to regulations

(2) A law of a Territory has effect so far as it is not inconsistent with a

provision of the regulations made for the purposes of this

Division and having effect in that Territory. For this purpose, such

a law is not inconsistent with the provision so far as it can operate

concurrently with the provision.

390H Prior usage rights relating to conservation zones continue to

have effect

(1) None of the following provisions affect a usage right that was held

by a person (other than the Commonwealth) in relation to land or

seabed immediately before the land or seabed was included in a

conservation zone:

(a) provisions of this Division that relate to the zone (whether or

not they also relate to another conservation zone);

(b) provisions of the regulations made for the purposes of this

Division that relate to the zone (whether or not they also

relate to another conservation zone).

(2) None of the provisions covered by subsection (1) affect the

application of a law of a State or Territory in relation to the usage

right.

(3) The usage right may be renewed or have its term extended only:

(a) with the Minister’s written consent; and

(b) subject to any conditions determined by the Minister.

This subsection has effect despite subsections (1) and (2) and any

other law of the Commonwealth, a State or a Territory.

(4) Subsections (1) and (2) apply in relation to a usage right relating to

minerals on, in or under land or seabed included in a conservation

zone as if the usage right were a usage right relating to the land or

seabed.

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(5) This section applies to a right arising out of a usage right in the

same way as it applies to the usage right.

390J Revoking and altering conservation zones

Proclamations to revoke or amend declaring Proclamation

(1) The Governor-General may, by Proclamation, revoke or amend a

Proclamation made under section 390D (declaring a

Commonwealth area to be a conservation zone).

Limit on making Proclamations

(2) Before the Governor-General makes a Proclamation under

subsection (1) causing a Commonwealth area to cease to be within

a conservation zone, the Minister must be satisfied that the area

should not be included in a Commonwealth reserve.

Declaration of Commonwealth reserve revokes conservation zone

(3) A Commonwealth area ceases to be a conservation zone by force

of this subsection if the area becomes or is included in a

Commonwealth reserve.

Conservation zone ends if it ceases to be in Commonwealth area

(4) If land, waters, seabed or airspace in a conservation zone cease to

be a Commonwealth area, the land, waters, seabed or airspace

cease to be (or be in) a conservation zone by force of this

subsection.

Proclamation to reflect cessation of conservation zone

(5) If land, waters, seabed or airspace cease to be a conservation zone

by force of subsection (3) or (4), the Governor-General must make

a Proclamation revoking or amending the Proclamation that

included the land, waters, seabed or airspace in a conservation

zone, to reflect the fact that the land, waters, seabed or airspace are

no longer part of the conservation zone.

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Chapter 5A The List of Overseas Places of Historic Significance to Australia

Part 15A The List of Overseas Places of Historic Significance to Australia

Section 390K

Chapter 5A—The List of Overseas Places of

Historic Significance to Australia

Part 15A—The List of Overseas Places of Historic

Significance to Australia

390K The List of Overseas Places of Historic Significance to

Australia

(1) The Minister must keep a written record of places in accordance

with this Part. The record is called the List of Overseas Places of

Historic Significance to Australia.

(2) The List of Overseas Places of Historic Significance to Australia is

not a legislative instrument.

390L Inclusion of places in the List of Overseas Places of Historic

Significance to Australia

(1) The Minister may, by notice published in the Gazette, include a

place, and a statement of its historic significance to Australia, in

the List of Overseas Places of Historic Significance to Australia if,

and only if:

(a) the place is outside the Australian jurisdiction; and

(b) the Minister is satisfied that the place is of outstanding

historic significance to Australia.

(2) The regulations may specify matters the Minister is to have regard

to in considering whether he or she is satisfied as mentioned in

paragraph (1)(b).

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Section 390M

390M Removal of places from the List of Overseas Places of Historic

Significance to Australia or variation of statement of

historic significance

(1) The Minister may, by notice published in the Gazette, do either of

the following in relation to a place that is included in the List of

Overseas Places of Historic Significance to Australia:

(a) remove the place, and the statement of its historic

significance to Australia, from the List;

(b) vary the statement of the place’s historic significance to

Australia.

(2) The regulations may specify matters the Minister is to have regard

to in considering whether to take action under subsection (1).

390N Inviting comments from other Ministers before taking action

(1) Before taking action in relation to a place under section 390L or

390M, the Minister (the Environment Minister) must:

(a) inform the following other Ministers of the action the

Environment Minister proposes to take:

(i) the Minister for Foreign Affairs;

(ii) any other Minister whom the Environment Minister

believes should be informed; and

(b) invite those other Ministers to give the Environment Minister

comments on the proposed action; and

(c) take any comments from those other Ministers into account.

(2) In this section:

Minister for Foreign Affairs means the Minister administering the

Diplomatic Privileges and Immunities Act 1967.

390P Minister may ask Australian Heritage Council for advice etc.

(1) The Minister may ask the Australian Heritage Council for advice

relating to action that the Minister is considering taking under

section 390L or 390M in relation to a place, and may take that

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Section 390Q

advice into account in deciding what action (if any) to take under

that section in relation to the place.

(2) The Minister may also seek, and have regard to, information or

advice from any other source.

390Q List of Overseas Places of Historic Significance to Australia to

be publicly available

The Minister must ensure that:

(a) up-to-date copies of the List of Overseas Places of Historic

Significance to Australia are available for free to the public

on request; and

(b) an up-to-date copy of the List is available on the internet.

390R Disclosure of Australian Heritage Council’s assessments and

advice

(1) A member of the Australian Heritage Council has a duty not to

disclose advice under section 390P to a person other than the

Minister, an employee in the Department whose duties relate to the

Council or another member of the Council.

(2) However, the duty not to disclose the advice does not exist after

the Minister has decided whether to take the action to which the

advice relates.

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Declared commercial fishing activities Chapter 5B

Declared commercial fishing activities Part 15B

Prohibition Division 1

Section 390SA

Chapter 5B—Declared commercial fishing

activities

Part 15B—Declared commercial fishing activities

Division 1—Prohibition

390SA Civil penalty—declared commercial fishing activities

A person must not engage in a declared commercial fishing activity

in a Commonwealth marine area.

Civil penalty:

(a) for an individual—5,000 penalty units;

(b) for a body corporate—50,000 penalty units.

Note: If a body corporate is found to have contravened this section, an

executive officer of the body may be found to have contravened

section 494.

390SB Offence—declared commercial fishing activities

(1) A person commits an offence if:

(a) the person takes an action; and

(b) the action is taken in a Commonwealth marine area; and

(c) the action is a declared commercial fishing activity.

Penalty: Imprisonment for 7 years or 420 penalty units, or both.

Note 1: If a body corporate is found to have committed an offence against this

section, an executive officer of the body may be found to have

committed an offence against section 495.

Note 2: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body

corporate up to 5 times the maximum amount the court could fine a

person under this subsection.

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

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

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Part 15B Declared commercial fishing activities

Division 2 Declaring a commercial fishing activity

Section 390SC

Division 2—Declaring a commercial fishing activity

Subdivision A—What is a declared commercial fishing activity?

390SC What is a declared commercial fishing activity?

(1) A declared commercial fishing activity is a commercial fishing

activity that is specified in:

(a) an interim declaration that is in force under section 390SD;

or

(b) a final declaration that is in force under section 390SF.

(1A) A commercial fishing activity is a fishing activity that is engaged

in for a commercial purpose, and, to avoid doubt, does not include

an activity that constitutes recreational fishing (within the meaning

of subsection 212(2)).

Note: Under subsection 212(2), recreational fishing includes fishing from a

charter boat and fishing in a fishing competition.

(2) A fishing activity means an activity that constitutes fishing.

Subdivision B—Interim declaration

390SD Interim declaration

Making an interim declaration

(1) The Minister may, by legislative instrument, make a declaration

(an interim declaration) that a specified commercial fishing

activity is a declared commercial fishing activity.

Note 1: For variation of an interim declaration, see subsection 33(3) of the

Acts Interpretation Act 1901.

Note 2: For revocation of an interim declaration, see section 390SG.

(2) When making an interim declaration, the Minister may identify a

commercial fishing activity by reference to all or any of the

following:

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Declaring a commercial fishing activity Division 2

Section 390SD

(a) a method of fishing;

(b) a type of vessel used for fishing;

(c) a method of processing, carrying or transhipping of fish that

have been taken;

(d) an area of waters or of seabed.

Note: Subsection (2) does not, by implication, limit subsection 33(3A) of the

Acts Interpretation Act 1901.

(2A) When making an interim declaration, the Minister may only

specify a commercial fishing activity that had not been engaged in

before 11 September 2012 in a Commonwealth marine area.

(3) The Minister must not make an interim declaration unless the

Minister and the Fisheries Minister agree that:

(a) there is uncertainty about the environmental impacts of the

commercial fishing activity; and

(b) it is appropriate that the commercial fishing activity be

prohibited in a Commonwealth marine area while

consultation occurs under section 390SE about whether to

make a final declaration in relation to the commercial fishing

activity under section 390SF.

When an interim declaration is in force

(4) An interim declaration:

(a) comes into force at the end of the day on which it is

registered in the Federal Register of Legislation; and

(b) remains in force until the earlier of the following times:

(i) the end of the period specified in the declaration as the

period for which the declaration is in force;

(ii) if the declaration is revoked—when the revocation

comes into force.

Specified period for which interim declaration is in force

(5) The Minister must specify in an interim declaration the period for

which it is to be in force. The period must not be longer than 60

days.

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Chapter 5B Declared commercial fishing activities

Part 15B Declared commercial fishing activities

Division 2 Declaring a commercial fishing activity

Section 390SE

390SE Consultation

(1) As soon as is practicable after making an interim declaration under

section 390SD declaring that a specified commercial fishing

activity is a declared commercial fishing activity, the Minister must

publish a notice on the Department’s website in accordance with

subsection (2).

(2) The notice must:

(a) invite each declaration affected person (see subsection (3)) to

make a written submission about the impact on the person’s

rights or interests in relation to fishing if a final declaration

under section 390SF were made in relation to the commercial

fishing activity; and

(b) specify that written submissions must be lodged during the

period specified in the notice; and

(c) specify the manner in which written submissions are to be

lodged.

(3) A declaration affected person, in relation to a commercial fishing

activity, means a person who:

(a) holds a fishing concession or is prescribed by the regulations;

and

(b) considers that the person would be detrimentally affected by

the making of a final declaration under section 390SF in

relation to the commercial fishing activity.

(4) For the purposes of paragraph (2)(b), the period specified in the

notice must be at least 11 business days after the day the notice is

published.

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Declared commercial fishing activities Chapter 5B

Declared commercial fishing activities Part 15B

Declaring a commercial fishing activity Division 2

Section 390SF

Subdivision C—Final declaration

390SF Final declaration

Making a final declaration

(1) The Minister may, by legislative instrument, make a declaration (a

final declaration) that a specified commercial fishing activity is a

declared commercial fishing activity.

Note 1: For variation of a final declaration, see subsection 33(3) of the Acts

Interpretation Act 1901.

Note 2: For revocation of a final declaration, see section 390SG.

(2) The Minister must not make a final declaration unless:

(a) the commercial fishing activity is the same as a commercial

fishing activity that is, or was, specified in an interim

declaration under section 390SD; and

(b) consultation under section 390SE has occurred in relation to

the commercial fishing activity; and

(c) the Minister has considered any written submission that:

(i) was made under section 390SE by a declaration affected

person; and

(ii) was lodged during the period referred to in

paragraph 390SE(2)(b); and

(d) the Minister and the Fisheries Minister agree that there is

uncertainty about the environmental impacts of the

commercial fishing activity; and

(e) the Minister and the Fisheries Minister agree that it is

appropriate that:

(i) an expert panel be established under section 390SH to

conduct an assessment of the commercial fishing

activity and report on the matter; and

(ii) the commercial fishing activity be prohibited in a

Commonwealth marine area while the expert panel

conducts the assessment.

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Chapter 5B Declared commercial fishing activities

Part 15B Declared commercial fishing activities

Division 2 Declaring a commercial fishing activity

Section 390SG

When a final declaration is in force

(3) A final declaration:

(a) comes into force at the end of the day on which it is

registered in the Federal Register of Legislation; and

(b) remains in force until the earliest of the following times:

(i) the end of the day on which the report of the expert

panel is published on the Department’s website under

paragraph 390SL(a);

(ii) the end of the period specified in the declaration as the

period for which the declaration is in force;

(iii) if the declaration is revoked—when the revocation

comes into force.

Specified period for which final declaration is in force

(4) The Minister must specify in a final declaration the period for

which it is to be in force. The period must not be longer than 24

months.

Subdivision D—Revoking declarations

390SG Revoking an interim or final declaration

(1) The Minister may, by legislative instrument, revoke:

(a) an interim declaration under section 390SD; or

(b) a final declaration under section 390SF.

(2) A revocation under subsection (1) comes into force at the end of

the day on which it is registered in the Federal Register of

Legislation.

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Declared commercial fishing activities Chapter 5B

Declared commercial fishing activities Part 15B

Expert panel assessment of declared commercial fishing activity Division 3

Section 390SH

Division 3—Expert panel assessment of declared

commercial fishing activity

390SH Establishment of expert panel

(1) As soon as is practicable after making a final declaration under

section 390SF declaring that a specified commercial fishing

activity is a declared commercial fishing activity, the Minister

must:

(a) appoint, in writing, one or more persons (the members) as an

expert panel to conduct an assessment and report to the

Minister about the commercial fishing activity; and

(b) with the agreement of the Fisheries Minister, specify in

writing (the terms of reference):

(i) the matters relating to the commercial fishing activity

that are to be the subject of the assessment and report;

and

(ii) the date by which the panel must report to the Minister.

Note: The Minister may revoke an appointment: see subsection 33(3) of the

Acts Interpretation Act 1901.

(2) The Minister may specify in the terms of reference the manner in

which the expert panel is to carry out the assessment.

(3) The Minister may, in writing, vary or revoke the terms of reference

with the agreement of the Fisheries Minister.

(4) The Minister must:

(a) publish a copy of the terms of reference on the Department’s

website as soon as is practicable after the Minister specifies

or varies them; and

(b) cause a copy of the terms of reference to be laid before each

House of the Parliament within 15 sitting days of that House

after the day the Minister specifies or varies them.

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Chapter 5B Declared commercial fishing activities

Part 15B Declared commercial fishing activities

Division 3 Expert panel assessment of declared commercial fishing activity

Section 390SI

390SI Terms and conditions

The Minister must determine, in writing, the terms and conditions

applicable to members of the expert panel, including terms and

conditions relating to:

(a) term of office; and

(b) remuneration; and

(c) allowances; and

(d) disclosure of interests.

390SJ Procedure for assessment

(1) The expert panel must comply with the terms of reference in

conducting the assessment.

(2) Subject to subsection (1), the expert panel may determine the

procedure to be followed in its assessment.

390SK Timing of the report

The expert panel must give the Minister the report on the

assessment on the date specified by the Minister in the terms of

reference.

390SL Publication of the report

The Minister must:

(a) publish a copy of the report on the Department’s website

within 20 business days after the day the Minister receives

the report; and

(b) cause a copy of the report to be laid before each House of the

Parliament within 15 sitting days of that House after the day

the Minister receives the report; and

(c) comply with any other publication requirements prescribed

by the regulations.

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Declared commercial fishing activities Chapter 5B

Declared commercial fishing activities Part 15B

Sunsetting of this Part Division 4

Section 390SM

Division 4—Sunsetting of this Part

390SM Sunsetting of this Part

New declarations under this Part may not be made 12 months after

the day the Environment Protection and Biodiversity Conservation

Amendment (Declared Commercial Fishing Activities) Act 2012

commences.

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Chapter 6 Administration

Part 16 Precautionary principle and other considerations in making decisions

Section 391

Chapter 6—Administration

Part 16—Precautionary principle and other

considerations in making decisions

391 Minister must consider precautionary principle in making

decisions

Taking account of precautionary principle

(1) The Minister must take account of the precautionary principle in

making a decision listed in the table in subsection (3), to the extent

he or she can do so consistently with the other provisions of this

Act.

Precautionary principle

(2) The precautionary principle is that lack of full scientific certainty

should not be used as a reason for postponing a measure to prevent

degradation of the environment where there are threats of serious

or irreversible environmental damage.

Decisions in which precautionary principle must be considered

(3) The decisions are:

Decisions in which precautionary principle must be considered

Section

decision is

Item made under Nature of decision

1 75 whether an action is a controlled action

2 133 whether or not to approve the taking of an

action

3 201 whether or not to grant a permit

4 216 whether or not to grant a permit

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Precautionary principle and other considerations in making decisions Part 16

Section 391

Decisions in which precautionary principle must be considered

Section

decision is

Item made under Nature of decision

5 238 whether or not to grant a permit

6 258 whether or not to grant a permit

6A 269AA whether or not to have a recovery plan for a

listed threatened species or a listed threatened

ecological community

7 269A about making a recovery plan or adopting a

plan as a recovery plan

7A 270A whether or not to have a threat abatement plan

for a key threatening process

7B 270B about making a threat abatement plan or

adopting a plan as a threat abatement plan

8 280 about approving a variation of a plan adopted

as a recovery plan or threat abatement plan

9 285 about making a wildlife conservation plan or

adopting a plan as a wildlife conservation plan

10 295 about approving a variation of a plan adopted

as a wildlife conservation plan

10A 303CG whether or not to grant a permit

10AA 303DC whether or not to amend the list of exempt

native specimens

10B 303DG whether or not to grant a permit

10C 303EC about including an item in the list referred to

in section 303EB

10D 303EN whether or not to grant a permit

10E 303FN about declaring an operation to be an

approved wildlife trade operation

10F 303FO about declaring a plan to be an approved

wildlife trade management plan

10G 303FP about declaring a plan to be an accredited

wildlife trade management plan

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Part 16 Precautionary principle and other considerations in making decisions

Section 391

Decisions in which precautionary principle must be considered

Section

decision is

Item made under Nature of decision

10H 303GB whether or not to grant an exceptional

circumstances permit

11 316 about making a plan for managing a property

that is included in the World Heritage List and

is entirely within one or more Commonwealth

areas

11A 324S about making a plan for managing a National

Heritage place

12 328 about making a plan for managing a wetland

that is designated for inclusion in the List of

Wetlands of International Importance kept

under the Ramsar Convention and is entirely

within one or more Commonwealth areas

13 338 about making a plan for managing a Biosphere

reserve entirely within one or more

Commonwealth areas

13A 341T about endorsing a plan for managing a

Commonwealth Heritage place

14 370 about approving a management plan for a

Commonwealth reserve

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Administration Chapter 6

Enforcement Part 17

Wardens, rangers and inspectors Division 1

Section 392

Part 17—Enforcement

Division 1—Wardens, rangers and inspectors

Subdivision A—Wardens and rangers

392 Appointment of wardens and rangers

The Minister may, in writing, appoint:

(a) an officer or employee of the Department; or

(b) a person covered by an arrangement made under section 393;

to be a warden or ranger.

393 Arrangements for certain officers or employees to exercise

powers etc. of wardens or rangers

(1) The Secretary may make arrangements with an Agency Head

(within the meaning of the Public Service Act 1999), or with an

authority of the Commonwealth, for the performance or exercise of

all or any of the functions or powers of wardens and rangers under

this Act or the regulations by officers or employees in that Agency

or authority, as the case may be.

(1A) However, an arrangement under subsection (1) must not provide

for the performance or exercise of functions or powers under this

Act or the regulations in relation to a Commonwealth reserve or

conservation zone.

(2) The Minister may enter into an arrangement with the appropriate

Minister of a State or of the Australian Capital Territory or of the

Northern Territory for:

(a) officers or employees in the Public Service of the State or

Territory, or in an authority of the State or Territory

(including a local government body); or

(b) members of the police force of the State or Territory;

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Division 1 Wardens, rangers and inspectors

Section 394

to perform or exercise all or any of the functions or powers of

wardens or rangers under this Act or the regulations.

(4) The Director may make arrangements with an Agency Head

(within the meaning of the Public Service Act 1999), or with an

authority of the Commonwealth, for the performance or exercise of

all or any of the functions or powers of wardens and rangers under

this Act or the regulations by officers or employees in that Agency

or authority, as the case may be.

394 Wardens ex officio

By force of this section each of the following is a warden:

(a) each member or special member of the Australian Federal

Police;

(b) each officer of Customs.

395 Identity cards

(1) The Minister must issue to each warden (except a member of a

police force or an officer of Customs) and to each ranger, an

identity card, in a form approved by the Minister, containing a

photograph of the person to whom it is issued.

(2) If a person stops being a warden or ranger, the person must

immediately return his or her identity card to the Minister.

(3) A person who contravenes subsection (2) commits an offence

punishable on conviction by a fine not exceeding one penalty unit.

Subdivision B—Inspectors

396 Appointment of inspectors

(1) The Minister may, in writing, appoint a person to be an inspector.

(2) The Minister may make a written determination that a specified

person, or a person included in a specified class of persons, does

not have such of the powers conferred on an inspector by this Act

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Enforcement Part 17

Wardens, rangers and inspectors Division 1

Section 397

as are specified in the determination. The determination has effect

accordingly.

(3) If the Minister makes a determination under subsection (2) about a

named individual, the Minister must give the individual a copy of

the determination.

397 Inspectors ex officio

(1) By force of this section each of the following is an inspector:

(a) each member or special member of the Australian Federal

Police;

(b) each person appointed as an inspector under subsection 43(1)

of the Great Barrier Reef Marine Park Act 1975 (other than

such a person whose appointment relates only to the powers

of an inspector under Part VIIA of that Act);

(c) each officer of Customs.

(2) Paragraph (1)(b) does not apply for the purposes of the application

of this Act to an offence against, or a matter relating to, Part 13A.

(3) By force of this section, for the purposes of the application of this

Act to an offence against, or a matter relating to, Part 13A, each of

the following is an inspector:

(b) each member of the police force of an external Territory;

(c) each biosecurity officer (within the meaning of the

Biosecurity Act 2015).

Note: Part 13A deals with international movement of wildlife specimens.

398 Arrangements for State and Territory officers to be inspectors

(1) The Minister may enter into an arrangement with the appropriate

Minister of a State or of the Australian Capital Territory or of the

Northern Territory for:

(a) officers or employees of the Public Service of the State or

Territory, or of an authority of the State or Territory

(including a local government body); or

(b) members of the police force of the State or Territory;

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Part 17 Enforcement

Division 1 Wardens, rangers and inspectors

Section 399

to be inspectors, and that arrangement has effect accordingly.

(3) The Minister may make a written determination that a specified

person, or a person included in a specified class of persons, who is

an inspector because of this section does not have such of the

powers conferred on an inspector by this Act as are specified in the

determination. The determination has effect accordingly.

(4) If the Minister makes a determination under subsection (3) about a

named individual, the Minister must give the individual a copy of

the determination.

399 Identity cards

(1) The Minister must issue to an inspector an identity card in a form

approved by the Minister, containing a photograph of the person to

whom it is issued.

(1A) Subsection (1) does not apply in relation to an inspector who is:

(a) a member of a police force; or

(b) an inspector by force of paragraph 397(1)(b); or

(c) an officer of Customs.

(2) If a person stops being an inspector, the person must immediately

return his or her identity card to the Minister.

(3) A person who contravenes subsection (2) commits an offence

punishable on conviction by a fine not exceeding one penalty unit.

(4) For the purposes of this Act, a requirement for a person who is an

inspector by force of paragraph 397(1)(b) to produce his or her

identity card is satisfied if the person shows his or her identity card

issued under section 45 of the Great Barrier Reef Marine Park Act

1975.

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Wardens, rangers and inspectors Division 1

Section 399A

Subdivision BA—Exercise of powers of authorised officers

outside the territorial sea

399A Powers to be exercised consistently with UNCLOS

(1) This section applies in relation to the powers of an authorised

officer under this Part (including powers an authorised officer has

under or because of a search warrant or a monitoring warrant), to

the extent that the powers are otherwise permitted to be exercised:

(a) outside the territorial sea; and

(b) in relation to a person, aircraft or vessel, other than a person

aircraft or vessel of a kind referred to in any of paragraphs

5(3)(a) to (h).

(2) The powers of an authorised officer, to the extent to which this

section applies to them, must be exercised consistently with

Australia’s rights and obligations under:

(a) UNCLOS; and

(b) any other international agreements specified in regulations

made for the purposes of this section.

(3) In this section:

UNCLOS means the United Nations Convention on the Law of the

Sea, done at Montego Bay on 10 December 1982.

Note: The text of the Convention is set out in Australian Treaty Series 1994

No. 31. In 2006, the text of a Convention in the Australian Treaty

Series was accessible through the Australian Treaties Library on the

AustLII website (www.austlii.edu.au).

Subdivision BB—Exercise of powers of authorised officers in

relation to Great Barrier Reef Marine Park

399B Certain powers to be exercised only by certain authorised

officers

(1) The powers of an authorised officer in relation to:

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(a) an offence against an environmental law that is the Great

Barrier Reef Marine Park Act 1975 or regulations made

under that Act; or

(b) an environmental penalty provision that is a civil penalty

provision of that Act; or

(c) a thing that may be done for the purposes of that Act;

may only be exercised by an authorised officer who is an inspector

by force of paragraph 397(1)(a) or (b).

(2) To avoid doubt, an authorised officer who is an inspector by force

of paragraph 397(1)(a) or (b) and also by force of

paragraph 397(1)(c) is an authorised officer who may exercise the

powers referred to in subsection (1).

Subdivision C—Miscellaneous

400 Regulations may give wardens, rangers and inspectors extra

powers, functions and duties

The regulations may provide for functions and powers to be

conferred, and duties to be imposed, on wardens, rangers and

inspectors.

401 Impersonating authorised officers and rangers

(1) A person commits an offence if:

(a) the person:

(i) impersonates an authorised officer or a ranger on an

occasion; and

(ii) does so knowing it to be an occasion when the officer or

ranger would be on duty and doing an act or attending a

place; or

(b) the person:

(i) falsely represents himself or herself to be an authorised

officer or a ranger; and

(ii) does an act or attends a place in the assumed character

of that officer or ranger; or

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Section 402

(c) the person:

(i) impersonates an authorised officer or a ranger or falsely

represents himself or herself to be an authorised officer

or a ranger; and

(ii) does so with the intention of obtaining a gain, causing a

loss or influencing the exercise of a public duty.

(2) Subsection (1) does not apply to an authorised officer or a ranger.

(3) An authorised officer or a ranger commits an offence if:

(a) the officer or ranger:

(i) impersonates another authorised officer or ranger on an

occasion; and

(ii) does so knowing it to be an occasion when the other

officer or ranger would be on duty and doing an act or

attending a place; or

(b) the officer or ranger:

(i) falsely represents himself or herself to be another

authorised officer or a ranger; and

(ii) does an act or attends a place in the assumed character

of the other officer or ranger; or

(c) the officer or ranger:

(i) impersonates another authorised officer or a ranger or

falsely represents himself or herself to be another

authorised officer or a ranger; and

(ii) does so with the intention of obtaining a gain, causing a

loss or influencing the exercise of a public duty.

(4) An offence against this section is punishable, on conviction, by

imprisonment for not more than 2 years or a fine not exceeding 120

penalty units, or both.

402 Offences against authorised officers and rangers

(1) A person commits an offence if the person:

(a) uses or threatens violence against another person; and

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(b) does so knowing that the other person is an authorised officer

or a ranger; and

(c) does so because of that other person’s status as an authorised

officer or ranger.

(2) An offence against subsection (1) is punishable, on conviction, by

imprisonment for not more than 7 years or a fine not exceeding 420

penalty units, or both.

(3) A person commits an offence if the person:

(a) obstructs, intimidates, resists or hinders another person who

is an authorised officer or a ranger exercising or performing

his or her powers, duties or functions; and

(b) does so knowing that the other person is an authorised officer

or ranger.

(4) An offence against subsection (3) is punishable, on conviction, by

imprisonment for not more than 2 years or a fine not exceeding 120

penalty units, or both.

(5) It is immaterial whether the defendant was aware that the

authorised officer or ranger was engaged in the exercise or

performance, or attempted exercise or performance of a power,

duty or function of such officer or ranger.

(6) It is a defence in proceedings for an offence against subsection (3),

if at the time of the conduct constituting the offence, the authorised

officer or ranger was abusing his or her power.

(7) This section does not limit the power of a court to punish a

contempt of that court.

(8) Subsections (1) and (3) are not intended to exclude or limit the

concurrent operation of any law of the Australian Capital Territory

in a case where the other person referred to in that subsection is a

member or special member of the Australian Federal Police.

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Boarding of vessels etc. and access to premises Division 2

Section 403

Division 2—Boarding of vessels etc. and access to premises

403 Boarding of vessels etc. by authorised officers

(1) This section applies to:

(a) any Australian vessel or Australian aircraft, whether or not it

is in the Australian jurisdiction; or

(b) any other vessel or aircraft, or any vehicle or platform, that is

in the Australian jurisdiction.

(2) If an authorised officer suspects on reasonable grounds that there is

in, or on, a vehicle, vessel, aircraft or platform to which this section

applies any evidential material in relation to an offence against an

environmental law, in relation to a contravention of an

environmental penalty provision or in relation to both, the

authorised officer may, with such assistance as he or she thinks

necessary:

(a) board the vehicle, vessel, aircraft or platform at any

reasonable time for the purpose of exercising, and may

exercise, the powers of an authorised officer under

section 406; and

(b) in the case of a vehicle, vessel or aircraft—stop and detain

the vehicle, vessel or aircraft for that purpose.

(2A) An authorised officer who boards a vehicle, vessel, aircraft or

platform under paragraph (2)(a) may require a person on the

vehicle, vessel, aircraft or platform to:

(a) answer a question asked by the authorised officer; or

(b) give the authorised officer information requested by the

authorised officer; or

(c) produce to the authorised officer records or documents kept

on the vehicle, vessel, aircraft or platform.

(3) If an authorised officer or the person in command of a

Commonwealth ship or of a Commonwealth aircraft suspects on

reasonable grounds that a vessel to which this section applies has

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Division 2 Boarding of vessels etc. and access to premises

Section 403

been used or otherwise involved in the commission of an offence

against an environmental law, he or she may:

(a) bring the vessel to the nearest port in Australia or an external

Territory to which it is safe and practicable to bring the

vessel; or

(b) by means of an international signal code or other

internationally recognised means of communication with a

vessel, require the person in charge of the vessel to bring the

vessel to that port.

(4) An authorised officer, or the person in command of a

Commonwealth ship or of a Commonwealth aircraft, may require

the person in charge of an aircraft to which this section applies to

bring the aircraft to the nearest airport in Australia or an external

Territory to which it is safe and practicable to bring the aircraft if:

(a) the authorised officer, or the person in command of the

Commonwealth ship or Commonwealth aircraft, suspects on

reasonable grounds that the aircraft has been used or

otherwise involved in the commission of an offence against

an environmental law; and

(b) the requirement is made by means of an international signal

code or other internationally recognised means of

communication with an aircraft.

(5) An authorised officer may, for the purposes of this Act or the

Great Barrier Reef Marine Park Act 1975 (other than Part VIIA of

that Act (compulsory pilotage)), require the person in charge of a

vehicle, vessel, aircraft or platform to which this section applies to

give information concerning any or all of the following:

(a) the vehicle, vessel, aircraft or platform;

(b) the crew or any other person on board the vehicle, vessel,

aircraft or platform;

(c) in the case of a vessel—any dory being operated in

association with the vessel;

(d) in the case of a vessel—any person operating a dory in

association with the vessel.

(5A) A person commits an offence if:

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(a) a requirement is made of the person under this section; and

(b) the person fails to comply with the requirement.

Penalty:

(a) if the requirement is made under subsection (2A)—

imprisonment for 6 months or 30 penalty units, or both; or

(b) if the requirement is made under subsection (3), (4) or (5)—

50 penalty units.

(5B) If there is a restraint on the liberty of a person on a vessel resulting

from an authorised officer’s exercise of a power under this section

in relation to the vessel:

(a) the restraint is not unlawful; and

(b) civil or criminal proceedings in respect of the restraint may

not be instituted or continued in any court against:

(i) the authorised officer; or

(ii) any person assisting the authorised officer in the

exercise of the power; or

(iii) the Commonwealth.

This subsection is not intended to affect the jurisdiction of the High

Court under section 75 of the Constitution.

(5C) A reference in this section to an offence against an environmental

law does not include an offence against Part VIIA of the Great

Barrier Reef Marine Park Act 1975 (compulsory pilotage).

(6) In this Act:

Commonwealth aircraft means an aircraft in the service of the

Commonwealth on which the prescribed ensign or prescribed

insignia of the aircraft is displayed.

Commonwealth ship means a ship in the service of the

Commonwealth on which the prescribed ensign of the ship is

flying.

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Section 404

404 Authorised officers to produce identification

(1) If an authorised officer (subject to subsection (1A)) boards a

vehicle, vessel, aircraft or platform under section 403, the

authorised officer must:

(a) in the case of a member of a police force—produce, for

inspection by the person in charge of that vehicle, vessel,

aircraft or platform, written evidence of the fact that he or she

is a member of that police force; or

(aa) in the case of an officer of Customs—produce, for inspection

by the person in charge of that vehicle, vessel, aircraft or

platform, written evidence of the fact that he or she is an

officer of Customs; or

(b) in any other case—produce his or her identity card for

inspection by that person.

(1A) Subsection (1) does not apply to an authorised officer if:

(a) the authorised officer is a member of a police force or an

officer of Customs; and

(b) the officer is in uniform.

(2) An authorised officer who does not comply with subsection (1) is

not authorised to remain, or to require any person assisting the

authorised officer to remain, on board the vehicle, vessel, aircraft

or platform, or to detain the vehicle, vessel or aircraft.

(3) If an authorised officer (subject to subsection (3A)) makes a

requirement of a person under section 403 the authorised officer,

unless it is impracticable to do so, must:

(a) in the case of a member of a police force—produce, for

inspection by that person, written evidence of the fact that he

or she is a member of that police force; or

(aa) in the case of an officer of Customs—produce, for inspection

by that person, written evidence of the fact that he or she is

an officer of Customs; or

(b) in any other case—produce his or her identity card for

inspection by that person;

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and, if the authorised officer fails to do so, that person is not

obliged to comply with the requirement.

(3A) Subsection (3) does not apply to an authorised officer if:

(a) the authorised officer is a member of a police force or an

officer of Customs; and

(b) the officer is in uniform.

405 Access to premises

(1) An authorised officer may, with the consent of the occupier of any

premises, enter the premises for the purpose of exercising the

powers of an authorised officer under section 406.

(2) If an authorised officer enters any premises under subsection (1),

he or she may exercise the powers of an authorised officer under

section 406.

(3) An authorised officer who enters premises under subsection (1)

must, if the occupier of the premises revokes his or her consent,

leave the premises forthwith, and is not entitled to exercise, or

continue to exercise, the powers of an authorised officer under

section 406 in relation to the premises.

(4) An authorised officer is not entitled to:

(a) enter premises under subsection (1); or

(b) exercise any powers as mentioned in subsection (2);

if the occupier of the premises has required the officer to produce

written identification for inspection by the occupier and:

(c) if the authorised officer is a member of a police force—the

officer fails to produce, for inspection by the occupier,

written evidence of the fact that he or she is a member of that

police force; or

(d) if the authorised officer is an officer of Customs—the officer

fails to produce, for inspection by the occupier, written

evidence of the fact that he or she is an officer of Customs; or

(e) in any other case—the officer fails to produce his or her

identity card for inspection by the occupier.

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406 Powers of authorised officers

(1) An authorised officer who boards a vehicle, vessel, aircraft or

platform under section 403, or enters premises under

section 405 may:

(a) inspect and search the vehicle, vessel, aircraft, platform or

premises, as the case may be; and

(aa) take photographs (including a video recording), and make

sketches, of the premises or of any substance or thing on the

vehicle, vessel, aircraft, platform or premises; and

(b) inspect, take extracts from, and make copies of, any

document that is, or that the authorised officer suspects on

reasonable grounds is, evidential material in relation to an

offence against an environmental law, in relation to a

contravention of an environmental penalty provision or in

relation to both; and

(ba) in the case of an authorised officer who boards a vessel under

section 403—subject to section 406A, search without

warrant:

(i) a person on the vessel; and

(ii) the person’s clothing;

to find out whether there is hidden on the person or in the

clothing:

(iii) an eligible seizable item; or

(iv) a thing that may be evidential material in relation to an

offence against an environmental law, in relation to a

contravention of an environmental penalty provision or

in relation to both; and

(c) inspect, and take samples of, any other evidential material in

relation to an offence against an environmental law, in

relation to a contravention of an environmental penalty

provision or in relation to both; and

(ca) take measurements of, and conduct tests on, the vehicle,

vessel, aircraft, platform or premises or any substance or

thing on the vehicle, vessel, aircraft, platform or premises;

and

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(d) exercise powers of seizure conferred on the authorised officer

by section 444A or 445; and

(e) take onto the vehicle, vessel, aircraft, platform or premises

any equipment or material reasonably necessary for the

purpose of exercising a power referred to in any of the other

paragraphs of this subsection.

(2) For the purposes of this Part, evidential material means:

(a) in relation to an offence against an environmental law:

(i) any thing with respect to which the offence has been

committed or is suspected, on reasonable grounds, of

having been committed; or

(ii) any thing as to which there are reasonable grounds for

suspecting that it will afford evidence as to the

commission of the offence; or

(iii) any thing as to which there are reasonable grounds for

suspecting that it is intended to be used for the purpose

of committing the offence; and

(b) in relation to a contravention of an environmental penalty

provision:

(i) any thing with respect to which the environmental

penalty provision has been contravened or is suspected,

on reasonable grounds, of having been contravened; or

(ii) any thing as to which there are reasonable grounds for

suspecting that it will afford evidence as to the

contravention of the environmental penalty provision; or

(iii) any thing as to which there are reasonable grounds for

suspecting that it is intended to be used for the purpose

of contravening the environmental penalty provision.

(2A) A reference to a thing in subsection (2) includes a reference to any

such thing in electronic form.

(3) For the purposes of exercising a power under subsection (1), an

authorised officer may break open any hold or compartment, or

any container or other receptacle (including any place that could be

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used as a receptacle), on a vehicle, vessel, aircraft or platform or on

any premises.

406A Searches under paragraph 406(1)(ba)

(1) A search under paragraph 406(1)(ba) of a person (the subject) may

only be conducted by an authorised officer of the same sex as the

subject.

(2) However, if an authorised officer of the same sex as the subject is

not available to conduct the search, it may be conducted by another

person who:

(a) is of the same sex as the subject; and

(b) agrees, at the request of an authorised officer, to conduct the

search.

(3) Paragraph 406(1)(ba) and this section do not authorise the

authorised officer or other person:

(a) to remove any of the subject’s clothing; or

(b) to require the subject to remove any of his or her clothing; or

(c) to use more force, or subject the subject to greater indignity,

than is reasonably necessary to conduct the search.

406AA Taking things into possession

(1) This section applies if, in conducting a search referred to in

paragraph 406(1)(a) or (ba), an authorised officer or a person who

conducts a search because of subsection 406A(2) finds:

(a) an eligible seizable item; or

(b) a thing that may be evidential material in relation to an

offence against an environmental law, in relation to a

contravention of an environmental penalty provision or in

relation to both.

(2) An authorised officer may:

(a) take possession of the item or thing; and

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(b) keep the item or thing for so long as he or she thinks

necessary for the purposes of this Act or the Great Barrier

Reef Marine Park Act 1975.

(3) A person who conducts a search because of subsection 406A(2)

must take possession of the item or thing and give it to an

authorised officer.

(4) An authorised officer who is given an item or thing under

subsection (3) may keep it for so long as he or she thinks necessary

for the purposes of this Act or the Great Barrier Reef Marine Park

Act 1975.

(5) If:

(a) an authorised officer is keeping an item or thing under

subsection (2) or (4); and

(b) the item or thing was found in conducting a search of a

person under paragraph 406(1)(ba); and

(c) the person is detained under Schedule 1;

the authorised officer may continue to keep the item or thing for so

long as he or she thinks necessary for the purposes of this Act, the

Great Barrier Reef Marine Park Act 1975 or the Migration Act

1958.

Note: Once the person ceases to be detained under Schedule 1, the person

will generally need to be detained under the Migration Act 1958 while

he or she is in the migration zone (because his or her enforcement visa

under that Act will cease to have effect). Subsection (5) ensures the

officer can keep the item or thing while the person is detained under

this Act or that Act.

406B Thing taken into possession is not a thing seized

A reference in this Act to a thing (however described) seized under

this Part or this Act does not include a reference to a thing that has

been taken into possession under section 406AA or Schedule 1.

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Division 3—Monitoring of compliance

407 Monitoring powers

(1) For the purposes of this Division, each of the following powers is a

monitoring power in relation to particular premises:

(a) the power to inspect and search the premises;

(b) the power to take photographs (including a video recording),

or to make sketches, of the premises or of any substance or

thing at the premises;

(c) the power to inspect, examine and take samples of, any

substance or thing on or in the premises;

(ca) the power to take measurements of, and conduct tests on, the

premises or any substance or thing on the premises;

(cb) the power to mark a live specimen on the premises (see

subsection (2));

(d) the power to take extracts from, or make copies of, any

document, book or record on the premises;

(da) the powers to operate electronic equipment, and do other

things, at the premises as mentioned in section 407A;

(e) the power to take onto the premises any equipment or

material reasonably necessary for the purpose of exercising a

power referred to in any other paragraph of this subsection.

(2) For the purposes of paragraph (1)(cb), mark includes:

(a) in the case of a live plant:

(i) mark or label a cage or container in which the plant is

kept or in which the plant is growing; and

(ii) place a label or tag on the plant; and

(b) in the case of a live animal:

(i) implant a scannable device in the animal; and

(ii) place a band on any part of the animal; and

(iii) place (whether by piercing or otherwise) a tag or ring on

any part of the animal; and

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(iv) mark or label a cage or container within which the

animal is kept.

(3) If:

(a) damage is caused to a specimen, or a cage or container in

which a specimen is kept, as a result of an authorised officer

exercising the power to mark under paragraph (1)(cb); and

(b) the damage was caused as a result of insufficient care being

exercised by the authorised officer;

compensation for the damage is payable to the owner of the

specimen, or to the owner of the cage or container, as the case

requires.

(4) Compensation is payable out of money appropriated by the

Parliament for the purpose.

(5) In determining the amount of compensation payable, regard is to

be had to whether the owner, if the owner was available at the

time, had provided any warning or guidance relating to the

marking of the specimen, cage or container.

407A Operation of electronic equipment at premises

Monitoring powers include the powers set out in this section

(1) Monitoring powers in relation to premises include the powers set

out in this section. This section does not authorise these powers to

be exercised otherwise than in situations in which this

Division allows monitoring powers to be exercised.

Operation of equipment

(2) An authorised officer may operate electronic equipment at

premises to see whether relevant material is accessible by doing so,

if he or she believes on reasonable grounds that the operation of the

equipment can be carried out without damage to the equipment.

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Seizure etc.

(3) If an authorised officer operates electronic equipment at premises

under subsection (2), and the authorised officer finds that relevant

material is accessible by doing so, he or she may:

(a) seize the equipment and any disk, tape or other associated

device; or

(b) if the relevant material can, by using facilities at the

premises, be put in documentary form—operate the facilities

to put the material in that form and seize the documents so

produced; or

(c) if the relevant material can be transferred to a disk, tape or

other storage device that:

(i) is brought to the premises; or

(ii) is at the premises and the use of which for the purpose

has been agreed to in writing by the occupier of the

premises;

operate the equipment or other facilities to copy the material

to the storage device and take the storage device from the

premises.

Limitation on seizure

(4) An authorised officer may seize equipment under paragraph (3)(a)

only if:

(a) it is not practicable to put the relevant material in

documentary form as mentioned in paragraph (3)(b) or to

copy the material as mentioned in paragraph (3)(c); or

(b) possession of the equipment by the occupier could constitute

an offence.

How this Part applies to things seized

(5) The other provisions of this Part apply in relation to a thing seized

under paragraph (3)(a) or (b) as if the thing had been seized under

section 445.

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Securing equipment

(6) If an authorised officer believes on reasonable grounds that:

(a) relevant material may be accessible by operating electronic

equipment at the premises; and

(b) expert assistance is required to operate the equipment; and

(c) if he or she does not take action under this subsection, the

material may be destroyed, altered or otherwise interfered

with;

he or she may do whatever is necessary to secure the equipment,

whether by locking it up, placing a guard or otherwise.

Notice about securing equipment

(7) An authorised officer who wishes to secure electronic equipment

under subsection (6) must give notice to the occupier of the

premises of:

(a) his or her intention to secure the equipment; and

(b) the fact that the equipment may be secured for up to 24

hours.

Period for which equipment may be secured

(8) Electronic equipment may be secured under subsection (6):

(a) for a period not exceeding 24 hours; or

(b) until the equipment has been operated by the expert;

whichever happens first.

Extension of period

(9) If an authorised officer believes on reasonable grounds that expert

assistance will not be available within 24 hours, the authorised

officer may apply to a magistrate for an extension of that period.

Notice to occupier

(10) An authorised officer must give notice to the occupier of the

premises of his or her intention to apply for an extension under

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subsection (9), and the occupier is entitled to be heard in relation to

the application.

Provisions relating to extensions

(11) The provisions of this Division relating to the issue of a monitoring

warrant apply, with such modifications as are necessary, to the

issuing of an extension.

Definition

(12) In this section:

relevant material means:

(a) evidential material; or

(b) any other material that is relevant for the purposes of finding

out whether any or all of the provisions of an environmental

law have been, are being or will be complied with.

407B Compensation for damage to electronic equipment

(1) If:

(a) damage is caused to electronic equipment as a result of it

being operated as mentioned in section 407A; and

(b) the damage was caused as a result of:

(i) insufficient care being exercised in selecting the person

who was to operate the equipment; or

(ii) insufficient care being exercised by the person operating

the equipment;

compensation for the damage is payable to the owner of the

equipment.

(2) Compensation is payable out of money appropriated by the

Parliament for the purpose.

(3) In determining the amount of compensation payable, regard is to

be had to whether the occupier of the premises and his or her

employees and agents, if they were available at the time, had

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provided any warning or guidance as to the operation of the

equipment that was appropriate in the circumstances.

408 Monitoring searches with occupier’s consent

Entry by consent

(1) An authorised officer may, with the consent of the occupier of any

premises, enter the premises for the purpose of finding out whether

any or all of the provisions of an environmental law have been, are

being or will be complied with.

Entry for monitoring purposes

(2) An authorised officer may only enter premises under subsection (1)

to the extent that it is reasonably necessary for the purpose of

finding out whether any or all of the provisions of an

environmental law have been, are being or will be complied with.

Exercise of monitoring powers

(3) If an authorised officer enters premises under subsection (1), the

authorised officer may exercise monitoring powers in relation to

those premises.

Exercise of seizure powers

(4) If an authorised officer enters premises under subsection (1), the

authorised officer may exercise powers of seizure conferred by

section 444A or 445.

Right to refuse to give consent

(5) Before obtaining the consent of a person for the purposes of this

section, an authorised officer must tell the person that the person

may refuse to give consent.

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Consent must be voluntary

(6) An entry by an authorised officer in consequence of the consent of

a person is not lawful unless the person voluntarily consented to

the entry.

Production of identity card etc.

(7) An authorised officer is not entitled to:

(a) enter premises under subsection (1); or

(b) exercise any powers referred to in subsection (3) or (4) in

relation to premises;

if the occupier of the premises has required the officer to produce

written identification for inspection by the occupier and:

(c) if the authorised officer is a member of a police force—the

officer fails to produce, for inspection by the occupier,

written evidence of the fact that he or she is a member of that

police force; or

(ca) if the authorised officer is an officer of Customs—the officer

fails to produce, for inspection by the occupier, written

evidence of the fact that he or she is an officer of Customs; or

(d) in any other case—the officer fails to produce his or her

identity card for inspection by the occupier.

Extension to vehicles, vessels and aircraft

(8) Subsections (1), (2), (3), (4), (5), (6) and (7) apply in relation to:

(a) a vehicle, vessel or aircraft in the same way as they apply in

relation to premises; and

(b) a person apparently in charge of a vehicle, vessel or aircraft

in the same way as they apply in relation to the occupier of

premises.

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409 Monitoring warrants

Application for monitoring warrant

(1) An authorised officer may apply to a magistrate for a warrant

under this section in relation to particular premises. The warrant is

to be known as a monitoring warrant.

Note: Urgent applications may be made by telephone or other electronic

means under section 409A.

Issue of monitoring warrant

(2) Subject to subsection (3), the magistrate may issue the monitoring

warrant if satisfied, by information on oath or affirmation, that it is

reasonably necessary that the authorised officer should have access

to the premises for the purpose of finding out whether any or all of

the provisions of an environmental law have been, are being or will

be complied with.

Information about grounds for issue of monitoring warrant

(3) The magistrate must not issue the monitoring warrant unless the

authorised officer or another person has given the magistrate, either

orally (on oath or affirmation) or by affidavit, such further

information as the magistrate requires about the grounds on which

the issue of the monitoring warrant is being sought.

Terms of warrant

(4) The monitoring warrant must:

(a) name an authorised officer who, unless he or she inserts the

name of another authorised officer in the warrant, is to be

responsible for executing the warrant; and

(aa) authorise the executing officer, with such assistance and by

such force as is necessary and reasonable, from time to time

while the monitoring warrant remains in force:

(i) to enter the premises; and

(ii) to exercise monitoring powers in relation to the

premises; and

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(b) state whether an entry under the monitoring warrant is

authorised to be made at any time of the day or night or

during specified hours of the day or night; and

(c) specify the day (not more than 6 months after the issue of the

monitoring warrant) on which the monitoring warrant ceases

to have effect; and

(d) state the purpose for which the monitoring warrant is issued.

Seizure powers

(5) If an authorised officer enters premises under a monitoring

warrant, he or she may exercise powers of seizure conferred by

section 444A or 445.

409A Monitoring warrants by telephone or other electronic means

Application

(1) An authorised officer may make an application to a magistrate for

a monitoring warrant by telephone, telex, fax or other electronic

means:

(a) in an urgent case; or

(b) if the delay that would occur if an application were made in

person would frustrate the effective execution of the

monitoring warrant.

Voice communication

(2) The magistrate:

(a) may require communication by voice to the extent that is

practicable in the circumstances; and

(b) may make a recording of the whole or any part of any such

communication by voice.

Information

(3) An application under this section must include all information as

required to be provided in an application under section 409, but the

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application may, if necessary, be made before the information is

sworn or affirmed.

Issue of monitoring warrant

(4) If an application is made to a magistrate under this section and the

magistrate, after considering the information and having received

and considered such further information (if any) as the magistrate

required, is satisfied that:

(a) a monitoring warrant in the terms of the application should

be issued urgently; or

(b) the delay that would occur if an application were made in

person would frustrate the effective execution of the

monitoring warrant;

the magistrate may complete and sign the same form of monitoring

warrant that would be issued under section 409.

Notification

(5) If the magistrate decides to issue the monitoring warrant, the

magistrate must inform the applicant, by telephone, telex, fax or

other electronic means, of the terms of the monitoring warrant and

the day on which and the time at which it was signed.

Form of monitoring warrant

(6) The applicant must then complete a form of monitoring warrant in

terms substantially corresponding to those given by the magistrate,

stating on the form the name of the magistrate and the day on

which and the time at which the monitoring warrant was signed.

Completed form of monitoring warrant to be given to magistrate

(7) The applicant must, not later than 48 hours after making the

application, give or transmit to the magistrate:

(a) the form of monitoring warrant completed by the applicant;

and

(b) if the information referred to in subsection (3) was not sworn

or affirmed—that information duly sworn or affirmed.

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Section 409B

Attachment of form of warrant to subsection (7) documents

(8) The magistrate must attach to the documents provided under

subsection (7) the form of monitoring warrant completed by the

magistrate.

Presumption if form of warrant not produced in evidence

(9) If:

(a) it is material, in any proceeding, for a court to be satisfied

that the exercise of a power under a monitoring warrant

issued under this section was duly authorised; and

(b) the form of monitoring warrant signed by the magistrate is

not produced in evidence;

the court is to assume, unless the contrary is proved, that the

exercise of the power was not duly authorised.

Court may admit evidence even if subsection (7) or (8) not

complied with

(10) A court may admit evidence obtained because of the issue of a

warrant pursuant to this section even if either or both of

subsections (7) and (8) have not been complied with if, having

regard to the nature of and reasons for the non-compliance and any

other relevant matters, the court is satisfied that it was not

practicable to comply with that subsection or those subsections (as

the case requires).

409B Executing officer to be in possession of warrant

When executing a warrant, the executing officer must be in

possession of:

(a) the original warrant issued by the magistrate under

section 409, or a copy of the original warrant as so issued; or

(b) the original form of warrant completed under

subsection 409A(6), or a copy of the original form as so

completed.

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410 Details of monitoring warrant to be given to occupier etc.

(1) If a monitoring warrant in relation to premises is being executed

and the occupier of the premises, or another person who apparently

represents the occupier, is present at the premises, the executing

officer must make available to that person a copy of the monitoring

warrant.

(2) The executing officer must identify himself or herself to that

person at the premises.

(3) The copy of the monitoring warrant referred to in subsection (1)

need not include the signature of the magistrate or the seal of the

relevant court.

411 Occupier entitled to be present during search

(1) If a monitoring warrant in relation to premises is being executed

and the occupier of the premises, or another person who apparently

represents the occupier, is present at the premises, the person is,

subject to Part IC of the Crimes Act 1914, entitled to observe the

search being conducted.

(2) The right to observe the search being conducted ceases if the

person impedes the search.

(3) This section does not prevent 2 or more areas of the premises being

searched at the same time.

412 Announcement before entry

(1) Before any person enters premises under a monitoring warrant, the

executing officer must:

(a) announce that he or she is authorised to enter the premises;

and

(b) give any person at the premises an opportunity to allow entry

to the premises.

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(2) The executing officer is not required to comply with subsection (1)

if he or she believes on reasonable grounds that immediate entry to

the premises is required to ensure:

(a) the safety of a person (including an authorised officer); or

(b) that the effective execution of the monitoring warrant is not

frustrated.

412A Other powers when on premises under monitoring warrant

(1) If the executing officer enters premises under a monitoring

warrant, he or she may require a person on the premises to:

(a) answer a question asked by the executing officer; or

(b) give the executing officer information requested by the

executing officer; or

(c) produce to the executing officer records or documents kept

on the premises.

(2) A person commits an offence if:

(a) the executing officer has entered premises under a

monitoring warrant; and

(b) the person is on the premises; and

(c) the executing officer requires the person to:

(i) answer a question asked by the executing officer; or

(ii) give the executing officer information requested by the

executing officer; or

(iii) produce to the executing officer records or documents

kept on the premises; and

(d) the person contravenes the requirement.

(3) The offence is punishable on conviction by imprisonment for a

term not more than 6 months, a fine of not more than 30 penalty

units, or both.

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Section 413

Division 4—Search warrants

413 When search warrants can be issued

(1) A magistrate may issue a warrant authorising an authorised officer

to search premises if the magistrate is satisfied, by information on

oath or affirmation, that there are reasonable grounds for

suspecting that there is, or there will be within the next 72 hours, at

the premises evidential material in relation to an offence against an

environmental law, in relation to a contravention of an

environmental penalty provision or in relation to both.

(2) A magistrate may issue a warrant authorising an authorised officer

to carry out an ordinary search or a frisk search of a person if the

magistrate is satisfied, by information on oath or affirmation, that

there are reasonable grounds for suspecting that the person has in

his or her possession, or will within the next 72 hours have in his

or her possession, any evidential material in relation to an offence

against an environmental law, in relation to a contravention of an

environmental penalty provision or in relation to both.

(3) For the purposes of this Act, frisk search means:

(a) a search of a person conducted by quickly running the hands

over the person’s outer garments; and

(b) an examination of anything worn or carried by the person

that is conveniently and voluntarily removed by the person.

(4) If the authorised officer applying for the warrant suspects that, in

executing the warrant, it will be necessary to use firearms, the

authorised officer must state that suspicion, and the grounds for

that suspicion, in the information.

(5) If the application for the warrant is made under section 416, this

section applies as if subsections (1) and (2) referred to 48 hours

rather than 72 hours.

(6) If the applicant for a warrant is a member or special member of the

Australian Federal Police and has, at any time previously, applied

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for a warrant relating to the same person or premises, the person

must state particulars of those applications and their outcome in the

information.

414 Statements in warrants

(1) If a magistrate issues a warrant under section 413, the magistrate is

to state in the warrant:

(a) each offence and/or environmental penalty provision to

which the warrant relates; and

(b) a description of the premises to which the warrant relates or

the name or description of a person to whom it relates; and

(c) the kinds of evidential material that are to be searched for

under the warrant; and

(d) the name of the authorised officer who, unless he or she

inserts the name of another authorised officer in the warrant,

is to be responsible for executing the warrant; and

(e) the period for which the warrant remains in force, which

must not be more than 7 days; and

(f) if the warrant relates to premises—whether the premises may

be entered at any time of the day or night or only during

particular hours of the day or night; and

(g) if the warrant relates to a person—whether the search of the

person may be carried out at any time of the day or night or

only during particular hours of the day or night.

(2) The magistrate is also to state, in a warrant in relation to premises:

(a) that the warrant authorises the seizure of a thing (other than

evidential material of the kind referred to in paragraph (1)(c))

found at the premises in the course of the search that the

executing officer or an officer assisting believes on

reasonable grounds to be:

(i) evidential material in relation to an offence, or in

relation to a contravention of an environmental penalty

provision, to which the warrant relates; or

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(ii) evidential material in relation to another offence against

an environmental law, where the other offence is an

indictable offence; or

(iii) evidential material in relation to another contravention

of an environmental penalty provision;

if the executing officer or an officer assisting believes on

reasonable grounds that seizure of the thing is necessary to

prevent its concealment, loss or destruction or its use in

committing an offence against an environmental law or in

contravening an environmental penalty provision; and

(b) whether the warrant authorises an ordinary search or a frisk

search of a person who is at or near the premises when the

warrant is executed if the executing officer or an officer

assisting suspects on reasonable grounds that the person has

in his or her possession:

(i) any evidential material in relation to an offence against

an environmental law, in relation to a contravention of

an environmental penalty provision or in relation to

both; or

(ii) any eligible seizable items.

(3) For the purposes of this Act, ordinary search means a search of a

person or of articles in the possession of a person that may include:

(a) requiring the person to remove his or her overcoat, coat or

jacket and any gloves, shoes and hat; and

(b) an examination of those items.

(4) The magistrate is also to state, in a warrant in relation to a person:

(a) that the warrant authorises the seizure of a thing (other than

evidential material of the kind referred to in paragraph (1)(c))

found, in the course of the search, on or in the possession of

the person or in an aircraft, vehicle or vessel that the person

had operated or occupied at any time within 24 hours before

the search began, being a thing that the executing officer or

an officer assisting believes on reasonable grounds to be:

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(i) evidential material in relation to an offence, or in

relation to a contravention of an environmental penalty

provision, to which the warrant relates; or

(ii) evidential material in relation to another offence against

an environmental law, where the other offence is an

indictable offence; or

(iii) evidential material in relation to another contravention

of an environmental penalty provision;

if the executing officer or an officer assisting believes on

reasonable grounds that seizure of the thing is necessary to

prevent its concealment, loss or destruction or its use in

committing an offence against an environmental law or in

contravening an environmental penalty provision; and

(b) the kind of search of a person that the warrant authorises.

(5) Paragraph (1)(e) does not prevent the issue of successive warrants

in relation to the same premises or person.

(6) If the application for the warrant is made under section 416, this

section applies as if paragraph (1)(e) referred to 48 hours rather

than 7 days.

415 Powers of magistrate

(1) A magistrate in a State or internal Territory may:

(a) issue a warrant in relation to premises or a person in that

State or Territory; or

(b) issue a warrant in relation to premises or a person in an

external Territory; or

(c) issue a warrant in relation to premises or a person in another

State or internal Territory (including the Jervis Bay Territory)

if he or she is satisfied that there are special circumstances

that make the issue of the warrant appropriate; or

(d) issue a warrant in relation to a person wherever the person is

in Australia or in an external Territory if he or she is satisfied

that it is not possible to predict where the person may be.

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(2) A magistrate in New South Wales or the Australian Capital

Territory may issue a warrant in relation to premises or a person in

the Jervis Bay Territory.

416 Warrants by telephone or other electronic means

Application

(1) An authorised officer may make an application to a magistrate for

a warrant by telephone, telex, fax or other electronic means:

(a) in an urgent case; or

(b) if the delay that would occur if an application were made in

person would frustrate the effective execution of the warrant.

Voice communication

(2) The magistrate may require communication by voice to the extent

that is practicable in the circumstances.

Information

(3) An application under this section must include all information as

required to be provided in an ordinary application for a warrant,

but the application may, if necessary, be made before the

information is sworn or affirmed.

Issue of warrant

(4) If an application is made to a magistrate under this section and the

magistrate, after considering the information and having received

and considered such further information (if any) as the magistrate

required, is satisfied that:

(a) a warrant in the terms of the application should be issued

urgently; or

(b) the delay that would occur if an application were made in

person would frustrate the effective execution of the warrant;

the magistrate may complete and sign the same form of warrant

that would be issued under section 413.

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Notification

(5) If the magistrate decides to issue the warrant, the magistrate is to

inform the applicant, by telephone, telex, fax or other electronic

means, of the terms of the warrant and the day on which and the

time at which it was signed.

Form of warrant

(6) The applicant must then complete a form of warrant in terms

substantially corresponding to those given by the magistrate,

stating on the form the name of the magistrate and the day on

which and the time at which the warrant was signed.

Completed form of warrant to be given to magistrate

(7) The applicant must, not later than the day after the day of expiry of

the warrant or the day after the day on which the warrant was

executed, whichever is the earlier, give or transmit to the

magistrate:

(a) the form of warrant completed by the applicant; and

(b) if the information referred to in subsection (3) was not sworn

or affirmed—that information duly sworn or affirmed.

Attachment

(8) The magistrate is to attach to the documents provided under

subsection (7) the form of warrant completed by the magistrate.

Presumption

(9) If:

(a) it is material, in any proceedings, for a court to be satisfied

that the exercise of a power under a warrant issued under this

section was duly authorised; and

(b) the form of warrant signed by the magistrate is not produced

in evidence;

the court is to assume, unless the contrary is proved, that the

exercise of the power was not duly authorised.

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417 The things that are authorised by a search warrant

Search of premises

(1) A warrant that is in force in relation to premises authorises the

executing officer or an officer assisting:

(a) to enter the premises; and

(b) to search for and record fingerprints found at the premises

and to take samples of things found at the premises for

forensic purposes; and

(c) to search the premises for the kinds of evidential material

specified in the warrant, and to seize things of that kind

found at the premises; and

(d) to seize other things found at the premises in the course of

the search that the executing officer or an officer assisting

believes on reasonable grounds to be:

(i) evidential material in relation to an offence, or in

relation to a contravention of an environmental penalty

provision, to which the warrant relates; or

(ii) evidential material in relation to another offence against

an environmental law, where the other offence is an

indictable offence; or

(iii) evidential material in relation to another contravention

of an environmental penalty provision;

if the executing officer or an officer assisting believes on

reasonable grounds that seizure of the thing is necessary to

prevent its concealment, loss or destruction or its use in

committing an offence against an environmental law or in

contravening an environmental penalty provision; and

(e) to seize other things found at the premises in the course of

the search that the executing officer or an officer assisting

believes on reasonable grounds to be eligible seizable items;

and

(f) if the warrant so allows—to conduct an ordinary search or a

frisk search of a person at or near the premises if the

executing officer or an officer assisting suspects on

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reasonable grounds that the person has in his or her

possession:

(i) any evidential material in relation to an offence against

an environmental law, in relation to a contravention of

an environmental penalty provision or in relation to

both; or

(ii) any eligible seizable items.

Search of a person

(2) A warrant that is in force in relation to a person authorises the

executing officer or an officer assisting:

(a) to search:

(i) the person as specified in the warrant and things found

in the possession of the person; and

(ii) any aircraft, vehicle or vessel that the person had

operated or occupied at any time within 24 hours before

the search began, for things specified in the warrant; and

(b) to:

(i) seize things of that kind; or

(ii) record fingerprints from things; or

(iii) take forensic samples from things;

found in the course of the search; and

(c) to seize other things found on or in the possession of the

person or in the aircraft, vehicle or vessel mentioned in

subparagraph (a)(ii) in the course of the search that the

executing officer or an officer assisting believes on

reasonable grounds to be:

(i) evidential material in relation to an offence, or in

relation to a contravention of an environmental penalty

provision, to which the warrant relates; or

(ii) evidential material in relation to another offence against

an environmental law, where the other offence is an

indictable offence; or

(iii) evidential material in relation to another contravention

of an environmental penalty provision;

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if the executing officer or an officer assisting believes on

reasonable grounds that seizure of the thing is necessary to

prevent its concealment, loss or destruction or its use in

committing an offence against an environmental law or in

contravening an environmental penalty provision; and

(d) to seize other things found in the course of the search that the

executing officer or an officer assisting believes on

reasonable grounds to be eligible seizable items.

Hours when premises may be searched

(3) If a warrant in relation to premises states that the premises may be

entered only during particular hours, the premises must not be

entered outside those hours.

Hours when person may be searched

(3A) If a warrant in relation to a person states that the search of the

person may be carried out only during particular hours, the search

must not be carried out outside those hours.

Ordinary searches or frisk searches

(4) If a warrant authorises an ordinary search or a frisk search of a

person, a search of the person different from that so authorised

must not be done.

Seized items may be made available to other agencies

(5) If things are seized under a warrant, the warrant authorises the

executing officer to make the things available to officers of other

agencies if it is necessary to do so for the purpose of investigating

or prosecuting an offence to which the things relate.

418 Availability of assistance, and use of force, in executing a

warrant

(1) In executing a warrant:

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(a) the executing officer may obtain such assistance as is

necessary and reasonable in the circumstances; and

(b) the executing officer, or an authorised officer who is assisting

in executing the warrant, may use such force against persons

and things as is necessary and reasonable in the

circumstances; and

(c) a person who is not an authorised officer, but who has been

authorised to assist in executing the warrant, may use such

force against things as is necessary and reasonable in the

circumstances.

(2) A person who is not an authorised officer must not take part in

searching or arresting a person.

418A Executing officer to be in possession of warrant

When executing a warrant, the executing officer must be in

possession of:

(a) the original warrant issued by the magistrate under

section 415, or a copy of the original warrant as so issued; or

(b) the original form of warrant completed under

subsection 416(6), or a copy of the original form as so

completed.

419 Details of warrant to be given to occupier etc.

(1) If a warrant in relation to premises is being executed and the

occupier of the premises or another person who apparently

represents the occupier is present at the premises, the executing

officer or an officer assisting must make available to that person a

copy of the warrant.

(2) If a warrant in relation to a person is being executed, the executing

officer or an officer assisting must make available to that person a

copy of the warrant.

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(3) If a person is searched under a warrant in relation to premises, the

executing officer or an officer assisting must show the person a

copy of the warrant.

(4) The executing officer must identify himself or herself to the person

at the premises or the person being searched, as the case may be.

(5) The copy of the warrant referred to in subsections (1) and (2) need

not include the signature of the magistrate who issued the warrant.

420 Specific powers available to person executing warrant

(1) In executing a warrant in relation to premises, the executing officer

or an officer assisting may take photographs (including video

recordings) of the premises or of things at the premises:

(a) for a purpose incidental to the execution of the warrant; or

(b) if the occupier of the premises consents in writing.

(2) If a warrant in relation to premises is being executed, the executing

officer and all officers assisting may, if the warrant is still in force,

complete the execution of the warrant after all of them temporarily

cease its execution and leave the premises:

(a) for not more than one hour; or

(b) for a longer period if the occupier of the premises consents in

writing.

(3) The execution of a warrant that is stopped by an order of a court

may be completed if:

(a) the order is later revoked or reversed on appeal; and

(b) the warrant is still in force.

421 Use of equipment to examine or process things

(1) The executing officer or an officer assisting may bring to the

warrant premises any equipment reasonably necessary for the

examination or processing of things found at the premises in order

to determine whether they are things that may be seized under the

warrant.

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(2) If:

(a) it is not practicable to examine or process the things at the

warrant premises; or

(b) the occupier of the premises consents in writing;

the things may be moved to another place so that the examination

or processing can be carried out in order to determine whether they

are things that may be seized under the warrant.

(3) If things are moved to another place for the purpose of examination

or processing under subsection (2), the executing officer must, if it

is practicable to do so:

(a) inform the occupier of the address of the place and the time

at which the examination or processing will be carried out;

and

(b) allow the occupier or his or her representative to be present

during the examination or processing.

(4) The executing officer or an officer assisting may operate

equipment already at the warrant premises to carry out the

examination or processing of a thing found at the premises in order

to determine whether it is a thing that may be seized under the

warrant if the executing officer or an officer assisting believes on

reasonable grounds that:

(a) the equipment is suitable for the examination or processing;

and

(b) the examination or processing can be carried out without

damage to the equipment or thing.

422 Use of electronic equipment at premises

Operation of equipment

(1) The executing officer or an officer assisting may operate electronic

equipment at the premises to see whether evidential material in

relation to an offence against an environmental law, in relation to a

contravention of an environmental penalty provision or in relation

to both, is accessible by doing so if he or she believes on

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reasonable grounds that the operation of the equipment can be

carried out without damage to the equipment.

Seizure etc.

(2) If the executing officer or an officer assisting, after operating the

equipment, finds that evidential material in relation to an offence

against an environmental law, in relation to a contravention of an

environmental penalty provision or in relation to both, is accessible

by doing so, he or she may:

(a) seize the equipment and any disk, tape or other associated

device; or

(b) if the material can, by using facilities at the premises, be put

in documentary form—operate the facilities to put the

material in that form and seize the documents so produced; or

(c) if the material can be transferred to a disk, tape or other

storage device that:

(i) is brought to the premises; or

(ii) is at the premises and the use of which for the purpose

has been agreed to in writing by the occupier of the

premises;

operate the equipment or other facilities to copy the material

to the storage device and take the storage device from the

premises.

Limitation on seizure

(3) A person may seize equipment under paragraph (2)(a) only if:

(a) it is not practicable to put the material in document form as

mentioned in paragraph (2)(b) or to copy the material as

mentioned in paragraph (2)(c); or

(b) possession of the equipment by the occupier could constitute

an offence.

Securing equipment

(4) If the executing officer or an officer assisting believes on

reasonable grounds that:

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(a) evidential material in relation to an offence against an

environmental law, in relation to a contravention of an

environmental penalty provision or in relation to both, may

be accessible by operating electronic equipment at the

premises; and

(b) expert assistance is required to operate the equipment; and

(c) if he or she does not take action under this subsection, the

material may be destroyed, altered or otherwise interfered

with;

he or she may do whatever is necessary to secure the equipment,

whether by locking it up, placing a guard or otherwise.

Notice about securing equipment

(5) The executing officer or an officer assisting must give notice to the

occupier of the premises of his or her intention to secure equipment

and of the fact that the equipment may be secured for up to 24

hours.

Period for which equipment may be secured

(6) The equipment may be secured:

(a) for a period not exceeding 24 hours; or

(b) until the equipment has been operated by the expert;

whichever happens first.

Extension of period

(7) If the executing officer or an officer assisting believes on

reasonable grounds that the expert assistance will not be available

within 24 hours, he or she may apply to a magistrate for an

extension of that period.

Notice to occupier

(8) The executing officer or an officer assisting must give notice to the

occupier of the premises of his or her intention to apply for an

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extension, and the occupier is entitled to be heard in relation to the

application.

Provisions relating to extensions

(9) The provisions of this Division relating to the issue of warrants

apply, with such modifications as are necessary, to the issuing of

an extension.

423 Compensation for damage to electronic equipment

(1) If:

(a) damage is caused to equipment as a result of it being

operated as mentioned in section 421 or 422; and

(b) the damage was caused as a result of:

(i) insufficient care being exercised in selecting the person

who was to operate the equipment; or

(ii) insufficient care being exercised by the person operating

the equipment;

compensation for the damage is payable to the owner of the

equipment.

(2) Compensation is payable out of money appropriated by the

Parliament for the purpose.

(3) In determining the amount of compensation payable, regard is to

be had to whether the occupier of the premises and his or her

employees and agents, if they were available at the time, had

provided any warning or guidance as to the operation of the

equipment that was appropriate in the circumstances.

424 Copies of seized things to be provided

(1) Subject to subsection (2), if an authorised officer seizes, under a

warrant relating to premises:

(a) a document, film, computer file or other thing that can be

readily copied; or

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Section 425

(b) a storage device the information in which can be readily

copied;

the authorised officer must, if requested to do so by the occupier of

the premises or another person who apparently represents the

occupier and who is present when the warrant is executed, give a

copy of the thing or the information to that person as soon as

practicable after the seizure.

(2) Subsection (1) does not apply if:

(a) the thing that has been seized was seized under

paragraph 422(2)(b) or (c); or

(b) possession of the document, film, computer file, thing or

information by the occupier could constitute an offence.

425 Occupier entitled to be present during search

(1) If a warrant in relation to premises is being executed and the

occupier of the premises or another person who apparently

represents the occupier is present at the premises, the person is,

subject to Part IC of the Crimes Act 1914, entitled to observe the

search being conducted.

(2) The right to observe the search being conducted ceases if the

person impedes the search.

(3) This section does not prevent 2 or more areas of the premises being

searched at the same time.

426 Receipts for things seized under warrant

(1) If a thing is seized under a warrant or moved under

subsection 421(2), the executing officer or an officer assisting must

provide a receipt for the thing.

(2) If 2 or more things are seized or moved, they may be covered in

the one receipt.

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Search warrants Division 4

Section 427

427 Restrictions on personal searches

A warrant cannot authorise a strip search or a search of a person’s

body cavities.

428 When a thing is in the possession of a person

This Division applies to a person (the possessor) who has a thing

under his or her control in any place (whether for the use or benefit

of the possessor or of another person), even if another person has

the actual possession or custody of the thing, as if the possessor has

possession of the thing.

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Division 6 Arrest and related matters

Section 430

Division 6—Arrest and related matters

430 Powers of arrest

(1) An authorised officer may, without warrant, arrest any person, if

the authorised officer believes on reasonable grounds that:

(a) the person is committing or has committed an offence against

an environmental law; and

(b) proceedings against the person by summons would not be

effective.

(2) If an authorised officer (subject to subsection (2A)) arrests a person

under subsection (1), the authorised officer must:

(a) in the case of a member of a police force—produce, for

inspection by that person, written evidence of the fact that he

or she is a member of that police force; and

(aa) in the case of an officer of Customs—produce, for inspection

by that person, written evidence of the fact that he or she is

an officer of Customs; and

(b) in any other case—produce his or her identity card for

inspection by that person.

(2A) Subsection (2) does not apply to an authorised officer if:

(a) the authorised officer is a member of a police force or an

officer of Customs; and

(b) the officer is in uniform.

(3) If a person is arrested under subsection (1), an authorised officer

must without unreasonable delay bring the person, or cause the

person to be brought, before a Justice of the Peace or other proper

authority to be dealt with in accordance with law.

(4) A reference in this section to an offence against an environmental

law does not include an offence against Part VIIA of the Great

Barrier Reef Marine Park Act 1975 (compulsory pilotage).

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Section 431

431 Power to conduct a frisk search of an arrested person

An authorised officer who arrests a person for an offence against

an environmental law, or who is present at such an arrest, may, if

the authorised officer suspects on reasonable grounds that it is

prudent to do so in order to ascertain whether the arrested person is

carrying any eligible seizable items:

(a) conduct a frisk search of the arrested person at or soon after

the time of arrest; and

(b) seize any eligible seizable items found as a result of the

search.

432 Power to conduct an ordinary search of an arrested person

An authorised officer who arrests a person for an offence against

an environmental law, or who is present at such an arrest, may, if

the authorised officer suspects on reasonable grounds that the

arrested person is carrying:

(a) evidential material in relation to that or another offence

against an environmental law; or

(aa) evidential material in relation to a contravention of an

environmental penalty provision; or

(b) an eligible seizable item;

conduct an ordinary search of the arrested person at or soon after

the time or arrest, and seize any such thing found as a result of the

search.

433 Power to conduct search of arrested person’s premises

An authorised officer who arrests a person at premises for an

offence against an environmental law, or who is present at such an

arrest, may seize a thing in plain view at those premises that the

authorised officer believes on reasonable grounds to be:

(a) evidential material in relation to that or another offence

against an environmental law; or

(aa) evidential material in relation to a contravention of an

environmental penalty provision; or

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Section 433A

(b) an eligible seizable item.

433A Interaction of this Division with Schedule 1

This Division does not limit, and is not limited by, Schedule 1. In

particular, the detention of a person under Schedule 1 is not to be

taken to constitute the arrest of the person for the purposes of this

Division.

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Provisions relating to detention of suspected foreign offenders Division 6A

Section 433B

Division 6A—Provisions relating to detention of suspected

foreign offenders

433B Provisions relating to detention of suspected foreign offenders

Schedule 1 has effect.

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Division 7 Miscellaneous provisions about searches, entry to premises, warrants etc.

Section 434

Division 7—Miscellaneous provisions about searches, entry

to premises, warrants etc.

434 Conduct of ordinary searches and frisk searches

An ordinary search or a frisk search of a person under this

Part must, if practicable, be conducted by a person of the same sex

as the person being searched.

435 Announcement before entry

(1) An authorised officer must, before any person enters premises

under a warrant or to arrest a person under this Act:

(a) announce that he or she is authorised to enter the premises;

and

(b) give any person at the premises an opportunity to allow entry

to the premises.

(2) An authorised officer is not required to comply with subsection (1)

if he or she believes on reasonable grounds that immediate entry to

the premises is required to ensure:

(a) the safety of a person (including an authorised officer); or

(b) that the effective execution of the warrant or the arrest is not

frustrated.

436 Offence of making false statements in warrants

A person commits an offence punishable upon conviction by

imprisonment for a term not exceeding 2 years if the person:

(a) makes a statement in an application for a warrant; and

(b) does so knowing the statement is false or misleading in a

material particular.

437 Offences relating to telephone warrants

A person must not:

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Section 438

(a) state in a document that purports to be a form of warrant

under section 409A or 416 the name of a magistrate unless

the magistrate issued the warrant; or

(b) state on a form of warrant under section 409A or 416 a

matter that, to the person’s knowledge, departs in a material

particular from the form authorised by the magistrate; or

(c) purport to execute, or present to another person, a document

that purports to be a form of warrant under section 409A or

416 that the person knows:

(i) has not been approved by a magistrate under that

section; or

(ii) departs in a material particular from the terms

authorised by a magistrate under that section; or

(d) give to a magistrate a form of warrant under section 409A or

416 that is not the form of warrant that the person purported

to execute.

Penalty: Imprisonment for 2 years.

438 Retention of things seized under Division 4 or 6

(1) This section applies to a thing that is seized under Division 4 or 6.

(2) The thing may be retained until:

(a) the reason for the seizure of the thing no longer exists; or

(b) it is decided that the thing is not to be used in evidence;

whichever happens first.

(3) As soon as practicable after the end of the period during which the

thing may be retained under subsection (2), the Secretary must

cause reasonable steps to be taken to return the thing to the person

from whom it was seized (or to the owner if that person is not

entitled to possess it).

(4) Subsection (3) does not apply if:

(a) the thing is forfeited or forfeitable to the Commonwealth; or

(b) the thing has been dealt with under this Part, or as otherwise

authorised (by a law, or an order of a court, of the

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Section 440

Commonwealth or of a State or Territory), in a way that

means the Secretary is not in a position to cause reasonable

steps to be taken to return the thing; or

(c) the Commonwealth, the Secretary or an authorised officer is

otherwise authorised (by a law, or an order of a court, of the

Commonwealth or of a State or Territory) to retain, destroy,

dispose of or otherwise deal with the thing.

440 Law relating to legal professional privilege not affected

This Part does not affect the law relating to legal professional

privilege.

441 Other laws about search, arrest etc. not affected

(1) This Part is not intended to limit or exclude the operation of

another law of the Commonwealth relating to:

(a) the search of persons or premises; or

(b) arrest and related matters; or

(c) the stopping, detaining or searching of aircraft, vehicles or

vessels; or

(d) the seizure of things.

(2) To avoid doubt, it is declared that even though another law of the

Commonwealth provides power to do one or more of the things

referred to in subsection (1), a similar power conferred by this

Part may be used despite the existence of the power under the other

law.

442 Persons to assist authorised officers

(1) Subject to subsection (5), the owner, or person in charge:

(a) of any vehicle, vessel, aircraft or platform boarded by an

authorised officer under section 403; or

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(b) of any premises entered by an authorised officer under

section 405;

must, if requested by an authorised officer to do so, provide

reasonable assistance to the authorised officer in the performance

of the functions, or carrying out of the duties, or the exercise of the

powers, conferred on the authorised officer under this Act.

(2) A person must not contravene subsection (1).

Penalty: Imprisonment for 12 months.

(3) Subject to subsection (5), the owner, or the person in charge, of:

(a) premises entered under a warrant; or

(b) an aircraft, vehicle or vessel stopped under section 403;

must, if requested by an authorised officer to do so, provide

reasonable assistance to the authorised officer in the performance

of the functions, or carrying out of the duties, or the exercise of the

powers, conferred on the authorised officer under this Act.

(4) A person must not contravene subsection (3).

Penalty: Imprisonment for 12 months.

(5) Where an authorised officer (subject to subsection (6)) makes a

request of a person under this section, the authorised officer must:

(a) in the case of a member of a police force—produce, for

inspection by that person, written evidence of the fact that he

or she is a member of that police force; or

(aa) in the case of an officer of Customs—produce, for inspection

by that person, written evidence of the fact that he or she is

an officer of Customs; or

(b) in any other case—produce his or her identity card for

inspection by that person;

and, if the authorised officer fails to do so, that person is not

obliged to comply with the request.

(6) Subsection (5) does not apply to an authorised officer if:

(a) the authorised officer is a member of a police force or an

officer of Customs; and

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(b) the officer is in uniform.

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Power to search goods, baggage etc. Division 8

Section 443

Division 8—Power to search goods, baggage etc.

443 Power to search goods, baggage etc.

(1) This section applies to any goods that are to be, are being, or have

been, taken on or off a ship that voyages, or an aircraft that flies,

between:

(a) a place in Australia and a place outside Australia; or

(b) a place in an external Territory and a place outside that

Territory.

(2) If an authorised officer believes, on reasonable grounds that goods

are goods to which this section applies, he or she may:

(a) examine the goods; or

(b) if the goods are baggage—open and search the baggage; or

(c) if the goods are in a container—open and search the

container.

(3) An authorised officer may ask a person who owns, is carrying or is

otherwise associated with, or appears to the authorised officer to be

associated with, goods to which this section applies any question in

respect of the goods.

(4) A person must not refuse or fail to answer a question put to the

person under subsection (3).

Penalty: 60 penalty units.

(5) In this Act:

baggage includes any parcel or other goods that:

(a) a passenger; or

(b) the master, a mate, an engineer or any other member of the

crew of a ship; or

(c) the pilot or any other member of the crew of an aircraft;

has had with him or her on the ship or aircraft.

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Section 443

goods includes baggage.

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Power to ask questions about specimens Division 8A

Section 443A

Division 8A—Power to ask questions about specimens

443A Authorised officer may ask questions about the nature or

origin of specimens

When section applies

(1) This section applies if an authorised officer has reasonable grounds

to suspect that:

(a) a specimen has been exported, or is proposed to be exported,

in contravention of section 303CC or 303DD; or

(b) a specimen has been imported, or is proposed to be imported,

in contravention of section 303CD or 303EK; or

(c) a person has in the person’s possession a specimen, and that

possession contravenes section 303GN.

Note: Sections 303CC, 303CD, 303DD, 303EK and 303GN are included in

Part 13A, which deals with international movement of wildlife

specimens.

Questions

(2) If the authorised officer has reasonable grounds to suspect that a

person has information about the nature or origin of the specimen,

the authorised officer may ask the person one or more questions

about the nature or origin of the specimen.

(2A) The authorised officer may ask the questions:

(a) in any case—by asking them in the presence of the person; or

(b) if the authorised officer is not a member of a police force and

is not an officer of Customs—by sending written questions to

the person.

Answers to questions

(3) Subject to subsections (6) and (7), if a person is asked a question

under subsection (2), the person must not intentionally refuse or

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Section 443A

intentionally fail to answer the question to the extent that the

person is capable of doing so.

(4) A person who contravenes subsection (3) commits an offence

punishable on conviction by a fine not exceeding 10 penalty units.

(5) In subsection (3), strict liability applies to the circumstance that the

person was asked a question under subsection (2).

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

No requirement to give incriminating answers

(6) If a person is asked a question under subsection (2), the person is

not required to answer the question if the answer might tend to

incriminate the person or expose the person to a penalty.

Identity cards etc.

(7) If a person is asked a question under subsection (2) by an

authorised officer, the person is not required to answer the question

unless:

(a) if the authorised officer is a member of a police force—the

authorised officer produces, for inspection by the person,

written evidence of the fact that the authorised officer is a

member of that police force; or

(b) if the authorised officer is an officer of Customs—the

authorised officer produces, for inspection by the person,

written evidence of the fact that the authorised officer is an

officer of Customs; or

(c) if the authorised officer is not a member of a police force and

is not an officer of Customs:

(i) if the questions are asked in the presence of the

person—the authorised officer produces the authorised

officer’s identity card for inspection by the person; or

(ii) if the questions are asked by sending written questions

to the person—the authorised officer sends with the

questions a copy of his or her instrument of

appointment.

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Power to ask for names and addresses Division 9

Section 444

Division 9—Power to ask for names and addresses

444 Authorised person may ask for person’s name and address

(1) An authorised officer may ask an individual to tell the authorised

officer the individual’s name and address if the authorised officer

has reasonable grounds to suspect that the individual has been

involved in the commission of an offence against an environmental

law.

(2) Subject to subsection (4), a person must not refuse or fail to

comply with a request under subsection (1).

Penalty: 10 penalty units.

(3) A person commits an offence punishable upon conviction by a fine

not exceeding 10 penalty units if the person:

(a) in purported compliance with a request under subsection (1),

gives a name and address; and

(b) does so knowing the name or address is false or misleading.

(4) If an authorised officer makes a request of a person under

subsection (1), the person is not required to comply with the

request unless:

(a) if the authorised officer is a member of a police force—he or

she produces, for inspection by the person, written evidence

of the fact that he or she is a member of that police force; or

(aa) if the authorised officer is an officer of Customs—he or she

produces, for inspection by the person, written evidence of

the fact that he or she is an officer of Customs; or

(b) in any other case—the authorised officer produces his or her

identity card for inspection by the person.

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Division 10 Seizure and forfeiture etc.

Section 444A

Division 10—Seizure and forfeiture etc.

Subdivision AA—Seizure of specimens involved in a

contravention of Part 13A

444A Seizure of specimens involved in a contravention of Part 13A

(1) An authorised officer may seize a specimen if he or she has

reasonable grounds to suspect that the specimen has been used or

otherwise involved in the commission of an offence against

Part 13A.

Note: Part 13A deals with international movement of wildlife specimens.

(2) If a warrant has been issued under Division 4:

(a) if the warrant relates to premises—this section does not

apply:

(i) to the executing officer, or an officer assisting, while he

or she is searching premises under the warrant; or

(ii) to anything found during the course of such a search;

and

(b) if the warrant relates to a person—this section does not

apply:

(i) to the executing officer, or an officer assisting, while he

or she is searching a person, or an aircraft, vehicle or

vessel, under the warrant; or

(ii) to anything found during the course of such a search.

Note: Division 4 is about search warrants. The Division contains its own

seizure powers (see paragraphs 417(1)(c), (d) and (e) and (2)(b), (c)

and (d)).

444B Notice about seizure

(1) Subject to subsection (2), if a specimen is seized by an authorised

officer under section 444A, the authorised officer must give:

(a) the owner of the specimen; or

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(b) the person who had possession, custody or control of the

specimen immediately before it was seized;

a written notice:

(c) identifying the specimen; and

(d) stating that it has been seized under section 444A and giving

the reason for the seizure; and

(e) setting out the terms of sections 444C and 444D.

The notice must be given as soon as practicable after the seizure.

(2) An authorised officer is not required to give a notice under

subsection (1) about a specimen if, after making such inquiries as

the authorised officer thinks appropriate, the authorised officer

does not, within 30 days after the seizure, have sufficient

information to enable the authorised officer to give the notice. In

that event, the authorised officer must keep a written record of the

seizure.

444C Applications for return of specimen

(1) If a specimen is seized under section 444A, the owner of the

specimen may apply in writing to the Secretary for the delivery to

the owner of the specimen.

(2) The application must be made:

(a) within 30 days after the seizure; or

(b) if a notice is given under subsection 444B(1) in relation to

the specimen—within 30 days after the giving of the notice.

(3) The application must be made on the ground that the specimen was

not used or otherwise involved in the commission of an offence

against Part 13A.

(4) If the applicant satisfies the Secretary that the ground has been

established, the Secretary must grant the application.

Note: Under section 444G, the Secretary may retain the specimen for up to

30 days after making a decision on the application.

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Section 444D

444D Court action for return of specimen

(1) If a specimen is seized under section 444A, the owner of the

specimen may bring an action against the Commonwealth in a

court of competent jurisdiction for the delivery of the specimen to

the owner on the ground that the specimen was not used or

otherwise involved in the commission of an offence against

Part 13A.

(2) An action under subsection (1) must be brought:

(a) within 30 days after the seizure; or

(b) if a notice is given under subsection 444B(1) in relation to

the specimen—within 30 days after the giving of the notice.

(3) If:

(a) an action is brought under subsection (1); and

(b) the court finds that the specimen was used or otherwise

involved in the commission of the offence concerned;

the court must order the specimen to be forfeited to the

Commonwealth.

(4) If:

(a) an action is brought under subsection (1); and

(b) the action is discontinued by the owner otherwise than

because of:

(i) the delivery of the specimen to the owner; or

(ii) the forfeiture of the specimen to the Commonwealth; or

(iii) the disposal of the specimen under section 449;

the specimen is forfeited to the Commonwealth.

444E Consignment of specimen with consent of owner

(1) If:

(a) a specimen is seized under section 444A; and

(b) the specimen was imported from a particular foreign country;

and

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Section 444G

(c) the export of the specimen from the foreign country was not

in contravention of a law of the foreign country that

corresponds to Part 13A; and

(d) if the importer had applied for a permit authorising the

import of the specimen, there is no reasonable likelihood that

the permit would have been granted; and

(e) the importer produces written evidence from the relevant

CITES authority of the foreign country that the specimen

may be returned to the foreign country without contravening

such a law;

the Secretary may, with the consent of the owner of the specimen,

consign the specimen to a place in the foreign country.

(2) The consignment is to be at the expense of the owner of the

specimen.

444G Retention of specimen

(1) If a specimen is seized under section 444A, the specimen may be

retained until the end of 30 days after whichever is the latest of the

following events:

(a) the seizure;

(b) if a notice is given under subsection 444B(1) in relation to

the specimen—the giving of the notice;

(c) if an application is made under subsection 444C(1) in

relation to the specimen—the making of a decision on that

application;

(d) if:

(i) proceedings for an offence against Part 13A are

instituted during the period within which an application

may be made under subsection 444C(1) in relation to

the specimen; and

(ii) the specimen may have been used or otherwise involved

in the commission of the offence or the specimen may

afford evidence of the commission of the offence;

the termination of the proceedings (including any appeal to a

court in relation to those proceedings).

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Section 444H

(2) The rule in subsection (1) does not authorise the retention of the

specimen if the owner of the specimen succeeds in an action under

subsection 444D(1) for the delivery of the specimen to the owner.

(3) As soon as practicable after the end of the period during which the

specimen may be retained under subsection (1), the Secretary must

cause reasonable steps to be taken to return the specimen to the

person from whom it was seized (or to the owner if that person is

not entitled to possess it).

(4) Subsection (3) does not apply if:

(a) the specimen is forfeited or forfeitable to the

Commonwealth; or

(b) the specimen has been dealt with under this Part, or as

otherwise authorised (by a law, or an order of a court, of the

Commonwealth or of a State or Territory), in a way that

means the Secretary is not in a position to cause reasonable

steps to be taken to return the specimen; or

(c) the Commonwealth, the Secretary or an authorised officer is

otherwise authorised (by a law, or an order of a court, of the

Commonwealth or of a State or Territory) to retain, destroy,

dispose of or otherwise deal with the specimen; or

(d) proceedings under subsection 444D(1) relating to the

specimen are pending.

444H Forfeiture of specimen after end of retention period

(1) If:

(a) a specimen is seized under section 444A; and

(b) none of the following happens before the end of the period

for which the specimen may be retained:

(i) proceedings are instituted for an offence against

Part 13A, where the specimen is alleged to have been

used or otherwise involved in the commission of the

offence;

(ii) the specimen is released unconditionally to a person

under section 449BA;

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(iia) the specimen is delivered to a person under

section 444C;

(iii) the owner of the specimen brings an action under

subsection 444D(1) for the delivery of the specimen to

the owner;

(iv) proceedings are instituted under section 450A in

relation to the specimen;

(v) the specimen is disposed of under section 449;

the specimen is forfeited to the Commonwealth at the end of that

period.

(2) Subsection (1) has effect only to the extent (if any) to which it

gives effect to paragraph 1(b) of Article VIII of CITES.

Subdivision AB—Seizure of things (other than specimens

involved in a contravention of Part 13A)

445 Seizure of things (other than specimens involved in a

contravention of Part 13A)

(1) Subject to subsections (2) and (3), an authorised officer may seize

a thing if he or she has reasonable grounds to suspect that it is

evidential material in relation to an offence against an

environmental law, in relation to a contravention of an

environmental penalty provision or in relation to both.

(2) This section does not apply to a specimen that an authorised officer

has reasonable grounds to suspect has been used or otherwise

involved in the commission of an offence against Part 13A.

Note: Section 444A deals with the seizure of such specimens.

(3) If a warrant has been issued under Division 4:

(a) if the warrant relates to premises—this section does not

apply:

(i) to the executing officer, or an officer assisting, while he

or she is searching premises under the warrant; or

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(ii) to anything found during the course of such a search;

and

(b) if the warrant relates to a person—this section does not

apply:

(i) to the executing officer, or an officer assisting, while he

or she is searching a person, or an aircraft, vehicle or

vessel, under the warrant; or

(ii) to anything found during the course of such a search.

Note: Division 4 is about search warrants. The Division contains its own

seizure powers (see paragraphs 417(1)(c), (d) and (e) and (2)(b), (c)

and (d)).

(3A) A reference in this section to an offence against an environmental

law does not include an offence against Part VIIA of the Great

Barrier Reef Marine Park Act 1975 (compulsory pilotage).

(4) In this section:

thing includes a vehicle, vessel, aircraft, platform, document,

organism and specimen.

446 Retention of things seized under this Subdivision

(1) This section applies to a thing that is seized under section 445.

(1A) The thing may be retained until:

(a) the reason for the seizure no longer exists; or

(b) it is decided that the thing is not to be used in evidence; or

(c) the end of the period of 60 days after the seizure, or, if that

period has been extended under subsection (3), the end of the

extended period;

whichever happens first.

(1B) As soon as practicable after the end of the period (the retention

period) during which the thing may be retained under

subsection (1A), the Secretary must cause reasonable steps to be

taken to return the thing to the person from whom it was seized (or

to the owner if that person is not entitled to possess it).

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(1C) Subsection (1B) does not apply if:

(a) the thing is forfeited or forfeitable to the Commonwealth; or

(b) a proceeding in respect of which the thing may afford

evidence was commenced before the end of the retention

period and has not been completed (including an appeal to a

court in relation to that proceeding); or

(c) the thing has been dealt with under this Part, or as otherwise

authorised (by a law, or an order of a court, of the

Commonwealth or of a State or Territory), in a way that

means the Secretary is not in a position to cause reasonable

steps to be taken to return the thing; or

(d) the Commonwealth, the Secretary or an authorised officer is

otherwise authorised (by a law, or an order of a court, of the

Commonwealth or of a State or Territory) to retain, destroy,

dispose of or otherwise deal with the thing.

(2) An authorised officer may, before the end of the retention period,

apply to a magistrate for an order permitting the retention of the

thing for a further period.

(3) If, in relation to an application under subsection (2), the magistrate

is satisfied, by information on oath or affirmation, that it is

necessary for the thing to continue to be retained:

(a) for the purposes of an investigation as to whether an offence

against an environmental law has been committed, or

whether an environmental penalty provision has been

contravened; or

(b) to enable evidence of an offence against an environmental

law, or of a contravention of an environmental penalty

provision, to be secured for the purposes of a proceeding

against the person for such an offence or contravention;

the magistrate may order that the thing may continue to be retained

for a period specified in the order. The maximum period of an

individual extension must not be more than 30 days.

(3A) Before an authorised officer makes an application under

subsection (2), he or she must:

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(a) take reasonable steps to discover who has an interest in the

retention of the thing; and

(b) if it is practicable to do so, give notice in writing of the

proposed application to each person whom the authorised

officer believes to have an interest in the proposed

application.

(4) Subsection (3) does not prevent a magistrate from granting 2 or

more successive extensions under that subsection of the period

during which the thing may be retained.

(5) A function of making an order conferred on a magistrate by

subsection (3) is conferred on the magistrate in a personal capacity

and not as a court or a member of a court.

(6) Without limiting the generality of subsection (5), an order made by

a magistrate under subsection (3) has effect only by virtue of this

Act and is not taken, by implication, to be made by a court.

(7) A magistrate performing a function of, or connected with, making

an order under subsection (3) has the same protection and

immunity as if he or she were performing that function as, or as a

member of, a court (being the court of which the magistrate is a

member).

(8) The Governor-General may make arrangements with the Governor

of a State, the Chief Minister for the Australian Capital Territory or

the Administrator of the Northern Territory for the performance, by

all or any of the persons who from time to time hold office as

magistrates in that State or Territory, of the function of making

orders under subsection (3).

Subdivision AC—Direction to deliver seizable items

447 Direction to deliver seizable items

(1) An authorised officer may direct a person to deliver to the officer,

or to another person specified in the direction, a thing that the

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officer is authorised to seize under a warrant issued under

Division 4 or under section 445.

(2) The direction must:

(a) be in writing; and

(b) be given to the person who is directed to deliver the thing,

who must be:

(i) if the thing is a vessel—the person in charge of the

vessel, or the vessel’s owner; or

(ii) if the thing is an aircraft—the person in charge of the

aircraft; or

(iii) otherwise—the person in possession of the thing; and

(c) specify the place at which the delivery is to occur; and

(d) specify the period within which the delivery is to occur.

(3) A person must not fail to comply with a direction under this

section.

Penalty: Imprisonment for 12 months or 60 penalty units, or both.

(4) This Part applies to a thing delivered in compliance with a

direction under this section as if the thing had been seized under

the warrant or section that authorised the officer to seize the thing.

(5) A direction made under subsection (1) is not a legislative

instrument.

Subdivision B—Disposal of seized items

449 Immediate disposal of seized items

(1) If:

(a) a thing is seized under this Part; and

(b) the Secretary considers that it is reasonably likely that the

retention of the thing would:

(i) constitute a serious threat to the environment; or

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(ii) constitute a serious threat to the continued existence, in

the wild, of a particular species of animal or of a

particular species of plant; or

(iii) result in the introduction of an alien species that

represents a threat to ecosystems, habitats or other

species; or

(iv) constitute a danger to public health; or

(v) in the case of a live organism or specimen—constitute a

significant threat to the health of the organism or

specimen; or

(vi) in the case of a live animal—result in the animal

suffering;

the Secretary may cause the thing to be dealt with in such manner

as the Secretary considers appropriate (including the destruction of

the thing).

(1A) If the Secretary causes a live animal to be destroyed under

subsection (1), the Secretary must require the destruction to be

carried out in a humane manner.

(2) Subject to subsection (3), if a thing is dealt with in accordance with

subsection (1), the Secretary must give to:

(a) the owner of the thing; or

(b) the person who had possession, custody or control of the

thing immediately before it was seized;

a written notice:

(c) identifying the thing; and

(d) stating that the thing has been seized under this Part and

giving the reason for the seizure; and

(e) stating that the thing has been dealt with under subsection (1)

and specifying the manner in which it has been so dealt with

and the reason for doing so; and

(f) setting out the terms of subsection (4).

The notice must be given as soon as practicable after the thing is so

dealt with.

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(3) The Secretary need not give a notice under subsection (2) about a

thing if, after making such inquiries as the Secretary thinks

appropriate, the Secretary does not, within 20 days after dealing

with the thing, have sufficient information to enable the notice to

be given.

(4) If a thing is dealt with in accordance with subsection (1), the owner

of the thing may bring an action against the Commonwealth in a

court of competent jurisdiction for the recovery of the market value

of the thing at the time it was so dealt with. The action must be

brought on the ground that the thing was not used or otherwise

involved in the commission of an offence against this Act or the

regulations.

449A Disposal of seized items if Secretary cannot locate or identify

person entitled etc.

(1) This section applies to a thing that is seized under this Part if:

(a) apart from this section, the thing is required to be returned or

delivered to a person (or reasonable steps are required to be

taken for the return or delivery to a person of the thing); and

(b) one or more of the following applies:

(i) the Secretary is satisfied that reasonable steps have been

taken to locate or identify the person, but those steps

have not succeeded;

(ii) the Secretary is satisfied that reasonable steps have been

taken to return or deliver the thing to the person, but

those steps have not succeeded;

(iii) the Secretary is otherwise satisfied that it is not

practicable to return or deliver the thing to the person.

(2) The Secretary may dispose of the thing in such manner as the

Secretary considers appropriate.

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Subdivision BA—Release of seized items to owner etc.

449BA Release of seized items to owner etc.

(1) If a thing is seized under this Part, the Secretary may authorise the

thing, or anything in, on or attached to the thing, to be released to

its owner, or to the person from whose possession it was seized,

either:

(a) unconditionally; or

(b) on such conditions as the Secretary thinks fit (including

conditions about the giving of security for giving payment of

its value if it is forfeited).

(2) A person commits an offence if:

(a) a thing is released to the person under subsection (1) subject

to a condition; and

(b) the person engages in conduct; and

(c) the conduct contravenes the condition.

Penalty: Imprisonment for 12 months or 60 penalty units, or both.

(3) Absolute liability applies to paragraph (2)(a).

Note: For absolute liability, see section 6.2 of the Criminal Code.

449BB How this Part applies in relation to things released

conditionally

(1) This section applies if a thing, or anything in, on or attached to a

thing, seized under this Part is released on conditions to a person

under section 449BA. The provision of this Part under which the

seizure was made is the seizure provision, and the thing that is

released is the released thing.

(2) Subject to this section, the provisions of this Part that apply in

relation to things seized under the seizure provision continue to

apply to the released thing as if it had not been released.

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(3) A reference in a provision of this Part to the return or delivery of

the released thing to a person is, if the person is the person to

whom the thing has been released, taken to be a reference to

making the release of the thing to the person unconditional.

(4) The regulations may specify modifications of provisions of this

Part that are to have effect in relation to things to which this

section applies. However, regulations must not:

(a) increase, or have the effect of increasing, the maximum

penalty for any offence; or

(b) widen, or have the effect of widening, the scope of any

offence.

Subdivision C—Forfeiture of seized items

450 Court-ordered forfeiture: order by court dealing with offence

proceedings

(1) If a court convicts a person of an offence against an environmental

law, the court may order the forfeiture to the Commonwealth of

any thing used or otherwise involved in the commission of the

offence.

(1A) If a court convicts a person of an offence against Part 13A, the

court must order the forfeiture to the Commonwealth of any

specimen used or otherwise involved in the commission of the

offence.

Note: Part 13A deals with the international movement of wildlife specimens.

(2) A court may make an order under subsection (1) or (1A) even if

the thing or specimen has been seized under this Act or taken into

possession under section 406AA or Schedule 1.

(3) If:

(a) a specimen is seized under this Part; and

(b) either:

(i) a court finds a person not guilty of an offence against an

environmental law in relation to the specimen; or

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(ii) a proceeding in a court for such an offence in relation to

the specimen is discontinued or dismissed; and

(c) the court is satisfied that there are reasonable grounds for

suspecting that, if the specimen were released to the person

from whom it was seized or to its owner, the possession of

the specimen by that person would contravene a provision of

an environmental law;

the court may order the forfeiture to the Commonwealth of the

specimen.

(4) A reference in this section to an offence against an environmental

law does not include an offence against Part VIIA of the Great

Barrier Reef Marine Park Act 1975 (compulsory pilotage).

450A Court-ordered forfeiture: other situations

(1) A court may, on the application of the Secretary, order the

forfeiture to the Commonwealth of a thing that is seized under this

Part if the court is satisfied that the thing has been used or

otherwise involved in the commission of an offence against an

environmental law.

(2) Without limiting subsection (1), a court may, on the application of

the Secretary, order the forfeiture to the Commonwealth of a

specimen if:

(a) the specimen was seized under this Part; and

(b) either:

(i) a court has found a person not guilty of an offence

against an environmental law in relation to the

specimen; or

(ii) a proceeding in a court for such an offence in relation to

the specimen has been discontinued or dismissed; and

(c) the court to which the Secretary applies is satisfied that there

are reasonable grounds for suspecting that, if the specimen

were released to the person from whom it was seized or to its

owner, the possession of the specimen by that person would

contravene a provision of an environmental law.

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(3) A reference in this section to an offence against an environmental

law does not include an offence against Part VIIA of the Great

Barrier Reef Marine Park Act 1975 (compulsory pilotage).

450B Forfeiture of seized items by consent etc.

(1) If:

(a) a thing is seized under this Part; and

(b) the owner of the thing agrees to transfer ownership of the

thing to the Commonwealth, either:

(i) unconditionally; or

(ii) in the event that a future contingency happens; and

(c) if subparagraph (b)(ii) applies—that contingency happens;

then:

(d) the thing becomes the property of the Commonwealth; and

(e) the provisions of this Part relating to forfeiture apply as if the

thing had been forfeited to the Commonwealth under this

Act.

(2) If:

(a) a thing is seized under this Part; and

(b) the owner of the thing agrees to transfer ownership of the

thing to the Commonwealth in the event that a future

contingency happens;

the Secretary may retain the thing:

(c) until the thing becomes the property of the Commonwealth;

or

(d) if the thing does not become the property of the

Commonwealth—until the end of the last day on which that

contingency could happen.

(3) Subsection (2) has effect despite anything in section 438, 444G,

446, 456AB or 456AC.

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451 Dealings in forfeited items

(1) A thing forfeited to the Commonwealth under this Act becomes the

property of the Commonwealth.

(2) A thing forfeited to the Commonwealth under this Act is to be

dealt with in such manner as the Secretary considers appropriate.

(3) Without limiting subsection (2), the Secretary may sell a thing

forfeited to the Commonwealth under this Act.

(4) The Secretary must not sell a specimen forfeited to the

Commonwealth under this Act unless, in the opinion of the

Secretary, the buyer will use the specimen for scientific or

educational purposes.

452 Delivery of forfeited items to the Commonwealth

(1) If:

(a) a thing is forfeited to the Commonwealth under this Act; and

(b) the thing has not been dealt with under section 451; and

(c) the thing is in the possession, custody or control of a person

other than:

(i) the Commonwealth; or

(ii) an agency of the Commonwealth; and

(d) the Secretary requests the person to deliver the thing to the

Secretary;

the person must deliver the thing to the Secretary.

(2) A person must not contravene subsection (1).

Penalty: Imprisonment for 2 years.

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Subdivision F—Keeping of organisms or specimens that have

been seized

453 Keeping of organisms or specimens retained under this Part

If a person is authorised under this Part to retain an organism or

specimen, the person may do so by causing the organism or

specimen to be taken to, and kept at, a place approved by the

Secretary for the purpose of keeping organisms or specimens

seized under this Division.

454 Recovery of costs of storing or keeping organisms or specimens

(1) If an organism or specimen is seized under this Division, the owner

is liable to pay to the Commonwealth an amount equal to the sum

of the following costs:

(a) reasonable costs incurred by the Commonwealth in relation

to the custody of the organism or specimen;

(b) reasonable costs incurred by the Commonwealth in

transporting the organism or specimen;

(c) reasonable costs incurred by the Commonwealth in

maintaining the organism or specimen.

(2) If:

(a) an organism or specimen is seized under this Division; and

(b) the organism or specimen is disposed of;

the owner is liable to pay to the Commonwealth an amount equal

to the reasonable costs incurred by the Commonwealth in

disposing of the organism or specimen.

(3) An amount payable by a person under this section is a debt due by

the person to the Commonwealth.

(4) An amount payable by a person to the Commonwealth under this

section may be recovered by action in a court of competent

jurisdiction.

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(5) The Secretary may remit an amount payable by a person under this

section.

(6) In addition to its effect apart from this subsection, this section also

has the effect it would have if a liability under this section were, by

express provision, confined to the case of an organism or specimen

that:

(a) is forfeited to the Commonwealth under this Act; or

(b) would have been forfeited to the Commonwealth under this

Act if it had not been disposed of.

Subdivision G—Rescuing things

455 Rescuing things

A person commits an offence punishable upon conviction by

imprisonment for a term not exceeding 2 years if:

(a) the person rescues any thing; and

(b) the thing has been, or is about to be, seized under this Act.

456 Breaking or destroying things or documents to prevent seizure

etc.

A person must not:

(a) stave, break or destroy any thing in order to prevent the

seizure of a thing, the securing of a thing, or the proof of any

offence under an environmental law; or

(b) destroy any documents relating to any thing in order to

prevent the seizure of a thing, the securing of a thing, or the

proof of any offence under an environmental law.

Penalty: Imprisonment for 2 years.

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Section 456AA

Subdivision H—Seizure of cages or containers

456AA Power to seize cages or containers containing seizable things

(1) This section applies if:

(a) an authorised officer has power to seize a thing (a seizable

thing) under another provision of this Part; and

(b) the seizable thing is in a cage or container; and

(c) the authorised officer considers that it is not reasonably

practicable to seize the seizable thing without also seizing the

cage or container.

(2) For the purpose of seizing the seizable thing and despite any other

provision of this Part, the authorised officer may seize the cage or

container containing the seizable thing (whether or not the cage or

container also contains any other thing).

(3) The seizure of the seizable thing is taken to occur under the

provision mentioned in paragraph (1)(a) (not under this section).

Note: The provisions governing the retention and return of the seizable thing

are therefore the provisions that usually govern the seizure of a thing

under the provision mentioned in paragraph (1)(a).

(4) If:

(a) an authorised officer seizes a cage or container; and

(b) the seizure of the cage or container is authorised by this

section, and is also authorised by another provision of this

Part;

then the seizure is taken be under this section, rather than under

that other provision (subject to subsection 456AB(5)).

456AB Retention of seized cage or container

(1) This section applies to a cage or container that is seized under

section 456AA because it contains a seizable thing.

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(2) The cage or container may be retained for so long as an authorised

officer considers that it is reasonably necessary to retain it for the

purpose of housing the seizable thing.

(3) As soon as practicable after the end of the period during which the

cage or container may be retained under subsection (2), the

Secretary must cause reasonable steps to be taken to return the

cage or container to the person from whom it was seized (or to the

owner if that person is not entitled to possess it).

(4) Subsection (3) does not apply if:

(a) the seizure was also authorised by another provision of this

Part (the other seizure provision), as mentioned in

subsection 456AA(4)); or

(b) the cage or container is forfeited or forfeitable to the

Commonwealth; or

(c) the cage or container has been dealt with under this Part, or

as otherwise authorised (by a law, or an order of a court, of

the Commonwealth or of a State or Territory), in a way that

means the Secretary is not in a position to cause reasonable

steps to be taken to return the cage or container; or

(d) the Commonwealth, the Secretary or an authorised officer is

otherwise authorised (by a law, or an order of a court, of the

Commonwealth or of a State or Territory) to retain, destroy,

dispose of or otherwise deal with the cage or container.

(5) If, because of paragraph (4)(a), the cage or container does not have

to be returned at the end of the period referred to in subsection (3),

this Part then applies in relation to the cage or container as if, at the

end of that period, it had been seized under the other seizure

provision.

456AC Retention of non-seizable things contained in seized cages or

containers

(1) This section applies if:

(a) a cage or container is seized under section 456AA because it

contains a seizable thing; and

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(b) the cage or container also contains a thing (a non-seizable

thing) that is not a seizable thing.

(2) The non-seizable thing may be retained until it is reasonably

practicable to return the thing to the person from whom it was

seized (or to the owner if that person is not entitled to possess it).

(3) As soon as practicable after the end of the period during which the

non-seizable thing may be retained under subsection (2), the

Secretary must cause reasonable steps to be taken to return the

thing to the person from whom it was seized (or to the owner if that

person is not entitled to possess it).

(4) Subsection (3) does not apply if:

(a) the non-seizable thing is forfeited or forfeitable to the

Commonwealth; or

(b) the non-seizable thing has been dealt with under this Part, or

as otherwise authorised (by a law, or an order of a court, of

the Commonwealth or of a State or Territory), in a way that

means the Secretary is not in a position to cause reasonable

steps to be taken to return the thing; or

(c) the Commonwealth, the Secretary or an authorised officer is

otherwise authorised (by a law, or an order of a court, of the

Commonwealth or of a State or Territory) to retain, destroy,

dispose of or otherwise deal with the non-seizable thing.

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Part 17 Enforcement

Division 12 Environmental audits

Section 458

Division 12—Environmental audits

458 Directed environmental audits

(1) The Minister may, by written notice given to the holder of an

environmental authority, require the holder to carry out an

environmental audit if the Minister believes or suspects on

reasonable grounds:

(a) that the holder has contravened, or is likely to contravene, a

condition of the authority; or

(b) the impacts that the action authorised by the authority has,

has had or is likely to have on the matter dealt with by the

provision for which the authority authorises the action are

significantly greater than was indicated in the information

available to the Minister when the authority was granted.

(2) The notice must specify:

(a) the matters to be covered by the audit; and

(b) the form of the audit report and the kinds of particulars it is

to contain; and

(c) the date on or before which the report must be given to the

Minister.

(3) Without limiting the matters that may be specified under

paragraph (2)(a), those matters may include all or any of the

following:

(a) an evaluation of the nature of the environment that is or will

be affected by the holder’s activities; and

(b) an assessment of the risks to the environment resulting from

the activities; and

(c) an assessment of the holder’s existing capacity to comply

with the authority and the requirements of this Act and the

regulations in carrying on the activities; and

(d) an assessment of what the holder will need to do, or continue

to do, so to comply.

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(4) For the purposes of this Act, an environmental authority is:

(a) an approval under Part 9; or

(b) a permit issued under Chapter 5.

459 Appointment of auditor and carrying out of audit

(1) If the Minister gives the holder of an environmental authority a

notice under section 458, the holder must appoint an environmental

auditor and arrange for the auditor to carry out an environmental

audit in accordance with the notice.

(2) The holder of an environmental authority must not contravene

subsection (1).

Civil penalty: 500 penalty units.

(3) The holder must not appoint an officer or employee of the holder to

be an environmental auditor.

(4) The holder must not appoint a person to be an environmental

auditor unless the Minister has approved the person for such

appointment before the appointment is made.

(5) An appointment of a person as an environmental auditor made

otherwise than in accordance with subsections (3) and (4) has no

effect.

460 Nature of directed environmental audit

(1) If:

(a) an environmental auditor carries out a directed environmental

audit; and

(b) in the course of carrying out the audit, the auditor does not

deal with a particular matter; and

(c) the matter is specified in the Minister’s notice under

section 458 as a matter that is to be covered by the audit;

the auditor commits an offence, punishable on conviction by a fine

not exceeding 30 penalty units.

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Division 12 Environmental audits

Section 461

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

criminal responsibilities.

(2) If:

(a) an environmental auditor carries out a directed environmental

audit; and

(b) in the course of carrying out the audit, the auditor conceals,

or does not take into account, any information or document;

and

(c) the information or document is relevant to the audit;

the auditor commits an offence punishable on conviction by

imprisonment for not more than 6 months.

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

criminal responsibility.

Note 2: Subsection 4B(2) of the Crimes Act 1914 lets a court that convicts an

individual of an offence impose a fine instead of, or as well as,

imprisonment. The maximum fine (in penalty units) the court can

impose is 5 times the maximum term of imprisonment (in months).

(3) In carrying out a directed environmental audit, the environmental

auditor may, if:

(a) an environmental audit (including an environmental audit

carried out in accordance with a condition of the relevant

authority) was completed within the last preceding 2 years;

and

(b) the auditor is satisfied that the previous audit is still relevant;

have regard to the results of the previous audit.

(4) For the purposes of this Act, a directed environmental audit is an

audit required by a notice under section 458.

461 Audit reports

(1) After completing a directed environmental audit, the environmental

auditor must prepare, and give the holder of the relevant

environmental authority, a written report setting out the results of

the audit.

(2) The holder must give the report to the Minister:

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Section 462

(a) on or before the date specified by the Minister under

paragraph 458(2)(c); or

(b) on or before such later date as the Minister, on application by

the holder, determines.

(3) If the holder fails to comply with subsection (2), the holder

commits an offence, punishable on conviction by a fine not

exceeding 50 penalty units.

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

criminal responsibilities.

(4) If:

(a) the environmental auditor includes a statement in the report;

and

(b) the statement is false or misleading in a material particular;

the auditor commits an offence punishable on conviction by

imprisonment for not more than 6 months.

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

criminal responsibility.

Note 2: Subsection 4B(2) of the Crimes Act 1914 lets a court that convicts an

individual of an offence impose a fine instead of, or as well as,

imprisonment. The maximum fine (in penalty units) the court can

impose is 5 times the maximum term of imprisonment (in months).

462 Directed environmental audits do not affect other audit

obligations

This Division does not affect any obligation of a holder of an

environmental authority to carry out an environmental audit in

accordance with a condition of the authority.

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Chapter 6 Administration

Part 17 Enforcement

Division 13 Conservation orders

Section 463

Division 13—Conservation orders

Subdivision A—Simplified outline

463 Simplified outline of this Division

The following is a simplified outline of this Division:

The Minister may make conservation orders controlling activities,

and requiring specified people to take specified actions, in

Commonwealth areas to protect listed threatened species or

ecological communities.

A person who contravenes a conservation order commits an

offence.

Before the Minister makes a conservation order, he or she must

consult various Commonwealth agencies.

The Secretary must publicise conservation orders, and may give

assistance to a person to comply with a conservation order.

Subdivision B—Making and reviewing conservation orders

464 Minister may make conservation orders

Making conservation orders

(1) The Minister may make a written order (a conservation order):

(a) prohibiting or restricting specified activities on or in:

(i) all Commonwealth areas; or

(ii) specified Commonwealth areas; or

(b) requiring specified persons to take specified action on or in:

(i) all Commonwealth areas; or

(ii) specified Commonwealth areas.

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Section 465

Note: Section 470 makes contravening a conservation order an offence.

Prerequisite to making conservation order

(2) The Minister may only make a conservation order if he or she

reasonably believes that it is necessary to make the order to protect

a listed threatened species or a listed threatened ecological

community.

Minister must consider economic and social matters

(3) In considering whether to make a conservation order, the Minister

must be satisfied that making the order is justified, having regard to

economic and social considerations that are consistent with the

principles of ecologically sustainable development.

Minister must consult before making conservation order

(4) Before making a conservation order, the Minister:

(a) must seek the Secretary’s advice on whether it should be

made; and

(b) must consult each Commonwealth agency that may be

affected by the order, and any other Commonwealth agency

the Minister thinks appropriate, unless delay in making the

order would result in significant, irreparable damage to a

listed threatened species or listed threatened ecological

community.

465 Duration of conservation orders

(1) A conservation order comes into force:

(a) if a commencement day is specified in the order—on that

day; or

(b) otherwise—immediately after it is made.

(2) The order remains in force:

(a) for the period (if any) specified in the order; or

(b) until it is revoked by the Minister.

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Section 466

466 Reviews of conservation orders

(1) The Minister must:

(a) at intervals of not more than 5 years, review the conservation

order; and

(b) after each review, confirm, vary or revoke the order by

instrument in writing.

(2) Before reviewing the order, the Minister must seek the Secretary’s

advice on the review.

(3) The Minister must not revoke the order unless he or she is satisfied

that the order is no longer needed to protect the listed threatened

species or listed threatened ecological community the order was

made to protect.

(4) The Minister must not vary the order unless he or she is satisfied

that the order as varied adequately protects the listed threatened

species or listed threatened ecological community the order was

first made to protect.

(5) Immediately after a variation of the order, the order continues in

force as so varied.

467 Publication of conservation orders

(1) As soon as practicable after making or reviewing a conservation

order, the Minister must cause the Secretary to be informed of the

making of the order, or the decision on the review, as the case

requires.

(2) The Secretary must, as soon as practicable after being so informed:

(a) cause to be published in the Gazette, in a daily newspaper

circulating in each State or self-governing Territory in which

are located Commonwealth areas to which the order relates

and in any other way required by the regulations, a notice

containing:

(i) a copy of the order; and

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(ii) a statement to the effect that contravention of the order

is an offence against this Act; and

(iii) if applicable, a statement of the decision on the review;

and

(iv) a statement to the effect that a person affected by the

order may apply to the Minister, within 28 days of the

publication (or within such further period as the

Minister allows), for a reconsideration of the order by

the Minister; and

(b) take all reasonable steps to ensure that each person who the

Secretary knows would be affected by the order is given a

notice containing:

(i) a copy of the order; and

(ii) if applicable, a statement of the decision on the review;

and

(iii) unless the person is a Commonwealth agency or an

agency of a State or self-governing Territory—a

statement to the effect that contravention of the order is

an offence against this Act; and

(iv) a statement to the effect that the person may apply to the

Minister, within 28 days of being given the notice (or

within such further period as the Minister allows), for a

reconsideration of the order by the Minister.

(3) Failure to comply with this section does not affect the validity of

the order.

468 Application for reconsideration of conservation orders or

decisions on review

(1) A person affected by a conservation order, or by the decision on a

review of a conservation order, may apply to the Minister to

reconsider the order or the decision, as the case requires.

(2) The application must be in writing.

(3) Subject to subsection (4), the application must be made within 28

days, or within such further period as the Minister allows, after the

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Section 469

publication under paragraph 467(2)(a) of the notice relating to the

making of the order or conduct of the review.

(4) If the person is given a copy of the order after that publication, the

period of 28 days within which that person must make the

application is taken to commence on the day on which the person

received the notice.

469 Reconsideration of conservation orders and decisions on review

(1) Upon receiving the application, the Minister must:

(a) seek the Secretary’s advice on the application; and

(b) reconsider the conservation order or the decision on review,

as the case requires; and

(c) by written instrument:

(i) confirm, vary or revoke the order; or

(ii) confirm or vary the decision on review; and

(d) cause the Secretary to be informed accordingly.

(2) As soon as practicable after being so informed, the Secretary must:

(a) notify the applicant in writing of the result of the

reconsideration; and

(b) if the order is revoked or varied or the decision on review is

varied—cause to be published in the Gazette, and in any

other way required by the regulations, a notice:

(i) stating that fact; and

(ii) in the case of a variation—setting out a copy of the

order or decision as so varied.

(3) Immediately after a variation of the order, the order continues in

effect as so varied.

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Section 470

Subdivision C—Complying with conservation orders

470 Contravening conservation orders is an offence

(1) A person must not take an action reckless as to whether the action

contravenes a conservation order.

Penalty: 500 penalty units.

(2) If a person believes that taking an action that he or she proposes to

take may contravene a particular conservation order, the person

may seek the Minister’s advice under subsection 471(3) on

whether the order would be contravened by taking that action.

(3) The person does not contravene the order if he or she acts in

accordance with advice given to him or her under

subsection 471(3) to the effect that the order would not be

contravened.

471 Minister to consider proposed actions etc.

(1) This section applies to a proposed action if it is referred to the

Minister under section 470 for the Minister’s advice on whether it

would contravene a conservation order.

(2) A person who proposes to take the action may make written

submissions to the Minister about the proposed action.

(3) The Minister must:

(a) refer the proposed action, together with any submissions

received by the Minister about the proposed action, to the

Secretary; and

(b) after considering the Secretary’s advice on the matter, give

the person who sought the Minister’s advice under

section 470 a written notice of the minister’s advice on the

proposed action.

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Section 472

472 Contents of notices of advice

(1) The notice of advice must state whether the Minister thinks that the

proposed action would contravene a conservation order.

(2) If the decision to give the advice was not made personally by the

Minister and the notice of advice is given to a person who is not a

Commonwealth agency, the notice must include:

(a) a statement to the effect that, if the person is dissatisfied with

the decision to give that advice, application may, subject to

the Administrative Appeals Tribunal Act 1975, be made to

the Administrative Appeals Tribunal for review of the

decision; and

(b) a statement to the effect that the person may request a

statement under section 28 of that Act in relation to the

decision.

473 Review by the Administrative Appeals Tribunal

(1) Subject to subsections (1A) and (2), applications may be made to

the Administrative Appeals Tribunal for review of the decision to

give the advice.

(1A) Subsection (1) does not apply to a decision made personally by the

Minister (but the subsection does apply to a decision made by a

delegate of the Minister).

(2) Despite section 27 of the Administrative Appeals Tribunal Act

1975, applications are not to be made by or on behalf of

Commonwealth agencies.

474 Assistance in complying with conservation orders

(1) On behalf of the Commonwealth, the Secretary may provide

assistance to a person (other than a Commonwealth agency) to

comply with prohibitions, restrictions or requirements imposed on

a person by a conservation order.

(2) The assistance may take any one or more of the following forms:

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(a) payment of money;

(b) provision of goods;

(c) provision of labour;

(d) provision of other services.

(3) The value of the assistance must not exceed that which the

Secretary thinks are the reasonable and direct costs of complying

with the prohibitions, restrictions or requirements in question.

(4) Assistance given under this section must be taken into account in

determining compensation payable under section 519.

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Part 17 Enforcement

Division 14 Injunctions

Section 475

Division 14—Injunctions

475 Injunctions for contravention of the Act

Applications for injunctions

(1) If a person has engaged, engages or proposes to engage in conduct

consisting of an act or omission that constitutes an offence or other

contravention of this Act or the regulations:

(a) the Minister; or

(b) an interested person (other than an unincorporated

organisation); or

(c) a person acting on behalf of an unincorporated organisation

that is an interested person;

may apply to the Federal Court for an injunction.

Prohibitory injunctions

(2) If a person has engaged, is engaging or is proposing to engage in

conduct constituting an offence or other contravention of this Act

or the regulations, the Court may grant an injunction restraining the

person from engaging in the conduct.

Additional orders with prohibitory injunctions

(3) If the court grants an injunction restraining a person from engaging

in conduct and in the Court’s opinion it is desirable to do so, the

Court may make an order requiring the person to do something

(including repair or mitigate damage to the environment).

Mandatory injunctions

(4) If a person has refused or failed, or is refusing or failing, or is

proposing to refuse or fail to do an act, and the refusal or failure

did, does or would constitute an offence or other contravention of

this Act or the regulations, the Court may grant an injunction

requiring the person to do the act.

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Section 475

Interim injunctions

(5) Before deciding an application for an injunction under this section,

the Court may grant an interim injunction:

(a) restraining a person from engaging in conduct; or

(b) requiring a person to do an act.

Meaning of interested person—individuals

(6) For the purposes of an application for an injunction relating to

conduct or proposed conduct, an individual is an interested person

if the individual is an Australian citizen or ordinarily resident in

Australia or an external Territory, and:

(a) the individual’s interests have been, are or would be affected

by the conduct or proposed conduct; or

(b) the individual engaged in a series of activities for protection

or conservation of, or research into, the environment at any

time in the 2 years immediately before:

(i) the conduct; or

(ii) in the case of proposed conduct—making the

application for the injunction.

Meaning of interested person—organisations

(7) For the purposes of an application for an injunction relating to

conduct or proposed conduct, an organisation (whether

incorporated or not) is an interested person if it is incorporated (or

was otherwise established) in Australia or an external Territory and

one or more of the following conditions are met:

(a) the organisation’s interests have been, are or would be

affected by the conduct or proposed conduct;

(b) if the application relates to conduct—at any time during the 2

years immediately before the conduct:

(i) the organisation’s objects or purposes included the

protection or conservation of, or research into, the

environment; and

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Section 476

(ii) the organisation engaged in a series of activities related

to the protection or conservation of, or research into, the

environment;

(c) if the application relates to proposed conduct—at any time

during the 2 years immediately before the making of the

application:

(i) the organisation’s objects or purposes included the

protection or conservation of, or research into, the

environment; and

(ii) the organisation engaged in a series of activities related

to the protection or conservation of, or research into, the

environment.

476 Injunctions for contraventions of conservation agreements

Applications for injunctions

(1) If a person bound by a conservation agreement engages or

proposes to engage in conduct consisting of an act or omission that

constitutes a contravention of the agreement, another person bound

by the agreement or the Minister may apply to the Federal Court

for an injunction.

Note: Section 307 explains who is bound by a conservation agreement.

Prohibitory injunctions

(2) If a person has engaged, is engaging or is proposing to engage in

conduct contravening the agreement, the Court may grant an

injunction restraining the person from engaging in the conduct.

Additional orders with prohibitory injunctions

(3) If the court grants an injunction restraining a person from engaging

in conduct and in the Court’s opinion it is desirable to do so, the

Court may make an order requiring the person to do something

(including repair or mitigate damage to the environment).

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Section 477

Mandatory injunctions

(4) If a person has refused or failed, or is refusing or failing, or is

proposing to refuse or fail to do an act, and the refusal or failure

was, is or would be a contravention of the agreement, the Court

may grant an injunction requiring the person to do the act.

Interim injunctions

(5) Before deciding an application for an injunction under this section

the Court may grant an interim injunction:

(a) restraining a person from engaging in conduct; or

(b) requiring a person to do an act.

477 Discharge of injunctions

On application, the Federal Court may discharge or vary an

injunction.

479 Certain considerations for granting injunctions not relevant

Prohibitory injunctions

(1) The Federal Court may grant an injunction restraining a person

from engaging in conduct:

(a) whether or not it appears to the Court that the person intends

to engage again, or to continue to engage, in conduct of that

kind; and

(b) whether or not the person has previously engaged in conduct

of that kind; and

(c) whether or not there is a significant risk of injury or damage

to human beings or the environment if the person engages, or

continues to engage, in conduct of that kind.

Mandatory injunctions

(2) The Federal Court may grant an injunction requiring a person to do

a particular act or thing:

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Section 480

(a) whether or not it appears to the Court that the person intends

to refuse or fail again, or to continue to refuse or fail, to do

the act or thing; and

(b) whether or not the person has previously refused or failed to

do the act or thing; and

(c) whether or not there is a significant risk of injury or damage

to human beings or the environment if the person refuses or

fails, or continues to refuse or fail, to do the act or thing.

480 Powers conferred are in addition to other powers of the Court

The powers conferred on the Federal Court by this Division are in

addition to (and do not limit) any other powers of the Court.

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Federal Court’s power to make remediation orders Division 14A

Section 480A

Division 14A—Federal Court’s power to make remediation

orders

480A Remediation orders

(1) If, after the commencement of this section, a person has engaged,

or is engaging, in conduct constituting an offence or other

contravention of this Act or the regulations, the Federal Court may

make an order (a remediation order) requiring the person to take

action (the remediation action) to repair or mitigate damage that

may or will be, or that has been, caused to the environment by the

contravention.

(2) In considering whether to grant a remediation order, the matters to

which the Federal Court may have regard include (but are not

limited to) the following:

(a) the nature and extent of the contravention;

(b) the nature and extent of the damage to the environment that

may or will be, or that has been, caused by the contravention;

(c) the circumstances in which the contravention took place;

(d) whether the person has previously been found by a court in

proceedings under this Act or the regulations to have

engaged in any similar conduct;

(e) the cost to the person of taking the remediation action.

(3) The description in a remediation order of the remediation action

may either be in general terms (for example, requiring the person

to take whatever action is necessary to repair or mitigate the

damage), or it may require the person to take particular action to

repair or mitigate the damage.

(4) If the Federal Court makes a remediation order, it may also make

an order requiring the person to provide security for the due taking

of the remediation action.

(5) Application to the Federal Court for a remediation order may only

be made by the Minister.

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Division 14A Federal Court’s power to make remediation orders

Section 480B

480B Discharge of remediation orders

On application by the Minister, the Federal Court may discharge or

vary a remediation order.

480C Powers conferred are in addition to other powers of the Court

The powers conferred on the Federal Court by this Division are in

addition to (and do not limit) any other powers of the Court.

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Minister’s power to make remediation determinations Division 14B

Section 480D

Division 14B—Minister’s power to make remediation

determinations

Subdivision A—Making of remediation determinations

480D Minister may make remediation determination

(1) If:

(a) the Minister considers that an action taken by a person after

the commencement of this section contravened a civil penalty

provision of Part 3; and

(b) the Minister considers it desirable to make an order under

this section in relation to the action;

the Minister may make a written determination (a remediation

determination) requiring the person to take action to repair or

mitigate damage that may or will be, or that has been, caused by

the contravention, to the matter protected by the provision of

Part 3.

(2) The Minister cannot make a remediation determination at a time

that is more than 6 years after the time when the person took the

action referred to in paragraph (1)(a).

(3) A remediation determination is not a legislative instrument.

480E Contents of a remediation determination

(1) A remediation determination must specify the following:

(a) the person (the specified person) referred to in

paragraph 480D(1)(a);

(b) the action (the specified action) referred to in that paragraph;

(c) the civil penalty provision (the specified civil penalty

provision) of Part 3 referred to in that paragraph;

(d) the action (the remediation action) that the person is required

to take.

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Division 14B Minister’s power to make remediation determinations

Section 480F

(2) A remediation determination may do all or any of the following in

relation to some or all of the remediation action:

(a) require action to be taken in a specified place;

(b) require action to be taken at, or by, a specified time;

(c) require a specified industry standard or code of practice to be

complied with in taking action;

(d) require the taking of reasonable steps to obtain any

Commonwealth, State or Territory approval or authority

needed to carry out action;

(e) require the preparation, and submission to the Minister for

approval, of a plan for taking action, and require action to be

taken in accordance with the plan as approved by the

Minister;

(f) require the spending of a specified amount of money on the

taking of action;

(g) require the payment to a specified person of a specified

amount or money, for the purpose of activities directed

towards the protection and conservation of the matter

protected by the specified civil penalty provision;

(h) require the payment to the Commonwealth of a specified

amount of money as security for the due taking of action;

(i) provide for monitoring, auditing, or reporting to the Minister,

in relation to the taking of action.

(3) A remediation determination must contain a statement to the effect

that the specified person may apply for a reconsideration of the

determination under section 480J.

480F Notifying owners and occupiers of land of proposed

remediation determination

(1) Before the Minister makes a remediation determination that

requires action to be taken on land that is not owned or occupied

by the person proposed to be specified in the order, the Minister

must:

(a) take all practicable steps to identify each person who is an

owner or occupier of all or part of the land; and

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Section 480G

(b) take all practicable steps to advise each person identified of

the remediation determination that the Minister proposes to

make; and

(c) give persons advised at least 20 business days to comment in

writing to the Minister on the proposed remediation

determination.

(2) The Minister must take the comments into account in deciding

whether to make the proposed remediation determination.

480G Notifying that remediation determination has been made

As soon as practicable after a remediation determination is made,

the Minister must:

(a) give the specified person a copy of the determination; and

(b) take all practicable steps to advise each person identified as

mentioned in paragraph 480F(1)(a) of the making of the

remediation determination.

480H Duration of remediation determinations

(1) A remediation determination comes into force:

(a) if a commencement day is specified in the determination (not

being a day before paragraph 480G(a) is complied with)—on

that day; or

(b) otherwise—when paragraph 480G(a) is complied with.

(2) The determination remains in force:

(a) for the period (if any) specified in the order; or

(b) until it is set aside by the Federal Court under Subdivision B

or it is revoked by the Minister under Subdivision D.

480J Ministerial reconsideration of remediation determinations

(1) Within 20 days after receiving a copy of a remediation

determination as required by paragraph 480G(a), the specified

person may apply to the Minister for a reconsideration of the

determination.

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Division 14B Minister’s power to make remediation determinations

Section 480K

(2) On receipt of an application for reconsideration of a remediation

determination, the Minister may affirm, vary or set aside the

determination.

(3) The Minister may take account of information and comments from

any source the Minister considers appropriate in deciding what

action to take in relation to an application under this section.

(4) The Minister must:

(a) advise the specified person of the Minister’s decision in

relation to an application under this section; and

(b) take all practicable steps to advise each person identified as

mentioned in paragraph 480F(1)(a) of the Minister’s decision

in relation to an application under this section.

Subdivision B—Federal Court may set aside remediation

determination

480K Applying to Federal Court to have remediation determination

set aside

(1) Within 28 days after any of the following:

(a) the specified person receives a copy of a remediation

determination as required by paragraph 480G(a); or

(b) a remediation determination is affirmed or varied under

section 480J; or

(c) a remediation determination is varied by the Minister under

Subdivision D;

the specified person may apply to the Federal Court to have the

remediation determination set aside.

(2) On an application under subsection (1), the Federal Court must set

aside the remediation determination if the Court is satisfied that:

(a) the specified action did not occur; or

(b) the specified person did not take the specified action; or

(c) the specified action was not a contravention of the specified

civil penalty provision; or

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Section 480L

(d) the remediation action is not a reasonable measure to repair

or mitigate damage that may or will be, or that has been,

caused by the specified action to the matter protected by the

specified civil penalty provision.

(3) In considering whether the remediation determination is a

reasonable measure to repair or mitigate damage that may or will

be, or that has been, caused by the specified action to the matter

protected by the specified civil penalty provision, the Federal Court

must have regard to the following:

(a) the nature and extent of the specified action;

(b) the nature and extent of the damage to the environment that

may or will be, or that has been, caused by the specified

action to the matter protected by the specified civil penalty

provision;

(c) the circumstances in which the specified action took place;

(d) whether the specified person has previously been found by a

court in proceedings under this Act or the regulations to have

engaged in any similar conduct;

(e) the cost to the specified person of taking the remediation

action.

The Federal Court may also have regard to any other matters it

considers relevant.

(4) The Federal Court must not set aside the remediation determination

unless it is satisfied as mentioned in subsection (2).

Subdivision C—Complying with remediation determinations

480L Federal Court may order compliance with remediation

determination

(1) If the Minister considers that the specified person has contravened

a remediation determination, the Minister may apply to the Federal

Court for an order under subsection (2).

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Division 14B Minister’s power to make remediation determinations

Section 480M

(2) If the Federal Court is satisfied that the specified person has

contravened a remediation determination, the Court may make one

or more of the following orders:

(a) an order directing the specified person to comply with the

remediation determination;

(b) any other order that the Court considers appropriate.

480M Civil penalty for contravention of remediation determination

(1) The specified person must not contravene a remediation

determination.

(2) Subsection (1) is a civil penalty provision. Under section 481, the

Federal Court may order the specified person to pay a pecuniary

penalty not more than the pecuniary penalty the Court could order

the person to pay under that section for a contravention of the

specified civil penalty provision.

Subdivision D—Variation or revocation of remediation

determinations

480N Variation or revocation of remediation determination

(1) The Minister may, in writing, vary or revoke a remediation

determination.

(2) Sections 480F and 480G apply in relation to the variation or

revocation of a remediation determination in the same way as they

apply in relation to the making of a remediation determination.

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Civil penalties Division 15

Section 481

Division 15—Civil penalties

Subdivision A—Obtaining an order for a civil penalty

481 Federal Court may order person to pay pecuniary penalty for

contravening civil penalty provision

Application for order

(1) Within 6 years of a person (the wrongdoer) contravening a civil

penalty provision, the Minister may apply on behalf of the

Commonwealth to the Federal Court for an order that the

wrongdoer pay the Commonwealth a pecuniary penalty.

Court may order wrongdoer to pay pecuniary penalty

(2) If the Court is satisfied that the wrongdoer has contravened a civil

penalty provision, the Court may order the wrongdoer to pay to the

Commonwealth for each contravention the pecuniary penalty that

the Court determines is appropriate (but not more than the relevant

amount specified for the provision).

Determining amount of pecuniary penalty

(3) In determining the pecuniary penalty, the Court must have regard

to all relevant matters, including:

(a) the nature and extent of the contravention; and

(b) the nature and extent of any loss or damage suffered as a

result of the contravention; and

(c) the circumstances in which the contravention took place; and

(d) whether the person has previously been found by the Court in

proceedings under this Act to have engaged in any similar

conduct.

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Division 15 Civil penalties

Section 482

Conduct contravening more than one civil penalty provision

(4) If conduct constitutes a contravention of 2 or more civil penalty

provisions, proceedings may be instituted under this Act against a

person in relation to the contravention of any one or more of those

provisions. However, the person is not liable to more than one

pecuniary penalty under this section in respect of the same

conduct.

482 What is a civil penalty provision?

A subsection of this Act (or a section of this Act that is not divided

into subsections) is a civil penalty provision if:

(a) the words “civil penalty” and one or more amounts in penalty

units are set out at the foot of the subsection (or section); or

(b) another provision of this Act specifies that the subsection (or

section) is a civil penalty provision.

483 Contravening a civil penalty provision is not an offence

A contravention of a civil penalty provision is not an offence.

484 Persons involved in contravening civil penalty provision

(1) A person must not:

(a) aid, abet, counsel or procure a contravention of a civil

penalty provision; or

(b) induce (by threats, promises or otherwise) a contravention of

a civil penalty provision; or

(c) be in any way directly or indirectly knowingly concerned in,

or party to, a contravention of a civil penalty provision; or

(d) conspire to contravene a civil penalty provision.

(2) This Division applies to a person who contravenes subsection (1)

in relation to a civil penalty provision as if the person had

contravened the provision.

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Section 485

485 Recovery of a pecuniary penalty

If the Federal Court orders a person to pay a pecuniary penalty:

(a) the penalty is payable to the Commonwealth; and

(b) the Commonwealth may enforce the order as if it were a

judgment of the Court.

Subdivision B—Civil penalty proceedings and criminal

proceedings

486A Civil proceedings after criminal proceedings

The Federal Court must not make a pecuniary penalty order against

a person for a contravention of a civil penalty provision if the

person has been convicted of an offence constituted by conduct

that is substantially the same as the conduct constituting the

contravention.

486B Criminal proceedings during civil proceedings

(1) Proceedings for a pecuniary penalty order against a person for a

contravention of a civil penalty provision are stayed if:

(a) criminal proceedings are started or have already been started

against the person for an offence; and

(b) the offence is constituted by conduct that is substantially the

same as the conduct alleged to constitute the contravention.

(2) The proceedings for the order may be resumed if the person is not

convicted of the offence. Otherwise, the proceedings for the order

are dismissed.

486C Criminal proceedings after civil proceedings

Criminal proceedings may be started against a person for conduct

that is substantially the same as conduct constituting a

contravention of a civil penalty provision regardless of whether a

pecuniary penalty order has been made against the person.

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Division 15 Civil penalties

Section 486D

486D Evidence given in proceedings for penalty not admissible in

criminal proceedings

Evidence of information given or evidence of production of

documents by an individual is not admissible in criminal

proceedings against the individual if:

(a) the individual previously gave the evidence or produced the

documents in proceedings for a pecuniary penalty order

against the individual for a contravention of a civil penalty

provision (whether or not the order was made); and

(b) the conduct alleged to constitute the offence is substantially

the same as the conduct that was claimed to constitute the

contravention.

However, this does not apply to a criminal proceeding in respect of

the falsity of the evidence given by the individual in the

proceedings for the pecuniary penalty order.

Subdivision C—Enforceable undertakings relating to

contraventions of Part 3 civil penalty provisions

486DA Acceptance of undertakings relating to contraventions of

Part 3 civil penalty provisions

(1) This section applies if the Minister considers that an action taken

by a person after the commencement of this section contravened a

civil penalty provision of Part 3.

(2) The Minister may accept a written undertaking given by the person

in relation to the action, in which the person undertakes to pay a

specified amount, within a specified period:

(a) to the Commonwealth; or

(b) to some other specified person, for the purpose of activities

directed towards the protection and conservation of the

matter protected by the civil penalty provision referred to in

subsection (1).

(3) The person may withdraw or vary the undertaking at any time, but

only with the consent of the Minister.

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Civil penalties Division 15

Section 486DB

486DB Enforcement of undertakings

(1) If the Minister considers that a person who gave an undertaking

under section 486DA has breached any of its terms, the Minister

may apply to the Federal Court for an order under subsection (2).

(2) If the Federal Court is satisfied that the person has breached a term

of the undertaking, the Court may make one or more of the

following orders:

(a) an order directing the person to comply with that term of the

undertaking;

(b) any other order that the Court considers appropriate.

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Division 15A Notices to produce or attend

Section 486E

Division 15A—Notices to produce or attend

486E Application of Division

(1) This Division applies if the Minister believes, on reasonable

grounds, that a person is capable of giving information, or

producing books, records or documents, that are relevant for the

purposes of investigating or preventing:

(a) an offence against an environmental law; or

(b) a contravention of an environmental penalty provision.

(2) In this Division:

official means any of the following:

(a) the Minister;

(b) an officer or employee in the Department;

(c) the Director;

(d) the Chief Executive Officer of the Great Barrier Reef Marine

Park Authority;

(e) a member of the staff of the Great Barrier Reef Marine Park

Authority.

486F Minister may require person to provide information etc.

(1) The Minister may, by written notice, require the person to give to

an official specified in the notice, in the manner and within the

period specified in the notice:

(a) such information as is specified in the notice; or

(b) any book, record or document that is specified in the notice.

The period must end not less than 14 days after the notice is given.

(2) A notice under subsection (1) must set out the effect of section 491

of this Act and of sections 137.1 and 137.2 of the Criminal Code.

(3) A person commits an offence if:

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Section 486G

(a) the person is required to give information or a book, record

or document to an official under subsection (1); and

(b) the person does not give the information, book, record or

document to the official.

Penalty: Imprisonment for 6 months.

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

criminal responsibility.

486G Minister may require person to appear before Minister

(1) The Minister may, by written notice, require the person to appear

before an official specified in the notice, at a time and place

specified in the notice:

(a) to answer any questions put by the official; and

(b) to produce to the official such books, records or documents

as are specified in the notice.

The time must not be earlier than 14 days after the notice is given.

(2) A notice under subsection (1) must set out the effect of section 491

of this Act and of sections 137.1 and 137.2 of the Criminal Code.

(3) A person commits an offence if:

(a) the person is required to appear before an official under

subsection (1); and

(b) the person does not appear before the official.

Penalty: Imprisonment for 6 months.

(4) A person commits an offence if:

(a) the person is required to appear before an official under

subsection (1); and

(b) when appearing before the official, the person does not:

(i) answer a question put by the official; or

(ii) produce a book, record or document to the official as

required by the notice given under that subsection.

Penalty: Imprisonment for 6 months.

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Division 15A Notices to produce or attend

Section 486H

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

criminal responsibility.

486H Persons to whom notices may not be given

A notice under subsection 486F(1) or 486G(1) must not be given to

a person if the person is, or has been, a lawyer for:

(a) if the notice relates to the investigation or prevention of an

offence against an environmental law—the person suspected

of having committed the offence; or

(b) if the notice relates to the investigation or prevention of a

contravention of an environmental penalty provision—the

person suspected of having contravened the provision.

486J Self-incrimination

(1) An individual is not excused from giving information (including by

answering a question), or from giving or producing a book, record

or document, under this Division on the ground that the

information, or the giving or production of the book, record or

document, might tend to incriminate the individual or expose the

individual to a penalty.

(2) However:

(a) the information given, or the book, record or document given

or produced; or

(b) giving the information, or giving or producing the book

record or document; or

(c) any information, document or thing obtained as a direct or

indirect consequence of giving the information, or giving or

producing the book, record or document;

is not admissible in evidence against the person:

(d) in any civil proceedings; or

(e) in any criminal proceedings other than:

(i) proceedings for an offence against subsection 486F(3)

or 486G(3) or (4); or

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Section 486J

(ii) proceedings for an offence against section 491 that

relates to a requirement under this Division; or

(iii) proceedings for an offence against section 137.1 or

137.2 (false or misleading information or documents) of

the Criminal Code that relates to a requirement under

this Division.

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Division 16 Review of administrative decisions

Section 487

Division 16—Review of administrative decisions

487 Extended standing for judicial review

(1) This section extends (and does not limit) the meaning of the term

person aggrieved in the Administrative Decisions (Judicial

Review) Act 1977 for the purposes of the application of that Act in

relation to:

(a) a decision made under this Act or the regulations; or

(b) a failure to make a decision under this Act or the regulations;

or

(c) conduct engaged in for the purpose of making a decision

under this Act or the regulations.

(2) An individual is taken to be a person aggrieved by the decision,

failure or conduct if:

(a) the individual is an Australian citizen or ordinarily resident in

Australia or an external Territory; and

(b) at any time in the 2 years immediately before the decision,

failure or conduct, the individual has engaged in a series of

activities in Australia or an external Territory for protection

or conservation of, or research into, the environment.

(3) An organisation or association (whether incorporated or not) is

taken to be a person aggrieved by the decision, failure or conduct

if:

(a) the organisation or association is incorporated, or was

otherwise established, in Australia or an external Territory;

and

(b) at any time in the 2 years immediately before the decision,

failure or conduct, the organisation or association has

engaged in a series of activities in Australia or an external

Territory for protection or conservation of, or research into,

the environment; and

(c) at the time of the decision, failure or conduct, the objects or

purposes of the organisation or association included

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Section 488

protection or conservation of, or research into, the

environment.

(4) A term (except person aggrieved) used in this section and in the

Administrative Decisions (Judicial Review) Act 1977 has the same

meaning in this section as it has in that Act.

488 Applications on behalf of unincorporated organisations

(1) A person acting on behalf of an unincorporated organisation that is

a person aggrieved (for the purposes of the Administrative

Decisions (Judicial Review) Act 1977) by:

(a) a decision made under this Act or the regulations; or

(b) a failure to make a decision under this Act or the regulations;

or

(c) conduct engaged in for the purpose of making a decision

under this Act or the regulations;

may apply under that Act for a review of the decision, failure or

conduct.

(2) The Administrative Decisions (Judicial Review) Act 1977 applies

in relation to the person as if he or she were a person aggrieved.

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Division 17 Duty to provide accurate information

Section 489

Division 17—Duty to provide accurate information

489 Providing false or misleading information to obtain approval or

permit

(1) A person commits an offence if:

(a) the person provides information in response to a requirement

or request under Part 7, 8, 9, 13 or 13A; and

(b) the person is reckless as to whether the information is false or

misleading in a material particular.

Note: The fault element in paragraph (1)(b) can be demonstrated by proof of

knowledge. See subsection 5.4(4) of the Criminal Code.

(2) An offence against subsection (1) is punishable on conviction by:

(a) imprisonment for a term not more than 2 years, a fine not

more than 120 penalty units, or both, if it is proved the

person knew the information was false or misleading; or

(b) imprisonment for a term not more than 1 year, a fine not

more than 60 penalty units, or both, if it is proved the person

was reckless as to whether the information was false or

misleading.

Note: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body

corporate up to 5 times the maximum amount the court could fine a

person under this subsection.

(2A) A person commits an offence if:

(a) the person provides information in response to a requirement

or request under Part 7, 8, 9, 13 or 13A; and

(b) the person is negligent as to whether the information is false

or misleading in a material particular.

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

criminal responsibility.

(2B) An offence against subsection (2A) is punishable on conviction by

a fine not more than 30 penalty units.

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Duty to provide accurate information Division 17

Section 490

Note: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body

corporate up to 5 times the maximum amount the court could fine a

person under this subsection.

(3) Subsections (1) and (2A) do not apply to a requirement to provide

information that is imposed by a condition attached to an

environmental authority.

Note: The defendant bears an evidential burden in relation to the matter in

subsection (3). See subsection 13.3(3) of the Criminal Code.

490 Providing false or misleading information in response to a

condition on an approval or permit

(1) A person commits an offence if:

(a) the person is the holder of an environmental authority; and

(b) a condition attached to the environmental authority requires

the person to provide information; and

(c) the person provides information in response (or purportedly

in response) to the requirement; and

(d) the person is reckless as to whether the information is false or

misleading in a material particular.

Note: The fault element in paragraph (1)(d) can be demonstrated by proof of

knowledge. See subsection 5.4(4) of the Criminal Code.

(2) The offence is punishable on conviction by:

(a) imprisonment for a term not more than 2 years, a fine not

more than 120 penalty units, or both, if it is proved the

person knew the information was false or misleading; or

(b) imprisonment for a term not more than 1 year, a fine not

more than 60 penalty units, or both, if it is proved the person

was reckless as to whether the information was false or

misleading.

Note: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body

corporate up to 5 times the maximum amount the court could fine a

person under this subsection.

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Part 17 Enforcement

Division 17 Duty to provide accurate information

Section 491

491 Providing false or misleading information to authorised officer

etc.

(1) A person commits an offence if the person:

(a) provides information or a document to another person (the

recipient); and

(b) knows the recipient is:

(i) an authorised officer; or

(ii) the Minister; or

(iii) an employee or officer in the Department; or

(iv) a commissioner;

performing a duty or carrying out a function under this Act or

the regulations; and

(c) knows the information or document is false or misleading in

a material particular.

(2) The offence is punishable on conviction by imprisonment for a

term not more than 1 year, a fine not more than 60 penalty units, or

both.

Note: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body

corporate up to 5 times the maximum amount the court could fine a

person under this subsection.

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Liability of executive officers for corporations Division 18

Section 493

Division 18—Liability of executive officers for

corporations

493 Who is an executive officer of a body corporate?

In this Act:

executive officer of a body corporate means a person, by whatever

name called and whether or not a director of the body, who is

concerned in, or takes part in, the management of the body.

494 Civil penalties for executive officers of bodies corporate

(1) If:

(a) a body corporate contravenes:

(i) a civil penalty provision of Part 3 (requirements for

approvan( � or

(ii) section 142 (condition of approvan( � or

(iii) section 390SA (declared commercial fishing activity);

and

(b) an executive officer of the body knew that, or was reckless or

negligent as to whether, the contravention would occur; and

(c) the officer was in a position to influence the conduct of the

body in relation to the contravention; and

(d) the officer failed to take all reasonable steps to prevent the

contravention;

the officer contravenes this subsection.

(2) Subsection (1) is a civil penalty provision. Under section 481, the

Federal Court may order a person contravening subsection (1) to

pay a pecuniary penalty not more than the pecuniary penalty the

Court could order an individual to pay for contravening the civil

penalty provision contravened by the body corporate.

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Part 17 Enforcement

Division 18 Liability of executive officers for corporations

Section 495

495 Criminal liability of executive officers of bodies corporate

(1) If:

(a) a body corporate contravenes:

(i) section 489 (Providing false or misleading information

to obtain approval or permit); or

(ii) section 490 (Providing false or misleading information

in response to a condition on an approval or permit); or

(iii) section 491 (Providing false or misleading information

to authorised officer etc.); and

(b) an executive officer of the body knew that, or was reckless or

negligent as to whether, the contravention would occur; and

(c) the officer was in a position to influence the conduct of the

body in relation to the contravention; and

(d) the officer failed to take all reasonable steps to prevent the

contravention;

the officer commits an offence punishable on conviction by

imprisonment for a term not exceeding 2 years.

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

criminal responsibility.

Note 2: Subsection 4B(2) of the Crimes Act 1914 lets a court that convicts an

individual of an offence impose a fine instead of, or as well as,

imprisonment. The maximum fine (in penalty units) the court can

impose is 5 times the maximum term of imprisonment (in months).

(2) If:

(a) a body corporate contravenes:

(i) section 15A (Offences relating to declared World

Heritage properties); or

(ia) section 15C (Offences relating to National Heritage

places); or

(ii) section 17B (Offences relating to declared Ramsar

wetlands); or

(iii) section 18A (Offences relating to threatened species

etc.); or

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Liability of executive officers for corporations Division 18

Section 496

(iv) section 20A (Offences relating to listed migratory

species); or

(v) section 22A (Offences relating to nuclear actions); or

(vi) section 24A (Offences relating to marine areas); or

(via) section 24E (Offences relating to water resources); or

(vii) section 27A (Offences relating to Commonwealth land);

or

(viia) section 27C (Offences relating to Commonwealth

heritage places overseas); or

(viii) section 142A (Offence of breaching conditions on

approvan( � or

(ix) section 390SB (Offence relating to declared commercial

fishing activity); and

(b) an executive officer of the body was reckless as to whether

the contravention would occur; and

(c) the officer was in a position to influence the conduct of the

body in relation to the contravention; and

(d) the officer failed to take all reasonable steps to prevent the

contravention;

the officer commits an offence.

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

criminal responsibility.

(3) An offence against subsection (2) is punishable on conviction by

imprisonment for a term not exceeding the term specified in the

provision contravened by the body corporate.

Note: Subsection 4B(2) of the Crimes Act 1914 lets a court that convicts an

individual of an offence impose a fine instead of, or as well as,

imprisonment. The maximum fine (in penalty units) the court can

impose is 5 times the maximum term of imprisonment (in months).

496 Did an executive officer take reasonable steps to prevent

contravention?

(1) For the purposes of sections 494 and 495, in determining whether

an executive officer of a body corporate failed to take all

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Division 18 Liability of executive officers for corporations

Section 496

reasonable steps to prevent the contravention, a court is to have

regard to:

(a) what action (if any) the officer took directed towards

ensuring the following (to the extent that the action is

relevant to the contravention):

(i) that the body arranges regular professional assessments

of the body’s compliance with this Act and the

regulations;

(ii) that the body implements any appropriate

recommendations arising from such an assessment;

(iii) that the body has an appropriate system established for

managing the effects of the body’s activities on the

environment;

(iv) that the body’s employees, agents and contractors have

a reasonable knowledge and understanding of the

requirements to comply with this Act and the

regulations, in so far as those requirements affect the

employees, agents or contractors concerned; and

(b) what action (if any) the officer took when he or she became

aware that the body was contravening:

(i) this Act; or

(ii) the regulations; or

(iii) if the body contravened Part 3 or section 142 or 142A—

any action management plan that was prepared by the

body, and approved by the Minister, as required by a

condition attached to an approval under Part 9 for the

purposes of a provision of Part 3 of the body’s taking of

an action.

(2) This section does not, by implication, limit the generality of

sections 494 and 495.

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Liability of landholders for other people’s actions Division 18A

Section 496A

Division 18A—Liability of landholders for other people’s

actions

496A Who is a landholder?

For the purposes of this Division, a landholder, in relation to an

area of land, is a person who is an owner, lessee or occupier of the

area of land.

496B Civil penalties for landholders

(1) If:

(a) a person (the actor) takes an action on an area of land that is

a contravention of:

(i) a provision of Part 3 that is a civil penalty provision; or

(ii) section 142; and

(b) a landholder in relation to the area of land knew that, or was

reckless or negligent as to whether, the contravention would

occur; and

(c) the landholder was in a position to influence the conduct of

the actor in relation to the contravention; and

(d) the landholder failed to take all reasonable steps to prevent

the contravention;

the landholder contravenes this subsection.

(2) Subsection (1) is a civil penalty provision. Under section 481, the

Federal Court may order a landholder contravening subsection (1)

to pay a pecuniary penalty not more than the pecuniary penalty the

Court could order the landholder to pay, if the landholder had

contravened the civil penalty provision contravened by the actor.

496C Criminal liability of landholders

(1) If:

(a) a person (the actor) takes an action on an area of land that

contravenes:

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Division 18A Liability of landholders for other people’s actions

Section 496C

(i) section 15A (Offences relating to declared World

Heritage properties); or

(ii) section 15C (Offences relating to National Heritage

places); or

(iii) section 17B (Offences relating to declared Ramsar

wetlands); or

(iv) section 18A (Offences relating to threatened species

etc.); or

(v) section 20A (Offences relating to listed migratory

species); or

(vi) section 22A (Offences relating to nuclear actions); or

(vii) section 24A (Offences relating to marine areas); or

(viia) section 24E (Offences relating to water resources); or

(viii) section 27A (Offences relating to Commonwealth land);

or

(ix) section 142A (Offence of breaching conditions on

approvan( � and

(b) a landholder in relation to the area of land was reckless as to

whether the contravention would occur; and

(c) the landholder was in a position to influence the conduct of

the actor in relation to the contravention at the time when the

contravention occurred; and

(d) the landholder failed to take all reasonable steps to prevent

the contravention;

the landholder commits an offence.

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

criminal responsibility.

(2) An offence against subsection (1) is punishable on conviction by

imprisonment for the term specified in the provision contravened

by the actor, a fine of the amount specified in that provision, or

both.

Note: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body

corporate up to 5 times the maximum amount the court could fine a

person under the provision.

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Liability of landholders for other people’s actions Division 18A

Section 496D

496D Did a landholder take reasonable steps to prevent a

contravention?

(1) For the purposes of sections 496B and 496C, in determining

whether a landholder failed to take all reasonable steps to prevent

the contravention, a court is to have regard to:

(a) what action (if any) the landholder took directed towards

ensuring that the actor had an appropriate system established

for managing the effects of the actor’s activities on the

environment; and

(b) what action (if any) the landholder took upon becoming

aware that there was a substantial risk that the actor was

contravening provisions of this Act referred to in

subsection 496B(1) or 496C(1), as the case requires.

(2) This section does not, by implication, limit the generality of

sections 496B and 496C.

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Part 17 Enforcement

Division 19 Infringement notices

Section 497

Division 19—Infringement notices

497 Infringement notices

(1) The regulations may make provision enabling a person who is

alleged to have committed an offence against section 142B or the

regulations to pay a penalty to the Commonwealth as an alternative

to prosecution.

(2) The penalty must not exceed one-fifth of the maximum fine that a

court could impose on the person as a penalty for that offence.

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Publicising contraventions Division 20

Section 498

Division 20—Publicising contraventions

498 Minister may publicise contraventions of this Act or the

regulations

(1) The Minister may publicise, in any way he or she thinks

appropriate, a contravention of this Act or the regulations for

which a person has been convicted or ordered to pay a pecuniary

penalty.

(2) This Division does not:

(a) limit the Minister’s powers to publicise a contravention of

this Act or the regulations; or

(b) prevent anyone else from publicising a contravention of this

Act or the regulations; or

(c) affect any obligation (however imposed) on anyone to

publicise a contravention of this Act or the regulations.

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Division 21 Immunity of officers

Section 498A

Division 21—Immunity of officers

498A Immunity of officers and assistants

(1) An authorised officer or ranger is not liable to any proceedings

relating to an act done, or omitted to be done, in good faith in the

exercise or purported exercise of any power conferred on the

officer or ranger by this Part, Schedule 1 (in the case of an

authorised officer) or regulations made for the purposes of this

Part or Division 5 of Part 15.

(2) A person requested by an authorised officer or ranger to assist the

officer or ranger in the exercise or purported exercise of any power

conferred on the officer or ranger by this Part, by Schedule 1 (in

the case of an authorised officer), or by regulations made for the

purposes of this Part or Division 5 of Part 15, is not liable to any

proceedings relating to an act done, or omitted to be done, in good

faith for the purpose of assisting the officer or ranger.

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Conduct of directors, employees and agents Division 22

Section 498B

Division 22—Conduct of directors, employees and agents

498B Conduct of directors, employees and agents

Bodies corporate—conduct

(1) Any conduct engaged in on behalf of a body corporate:

(a) by a director, employee or agent of the body corporate within

the scope of his or her actual or apparent authority; or

(b) by any other person at the direction or with the consent or

agreement (whether express or implied) of a director,

employee or agent of the body corporate, where the giving of

the direction, consent or agreement is within the scope of the

actual or apparent authority of the director, employee or

agent;

is to be taken, for the purposes of this Act, to have been engaged in

also by the body corporate unless the body corporate establishes

that the body corporate took reasonable precautions and exercised

due diligence to avoid the conduct.

Bodies corporate—state of mind

(2) If, for the purposes of this Act, it is necessary to establish the state

of mind of a body corporate in relation to particular conduct, it is

sufficient to show:

(a) that the conduct was engaged in by a person as mentioned in

paragraph (1)(a) or (b); and

(b) that the person had that state of mind.

Persons other than bodies corporate—conduct

(3) Any conduct engaged in on behalf of a person other than a body

corporate:

(a) by an employee or agent of the person within the scope of his

or her actual or apparent authority; or

(b) by any other person at the direction or with the consent or

agreement (whether express or implied) of an employee or

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Division 22 Conduct of directors, employees and agents

Section 498B

agent of the first-mentioned person, where the giving of the

direction, consent or agreement is within the scope of the

actual or apparent authority of the employee or agent;

is to be taken, for the purposes of this Act, to have been engaged in

also by the first-mentioned person unless the first-mentioned

person establishes that the first-mentioned person took reasonable

precautions and exercised due diligence to avoid the conduct.

Persons other than bodies corporate—state of mind

(4) If, for the purposes of this Act, it is necessary to establish the state

of mind of a person other than a body corporate in relation to

particular conduct, it is sufficient to show:

(a) that the conduct was engaged in by a person as mentioned in

paragraph (3)(a) or (b); and

(b) that the person had that state of mind.

Reasonable precautions

(5) For the purposes of subsection (1) or (3), in determining whether a

body corporate or other person took reasonable precautions and

exercised due diligence to avoid particular conduct, a court must

have regard to what steps (if any) the body or person took directed

towards ensuring the following (to the extent that the steps are

relevant to the conduct):

(a) that the body or person arranges regular professional

assessments of the body’s or person’s compliance with this

Act and the regulations;

(b) that the body or person implements any appropriate

recommendations arising from such an assessment;

(c) that the body or person has an appropriate system established

for managing the effects of the body’s or person’s activities

on the environment;

(d) that the directors of the body, or the employees or agents of

the body or person, have a reasonable knowledge and

understanding of the requirements to comply with this Act

and the regulations, in so far as those requirements affect the

directors, employees or agents concerned.

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Conduct of directors, employees and agents Division 22

Section 498B

Meaning of state of mind

(6) A reference in subsection (2) or (4) to the state of mind of a person

includes a reference to:

(a) the knowledge, intention, opinion, belief or purpose of the

person; and

(b) the person’s reasons for the intention, opinion, belief or

purpose.

Meaning of director

(7) A reference in this section to a director of a body corporate

includes a reference to a constituent member of a body corporate

incorporated for a public purpose by a law of the Commonwealth,

of a State or of a Territory.

Meaning of engage in conduct

(8) A reference in this section to engaging in conduct includes a

reference to failing or refusing to engage in conduct.

Disapplying Part 2.5 of Criminal Code

(9) Part 2.5 of the Criminal Code does not apply to an offence against

this Act.

Note: Part 2.5 of the Criminal Code deals with corporate criminal

responsibility.

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Part 18 Remedying environmental damage

Section 499

Part 18—Remedying environmental damage

499 Commonwealth powers to remedy environmental damage

(1) This section applies if the Minister suspects that an act or omission

constitutes a contravention of this Act or the regulations (whether

or not the act or omission is an offence against this Act or the

regulations).

(2) On behalf of the Commonwealth, the Minister may cause to be

taken such steps as he or she thinks proper:

(a) to repair or remove any condition that arises from the act or

omission and relates to:

(i) the environment; or

(ii) if the contravention was of a provision of Part 3—the

matter protected by the provision; or

(b) to mitigate any damage that arises from the act or omission

and relates to:

(i) the environment; or

(ii) if the contravention was of a provision of Part 3—the

matter protected by the provision; or

(c) to prevent any damage that is likely to arise from the act or

omission and relates to:

(i) the environment; or

(ii) if the contravention was of a provision of Part 3—the

matter protected by the provision.

(3) If:

(a) a person provided false or misleading information in

contravention of section 489; and

(b) as a result of the contravention the Minister granted an

environmental authority to a person, or set conditions relating

to the environmental authority, unaware of the certainty or

likelihood of the action covered by the authority:

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Section 500

(i) resulting in damage to the environment or to a matter

protected by a provision of Part 3; or

(ii) giving rise to a condition relating to the environment or

to a matter protected by a provision of Part 3; and

(c) the action results in damage to the environment or gives rise

to a condition relating to the environment;

then, for the purposes of this section and section 500, the damage

or condition is taken to arise from the provision of false or

misleading information in contravention of section 489.

(4) This section does not affect the exercise by the Commonwealth or

the Minister of powers under another provision of this Act or under

any other law.

500 Liability for loss or damage caused by contravention

(1) A person (the wrongdoer) who contravenes this Act or the

regulations is liable to pay to another person (the affected party)

who suffers loss or damage arising from the contravention an

amount equal to the other person’s loss or damage.

(2) Without limiting the amount payable under subsection (1), the loss

or damage a person suffers from a contravention of this Act or the

regulations includes the expenses and liabilities (if any) reasonably

incurred by the affected party to:

(a) repair or remove any condition that arises from the act or

omission constituting the contravention and relates to:

(i) the environment; or

(ii) if the contravention was of a provision of Part 3—the

matter protected by the provision; or

(b) mitigate any damage that arises from the act or omission

constituting the contravention and relates to:

(i) the environment; or

(ii) if the contravention was of a provision of Part 3—the

matter protected by the provision; or

(c) prevent any damage likely to arise from the act or omission

constituting the contravention and relates to:

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Section 501

(i) the environment; or

(ii) if the contravention was of a provision of Part 3—the

matter protected by the provision.

Note: This makes the person who contravenes the Act liable to pay the

Commonwealth the expenses reasonably incurred in taking steps

under section 499 in relation to the contravention.

(3) An amount payable under subsection (1) is a debt due to the

affected party, recoverable in a court of competent jurisdiction.

(4) If 2 or more persons are liable under subsection (1) to pay an

amount in respect of the same loss or damage, those persons are

jointly and severally liable to pay the sum.

(5) A finding by a court in criminal proceedings or civil proceedings

that the wrongdoer contravened this Act or the regulations is

admissible as evidence of that fact in proceedings to recover an

amount payable under subsection (1).

(6) This section applies:

(a) whether or not the contravention was an offence; and

(b) whether or not the provision contravened is a civil penalty

provision.

(7) This section does not apply to a decision (or a failure to make a

decision or conduct for the purposes of making a decision)

purportedly under this Act or the regulations that contravenes this

Act or the regulations.

501 Other powers not affected

This Division does not affect any other powers or rights under this

Act, the regulations or any other law.

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Administration Chapter 6

Organisations Part 19

Establishment and functions of the Threatened Species Scientific Committee Division

Section 502

Part 19—Organisations

Division 1—Establishment and functions of the Threatened

Species Scientific Committee

502 Establishment

(1) The Threatened Species Scientific Committee is established.

(2) The Minister is to determine in writing the composition of the

Committee, including the qualifications of its members.

(3) The Minister is to appoint the members of the Committee on a

part-time basis, and must appoint one of the members to chair the

Committee.

503 Functions of the Committee

The functions of the Committee are:

(a) to advise the Minister in accordance with Division 5 of

Part 13 in relation to recovery plans, threat abatement plans

and approved conservation advice; and

(b) to advise the Minister (on the Minister’s request or on the

Committee’s initiative) on the amendment and updating of

the lists established under Part 13; and

(c) to advise the Minister, at his or her request, on matters

relating to the administration of this Act; and

(d) to give the Minister such other advice as is provided for in

this Act; and

(e) to perform such other functions as are conferred on the

Committee by this Act.

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Division 2A Indigenous Advisory Committee

Section 505A

Division 2A—Indigenous Advisory Committee

505A Establishment

(1) The Indigenous Advisory Committee is established.

(2) The Minister is to determine in writing the composition of the

Committee, including the qualifications of its members.

(3) The Minister is to appoint the members of the Committee on a

part-time basis, and must appoint one of the members to chair the

Committee.

505B Functions of the Committee

(1) The function of the Committee is to advise the Minister on the

operation of the Act, taking into account the significance of

indigenous peoples’ knowledge of the management of land and the

conservation and sustainable use of biodiversity.

(2) The Minister may give the Committee written guidelines about its

function.

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Establishment and functions of the Independent Expert Scientific Committee on Coal

Seam Gas and Large Coal Mining Development Division 2B

Section 505C

Division 2B—Establishment and functions of the

Independent Expert Scientific Committee on

Coal Seam Gas and Large Coal Mining

Development

505C Establishment

(1) The Independent Expert Scientific Committee on Coal Seam Gas

and Large Coal Mining Development is established.

(2) The Committee is to consist of at least 5, but not more than 8,

members.

(3) A member of the Committee is to be appointed by the Minister by

written instrument, on a part-time basis.

(4) The Minister must appoint one member of the Committee to be the

Chair.

(5) When appointing members of the Committee, the Minister must

ensure that:

(a) each member (other than the Chair) possesses appropriate

scientific qualifications or expertise that the Minister

considers relevant to the performance of the Committee’s

functions; and

(b) each member’s appointment is not being made to represent

any particular body, group or community.

(6) The Minister must also ensure that a majority of the members

possess scientific qualifications and expertise in one or more of the

following areas:

(a) geology;

(b) hydrology;

(c) hydrogeology;

(d) ecology.

Note: Other provisions relating to members are set out in Division 3.

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Division 2B Establishment and functions of the Independent Expert Scientific

Committee on Coal Seam Gas and Large Coal Mining Development

Section 505D

505D Functions of the Committee

(1) The Committee has the following functions:

(a) within 2 months of a request by the Minister (the

Environment Minister)—to provide scientific advice to the

Environment Minister in relation to proposed coal seam gas

developments or large coal mining developments that are

likely to have a significant impact on water resources,

including any impacts of associated salt production and/or

salinity;

(b) within 2 months of a request by an appropriate Minister of a

declared State or Territory—to provide scientific advice to

the Minister in relation to proposed coal seam gas

developments or large coal mining developments in the

relevant State or Territory that are likely to have a significant

impact on water resources, including any impacts of

associated salt production and/or salinity;

(c) at the request of the Environment Minister—to provide

advice to the Environment Minister about:

(i) how bioregional assessments should be conducted in

areas where coal seam gas development or large coal

mining development is being carried out or is proposed;

and

(ii) priority areas in which bioregional assessments should

be undertaken; and

(iii) bioregional assessments commissioned by the Minister;

(d) at the request of the Environment Minister—to provide

advice to the Environment Minister about:

(i) priorities for research projects to improve scientific

understanding of the impacts of coal seam gas

developments and large coal mining developments on

water resources, including any impacts of associated salt

production and/or salinity; and

(ii) research projects commissioned by the Minister in

relation to the impacts of coal seam gas developments

and large coal mining developments on water resources,

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Section 505E

including any impacts of associated salt production

and/or salinity;

(e) to publish information about improving the consistency and

comparability of research in relation to the impacts of coal

seam gas developments and large coal mining developments

on water resources, including any impacts of associated salt

production and/or salinity;

(f) to publish information relating to the development of

standards for protecting water resources from the impacts of

coal seam gas development and large coal mining

development, including from any impacts of associated salt

production and/or salinity;

(g) to collect, analyse, interpret and disseminate scientific

information in relation to the impacts of coal seam gas

development and large coal mining development on water

resources, including any impacts of associated salt

production and/or salinity;

(h) any other functions prescribed by the regulations;

(i) to do anything incidental to, or conducive to, the

performance of the above functions.

(2) The Committee also has the following functions:

(a) at the request of the Environment Minister—to provide

scientific advice to the Environment Minister in relation to a

matter that is protected by a provision of Part 3;

(b) at the request of the appropriate Minister of a declared State

or Territory and with the written agreement of the

Environment Minister—to provide scientific advice to the

Minister of the State or Territory in relation to the matters

specified in the request, if the Committee has sufficient

scientific expertise.

505E Declared States and Territories

(1) The Minister may, by legislative instrument, declare a specified

State or self-governing Territory to be a declared State or

Territory.

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Committee on Coal Seam Gas and Large Coal Mining Development

Section 505E

(2) The Minister must not declare a State or a self-governing Territory

unless, at the time of the declaration, the State or Territory is a

party to the National Partnership Agreement on Coal Seam Gas

and Large Scale Coal Mining Development between the

Commonwealth and one or more States or self-governing

Territories that commenced on 14 February 2012.

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Members and procedures of Committees Division 3

Section 506

Division 3—Members and procedures of Committees

506 Application

This Division applies to the following Committees:

(a) the Threatened Species Scientific Committee;

(c) the Indigenous Advisory Committee;

(d) the Independent Expert Scientific Committee on Coal Seam

Gas and Large Coal Mining Development.

507 Terms and conditions

Term of office

(1) A member of a Committee holds office for the period specified in

the instrument of appointment. The period must not exceed 5 years.

Note: Section 509 sets out the circumstances in which a member’s

appointment may be (or must be) terminated.

Resignation

(2) A member of a Committee may resign his or her appointment by

giving the Minister a written resignation.

Other terms and conditions

(3) A member of a Committee holds office on the terms and conditions

(if any) that are determined by the Minister in relation to matters

not covered by this Act or the regulations.

508 Remuneration

(1) A member of a Committee is to be paid the remuneration that is

determined by the Remuneration Tribunal. If no determination of

that remuneration by the Tribunal is in operation, the member is to

be paid the remuneration that is prescribed.

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Section 509

(2) A member of a Committee is to be paid the allowances that are

prescribed.

(3) This section has effect subject to the Remuneration Tribunal Act

1973.

509 Termination of appointments of Committee members

Termination when person stops being qualified for appointment

(1) The appointment of a person to a position of member of a

Committee is terminated when the person ceases to be qualified for

appointment to the position.

Termination for misbehaviour or incapacity

(2) The Minister may terminate the appointment of a member of a

Committee for misbehaviour or physical or mental incapacity.

Termination for failure to attend Committee meetings

(3) The Minister may terminate the appointment of a member of a

Committee if the member is absent, except on leave of absence,

from 3 consecutive meetings of the Committee of which the

member has had notice.

Termination for engaging in conflicting work

(4) The Minister may terminate the appointment of a member of a

Committee if the member engages in paid employment that, in the

Minister’s opinion, conflicts or could conflict with the proper

performance of the duties of the member.

Termination for failure to disclose interests

(5) The Minister must terminate the appointment of a member of a

Committee if:

(a) the member does not comply with any requirements

prescribed by the regulations to disclose an interest the

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Section 510

member has in a matter being considered or about to be

considered by the Committee; and

(b) the member does not have a reasonable excuse for not

complying.

Termination for bankruptcy or insolvency

(6) The Minister may terminate the appointment of a member of a

Committee if the member:

(a) becomes bankrupt; or

(b) applies to take the benefit of any law for the relief of

bankrupt or insolvent debtors; or

(c) compounds with his or her creditors; or

(d) makes an assignment of his or her remuneration for the

benefit of his or her creditors.

510 Procedure of a Committee

(1) The regulations may provide for:

(a) matters relating to the operation of a Committee, including:

(i) procedures for convening meetings of the Committee;

and

(ii) procedures for determining who is to preside at a

meeting of the Committee; and

(iii) determining who may attend a meeting of the

Committee; and

(iv) the constitution of a quorum for a meeting of the

Committee; and

(v) procedures relating to a member’s interest in matters

being dealt with by the Committee; and

(vi) the way in which matters are to be resolved by the

Committee; and

(b) the appointment and rights of a deputy of a member of a

Committee.

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(2) The regulations may allow a Committee to determine a matter

relating to the operation of the Committee for which the

regulations may provide.

(3) If there are no regulations in force, a Committee may operate in the

way it determines.

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Section 511

Division 4—Advisory committees

511 Minister may establish advisory committees

(1) The Minister may by written instrument establish an advisory

committee to advise the Minister on specified matters relating to

the administration of this Act.

(2) However, the Minister must not specify that an advisory committee

is to advise the Minister on the management of a jointly managed

reserve.

(3) The Minister is to determine in writing the composition of an

advisory committee, including qualifications of its members.

512 Appointments

(1) The Minister may appoint a person on a part-time basis to be a

member of an advisory committee.

(2) The Minister must appoint one of the members to chair the

committee.

513 Members of advisory committees

The regulations may provide for the terms and conditions

applicable to members of an advisory committee, including terms

and conditions relating to:

(a) term of office; and

(b) remuneration; and

(c) allowances; and

(d) leave of absence; and

(e) disclosure of interests; and

(f) termination of membership.

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514 Committee procedure

(1) An advisory committee may operate in the way it determines,

subject to any regulations.

(2) The regulations may provide for the operation and procedures of an

advisory committee. The regulations may allow a committee to

determine its own procedure on any matter.

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Section 514A

Division 5—Director of National Parks

Subdivision A—Establishment, functions and powers

514A Continuation

The corporation sole that existed under section 15 of the National

Parks and Wildlife Conservation Act 1975 immediately before the

commencement of this Act continues in existence as the Director

of National Parks.

Note: Subject to section 514U, the Public Governance, Performance and

Accountability Act 2013 applies to the Director. That Act deals with

matters relating to corporate Commonwealth entities, including

reporting and the use and management of public resources.

514B Functions

(1) The functions of the Director are:

(a) to administer, manage and control Commonwealth reserves

and conservation zones; and

(b) to protect, conserve and manage biodiversity and heritage in

Commonwealth reserves and conservation zones; and

(ba) to contribute to the protection, conservation and management

of biodiversity and heritage in areas outside Commonwealth

reserves and conservation zones; and

(c) to co-operate with any country in matters relating to the

establishment and management of national parks and nature

reserves in that country; and

(d) to provide, and assist in the provision of, training in the

knowledge and skills relevant to the establishment and

management of national parks and nature reserves; and

(e) to carry out alone or in co-operation with other institutions

and persons, and to arrange for any other institution or person

to carry out, research and investigations relevant to the

establishment and management of Commonwealth reserves;

and

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Section 514C

(f) to make recommendations to the Minister in relation to the

establishment and management of Commonwealth reserves;

and

(g) to administer the Australian National Parks Fund; and

(h) any other functions conferred on the Director under this or

any other Act; and

(i) to do anything incidental or conducive to the performance of

any of the functions mentioned in paragraphs (a) to (h)

(inclusive).

Note 1: Section 514D sets out requirements relating to the performance of the

Director’s functions.

Note 2: The Minister may delegate additional functions to the Director under

subsection 515(1).

(2) The Director may perform any of the Director’s functions in

co-operation with a State, a self-governing Territory, an agency of

a State or self-governing Territory or a Commonwealth agency.

514C Powers

(1) The Director has power to do all things necessary or convenient to

be done for or in connection with the performance of the Director’s

functions.

(2) The Director’s powers include, but are not limited to, the following

powers:

(a) to enter into contracts; and

(b) to erect buildings and structures and carry on works; and

(c) to occupy, use and control any land or building owned or

held under lease by the Commonwealth and made available

for the purposes of the Director; and

(d) to acquire, hold and dispose of real or personal property; and

(e) despite section 514D, obtain goods or services on credit from

any person by the use of a credit card; and

(f) to accept gifts, devises and bequests made to the Director

whether on trust or otherwise, and to act as trustee of moneys

or other property vested in the Director upon trust.

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Section 514D

Note: Section 514D sets out limits on the Director’s powers.

514D Requirements relating to functions and powers

Ministerial directions

(1) The Director must perform the Director’s functions and exercise

the Director’s powers in accordance with any directions given by

the Minister, unless this Act provides otherwise.

Consultation

(2) The Director must consult and have regard to the views of the

following persons in relation to the performance of the Director’s

functions and the exercise of the Director’s powers in relation to a

Commonwealth reserve or conservation zone:

(a) if the reserve or zone is wholly or partly in a State or

self-governing Territory—the agency (if any) of the State or

Territory responsible for managing national parks established

under the law of the State or Territory;

(b) if the reserve or zone is wholly or partly in an area for which

an Aboriginal Land Council has been established under the

Aboriginal Land Rights (Northern Territory) Act 1976—the

Chairperson of the Council;

(c) if the reserve is Booderee National Park—the Chairperson of

the Wreck Bay Aboriginal Community Council.

Trust property

(4) The Director must deal with any money or property vested in the

Director on trust in accordance with the powers and duties of the

Director as trustee, despite the other provisions of this Act.

Limits on contracts and leases

(5) The Director must not:

(a) enter into a contract involving the payment or receipt of an

amount more than:

(i) $1,000,000; or

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Section 514E

(ii) if the regulations prescribe a greater amount—that

greater amount; or

(b) take land (except indigenous people’s land) on lease for more

than 10 years;

without the Minister’s approval.

No borrowing

(6) The Director must not borrow money in the performance of the

Director’s functions.

Subdivision B—Constitution of Director of National Parks

514E Constitution

(1) The Director:

(a) is a body corporate with perpetual succession; and

(b) must have a seal; and

(c) may sue and be sued in its corporate name.

(2) All courts, judges and persons acting judicially must:

(a) take judicial notice of the imprint of the seal of the Director

appearing on a document; and

(b) presume that the document was duly sealed.

514F Appointment

(1) A person is to be appointed as the Director by the

Governor-General by written instrument.

(2) Before the Governor-General appoints a person as the Director, the

Minister must be satisfied that the person has qualifications and

experience in connection with national parks or the conservation

and management of biodiversity that make the person suitable for

the appointment.

(3) The appointment is on a full-time basis. However, a person

appointed as the Director may also hold an office or be employed

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Section 514G

in the Australian Public Service on a part-time basis, subject to this

Division.

514G Acting appointments

(1) The Minister may appoint a person to act as the Director:

(a) during a vacancy in the office of Director; or

(b) during any period, or during all periods, when the person

appointed as the Director is absent from duty or from

Australia, or is, for any reason, temporarily unable to perform

the duties of the office.

Note: For rules that apply to acting appointments, see section 33A of the

Acts Interpretation Act 1901.

(2) A person acting as the Director is taken to constitute the

corporation mentioned in section 514A while the person is acting.

Subdivision C—Terms and conditions of appointment

514H Term of office

The person appointed as the Director holds office for the period

specified in the instrument of appointment. The period must not

exceed 7 years.

514J Remuneration

(1) The person appointed as the Director is to be paid the remuneration

that is determined by the Remuneration Tribunal. If no

determination of that remuneration by the Tribunal is in operation,

the person is to be paid the remuneration that is prescribed.

(2) The person is to be paid the allowances that are prescribed by the

regulations.

(3) This section has effect subject to the Remuneration Tribunal Act

1973.

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Section 514K

514K Outside employment

The person appointed as the Director must not engage in paid

employment outside the duties of the Director’s office without the

Minister’s approval.

514M Leave of absence

(1) The person appointed as the Director has the recreation leave

entitlements that are determined by the Remuneration Tribunal.

(2) The Minister may grant the person appointed as the Director leave

of absence, other than recreation leave, on the terms and conditions

as to remuneration or otherwise that the Minister determines.

514N Resignation

The person appointed as the Director may resign his or her

appointment by giving the Governor-General a written resignation.

514P Termination

(1) The Governor-General may terminate the appointment of a person

as the Director for misbehaviour or physical or mental incapacity.

(2) The Governor-General may terminate the appointment of a person

as the Director if:

(a) the person:

(i) becomes bankrupt; or

(ii) applies to take the benefit of any law for the relief of

bankrupt or insolvent debtors; or

(iii) compounds with his or her creditors; or

(iv) makes an assignment of his or her remuneration for the

benefit of his or her creditors; or

(b) the person is absent, except on leave of absence, for 14

consecutive days or for 28 days in any 12 months; or

(c) the person engages, except with the Minister’s approval, in

paid employment outside the duties of the office of Director.

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Section 514Q

Note: The appointment of a person as the Director may also be terminated

under section 30 of the Public Governance, Performance and

Accountability Act 2013 (which deals with terminating the

appointment of an accountable authority, or a member of an

accountable authority, for contravening general duties of officials).

514Q Other terms and conditions

The person appointed as the Director holds office on the terms and

conditions (if any) in relation to matters not covered by this Act

that are determined by the Governor-General.

Subdivision D—Australian National Parks Fund

514R Australian National Parks Fund

The fund established by section 45 of the National Parks and

Wildlife Conservation Act 1975 continues in existence as the

Australian National Parks Fund, vested in the Director.

514S Payments to Australian National Parks Fund

The following amounts are to be paid into the Australian National

Parks Fund:

(a) any money appropriated by the Parliament for the purposes

of the Department and allocated by the Secretary for the

management of Commonwealth reserves or conservation

zones;

(b) the proceeds of the sale of any property acquired out of

money standing to the credit of the Fund;

(c) any amounts paid to the Director in respect of leases,

licences, permits and other authorities granted by the

Director in relation to Commonwealth reserves or

conservation zones;

(d) any other amount paid by a person to the Director if:

(i) payment of the amount into the Fund would be

consistent with the purposes for which the amount was

paid; and

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(ii) the Minister administering the Public Governance,

Performance and Accountability Act 2013 considers it

appropriate that the amount should be paid into the

Fund;

(e) any charges paid under section 356A or section 390F;

(f) any other money received by the Director in the performance

of his or her functions.

514T Application of money

(1) The money of the Australian National Parks Fund may be applied

only:

(a) in payment or discharge of the costs, expenses and other

obligations incurred by the Director in the performance of the

Director’s functions; and

(b) in payment of any remuneration, allowances and

compensation payable under this Division or Division 4 of

Part 15.

(2) Subsection (1) does not prevent investment, under section 59 of the

Public Governance, Performance and Accountability Act 2013, of

money that is not immediately required for the purposes of the

Fund.

Subdivision E—Accountability

514U Application of Public Governance, Performance and

Accountability Act 2013

(1) Sections 514A and 514E provide that the Director is a corporation.

The Public Governance, Performance and Accountability Act 2013

applies (subject to subsection (2) of this section) in relation to the

corporation as if the person holding, or performing the duties of,

the office of Director were an accountable authority of the

corporation for the purposes of that Act.

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Section 514V

(2) To avoid doubt, the Public Governance, Performance and

Accountability Act 2013 applies to the Australian National Parks

Fund as though the Fund were money held by the Director.

514V Extra matters to be included in annual report

The annual report prepared by the Director under and given to the

Minister under section 46 of the Public Governance, Performance

and Accountability Act 2013 for a period must also include

particulars of any directions given by the Minister under

subsection 514D(1) of this Act during the period.

Subdivision F—Miscellaneous

514W Exemption from taxation

The income of the Australian National Parks Fund and the property

and transactions of the Director are not subject to taxation under a

law of the Commonwealth or of a State or Territory.

514X Changes in office of Director

An authority given, or a delegation or appointment made, by a

person for the time being holding or acting in the office of Director

continues in force despite the person ceasing to hold or act in that

office, but may be revoked by a person later holding or acting in

that office.

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Part 19A Reconsideration of fees

Section 514Y

Part 19A—Reconsideration of fees

514Y Applications for reconsideration of fee

(1) This section applies if a fee is worked out by a person to whom a

function or power is delegated under section 515.

(2) If:

(a) a method prescribed by the regulations under

subsection 520(4C) has been used to work out a fee; and

(b) the person required to pay the fee is dissatisfied with the way

the method was used to work out the fee;

the person may apply to the Secretary for the Secretary to

reconsider the way the method was used to work out the fee.

(3) The application must:

(a) be in a form prescribed by the regulations; and

(b) set out the reasons for the application.

(4) The application must be made within 30 business days after the

applicant is informed of the fee.

(5) A person may apply only once in relation to a fee.

514YA Reconsideration of fee

(1) Upon receiving an application for reconsideration of a fee, the

Secretary must:

(a) reconsider the way the method was used to work out the fee;

and

(b) either:

(i) confirm the fee; or

(ii) work out a new fee by using the method again.

(2) The person who undertakes the reconsideration must be:

(a) the Secretary; or

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(b) an employee in the Department who:

(i) was not involved in working out the fee; and

(ii) occupies a position that is senior to that occupied by any

person involved in working out the fee.

(3) The Secretary must give to the applicant a written notice that:

(a) states the outcome of the reconsideration; and

(b) gives reasons for that outcome.

514YB Deadline for reconsideration

The Secretary must undertake a reconsideration of a fee within 30

business days after receiving an application for reconsideration.

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Part 20 Delegation

Section 515

Part 20—Delegation

515 Delegation

(1) The Minister may, by signed instrument, delegate all or any of his

or her powers or functions under this Act to an officer or employee

in the Department or to the Director. The delegate is, in the

exercise or performance of a delegated power or function, subject

to the directions of the Minister.

(2) The Secretary may, by signed instrument, delegate all or any of his

or her powers or functions under this Act to an officer or employee

in the Department or to the Director. The delegate is, in the

exercise or performance of a delegated power or function, subject

to the directions of the Secretary.

(3) The Director may, by sealed instrument, delegate all or any of the

Director’s powers or functions under this Act to a person. The

delegate is, in the exercise of a delegated power or function,

subject to the directions of the Director.

515AA Delegation by Minister in relation to Great Barrier Reef

Marine Park

(1) The Minister may, by signed instrument, delegate any or all of his

or her powers or functions to which subsection (2) applies to:

(a) the Great Barrier Reef Marine Park Authority; or

(b) the Chief Executive Officer of the Great Barrier Reef Marine

Park Authority; or

(c) a member of the staff of the Great Barrier Reef Marine Park

Authority.

(2) For the purposes of subsection (1), this subsection applies to a

power or function if:

(a) the exercise of the power or performance of the function

relates (including in a way described in subsection 7(1A) of

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the Great Barrier Reef Marine Park Act 1975) to the Great

Barrier Reef Marine Park; or

(b) the exercise of the power or performance of the function is

incidental to a matter that relates (including in a way

described in subsection 7(1A) of the Great Barrier Reef

Marine Park Act 1975) to the Great Barrier Reef Marine

Park.

Note: If a power or function is delegated to the Great Barrier Reef Marine

Park Authority under this section, the Authority may sub-delegate the

power or function under section 47 of the Great Barrier Reef Marine

Park Act 1975.

(3) Despite subsection (1), the Minister must not delegate under that

subsection a power or function under Part 17 (Enforcement) to a

person mentioned in paragraph (1)(c) unless the person:

(a) is an SES employee or an acting SES employee; or

(b) holds, or is acting in, an Executive Level 1 or 2, or

equivalent, position.

(4) In exercising a power or performing a function under a delegation,

the delegate must comply with any directions of the Minister.

(5) This section does not limit the Minister’s power of delegation

under section 515.

515AB Delegation by Secretary in relation to Great Barrier Reef

Marine Park

(1) The Secretary may, by signed instrument, delegate any or all of his

or her powers or functions to which subsection (2) applies to:

(a) the Great Barrier Reef Marine Park Authority; or

(b) the Chief Executive Officer of the Great Barrier Reef Marine

Park Authority; or

(c) a member of the staff of the Great Barrier Reef Marine Park

Authority.

(2) For the purposes of subsection (1), this subsection applies to a

power or function if:

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Section 515AB

(a) the exercise of the power or performance of the function

relates (including in a way described in subsection 7(1A) of

the Great Barrier Reef Marine Park Act 1975) to the Great

Barrier Reef Marine Park; or

(b) the exercise of the power or performance of the function is

incidental to a matter that relates (including in a way

described in subsection 7(1A) of the Great Barrier Reef

Marine Park Act 1975) to the Great Barrier Reef Marine

Park.

Note: If a power or function is delegated to the Great Barrier Reef Marine

Park Authority under this section, the Authority may sub-delegate the

power or function under section 47 of the Great Barrier Reef Marine

Park Act 1975.

(3) Despite subsection (1), the Secretary must not delegate under that

subsection a power or function under Part 17 (Enforcement) to a

person mentioned in paragraph (1)(c) unless the person:

(a) is an SES employee or an acting SES employee; or

(b) holds, or is acting in, an Executive Level 1 or 2, or

equivalent, position.

(4) In exercising a power or performing a function under a delegation,

the delegate must comply with any directions of the Secretary.

(5) This section does not limit the Secretary’s power of delegation

under section 515.

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Publication of information on the internet Part 20A

Section 515A

Part 20A—Publication of information on the

internet

515A Publication of information on the internet

Without limiting the operation of section 170A, the Secretary must

publish on the internet each week a list of:

(a) all permits issued or granted under this Act in the

immediately preceding week; and

(b) all matters required by this Act to be made available to the

public in the immediately preceding week.

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Part 21 Reporting

Division 1 Annual reports

Section 516

Part 21—Reporting

Division 1—Annual reports

516 Annual report on operation of Act

(1) The Secretary must, as soon as practicable after 30 June in each

year, prepare and give to the Minister a report on the operation of

this Act (except Divisions 4 and 5 of Part 15 and Division 5 of

Part 19) for the 12 months ending on that 30 June.

Note 1: Other provisions of this Act require the report to include certain

matters.

Note 2: Section 34C of the Acts Interpretation Act 1901 sets out rules about

the time within which annual reports must be given to the Minister.

(2) The Minister must cause a copy of the report to be laid before each

House of the Parliament within 15 sitting days of that House after

the day on which he or she receives the report.

516A Annual reports to deal with environmental matters

Annual reports for Commonwealth entities

(1) The accountable authority of a Commonwealth entity (within the

meaning of the Public Governance, Performance and

Accountability Act 2013) must ensure that an annual report

prepared under section 46 of that Act complies with subsection (6)

of this section.

Annual reports of Commonwealth companies

(4) The directors of a Commonwealth company (within the meaning of

the Public Governance, Performance and Accountability Act 2013)

that is a Commonwealth agency must ensure that the documents

given to the responsible Minister (within the meaning of that Act)

under section 97 of that Act include a report complying with

subsection (6) of this section.

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Section 516A

Annual reports of other Commonwealth agencies

(5) A Commonwealth agency that is:

(a) established by or under a law of the Commonwealth; and

(b) required by law to give the Minister responsible for it an

annual report; and

(c) not described in subsection (1) or (4);

must ensure that the annual report complies with subsection (6).

Content of report

(6) A report described in subsection (1), (4) or (5) relating to a body or

person (the reporter) for a period must:

(a) include a report on how the activities of, and the

administration (if any) of legislation by, the reporter during

the period accorded with the principles of ecologically

sustainable development; and

(b) identify how the outcomes (if any) specified for the reporter

in an Appropriations Act relating to the period contribute to

ecologically sustainable development; and

(c) document the effect of the reporter’s activities on the

environment; and

(d) identify any measures the reporter is taking to minimise the

impact of activities by the reporter on the environment; and

(e) identify the mechanisms (if any) for reviewing and increasing

the effectiveness of those measures.

Note: The Auditor-General Act 1997 lets the Auditor-General audit a

reporter’s compliance with these requirements.

(7) In subsection (6):

activities includes:

(a) developing and implementing policies, plans, programs and

legislation; and

(b) the operations of a department, authority, company or agency

referred to in this section.

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Part 21 Reporting

Division 2 State of the environment reports

Section 516B

Division 2—State of the environment reports

516B State of the environment reports

(1) The Minister must cause a report on the environment in the

Australian jurisdiction to be prepared in accordance with the

regulations (if any) every 5 years. The first report must be prepared

by 31 December 2001.

(2) The report must deal with the matters prescribed by the

regulations.

(3) The Minister must cause a copy of the report to be laid before each

House of the Parliament within 15 sitting days of that House after

the day on which he or she receives the report.

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Chapter 7—Miscellaneous

Part 22—Miscellaneous

517 Determinations of species

(1) The Minister may, by legislative instrument, determine that a

distinct population of biological entities is a species for the

purposes of this Act.

(3) A determination does not apply for the purposes of:

(a) Part 13A; or

(b) the definitions of CITES I species, CITES II species and

CITES III species in section 528.

(4) Subsection (3) does not affect the meaning of the expression listed

threatened species when used in Part 13A.

517A Exemption for activities that might harm particular species

introduced into particular areas

Provisions for which this section applies

(1) This section applies for the purposes of the provisions of the

following sections:

(a) sections 18 and 18A;

(b) sections 20 and 20A;

(c) sections 196 to 196E;

(d) section 207B;

(e) sections 211 to 211E;

(f) sections 254 to 254E.

Minister may exempt carrying on of activities

(2) The Minister may, in writing, exempt from the provisions

mentioned in subsection (1) the carrying on of particular activities

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by particular persons (or a particular class of persons), in a

particular area, that will or may have an impact on a particular

species or its habitat. The species must be a listed threatened

species, a listed migratory species or a listed marine species.

Matters Minister must be satisfied of

(3) An exemption under subsection (2) may only be given if the

Minister is satisfied that:

(a) members of the species have been, or are proposed to be,

introduced into the area by or on behalf of a person (whether

the person is a Commonwealth agency or otherwise); and

(b) the purpose of the introduction, or proposed introduction, of

the members of the species into the area was or is to make a

contribution to the conservation of the species; and

(c) carrying on the activities in the area will or may have an

impact on members of the species, or their habitat, but any

such impact would be incidental to, and not the purpose of,

the activities; and

(d) if the person referred to in paragraph (a) is not the person

who is or will be primarily responsible for carrying out the

activities—the person who is or will be so responsible has

agreed to the introduction of the members of the species into

the area.

(4) For the purpose of deciding whether to give an exemption under

subsection (2), the Minister may (subject to subsection (3)):

(a) have regard to any matters the Minister considers

appropriate; and

(b) seek, and have regard to, information or advice from any

source.

What must be specified in an exemption

(5) An exemption under subsection (2) must:

(a) specify the species to which it applies; and

(b) specify the area to which it applies; and

(c) specify the activities to which it applies; and

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(d) specify the persons (or classes of persons) who, if they

engage in actions that are within the activities, are covered by

the exemption.

When an exemption comes into force

(6) An exemption under subsection (2) comes into force on the day the

Minister gives the exemption, or on a later day specified in the

exemption.

Actions covered by exemption do not contravene provisions for

which this section applies

(7) While an exemption under subsection (2) is in force, an action of a

person does not contravene any of the provisions mentioned in

subsection (1), in so far as the provisions apply in relation to a

member of the species specified as mentioned in paragraph (5)(a),

if:

(a) the action occurs in the area specified as mentioned in

paragraph (5)(b); and

(b) the action is within the activities specified as mentioned in

paragraph (5)(c); and

(c) the person is a person, or is a member of a class of persons,

specified as mentioned in paragraph (5)(d).

Note 1: If the action also has an impact on a member of another species that is

not covered by an exemption under subsection (2), subsection (7) does

not affect the question whether the action may contravene a provision

mentioned in subsection (1), in so far as the provision applies to the

other species.

Note 2: In a prosecution for an offence against a provision mentioned in

subsection (1), the defendant bears an evidential burden in relation to

the matters in this subsection. See subsection 13.3(3) of the Criminal

Code.

Exemption is not a legislative instrument

(8) An exemption under subsection (2) is not a legislative instrument.

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518 Non-compliance with time limits

(1) Anything done by the Commonwealth, the Minister or the

Secretary under this Act or the regulations is not invalid merely

because it was not done within the period required by this Act or

the regulations.

(2) If, during a financial year, one or more things required to be done

under this Act or the regulations were not done within the period

required by this Act or the regulations, the Minister must:

(a) cause to be prepared a statement setting out the reasons why

each of those things was not done within the period required

by this Act or the regulations; and

(b) cause a copy of the statement to be laid before each House of

the Parliament as soon as practicable after the end of the

financial year.

(3) Subsection (1) does not reduce or remove an obligation under this

Act or the regulations to do a thing within a particular period.

519 Compensation for acquisition of property

When compensation is necessary

(1) If, apart from this section, the operation of this Act would result in

an acquisition of property from a person that would be invalid

because of paragraph 51(xxxi) of the Constitution (which deals

with acquisition of property on just terms) the Commonwealth

must pay the person a reasonable amount of compensation.

Definition

(2) In this Act:

acquisition of property has the same meaning as in

paragraph 51(xxxi) of the Constitution.

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Court can decide amount of compensation

(3) If the Commonwealth and the person do not agree on the amount

of compensation to be paid, the person may apply to the Federal

Court for the recovery from the Commonwealth of a reasonable

amount of compensation fixed by the Court.

Other compensation to be taken into account

(4) In assessing compensation payable by the Commonwealth, the

Court must take into account any other compensation or remedy

arising out of the same event or situation.

520 Regulations

(1) The Governor-General may make regulations prescribing all

matters:

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or

giving effect to this Act.

(2) The regulations may prescribe penalties for offences against the

regulations. A penalty must not be more than 50 penalty units.

(3) Regulations may be made for and in relation to giving effect to any

of the following agreements:

(a) the Apia Convention;

(b) the Convention for the Protection of the Natural Resources

and Environment of the South Pacific (the SPREP

Convention) signed at Noumea on 24 November 1986;

(c) the Bonn Convention;

(d) CAMBA;

(e) JAMBA;

(f) an agreement between the Commonwealth and one or more

other countries relating to whales;

(g) the World Heritage Convention;

(h) the Ramsar Convention;

(i) the Biodiversity Convention;

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(j) CITES;

(k) the Framework Convention on Climate Change done at New

York on 9 May 1992.

(4) Regulations made in relation to an agreement that has not entered

into force for Australia are not to come into operation on a day

earlier than the day on which the agreement enters into force for

Australia.

(4A) The regulations may prescribe fees that are payable for services the

Minister or Secretary provides in performing functions, or

exercising powers, under this Act or the regulations.

(4B) A fee prescribed by the regulations is payable to the

Commonwealth.

(4C) Regulations prescribing fees may also:

(a) prescribe fees in respect of:

(i) a particular class of decision; or

(ii) a particular class of action; or

(iii) a particular class of person; and

(b) prescribe 2 or more fees for the same matter; and

(c) prescribe a method for working out a fee; and

(d) prescribe a method for working out the refund of part of a

fee; and

(e) deal with other matters, including the following:

(i) specifying the way in which, and times at which, a fee is

to be paid;

(ii) specifying the fees that must be paid, and by whom, in

the event of a transfer under section 145B or a change

of person proposing to take an action under

section 156F;

(iii) the consequences of failure to pay a specified fee;

(iv) the circumstances in which the Minister may waive a

fee;

(v) the circumstances in which a person is exempt from

paying a specified fee;

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(vi) the circumstances in which a fee may be refunded, in

whole or in part.

(5) Subsections (3), (4A) and (4C) do not limit subsection (1).

(6) The regulations may prohibit or regulate the export from an

external Territory to Australia or another external Territory of:

(a) CITES specimens; and

(b) regulated native specimens.

(7) The regulations may prohibit or regulate the import into an external

Territory from Australia or another external Territory of:

(a) CITES specimens; and

(b) regulated live specimens.

(8) The regulations may prohibit or regulate the possession in an

external Territory of:

(a) specimens that have been imported into that Territory in

contravention of regulations made for the purposes of

subsection (7); or

(b) the progeny of such specimens.

520A Statements about the application of the Act

(1) The Minister may issue, in writing, statements about the way in

which the Minister considers that provisions of the Act or the

regulations apply or would apply to:

(a) persons generally or a class of persons; or

(b) persons generally or a class of persons in relation to

particular circumstances.

(2) A statement made under subsection (1) is not a legislative

instrument.

521 Fees and charges must not be taxes

A fee or charge provided for by or under this Act, and whether

prescribed by the regulations or not, must be reasonably related to

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the expenses incurred or to be incurred by the Commonwealth in

relation to the matters to which the fee or charge relates and must

not be such as to amount to taxation.

521A Time does not run if all or part of fee remains unpaid

(1) If:

(a) one or more fees are payable in respect of a service the

Minister or Secretary provides in performing functions, or

exercising powers, under this Act or the regulations; and

(b) a provision of this Act or the regulations:

(i) requires or allows the Minister or Secretary to do a thing

relating to the service; or

(ii) requires or allows the Minister or Secretary to do a thing

relating to the service within a particular period; and

(c) all of part of a fee relating to the service remains unpaid;

then:

(d) if subparagraph (b)(i) applies—the Minister or Secretary

need not do the thing until all of the required fee is paid; and

(e) if subparagraph (b)(ii) applies and the period has not

begun—the period does not begin until all of the required fee

is paid; and

(f) if subparagraph (b)(ii) applies and the period has begun—the

period stops until all of the required fee is paid and, when

paid, begins again for the balance of the period.

(2) For the purposes of paragraphs (1)(e) and (f), the day that all of the

required fee is paid is not to be counted in the relevant period.

522 Financial assistance etc. to be paid out of appropriated money

Payment of amounts of financial assistance under this Act, and of

any amounts that the Commonwealth is required to pay to a person

under this Act or an agreement made under this Act, are to be made

out of money appropriated by the Parliament for the purpose.

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522A Review of operation of Act

(1) The Minister must cause independent reviews to be undertaken by

a person or body of:

(a) the operation of this Act; and

(b) the extent to which the objects of this Act have been

achieved.

(2) The first review must be undertaken within 10 years of the

commencement of this Act. Later reviews must be undertaken at

intervals of not more than 10 years.

(3) The person or body undertaking a review must give a report of the

review to the Minister.

(4) The Minister must cause a copy of the report to be laid before each

House of the Parliament within 15 sitting days of that House after

the Minister receives it.

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Section 523

Chapter 8—Definitions

Part 23—Definitions

Division 1—Some definitions relating to particular topics

Subdivision A—Actions

523 Actions

(1) Subject to this Subdivision, action includes:

(a) a project; and

(b) a development; and

(c) an undertaking; and

(d) an activity or series of activities; and

(e) an alteration of any of the things mentioned in paragraph (a),

(b), (c) or (d).

524 Things that are not actions

(1) This section applies to a decision by each of the following kinds of

person (government body):

(a) the Commonwealth;

(b) a Commonwealth agency;

(c) a State;

(d) a self-governing Territory;

(e) an agency of a State or self-governing Territory;

(f) an authority established by a law applying in a Territory that

is not a self-governing Territory.

(2) A decision by a government body to grant a governmental

authorisation (however described) for another person to take an

action is not an action.

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(3) To avoid doubt, a decision by the Commonwealth or a

Commonwealth agency to grant a governmental authorisation

under one of the following Acts is not an action:

(a) the Customs Act 1901;

(b) the Export Control Act 1982;

(c) the Export Finance and Insurance Corporation Act 1991;

(d) the Fisheries Management Act 1991;

(e) the Foreign Acquisitions and Takeovers Act 1975;

(f) the Offshore Petroleum and Greenhouse Gas Storage Act

2006;

(g) the Biosecurity Act 2015;

(h) the Competition and Consumer Act 2010.

This subsection does not limit this section.

524A Provision of grant funding is not an action

Provision of funding by way of a grant by one of the following is

not an action:

(a) the Commonwealth;

(b) a Commonwealth agency;

(c) a State;

(d) a self-governing Territory;

(e) an agency of a State or self-governing Territory;

(f) an authority established by a law applying in a Territory that

is not a self-governing Territory.

Subdivision B—Areas

525 Commonwealth areas

What is a Commonwealth area?

(1) Each of the following, and any part of it, is a Commonwealth area:

(a) land owned by the Commonwealth or a Commonwealth

agency and airspace over the land;

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(b) an area of land held under lease by the Commonwealth or a

Commonwealth agency and airspace over the land;

(c) land in:

(i) an external Territory; or

(ii) the Jervis Bay Territory;

and airspace over the land;

(d) the coastal sea of Australia or an external Territory;

(e) the continental shelf, and the waters and airspace over the

continental shelf;

(f) the waters of the exclusive economic zone, the seabed under

those waters and the airspace above those waters;

(g) any other area of land, sea or seabed that is included in a

Commonwealth reserve.

Territory Land in ACT is not a Commonwealth area

(2) Despite paragraph (1)(a), an area of land that is Territory Land,

within the meaning of the Australian Capital Territory (Planning

and Land Management) Act 1988 is not a Commonwealth area

merely because of that paragraph, unless it is held under lease by

the Commonwealth or a Commonwealth agency.

Coastal waters of States and NT are not Commonwealth areas

(3) Despite paragraphs (1)(d), (e) and (f), none of the following areas

(or parts of them) are Commonwealth areas:

(a) the seabed vested in a State under section 4 of the Coastal

Waters (State Title) Act 1980; and

(b) the seabed vested in the Northern Territory under section 4 of

the Coastal Waters (Northern Territory Title) Act 1980; and

(c) the subsoil under the seabed described in paragraph (a) or

(b); and

(d) any water and airspace over seabed described in

paragraph (a) or (b).

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Subdivision C—Entities

526 Subsidiaries of bodies corporate

The question whether a body corporate is a subsidiary of a body or

company is to be determined in the same way as the question

whether a body corporate is a subsidiary of another body corporate

is determined for the purposes of the Corporations Act 2001.

Subdivision D—Criminal law

527 Convictions

A reference in this Act to a conviction of a person of an offence

includes a reference to making an order under section 19B of the

Crimes Act 1914 in relation to the person in respect of the offence.

Subdivision E—Specimens

527A Specimens

(1) For the purposes of this Act, a specimen is:

(a) an animal; or

(b) animal reproductive material; or

(c) the skin, feathers, horns, shell or any other part of an animal;

or

(d) any article wholly produced by or from, or otherwise wholly

derived from, a single animal; or

(e) a plant; or

(f) plant reproductive material; or

(g) any part of a plant; or

(h) any article wholly produced by or from, or otherwise wholly

derived from, a single plant.

(2) However, a fossil, or a mineralised deposit, is not a specimen for

the purposes of this Act.

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(3) In any provision of this Act, references to a specimen are to be

read as including references to an article that consists of, or is

derived from:

(a) a specimen and material other than a specimen; or

(b) 2 or more specimens; or

(c) 2 or more specimens and material other than a specimen.

(4) If an article consists of, or is derived from, 2 or more specimens,

either with or without any material other than a specimen, then this

Act applies to and in relation to that article separately in so far as it

consists of, or is derived from, each of those specimens.

(5) For the purposes of this Act:

(a) if a live animal (other than animal reproductive material) that

was bred in captivity dies, the dead animal and specimens

derived from the dead animal are taken to be specimens

derived from that live animal; and

(b) if a live plant (other than plant reproductive material) that

was artificially propagated dies, the dead plant and

specimens derived from the dead plant are taken to be

specimens derived from that live plant; and

(c) a specimen covered by paragraph (1)(b), (c) or (d) is taken to

be derived from the animal concerned; and

(d) a specimen covered by paragraph (1)(f), (g) or (h) is taken to

be derived from the plant concerned; and

(e) if a specimen is derived from an animal that belongs to a

particular species or taxon, the specimen is taken to belong to

that species or taxon; and

(f) if a specimen is derived from a plant that belongs to a

particular species or taxon, the specimen is taken to belong to

that species or taxon.

(6) In this section:

this Act does not include sections 356 and 390E.

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527B Breeding in captivity

For the purposes of this Act, a live animal of a particular kind is

taken to have been bred in captivity if, and only if, it was bred in

circumstances declared by the regulations to be circumstances the

breeding in which of:

(a) any live animal; or

(b) any live animal of that kind; or

(c) any live animal included in a class of live animals that

includes live animals of that kind;

would constitute breeding in captivity.

527C Artificial propagation

For the purposes of this Act, a live plant of a particular kind is

taken to have been artificially propagated if, and only if, it was

propagated in circumstances declared by the regulations to be

circumstances the propagation in which of:

(a) any live plant; or

(b) any live plant of that kind; or

(c) any live plant included in a class of live plants that includes

live plants of that kind;

would constitute artificial propagation.

527D Things represented to be CITES specimens

(1) For the purposes of this Act, if a thing is represented by an

accompanying document, the package or a mark or label, or from

any other circumstances, to be:

(a) the skin, feathers, horns, shell or any other part of a CITES

listed animal; or

(b) part of a CITES listed plant; or

(c) reproductive material from a CITES listed animal or a CITES

listed plant; or

(d) an article produced by or from, or derived from, one or more

CITES listed animals or one or more CITES listed plants,

whether with or without any other material;

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then the thing is taken to be a CITES specimen.

Note: This subsection has the effect (among other things) of widening the

scope of sections 303CC, 303CD and 303GN, which are offence

provisions relating to the export, import and possession of specimens.

(2) The Minister must not issue a permit under section 303CG

authorising the export or import of a thing that is taken under

subsection (1) to be a CITES specimen unless the thing is a CITES

specimen apart from subsection (1).

(3) In this section:

CITES listed animal means an animal of a species included in

Appendix I, II or III to CITES.

CITES listed plant means a plant of a species included in

Appendix I, II or III to CITES.

export has the same meaning as in Part 13A.

import has the same meaning as in Part 13A.

Subdivision F—Impacts

527E Meaning of impact

(1) For the purposes of this Act, an event or circumstance is an impact

of an action taken by a person if:

(a) the event or circumstance is a direct consequence of the

action; or

(b) for an event or circumstance that is an indirect consequence

of the action—subject to subsection (2), the action is a

substantial cause of that event or circumstance.

(2) For the purposes of paragraph (1)(b), if:

(a) a person (the primary person) takes an action (the primary

action); and

(b) as a consequence of the primary action, another person (the

secondary person) takes another action (the secondary

action); and

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(c) the secondary action is not taken at the direction or request of

the primary person; and

(d) an event or circumstance is a consequence of the secondary

action;

then that event or circumstance is an impact of the primary action

only if:

(e) the primary action facilitates, to a major extent, the secondary

action; and

(f) the secondary action is:

(i) within the contemplation of the primary person; or

(ii) a reasonably foreseeable consequence of the primary

action; and

(g) the event or circumstance is:

(i) within the contemplation of the primary person; or

(ii) a reasonably foreseeable consequence of the secondary

action.

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In this Act, unless the contrary intention appears:

accredited authorisation process has the meaning given by

subsection 33(2A).

accredited management arrangement has the meaning given by

subsection 33(2).

acquisition of property has the meaning given by

subsection 519(2).

action has the meaning given by Subdivision A of Division 1 of

Part 23.

action management plan, in relation to an action, means a plan for

managing the impacts of the action on a matter protected by a

provision of Part 3, such as a plan for conserving habitat of a

species.

agency of a State or self-governing Territory means:

(a) a Minister of the State or Territory; or

(b) a body corporate established for a public purpose by a law of

the State or Territory; or

(c) a body corporate established by:

(i) the Governor of the State; or

(ii) if the Territory is the Australian Capital Territory—the

Governor-General acting in relation to the Australian

Capital Territory; or

(iii) if the Territory is the Northern Territory—the

Administrator of the Territory; or

(iv) a Minister of the State or Territory;

otherwise than by or under a law of the State or Territory; or

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(d) a company in which the whole of the shares or stock, or

shares or stock carrying more than one-half of the voting

power, is or are owned by or on behalf of the State or

Territory; or

(e) a body corporate that is a subsidiary of:

(i) a body or company referred to in paragraph (b), (c) or

(d); or

(ii) a body corporate that, because of a previous application

or previous applications of this paragraph, is taken to be

an agency of the State or Territory for the purposes of

this definition; or

(f) a person holding, or performing the duties of:

(i) an office established by or under a law of the State or

Territory (except a judicial office or an office of

member of a tribunan( � or

(ii) an appointment made under a law of the State or

Territory (except appointment to a judicial office or an

office of member of a tribunan( � or

(g) a person holding, or performing the duties of, an appointment

made by:

(i) the Governor of the State; or

(ii) if the Territory is the Australian Capital Territory—the

Governor-General acting in relation to the Australian

Capital Territory; or

(iii) if the Territory is the Northern Territory—the

Administrator of the Territory; or

(iv) a Minister of the State or Territory;

otherwise than by or under a law of the State or Territory.

aggravated offence:

(a) in Subdivision B of Division 1 of Part 13—has the meaning

given by section 196F; and

(b) in Subdivision B of Division 2 of Part 13—has the meaning

given by section 211F; and

(c) in Subdivision B of Division 4 of Part 13—has the meaning

given by section 254F.

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aircraft means an apparatus that can derive support in the

atmosphere from the reactions of the air.

animal means any member, alive or dead, of the animal kingdom

(other than a human being).

animal reproductive material means:

(a) an embryo, an egg or sperm of an animal; or

(b) any other part, or product, of an animal from which another

animal could be produced.

Antarctic has the same meaning as in the Antarctic Treaty

(Environment Protection) Act 1980.

Apia Convention means the Convention on Conservation of Nature

in the South Pacific, done at Apia, Western Samoa, on 12 June

1976, as amended and in force for Australia from time to time.

Note: The English text of the Convention is set out in Australian Treaty

Series 1990 No. 41.

approved conservation advice has the meaning given by

subsection 266B(2).

article includes a substance or a mixture of substances.

artificially propagated, in relation to a plant or plant reproductive

material, has the meaning given by section 527C.

assess an action includes assess the impacts that the action:

(a) has or will have; or

(b) is likely to have.

assessment report has the meaning given by subsection 130(2).

Australian aircraft has the meaning given by subsection 5(5).

Australian Biosphere reserve management principles has the

meaning given by section 340.

Australian Heritage Council means the body established by the

Australian Heritage Council Act 2003.

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Australian IUCN reserve management principles has the meaning

given by subsection 348(1).

Australian jurisdiction has the meaning given by subsection 5(5).

Australian Ramsar management principles has the meaning given

by section 335.

Australian vessel has the meaning given by subsection 5(5).

Australian Whale Sanctuary has the meaning given by

subsection 225(2).

Australian World Heritage management principles has the

meaning given by section 323.

authorisation process means a process set out in a law of the

Commonwealth or a State or Territory under which actions are

authorised.

authorised officer means:

(a) a warden; or

(b) an inspector.

baggage has the meaning given by section 443.

bilateral agreement has the meaning given by subsection 45(2).

bilaterally accredited authorisation process has the meaning given

by subsection 46(2A).

bilaterally accredited management arrangement has the meaning

given by subsection 46(2).

biodiversity means the variability among living organisms from all

sources (including terrestrial, marine and other aquatic ecosystems

and the ecological complexes of which they are part) and includes:

(a) diversity within species and between species; and

(b) diversity of ecosystems.

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Biodiversity Convention means the Convention on Biological

Diversity done at Rio de Janeiro on 5 June 1992, as amended and

in force for Australia from time to time.

Note: The English text of this Convention is set out in Australian Treaty

Series 1993 No. 32.

biological resources includes genetic resources, organisms, parts

of organisms, populations and any other biotic component of an

ecosystem with actual or potential use or value for humanity.

bioregional assessment, in relation to an area, means the scientific

analysis of the ecology, hydrology and geology of the area for the

purpose of assessing the potential direct and indirect impacts of

coal seam gas development or large coal mining development on

water resources in the area, including any impacts of associated

salt production and/or salinity.

bioregional plan means a bioregional plan for a bioregion as

mentioned in section 176.

Biosphere reserve has the meaning given by section 337.

Board means a Board established under section 377.

Bonn Convention means the Convention on the Conservation of

Migratory Species of Wild Animals done at Bonn on 23 June 1979,

as amended and in force for Australia from time to time.

Note: The English text of the Convention is set out in Australian Treaty

Series 1991 No. 32.

bred in captivity, in relation to an animal or animal reproductive

material, has the meaning given by section 527B.

CAMBA means the Agreement between the Government of

Australia and the Government of the People’s Republic of China

for the protection of Migratory Birds and their Environment done

at Canberra on 20 October 1986, as amended and in force for

Australia from time to time.

Note: The English text of the Agreement is set out in Australian Treaty

Series 1988 No. 22.

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cetacean means a member of the sub-order Mysticeti or

Odontoceti of the Order Cetacea, and includes:

(a) a part of such a member; and

(b) any animal reproductive material of such a member, or any

part of such reproductive material; and

(c) any product derived from such a member; and

(d) the whole or part of the dead body of such a member; and

(e) any product derived from the dead body, or part of the dead

body, of such a member.

CITES means the Convention on International Trade in

Endangered Species of Wild Fauna and Flora done at Washington

on 3 March 1973, as amended and in force for Australia from time

to time.

Note: The English text of the Convention is set out in Australian Treaty

Series 1976 No. 29.

CITES I species means a species included in the list referred to in

section 303CA, where there is a notation to the effect that the

species is included in Appendix I to CITES.

CITES I specimen means a specimen that belongs to a CITES I

species, where there is a notation in the list referred to in

section 303CA that describes the specimen.

CITES II species means a species included in the list referred to in

section 303CA, where there is a notation to the effect that the

species is included in Appendix II to CITES.

CITES II specimen means a specimen that belongs to a CITES II

species, where there is a notation in the list referred to in

section 303CA that describes the specimen.

CITES III species means a species included in the list referred to

in section 303CA, where there is a notation to the effect that the

species is included in Appendix III to CITES.

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CITES III specimen means a specimen that belongs to a CITES III

species, where there is a notation in the list referred to in

section 303CA that describes the specimen.

CITES specimen means:

(a) a CITES I specimen; or

(b) a CITES II specimen; or

(c) a CITES III specimen.

civil penalty provision has the meaning given by section 482.

coal seam gas development means any activity involving coal

seam gas extraction that has, or is likely to have, a significant

impact on water resources (including any impacts of associated salt

production and/or salinity):

(a) in its own right; or

(b) when considered with other developments, whether past,

present or reasonably foreseeable developments.

coastal sea of Australia or an external Territory has the same

meaning as in subsection 15B(4) of the Acts Interpretation Act

1901.

coastal waters of a State or the Northern Territory has the meaning

given by section 227.

commercial fishing activity has the meaning given by

subsection 390SC(1A).

commissioner means a person holding an appointment under

paragraph 107(1)(a).

Commonwealth agency means:

(a) a Minister; or

(b) a body corporate established for a public purpose by a law of

the Commonwealth; or

(c) a body corporate established by a Minister otherwise than

under a law of the Commonwealth; or

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(d) a company in which the whole of the shares or stock, or

shares or stock carrying more than one-half of the voting

power, is or are owned by or on behalf of the

Commonwealth; or

(e) a body corporate that is a subsidiary of:

(i) a body or company referred to in paragraph (b), (c) or

(d); or

(ii) a body corporate that, because of a previous application

or previous applications of this paragraph, is taken to be

a Commonwealth agency for the purposes of this

definition; or

(f) a person holding, or performing the duties of:

(i) an office established by or under a law of the

Commonwealth (except a judicial office or office of

member of a tribunan( � or

(ii) an appointment made under a law of the

Commonwealth (except an appointment to a judicial

office or office of member of a tribunan( � or

(g) a person holding, or performing the duties of, an appointment

made by the Governor-General, or by a Minister, otherwise

than under a law of the Commonwealth;

but does not include:

(h) a person holding an office established by or under any of the

following Acts, or holding an appointment made under any

of them:

(i) the Northern Territory (Self-Government) Act 1978;

(ii) the Norfolk Island Act 1979;

(iii) the Australian Capital Territory (Self-Government) Act

1988; or

(i) any of the following:

(i) an Aboriginal Land Trust, or an Aboriginal Land

Council, established under the Aboriginal Land Rights

(Northern Territory) Act 1976;

(ii) a corporation registered under the Corporations

(Aboriginal and Torres Strait Islander) Act 2006;

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(iii) the Wreck Bay Aboriginal Community Council

established by the Aboriginal Land Grant (Jervis Bay

Territory) Act 1986; or

(j) a company prescribed by the regulations for the purposes of

this paragraph.

Commonwealth aircraft has the meaning given by section 403.

Commonwealth area has the meaning given by section 525.

Commonwealth Heritage criteria has the meaning given by

subsection 341D(1).

Commonwealth Heritage List means the list referred to in

section 341C.

Commonwealth Heritage management principles has the meaning

given by section 341Y.

Commonwealth Heritage place has the meaning given by

subsection 341C(3).

Commonwealth Heritage value has the meaning given by

section 341D.

Commonwealth land has the meaning given by section 27.

Commonwealth marine area has the meaning given by section 24.

Commonwealth reserve means a reserve declared under Division 4

of Part 15.

Commonwealth ship has the meaning given by section 403.

components of biodiversity has the meaning given by

subsection 171(3).

conservation agreement means an agreement made under

section 305.

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conservation dependent: a native species may be included in the

conservation dependent category of the list of threatened native

species in accordance with Subdivision A of Division 1 of Part 13.

conservation dependent species means a listed threatened species

that is included in the conservation dependent category of the list

referred to in section 178.

conservation order means an order made under section 464 (with

variations (if any) under section 466 or 469).

conservation zone means a Commonwealth area that is declared to

be a conservation zone under Division 5 of Part 15.

constitutional corporation means a corporation to which

paragraph 51(xx) of the Constitution applies.

continental shelf means the continental shelf (as defined in the

Seas and Submerged Lands Act 1973) of Australia (including its

external Territories).

continuation of a use of land, sea or seabed has the meaning given

by section 43B.

control: a Commonwealth agency controls a place only if the

agency has rights (whether arising under a law, lease, licence or

otherwise) to:

(a) occupy or use the place; and

(b) take actions in relation to the place that could potentially

have an impact on heritage values that the place may have.

controlled action has the meaning given by section 67.

controlling provision has the meaning given by section 67.

convict a person of an offence has a meaning affected by

section 527.

copy, when used in relation to a warrant issued under section 409

or 416 (or a form of warrant completed under subsection 409A(6)

or 416(6)), includes:

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(a) a copy sent by fax or other electronic means; or

(b) a copy of a copy so sent.

country includes a place that is a territory, dependency or colony

(however described) of a foreign country.

critical habitat for a listed threatened species or a listed threatened

ecological community has the meaning given by

subsection 207A(4).

critically endangered:

(a) a native species may be included in the critically endangered

category of the list of threatened native species in accordance

with Subdivision A of Division 1 of Part 13; and

(b) an ecological community may be included in the critically

endangered category of the list of threatened ecological

communities in accordance with Subdivision A of Division 1

of Part 13.

daily newspaper means a newspaper that is ordinarily published on

each day that is a business day in the place where the newspaper is

published, whether or not the newspaper is ordinarily published on

other days.

declaration affected person has the meaning given by

subsection 390SE(3).

declared commercial fishing activity has the meaning given by

subsection 390SC(1).

declared Ramsar wetland has the meaning given by section 17.

declared State or Territory means a State or self-governing

Territory that is declared by the Minister under section 505E.

declared World Heritage property has the meaning given by

section 13.

designated proponent of an action means the person designated

under Division 2 of Part 7 as the proponent of the action.

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directed environmental audit has the meaning given by

subsection 460(4).

Director of Biosecurity has the same meaning as in the Biosecurity

Act 2015.

Director means the Director of National Parks referred to in

section 514A.

dory means:

(a) a vessel in relation to which a licence or other permission

(however described and whether or not in force) has been

granted under a law of the Commonwealth, a State or a

Territory authorising the vessel to be used in association with

a primary commercial fishing vessel; or

(b) a vessel that is used in association with a primary commercial

fishing vessel.

Note: A dory might also be known as a tender commercial fishing vessel.

ecological character has the meaning given by subsection 16(3).

ecological community means the extent in nature in the Australian

jurisdiction of an assemblage of native species that:

(a) inhabits a particular area in nature; and

(b) meets the additional criteria specified in the regulations (if

any) made for the purposes of this definition.

ecologically sustainable use of natural resources means use of the

natural resources within their capacity to sustain natural processes

while maintaining the life-support systems of nature and ensuring

that the benefit of the use to the present generation does not

diminish the potential to meet the needs and aspirations of future

generations.

ecosystem means a dynamic complex of plant, animal and

micro-organism communities and their non-living environment

interacting as a functional unit.

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eligible seizable item means anything that would present a danger

to a person or that could be used to assist a person to escape from

lawful custody.

endangered:

(a) a native species may be included in the endangered category

of the list of threatened native species in accordance with

Subdivision A of Division 1 of Part 13; and

(b) an ecological community may be included in the endangered

category of the list of threatened ecological communities in

accordance with Subdivision A of Division 1 of Part 13.

environment includes:

(a) ecosystems and their constituent parts, including people and

communities; and

(b) natural and physical resources; and

(c) the qualities and characteristics of locations, places and areas;

and

(d) heritage values of places; and

(e) the social, economic and cultural aspects of a thing

mentioned in paragraph (a), (b), (c) or (d).

environmental authorisation has the meaning given by

section 43A.

environmental authority has the meaning given by

subsection 458(4).

environmental law means:

(a) this Act; or

(b) the regulations; or

(c) the Great Barrier Reef Marine Park Act 1975; or

(d) regulations made under the Great Barrier Reef Marine Park

Act 1975.

environmental penalty provision means:

(a) a civil penalty provision under this Act; or

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(b) a civil penalty provision under the Great Barrier Reef

Marine Park Act 1975.

evidential burden, in relation to a matter, means the burden of

adducing or pointing to evidence that suggests a reasonable

possibility that the matter exists or does not exist.

evidential material has the meaning given by subsection 406(2).

exclusive economic zone means the exclusive economic zone (as

defined in the Seas and Submerged Lands Act 1973) of Australia

(including its external Territories).

executing officer, in relation to a warrant, means:

(a) the authorised officer named in the warrant as being

responsible for executing the warrant; or

(b) if that authorised officer does not intend to be present at the

execution of the warrant—another authorised officer whose

name has been written in the warrant by the authorised

officer so named; or

(c) another authorised officer whose name has been written in

the warrant by the authorised officer last named in the

warrant.

executive officer of a body corporate has the meaning given by

section 493.

extinct: a native species may be included in the extinct category of

the list of threatened native species in accordance with

Subdivision A of Division 1 of Part 13.

extinct in the wild: a native species may be included in the extinct

in the wild category of the list of threatened native species in

accordance with Subdivision A of Division 1 of Part 13.

Federal Court means the Federal Court of Australia.

Federal Register of Legislation means the Federal Register of

Legislation established under the Legislation Act 2003.

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fish has the same meaning as in the Fisheries Management Act

1991.

Fisheries Minister means the Minister administering the Fisheries

Management Act 1991.

fishing has the same meaning as in the Fisheries Management Act

1991.

fishing activity has the meaning given by subsection 390SC(2).

fishing concession has the same meaning as in the Fisheries

Management Act 1991.

foreign whaling vessel has the meaning given by

subsection 236(5).

frisk search has the meaning given by subsection 413(3).

genetic resources means any material of plant, animal, microbial

or other origin that contains functional units of heredity and that

has actual or potential value for humanity.

goods has the meaning given by section 443.

Great Barrier Reef Marine Park means the Great Barrier Reef

Marine Park established under the Great Barrier Reef Marine Park

Act 1975.

Great Barrier Reef Marine Park Authority means the Great

Barrier Reef Marine Park Authority established by the Great

Barrier Reef Marine Park Act 1975.

habitat means the biophysical medium or media:

(a) occupied (continuously, periodically or occasionally) by an

organism or group of organisms; or

(b) once occupied (continuously, periodically or occasionally) by

an organism, or group of organisms, and into which

organisms of that kind have the potential to be reintroduced.

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heritage value of a place includes the place’s natural and cultural

environment having aesthetic, historic, scientific or social

significance, or other significance, for current and future

generations of Australians.

holder means:

(a) in the case of a permit issued under Chapter 5—the person to

whom the permit was issued or transferred, as the case may

be; or

(b) in the case of an approval under Part 9—the person named in

the approval under paragraph 133(2)(c).

impact has the meaning given by section 527E.

important cetacean habitat area means an area declared, by a

declaration in force under subsection 228A(1), to be an important

cetacean habitat area.

Independent Expert Scientific Committee on Coal Seam Gas and

Large Coal Mining Development means the Committee

established by section 505C.

indigenous heritage value of a place means a heritage value of the

place that is of significance to indigenous persons in accordance

with their practices, observances, customs, traditions, beliefs or

history.

indigenous people’s land has the meaning given by

subsection 363(3).

indigenous person has the meaning given by subsection 363(4).

indigenous tradition has the meaning given by section 201.

inspector means:

(a) a person appointed as an inspector under section 396;

(b) a person who is an inspector because of section 397; or

(c) a person who is an inspector because of an arrangement

entered into under section 398.

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interested person has the meaning given by section 475.

interfere with a cetacean has the meaning given by

subsection 229B(4).

IUCN category has the meaning given by subsection 346(1).

JAMBA means the Agreement between the Government of Japan

and the Government of Australia for the Protection of Migratory

Birds and Birds in Danger of Extinction and their Environment

done at Tokyo on 6 February 1974, as amended and in force for

Australia from time to time.

Note: The English text of the Agreement is set out in Australian Treaty

Series 1981 No. 6.

jointly managed reserve has the meaning given by

subsection 363(5).

Kakadu National Park has the meaning given by

subsection 387(3).

Kakadu region has the meaning given by subsection 386(1).

keep a cetacean or member of a listed threatened species, listed

migratory species, listed marine species or listed threatened

ecological community means:

(a) in the case of a cetacean, or a species of animal or

community of animals—have charge or possession of the

cetacean or member, either in captivity or in a domesticated

state; and

(b) in the case of a species of plant or community of plants—

have possession of the member.

key threatening process means a threatening process included in

the list referred to in section 183.

land has the meaning given by subsection 345(2).

land council for indigenous people’s land has the meaning given

by subsection 363(2).

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large coal mining development means any coal mining activity

that has, or is likely to have, a significant impact on water

resources (including any impacts of associated salt production

and/or salinity):

(a) in its own right; or

(b) when considered with other developments, whether past,

present or reasonably foreseeable developments.

large-scale disposal facility for radioactive waste has a meaning

affected by subsection 22(2).

list includes a list containing no items.

listed marine species means a marine species included in the list

referred to in section 248.

listed migratory species means a migratory species included in the

list referred to in section 209.

listed threatened ecological community means an ecological

community included in the list referred to in section 181.

listed threatened species means a native species included in the list

referred to in section 178.

List of Overseas Places of Historic Significance to Australia

means the record referred to in section 390K.

live animal includes animal reproductive material.

live plant includes plant reproductive material.

longfin mako shark means the listed migratory species with the

common name longfin mako shark and the scientific name Isurus

paucus.

magistrate means a magistrate who is remunerated by salary or

otherwise, and includes a Judge, or acting Judge, of the Local

Court of the Northern Territory.

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management arrangement includes:

(a) a management plan; and

(b) a regime; and

(c) a policy.

master of a foreign whaling vessel has the meaning given by

subsection 236(5).

matter protected by a provision of Part 3 has the meaning given by

section 34.

member includes:

(a) in relation to a species of animal (other than a species of

cetacean):

(i) any part of an animal of the species; and

(ii) any animal reproductive material of an animal of the

species, or any part of such reproductive material; and

(iii) the whole or any part of the dead body of an animal of

the species; and

(b) in relation to a species of plant:

(i) any part of a plant of the species; and

(ii) any plant reproductive material of a plant of the species,

or any part of such reproductive material; and

(iii) the whole or any part of a plant of the species that has

died; and

(c) in relation to an ecological community:

(i) any part of an animal or plant of the community; and

(ii) any animal reproductive material of an animal, or plant

reproductive material of a plant, of the community, or

any part of such animal reproductive material or plant

reproductive material; and

(iii) the whole or any part of an animal or plant of the

community that has died.

migration zone has the same meaning as in the Migration Act

1958.

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migratory species has the meaning given by subsection 209(8).

mineral has the meaning given by subsection 355(3).

mining operations has the meaning given by subsection 355(2).

monitoring power relating to premises has the meaning given by

section 407.

monitoring warrant has the meaning given by section 409.

National Heritage criteria has the meaning given by

subsection 324D(1).

National Heritage List means the list referred to in section 324C.

National Heritage management principles has the meaning given

by section 324Y.

National Heritage place has the meaning given by

subsection 324C(3).

National Heritage value has the meaning given by section 324D.

native amphibian means an amphibian of a native species.

native animal means an animal of a native species.

native bird means a bird of a native species.

native mammal means a mammal of a native species.

native plant means a plant of a native species.

native reptile means a reptile of a native species.

native species means a species:

(a) that is indigenous to Australia or an external Territory; or

(b) that is indigenous to the seabed of the coastal sea of Australia

or an external Territory; or

(c) that is indigenous to the continental shelf; or

(d) that is indigenous to the exclusive economic zone; or

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(e) members of which periodically or occasionally visit:

(i) Australia or an external Territory; or

(ii) the exclusive economic zone; or

(f) that was present in Australia or an external Territory before

1400.

Note: A reference to Australia or an external Territory includes a reference

to the coastal sea of Australia or the Territory. See section 15B of the

Acts Interpretation Act 1901.

nuclear action has the meaning given by subsection 22(1).

nuclear installation has the meaning given by subsection 22(1).

occupier of premises means the person apparently in charge of the

premises.

officer assisting, in relation to a warrant, means:

(a) an authorised officer who is assisting in executing the

warrant; or

(b) a person who is not an authorised officer, but who has been

authorised by the relevant executing officer to assist in

executing the warrant.

officer of Customs has the same meaning as it has in the Customs

Act 1901.

ordinary search has the meaning given in subsection 414(3).

organism includes:

(a) a virus; and

(b) the reproductive material of an organism; and

(c) an organism that has died.

place includes:

(a) a location, area or region or a number of locations, areas or

regions; and

(b) a building or other structure, or group of buildings or other

structures (which may include equipment, furniture, fittings

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and articles associated or connected with the building or

structure, or group of buildings or structures); and

(c) in relation to the protection, maintenance, preservation or

improvement of a place—the immediate surroundings of a

thing in paragraph (a) or (b).

plant means a member, alive or dead, of the plant kingdom or of

the fungus kingdom, and includes a part of a plant and plant

reproductive material.

plant reproductive material means:

(a) a seed or spore of a plant; or

(b) a cutting from a plant; or

(c) any other part, or product, of a plant from which another

plant can be produced.

population of a species or ecological community means an

occurrence of the species or community in a particular area.

porbeagle shark means the listed migratory species with the

common name porbeagle shark and the scientific name Lamna

nasus.

precautionary principle has the meaning given by

subsection 391(2).

premises includes a place, vehicle, vessel and aircraft.

prescribed waters means waters in respect of which regulations

made for the purposes of section 226 are in force.

primary commercial fishing vessel means:

(a) a vessel in relation to which a licence or other permission

(however described and whether or not in force) has been

granted under a law of the Commonwealth, a State or a

Territory authorising the vessel to be used to take fish for

commercial purposes; or

(b) a vessel that is used to take fish for commercial purposes.

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principles of ecologically sustainable development has a meaning

affected by section 3A.

progeny includes:

(a) in relation to an animal—any animal reproductive material of

that animal or of any progeny of that animal; and

(b) in relation to a plant—any plant reproductive material of that

plant or of any progeny of that plant; and

(c) in relation to a live animal that is animal reproductive

material—any animal resulting from that material or any

progeny of such animal; and

(d) in relation to a live plant that is plant reproductive material—

any plant resulting from that material or any progeny of such

plant.

To avoid doubt, a reference in this Act to progeny of an animal or

a plant includes a reference to any descendant of that animal or

plant.

radioactive waste has the meaning given by subsection 22(1).

Ramsar Convention means the Convention on Wetlands of

International Importance especially as Waterfowl Habitat done at

Ramsar, Iran, on 2 February 1971, as amended and in force for

Australia from time to time.

Note: The English Text of the Convention is set out in Australian Treaty

Series 1975 No. 48.

range of a species means the area where members of the species

live, feed, breed or visit periodically or regularly.

ranger means a person holding an appointment as a ranger under

Part 17.

recovery plan means a plan made or adopted under section 269A.

regulated live specimen has the meaning given by section 303EA.

regulated native specimen has the meaning given by

section 303DA.

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relevant impacts of an action has the meaning given by section 82.

remediation determination means a determination, as in force

from time to time, made under section 480D.

remediation order means an order, as in force from time to time,

made under section 480A.

reprocessing has the meaning given by subsection 22(1).

Scientific Committee means the Threatened Species Scientific

Committee established by section 502.

seabed has the meaning given by subsection 345(2).

Secretary means the Secretary of the Department that:

(a) deals with the matter to which the provision containing the

reference relates; and

(b) is administered by the Minister administering the provision.

seized has a meaning affected by section 406B.

self-governing Territory means:

(a) the Australian Capital Territory; or

(b) the Northern Territory.

shortfin mako shark means the listed migratory species with the

common name shortfin mako shark and the scientific name Isurus

oxyrinchus.

species means a group of biological entities that:

(a) interbreed to produce fertile offspring; or

(b) possess common characteristics derived from a common

gene pool;

and includes:

(c) a sub-species; and

(ca) for the purposes of Part 13A—a distinct population of such

biological entities; and

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(d) except for the purposes of Part 13A—a distinct population of

such biological entities that the Minister has determined,

under section 517, to be a species for the purposes of this

Act.

In this definition, the purposes of Part 13A:

(a) include the purposes of the definitions of CITES I species,

CITES II species and CITES III species; and

(b) do not include determining the meaning of the expression

listed threatened species when used in Part 13A.

specific environmental authorisation has the meaning given by

section 43A.

specimen has the meaning given by section 527A.

spent nuclear fuel has the meaning given by subsection 22(1).

subsidiary of a body corporate has a meaning affected by

section 526.

sub-species means a geographically separate population of a

species, being a population that is characterised by morphological

or biological differences from other populations of that species.

take, except in Part 13A, includes:

(a) in relation to an animal—harvest, catch, capture and trap; and

(b) in relation to a plant—harvest, pick, gather and cut.

Note: For the meaning of take in Part 13A, see section 303BC.

taxon means any taxonomic category (for example, a species or a

genus), and includes a particular population.

terms of reference:

(a) in relation to an inquiry under Division 7 of Part 8—has the

meaning given by paragraph 107(1)(b); and

(b) in relation to an assessment under Division 3 of Part 15B—

has the meaning given by paragraph 390SH(1)(b).

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territorial sea means the territorial sea (as defined in the Seas and

Submerged Lands Act 1973) of Australia (including its external

Territories).

threat abatement plan means a plan made or adopted under

section 270B.

threatening process has the meaning given by subsection 188(3).

trade:

(a) when used in the context of a reference to a member of a

listed threatened species, listed migratory species, listed

marine species or listed threatened ecological community—

includes:

(i) buy the member, agree to receive it under an agreement

to buy, agree to accept it under such an agreement or

acquire it by barter; or

(ii) sell the member, offer it for sale, agree to sell it, have it

in possession for the purpose of sale, deliver it for the

purpose of sale, receive it for the purpose of sale or

dispose of it by barter for the purpose of gain or

advancement; or

(iii) export the member from Australia or an external

Territory or import it into Australia or an external

Territory; or

(iv) cause or allow any of the acts referred to in

subparagraph (i), (ii) or (iii) to be done; or

(b) when used in the context of a reference to a cetacean (not

being a reference that covers a cetacean because a cetacean is

a member referred to in paragraph (a))—has the meaning

given by subsection 229B(4).

traditional owners of indigenous people’s land has the meaning

given by subsection 368(4).

treat a cetacean has the meaning given by subsection 229D(3).

Uluru-Kata Tjuta National Park has the meaning given by

subsection 344(3).

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Uluru region has the meaning given by subsection 386(2).

usage right has the meaning given by subsection 350(7).

vehicle includes a hovercraft.

vessel means a ship, boat, raft or pontoon or any other thing

capable of carrying persons or goods through or on water and

includes a floating structure and hovercraft.

vulnerable:

(a) a native species may be included in the vulnerable category

of the list of threatened native species in accordance with

Subdivision A of Division 1 of Part 13; and

(b) an ecological community may be included in the vulnerable

category of the list of threatened ecological communities in

accordance with Subdivision A of Division 1 of Part 13.

warden means a person holding an appointment as a warden under

Part 17.

warrant premises means premises in relation to which a warrant is

in force.

water resource has the same meaning as in the Water Act 2007.

wetland has the same meaning as in the Ramsar Convention.

whale watching has the meaning given by section 238.

wildlife means:

(a) an animal; or

(b) a specimen derived from an animal; or

(c) a plant; or

(d) a specimen derived from a plant.

wildlife conservation plan means a plan of a kind referred to in

section 285 that has been made or adopted under that section.

World Heritage Convention means the Convention for the

Protection of the World Cultural and Natural Heritage done at Paris

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on 23 November 1972, as amended and in force for Australia from

time to time.

Note: The English text of the Convention is set out in Australian Treaty

Series 1975 No. 47.

World Heritage List means the list kept under that title under

Article 11 of the World Heritage Convention.

world heritage values of a property has the meaning given by

subsection 12(3).

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Part 1 Preliminary

Division 1 Objects of this Schedule

Clause 1

Schedule 1—Provisions relating to detention

of suspected foreign offenders Note: See section 433B.

Part 1—Preliminary

Division 1—Objects of this Schedule

1 Main objects of this Schedule

(1) This Schedule has 3 main objects.

(2) The first main object is to provide for the detention (environment

detention) in Australia or a Territory of persons who:

(a) are reasonably suspected by an authorised officer of having

committed an offence:

(i) involving the use of a foreign vessel; or

(ii) in the Australian jurisdiction but outside the migration

zone; and

(b) are not Australian citizens or Australian residents;

for a limited period for the purposes of determining whether to

charge them with the offence.

(3) The second main object is to provide for persons in environment

detention to be searched, screened, given access to facilities for

obtaining legal advice, and identified.

(4) The third main object is to facilitate the transition of persons from

environment detention to immigration detention under the

Migration Act 1958:

(a) by providing for the things mentioned in subclause (3) to be

done in a way corresponding to the way that Act provides for

those things to be done to persons in immigration detention;

and

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(b) by authorising the disclosure of personal information about

individuals who are or have been in environment detention to

persons, agencies and organisations responsible for holding

the individuals in immigration detention, for the purpose of

the immigration detention and welfare of the individuals.

Note: The enforcement visa of a person who is neither an Australian citizen

nor an Australian resident ceases to have effect under the Migration

Act 1958 when the person ceases to be in environment detention, so

that Act requires the person to be taken into immigration detention.

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Division 2 Definitions

Clause 2

Division 2—Definitions

2 Definitions

In this Schedule, unless the contrary intention appears:

approved officer means:

(a) an authorised officer (other than a person who is an

authorised officer because of subsection 397(3)); or

(b) a detention officer;

who is approved under Division 4 for the purposes of the provision

in which the expression occurs.

Australian resident means:

(a) a person who holds a permanent visa (as defined in the

Migration Act 1958) that is in effect; or

(b) a New Zealand citizen who is usually resident in Australia or

a Territory and who holds a special category visa (as defined

in the Migration Act 1958) that is in effect; or

(c) any other person who is usually resident in Australia or a

Territory and whose continued presence in Australia or a

Territory is not subject to a limitation as to time imposed by

law.

authorised Migration Act officer means an authorised officer,

within the meaning of the Migration Act 1958.

detainee means a person detained under Part 2.

detention means detention under Part 2.

detention officer means a person appointed under clause 3 to be a

detention officer.

foreign vessel means a vessel that is not an Australian vessel.

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Appointment etc. of detention officers Division 3

Clause 3

Division 3—Appointment etc. of detention officers

3 Minister may appoint persons to be detention officers

(1) The Minister may, by instrument, appoint one or more persons

(except persons who are authorised officers) to be detention

officers.

Note: Authorised officers have the same powers as detention officers, as

well as other powers, so there is no reason for authorised officers to be

appointed as detention officers.

(2) An instrument appointing persons to be detention officers:

(a) may identify the persons by reference to a class; and

(b) may provide for persons to be appointed when they become

members of the class at or after a time specified in the

instrument.

4 Detention officers subject to directions

(1) A detention officer is, in the exercise of his or her powers, and the

performance of his or her duties, under this Schedule, subject to the

directions given by the Minister.

(2) A direction given by the Minister under subclause (1) is a

legislative instrument.

Note 1: Section 42 (disallowance) of the Legislation Act 2003 does not apply

to the direction. See regulations made for the purposes of

paragraph 44(2)(b) of that Act.

Note 2: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not

apply to the direction. See regulations made for the purposes of

paragraph 54(2)(b) of that Act.

5 Detention officer etc. not liable to certain actions

(1) A detention officer, or a person assisting a detention officer in the

exercise of powers under this Schedule or the regulations, is not

liable to an action, suit or proceeding for or in respect of anything

done in good faith or omitted to be done in good faith in the

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Clause 5

exercise or purported exercise of any power conferred by this

Schedule or by regulations made for the purposes of this Schedule.

Note: Section 498A makes similar provision for authorised officers and their

assistants.

(2) However, subclause (1) does not affect a contractual liability of a

detention officer or person assisting a detention officer.

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Approval of authorised officers and detention officers Division 4

Clause 6

Division 4—Approval of authorised officers and detention

officers

6 The Secretary may approve authorised officers and detention

officers

(1) The Secretary may, by instrument, approve one or more authorised

officers and/or detention officers for the purposes of a specified

provision of this Schedule, from among authorised officers and/or

detention officers who have successfully completed minimum

training prescribed by the regulations.

(2) An instrument approving authorised officers and/or detention

officers:

(a) may identify them by reference to a class; and

(b) may provide for them to be approved when they become

members of the class at or after a time specified in the

instrument.

7 Persons who are authorised officers for purposes of the Migration

Act 1958 are taken to be approved for this Schedule

(1) A person who:

(a) is an authorised officer or a detention officer; and

(b) is an authorised Migration Act officer for a provision of the

Migration Act 1958 listed in column 2 of an item of the table;

is, while he or she meets the conditions in paragraphs (a) and (b),

taken to be approved under clause 6 for the purposes of the

provision of this Schedule listed in column 3 of the item.

Corresponding provisions of the Migration Act 1958 and this Schedule

Column 1 Column 2 Column 3

Item Provision of the Migration Act Provision of this Schedule

1958

Subsection 252(4) Subclause 15(3)

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3

4

5

6

7

8

9

10

11

14

15

Schedule 1 Provisions relating to detention of suspected foreign offenders

Part 1 Preliminary

Division 4 Approval of authorised officers and detention officers

Clause 7

Corresponding provisions of the Migration Act 1958 and this Schedule

Column 1 Column 2 Column 3

Item Provision of the Migration Act Provision of this Schedule

1958

Paragraph 252(6)(a) Paragraph 15(5)(a)

Subparagraph 252(6)(b)(i) Subparagraph 15(5)(b)(i)

Subsection 252AA(1) Subclause 16(1)

Subsection 252A(1) Subclause 17(1)

Subsection 252C(1) Subclause 19(1)

Subsection 252D(2) Subclause 20(2)

Subsection 252G(3) Subclause 22(3)

Section 261AA Clause 28

Subsection 261AE(1) Subclause 32(1)

Subsection 261AE(3) Subclause 32(3)

12 Section 261AG Clause 34

13 Section 261AJ Clause 37

Subsection 261AK(1) (except Subclause 38(1) (except

paragraph (a)) paragraph (a))

Subsection 261AK(3) Subclause 38(3)

Limits on approval

(2) However, the person is not taken to be approved to carry out an

identification test in relation to which section 5D of the Migration

Act 1958 provides that the person is not an authorised officer (for

the purposes of that Act).

Note: This is relevant to items 9 to 15 of the table in subclause (1).

Persons specified by Secretary not approved

(3) The Secretary may, by instrument, specify that the person is not

taken to be approved:

(a) for the purposes of the provision of this Schedule; or

(b) for the purposes of carrying out under this

Schedule identification tests of a type specified under

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Clause 7

section 5D of the Migration Act 1958 in relation to the

person.

The instrument has effect according to its terms, despite

subclause (1).

(4) An instrument under subclause (3) may specify one or more

persons by reference to their being members of a specified class at

or after a time specified in the instrument.

(5) An instrument made under subclause (3) is not a legislative

instrument.

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Part 2 Detaining suspected foreign offenders

Division 1 Initial detention by an authorised officer

Clause 8

Part 2—Detaining suspected foreign offenders

Division 1—Initial detention by an authorised officer

8 Power to detain

(1) An authorised officer may detain a person in Australia or a

Territory for the purposes of determining during the period of

detention whether or not to charge the person with an offence

against an environmental law, or an offence against section 6 of the

Crimes Act 1914 relating to such an offence, if the authorised

officer has reasonable grounds to believe that the person:

(a) is not an Australian citizen or an Australian resident; and

(b) either or both of the following:

(i) was on a foreign vessel when it was used or otherwise

involved in the commission of the offence;

(ii) committed the offence in the Australian jurisdiction but

outside the migration zone.

(2) Subclause (1) does not authorise an authorised officer to use more

force in detaining a person than is reasonably necessary.

9 Relationship with Part IC of the Crimes Act 1914

(1) Part IC of the Crimes Act 1914 applies in relation to the detainee

while detained under this Part as if:

(a) he or she were a protected suspect for a Commonwealth

offence for the purposes of that Part; and

(b) an authorised officer were an investigating official for the

purposes of that Part.

(2) Subclause (1) does not affect the operation of Division 2 of Part IC

of the Crimes Act 1914 as it applies of its own force in relation to a

person who is lawfully arrested.

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Detaining suspected foreign offenders Part 2

Continued detention by a detention officer Division 2

Clause 10

Division 2—Continued detention by a detention officer

10 Detention officer may detain person already detained by

authorised officer

(1) For the purposes of facilitating an authorised officer determining

whether or not to charge a person with an offence against an

environmental law, or an offence against section 6 of the Crimes

Act 1914 relating to such an offence, a detention officer may detain

the person in Australia or a Territory if the detention officer has

reasonable grounds to believe that the person:

(a) has been detained by an authorised officer under Division 1;

and

(b) has been presented, while detained by that authorised officer,

to a detention officer for detention by a detention officer.

(2) However, the detention officer may not detain the person if the

detention officer has reasonable grounds to believe that the person

has ceased to be in detention since the last time the person was

detained by an authorised officer under Division 1.

(3) Subclause (1) does not authorise a detention officer to use more

force in detaining a person than is reasonably necessary.

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Division 3 Detention on behalf of an authorised officer or detention officer

Clause 11

Division 3—Detention on behalf of an authorised officer or

detention officer

11 Detention on behalf of an authorised officer or detention officer

(1) A person is taken to be detained by an authorised officer or

detention officer under this Part while the person is held, on behalf

of the authorised officer or detention officer, in any of the

following:

(a) a prison or remand centre;

(b) a police station or watch house;

(c) a hospital or other place where the person is receiving

medical treatment;

(d) another place approved by the Minister in writing;

(e) a vessel.

(2) This clause has effect even while the authorised officer or

detention officer is not present where the person is held on behalf

of the authorised officer or detention officer.

(3) An approval of a place by the Minister is not a legislative

instrument.

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Moving detainees Division 4

Clause 12

Division 4—Moving detainees

12 Power to move detainees

(1) An authorised officer or detention officer may:

(a) take a detainee in Australia to another place in Australia or to

a place in an external Territory; and

(b) take a detainee in an external Territory to another place in the

Territory or to a place in Australia or another Territory.

(2) Subclause (1) does not authorise an authorised officer or detention

officer to use more force than is reasonably necessary to take the

detainee to the place.

(3) In exercising the power under subclause (1), the authorised officer

or detention officer must have regard to all matters that he or she

considers relevant, including:

(a) the administration of justice; and

(b) the welfare of the detainee.

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Division 5 End of detention

Clause 13

Division 5—End of detention

13 End of detention

A detainee must be released from detention:

(a) as soon as an authorised officer or detention officer knows or

reasonably believes that the detainee is an Australian citizen

or an Australian resident; or

(b) at the time the detainee is brought before a magistrate

following a decision to charge the detainee with an offence

referred to in subclause 8(1); or

(c) at the time a decision is made not to charge the detainee with

an offence referred to in that subclause; or

(d) at the end of 168 hours after the detention began;

whichever occurs first.

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Offence of escaping from detention Division 6

Clause 14

Division 6—Offence of escaping from detention

14 Escape from detention

(1) A person commits an offence if:

(a) the person is in detention; and

(b) the person escapes from that detention.

(2) The offence is punishable on conviction by imprisonment for up to

2 years.

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Division 1 Searches of detainees

Clause 15

Part 3—Searching and screening detainees and

screening their visitors

Division 1—Searches of detainees

15 Searches of detainees

(1) For the purposes set out in subclause (2), a detainee, and the

detainee’s clothing and any property under the immediate control

of the detainee, may, without warrant, be searched.

(2) The purposes for which a detainee, and the detainee’s clothing and

any property under the immediate control of the detainee, may be

searched under this clause are as follows:

(a) to find out whether there is hidden on the detainee’s person,

in the clothing or in the property, a weapon or other thing

capable of being used to inflict bodily injury or to help the

detainee to escape from detention;

(b) to find out whether there is hidden on the detainee’s person,

in the clothing or in the property, a document or other thing

that is, or may be, evidence of:

(i) an offence against an environmental law; or

(ii) an offence against section 6 of the Crimes Act 1914

relating to an offence described in subparagraph (i).

(3) If, in the course of a search under this clause, a weapon or other

thing referred to in paragraph (2)(a), or a document or other thing

referred to in paragraph (2)(b), is found, an approved officer:

(a) may take possession of the weapon, document or other thing;

and

(b) may retain the weapon, document or other thing for such

time as he or she thinks necessary for the purposes of this

Act, the Great Barrier Reef Marine Park Act 1975 or the

Migration Act 1958.

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(4) This clause does not authorise an approved officer, or another

person conducting a search pursuant to subclause (5), to remove

any of the detainee’s clothing, or to require a detainee to remove

any of his or her clothing.

(5) A search under this clause of a detainee, and the detainee’s

clothing, must be conducted by:

(a) an approved officer of the same sex as the detainee; or

(b) in a case where an approved officer of the same sex as the

detainee is not available to conduct the search—any other

person who is of the same sex and:

(i) is requested by an approved officer; and

(ii) agrees;

to conduct the search.

(6) An action or proceeding, whether civil or criminal, does not lie

against a person who, at the request of an approved officer,

conducts a search under this clause if the person acts in good faith

and does not contravene subclause (7).

(7) An approved officer or other person who conducts a search under

this clause must not use more force, or subject a detainee to greater

indignity, than is reasonably necessary in order to conduct the

search.

(8) To avoid doubt, a search of a detainee may be conducted under this

clause irrespective of whether a screening procedure is conducted

in relation to the detainee under clause 16 or a strip search of the

detainee is conducted under clause 17.

Note: This clause corresponds closely to section 252 of the Migration Act

1958.

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Division 2 Screening of detainees

Clause 16

Division 2—Screening of detainees

16 Power to conduct a screening procedure

(1) A screening procedure in relation to a detainee, other than a

detainee to whom clause 23 applies, may be conducted by an

approved officer, without warrant, to find out whether there is

hidden on the detainee, in his or her clothing or in a thing in his or

her possession a weapon, or other thing, capable of being used:

(a) to inflict bodily injury; or

(b) to help the detainee, or any other detainee, to escape from

detention.

(2) An approved officer who conducts a screening procedure under

this clause must not use greater force, or subject the detainee to

greater indignity, than is reasonably necessary in order to conduct

the screening procedure.

(3) This clause does not authorise an approved officer to remove any

of the detainee’s clothing, or to require a detainee to remove any of

his or her clothing.

(4) To avoid doubt, a screening procedure may be conducted in

relation to a detainee under this clause irrespective of whether a

search of the detainee is conducted under clause 15 or 17.

(5) In this clause:

conducting a screening procedure, in relation to a detainee,

means:

(a) causing the detainee to walk, or to be moved, through

screening equipment; or

(b) passing hand-held screening equipment over or around the

detainee or around things in the detainee’s possession; or

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(c) passing things in the detainee’s possession through screening

equipment or examining such things by X-ray.

screening equipment means a metal detector or similar device for

detecting objects or particular substances.

Note: This clause corresponds closely to section 252AA of the Migration

Act 1958.

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Division 3 Strip searches of detainees

Clause 17

Division 3—Strip searches of detainees

17 Power to conduct a strip search

(1) A strip search of a detainee, other than a detainee to whom

clause 23 applies, may be conducted by an approved officer,

without warrant, to find out whether there is hidden on the

detainee, in his or her clothing or in a thing in his or her possession

a weapon, or other thing, capable of being used:

(a) to inflict bodily injury; or

(b) to help the detainee, or any other detainee, to escape from

detention.

Note: Clause 18 sets out rules for conducting a strip search under this clause.

(2) A strip search of a detainee means a search of the detainee, of his

or her clothing or of a thing in his or her possession. It may

include:

(a) requiring the detainee to remove some or all of his or her

clothing; and

(b) an examination of that clothing and of the detainee’s body

(but not of the detainee’s body cavities).

(3) A strip search of a detainee may be conducted by an approved

officer only if:

(a) an authorised officer or detention officer suspects on

reasonable grounds that there is hidden on the detainee, in his

or her clothing or in a thing in his or her possession a weapon

or other thing described in subclause (1); and

(b) the authorised officer, or detention officer, referred to in

paragraph (a) suspects on reasonable grounds that it is

necessary to conduct a strip search of the detainee to recover

that weapon or other thing; and

(c) the strip search is authorised as follows:

(i) if the detainee is at least 18—the Secretary, the

Director, the Chief Executive Officer of the Great

Barrier Reef Marine Park Authority or an SES Band 3

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employee in the Department (who is not the authorised

officer referred to in paragraphs (a) and (b) nor the

approved officer conducting the strip search), authorises

the strip search because he or she is satisfied that there

are reasonable grounds for those suspicions;

(ii) if the detainee is at least 10 but under 18—a magistrate

orders the strip search because he or she is satisfied that

there are reasonable grounds for those suspicions.

(4) An authorised officer or detention officer may form a suspicion on

reasonable grounds for the purposes of paragraph (3)(a) on the

basis of:

(a) a search conducted under clause 15 (whether by that

authorised officer or detention officer or by another

authorised officer or detention officer); or

(b) a screening procedure conducted under clause 16 (whether by

that authorised officer or detention officer or by another

authorised officer or detention officer); or

(c) any other information that is available to the authorised

officer or detention officer.

(5) An authorisation of a strip search given for the purposes of

subparagraph (3)(c)(i):

(a) may be given by telephone, fax or other electronic means;

and

(b) must be recorded in writing, and signed by the person giving

the authorisation, within one business day after it is given.

(6) A record made under paragraph (5)(b) is not a legislative

instrument.

(7) A failure to comply with paragraph (5)(b) does not affect the

validity of a strip search conducted on the basis of that

authorisation.

(8) The power to authorise a strip search under subparagraph (3)(c)(i)

cannot be delegated to any other person.

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(9) A power conferred on a magistrate by this clause is conferred on

the magistrate in a personal capacity and not as a court or a

member of a court.

(10) The magistrate need not accept the power conferred.

(11) A magistrate exercising a power under this clause has the same

protection and immunity as if he or she were exercising that power

as, or as a member of, the court of which the magistrate is a

member.

(12) To avoid doubt, a strip search of a detainee may be conducted

under this clause irrespective of whether a search of the detainee is

conducted under clause 15 or a screening procedure is conducted in

relation to the detainee under clause 16.

(13) In this clause:

SES Band 3 employee means an SES employee with a

classification of Senior Executive Band 3, and includes an SES

employee who has been temporarily assigned duties that have been

allocated a classification of Senior Executive Band 3.

Note: This clause corresponds closely to section 252A of the Migration Act

1958.

18 Rules for conducting a strip search

(1) A strip search of a detainee under clause 17:

(a) must not subject the detainee to greater indignity than is

reasonably necessary to conduct the strip search; and

(b) must be conducted in a private area; and

(c) must be conducted by an approved officer of the same sex as

the detainee; and

(d) subject to subclauses (2), (3) and (5), must not be conducted

in the presence or view of a person who is of the opposite sex

to the detainee; and

(e) subject to subclauses (2), (3) and (5), must not be conducted

in the presence or view of a person whose presence is not

necessary for the purposes of the strip search; and

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(f) must not be conducted on a detainee who is under 10; and

(g) if the detainee is at least 10 but under 18, or is incapable of

managing his or her affairs—must be conducted in the

presence of:

(i) the detainee’s parent or guardian if that person is in

detention with the detainee and is readily available at

the same place; or

(ii) if that is not acceptable to the detainee or

subparagraph (i) does not apply—another person (other

than an approved officer) who is capable of representing

the detainee’s interests and who, as far as is practicable

in the circumstances, is acceptable to the detainee; and

(h) subject to subclause (4), if the detainee is at least 18, and is

not incapable of managing his or her affairs—must be

conducted in the presence of another person (if any)

nominated by the detainee, if that other person is readily

available at the same place as the detainee, and willing to

attend the strip search within a reasonable time; and

(i) must not involve a search of the detainee’s body cavities; and

(j) must not involve the removal of more items of clothing, or

more visual inspection, than the approved officer conducting

the search believes on reasonable grounds to be necessary to

determine whether there is hidden on the detainee, in his or

her clothing or in a thing in his or her possession a weapon or

other thing described in subclause 17(1); and

(k) must not be conducted with greater force than is reasonably

necessary to conduct the strip search.

(2) Paragraphs (1)(d) and (e) do not apply to a parent or guardian, or

person present because of subparagraph (1)(g)(ii), if the detainee

has no objection to that person being present.

(3) Paragraphs (1)(d) and (e) do not apply to a person nominated by

the detainee under paragraph (1)(h) to attend the strip search.

(4) Neither:

(a) a detainee’s refusal or failure to nominate a person under

paragraph (1)(h) within a reasonable time; nor

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(b) a detainee’s inability to nominate a person under that

paragraph who is readily available at the same place as the

detainee and willing to attend the strip search within a

reasonable time;

prevents a strip search being conducted.

(5) A strip search of a detainee may be conducted with the assistance

of another person if the approved officer conducting the strip

search considers that to be necessary for the purposes of

conducting it. That person must not be of the opposite sex to the

detainee unless:

(a) the person is a medical practitioner; and

(b) a medical practitioner of the same sex as the detainee is not

available within a reasonable time.

(6) An action or proceeding, whether civil or criminal, does not lie

against a person who, at the request of an approved officer, assists

in conducting a strip search if the person acts in good faith and

does not contravene this clause.

(7) A detainee must be provided with adequate clothing if during or as

a result of a strip search any of his or her clothing is:

(a) damaged or destroyed; or

(b) retained under clause 19.

Note: This clause corresponds closely to section 252B of the Migration Act

1958.

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Clause 19

Division 4—Keeping of things found by screening or strip

search of detainees

19 Possession and retention of certain things obtained during a

screening procedure or strip search

(1) An approved officer may take possession of and retain a thing

found in the course of conducting a screening procedure under

clause 16 or conducting a strip search under clause 17 if the thing:

(a) might provide evidence of the commission of an offence

against an environmental law, or an offence against section 6

of the Crimes Act 1914 relating to such an offence; or

(b) is forfeited or forfeitable to the Commonwealth.

(2) A weapon or other thing described in subclause 16(1) or 17(1) that

is found in the course of conducting a screening procedure under

clause 16 or a strip search under clause 17 is forfeited to the

Commonwealth.

(3) An approved officer must not return a thing that is forfeited or

forfeitable to the Commonwealth. Instead, the approved officer

must, as soon as practicable, give a thing that is forfeited under

subclause (2) to a constable (within the meaning of the Crimes Act

1914).

Note: See sections 450 and 451 of this Act, which deal with court-ordered

forfeiture and how forfeited items are to be dealt with.

(4) An approved officer must take reasonable steps to return anything

that is not forfeited or forfeitable but is retained under

subclause (1) to the person from whom it was taken, or to the

owner if that person is not entitled to possess it, if one of the

following happens:

(a) it is decided that the thing is not to be used in evidence;

(b) the period of 60 days after the approved officer takes

possession of the thing ends.

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Clause 20

(5) However, the approved officer does not have to take those steps if:

(a) in a paragraph (4)(b) case:

(i) proceedings in respect of which the thing might provide

evidence have been instituted before the end of the 60

day period and have not been completed (including an

appeal to a court in relation to those proceedings); or

(ii) the approved officer may retain the thing because of an

order under clause 21; or

(b) in any case—the approved officer is otherwise authorised (by

a law, or an order of a court or a tribunal, of the

Commonwealth or a State or Territory) to retain, destroy or

dispose of the thing.

Note: This clause corresponds closely to section 252C of the Migration Act

1958.

20 Approved officer may apply for a thing to be retained for a

further period

(1) This clause applies if an approved officer has taken possession of a

thing referred to in subclause 19(4) and proceedings in respect of

which the thing might provide evidence have not commenced

before the end of:

(a) 60 days after the approved officer takes possession of the

thing; or

(b) a period previously specified in an order of a magistrate

under clause 21.

(2) The approved officer may apply to a magistrate for an order that

the approved officer may retain the thing for a further period.

(3) Before making the application, the approved officer must:

(a) take reasonable steps to discover which persons’ interests

would be affected by the retention of the thing; and

(b) if it is practicable to do so, notify each person who the

approved officer believes to be such a person of the proposed

application.

(4) A notice under paragraph (3)(b) is not a legislative instrument.

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Clause 21

Note: This clause corresponds closely to section 252D of the Migration Act

1958.

21 Magistrate may order that thing be retained

(1) The magistrate may order that the approved officer who made an

application under clause 20 may retain the thing if the magistrate is

satisfied that it is necessary for the approved officer to do so:

(a) for the purposes of an investigation as to whether an offence

has been committed; or

(b) to enable evidence of an offence to be secured for the

purposes of a prosecution.

(2) The order must specify the period for which the approved officer

may retain the thing.

(3) A power conferred on a magistrate by this clause is conferred on

the magistrate in a personal capacity and not as a court or a

member of a court.

(4) The magistrate need not accept the power conferred.

(5) A magistrate exercising a power under this clause has the same

protection and immunity as if he or she were exercising that power

as, or as a member of, the court of which the magistrate is a

member.

Note: This clause corresponds closely to section 252E of the Migration Act

1958.

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Division 5 Screening detainees’ visitors

Clause 22

Division 5—Screening detainees’ visitors

22 Powers concerning entry to premises where detainee is detained

(1) An authorised officer or detention officer may request that a person

about to enter premises where a detainee is in detention do one or

more of the following:

(a) walk through screening equipment;

(b) allow an authorised officer or detention officer to pass

hand-held screening equipment over or around the person or

around things in the person’s possession;

(c) allow things in the person’s possession to pass through

screening equipment or to be examined by X-ray.

(2) Screening equipment means a metal detector or similar device for

detecting objects or particular substances.

(3) If an approved officer suspects on reasonable grounds that a person

about to enter premises where a detainee is in detention has in the

person’s possession a thing that might:

(a) endanger the safety of the detainees, staff or other persons on

the premises; or

(b) disrupt the order or security arrangements on the premises;

the approved officer may request that the person do some or all of

the things in subclause (4) for the purpose of finding out whether

the person has such a thing. A request may be made whether or not

a request is also made to the person under subclause (1).

(4) An approved officer may request that the person do one or more of

the following:

(a) allow the approved officer to inspect the things in the

person’s possession;

(b) remove some or all of the person’s outer clothing such as a

coat, jacket or similar item;

(c) remove items from the pockets of the person’s clothing;

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Clause 22

(d) open a thing in the person’s possession, or remove the thing’s

contents, to allow the approved officer to inspect the thing or

its contents;

(e) leave a thing in the person’s possession, or some or all of its

contents, in a place specified by the approved officer if he or

she suspects on reasonable grounds that the thing or its

contents are capable of concealing something that might:

(i) endanger the safety of the detainees, staff or other

persons on the premises; or

(ii) disrupt the order or security arrangements on the

premises.

(5) A person who leaves a thing (including any of its contents) in a

place specified by an approved officer is entitled to its return when

the person leaves the premises.

(6) However, if possession of the thing, or any of those contents, by

the person is unlawful under a Commonwealth, State or Territory

law applying to the premises:

(a) the thing or the contents must not be returned to the person;

and

(b) an approved officer must, as soon as practicable, give the

thing or the contents to a constable (within the meaning of

the Crimes Act 1914).

(7) A person who is about to enter premises where a detainee is

detained may be refused entry if the person does not comply with a

request under this clause.

Note: This clause corresponds closely to section 252G of the Migration Act

1958.

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Division 6 Law applying to detainee in State or Territory prison etc.

Clause 23

Division 6—Law applying to detainee in State or Territory

prison etc.

23 Detainees held in State or Territory prisons or remand centres

(1) This clause applies to a detainee if:

(a) the detainee is held in detention in a prison or remand centre

of a State or Territory; and

(b) a law of that State or Territory confers a power to search

persons, or things in the possession of persons, serving

sentences or being held in the prison or remand centre.

(2) To the extent that the State or Territory law confers that power, or

affects the exercise of that power, it applies to the detainee as

though it were a law of the Commonwealth.

(3) Clauses 16 and 17 do not apply to a detainee to whom this clause

applies.

Note: This clause corresponds closely to section 252F of the Migration Act

1958.

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Clause 24

Part 4—Detainees’ rights to facilities for obtaining

legal advice etc.

24 Detainee may have access to certain advice, facilities etc.

The person responsible for detention of a detainee must afford to

him or her all reasonable facilities for obtaining legal advice or

taking legal proceedings in relation to his or her detention.

Note: This clause corresponds to section 256 of the Migration Act 1958.

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Part 5 Identifying detainees

Division 1 Preliminary

Clause 25

Part 5—Identifying detainees

Division 1—Preliminary

25 Definitions

In this Part, unless the contrary intention appears:

identification test means a test carried out in order to obtain a

personal identifier.

incapable person means a person who is incapable of

understanding the general nature and effect of, and purposes of, a

requirement to provide a personal identifier.

independent person means a person (other than an authorised

officer, detention officer or approved officer) who:

(a) is capable of representing the interests of a non-citizen who is

providing, or is to provide, a personal identifier; and

(b) as far as practicable, is acceptable to the non-citizen who is

providing, or is to provide, the personal identifier; and

(c) if the non-citizen is a minor—is capable of representing the

minor’s best interests.

minor means a person who is less than 18 years old.

non-citizen means a person who is not an Australian citizen.

personal identifier has the meaning given by clause 26.

Note: The definitions of expressions in this clause correspond closely to

definitions of those expressions in section 5 of the Migration Act

1958.

26 Meaning of personal identifier

(1) In this Part:

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personal identifier means any of the following (including any of

the following in digital form):

(a) fingerprints or handprints of a person (including those taken

using paper and ink or digital livescanning technologies);

(b) a measurement of a person’s height and weight;

(c) a photograph or other image of a person’s face and shoulders;

(d) an audio or a video recording of a person (other than a video

recording under clause 37);

(e) an iris scan;

(f) a person’s signature;

(g) any other identifier prescribed by the regulations, other than

an identifier the obtaining of which would involve the

carrying out of an intimate forensic procedure within the

meaning of section 23WA of the Crimes Act 1914.

(2) Before the Governor-General makes regulations for the purposes of

paragraph (g) of the definition of personal identifier in

subclause (1) prescribing an identifier, the Minister must be

satisfied that:

(a) obtaining the identifier would not involve the carrying out of

an intimate forensic procedure within the meaning of

section 23WA of the Crimes Act 1914; and

(b) the identifier is an image of, or a measurement or recording

of, an external part of the body; and

(c) obtaining the identifier will promote one or more of the

purposes referred to in subclause (3).

(3) The purposes are:

(a) to assist in the identification of, and to authenticate the

identity of, any person who can be required under this

Schedule to provide a personal identifier; and

(b) to assist in identifying, in the future, any such person; and

(c) to enhance the ability to identify non-citizens who have a

criminal history in matters relating to the environment; and

(d) to combat document and identity fraud in matters relating to

the environment; and

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(e) to complement anti-people smuggling measures; and

(f) to inform the governments of foreign countries of the identity

of non-citizens who have been detained under, or charged

with offences against, an environmental law; and

(g) to facilitate international cooperation to combat activities that

involve a breach of the laws of Australia or of a foreign

country.

Note: This clause corresponds closely to section 5A of the Migration Act

1958.

27 Limiting the types of identification tests that approved officers

may carry out

(1) The Secretary may, in an instrument authorising an authorised

officer or detention officer as an approved officer for the purposes

of carrying out identification tests under this Part, specify the types

of identification tests that the approved officer may carry out.

(2) Such an approved officer is not an approved officer in relation to

carrying out an identification test that is not of a type so specified.

Note: This clause corresponds closely to section 5D of the Migration Act

1958.

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Division 2—Identification of detainees

Subdivision A—Provision of personal identifiers

28 Detainees must provide personal identifiers

(1) A non-citizen in detention must (other than in the prescribed

circumstances) provide to an approved officer one or more

personal identifiers.

Note: A person who is an Australian citizen, or is a non-citizen but an

Australian resident, may be in detention but must be released as soon

as an authorised officer or detention officer knows or reasonably

believes the person is an Australian citizen or resident. See clause 13.

(2) An approved officer must not require, for the purposes of

subclause (1), a detainee to provide a personal identifier other than

any of the following (including any of the following in digital

form):

(a) fingerprints or handprints of the detainee (including those

taken using paper and ink or digital livescanning

technologies);

(b) a measurement of the detainee’s height and weight;

(c) a photograph or other image of the detainee’s face and

shoulders;

(d) the detainee’s signature;

(e) any other personal identifier of a type prescribed for the

purposes of this paragraph.

Note: Division 3 sets out further restrictions on the personal identifiers that

minors and incapable persons can be required to provide.

(3) The one or more personal identifiers are to be provided by way of

one or more identification tests carried out by the approved officer

in accordance with this Division.

Note 1: Subject to certain restrictions, clause 32 allows reasonable force to be

used to carry out identification tests under this Division.

Note 2: This clause corresponds closely to section 261AA of the Migration

Act 1958.

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29 Approved officers must require and carry out identification tests

(1) The approved officer must, other than in the circumstances

prescribed for the purposes of subclause 28(1):

(a) require the non-citizen to provide one or more personal

identifiers, of the type or types prescribed, by way of one or

more identification tests carried out by the approved officer;

and

(b) carry out the one or more identification tests on the

non-citizen.

(2) However:

(a) if the types of identification tests that the approved officer

may carry out are specified under clause 27—each

identification test must be of a type so specified; and

(b) each identification test must be carried out in accordance

with Subdivision B; and

(c) unless the approved officer has reasonable grounds to believe

that the non-citizen is not a minor or an incapable person—

each identification test must be carried out in accordance

with the additional requirements of Division 3.

Note: Subclauses (1) and (2) correspond closely to section 261AB of the

Migration Act 1958.

(3) If:

(a) the approved officer is authorised because of clause 7 (which

effectively treats as approved officers for the purposes of

certain provisions of this Schedule certain persons who are

authorised Migration Act officers for the purposes of certain

provisions of the Migration Act 1958); and

(b) an instrument under section 5D of that Act specifies the types

of identification test the authorised Migration Act officer

may carry out;

paragraph (2)(a) of this clause has effect as if the specified types

(except any specified under subclause 7(3) in relation to the

authorised Migration Act officer) had been specified under

clause 27.

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30 Information to be provided before carrying out identification

tests

(1) Before carrying out an identification test, the approved officer

must:

(a) inform the non-citizen that the non-citizen may ask that an

independent person be present while the identification test is

carried out and that the test be carried out by a person of the

same sex as the non-citizen; and

(b) inform the non-citizen of such other matters as are specified

in the regulations.

(2) For the purposes of subclause (1), the approved officer informs the

non-citizen of a matter if the approved officer informs the

non-citizen of the matter, through an interpreter if necessary, in a

language (including sign language or braille) in which the

non-citizen is able to communicate with reasonable fluency.

(3) The approved officer may comply with this clause by giving to the

non-citizen, in accordance with the regulations, a form setting out

the information specified in the regulations. However, the

information must be in a language (including braille) in which the

non-citizen is able to communicate with reasonable fluency.

(4) A form mentioned in subclause (3) is not a legislative instrument.

Note: This clause corresponds closely to section 261AC of the Migration

Act 1958.

Subdivision B—How identification tests are carried out

31 General rules for carrying out identification tests

An identification test under this Division:

(a) must be carried out in circumstances affording reasonable

privacy to the non-citizen; and

(b) if the non-citizen so requests and it is practicable to comply

with the request—must not be carried out in the presence or

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view of a person who is of the opposite sex to the

non-citizen; and

(c) must not be carried out in the presence or view of a person

whose presence is not necessary for the purposes of the

identification test or is not required or permitted by another

provision of this Schedule; and

(d) must not involve the removal of more clothing than is

necessary for carrying out the test; and

(e) must not involve more visual inspection than is necessary for

carrying out the test; and

(f) if the test is one of 2 or more identification tests to be carried

out on the non-citizen—must be carried out at the same time

as the other identification tests, if it is practicable to do so.

Note: This clause corresponds closely to section 261AD of the Migration

Act 1958.

32 Use of force in carrying out identification tests

When use of force is permitted

(1) Subject to subclause (2) and clause 33, an approved officer, or a

person authorised under clause 34 to help the approved officer,

may use reasonable force:

(a) to enable the identification test to be carried out; or

(b) to prevent the loss, destruction or contamination of any

personal identifier or any meaningful identifier derived from

the personal identifier.

However, this clause does not authorise the use of force against a

minor or an incapable person, or if the personal identifier in

question is a person’s signature.

(2) The approved officer or person must not use force unless:

(a) the non-citizen required to provide the personal identifier in

question has refused to allow the identification test to be

carried out; and

(b) all reasonable measures to carry out the identification test

without the use of force have been exhausted; and

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(c) the use of force in carrying out the identification test is

authorised under subclause (4).

Applications for authorisation to use force

(3) An approved officer may apply to a senior authorising officer (who

is not an approved officer referred to in subclause (1)) for an

authorisation to use force in carrying out the identification test.

Authorisation to use force

(4) The senior authorising officer may authorise the use of force in

carrying out the identification test if he or she is reasonably

satisfied that:

(a) the non-citizen required to provide the personal identifier in

question has refused to allow the identification test to be

carried out; and

(b) all reasonable measures to carry out the identification test

without the use of force have been exhausted.

(5) An authorisation under subclause (4):

(a) may be given by telephone, fax or other electronic means;

and

(b) must be recorded in writing, and signed by the person giving

the authorisation, within one business day after it is given.

(6) A record made under paragraph (5)(b) is not a legislative

instrument.

(7) A failure to comply with paragraph (5)(b) does not affect the

validity of an identification test carried out on the basis of that

authorisation.

(8) The power to give an authorisation under subclause (4) cannot be

delegated to any other person.

Definition

(9) In this clause:

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senior authorising officer means an authorised officer, or

detention officer, whom the Secretary has authorised, or who is

included in a class of authorised officers or detention officers

whom the Secretary has authorised, to perform the functions of a

senior authorising officer under this clause.

Note: This clause corresponds closely to section 261AE of the Migration Act

1958.

33 Identification tests not to be carried out in cruel, inhuman or

degrading manner etc.

For the purposes of this Schedule, the carrying out of the

identification test is not of itself taken:

(a) to be cruel, inhuman or degrading; or

(b) to be a failure to treat a person with humanity and with

respect for human dignity.

However, nothing in this Schedule authorises the carrying out of

the identification test in a cruel, inhuman or degrading manner, or

in a manner that fails to treat a person with humanity and with

respect for human dignity.

Note: This clause corresponds closely to section 261AF of the Migration Act

1958.

34 Approved officer may get help to carry out identification tests

An approved officer may ask another approved officer or an

authorised officer or detention officer to help him or her to carry

out the identification test, and the other person may give that help.

Note: This clause corresponds closely to section 261AG of the Migration

Act 1958.

35 Identification tests to be carried out by approved officer of same

sex as non-citizen

If the non-citizen requests that the identification test be carried out

by an approved officer of the same sex as the non-citizen, the test

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must only be carried out by an approved officer of the same sex as

the non-citizen.

Note: This clause corresponds closely to section 261AH of the Migration

Act 1958.

36 Independent person to be present

The identification test must be carried out in the presence of an

independent person if:

(a) force is used in carrying out the identification test; or

(b) both of the following apply:

(i) the non-citizen requests that an independent person be

present while the identification test is being carried out;

(ii) an independent person is readily available at the same

place as the non-citizen and is willing to attend the test

within a reasonable time.

Note: This clause corresponds closely to section 261AI of the Migration Act

1958.

37 Recording of identification tests

(1) An approved officer may video record the carrying out of the

identification test.

(2) If the carrying out of the identification test is not video recorded,

the approved officer may decide that the identification test must be

carried out in the presence of an independent person.

Note: This clause corresponds closely to section 261AJ of the Migration Act

1958.

38 Retesting

When retesting is permitted

(1) If:

(a) an approved officer has carried out an identification test (the

earlier test) on a non-citizen in accordance with this

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Division (including a test authorised under subclause (4));

and

(b) either:

(i) a personal identifier that is provided as a result of the

earlier test being carried out is unusable; or

(ii) an approved officer, authorised officer or detention

officer is not satisfied about the integrity of that

personal identifier;

the approved officer who carried out the earlier test or another

approved officer may require the non-citizen to provide the

personal identifier again, and may carry out the test again in

accordance with this Division, if:

(c) the requirement is made while the earlier test is being carried

out or immediately after it was carried out; or

(d) carrying out the test again is authorised under subclause (4).

(2) If the non-citizen is required under subclause (1) to provide the

personal identifier again, the non-citizen is taken, for the purposes

of this Division, not to have provided the personal identifier as a

result of the earlier test being carried out.

Applications for authorisation to retest

(3) An approved officer may apply for an authorisation to carry out the

test again. The application is to be made to:

(a) if the earlier test was not a test authorised under

subclause (4)—a senior authorising officer (who is not an

approved officer, authorised officer or detention officer

referred to in subclause (1)); or

(b) if the earlier test was a test authorised under subclause (4) by

a senior authorising officer—the Secretary, the Director, the

Chief Executive Officer of the Great Barrier Reef Marine

Park Authority or an SES Band 3 employee in the

Department (who is not an approved officer, authorised

officer or detention officer referred to in subclause (1)).

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Authorisation to retest

(4) The senior authorising officer, Secretary, Director, Chief Executive

Officer or SES Band 3 employee (as the case requires) may

authorise the test to be carried out again if:

(a) he or she is reasonably satisfied that the personal identifier

that is provided as a result of the earlier test being carried out

is unusable; or

(b) he or she is not reasonably satisfied about the integrity of that

personal identifier.

(5) An authorisation under subclause (4):

(a) may be given by telephone, fax or other electronic means;

and

(b) must be recorded in writing, and signed by the person giving

the authorisation, within one business day after it is given.

(6) A record made under paragraph (5)(b) is not a legislative

instrument.

(7) A failure to comply with paragraph (5)(b) does not affect the

validity of an identification test carried out on the basis of that

authorisation.

(8) The power to give an authorisation under subclause (4) cannot be

delegated to any other person.

Use of force

(9) An authorisation under subclause (4) does not authorise the use of

force in carrying out an identification test.

Note: See clause 32 on the use of force in carrying out identification tests.

Effect of refusing to authorise retesting

(10) If an application for an authorisation to carry out an identification

test again on a non-citizen is refused, the non-citizen is taken, for

the purposes of this Schedule, to have complied with any

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requirement under this Schedule to provide the personal identifier

in question.

Definitions

(11) In this clause:

senior authorising officer means an authorised officer, or

detention officer, who:

(a) has been authorised, or is included in a class of authorised

officers or detention officers who have been authorised, by

the Secretary to perform the functions of a senior authorising

officer under this clause; and

(b) is not the Secretary or an SES Band 3 employee in the

Department.

SES Band 3 employee means an SES employee with a

classification of Senior Executive Band 3, and includes an SES

employee who has been temporarily assigned duties that have been

allocated a classification of Senior Executive Band 3.

Note: This clause corresponds closely to section 261AK of the Migration

Act 1958.

Subdivision C—Obligations relating to video recordings of

identification tests

39 Definitions

In this Subdivision, unless the contrary intention appears:

permitted provision, of a video recording, has the meaning given

by subclause 42(2).

provide, in relation to a video recording, includes provide access to

the recording.

related document means a document that contains information,

derived from a video recording made under clause 37 or from a

copy of such a recording, from which the identity of the individual

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on whom the identification test in question was carried out is

apparent or can reasonably be ascertained.

video recording means a video recording made under clause 37 or

a copy of such a recording, and includes a related document.

Note: This clause corresponds closely to section 261AKA of the Migration

Act 1958.

40 Accessing video recordings

(1) A person commits an offence if:

(a) the person accesses a video recording; and

(b) the person is not authorised under clause 41 to access the

video recording for the purpose for which the person

accessed it.

Penalty: Imprisonment for 2 years.

(2) This clause does not apply if the access is through the provision of

a video recording that is a permitted provision.

Note 1: A defendant bears an evidential burden in relation to the matter in

subclause (2) (see subsection 13.3(3) of the Criminal Code).

Note 2: This clause corresponds closely to section 261AKB of the Migration

Act 1958.

41 Authorising access to video recordings

(1) The Secretary may, in writing, authorise a specified person, or any

person included in a specified class of persons, to access:

(a) all video recordings; or

(b) a specified video recording, or video recordings of a

specified kind.

(2) The Secretary must specify in an authorisation under this clause, as

the purpose or purposes for which access is authorised, one or

more of the following purposes:

(a) providing a video recording to another person in accordance

with this Subdivision;

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(b) administering or managing the storage of video recordings;

(c) making a video recording available to the person to whom it

relates;

(d) modifying related documents in order to correct errors or

ensure compliance with appropriate standards;

(e) any purpose connected with determining whether a civil or

criminal liability has arisen from a person carrying out or

helping to carry out an identification test under this Schedule;

(f) complying with laws of the Commonwealth or the States or

Territories;

(g) disclosing personal information under clause 59 (about

disclosure of information about a person who has been in

detention, for the purposes of the immigration detention or

removal of the person).

(3) However, the Secretary must not specify as a purpose for which

access is authorised a purpose that will include or involve the

purpose of:

(a) investigating an offence against a law of the Commonwealth

or a State or Territory (other than an offence involving

whether an identification test was carried out lawfully); or

(b) prosecuting a person for such an offence;

if the identifying information in question relates to a personal

identifier of a prescribed type.

Note: This clause corresponds closely to section 261AKC of the Migration

Act 1958.

42 Providing video recordings

(1) A person commits an offence if:

(a) the person’s conduct causes a video recording to be provided

to another person; and

(b) the provision of the recording is not a permitted provision of

the recording.

Penalty: Imprisonment for 2 years.

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(2) A permitted provision of a video recording is a provision of the

recording that:

(a) is for the purpose of administering or managing the storage

of video recordings; or

(b) is for the purpose of making the video recording in question

available to the non-citizen to whom it relates; or

(c) is for the purpose of a proceeding, before a court or tribunal,

relating to the non-citizen to whom the video recording in

question relates; or

(d) is for any purpose connected with determining whether a

civil or criminal liability has arisen from a person carrying

out or helping to carry out an identification test under this

Schedule; or

(e) is for the purpose of an investigation by the Information

Commissioner under the Privacy Act 1988 or the

Ombudsman relating to carrying out an identification test; or

(f) is made to a prescribed body or agency for the purpose of the

body or agency inquiring into the operation of provisions of

this Schedule relating to carrying out an identification test; or

(g) takes place with the written consent of the non-citizen to

whom the video recording in question relates; or

(h) is a disclosure authorised by clause 59 (about disclosure of

information about a person who has been in detention, for the

purposes of the immigration detention or removal of the

person).

(3) However, a provision of a video recording is not a permitted

provision of the recording if:

(a) it constitutes a disclosure of identifying information relating

to a personal identifier of a prescribed type; and

(b) it is for the purpose of:

(i) investigating an offence against a law of the

Commonwealth or a State or Territory (other than an

offence involving whether an identification test was

carried out lawfully); or

(ii) prosecuting a person for such an offence.

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Note: This clause corresponds closely to section 261AKD of the Migration

Act 1958.

43 Unauthorised modification of video recordings

A person commits an offence if:

(a) the person causes any unauthorised modification of a video

recording; and

(b) the person intends to cause the modification; and

(c) the person knows that the modification is unauthorised.

Penalty: Imprisonment for 2 years.

44 Unauthorised impairment of video recordings

A person commits an offence if:

(a) the person causes any unauthorised impairment of:

(i) the reliability of a video recording; or

(ii) the security of the storage of a video recording; or

(iii) the operation of a system by which a video recording is

stored; and

(b) the person intends to cause the impairment; and

(c) the person knows that the impairment is unauthorised.

Penalty: Imprisonment for 2 years.

45 Meanings of unauthorised modification and unauthorised

impairment etc.

(1) In this Subdivision:

(a) modification of a video recording; or

(b) impairment of the reliability of a video recording; or

(c) impairment of the security of the storage of a video

recording; or

(d) impairment of the operation of a system by which a video

recording is stored;

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by a person is unauthorised if the person is not entitled to cause

that modification or impairment.

(2) Any such modification or impairment caused by the person is not

unauthorised merely because he or she has an ulterior purpose for

causing it.

(3) For the purposes of an offence under this Subdivision, a person

causes any such unauthorised modification or impairment if the

person’s conduct substantially contributes to it.

(4) For the purposes of subclause (1), if:

(a) a person causes any modification or impairment of a kind

mentioned in that subclause; and

(b) the person does so under a warrant issued under the law of

the Commonwealth, a State or a Territory;

the person is entitled to cause that modification or impairment.

Note: This clause corresponds closely to section 261AKG of the Migration

Act 1958.

46 Destroying video recordings

A person commits an offence if:

(a) the person is the person who has day-to-day responsibility for

the system under which a video recording is stored; and

(b) the person fails physically to destroy the recording, and all

copies of the recording, within 10 years after it was made.

Penalty: Imprisonment for 2 years.

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Part 5 Identifying detainees

Division 3 Identification of minors and incapable persons

Clause 47

Division 3—Identification of minors and incapable persons

47 Minors

Minors less than 15 years old

(1) A non-citizen who is less than 15 years old must not be required

under this Schedule to provide a personal identifier other than a

personal identifier consisting of:

(a) a measurement of the non-citizen’s height and weight; or

(b) the non-citizen’s photograph or other image of the

non-citizen’s face and shoulders.

Persons present while identification test is carried out

(2) If a non-citizen who is a minor provides a personal identifier, in

accordance with a requirement under this Schedule, by way of an

identification test carried out by an approved officer, the test must

be carried out in the presence of:

(a) a parent or guardian of the minor; or

(b) an independent person.

(3) However, if the Minister administering the Immigration

(Guardianship of Children) Act 1946 is the guardian of the minor,

the test must be carried out in the presence of an independent

person other than that Minister.

Note: This clause corresponds closely to subsections 261AL(1), (5) and (6)

of the Migration Act 1958.

48 Incapable persons

Incapable persons

(1) A non-citizen who is an incapable person must not be required

under this Schedule to provide a personal identifier other than a

personal identifier consisting of:

(a) a measurement of the non-citizen’s height and weight; or

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Clause 48

(b) the non-citizen’s photograph or other image of the

non-citizen’s face and shoulders.

Persons present while identification test is carried out

(2) If a non-citizen who is an incapable person provides a personal

identifier, in accordance with a requirement under this Schedule,

by way of an identification test carried out by an approved officer,

the test must be carried out in the presence of:

(a) a parent or guardian of the incapable person; or

(b) an independent person.

Note: This clause corresponds closely to subsections 261AM(1) and (4) of

the Migration Act 1958.

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Division 4 Obligations relating to detainees’ identifying information

Clause 49

Division 4—Obligations relating to detainees’ identifying

information

Subdivision A—Preliminary

49 Definitions

In this Division:

disclose, in relation to identifying information that is a personal

identifier provided under clause 28, includes provide unauthorised

access to the personal identifier.

Note: Clause 52 deals with authorised access to identifying information.

identifying information means the following:

(a) any personal identifier provided under clause 28;

(b) any meaningful identifier derived from any such personal

identifier;

(c) any record of a result of analysing any such personal

identifier or any meaningful identifier derived from any such

personal identifier;

(d) any other information, derived from any such personal

identifier, from any meaningful identifier derived from any

such personal identifier or from any record of a kind referred

to in paragraph (c), that could be used to discover a particular

person’s identity or to get information about a particular

person.

permitted disclosure has the meaning given by subclauses 53(2)

and (3).

unauthorised impairment has the meaning given by clause 57.

unauthorised modification has the meaning given by clause 57.

Note: The definitions of expressions in this clause correspond closely to

definitions of those expressions in section 336A of the Migration Act

1958.

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Clause 50

50 Application

Section 15.4 of the Criminal Code (extended geographical

jurisdiction—category D) applies to all offences against this

Division.

Note: This clause corresponds closely to section 336B of the Migration Act

1958.

Subdivision B—Accessing identifying information

51 Accessing identifying information

(1) A person commits an offence if:

(a) the person accesses identifying information; and

(b) the person is not authorised under clause 52 to access the

identifying information for the purpose for which the person

accessed it.

Penalty: Imprisonment for 2 years.

(1A) This clause does not apply if the person believes on reasonable

grounds that the access is necessary to prevent or lessen a serious

and imminent threat to the life or health of the person or of any

other person.

Note: A defendant bears an evidential burden in relation to the matter in

subclause (1A) (see subsection 13.3(3) of the Criminal Code).

(2) This clause does not apply if the access is through a disclosure that

is a permitted disclosure.

Note 1: A defendant bears an evidential burden in relation to the matter in

subclause (2) (see subsection 13.3(3) of the Criminal Code).

Note 2: This clause corresponds closely to section 336C of the Migration Act

1958.

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Clause 52

52 Authorising access to identifying information

(1) The Secretary may, in writing, authorise a specified person, or any

person included in a specified class of persons, to access

identifying information of the kind specified in the authorisation.

(2) The Secretary must specify in an authorisation under this clause, as

the purpose or purposes for which access is authorised, one or

more of the following purposes:

(a) one or more of the purposes set out in subclause 26(3);

(b) disclosing identifying information in accordance with this

Division;

(c) administering or managing the storage of identifying

information;

(d) making identifying information available to the person to

whom it relates;

(e) modifying identifying information to enable it to be matched

with other identifying information;

(f) modifying identifying information in order to correct errors

or ensure compliance with appropriate standards;

(g) the purposes of this Act;

(h) complying with laws of the Commonwealth or the States or

Territories;

(i) disclosing personal information under clause 59 (about

disclosure of information about a person who has been in

detention, for the purposes of the immigration detention or

removal of the person).

(3) However, the Secretary must not specify as a purpose for which

access is authorised a purpose that will include or involve the

purpose of:

(a) investigating an offence against a law of the Commonwealth

or a State or Territory; or

(b) prosecuting a person for such an offence;

if the identifying information in question relates to a personal

identifier of a prescribed type.

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Clause 53

Note: This clause corresponds closely to section 336D of the Migration Act

1958.

Subdivision C—Disclosing identifying information

53 Disclosing identifying information

(1) A person commits an offence if:

(a) the person’s conduct causes disclosure of identifying

information; and

(b) the disclosure is not a permitted disclosure.

Penalty: Imprisonment for 2 years.

(1A) This clause does not apply if the person believes on reasonable

grounds that the disclosure is necessary to prevent or lessen a

serious and imminent threat to the life or health of the person or of

any other person.

Note: A defendant bears an evidential burden in relation to the matter in

subclause (1A) (see subsection 13.3(3) of the Criminal Code).

(2) A permitted disclosure is a disclosure that:

(a) is for the purpose of data-matching in order to:

(i) identify, or authenticate the identity of, a person; or

(ii) facilitate the processing of persons entering or departing

from Australia; or

(iii) identify non-citizens who have a criminal history, who

are of character concern (as defined in the Migration

Act 1958) or who are of national security concern; or

(iv) combat document and identity fraud in immigration

matters; or

(v) ascertain whether an applicant for a protection visa had

sufficient opportunity to avail himself or herself of

protection before arriving in Australia; or

(vi) inform the governments of foreign countries of the

identity of non-citizens who are, or are to be, removed

from Australia; or

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Clause 53

(b) is for the purpose of administering or managing the storage

of identifying information; or

(c) is authorised under clause 54 and is for the purpose, or one or

more of the purposes, for which the disclosure is authorised;

or

(d) is for the purpose of making the identifying information in

question available to the person to whom it relates; or

(da) is to an agency of the Commonwealth or of a State or

Territory in order to verify that a person is an Australian

citizen or holds a visa of a particular class; or

(e) takes place under an arrangement entered into with an agency

of the Commonwealth, or with a State or Territory or an

agency of a State or Territory, for the exchange of identifying

information; or

(ea) is reasonably necessary for the enforcement of the criminal

law of the Commonwealth or of a State or Territory; or

(eb) is required by or under a law of the Commonwealth or of a

State or Territory; or

(f) is for the purpose of a proceeding, before a court or tribunal,

relating to the person to whom the identifying information in

question relates; or

(g) is for the purpose of an investigation by the Information

Commissioner or the Ombudsman relating to action taken by

the Department; or

(h) is made to a prescribed body or agency for the purpose of the

body or agency inquiring into the operation of provisions of

this Schedule relating to:

(i) carrying out an identification test; or

(ii) requiring the provision of a personal identifier; or

(ha) is a disclosure of an audio or a video recording for the

purposes of:

(i) this Act or the regulations; and

(ii) transcribing or translating the recording, or conducting

language analysis or accent analysis of the recording; or

(i) takes place with the written consent of the person to whom

the identifying information in question relates; or

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Clause 54

(j) is a disclosure authorised by clause 59 (about disclosure of

information about a person who has been in detention, for the

purposes of the immigration detention or removal of the

person).

(3) However, a disclosure is not a permitted disclosure if:

(a) it is a disclosure of identifying information relating to a

personal identifier of a prescribed type; and

(b) it is for the purpose of:

(i) investigating an offence against a law of the

Commonwealth or a State or Territory; or

(ii) prosecuting a person for such an offence.

Note: This clause corresponds closely to section 336E of the Migration Act

1958.

54 Authorising disclosure of identifying information to foreign

countries etc.

(1) The Secretary may, in writing, authorise a specified authorised

officer or detention officer, any authorised officer or detention

officer included in a specified class of authorised officers or

detention officers, or an Agency (as defined in the Public Service

Act 1999) prescribed by the regulations, to disclose identifying

information of the kind specified in the authorisation to one or

more of the following:

(a) one or more specified foreign countries;

(b) one or more specified bodies each of which is:

(i) a police force or police service of a foreign country; or

(ii) a law enforcement body of a foreign country; or

(iii) a border control body of a foreign country;

(c) one or more specified international organisations, or

specified organisations of foreign countries, that are

responsible for matters relating to the environment;

(d) one or more prescribed bodies of a foreign country, of the

Commonwealth or of a State or Territory;

(e) one or more prescribed international organisations.

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Clause 55

(2) The Secretary must specify in the authorisation, as the purpose or

purposes for which disclosure is authorised, one or more of the

purposes set out in subclause 26(3).

Note: This clause corresponds closely to subsections 336F(1) and (2) of the

Migration Act 1958.

Subdivision D—Modifying and impairing identifying

information

55 Unauthorised modification of identifying information

A person commits an offence if:

(a) the person causes any unauthorised modification of

identifying information; and

(b) the person intends to cause the modification; and

(c) the person knows that the modification is unauthorised.

Penalty: Imprisonment for 2 years.

Note: This clause corresponds closely to section 336G of the Migration Act

1958.

56 Unauthorised impairment of identifying information

A person commits an offence if:

(a) the person causes any unauthorised impairment of:

(i) the reliability of identifying information; or

(ii) the security of the storage of identifying information; or

(iii) the operation of a system by which identifying

information is stored; and

(b) the person intends to cause the impairment; and

(c) the person knows that the impairment is unauthorised.

Penalty: Imprisonment for 2 years.

Note: This clause corresponds closely to section 336H of the Migration Act

1958.

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Clause 57

57 Meanings of unauthorised modification and unauthorised

impairment etc.

(1) In this Division:

(a) modification of identifying information; or

(b) impairment of the reliability of identifying information; or

(c) impairment of the security of the storage of identifying

information; or

(d) impairment of the operation of a system by which identifying

information is stored;

by a person is unauthorised if the person is not entitled to cause

that modification or impairment.

(2) Any such modification or impairment caused by the person is not

unauthorised merely because he or she has an ulterior purpose for

causing it.

(3) For the purposes of an offence under this Division, a person causes

any such unauthorised modification or impairment if the person’s

conduct substantially contributes to it.

(4) For the purposes of subclause (1), if:

(a) a person causes any modification or impairment of a kind

mentioned in that subclause; and

(b) the person does so under a warrant issued under the law of

the Commonwealth, a State or a Territory;

the person is entitled to cause that modification or impairment.

Note: This clause corresponds closely to section 336J of the Migration Act

1958.

Subdivision E—Retaining identifying information

58 Identifying information may be indefinitely retained

Identifying information may be indefinitely retained.

Note: This clause corresponds closely to paragraph 336L(1)(a) of the

Migration Act 1958, because under this Schedule identifying

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Clause 58

information will always be about someone who is or has been in

detention.

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Disclosure of detainees’ personal information Part 6

Clause 59

Part 6—Disclosure of detainees’ personal

information

59 Disclosure of detainees’ personal information

(1) For the purposes described in subclause (2), an agency or

organisation that is or has been responsible for the detention of an

individual may disclose personal information about the individual

to an agency, or organisation, that is or will be responsible for:

(a) taking the individual into immigration detention; or

(b) keeping the individual in immigration detention; or

(c) causing the individual to be kept in immigration detention; or

(d) the removal of the individual.

(2) The purposes are:

(a) the immigration detention of the individual; and

(b) the removal of the individual; and

(c) the welfare of the individual while in immigration detention

or being removed.

(3) In this clause:

agency has the same meaning as in the Privacy Act 1988.

immigration detention has the same meaning as in the Migration

Act 1958.

organisation has the same meaning as in the Privacy Act 1988.

personal information has the same meaning as in the Privacy Act

1988.

removal has the same meaning as in the Migration Act 1958.

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Endnotes

Endnote 1—About the endnotes

Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that

has amended (or will amend) the compiled law. The information includes

commencement details for amending laws and details of any application, saving

or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at

the provision (generally section or equivalent) level. It also includes information

about any provision of the compiled law that has been repealed in accordance

with a provision of the law.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make

editorial and presentational changes to a compiled law in preparing a

compilation of the law for registration. The changes must not change the effect

of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief

outline of the changes in general terms. Full details of any changes can be

obtained from the Office of Parliamentary Counsel.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe

the amendment to be made. If, despite the misdescription, the amendment can

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Endnote 1—About the endnotes

be given effect as intended, the amendment is incorporated into the compiled

law and the abbreviation “(md)” added to the details of the amendment included

in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the

abbreviation “(md not incorp)” is added to the details of the amendment

included in the amendment history.

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Endnote 2—Abbreviation key

Endnote 2—Abbreviation key

ad = added or inserted o = order(s)

am = amended Ord = Ordinance

amdt = amendment orig = original

c = clause(s) par = paragraph(s)/subparagraph(s)

/sub-subparagraph(s)C[x] = Compilation No. x

Ch = Chapter(s) pres = present

def = definition(s) prev = previous

Dict = Dictionary (prev…) = previously

disallowed = disallowed by Parliament Pt = Part(s)

Div = Division(s) r = regulation(s)/rule(s)

ed = editorial change reloc = relocated

exp = expires/expired or ceases/ceased to have renum = renumbered

effect rep = repealed

F = Federal Register of Legislation rs = repealed and substituted

gaz = gazette s = section(s)/subsection(s)

LA = Legislation Act 2003 Sch = Schedule(s)

LIA = Legislative Instruments Act 2003 Sdiv = Subdivision(s)

(md) = misdescribed amendment can be given SLI = Select Legislative Instrument

effect SR = Statutory Rules

(md not incorp) = misdescribed amendment Sub-Ch = Sub-Chapter(s)

cannot be given effect SubPt = Subpart(s)

mod = modified/modification underlining = whole or part not

commenced or to be commencedNo. = Number(s)

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Endnote 3—Legislation history

Endnote 3—Legislation history

Act Number Assent Commencement Application,

and year saving and

transitional

provisions

Environment Protection 91, 1999 16 July 1999 16 July 2000 (s 2(2))

and Biodiversity

Conservation Act 1999

Environmental Reform 92, 1999 16 July 1999 Sch 8 and 9 (item 1): Sch 9 (item 1)

(Consequential 16 July 2000 (s 2(1))

Provisions) Act 1999

Public Employment 146, 1999 11 Nov 1999 Sch 1 (items 422, —

(Consequential and 423): 16 July 2000 (s

Transitional) 2(3))

Amendment Act 1999

Corporations (Repeals, 55, 2001 28 June 2001 s 4–14 and Sch 3 s 4–14

Consequentials and (item 172): 15 July

Transitionals) Act 2001 2001 (s 2(3))

Environment Protection 82, 2001 11 July 2001 Sch 1(items 1–82): 11 Sch 1 (items 70–

and Biodiversity Jan 2002 (s 2(3)) 82)

Conservation Sch 1 (items 83–86):

Amendment (Wildlife 11 July 2001 (s

Protection) Act 2001 2(1)(b))

Regional Forest 30, 2002 5 Apr 2002 Sch 1: 3 May 2002 —

Agreements Act 2002 (s 2(1) item 3)

Statute Law Revision 63, 2002 3 July 2002 Sch 1 (items 15, 16, —

Act 2002 18): 16 July 2000

(s 2(1) items 10, 11,

13)

Sch 1 (item 17): 11

Jan 2002 (s 2(1)

item 12)

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Endnote 3—Legislation history

Act Number

and year

Assent Commencement Application,

saving and

transitional

provisions

Crimes Legislation

Enhancement Act 2003

41, 2003 3 June 2003 Sch 3 (items 31, 32):

16 July 2000 (s 2(1)

item 21)

Sch 3 (item 42):

3 June 2003 (s 2(1)

item 1)

Sch 3 (item 42)

Australian Heritage 86, 2003 23 Sept 2003 Sch 1 (item 2): 1 Jan —

Council (Consequential 2004 (s 2(1) item 2)

and Transitional

Provisions) Act 2003

Environment and 88, 2003 23 Sept 2003 Sch 1 and 3: 1 Jan Sch 1 (items 8, 24,

Heritage Legislation 2004 (s 2(1) items 2, 4 25), Sch 3

Amendment Act (No. 1) and gaz 2003, No. (item 1) and Sch 4

2003 GN47) (item 1G)

Sch 2: awaiting Sch 3 (item 1A)

commencement (s 2(1)

item 3)

Remainder: 23 Sept

2003 (s 2(1) items 1,

5)

as amended by

Environment and 165, 2006 12 Dec 2006 Sch 1 (items 846, —

Heritage Legislation 847): 19 Feb 2007 (s

Amendment Act 2(1) item 15 and

(No. 1) 2006 F2007L00411)

Aboriginal and Torres

Strait Islander

Commission

Amendment Act 2005

32, 2005 22 Mar 2005 Sch 4 (item 23): 24

Mar 2005 (s 2(1)

item 4)

Administrative Appeals

Tribunal Amendment

Act 2005

38, 2005 1 Apr 2005 Sch 1 (item 207):

16 May 2005 (s 2(1)

item 6)

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Endnote 3—Legislation history

Act Number Assent Commencement Application,

and year saving and

transitional

provisions

Statute Law Revision

Act 2006

9, 2006 23 Mar 2006 Sch 1 (items 13–15):

16 July 2000 (s 2(1)

item 9)

Offshore Petroleum

(Repeals and

Consequential

Amendments) Act 2006

17, 2006 29 Mar 2006 Sch 2 (item 21): 1 July

2008 (s 2(1) item 2)

Corporations (Aboriginal

and Torres Strait

Islander) Consequential,

Transitional and Other

Measures Act 2006

125, 2006 4 Nov 2006 Sch 2 (item 97): 1 July

2007 (s 2(1) item 2)

Environment and 165, 2006 12 Dec 2006 Sch 1 (items 1–604, Sch 2

Heritage Legislation 606–762, 764–780,

Amendment Act (No. 1) 783–835): 19 Feb

2006 2007 (s 2(1) items 2–

4, 7–9)

Sch 1 (item 605):

1 Jan 2007 (s 2(1)

item 2)

Sch 1 (item 763):

15 Jan 2007 (s 2(1)

item 4)

Sch 1 (items 781,

782): awaiting

commencement (s 2(1)

items 5, 6)

Sch 2: 12 Dec 2006 (s

2(1) item 16)

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Act Number Assent Commencement Application,

and year saving and

transitional

provisions

as amended by

Statute Law Revision

Act 2008

73, 2008 3 July 2008 Sch 2 (item 14): 19

Feb 2007 (s 2(1)

item 50)

Sch 2 (item 15): 12

Dec 2006 (s 2(1)

item 51)

Migration Legislation 63, 2007 15 Apr 2007 Sch 1 (items 1–15, 60, Sch 1 (items 60,

Amendment 61): 1 May 2007 61)

(Information and Other (s 2(1) item 2)

Measures) Act 2007

Statute Law Revision

Act 2008

73, 2008 3 July 2008 Sch 1 (items 21–26):

19 Feb 2007 (s 2(1)

items 13–18)

Offshore Petroleum

Amendment

(Greenhouse Gas

Storage) Act 2008

117, 2008 21 Nov 2008 Sch 3 (item 14): 22

Nov 2008 (s 2(1)

item 4)

Great Barrier Reef 125, 2008 25 Nov 2008 Sch 3 (items 1, 2): Sch 4 (items 42–

Marine Park and Other 26 Nov 2008 (s 2(1) 44)

Legislation Amendment item 2)

Act 2008 Sch 4 (items 1–37, 42–

44) and Sch 5

(items 1–87): 25 Nov

2009 (s 2(1) item 3)

Statute Law Revision 8, 2010 1 Mar 2010 Sch 1 (item 25) and —

Act 2010 Sch 5 (item 47): 1 Mar

2010 (s 2(1) items 2,

31)

Sch 5 (item 137): 1

Mar 2010 (s 2(1)

item 38)

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Act Number Assent Commencement Application,

and year saving and

transitional

provisions

Freedom of Information 51, 2010 31 May 2010 Sch 5 (items 32, 33), Sch 7

Amendment (Reform) Sch 6 (items 43–48)

Act 2010 and Sch 7: 1 Nov 2010

(s 2(1) item 7)

Trade Practices 103, 2010 13 July 2010 Sch 6 (items 1, 55): —

Amendment (Australian 1 Jan 2011 (s 2(1)

Consumer Law) Act items 3, 5)

(No. 2) 2010

Environment Protection 107, 2010 14 July 2010 15 July 2010 (s 2) —

and Biodiversity

Conservation

Amendment

(Recreational Fishing for

Mako and Porbeagle

Sharks) Act 2010

Territories Law Reform

Act 2010

139, 2010 10 Dec 2010 Sch 1 (items 62–65):

11 Dec 2010 (s 2(1)

item 2)

Statute Law Revision

Act 2011

5, 2011 22 Mar 2011 Sch 7 (item 54):

19 Apr 2011 (s 2(1)

item 18)

Acts Interpretation 46, 2011 27 June 2011 Sch 2 (items 551–562) Sch 3 (items 10,

Amendment Act 2011 and Sch 3 (items 10, 11)

11): 27 Dec 2011

(s 2(1) items 3, 12)

Environment Protection 131, 2012 19 Sept 2012 19 Sept 2012 (s 2) —

and Biodiversity

Conservation

Amendment (Declared

Commercial Fishing

Activities) Act 2012

Environment Protection and Biodiversity Conservation Act 1999

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Endnotes

Endnote 3—Legislation history

Act Number Assent Commencement Application,

and year saving and

transitional

provisions

Statute Law Revision

Act 2012

136, 2012 22 Sept 2012 Sch 1 (item 50): 22

Sept 2012 (s 2(1)

item 2)

Environment Protection

and Biodiversity

Conservation

Amendment

(Independent Expert

Scientific Committee on

Coal Seam Gas and

Large Coal Mining

Development) Act 2012

145, 2012 24 Oct 2012 Sch 1: 9 Nov 2012

(s 2(1) item 2)

Financial Framework 8, 2013 14 Mar 2013 Sch 1 (items 3, 4): Sch 1 (item 4)

Legislation Amendment 15 Mar 2013 (s 2)

Act (No. 1) 2013

Maritime Powers 16, 2013 27 Mar 2013 Sch 2: 27 Mar 2014 —

(Consequential (s 2(1) item 2)

Amendments) Act 2013

Environment Protection

and Biodiversity

Conservation

Amendment Act 2013

60, 2013 21 June 2013 Sch 1: 22 June 2013

(s 2(1) item 2)

Sch 1 (items 19,

20, 22–25)

Aboriginal Land Rights

and Other Legislation

Amendment Act 2013

93, 2013 28 June 2013 Sch 1 (items 28–36):

29 June 2013 (s 2)

Sch 1 (items 35,

36)

Statute Law Revision 31, 2014 27 May 2014 Sch 1 (items 22–24) —

Act (No. 1) 2014 and Sch 4 (item 80):

24 June 2014 (s 2(1)

items 2, 9)

Environment Protection and Biodiversity Conservation Act 1999

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Endnote 3—Legislation history

Act Number Assent Commencement Application,

and year saving and

transitional

provisions

Public Governance, 62, 2014 30 June 2014 Sch 8 (items 144–156) Sch 14

Performance and and Sch 14: 1 July

Accountability 2014 (s 2(1) items 6,

(Consequential and 14)

Transitional Provisions)

Act 2014

as amended by

Public Governance 36, 2015 13 Apr 2015 Sch 2 (items 7–9) and Sch 7

and Resources Sch 7: 14 Apr 2015

Legislation (s 2)

Amendment Act

(No. 1) 2015

as amended by

Acts and 126, 2015 10 Sept 2015 Sch 1 (item 486): —

Instruments 5 Mar 2016 (s 2(1)

(Framework item 2)

Reform)

(Consequential

Provisions) Act

2015

Acts and Instruments 126, 2015 10 Sept 2015 Sch 1 (item 495): —

(Framework Reform) 5 Mar 2016 (s 2(1)

(Consequential item 2)

Provisions) Act 2015

Environment Protection 75, 2014 30 June 2014 Sch 1: 1 July 2014 Sch 1 (item 20)

and Biodiversity (s 2(1) item 2)

Conservation

Amendment (Cost

Recovery) Act 2014

Acts and Instruments 10, 2015 5 Mar 2015 Sch 3 (items 81–136, Sch 3 (items 348,

(Framework Reform) 348, 349): 5 Mar 2016 349)

Act 2015 (s 2(1) item 2)

Environment Protection and Biodiversity Conservation Act 1999

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Endnotes

Endnote 3—Legislation history

Act Number Assent Commencement Application,

and year saving and

transitional

provisions

Environment Legislation 11, 2015 5 Mar 2015 Sch 2 (items 1–42): —

Amendment Act 2015 6 Mar 2015 (s 2)

Customs and Other 41, 2015 20 May 2015 Sch 5 (item 63) and Sch 9

Legislation Amendment Sch 9: 1 July 2015

(Australian Border (s 2(1) items 2, 7)

Force) Act 2015

as amended by

115, 2017 30 Oct 2017 Sch 1 (item 26): 1 July —

2015 (s 2(1) item 2)

Norfolk Island 59, 2015 26 May 2015 Sch 1 (items 102–105 Sch 1 (items 184–

Legislation Amendment Sch 2 (items 356– 203) and Sch 2

Act 2015 396): 18 June 2015 (items 356–396)

(s 2(1) items 2, 6)

Sch 1 (items 184–

203): 27 May 2015

(s 2(1) item 3)

Sch 2 (items 131–

137): 1 July 2016

(s 2(1) item 5)

as amended by

Territories Legislation 33, 2016 23 Mar 2016 Sch 2: 24 Mar 2016 —

Amendment Act 2016 (s 2(1) item 2)

Biosecurity 62, 2015 16 June 2015 Sch 3: 16 June 2015 Sch 3 and Sch 4

(Consequential (s 2(1) item 3)

Amendments and Sch 2 (items 11–21)

Transitional Provisions) and Sch 4: 16 June

Act 2015 2016 (s 2(1) items 2,

4)

Environment Protection and Biodiversity Conservation Act 1999

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Endnotes

Endnote 3—Legislation history

Act Number Assent Commencement Application,

and year saving and

transitional

provisions

as amended by

Statute Update

(Winter 2017) Act

2017

93, 2017 23 Aug 2017 Sch 2 (item 9): 20 Sept

2017 (s 2(1) item 4)

Acts and Instruments

(Framework Reform)

(Consequential

Provisions) Act 2015

126, 2015 10 Sept 2015 Sch 1 (items 180–

199): 5 Mar 2016 (s

2(1) item 2)

Statute Law Revision

Act (No. 1) 2016

4, 2016 11 Feb 2016 Sch 4 (items 1, 147–

159, 373–383): 10 Mar

2016 (s 2(1) item 6)

Law and Justice 26, 2016 23 Mar 2016 Sch 1 (items 16, 34, Sch 1 (items 34,

Legislation Amendment 35): 1 May 2016 (s 35)

(Northern Territory 2(1) item 2)

Local Court) Act 2016

Omnibus Repeal Day 47, 2016 5 May 2016 Sch 2 (items 5–13): —

(Autumn 2015) Act 6 May 2016 (s 2(1)

2016 item 2)

Great Barrier Reef 12, 2018 5 Mar 2018 Sch 1 (items 39–49): Sch 1 (items 45–

Marine Park 29 Oct 2018 (s 2(1) 49)

Amendment (Authority item 2)

Governance and Other

Matters) Act 2018

Environment Protection and Biodiversity Conservation Act 1999

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Endnote 4—Amendment history

Endnote 4—Amendment history

Provision affected How affected

Chapter 1

Part 1

s 3 .................................................. am No 88, 2003

s 6 .................................................. ad No 165, 2006

s 7 .................................................. am No 165, 2006

s 9 .................................................. am No 86, 2003

Chapter 2

Part 2

s 11 ................................................ am No 125, 2008

Part 3

Division 1

Subdivision A

s 12 ................................................ am No 88, 2003

s 15A ............................................. am No 165, 2006; No 4, 2016

Subdivision AA

Subdivision AA ............................. ad No 88, 2003

s 15B ............................................. ad No 88, 2003

am No 165, 2006

s 15C ............................................. ad No 88, 2003

am No 165, 2006; No 4, 2016

Subdivision B

Subdivision C

Subdivision D

s 17B ............................................. am No 165, 2006; No 4, 2016

s 18A ............................................. am No 165, 2006; No 4, 2016

s 19 ................................................ am No 165, 2006

s 20A ............................................. am No 165, 2006; No 4, 2016

s 20B ............................................. ad No 165, 2006

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Provision affected How affected

Subdivision E

s 22A ............................................. am No 165, 2006; No 4, 2016

Subdivision F

s 24 ................................................ am No 165, 2006

s 24A ............................................. am No 165, 2006; No 4, 2016

Subdivision FA

Subdivision FA.............................. ad No 125, 2008

s 24B ............................................. ad No 125, 2008

s 24C ............................................. ad No 125, 2008

Subdivision FB

Subdivision FB.............................. ad No 60, 2013

s 24D ............................................. ad No 60, 2013

s 24E.............................................. ad No 60, 2013

Subdivision H

Subdivision H................................ ad No 82, 2001

s 25A ............................................. ad No 82, 2001

am No 46, 2011; No 126, 2015

Subdivision HA

Subdivision HA ............................. ad No 165, 2006

s 25AA .......................................... ad No 165, 2006

am No 125, 2008; No 60, 2013

Subdivision I

Subdivision I ................................. ad No 82, 2001

s 25B ............................................. ad No 82, 2001

am No 165, 2006

s 25C ............................................. ad No 82, 2001

s 25D ............................................. ad No 82, 2001

am No 165, 2006

s 25E.............................................. ad No 82, 2001

s 25F.............................................. ad No 82, 2001

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Endnote 4—Amendment history

Provision affected How affected

Division 2

Subdivision A

s 26 ................................................ am No 88, 2003

s 27A ............................................. am No 88, 2003; No 165, 2006; No 4, 2016

Subdivision AA

Subdivision AA ............................. ad No 88, 2003

s 27B ............................................ ad No 88, 2003

s 27C ............................................ ad No 88, 2003

am No 165, 2006; No 4, 2016

Subdivision B

s 28 ................................................ am No 88, 2003; No 165, 2006

Subdivision C

Subdivision C ............................... ad No 88, 2003

s 28AA .......................................... ad No 88, 2003

am No 46, 2011; No 126, 2015

Subdivision D

Subdivision D................................ ad No 165, 2006

s 28AB .......................................... ad No 165, 2006

Division 3 ...................................... rep No 165, 2006

s 28A ............................................ rep No 165, 2006

Part 4

Division 1

s 29 ............................................... am No 165, 2006; No 125, 2008; No 60, 2013

s 30 ............................................... am No 125, 2008

s 31 ............................................... am No 165, 2006

Division 2

Division 2 heading......................... rs No 165, 2006

Subdivision A

s 32 ............................................... am No 165, 2006

Subdivision B

s 33 ............................................... am No 165, 2006

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Endnote 4—Amendment history

Provision affected How affected

s 34 ............................................... am No 88, 2003; No 125, 2008; No 60, 2013

Subdivision C

s 34B ............................................ am No 165, 2006

s 34BA .......................................... ad No 88, 2003

am No 165, 2006

s 34C ............................................ am No 165, 2006

s 34D ............................................. am No 165, 2006

s 34E ............................................. am No 165, 2006

s 34F ............................................. ad No 88, 2003

am No 165, 2006

Subdivision D

Subdivision A

Subdivision B

Subdivision C

s 35 ................................................ am No 165, 2006

s 36 ............................................... am No 165, 2006

s 36A ............................................ ad No 165, 2006

Division 3

Division 3 ...................................... ad No 165, 2006

s 37 ............................................... ad No 165, 2006

s 37A ............................................ ad No 165, 2006

s 37B ............................................. ad No 165, 2006

s 37C ............................................. ad No 165, 2006

s 37D ............................................ ad No 165, 2006

s 37E ............................................. ad No 165, 2006

s 37F ............................................. ad No 165, 2006

s 37G ............................................ ad No 165, 2006

s 37H ............................................. ad No 165, 2006

s 37J .............................................. ad No 165, 2006

Subdivision D

s 37K ............................................ ad No 165, 2006

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Endnote 4—Amendment history

Provision affected How affected

s 37L ............................................. ad No 165, 2006

Division 3A

Division 3A ................................... ad No 165, 2006

s 37M ............................................ ad No 165, 2006

Division 4

Subdivision A

s 38 ............................................... rs No 30, 2002

Subdivision B

s 40 ............................................... am No 30, 2002; No 10, 2015

Subdivision C

s 42 ............................................... am No 30, 2002

Division 5

s 43 ............................................... am No 125, 2008

Division 6

Division 6 ...................................... ad No 82, 2001

s 43A ............................................ ad No 82, 2001

am No 165, 2006

s 43B ............................................ ad No 82, 2001

am No 165, 2006

Chapter 3

Part 5

Division 2

Subdivision A

s 46 ............................................... am No 165, 2006; No 60, 2013

s 49 ............................................... am No 125, 2008

Subdivision B

s 51 ............................................... am No 165, 2006

s 51A ............................................ ad No 88, 2003

am No 165, 2006

s 52 ................................................ am No 165, 2006

s 53 ................................................ am No 165, 2006

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Endnote 4—Amendment history

Provision affected How affected

s 54 ................................................ am No 165, 2006

s 55 ................................................ am No 165, 2006

Subdivision C

Subdivision C ................................ ad No 165, 2006

s 56A ............................................ ad No 165, 2006

Division 3

Subdivision A

s 63 ................................................ am No 63, 2002

s 64 ............................................... am No 165, 2006

Subdivision B

s 65 ............................................... am No 165, 2006

s 65A ............................................ am No 165, 2006

Chapter 4

Part 6

s 66 ............................................... am No 165, 2006

Part 7

Division 1

s 67 ............................................... am No 165, 2006

s 67A ............................................ ad No 165, 2006

s 68 ............................................... am No 165, 2006

s 68A ............................................ ad No 165, 2006

s 70 ............................................... am No 82, 2001; No 165, 2006

s 71 ................................................ am No 165, 2006

s 72 ............................................... am No 165, 2006

s 73A ............................................ ad No 125, 2008

s 74 ............................................... am No 88, 2003; No 32, 2005; No 165, 2006; No 125, 2008; No 8,

2010

s 74A ............................................. ad No 88, 2003

s 74AA ......................................... ad No 165, 2006

Division 1A

Division 1A ................................... ad No 165, 2006

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Endnote 4—Amendment history

Provision affected How affected

s 74B ............................................. ad No 165, 2006

s 74C ............................................ ad No 165, 2006

s 74D ............................................. ad No 165, 2006

am No 8, 2010

Division 2

s 75 ................................................ am No 88, 2003; No 165, 2006; No 125, 2008; No 60, 2013

s 76 ............................................... am No 165, 2006

s 77 ................................................ am No 88, 2003

s 77A ............................................. ad No 88, 2003

am No 165, 2006

Division 3

Division 3 heading......................... ad No 165, 2006

s 78 ................................................ am No 88, 2003; No 165, 2006

s 78A ............................................. ad No 165, 2006

s 78B ............................................. ad No 165, 2006

am No 8, 2010

s 78C ............................................. ad No 165, 2006

s 79 ............................................... am No 165, 2006

Part 8

Division 1

s 80 ............................................... am No 165, 2006

Division 2

s 82 ............................................... am No 165, 2006; No 125, 2008; No 60, 2013

s 83 ............................................... am No 125, 2008

s 84 ............................................... am No 88, 2003

Division 3

Subdivision A

s 85 ............................................... am No 165, 2006

Subdivision B

s 86 ............................................... rep No 165, 2006

s 87 ................................................ am No 165, 2006

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Endnote 4—Amendment history

Provision affected How affected

s 88 ............................................... am No 165, 2006

s 89 ............................................... am No 165, 2006

s 91 ............................................... am No 165, 2006; No 75, 2014

Division 3A

Division 3A ................................... ad No 165, 2006

s 92 ................................................ rs No 165, 2006

s 93 ................................................ rs No 165, 2006

am No 8, 2010; No 51, 2010

Division 4

Division 4 ...................................... rs No 165, 2006

s 94, 95 ......................................... rs No 165, 2006

s 95A ............................................. ad No 165, 2006

s 95B ............................................. ad No 165, 2006

am No 75, 2014

s 95C ............................................. ad No 165, 2006

Division 5

s 96A, 96B .................................... ad No 165, 2006

s 97 ............................................... am No 165, 2006; No 125, 2008

s 98 ................................................ am No 165, 2006

s 99 ............................................... rs No 165, 2006

am No 75, 2014

s 100 .............................................. rs No 165, 2006

Division 6

s 101A .......................................... ad No 165, 2006

s 101B .......................................... ad No 165, 2006

s 102 .............................................. am No 165, 2006; No 125, 2008

s 103 ............................................. am No 165, 2006

s 104 ............................................. rs No 165, 2006

am No 75, 2014

s 105 .............................................. rs No 165, 2006

Division 7

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Endnote 4—Amendment history

Provision affected How affected

Subdivision B

s 107 ............................................. am No 125, 2008

Subdivision C

s 111 .............................................. am No 4, 2016

s 112 .............................................. am No 4, 2016

s 114 .............................................. am No 4, 2016

s 117 .............................................. am No 31, 2014

s 119 .............................................. am No 4, 2016

s 120 .............................................. am No 4, 2016

Subdivision E

s 124 ............................................. am No 92, 1999

s 125 ............................................. am No 92, 1999

Part 9

Division 1

Subdivision A

s 130 .............................................. am No 165, 2006; No 145, 2012

s 131 .............................................. am No 165, 2006

s 131AA ....................................... ad No 165, 2006

am No 51, 2010; No 31, 2014

s 131AB......................................... ad No 145, 2012

s 131A .......................................... ad No 165, 2006

am No 8, 2010

s 132 ............................................. am No 165, 2006

s 132A .......................................... ad No 165, 2006

s 132B ........................................... ad No 75, 2014

s 133 ............................................. am No 165, 2006; No 51, 2010

s 134 ............................................. am No 165, 2006; No 75, 2014

s 134A ........................................... ad No 75, 2014

s 135A .......................................... ad No 165, 2006

am No 51, 2010

Subdivision B

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Endnote 4—Amendment history

Provision affected How affected

s 136 ............................................. am No 165, 2006; No 145, 2012

s 137 .............................................. rs No 88, 2003

s 137A .......................................... ad No 88, 2003

s 139 ............................................. am No 165, 2006

Division 2

s 142 ............................................. am No 165, 2006

s 142A ........................................... am No 9, 2006; No 165, 2006; No 4, 2016

s 142B .......................................... ad No 165, 2006

am No 4, 2016

Division 3

s 143 ............................................. am No 165, 2006; No 51, 2010; No 75, 2014

s 143A ........................................... ad No 75, 2014

s 144, 145 ..................................... am No 165, 2006

s 145A .......................................... am No 165, 2006

Division 4

s 145B .......................................... am No 165, 2006

Division 5

Division 5 ...................................... ad No 165, 2006

s 145C .......................................... ad No 165, 2006

s 145D .......................................... ad No 165, 2006

s 14E ............................................. ad No 165, 2006

Part 10

Division 1

Subdivision A

Subdivision A heading................... ad No 165, 2006

s 146 ............................................. am No 82, 2001; No 165, 2006

Subdivision B

Subdivision B ................................ ad No 165, 2006

s 146A ........................................... ad No 165, 2006

s 146B ........................................... ad No 165, 2006

am No 51, 2010

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Endnote 4—Amendment history

Provision affected How affected

s 146C ........................................... ad No 165, 2006

s 146D ........................................... ad No 165, 2006

Subdivision C

Subdivision C ................................ ad No 165, 2006

s 146E–146H................................. ad No 165, 2006

s 146F............................................ ad No 165, 2006

s 146G ........................................... ad No 165, 2006

s 146H ........................................... ad No 165, 2006

s 146J............................................. ad No 165, 2006

s 146K ........................................... ad No 165, 2006

s 146L............................................ ad No 165, 2006

s 146M........................................... ad No 165, 2006

Division 2

s 148 .............................................. am No 82, 2001

s 149 ............................................. am No 82, 2001

s 150 ............................................. am No 82, 2001

s 151 ............................................. am No 82, 2001; No 63, 2002

s 152 ............................................. am No 165, 2006

s 153 ............................................. rs No 165, 2006

Part 11

Division 1A

Division 1A ................................... ad No 165, 2006

s 156A ........................................... ad No 165, 2006

s 156B ........................................... ad No 165, 2006

s 156C .......................................... ad No 165, 2006

s 156D .......................................... ad No 165, 2006

s 156E ........................................... ad No 165, 2006

Division 1B

Division 1B ................................... ad No 165, 2006

s 156F ........................................... ad No 165, 2006

am No 75, 2014

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Endnote 4—Amendment history

Provision affected How affected

Division 3A

Division 3A ................................... ad No 165, 2006

s 158A .......................................... ad No 165, 2006

am No 125, 2008

Subdivision A

Subdivision C

Division 4

s 159 ............................................. am No 165, 2006

s 160 ............................................. am No 165, 2006

s 161 ............................................. am No 165, 2006

s 161A .......................................... ad No 165, 2006

s 161B .......................................... ad No 165, 2006

s 163 ............................................. am No 165, 2006

Subdivision B ................................ rep No 165, 2006

s 165 ............................................. rep No 165, 2006

s 168 ............................................. am No 165, 2006

s 169 ............................................. am No 165, 2006

s 170 ............................................. am No 165, 2006

Division 5

s 170A .......................................... am No 165, 2006; No 8, 2010

s 170B .......................................... ad No 165, 2006

s 170BA ........................................ ad No 165, 2006

Division 6

Division 6 ...................................... ad No 165, 2006

s 170C .......................................... ad No 165, 2006

Division 7

Division 7 ...................................... ad No 75, 2014

s 170CA......................................... ad No 75, 2014

Chapter 5

Chapter 5 heading.......................... rs No 88, 2003

Part 11A

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Endnote 4—Amendment history

Provision affected How affected

Part 11A ........................................ ad No 165, 2006

s 170D .......................................... ad No 165, 2006

am No 46, 2011

Part 12

Division 1

s 172 ............................................. rs No 165, 2006

s 173 ............................................. rs No 165, 2006

s 175 ............................................. rep No 165, 2006

Division 2

s 176 ............................................. am No 88, 2003; No 165, 2006

Part 13

Division 1

Subdivision A

s 178 .............................................. am No 10, 2015

s 179 ............................................. am No 165, 2006

s 181 .............................................. am No 10, 2015

s 183 .............................................. am No 10, 2015

s 184 ............................................. am No 165, 2006; No 126, 2015

s 185 ............................................. rep No 165, 2006

s 186 ............................................. am No 165, 2006

s 187 ............................................. rs No 165, 2006

s 189 ............................................. am No 165, 2006

s 189A .......................................... ad No 165, 2006

s 189B .......................................... ad No 165, 2006

s 191 ............................................. rep No 165, 2006

s 193 .............................................. am No 10, 2015

s 194 ............................................. rs No 165, 2006

am No 8, 2010; No 10, 2015

Subdivision AA

Subdivision AA ............................. ad No 165, 2006

s 194A ........................................... ad No 165, 2006

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Endnote 4—Amendment history

Provision affected How affected

s 194B .......................................... ad No 165, 2006

s 194C .......................................... ad No 165, 2006

am No 126, 2015

s 194D .......................................... ad No 165, 2006

am No 126, 2015

s 194E ........................................... ad No 165, 2006

s 194F ........................................... ad No 165, 2006

s 194G .......................................... ad No 165, 2006

s 194H .......................................... ad No 165, 2006

s 194J ............................................ ad No 165, 2006

s 194K .......................................... ad No 165, 2006

s 194L............................................ ad No 165, 2006

am No 8, 2010

s 194M........................................... ad No 165, 2006

s 194N .......................................... ad No 165, 2006

am No 73, 2008

s 194P ........................................... ad No 165, 2006

s 194Q .......................................... ad No 165, 2006

am No 73, 2008; No 8, 2010

s 194R ........................................... ad No 165, 2006

s 194S............................................ ad No 165, 2006

s 194T............................................ ad No 165, 2006

Subdivision B

s 196 .............................................. am No 165, 2006; No 11, 2015; No 4, 2016

s 196A ........................................... am No 11, 2015; No 4, 2016

s 196B .......................................... am No 165, 2006; No 11, 2015; No 4, 2016

s 196C ........................................... am No 11, 2015; No 4, 2016

s 196D .......................................... am No 165, 2006; No 11, 2015; No 4, 2016

s 196E............................................ am No 11, 2015; No 4, 2016

s 196F............................................ ad No 11, 2015

s 198 .............................................. am No 11, 2015

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Endnote 4—Amendment history

Provision affected How affected

s 197 ............................................. am No 82, 2001; No 165, 2006

s 199 .............................................. am No 165, 2006; No 4, 2016

s 200 .............................................. am No 165, 2006; No 8, 2010

s 201 .............................................. am No 165, 2006

s 203 .............................................. am No 4, 2016

s 206A .......................................... am No 165, 2006

Subdivision BA

s 207A .......................................... am No 165, 2006

s 207B ........................................... am No 4, 2016

Subdivision C

s 208A .......................................... ad No 82, 2001

rs No 165, 2006

Division 2

Subdivision A

s 209 ............................................. am No 165, 2006; No 126, 2015

Subdivision B

s 211 ............................................. am No 165, 2006; No 11, 2015; No 4, 2016

s 211A ........................................... am No 11, 2015; No 4, 2016

s 211B .......................................... am No 165, 2006; No 11, 2015; No 4, 2016

s 211C ........................................... am No 11, 2015; No 4, 2016

s 211D .......................................... am No 165, 2006; No 11, 2015; No 4, 2016

s 211E............................................ am No 11, 2015; No 4, 2016

s 211F............................................ ad No 11, 2015

s 212 ............................................. am No 82, 2001; No 165, 2006; No 107, 2010

s 213 .............................................. am No 11, 2015

s 214 .............................................. am No 165, 2006; No 107, 2010; No 4, 2016

s 215 .............................................. am No 165, 2006; No 8, 2010

s 216 .............................................. am No 165, 2006

s 218 .............................................. am No 4, 2016

s 221A .......................................... am No 165, 2006

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Provision affected How affected

Subdivision C

s 222A .......................................... ad No 82, 2001

rs No 165, 2006

Division 3

Subdivision A

s 224 ............................................. am No 82, 2001; No 165, 2006

Subdivision B

Subdivision B heading................... rs No 165, 2006

s 225 ............................................. am No 165, 2006

s 228A .......................................... ad No 165, 2006

Subdivision C

s 229 ............................................. am No 165, 2006; No 4, 2016

s 229A ........................................... am No 4, 2016

s 229B .......................................... am No 165, 2006; No 4, 2016

s 229C ........................................... am No 4, 2016

s 229D .......................................... am No 165, 2006; No 4, 2016

s 230 .............................................. am No 165, 2006; No 4, 2016

s 231 ............................................. am No 82, 2001; No 165, 2006; No 125, 2008

s 232 .............................................. am No 165, 2006; No 4, 2016

Subdivision D heading................... rs No 82, 2001

rep No 165, 2006

Subdivision D ............................... rep No 165, 2006

s 232A ........................................... ad No 82, 2001

rep No 165, 2006

s 232B ........................................... ad No 82, 2001

rep No 165, 2006

s 233 ............................................. am No 82, 2001

rep No 165, 2006

s 234 ............................................. am No 82, 2001

rep No 165, 2006

s 235 ............................................. am No 82, 2001

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Endnote 4—Amendment history

Provision affected How affected

rep No 165, 2006

Subdivision E

s 236 .............................................. am No 165, 2006; No 4, 2016

Subdivision F

s 237 .............................................. am No 165, 2006; No 8, 2010

s 238 ............................................. am No 82, 2001; No 165, 2006

s 240 .............................................. am No 4, 2016

s 243A ........................................... am No 165, 2006

Subdivision G

s 245 ............................................. am No 82, 2001

rs No 165, 2006

Division 4

Subdivision A

s 248 .............................................. am No 10, 2015

s 249 .............................................. am No 10, 2015

s 251 .............................................. am No 10, 2015

Subdivision B

s 254 .............................................. am No 165, 2006; No 11, 2015; No 4, 2016

s 254A ........................................... am No 11, 2015; No 4, 2016

s 254B ........................................... am No 165, 2006; No 11, 2015; No 4, 2016

s 254C ........................................... am No 11, 2015; No 4, 2016

s 254D ........................................... am No 165, 2006; No 11, 2015; No 4, 2016

s 254E............................................ am No 11, 2015; No 4, 2016

s 254F............................................ ad No 11, 2015

s 255 ............................................. am No 82, 2001; No 165, 2006; No 125, 2008

s 256 .............................................. am No 165, 2006; No 4, 2016

s 257 .............................................. am No 165, 2006; No 8, 2010

s 258 .............................................. am No 165, 2006; No 8, 2010

s 260 .............................................. am No 4, 2016

s 263A ........................................... am No 165, 2006

Subdivision C

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Endnote 4—Amendment history

Provision affected How affected

s 265 ............................................. am No 82, 2001

rs No 165, 2006

Division 4A ................................... rep No 165, 2006

s 266A .......................................... rep No 165, 2006

Division 5

Division 5 heading......................... rs No 165, 2006

Subdivision AA

Subdivision AA ............................. ad No 165, 2006

s 266B .......................................... ad No 165, 2006

am No 8, 2010

Subdivision A

s 267 ............................................. am No 165, 2006

s 269AA ....................................... ad No 165, 2006

am No 73, 2008

s 269A .......................................... am No 165, 2006

s 270 ............................................. am No 165, 2006

s 271 ............................................. am No 165, 2006

s 273 ............................................. am No 165, 2006

s 278 .............................................. am No 165, 2006

s 282 .............................................. am No 31, 2014

s 283A .......................................... am No 165, 2006

Subdivision C

s 299 ............................................. am No 165, 2006

s 300B .......................................... ad No 165, 2006

Division 8

s 303AA ....................................... ad No 165, 2006

s 303AB ........................................ ad No 165, 2006

Part 13A

Part 13A ........................................ ad No 82, 2001

Division 1

s 303BA ........................................ ad No 82, 2001

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Endnote 4—Amendment history

Provision affected How affected

s 303BAA ..................................... ad No 82, 2001

s 303BB ........................................ ad No 82, 2001

s 303BC ........................................ ad No 82, 2001

Division 2

Subdivision A

s 303CA ........................................ ad No 82, 2001

am No 8, 2010; No 10, 2015

s 303CB ........................................ ad No 82, 2001

am No 8, 2010; No 10, 2015

Subdivision B

s 303CC......................................... ad No 82, 2001

am No 4, 2016

s 303CD......................................... ad No 82, 2001

am No 4, 2016

s 303CE......................................... ad No 82, 2001

s 303CF ......................................... ad No 82, 2001

s 303CG......................................... ad No 82, 2001

am No 165, 2006

s 303CH......................................... ad No 82, 2001

am No 165, 2006; No 10, 2015

s 303CI .......................................... ad No 82, 2001

s 303CJ.......................................... ad No 82, 2001

am No 165, 2006

s 303CK......................................... ad No 82, 2001

am No 8, 2010

Subdivision C

s 303CL......................................... ad No 82, 2001

s 303CM........................................ ad No 82, 2001

s 303CN......................................... ad No 82, 2001

Division 3

Subdivision A

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Endnote 4—Amendment history

Provision affected How affected

s 303DA ....................................... ad No 82, 2001

s 303DB ........................................ ad No 82, 2001

am No 165, 2006; No 8, 2010; No 10, 2015

s 303DC ........................................ ad No 82, 2001

am No 8, 2010; No 10, 2015

Subdivision B

s 303DD ........................................ ad No 82, 2001

am No 4, 2016

s 303DE......................................... ad No 82, 2001

s 303DF......................................... ad No 82, 2001

s 303DG ........................................ ad No 82, 2001

am No 165, 2006

s 303DH ........................................ ad No 82, 2001

s 303DI.......................................... ad No 82, 2001

am No 165, 2006

s 303DJ.......................................... ad No 82, 2001

am No 8, 2010

Division 4

Subdivision A

s 303EA ........................................ ad No 82, 2001

s 303EB ........................................ ad No 82, 2001

am No 165, 2006; No 8, 2010; No 10, 2015; No 62, 2015

s 303EC ........................................ ad No 82, 2001

am No 8, 2010; No 10, 2015

Subdivision B

s 303ED......................................... ad No 82, 2001

am No 165, 2006

s 303EE ......................................... ad No 82, 2001

am No 165, 2006

s 303EF.......................................... ad No 82, 2001

rs No 165, 2006

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Endnote 4—Amendment history

Provision affected How affected

s 303EG......................................... ad No 82, 2001

s 303EH......................................... ad No 82, 2001

s 303EI .......................................... ad No 82, 2001

s 303EJ .......................................... ad No 82, 2001

Subdivision C

s 303EK......................................... ad No 82, 2001

am No 4, 2016

s 303EL ......................................... ad No 82, 2001

s 303EM ........................................ ad No 82, 2001

s 303EN......................................... ad No 82, 2001

am No 165, 2006

s 303EO......................................... ad No 82, 2001

s 303EP.......................................... ad No 82, 2001

am No 165, 2006

s 303EQ......................................... ad No 82, 2001

am No 8, 2010

Subdivision D

s 303ER ......................................... ad No 82, 2001

s 303ES.......................................... ad No 82, 2001

s 303ET ......................................... ad No 82, 2001

s 303EU......................................... ad No 82, 2001

am No 10, 2015

s 303EV......................................... ad No 82, 2001

am No 4, 2016

s 303EW........................................ ad No 82, 2001

Division 5

Subdivision A

s 303FA ......................................... ad No 82, 2001

s 303FB ......................................... ad No 82, 2001

s 303FC ......................................... ad No 82, 2001

s 303FD ......................................... ad No 82, 2001

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Provision affected How affected

s 303FE ......................................... ad No 82, 2001

s 303FF.......................................... ad No 82, 2001

s 303FG ......................................... ad No 82, 2001

am No 10, 2015

s 303FH ......................................... ad No 82, 2001

s 303FI........................................... ad No 82, 2001

Subdivision B

s 303FJ .......................................... ad No 82, 2001

am No 165, 2006

s 303FK ......................................... ad No 82, 2001

s 303FL.......................................... ad No 82, 2001

s 303FLA....................................... ad No 165, 2006

s 303FM ........................................ ad No 82, 2001

s 303FN ......................................... ad No 82, 2001

s 303FO ......................................... ad No 82, 2001

s 303FP.......................................... ad No 82, 2001

am No 8, 2010

s 303FQ ......................................... ad No 82, 2001

s 303FR ......................................... ad No 82, 2001

am No 8, 2010

s 303FRA ..................................... ad No 82, 2001

am No 46, 2011

s 303FS.......................................... ad No 82, 2001

am No 8, 2010

s 303FT.......................................... ad No 82, 2001

am No 8, 2010

s 303FU ......................................... ad No 82, 2001

Division 6

s 303GA ........................................ ad No 82, 2001

s 303GB......................................... ad No 82, 2001

am No 165, 2006; No 8, 2010

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Endnote 4—Amendment history

Provision affected How affected

s 303GC......................................... ad No 82, 2001

am No 165, 2006

s 303GD ........................................ ad No 82, 2001

am No 165, 2006

s 303GE......................................... ad No 82, 2001

am No 165, 2006

s 303GF ......................................... ad No 82, 2001

am No 4, 2016

s 303GG ........................................ ad No 82, 2001

s 303GH ........................................ ad No 82, 2001

s 303GI.......................................... ad No 82, 2001

s 303GJ.......................................... ad No 82, 2001

am No 38, 2005; No 165, 2006

s 303GK ........................................ ad No 82, 2001

s 303GL......................................... ad No 82, 2001

s 303GM........................................ ad No 82, 2001

s 303GN ........................................ ad No 82, 2001

am No 4, 2016

s 303GO ........................................ ad No 82, 2001

s 303GP ......................................... ad No 82, 2001

am No 4, 2016

s 303GQ ........................................ ad No 82, 2001

s 303GR......................................... ad No 82, 2001

s 303GS ......................................... ad No 82, 2001

s 303GT......................................... ad No 82, 2001

s 303GU ........................................ ad No 82, 2001

s 303GV ........................................ ad No 82, 2001

am No 62, 2015

s 303GW........................................ ad No 82, 2001

am No 41, 2015; No 62, 2015

s 303GX ........................................ ad No 82, 2001

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Endnote 4—Amendment history

Provision affected How affected

am No 10, 2015

s 303GY ........................................ ad No 82, 2001

Part 14

s 304 .............................................. am No 88, 2003

rs No 165, 2006

am No 60, 2013

s 305 .............................................. am No 88, 2003; No 165, 2006; No 60, 2013

s 306 .............................................. am No 88, 2003; No 165, 2006; No 60, 2013

s 306A ........................................... ad No 165, 2006

s 307A ........................................... ad No 165, 2006

s 309 .............................................. am No 88, 2003

Part 15

Division 1

Subdivision D

s 316 .............................................. am No 47, 2016

s 318 .............................................. rs No 88, 2003

Subdivision E

s 321 .............................................. am No 125, 2008

Subdivision F

s 323 .............................................. am No 88, 2003

Division 1A

Division 1A ................................... ad No 88, 2003

Subdivision A

s 324A ........................................... ad No 88, 2003

s 324B ........................................... ad No 88, 2003

rep No 165, 2006

Subdivision B

s 324C ........................................... ad No 88, 2003

am No 165, 2006

s 324D ........................................... ad No 88, 2003

Subdivision BA

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Endnote 4—Amendment history

Provision affected How affected

Subdivision BA ............................. ad No 165, 2006

s 324E............................................ ad No 88, 2003

rs No 165, 2006

s 324F............................................ ad No 88, 2003

rs No 165, 2006

s 324G ........................................... ad No 88, 2003

rs No 165, 2006

am No 88, 2003; No 126, 2015

s 324H ........................................... ad No 88, 2003

rs No 165, 2006

am No 126, 2015

s 324J............................................. ad No 88, 2003

rs No 165, 2006

am No 88, 2003

s 324JA.......................................... ad No 165, 2006

s 324JB.......................................... ad No 165, 2006

s 324JC.......................................... ad No 165, 2006

s 324JD.......................................... ad No 165, 2006

s 324JE .......................................... ad No 165, 2006

s 324JF .......................................... ad No 165, 2006

am No 8, 2010

s 324JG.......................................... ad No 165, 2006

s 324JH.......................................... ad No 165, 2006

s 324JI ........................................... ad No 165, 2006

s 324JJ ........................................... ad No 165, 2006

am No 8, 2010

Subdivision BB

Subdivision BB ............................. ad No 165, 2006

s 324JK.......................................... ad No 165, 2006

s 324JL .......................................... ad No 165, 2006

am No 8, 2010

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Endnote 4—Amendment history

Provision affected How affected

s 324JM ......................................... ad No 165, 2006

s 324JN.......................................... ad No 165, 2006

s 324JO.......................................... ad No 165, 2006

s 324JP .......................................... ad No 165, 2006

s 324JQ.......................................... ad No 165, 2006

am No 8, 2010

Subdivision BC

Subdivision BC.............................. ad No 165, 2006

s 324JR.......................................... ad No 165, 2006

s 324JS .......................................... ad No 165, 2006

s 324K ........................................... ad No 88, 2003

am No 165, 2006

s 324L............................................ ad No 88, 2003

am No 165, 2006; No 8, 2010; No 10, 2015

s 324M........................................... ad No 88, 2003

am No 165, 2006; No 8, 2010; No 10, 2015

s 324N ........................................... ad No 88, 2003

rs No 165, 2006

am No 46, 2011

s 324P............................................ ad No 88, 2003

am No 8, 2010

s 324Q ........................................... ad No 88, 2003

s 324R ........................................... ad No 88, 2003

am No 165, 2006; No 10, 2015

Subdivision C

s 324S............................................ ad No 88, 2003

am No 165, 2006

s 324T............................................ ad No 88, 2003

am No 47, 2016

s 324U ........................................... ad No 88, 2003

s 324V ........................................... ad No 88, 2003

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Endnote 4—Amendment history

Provision affected How affected

s 324W .......................................... ad No 88, 2003

am No 8, 2010

Subdivision D

s 324X ........................................... ad No 88, 2003

am No 125, 2008

Subdivision E

s 324Y ........................................... ad No 88, 2003

am No 165, 2006

Subdivision F

s 324Z............................................ ad No 88, 2003

s 324ZA......................................... ad No 88, 2003

Subdivision G

s 324ZB ......................................... ad No 88, 2003

Subdivision H

s 324ZC ......................................... ad No 88, 2003

Division 2

Subdivision D

s 328 .............................................. am No 47, 2016

s 330 .............................................. rs No 88, 2003

Division 3A

Division 3A ................................... ad No 88, 2003

Subdivision A

s 341A ........................................... ad No 88, 2003

s 341B ........................................... ad No 88, 2003

Subdivision B

s 341C .......................................... ad No 88, 2003

am No 165, 2006

s 341D .......................................... ad No 88, 2003

Subdivision BA

Subdivision BA ............................. ad No 165, 2006

s 341E............................................ ad No 88, 2003

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Endnote 4—Amendment history

Provision affected How affected

rs No 165, 2006

s 341F............................................ ad No 88, 2003

rs No 165, 2006

s 341G ........................................... ad No 88, 2003

rs No 165, 2006

am No 88, 2003; No 126, 2015

s 341H ........................................... ad No 88, 2003

rs No 165, 2006

s 341J............................................. ad No 88, 2003

rs No 165, 2006

am No 88, 2003

s 341JA.......................................... ad No 165, 2006

s 341JB.......................................... ad No 165, 2006

s 341JC.......................................... ad No 165, 2006

s 341JD.......................................... ad No 165, 2006

s 341JE .......................................... ad No 165, 2006

am No 8, 2010

s 341JF .......................................... ad No 165, 2006

s 341JG.......................................... ad No 165, 2006

s 341JH.......................................... ad No 165, 2006

s 341JI ........................................... ad No 165, 2006

am No 8, 2010

Subdivision BB

Subdivision BB.............................. ad No 165, 2006

s 341JJ ........................................... ad No 165, 2006

s 341JK.......................................... ad No 165, 2006

am No 8, 2010

s 341JL .......................................... ad No 165, 2006

s 341JM ......................................... ad No 165, 2006

s 341JN.......................................... ad No 165, 2006

s 341JO.......................................... ad No 165, 2006

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Endnote 4—Amendment history

Provision affected How affected

s 341JP .......................................... ad No 165, 2006

am No 8, 2010

Subdivision BC

Subdivision BC.............................. ad No 165, 2006

s 341JQ.......................................... ad No 165, 2006

s 341JR ......................................... ad No 165, 2006

s 341K .......................................... ad No 88, 2003

am No 165, 2006

s 341L ........................................... ad No 88, 2003

am No 165, 2006; No 8, 2010; No 10, 2015

s 341M .......................................... ad No 88, 2003

am No 8, 2010; No 10, 2015

s 341N .......................................... ad No 88, 2003

rs No 165, 2006

am No 46, 2011

s 341P............................................ ad No 88, 2003

am No 8, 2010

s 341Q ........................................... ad No 88, 2003

s 341R .......................................... ad No 88, 2003

am No 165, 2006; No 10, 2015

Subdivision C

s 341S ........................................... ad No 88, 2003

am No 165, 2006

s 341T ........................................... ad No 88, 2003

am No 165, 2006; No 8, 2010

s 341U ........................................... ad No 88, 2003

am No 47, 2016

s 341V ........................................... ad No 88, 2003

s 341W .......................................... ad No 88, 2003

s 341X ........................................... ad No 88, 2003

am No 8, 2010

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Endnote 4—Amendment history

Provision affected How affected

Subdivision D

s 341Y .......................................... ad No 88, 2003

Subdivision E

s 341Z ........................................... ad No 88, 2003

s 341ZA ........................................ ad No 88, 2003

s 341ZB ........................................ ad No 88, 2003

s 341ZC ........................................ ad No 88, 2003

s 341ZD ........................................ ad No 88, 2003

rep No 165, 2006

s 341ZE ........................................ ad No 88, 2003

Subdivision F ................................ rep No 165, 2006

s 341ZF ......................................... ad No 88, 2003

rep No 165, 2006

Subdivision G

s 341ZG ........................................ ad No 88, 2003

Subdivision H

s 341ZH ........................................ ad No 88, 2003

Division 4

Subdivision B

s 345A ........................................... am No 93, 2013

s 346 ............................................. am No 165, 2006

s 347 ............................................. am No 165, 2006

s 349 ............................................. rep No 165, 2006

s 350 .............................................. am No 46, 2011

Subdivision C

s 354 ............................................. am No 165, 2006

s 354A .......................................... ad No 165, 2006

s 355 ............................................. am No 165, 2006

s 355A .......................................... ad No 165, 2006

s 356 ............................................. am No 165, 2006

s 359B .......................................... ad No 165, 2006

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Endnote 4—Amendment history

Provision affected How affected

s 360 ............................................. rep No 165, 2006

Subdivision E

s 367 ............................................. am No 88, 2003; No 165, 2006

s 371 .............................................. am No 10, 2015

s 373 ............................................. am No 165, 2006

Subdivision F

s 379 ............................................. am No 165, 2006

s 379A .......................................... ad No 165, 2006

s 380 ............................................. am No 46, 2011

s 382 ............................................. am No 165, 2006

Subdivision G

s 387 ............................................. am No 165, 2006

s 388 .............................................. am No 93, 2013

s 389 .............................................. am No 93, 2013

Chapter 5A

Chapter 5A .................................... ad No 165, 2006

Part 15A

s 390K ........................................... ad No 165, 2006

s 390L............................................ ad No 165, 2006

s 390M........................................... ad No 165, 2006

s 390N ........................................... ad No 165, 2006

s 390P............................................ ad No 165, 2006

s 390Q ........................................... ad No 165, 2006

am No 8, 2010

Chapter 5B

Part 15B

s 390R ........................................... ad No 165, 2006

Chapter 5B .................................... ad No 131, 2012

Division 1

s 390SA......................................... ad No 131, 2012

s 390SB ......................................... ad No 131, 2012

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Provision affected How affected

Division 2

Subdivision A

s 390SC ......................................... ad No 131, 2012

Subdivision B

s 390SD......................................... ad No 131, 2012

am No 126, 2015

s 390SE.......................................... ad No 131, 2012

Subdivision C

s 390SF.......................................... ad No 131, 2012

am No 126, 2015

Subdivision D

s 390SG......................................... ad No 131, 2012

am No 126, 2015

Division 3

s 390SH......................................... ad No 131, 2012

s 390SI........................................... ad No 131, 2012

s 390SJ .......................................... ad No 131, 2012

s 390SK......................................... ad No 131, 2012

s 390SL.......................................... ad No 131, 2012

Division 4

s 390SM ........................................ ad No 131, 2012

Chapter 6

Part 16

Part 16 heading.............................. rs No 88, 2003

s 391 .............................................. am No 82, 2001; No 88, 2003; No 9, 2006; No 165, 2006; No 31,

2014

s 391A ........................................... ad No 88, 2003

rep No 165, 2006

Part 17

Division 1

Subdivision A

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Endnote 4—Amendment history

Provision affected How affected

s 393 .............................................. am No 146, 1999; No 139, 2010; No 59, 2015

s 394 .............................................. rs No 165, 2006

s 395 .............................................. am No 165, 2006; No 4, 2016

Subdivision B

s 397 .............................................. am No 82, 2001; No 165, 2006; No 125, 2008; No 62, 2015

s 398 .............................................. am No 139, 2010; No 59, 2015

s 399 .............................................. am No 82, 2001; No 125, 2008; No 4, 2016

Subdivision BA

Subdivision BA ............................ ad No 165, 2006

s 399A .......................................... ad No 165, 2006

am No 8, 2010

Subdivision BB

Subdivision BB ............................. ad No 125, 2008

s 399B .......................................... ad No 125, 2008

Subdivision C

s 401 .............................................. am No 4, 2016

s 402 .............................................. am No 4, 2016

Division 2

Division 2 heading ........................ rs No 165, 2006

s 403 ............................................. am No 165, 2006; No 125, 2008

s 404 ............................................. am No 82, 2001; No 165, 2006; No 73, 2008

s 405 .............................................. am No 165, 2006

s 406 .............................................. am No 165, 2006; No 125, 2008

s 406A ........................................... ad No 165, 2006

am No 125, 2008

s 406AA ........................................ ad No 125, 2008

s 406B .......................................... ad No 165, 2006

am No 125, 2008

Division 3

s 407 ............................................. am No 165, 2006

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Endnote 4—Amendment history

Provision affected How affected

s 407A ........................................... ad No 165, 2006

am No 125, 2008

s 407B .......................................... ad No 165, 2006

s 408 .............................................. am No 82, 2001; No 165, 2006; No 125, 2008

s 409 ............................................. am No 82, 2001; No 165, 2006; No 125, 2008

s 409A ........................................... ad No 165, 2006

s 409B .......................................... ad No 165, 2006

s 410 ............................................. am No 165, 2006

s 411 ............................................. am No 41, 2003

s 412 ............................................. am No 165, 2006

s 412A .......................................... am No 165, 2006; No 4, 2016

Division 4

s 413 ............................................. am No 165, 2006; No 125, 2008

s 414 ............................................. am No 165, 2006; No 125, 2008

s 416 .............................................. am No 165, 2006; No 31, 2014

s 417 .............................................. am No 165, 2006; No 125, 2008

s 418A .......................................... ad No 165, 2006

s 422 ............................................. am No 165, 2006; No 125, 2008

s 425 ............................................. am No 41, 2003

s 427 ............................................. am No 9, 2006

Division 5 ...................................... rep No 165, 2006

s 429 ............................................. rep No 165, 2006

Division 6

s 430 ............................................. am No 82, 2001; No 165, 2006; No 73, 2008; No 125, 2008

s 431 ............................................. am No 125, 2008

s 432 ............................................. am No 165, 2006; No 125, 2008

s 433 ............................................. am No 165, 2006; No 125, 2008

s 433A .......................................... ad No 165, 2006

Division 6A

Division 6A ................................... ad No 165, 2006

s 433B .......................................... ad No 165, 2006

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Endnote 4—Amendment history

Provision affected How affected

Division 7

s 436 .............................................. am No 4, 2016

s 437 ............................................. am No 165, 2006

s 438 ............................................. rs No 165, 2006

s 439 ............................................. rep No 165, 2006

s 442 ............................................. am No 82, 2001; No 165, 2006

Division 8A

Division 8A .................................. ad No 82, 2001

s 443A .......................................... ad No 82, 2001

am No 165, 2006; No 4, 2016

Division 9

s 444 ............................................. am No 82, 2001; No 125, 2008; No 4, 2016

Division 10

Subdivision AA

Subdivision AA ............................. ad No 82, 2001

s 444A ........................................... ad No 82, 2001

am No 165, 2006

s 444B .......................................... ad No 82, 2001

s 444C .......................................... ad No 82, 2001

s 444D .......................................... ad No 82, 2001

s 444E ........................................... ad No 82, 2001

s 444F ........................................... ad No 82, 2001

rep No 165, 2006

s 444G .......................................... ad No 82, 2001

am No 165, 2006

s 444H .......................................... ad No 82, 2001

am No 165, 2006

s 444J............................................. ad No 82, 2001

rep No 165, 2006

s 444K ........................................... ad No 82, 2001

rep No 165, 2006

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Endnote 4—Amendment history

Provision affected How affected

Subdivision AB

Subdivision A heading................... rs No 165, 2006

rep No 125, 2008

Subdivision AB heading................ ad No 125, 2008

s 445 ............................................. rs No 165, 2006

am No 125, 2008

s 446 ............................................. am No 165, 2006; No 125, 2008; No 59, 2015

Subdivision AC

Subdivision AC ............................. ad No 125, 2008

s 447 .............................................. rep No 165, 2006

ad No 125, 2008

s 448 ............................................. rep No 165, 2006

Subdivision B

Subdivision B heading................... rs No 165, 2006

s 449 ............................................. am No 165, 2006

s 449A .......................................... ad No 165, 2006

Subdivision BA

Subdivision BA ............................ ad No 165, 2006

s 449BA......................................... ad No 165, 2006

am No 125, 2008

s 449BB ........................................ ad No 165, 2006

am No 46, 2011

Subdivision C

Subdivision C heading................... rs No 165, 2006

s 450 ............................................. am No 82, 2001; No 165, 2006; No 125, 2008

s 450A .......................................... ad No 165, 2006

am No 125, 2008

s 450B .......................................... ad No 165, 2006

Subdivision D heading................... rep No 165, 2006

s 451 ............................................. am No 82, 2001

Subdivision E heading................... rep No 165, 2006

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Endnote 4—Amendment history

Provision affected How affected

s 452 ............................................. am No 165, 2006

Subdivision F

Subdivision F heading ................... rs No 165, 2006

s 453 ............................................. am No 165, 2006

s 454 ............................................. am No 165, 2006

Subdivision G

Subdivision G heading................... rs No 165, 2006

s 455 ............................................. am No 165, 2006; No 4, 2016

s 456 ............................................. am No 165, 2006; No 125, 2008

Subdivision H

Subdivision H heading................... ad No 165, 2006

s 456AA ....................................... ad No 165, 2006

s 456AB ........................................ ad No 165, 2006

s 456AC ........................................ ad No 165, 2006

Division 11 .................................... rep No 16, 2013

s 457 .............................................. rep No 16, 2013

Division 12

s 460 .............................................. am No 4, 2016

s 461 .............................................. am No 4, 2016

Division 13

Subdivision C

s 472 .............................................. am No 165, 2006

s 473 ............................................. am No 165, 2006

Division 14

s 478 ............................................. rep No 165, 2006

Division 14A

Division 14A ................................ ad No 165, 2006

s 480A .......................................... ad No 165, 2006

s 480B .......................................... ad No 165, 2006

s 480C .......................................... ad No 165, 2006

Division 14B

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Provision affected How affected

Division 14B ................................ ad No 165, 2006

Subdivision A

s 480D ........................................... ad No 165, 2006

s 480E............................................ ad No 165, 2006

s 480F............................................ ad No 165, 2006

s 480G ........................................... ad No 165, 2006

s 480H ........................................... ad No 165, 2006

s 480J ............................................ ad No 165, 2006

Subdivision B

s 480K .......................................... ad No 165, 2006

Subdivision C

s 480L ........................................... ad No 165, 2006

s 480M .......................................... ad No 165, 2006

Subdivision D

s 480N .......................................... ad No 165, 2006

Division 15

Subdivision A

s 486 ............................................. rep No 165, 2006

Subdivision C

Subdivision C ad No 165, 2006

s 486DA ....................................... ad No 165, 2006

s 486DB ........................................ ad No 165, 2006

Division 15A

Division 15A ................................. ad No 165, 2006

s 486E............................................ ad No 165, 2006

am No 125, 2008; No 12, 2018

s 486F ........................................... ad No 165, 2006

s 486G .......................................... ad No 165, 2006

am No 73, 2008

s 486H ........................................... ad No 165, 2006

am No 125, 2008

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Endnote 4—Amendment history

Provision affected How affected

s 486J............................................. ad No 165, 2006

Division 17

s 489 .............................................. am No 82, 2001; No 4, 2016

s 490 .............................................. am No 4, 2016

s 491 .............................................. am No 4, 2016

Division 18

s 494 .............................................. am No 131, 2012

s 495 .............................................. am No 88, 2003; No 165, 2006; No 131, 2012; No 60, 2013; No 4,

2016

s 496 .............................................. am No 75, 2014

Division 18A

Division 18A ................................. ad No 165, 2006

s 496A ........................................... ad No 165, 2006

s 496B ........................................... ad No 165, 2006

s 496C ........................................... ad No 165, 2006

am No 60, 2013

s 496D ........................................... ad No 165, 2006

Division 19

s 497 .............................................. am No 165, 2006

Division 21

s 498A ........................................... am No 165, 2006

Division 22

Division 22 .................................... ad No 165, 2006

s 498B ........................................... ad No 165, 2006

Part 19

Division 1

s 503 .............................................. am No 165, 2006

Division 2 ...................................... rep No 47, 2016

s 504 .............................................. rep No 47, 2016

s 505 .............................................. rep No 47, 2016

Division 2B

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Endnote 4—Amendment history

Provision affected How affected

Division 2B ................................... ad No 145, 2012

s 505C ........................................... ad No 145, 2012

s 505D ........................................... ad No 145, 2012

s 505E............................................ ad No 145, 2012

Division 3

s 506 .............................................. am No 145, 2012; No 47, 2016

Division 5

Subdivision A

s 514A ........................................... am No 62, 2014

s 514B ........................................... am No 165, 2006

s 514D ........................................... am No 8, 2013; No 47, 2016

Subdivision B

s 514G .......................................... am No 46, 2011

Subdivision C

s 514L............................................ rep No 62, 2014

s 514M........................................... am No 92, 1999

s 514P............................................ am No 62, 2014

Subdivision D

s 514S............................................ am No 62, 2014

s 514T............................................ am No 62, 2014

Subdivision E

s 514U ........................................... am No 92, 1999

rs No 62, 2014

s 514V ........................................... am No 62, 2014

Part 19A

Part 19A ........................................ ad No 75, 2014

s 514Y ........................................... ad No 75, 2014

s 514YA ........................................ ad No 75, 2014

s 514YB......................................... ad No 75, 2014

Part 20

s 515 .............................................. am No 88, 2003

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Endnote 4—Amendment history

Provision affected How affected

s 515AA ........................................ ad No 125, 2008

am No 12, 2018

s 515AB......................................... ad No 125, 2008

am No 12, 2018

Part 20A

Part 20A heading ........................... am No 8, 2010

Part 20A ........................................ ad No 88, 2003

s 515A ........................................... ad No 88, 2003

am No 8, 2010

Part 21

Division 1

s 516A ........................................... am No 92, 1999; No 82, 2001; No 62, 2014

Chapter 7

Part 22

s 517 .............................................. am No 82, 2001; No 10, 2015

s 517A ........................................... ad No 165, 2006

s 520 .............................................. am No 82, 2001; No 63, 2002; No 75, 2014

s 520A ........................................... ad No 165, 2006

s 521A ........................................... ad No 75, 2014

s 522B ........................................... rep No 82, 2001

Chapter 8

Part 23

Division 1

Subdivision A

s 523 .............................................. am No 82, 2001; No 63, 2002

s 524 .............................................. am No 17, 2006; No 117, 2008; No 103, 2010; No 62, 2015

s 524B ........................................... rep No 82, 2001

Subdivision B

s 525 .............................................. am No 165, 2006; No 59, 2015

Subdivision C

s 526 .............................................. am No 55, 2001

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Endnote 4—Amendment history

Provision affected How affected

Subdivision E

Subdivision E ................................ ad No 82, 2001

s 527A ........................................... ad No 82, 2001

s 527B ........................................... ad No 82, 2001

s 527C ........................................... ad No 82, 2001

s 527D ........................................... ad No 82, 2001

Subdivision F

Subdivision F ................................ ad No 165, 2006

s 527E............................................ ad No 165, 2006

Division 2

s 528 .............................................. am No 82, 2001; No 30, 2002; No 63, 2002; No 88, 2003; No 125,

2006; No 165, 2006; No 73, 2008; No 125, 2008; No 107, 2010;

No 5, 2011; No 46, 2011; No 131, 2012; No 136, 2012; No 145,

2012; No 60, 2013; No 75, 2014; No 10, 2015; No 11, 2015; No

59, 2015; No 62, 2015; No 126, 2015; No 26, 2016

Schedule 1

Schedule 1 ..................................... ad No 165, 2006

Part 1

Division 3

c 4.................................................. am No 126, 2015

Part 2

Division 1

c 8.................................................. am No 125, 2008

Division 2

c 10................................................ am No 125, 2008

Part 3

Division 1

c 15................................................ am No 125, 2008

Division 3

c 17................................................ am No 125, 2008; No 12, 2018

Division 4

c 19................................................ am No 125, 2008

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Endnote 4—Amendment history

Provision affected How affected

Part 5

Division 1

c 26................................................ am No 63, 2007; No 125, 2008

Division 2

Subdivision B

c 38................................................ am No 125, 2008; No 12, 2018

Subdivision C

c 42................................................ am No 51, 2010

Division 4

Subdivision A

c 49................................................ am No 63, 2007

Subdivision B

c 51................................................ am No 63, 2007

c 52................................................ am No 63, 2007

Subdivision C

c 53................................................ am No 63, 2007; No 51, 2010

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Endnotes

Endnote 5—Editorial changes

Endnote 5—Editorial changes

In preparing this compilation for registration, the following kinds of editorial

change(s) were made under the Legislation Act 2003.

Headings to sections 394 and 397

Kind of editorial change

Change to typeface

Details of editorial change

This compilation was editorially changed to remove the italics from the

italicised words ex officio in the headings to sections 394 and 397.

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