NATURE CONSERVATION BILL 2014

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This is a Bill, not an Act. For current law, see the Acts databases.

NATURE CONSERVATION BILL 2014

2014

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Minister for the Environment)

Nature Conservation Bill 2014

Contents

Page

Part 2.1Animal Welfare Act 1992287

Part 2.2Common Boundaries Act 1981288

Part 2.3Emergencies Act 2004289

Part 2.4Environment Protection Regulation 2005289

Part 2.5Firearms Act 1996290

Part 2.6Firearms Regulation 2008291

Part 2.7Fisheries Act 2000292

Part 2.8Heritage Act 2004295

Part 2.9Legislation Act 2001295

Part 2.10Magistrates Court (Fisheries Infringement Notices) Regulation 2004295

Part 2.11Planning and Development Act 2007296

Part 2.12Planning and Development Regulation 2008321

Part 2.13Public Unleased Land Act 2013323

2014

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Minister for the Environment)

Nature Conservation Bill 2014

A Bill for

An Act to make provision for the protection, conservation, enhancement and management of nature in the ACT, for the management of reserves, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

Chapter 1 Preliminary

Part 1.1 Introduction

1 Name of Act

This Act is the Nature Conservation Act 2014

2 Commencement

This Act commences on a day fixed by the Minister by written notice.

Note 1 The naming and commencement provisions automatically commence on the notification day (see Legislation Act

, s 75 (1)).

Note 2 A single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act

, s 77 (1)).

Note 3 If a provision has not commenced within 6 months beginning on the notification day, it automatically commences on the first day after that period (see Legislation Act

, s 79).

3 Dictionary

The dictionary at the end of this Act is part of this Act.

Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere.

For example, the signpost definition ‘motor vehicle—see the Road Transport (General) Act 1999

, dictionary.’ means that the term ‘motor vehicle’ is defined in that dictionary and the definition applies to this Act.

Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act

, s 155 and s 156 (1)).

4 Notes

A note included in this Act is explanatory and is not part of this Act.

Note See the Legislation Act

, s 127 (1), (4) and (5) for the legal status of notes.

5 Offences against Act—application of Criminal Code etc

Other legislation applies in relation to offences against this Act.

Note 1 Criminal Code

The Criminal Code

, ch 2 applies to all offences against this Act (see Code, pt 2.1).

The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability).

Note 2 Penalty units

The Legislation Act

, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

6 Objects of Act

(1) The main object of this Act is to protect, conserve and enhance the biodiversity of the ACT.

(2) This is to be achieved particularly by—

(a) protecting, conserving, enhancing, restoring and improving nature conservation, including—

(i) native species of animals and plants and their habitats; and

(ii) ecological communities; and

(iii) biological diversity at the community, species and genetic levels; and

(iv) ecosystems, and ecosystem processes and functions; and

Examples—processes and functions

1 decomposition and production of plant matter

2 energy and nutrient exchanges

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

(v) ecological connectivity; and

Example—connectivity

the movement of organisms from one place to another

(vi) landforms of natural significance, including geological and geomorphological features and processes; and

(vii) landscapes of natural significance; and

(b) promoting and supporting the management, maintenance and enhancement of biodiversity of local, regional and national significance; and

(c) promoting the involvement of, and cooperation between, Aboriginal and Torres Strait Islander people, landholders, other community members and governments in conserving, protecting, enhancing, restoring and improving biodiversity; and

(d) encouraging public appreciation, understanding and enjoyment of biodiversity; and

(e) recognising and promoting Aboriginal and Torres Strait Islander peoples’ role in, and knowledge of, the conservation and ecologically sustainable use of biodiversity; and

(f) recognising the significant stewardship role that landholders have in managing the natural assets on their land; and

(g) ensuring that members of the public have—

(i) access to reliable and relevant information in appropriate forms to facilitate a good understanding of nature conservation issues; and

(ii) opportunities to participate in policy development and nature conservation planning; and

(h) promoting the principles of ecologically sustainable development mentioned in the Environment Protection Act 1997

, section 2 (2).

(3) In exercising a function under this Act, the Minister must have regard to the objects of this Act.

Part 1.2 Relationship to other laws

7 Application of Act to Emergencies Act 2004

(1) This Act does not apply to the exercise or purported exercise by a relevant person of a function under the Emergencies Act 2004

for the purpose of—

(a) protecting life or property; or

(b) controlling, extinguishing or preventing the spread of a fire.

(2) In this section:

relevant person means—

(a) a member of the ambulance service; or

(b) a member of fire and rescue; or

(d) a member of the SES; or

(e) any other person under the control of—

(i) the chief officer (ambulance service); or

(ii) the chief officer (fire and rescue); or

(iii) the chief officer (rural fire service); or

(iv) the chief officer (SES); or

(f) a police officer.

8 Relationship to environment laws

(1) This Act must be construed and administered in a way that is consistent with an environment law unless the contrary intention appears from this Act or that law.

(2) This Act is taken to be consistent with an environment law to the extent that it is capable of operating concurrently with that law.

(3) In this section:

environment law means—

(a) the Environment Protection Act 1997

; and

(b) the Fisheries Act 2000

; and

(d) any other law of the Territory that has as 1 of its objects or purposes the protection of the environment.

Part 1.3 Important concepts

9 What is nature?

In this Act:

nature means all aspects of nature including—

(a) ecosystems and their constituent parts; and

(b) all natural and physical resources; and

(d) the characteristics of places, however large or small, that contribute to their—

(i) biological diversity and integrity; or

(ii) intrinsic or scientific value.

10 What is conservation?

In this Act:

conservation means the protection and maintenance of nature while allowing for its ecologically sustainable use.

11 What is an animal?

In this Act:

animal—

(a) means a member, alive or dead, of the animal kingdom; and

(b) includes—

(i) a part of an animal; and

Examples

skin, feathers, horns, shell, egg yolk

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

(ii) animal reproductive material; but

(i) a human; or

(ii) a fish unless the fish—

(A) has special protection status; or

Note Special protection status—see s 107.

(B) is a protected native species; or

Note Protected native species—see s 108.

(iii) an invertebrate unless the invertebrate—

(A) has special protection status; or

(B) is a protected native species.

12 What is a native animal?

In this Act:

native animal—

(a) means an animal of a native species; but

(b) does not include a pest animal.

Note Pest animal—see the Pest Plants and Animals Act 2005

, dictionary.

13 What is a plant?

In this Act:

plant—

(a) means a member, alive or dead, of the—

(i) plant kingdom; or

(ii) fungus kingdom; and

(b) includes—

(i) a part of a plant; and

(ii) plant reproductive material.

14 What is a native plant?

In this Act:

native plant—

(a) means a plant of a native species; but

(b) does not include a pest plant.

Note Pest plant—see the Pest Plants and Animals Act 2005

, dictionary.

15 What is a species?

(1) In this Act:

species—

(a) means a group of biological entities that—

(i) interbreed to produce fertile offspring; or

(ii) possess common characteristics derived from a common gene pool; and

(b) includes—

(i) a subspecies; and

(ii) a distinct population of biological entities prescribed by regulation to be a species.

(2) In this section:

subspecies 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.

16 What is a native species?

(1) In this Act:

native species—

(a) means a species—

(i) that is indigenous to—

(A) Australia or an external Territory; or

(B) the coastal sea of Australia or an external Territory; or

(D) the continental shelf; or

(E) the exclusive economic zone; or

(ii) members of which periodically or occasionally visit—

(A) Australia or an external Territory; or

(B) the coastal sea of Australia or an external Territory; or

(iii) that was present in Australia or an external Territory before 1400; and

(b) includes a species prescribed by regulation to be a native species; but

(2) In this section:

coastal sea, of Australia or an external Territory—see the Acts Interpretation Act 1901

(Cwlth), section 15B (4) (Application of Acts in coastal sea).

continental shelf—see the Seas and Submerged Lands Act 1973

(Cwlth), section 3.

exclusive economic zone—see the Seas and Submerged Lands Act 1973

(Cwlth), section 3.

seabed includes—

(a) the surface of a coral formation; and

(b) subsoil of seabed (including coral beneath the surface of a coral formation).

17 What is an ecological community?

In this Act:

ecological community means the extent in nature in the ACT of an assemblage of native species that—

(a) inhabits a particular area in nature; and

(b) satisfies the criteria prescribed by regulation (if any).

18 What is a member of a species or ecological community?

In this Act:

member includes—

(a) for a species of animal—

(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 that reproductive material; and

(iii) the whole or any part of the dead body of an animal of the species; and

(b) for 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 that reproductive material; and

(iii) the whole or any part of a plant of the species that has died; and

(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 that 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.

19 What is biodiversity?

In this Act:

biodiversity—

(a) 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

(b) includes diversity—

(i) within species and between species; and

(ii) of ecosystems.

Chapter 2 Administration

Part 2.1 Conservator of flora and fauna

20 Conservator—appointment

(1) The director-general must appoint a public servant as the Conservator of Flora and Fauna (the conservator).

Note 1 For the making of appointments (including acting appointments), see the Legislation Act

, pt 19.3.

Note 2 In particular, a person may be appointed for a particular provision of a law (see Legislation Act

, s 7 (3)) and an appointment may be made by naming a person or nominating the occupant of a position (see Legislation Act

, s 207).

(2) However, the director-general may appoint a person as the conservator only if satisfied that the person has suitable qualifications and experience to exercise the functions of the conservator.

(3) An appointment is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act

21 Conservator—functions

(1) The conservator’s main functions are—

(a) to develop and oversee policies, programs and plans for the effective management of nature conservation in the ACT; and

(b) to monitor the state of nature conservation in the ACT; and

(c) to provide information to the commissioner for sustainability and the environment for inclusion in a state of the environment report.

Note State of the environment report—see s (5).

(2) The conservator has any other function given to the conservator under this Act or another territory law.

(3) In exercising a function, the conservator must ensure that it is exercised in a way that is consistent with implementing—

(a) the objects of this Act; and

Note The objects of this Act are set out in s 6.

(b) any conservator guidelines; and

Note Conservator guidelines—see s 23.

Note Nature conservation strategy, for the ACT—see s 46.

(4) In exercising a function, the conservator may have regard to any other relevant matter, including the following:

(a) the findings of a biodiversity research and monitoring program;

Note Biodiversity research and monitoring program—see s 24.

(b) an action plan for a species, ecological community or process;

Note Action plan—see s 97.

Note Reserve management plan, for a reserve—see s 173.

(d) any response of the government to—

(i) a state of the environment report under the Commissioner for Sustainability and the Environment Act 1993

, section 19 (3) (State of the environment report); or

(ii) a special report under the Commissioner for Sustainability and the Environment Act 1993

, section 21 (2) (Special reports);

Example

kangaroo management plan

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

(e) any other government policy or plan relating to nature conservation.

(5) In this section:

state of the environment report means a state of the environment report under the Commissioner for Sustainability and the Environment Act 1993

22 Conservator—delegation

The conservator may delegate to a conservation officer the conservator’s functions under this Act or another territory law.

Note For the making of delegations and the exercise of delegated functions, see the Legislation Act

, pt 19.4.

23 Conservator—guidelines

(1) The conservator may make guidelines about how the conservator is to exercise the conservator’s functions under this Act (the conservator guidelines).

Note The power to make guidelines includes the power to amend or repeal the guidelines. The power to amend or repeal the guidelines is exercisable in the same way, and subject to the same conditions, as the power to make the guidelines (see Legislation Act

, s 46).

(2) In preparing the conservator guidelines, the conservator must consult the scientific committee.

(3) A conservator guideline is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act

24 Meaning of biodiversity research and monitoring program—pt 2.1

In this part:

biodiversity research and monitoring program means a program designed to monitor the—

(a) state of nature conservation generally in the ACT; and

(b) effective management of nature conservation in the ACT.

25 Biodiversity research and monitoring program—conservator to prepare

(1) The conservator must, every 2 years, prepare a biodiversity research and monitoring program for the next 2 years.

(2) In preparing the biodiversity research and monitoring program, the conservator must—

(a) consult the scientific committee about—

(i) priorities for the program; and

(ii) appropriate methods for monitoring; and

(b) consider the potential for engaging community organisations in monitoring activities; and

Example

using volunteers with Frogwatch to assist in surveying frog numbers

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

(3) The biodiversity research and monitoring program is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act

26 Biodiversity research and monitoring program—conservator to implement

(1) The conservator—

(a) must take reasonable steps to implement the biodiversity research and monitoring program; and

(b) may commission another entity to implement all or part of the program.

(2) The conservator must at the end of each biodiversity research and monitoring program—

(a) prepare a report on the implementation of the program (a biodiversity research and monitoring program report); and

(b) make the report publicly accessible.

Example—publically accessible

published on the directorate website

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

(3) However, if the conservator considers that a plant or animal could be threatened by the disclosure of a particular detail in a finding, the conservator—

(a) need not include the particular detail; but

(b) must instead include a general statement of the finding.

Part 2.2 ACT parks and conservation service

27 ACT parks and conservation service—establishment

(1) The ACT Parks and Conservation Service is established.

Note Establish includes continue in existence (see Legislation Act

, dict, pt 1).

(2) The ACT parks and conservation service is made up of the conservation officers.

Note The conservator is a conservation officer. Other conservation officers are appointed by the director-general under s 28.

(3) The ACT parks and conservation service must assist—

(a) the conservator in the exercise of the conservator’s functions; and

(b) for unleased land, or public land, that is a reserve—the custodian for the land in the exercise of the custodian’s functions.

Note Custodian, for an area of land—see the Planning and Development Act 2007

, s 333.

(4) The ACT parks and conservation service has any other function given to the service under this Act or another territory law.

Part 2.3 Conservation officers

28 Conservation officers—appointment

(1) The director-general may appoint a person as a conservation officer.

Note 1 For the making of appointments (including acting appointments), see the Legislation Act

, pt 19.3.

Note 2 In particular, a person may be appointed for a particular provision of a law (see Legislation Act

, s 7 (3)) and an appointment may be made by naming a person or nominating the occupant of a position (see Legislation Act

, s 207).

(2) The conservator is a conservation officer.

29 Conservation officers—identity cards

(1) The director-general must give a conservation officer an identity card stating the person’s name and that the person is a conservation officer.

(2) The identity card must show—

(a) a recent photograph of the conservation officer; and

(b) the card’s date of issue and expiry; and

(3) A person commits an offence if the person—

(a) stops being a conservation officer; and

(b) does not return the person’s identity card to the director-general as soon as practicable (but not later than 7 days) after the day the person stops being a conservation officer.

Maximum penalty: 1 penalty unit.

(4) Subsection (3) does not apply to a person if the person’s identity card has been—

(a) lost or stolen; or

(b) destroyed by someone else.

Note The defendant has an evidential burden in relation to the matters mentioned in s (4) (see Criminal Code

, s 58).

(5) An offence against this section is a strict liability offence.

30 Conservation officers—power not to be exercised before identity card shown

A conservation officer may exercise a power under a territory law in relation to a person only if the conservation officer first shows the person the conservation officer’s identity card.

Part 2.4 Scientific committee

31 Scientific committee—establishment

The scientific committee is established.

32 Scientific committee—functions

The scientific committee has the following functions:

(a) to advise the Minister about nature conservation;

(b) to advise the conservator about nature conservation;

Note A provision of a law that gives an entity (including a person) a function also gives the entity powers necessary and convenient to exercise the function (see Legislation Act

, s 196 and dict, pt 1, def entity).

33 Scientific committee—Minister’s directions

(1) The Minister may direct the scientific committee, in writing, to provide advice about a stated nature conservation matter.

(2) The Minister must give a copy of each Minister’s direction to the conservator.

(3) A report prepared by the conservator under the Annual Reports (Government Agencies) Act 2004

for a financial year must include—

(a) a copy of each Minister’s direction given during the year; and

(b) a statement by the conservator about action taken during the year to give effect to any Minister’s direction (whether given before or during the year).

34 Scientific committee—membership

The scientific committee is made up of 7 members appointed by the Minister under section 35.

35 Scientific committee—appointment of members

(1) The Minister must appoint 7 members to the scientific committee.

Note 1 For the making of appointments (including acting appointments), see the Legislation Act

, pt 19.3.

Note 2 In particular, a person may be appointed for a particular provision of a law (see Legislation Act

, s 7 (3)) and an appointment may be made by naming a person or nominating the occupant of a position (see Legislation Act

, s 207).

Note 3 Certain Ministerial appointments require consultation with an Assembly committee and are disallowable (see Legislation Act

, div 19.3.3).

(2) The Minister must ensure that at least 4 members of the committee are not public servants.

(3) The Minister must not appoint a person to the committee unless satisfied that the person has appropriate scientific expertise in biology, ecology, conservation science, or conservation management.

(4) A member holds office as a part-time member.

(5) The appointment of a member is for not longer than 3 years.

Note A person may be reappointed to a position if the person is eligible to be appointed to the position (see Legislation Act

, s 208 and dict, pt 1, def appoint).

(6) The conditions of appointment of a member under this section are the conditions stated in the appointment, subject to any determination under the Remuneration Tribunal Act 1995

(7) An appointment is a disallowable instrument.

Note A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act

36 Scientific committee—chair and deputy chair

(1) The Minister must appoint a chair and deputy chair of the scientific committee from the members appointed under section 35.

(2) However, the chair and deputy chair must not be public servants.

37 Scientific committee—secretary

The director-general must nominate a public servant who is not a member appointed under section 35 to be the secretary of the scientific committee.

38 Scientific committee—ending appointments

The Minister may end the appointment of a member—

(a) for misbehaviour; or

(b) if the member, without reasonable excuse, contravenes section 39; or

(d) for physical or mental incapacity, if the incapacity substantially affects the exercise of the member’s functions.

Note A person’s appointment also ends if the person resigns (see Legislation Act

, s 210).

39 Scientific committee—disclosure of interests

(1) If a member of the scientific committee has a material interest in an issue being considered, or about to be considered, by the committee, the member must disclose the nature of the interest at a committee meeting as soon as practicable after the relevant facts come to the member’s knowledge.

Note Material interest is defined in s (4). The definition of indirect interest in s (4) applies to the definition of material interest.

(2) The disclosure must be recorded in the committee’s minutes and, unless the committee otherwise decides, the member must not—

(a) be present when the committee considers the issue; or

(b) take part in a decision of the committee on the issue.

(3) Any other committee member who also has a material interest in the issue must not be present when the committee is considering its decision under subsection (2).

(4) In this section:

associate, of a person, means—

(a) the person’s business partner; or

(b) a close friend of the person; or

executive officer, of a corporation, means a person (however described) who is concerned with, or takes part in, the corporation’s management, whether or not the person is a director of the corporation.

indirect interest—without limiting the kinds of indirect interests a person may have, a person has an indirect interest in an issue if any of the following has an interest in the issue:

(a) an associate of the person;

(b) a corporation if the corporation has not more than 100 members and the person, or an associate of the person, is a member of the corporation;

(d) a corporation if the person, or an associate of the person, is an executive officer of the corporation;

(e) the trustee of a trust if the person, or an associate of the person, is a beneficiary of the trust;

(f) a member of a firm or partnership if the person, or an associate of the person, is a member of the firm or partnership;

(g) someone else carrying on a business if the person, or an associate of the person, has a direct or indirect right to participate in the profits of the business.

material interest—a committee member has a material interest in an issue if the member has—

(a) a direct or indirect financial interest in the issue; or

(b) a direct or indirect interest of any other kind if the interest could conflict with the proper exercise of the member’s functions in relation to the committee’s consideration of the issue.

40 Scientific committee—meetings

(1) Meetings of the scientific committee are to be held when and where it decides.

(2) However, the chair must call a meeting—

(a) as often as needed for the committee to efficiently carry out its functions; and

(b) if asked by the Minister.

(3) The chair must give the other members of the committee at least 5 working days written notice of a meeting.

41 Scientific committee—presiding member at meetings

(1) The chair presides at all meetings at which the chair is present.

(2) If the chair is absent, the deputy chair presides.

(3) If the chair and the deputy chair are absent, the member chosen by the members present presides.

42 Scientific committee—quorum at meetings

Business may be carried on at a meeting of the scientific committee only if at least ¹/2 of the appointed members are present.

43 Scientific committee—voting at meetings

(1) At a meeting of the scientific committee, each member has a vote on each question to be decided.

(2) A question is decided by a majority of the votes of the members present and voting but, if the votes are equal, the member presiding has the deciding vote.

44 Scientific committee—conduct of meetings

(1) The scientific committee may conduct its proceedings (including its meetings) as it considers appropriate.

(2) The scientific committee must keep minutes of its meetings.

Part 2.5 Advisory committees

45 Advisory committees

(1) The Minister may set up advisory committees that the Minister considers necessary.

(2) An advisory committee may decide how to exercise its functions.

(3) However, an advisory committee is subject to the direction of the Minister in the exercise of its functions.

Chapter 3 Nature conservation strategy for the ACT

46 What is the nature conservation strategy for the ACT?

In this Act:

nature conservation strategy, for the ACT, means a strategy for the ACT, notified under section 53 (Draft strategy—Minister’s approval and notification).

Note The power to prepare a draft nature conservation strategy includes the power to amend or repeal the draft strategy. The power to amend or repeal the draft strategy is exercisable in the same way, and subject to the same conditions, as the power to make the draft strategy (see Legislation Act

, s 46).

47 What is a draft nature conservation strategy?—ch 3

In this chapter:

draft nature conservation strategy, for the ACT—

(a) means a statement of—

(i) proposals about the protection, management and conservation of—

(A) native species indigenous to the ACT; and

(B) significant ecosystems of the ACT; and

(ii) strategies to address actual and potential impacts of climate change; and

(b) includes anything required to be included by a conservator guideline.

Note Conservator guidelines—see s 23.

48 Draft nature conservation strategy—conservator to prepare

(1) The conservator must prepare a draft nature conservation strategy for the ACT.

Note Power to make a statutory instrument includes power to make different provision in relation to different matters or different classes of matters, and to make an instrument that applies differently by reference to stated exceptions or factors (see Legislation Act

, s 48).

(2) In preparing the draft nature conservation strategy, the conservator must consider—

(a) landscape scale approaches across tenures; and

(b) restoration of habitats; and

(d) threats to biodiversity; and

(e) the impacts of climate change; and

(f) biodiversity research and monitoring program reports.

49 Draft nature conservation strategy—consultation with entities

In preparing a draft nature conservation strategy for the ACT, the conservator must consult—

(a) the scientific committee; and

(b) the commissioner for sustainability and the environment.

50 Draft nature conservation strategy—public consultation

(1) If the conservator prepares a draft nature conservation strategy, the conservator must also prepare a notice about the draft nature conservation strategy (a public consultation notice).

(2) A public consultation notice must—

(a) state that—

(i) anyone may give a written submission to the conservator about the draft nature conservation strategy; and

(ii) submissions may be given to the conservator only during the period starting on the day the public consultation notice is notified under the Legislation Act

and ending on a stated day, being a day at least 6 weeks after the day it is notified (the public consultation period); and

(b) include the draft nature conservation strategy.

(3) A public consultation notice is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act

(4) If the conservator notifies a public consultation notice for a draft nature conservation strategy—

(a) anyone may give a written submission to the conservator about the draft strategy; and

(b) the submission may be given to the conservator only during the public consultation period for the draft strategy; and

(5) The conservator may make arrangements for people with particular communication needs to ensure they have adequate opportunity to comment on the draft plan.

51 Draft strategy—revision and submission to Minister

(1) If the public consultation period for a draft nature conservation strategy has ended, the conservator must—

(a) consider any submissions received during the public consultation period; and

(b) make any revisions to the draft strategy that the conservator considers appropriate.

(2) The conservator must then submit the draft strategy to the Minister for approval.

(3) The draft strategy must be accompanied by a report setting out the issues raised in any submissions given to the conservator during the public consultation period for the draft strategy.

52 Draft strategy—Minister to approve, return or reject

If the conservator submits a draft nature conservation strategy to the Minister for approval, the Minister must—

(a) approve the draft strategy; or

(b) return the draft strategy to the conservator and direct the conservator to take 1 or more of the following actions in relation to it:

(i) carry out stated further consultation;

(ii) consider a relevant report;

Example

a report of the commissioner for sustainability and the environment under the Commissioner for Sustainability and the Environment Act 1993

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

(iii) revise the draft strategy in a stated way; or

53 Draft strategy—Minister’s approval and notification

(1) A draft nature conservation strategy approved by the Minister under section 52 (a) or section 56 (3) is a nature conservation strategy.

(2) A nature conservation strategy is a disallowable instrument.

Note 1 A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act

Note 2 The power to make a nature conservation strategy includes the power to amend or repeal the strategy. The power to amend or repeal the strategy is exercisable in the same way, and subject to the same conditions, as the power to make the strategy (see Legislation Act

, s 46).

Note 3 Minor amendments may be made to the strategy under s 56.

54 Draft strategy—Minister’s direction to revise etc

(1) This section applies if the Minister gives the conservator a direction under section 52 (b).

(2) The conservator must—

(a) give effect to the direction; and

(b) resubmit the draft strategy to the Minister for approval.

(3) The Minister must decide, under section 52, what to do with the resubmitted draft strategy.

55 Draft strategy—Minister’s rejection

(1) If the Minister rejects a draft nature conservation strategy under section 52 (c), the Minister must prepare a notice stating that the draft strategy is rejected (a rejection notice).

(2) A rejection notice is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act

56 Nature conservation strategy—minor amendments

(1) This section applies if—

(a) a nature conservation strategy for the ACT is in force (the existing strategy); and

(b) the conservator considers that minor amendments to the existing strategy are appropriate.

(2) The conservator—

(a) may prepare a new draft nature conservation strategy, incorporating the minor amendments into the existing strategy; and

(b) need not comply with the requirements in this part; and

(3) If the conservator submits a new draft nature conservation strategy to the Minister for approval, the Minister must—

(a) approve the strategy; or

(b) reject the strategy.

Note The new draft nature conservation strategy approved by the Minister is a nature conservation strategy and is a disallowable instrument (see s 53).

(4) In this section:

minor amendment, of a nature conservation strategy for the ACT, means an amendment that will improve the effectiveness or technical efficiency of the strategy without changing the substance of the strategy.

Examples

1 minor correction to improve effectiveness

2 omission of something redundant

3 technical adjustment to improve efficiency

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

57 Nature conservation strategy—conservator to implement

If a nature conservation strategy is in force for the ACT, the conservator must take reasonable steps to implement the strategy.

58 Nature conservation strategy—monitoring and review

(1) The conservator must monitor the effectiveness of the nature conservation strategy for the ACT.

(2) The conservator must report to the Minister about the nature conservation strategy for the ACT at least once every 5 years.

(3) The conservator must review the nature conservation strategy every 10 years after the plan commences.

(4) However, the Minister may extend the time for conducting the review.

(5) In reviewing the nature conservation strategy, the conservator—

(a) must consider biodiversity research and monitoring program reports; and

(b) may—

(i) consult the scientific committee; and

(ii) make recommendations to the Minister about the strategy.

Chapter 4 Threatened native species and ecological communities

Part 4.1 Threatened native species

59 What is a threatened native species?

In this Act:

threatened native species means a native species listed on the threatened native species list.

Note Native species—see s 16.

60 What is a threatened native species list?

In this Act:

threatened native species list means a list of species notified under section 89 (Final version of list and notification).

61 Threatened native species list—categories

The Minister must make a threatened native species list—

(a) containing the species eligible to be included on the list; and

(b) divided into the following categories:

(i) extinct;

(ii) extinct in the wild;

(iii) critically endangered;

(iv) endangered;

(v) vulnerable;

(vi) conservation dependent;

(vii) provisional.

62 Threatened native species list—eligibility for categories

(1) A native species is eligible to be included in the extinct category on the threatened native species list if 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 on the threatened native species list if—

(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 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 on the threatened native species list if it is facing an extremely high risk of extinction in the wild in the immediate future.

(4) A native species is eligible to be included in the endangered category on the threatened native species list if—

(a) it is not critically endangered; but

(b) it is facing a very high risk of extinction in the wild in the near future.

(5) A native species is eligible to be included in the vulnerable category on the threatened native species list if—

(a) it is not critically endangered or endangered; but

(b) it is facing a high risk of extinction in the wild in the medium-term future.

(6) A native species is eligible to be included in the conservation dependent category on the threatened native species list if the species is the subject of a native species conservation plan and the ending of the plan may result in the species becoming vulnerable, endangered or critically endangered.

(7) A native species is eligible to be included in the provisional category on the threatened native species list if—

(a) there is a strong decline in the number of members of the species in the ACT and surrounding region; or

(b) the species—

(i) occurs or is likely to occur in the ACT; and

(ii) is listed as a threatened native species under a law of another jurisdiction corresponding, or substantially corresponding, to this Act; or

(c) the species was listed in the extinct category of the threatened native species list but has been definitely located in nature since it was last listed as extinct.

Note See also s 95 about rediscovery of species that were extinct.

(8) A native species is no longer eligible to be included in the provisional category on the threatened native species list if it has been in the category for 18 months.

63 Threatened native species list—eligibility criteria

(1) The Minister must develop criteria to be used in deciding whether a species is eligible to be included in a category on the threatened native species list (the threatened native species list criteria).

Note The power to make an instrument includes the power to amend or repeal the instrument (see Legislation Act

, s 46).

(2) The threatened native species list criteria may only include scientific matters.

(3) In developing the threatened native species list criteria, the Minister must have regard to—

(a) the conservation of the species; and

(b) the ecological significance of the species; and

(4) In developing the threatened native species list criteria, the Minister must consult—

(a) the conservator; and

(b) the scientific committee.

(5) The threatened native species list criteria are a disallowable instrument.

Note A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act

64 Threatened native species list—criteria to review

(1) This section applies if the conservator, or the scientific committee, considers that the threatened native species list criteria should be reviewed because—

(a) the criteria are not adequately identifying species eligible to be included in a category on the threatened native species list; or

(b) there are changes to national or international standards relating to the criteria.

(2) The conservator or the scientific committee must recommend to the Minister that the Minister review the threatened native species list criteria.

(3) The Minister must consider the recommendation and may—

(a) review the threatened native species list criteria under section 63; or

(b) refuse to review the threatened native species list criteria.

(4) A decision to refuse to review the threatened native species list criteria, including a statement of reasons for the decision, is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act

Part 4.2 Threatened ecological communities

65 What is a threatened ecological community?

In this Act:

threatened ecological community means an ecological community listed in the threatened ecological communities list.

Note Ecological community—see s 17.

66 What is a threatened ecological communities list?

In this Act:

threatened ecological communities list means a list of ecological communities notified under section 89 (Final version of list and notification).

67 Threatened ecological communities list—categories

The Minister must make a threatened ecological communities list—

(a) containing the ecological communities eligible to be included in the list; and

(b) divided into the following categories:

(i) critically endangered;

(ii) endangered;

(iii) vulnerable;

(iv) provisional.

68 Threatened ecological communities list—eligibility for categories

(1) An ecological community is eligible to be included in the critically endangered category in the threatened ecological communities list if it is facing an extremely high risk of extinction in the wild in the immediate future.

(2) An ecological community is eligible to be included in the endangered category in the threatened ecological communities list if—

(a) it is not critically endangered; but

(b) it is facing a very high risk of extinction in the wild in the near future.

(3) An ecological community is eligible to be included in the vulnerable category in the threatened ecological communities list if—

(a) it is not critically endangered or endangered; but

(b) it is facing a high risk of extinction in the wild in the medium-term future.

(4) An ecological community is eligible to be included in the provisional category in the threatened ecological communities list if—

(a) there is a strong decline in the size of the ecological community in the ACT and the surrounding region; or

(b) the ecological community—

(i) exists or is likely to exist in the ACT; and

(ii) is listed as a threatened ecological community under a law of another jurisdiction corresponding, or substantially corresponding, to this Act.

(5) An ecological community is no longer eligible to be included in the provisional category in the threatened ecological communities list if it has been in the category for 18 months.

69 Threatened ecological communities list—eligibility criteria

(1) The Minister must develop criteria to be used in deciding whether an ecological community is eligible to be included in a category in the threatened ecological communities list (the threatened ecological communities list criteria).

(2) The threatened ecological communities list criteria may only include scientific matters.

(3) In developing the threatened ecological communities list criteria, the Minister must have regard to—

(a) the conservation of the ecological community; and

(b) the ecological significance of the ecological community; and

(4) In developing the threatened ecological communities list criteria, the Minister must consult—

(a) the conservator; and

(b) the scientific committee.

(5) The threatened ecological communities list criteria are a disallowable instrument.

Note A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act

70 Threatened ecological communities list criteria—review

(1) This section applies if the conservator, or the scientific committee, considers that the threatened ecological communities list criteria should be reviewed because—

(a) the criteria are not adequately identifying ecological communities eligible to be included in a category on the threatened ecological communities list; or

(b) there are changes to national or international standards relating to the criteria.

(2) The conservator or the scientific committee must recommend to the Minister that the Minister review the threatened ecological communities list criteria.

(3) The Minister must consider the recommendation and may—

(a) review the threatened ecological communities list criteria under section 69; or

(b) refuse to review the threatened ecological communities list criteria.

(4) A decision to refuse to review the threatened ecological communities list criteria, including a statement of reasons for the decision, is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act

Part 4.3 Key threatening processes

71 What is a threatening process?

In this Act:

threatening process means a process that threatens, or may threaten, the survival, abundance or evolutionary development of a native species or ecological community.

Note Ecological community—see s 17.

Native species—see s 16.

72 What is a key threatening process?

In this Act:

key threatening process means a threatening process listed in the key threatening processes list.

73 What is a key threatening processes list?

In this Act:

key threatening processes list means a list of threatening processes notified under section 89 (Final version of list and notification).

74 Key threatening processes list

The Minister must make a key threatening processes list containing the threatening processes eligible to be included in the list.

75 Key threatening processes list—eligibility

A threatening process is eligible to be included in the key threatening processes list if—

(a) it could cause—

(i) a native species to become eligible for listing in the threatened native species list in a category other than conservation dependent; or

(ii) an ecological community to become eligible for listing in the threatened ecological communities list; or

(b) it could cause—

(i) a threatened native species to become eligible to be listed in the threatened native species list in another category representing a higher degree of endangerment; or

(ii) a threatened ecological community to become eligible to be listed in the threatened ecological communities list in another category representing a higher degree of endangerment; or

(c) it adversely affects 2 or more threatened native species (other than conservation dependent species) or 2 or more threatened ecological communities.

76 Key threatening processes list—eligibility criteria

(1) The Minister must develop criteria to be used in deciding whether a threatening process is eligible to be included on the key threatening processes list (the key threatening processes list criteria).

(2) The key threatening processes list criteria may only include scientific matters.

(3) In developing the key threatening processes list criteria, the Minister must have regard to—

(a) the conservation of threatened native species and threatened ecological communities; and

(b) the ecological significance of threatened native species and threatened ecological communities; and

(4) In developing the key threatening processes list criteria, the Minister must consult—

(a) the conservator; and

(b) the scientific committee.

(5) The key threatening processes list criteria are a disallowable instrument.

Note A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act

77 Key threatening processes list criteria—review

(1) This section applies if the conservator, or the scientific committee, considers that the key threatening processes list criteria should be reviewed because—

(a) the criteria are not adequately identifying processes eligible to be included on the key threatening processes list; or

(b) there are changes to national or international standards relating to the criteria.

(2) The conservator or the scientific committee must recommend to the Minister that the Minister review the key threatening processes list criteria.

(3) The Minister must consider the recommendation and may—

(a) review the key threatening processes list criteria under section 76; or

(b) refuse to review the key threatening processes list criteria.

(4) A decision to refuse to review the key threatening processes list criteria, including a statement of reasons for the decision, is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act

Part 4.4 Including, transferring and omitting items in list

78 Definitions—pt 4.4

In this part:

item means—

(a) for the threatened native species list—a native species; or

(b) for the threatened ecological communities list—an ecological community; or

list means—

(a) the threatened native species list; or

(b) the threatened ecological communities list; or

nomination means a nomination mentioned in—

(a) section 79; or

(b) section 81.

transfer, an item within a list, means transfer the item from 1 category in the list to another category in the list.

79 Nominations—public may nominate item at any time

(1) A person may, at any time, nominate an item to be—

(a) included in a list; or

(b) transferred within a list; or

(2) A nomination must—

(a) comply with any requirements prescribed by regulation for the nomination; and

(b) be given to the scientific committee.

Note If a form is approved under s 363 for a nomination, the form must be used.

(3) A person who gives the scientific committee a nomination may, in writing, withdraw the nomination at any time.

80 Nominations—scientific committee may reject nomination

(1) The scientific committee may reject a nomination if the scientific committee considers that—

(a) the nomination is vexatious, frivolous or not made in good faith; or

(b) a requirement prescribed by regulation for the nomination has not been complied with.

(2) If the scientific committee rejects a nomination, the scientific committee must take reasonable steps to tell the person who made the nomination about the rejection and the reason for it.

81 Nominations—scientific committee may nominate items itself

The scientific committee may, at any time, nominate an item to be—

(a) included in a list; or

(b) transferred within a list; or

82 Nominations—public consultation

(1) This section applies if the scientific committee—

(a) receives a nomination under section 79 that is not rejected under section 80; or

(b) nominates an item itself under section 81.

(2) The scientific committee may prepare a notice about the nomination (a public consultation notice).

(3) A public consultation notice must—

(a) state that—

(i) anyone may give a written submission to the scientific committee about the nomination; and

(ii) submissions may be given to the scientific committee only during the period starting on the day the public consultation notice is notified under the Legislation Act

and ending on a stated day, being a day at least 6 weeks after the day it is notified (the public consultation period); and

(b) include the nomination.

Note The public consultation notice need not contain the precise location of the species (see s 357).

(4) A public consultation notice is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act

(5) If the scientific committee notifies a public consultation notice for a nomination—

(a) anyone may give a written submission to the scientific committee about the nomination; and

(b) the submission may be given to the scientific committee only during the public consultation period for the nomination; and

(6) The scientific committee may make arrangements for people with particular communication needs to ensure they have adequate opportunity to comment on the nomination.

83 Nominations—scientific committee to carry out listing assessment

(1) This section applies if—

(a) the scientific committee does not notify a public consultation notice for a nomination under section 82 within 4 weeks after receiving the nomination or nominating the item itself; or

(b) the public consultation period for a nomination has ended.

(2) The scientific committee must assess the nominated item (a listing assessment).

(3) A listing assessment for a nominated item must assess—

(a) whether the item is eligible for inclusion in, or transfer within, a list; and

(b) if eligible for inclusion or transfer—the category (if any) of the list the item is eligible to be included in or transferred to.

Note Eligibility for the threatened native species list is dealt with in s 62.

Eligibility for the threatened ecological communities list is dealt with in s 68.

Eligibility for the key threatening processes list is dealt with in s 75.

(4) In carrying out a listing assessment for a nominated item, the scientific committee must consider—

(a) if public consultation about the item has been carried out under section 82—any submissions received during the public consultation period for the item; and

(b) the eligibility of the item for the list under—

(i) for a species—the threatened native species list criteria; or

(ii) for an ecological community—the threatened ecological communities list criteria; or

(iii) for a threatening process—the key threatening processes list criteria; and

Note Threatened native species list criteria—see s 63.

Threatened ecological communities list criteria—see s 69.

Key threatening processes list criteria—see s 76.

(c) the effect that including, transferring or omitting the item could have on the survival of the species or ecological community concerned.

84 Scientific committee to prepare listing advice

(1) This section applies if the scientific committee—

(a) has carried out a listing assessment of a nominated item; and

(b) considers that the item is eligible to be—

(i) included in a list; or

(ii) transferred within a list; or

(iii) omitted from a list.

(2) The scientific committee must prepare an advice about the item (a listing advice) for the Minister.

Note The listing advice need not contain the precise location of a species or community (see s 357).

(3) A listing advice must set out—

(a) the grounds on which the item is eligible to be included in, transferred within, or omitted from, the list; and

(b) the main factors that make it eligible.

(4) The scientific committee must give the listing advice to the Minister not later than 1 year after the end of the 4-week period, or public consultation period, mentioned in section 83 (1).

85 Minister to decide whether to include, transfer or omit item

(1) Not later than 3 months after the Minister receives a listing advice for an item, the Minister must decide whether to—

(a) include, or refuse to include, an item in a list under section 86; or

(b) transfer, or refuse to transfer, an item within a list under section 87; or

(2) If the decision is to include, transfer or omit an item, the Minister must—

(a) revise the list; and

(b) prepare a final version of the list.

Note The final version of the list and the listing advice for the item are notifiable instruments (see s 89 (2) (d)).

(3) The Minister must take reasonable steps to tell the following people about the decision:

(a) if the item was nominated by a person under section 79—the person who made the nomination;

(b) if a person made a submission to the scientific committee under section 82—the person who made the submission.

86 Minister’s decision—include item

(1) The Minister may include an item in a list, or category in a list, only if satisfied that the item is eligible to be included in the list or category.

(2) In deciding whether to include an item, the Minister may only consider—

(a) the listing advice for the item; and

(b) the eligibility of the item for the list under—

(i) for a species—the threatened native species list criteria; or

(ii) for an ecological community—the threatened ecological communities list criteria; or

(iii) for a threatening process—the key threatening processes list criteria; and

Note Threatened native species list criteria—see s 63.

Threatened ecological communities list criteria—see s 69.

Key threatening processes list criteria—see s 76.

(c) if the item is a species or ecological community—the effect that including the item may have on the survival of the item.

87 Minister’s decision—transfer item

(1) The Minister may transfer an item from 1 category in a list to another category in a list (the new category) only if satisfied that the item is eligible to be included in the new category.

Note 1 Eligibility for the threatened native species list is dealt with in s 62.

Eligibility for the threatened ecological communities list is dealt with in s 68.

Note 2 There are no categories in the key threatening processes list.

(2) In deciding whether to include an item, the Minister may only consider—

(a) the listing advice for the item; and

(b) the eligibility of the item for the new category under—

(i) for a species—the threatened native species list criteria; or

(ii) for an ecological community—the threatened ecological communities list criteria; and

Note Threatened native species list criteria—see s 63.

Threatened ecological communities list criteria—see s 69.

88 Minister’s decision—omit item

(1) The Minister may omit an item from a list only if satisfied that—

(a) the item is no longer eligible to be included in the list; or

(b) for a native species or ecological community—the inclusion of the item in the list is not contributing, or will not contribute, to the survival of the item.

(2) In deciding whether to omit an item from a list, the Minister may only consider—

(a) the listing advice for the item; and

(b) the eligibility of the item for the list under—

(i) for a species—the threatened native species list criteria; or

(ii) for an ecological community—the threatened ecological communities list criteria; or

(iii) for a threatening process—the key threatening processes list criteria; and

Note Threatened native species list criteria—see s 63.

Threatened ecological communities list criteria—see s 69.

Key threatening processes list criteria—see s 76.

(c) if the item is a species or ecological community—the effect that the inclusion of the item in the list is having, or may have, on the survival of the item.

89 Final version of list and notification

(1) The final version of—

(a) a list of species prepared under section 85 or section 92 is a threatened native species list; and

(b) a list of ecological communities prepared under section 85 or section 92 is a threatened ecological communities list; and

(2) Each of the following is a notifiable instrument:

(a) a threatened native species list;

(b) a threatened ecological communities list;

(d) a listing advice provided to the Minister under section 84 (4) (Scientific committee to prepare listing advice) for an item that the Minister decides to include, transfer or omit under section 85 (1) (Minister to decide whether to include, transfer or omit item).

Note 1 A notifiable instrument must be notified under the Legislation Act

Note 2 The power to make a list includes the power to amend or repeal the list. The power to amend or repeal the list is exercisable in the same way, and subject to the same conditions, as the power to make the list (see Legislation Act

, s 46).

90 Scientific committee to prepare conservation advice

(1) This section applies if a species or community is included in, or transferred within, a list.

(2) The scientific committee must prepare an advice about the species or community (a conservation advice) that sets out what (if anything) may be done to—

(a) stop the decline of the species or community; and

(b) support the recovery of the species or community.

(3) The scientific committee must prepare the conservation advice not later than 3 months after the inclusion or transfer is notified under section 89 (2).

(4) A conservation advice is a notifiable instrument.

Note 1 A notifiable instrument must be notified under the Legislation Act

Note 2 The power to make an instrument includes the power to amend or repeal the instrument (see Legislation Act

, s 46).

91 What is a minor amendment?—pt 4.4

In this part:

minor amendment, of a list, means an amendment to—

(a) include a species in the threatened native species list in the circumstances mentioned in section 93 (Minor amendment—including similar species); or

(b) omit a species from the threatened native species list in the circumstances mentioned in section 94 (Minor amendment—omitting similar species ); or

(c) transfer a species from the extinct category to the provisional category of the threatened native species list in the circumstances mentioned in section 95 (Minor amendment—rediscovery of extinct species); or

(d) update the name of a threatened native species or threatened ecological community; or

(e) correct an inaccuracy.

92 Minister may make minor amendments

(1) This section applies if the Minister considers that a minor amendment to a list is appropriate.

(2) The Minister—

(a) may prepare a new list, incorporating the minor amendments into the existing list; and

(b) need not comply with the requirements in section 82 (Nominations—public consultation) to section 90 (Scientific committee to prepare conservation advice); and

Note The final version of the new list is a threatened native species list, threatened ecological communities list, or key threatening processes list and is a notifiable instrument (see s 89).

93 Minor amendment—including similar species

(1) A minor amendment of the threatened native species list may be appropriate if the amendment is to include a native species in a certain category of the list (the ineligible species) because—

(a) it so closely resembles in appearance, at any stage of its biological development, a species that is included in the category (the eligible species) that it is difficult to differentiate between the 2 species; and

(b) this difficulty poses an additional threat to the eligible species; and

(2) In deciding whether a minor amendment is appropriate, the Minister must consider—

(a) the listing advice for the eligible species; and

Note Listing advice—see s 84.

(b) the conservation advice for the eligible species.

Note Conservation advice—see s 90.

(3) If an ineligible species is included in a category of the threatened native species list under subsection (1) and the eligible species is—

(a) transferred to another category of the list, the ineligible species is also transferred to the other category; and

(b) omitted from the list, the ineligible species is also omitted from the list.

(4) In this section:

certain category, of the threatened native species list, means—

(a) critically endangered; or

(b) endangered; or

Note Eligibility for critically endangered category, endangered category and vulnerable category (see s 62 (3) to (5)).

94 Minor amendment—omitting similar species

(1) A minor amendment of the threatened native species list may be appropriate if the amendment is to omit an ineligible species included under section 93 because its inclusion is not having a significant beneficial effect on the survival of the eligible species.

(2) In deciding whether a minor amendment is appropriate, the Minister must consider—

(a) the listing advice for the eligible species; and

Note Listing advice—see s 84.

(b) the conservation advice for the eligible species.

Note Conservation advice—see s 90.

95 Minor amendment—rediscovery of extinct species

(1) A minor amendment of the threatened native species list may be appropriate if the amendment is to transfer a species from the extinct category to the provisional category because the species has been definitely located in nature.

(2) In deciding whether a minor amendment is appropriate, the Minister need not obtain and consider advice from the scientific committee.

Part 4.5 Action plans

96 Definitions—Act

In this Act:

regular migratory species means a listed migratory species that regularly occurs in the ACT.

Note Listed migratory species—see the Environment Protection and Biodiversity Conservation Act 1999

(Cwlth), s 528.

relevant ecological community means the following:

(a) a critically endangered ecological community;

(b) an endangered ecological community;

relevant species means the following:

(a) a critically endangered species;

(b) an endangered species;

(d) a regular migratory species.

97 What is an action plan?—pt 4.5

In this part:

action plan, for a relevant species, relevant ecological community or key threatening process, means a plan for the species, ecological community or process, notified under section 103 (Draft action plan—final version and notification).

Note Key threatening process—see s 72.

98 What is a draft action plan?—pt 4.5

In this part:

draft action plan, for a relevant species, relevant ecological community or key threatening process—

(a) means a draft plan that—

(i) for a relevant species—

(A) sets out proposals to ensure, as far as practicable, the identification, protection and survival of the species; and

(B) if there is a known critical habitat for the species—identifies the critical habitat; and

(D) may propose management strategies to ensure the persistence of the species; and

(E) may state requirements for monitoring the species and its habitats; and

(ii) for a relevant ecological community—

(A) sets out proposals to ensure, as far as practicable, the identification, protection and survival of the community; and

(B) if there is a known critical habitat for the community—identifies the critical habitat; and

(iii) for a key threatening process—sets out proposals to minimise any effect of the process that threatens a relevant species or relevant ecological community; and

, s 48).

(b) includes anything required to be included by a conservator guideline; and

Note Conservator guidelines—see s 23.

Examples—instrument that may be applied, adopted or incorporated

1 a native species conservation plan, for a native species (see s 113)

2 a recovery plan under the Environment Protection and Biodiversity Conservation Act 1999

(Cwlth), s 269A

Note 1 The text of an applied, adopted or incorporated law or instrument, whether applied as in force from time to time or at a particular time, is taken to be a notifiable instrument if the operation of the Legislation Act

, s 47 (5) or (6) is not disapplied (see s 47 (7)).

Note 2 A notifiable instrument must be notified under the Legislation Act

Note 3 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

99 Draft action plan—conservator to prepare

(1) The conservator must prepare a draft action plan for each relevant species, relevant ecological community and key threatening process.

Note The draft action plan need not contain the precise location of the species, community or critical habitat (see s 357).

(2) However, the conservator need not prepare a draft action plan—

(a) for a relevant species or relevant ecological community—if the conservator reasonably believes that the species or ecological community does not occur in the ACT; or

(b) for a vulnerable species or vulnerable ecological community—if the conservator reasonably believes that the conservation advice for the species or community provides adequate guidance about the appropriate management of the species or community; or

Note Conservation advice—see s 90.

Note Native species conservation plan, for a native species—see s 113.

(3) In preparing a draft action plan for a relevant species or relevant ecological community, the conservator must consider—

(a) the impact of climate change on the species or ecological community; and

(b) threats to the species or ecological community; and

(d) critical habitat of the species or ecological community.

Note Critical habitat—see the dictionary.

100 Draft action plan—consultation with scientific committee

In preparing a draft action plan, the conservator must consult the scientific committee.

101 Draft action plan—public consultation

(1) If the conservator prepares a draft action plan, the conservator must also prepare a notice about the draft action plan (a public consultation notice).

(2) A public consultation notice must—

(a) state that—

(i) anyone may give a written submission to the conservator about the draft action plan; and

(ii) submissions may be given to the conservator only during the period starting on the day the public consultation notice is notified under the Legislation Act

and ending on a stated day, being a day at least 6 weeks after the day it is notified (the public consultation period); and

(b) include the draft action plan.

(3) A public consultation notice is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act

(4) If the conservator notifies a public consultation notice for a draft action plan—

(a) anyone may give a written submission to the conservator about the draft plan; and

(b) the submission may be given to the conservator only during the public consultation period for the draft plan; and

(5) The conservator may make arrangements for people with particular communication needs to ensure they have adequate opportunity to comment on the draft action plan.

102 Draft action plan—revision

If the public consultation period for a draft action plan has ended, the conservator must—

(a) consider any submissions received during the public consultation period; and

(b) make any revisions to the draft plan that the conservator considers appropriate; and

103 Draft action plan—final version and notification

(1) The final version of a draft action plan prepared under section 102 or section 104 is an action plan.

(2) An action plan is a disallowable instrument.

Note 1 A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act

Note 2 The power to make an action plan includes the power to amend or repeal the plan. The power to amend or repeal the plan is exercisable in the same way, and subject to the same conditions, as the power to make the plan (see Legislation Act

, s 46).

104 Action plan—minor amendments

(1) This section applies if—

(a) an action plan for a relevant species, relevant ecological community or key threatening process is in force (the existing plan); and

(b) the conservator considers that minor amendments to the existing plan are appropriate.

(2) The conservator—

(a) may prepare a new draft action plan for the species, community or process, incorporating the minor amendments into the existing plan; and

(b) need not comply with the consultation requirements in section 101 (Draft action plan—public consultation); and

Note The final version of the new draft action plan is an action plan and is a disallowable instrument (see s 103).

(3) In this section:

minor amendment, of an action plan, means an amendment that will improve the effectiveness or technical efficiency of the plan without changing the substance of the plan.

Examples

1 minor correction to improve effectiveness

2 omission of something redundant

3 technical adjustment to improve efficiency

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

105 Action plan—conservator to implement

If an action plan is in force for a relevant species, relevant ecological community or key threatening process, the conservator must take reasonable steps to implement the plan.

106 Action plan—monitoring and review

(1) The conservator must—

(a) monitor the effectiveness of an action plan; and

(b) make the findings of the monitoring publicly accessible.

Example—publically accessible

published on the directorate website

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

(2) However, if the conservator considers that a species or ecological community could be threatened by the disclosure of a particular detail in a finding, the conservator—

(a) need not include the particular detail; but

(b) must instead include a general statement about the finding.

(3) The conservator must report to the Minister about each action plan at least once every 5 years.

(4) The scientific committee must review an action plan—

(a) every 10 years after the plan commences; and

(b) at any other time at the conservator’s request.

(5) However, the Minister may extend the time for conducting the review under subsection (4) (a).

(6) In reviewing an action plan, the scientific committee may make recommendations to the conservator about the plan.

Chapter 5 Protection of native species—conservation plans

Part 5.1 Special protection status

107 What is special protection status?

(1) In this Act:

special protection status—a native species has special protection status if it is—

(a) a threatened native species; or

Note Threatened native species—see s 59.

(b) a listed threatened species; or

Note Listed migratory species—see the Environment Protection and Biodiversity Conservation Act 1999

(Cwlth), s 528.

(2) In this section:

listed threatened species—see the Environment Protection and Biodiversity Conservation Act 1999

(Cwlth), section 528.

Note 1 The conservator may make a native species conservation plan for a species that has special protection status (see pt 5.3).

Note 2 The conservator must make an action plan for regular migratory species (see s 99).

Part 5.2 Protected native species

108 What is a protected native species?

In this Act:

protected native species means a native species listed in the protected native species list.

109 Minister to make protected native species list

(1) The Minister must make a list of native species that are protected native species (the protected native species list).

Note Native species—see s 16.

(2) The protected native species list must be divided into the following categories:

(a) restricted trade;

(b) rare;

(d) any other category prescribed by regulation.

(3) The protected native species list is a notifiable instrument.

Note 1 A notifiable instrument must be notified under the Legislation Act

Note 2 The power to make the list includes the power to amend or repeal the list. The power to amend or repeal the list is exercisable in the same way, and subject to the same conditions, as the power to make the list (see Legislation Act

, s 46).

110 Protected native species list—eligibility

(1) A native species is eligible to be included in the restricted trade category in the protected native species list if unrestricted trade in the species is likely to have a negative impact on populations of the species in the wild.

(2) A native species is eligible to be included in the rare category in the protected native species list if—

(a) it is not a threatened native species; and

Note Threatened native species—see s 59.

(b) it does not have special protection status; and

Note Special protection status—see s 107.

(3) A native species is eligible to be included in the data deficient category in the protected native species list if there is insufficient information about the species in the ACT for the species to be eligible to be—

(a) a threatened native species; or

Note Threatened native species—see s 59.

(b) included in any other category in the protected native species list.

111 Minister to develop criteria and processes for protected native species list

(1) The Minister must develop criteria to be used in deciding whether a species is eligible to be included in a category on the protected native species list (the protected native species list criteria).

(2) The protected native species list criteria may only include scientific matters.

(3) In developing the protected native species list criteria, the Minister must—

(a) have regard to the conservation of the species; and

(b) consult the scientific committee.

(4) The protected native species list criteria are a disallowable instrument.

Note A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act

(5) The Minister must also develop processes to be followed in deciding whether a species is to be included in a category in the protected native species list.

(6) The processes are a disallowable instrument.

112 Protected native species list criteria—review

(1) This section applies if the conservator, or the scientific committee, considers that the protected native species list criteria should be reviewed because—

(a) the criteria are not adequately identifying species eligible to be included in a category on the protected native species list; or

(b) there are changes to national or international standards relating to the criteria.

(2) The conservator, or the scientific committee, must recommend to the Minister that the Minister review the protected native species list criteria.

(3) The Minister must consider the recommendation and may—

(a) review the protected native species list criteria under section 111; or

(b) refuse to review the protected native species list criteria.

(4) A decision to refuse to review the protected native species list criteria, including a statement of reasons for the decision, is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act

Part 5.3 Native species conservation plans

113 What is a native species conservation plan?

In this Act:

native species conservation plan, for a native species, means a plan for the species on stated land, notified under section 120 (Draft native species conservation plan—final version and notification).

Note The power to make an instrument includes the power to amend or repeal the instrument. The power to amend or repeal the instrument is exercisable in the same way, and subject to the same conditions, as the power to make the instrument (see Legislation Act

, s 46).

114 What is a draft native species conservation plan?—pt 5.3

In this part:

draft native species conservation plan, for a native species on stated land—

(a) means a draft plan detailing how the native species may be appropriately managed on the stated land; and

(b) includes anything required to be included by a conservator guideline; and

Note Conservator guidelines—see s 23.

Example—instrument that may be applied, adopted or incorporated

a fisheries management plan under the Fisheries Act 2000

, s 47 (5) or (6) is not disapplied (see s 47 (7)).

Note 2 A notifiable instrument must be notified under the Legislation Act

Note 3 A native species conservation plan may include provisions about carrying on an activity that would usually require a nature conservation licence. If a person intends to carry on the activity under a plan, the person must apply for a nature conservation licence in the usual way.

Note 4 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

115 Draft native species conservation plan—conservator to prepare

The conservator may prepare a draft native species conservation plan for stated land for—

(a) a native species that has special protection status; or

Note Special protection status—see s 107.

(b) any other native species the conservator considers appropriate for a native species conservation plan.

Note 1 Power to make a statutory instrument includes power to make different provision in relation to different matters or different classes of matters, and to make an instrument that applies differently by reference to stated exceptions or factors (see Legislation Act

, s 48).

Note 2 A species that is the subject of a native species conservation plan is eligible to be included in the conservation dependent category on the threatened native species list if the ending of the plan may result in the species becoming vulnerable, endangered or critically endangered (see s 62 (6)).

Note 3 The draft native species conservation plan need not contain the precise location of the species (see s 357).

116 Draft native species conservation plan—consultation with scientific committee

In preparing a draft native species conservation plan, the conservator must consult the scientific committee.

117 Draft native species conservation plan—consultation with lessee and custodian

In preparing a draft native species conservation plan for stated land, the conservator must consult—

(a) if the land is leased land—the lessee of the land; and

(b) if the land is unleased land or public land—the custodian of the land.

118 Draft native species conservation plan—public consultation

(1) If the conservator prepares a draft native species conservation plan, the conservator must also prepare a notice about the draft native species conservation plan (a public consultation notice).

(2) A public consultation notice must—

(a) state that—

(i) anyone may give a written submission to the conservator about the draft native species conservation plan; and

(ii) submissions may be given to the conservator only during the period starting on the day the public consultation notice is notified under the Legislation Act

and ending on a stated day, being a day at least 6 weeks after the day it is notified (the public consultation period); and

(b) include the draft native species conservation plan.

(3) A public consultation notice is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act

(4) If the conservator notifies a public consultation notice for a draft native species conservation plan—

(a) anyone may give a written submission to the conservator about the draft plan; and

(b) the submission may be given to the conservator only during the public consultation period for the draft plan; and

(5) The conservator may make arrangements for people with particular communication needs to ensure they have adequate opportunity to comment on the draft plan.

119 Draft native species conservation plan—revision

If the public consultation period for a draft native species conservation plan has ended, the conservator must—

(a) consider any submissions received during the public consultation period; and

(b) make any revisions to the draft plan that the conservator considers appropriate; and

120 Draft native species conservation plan—final version and notification

(1) The final version of a draft native species conservation plan prepared under section 119 or section 121 is a native species conservation plan.

(2) A native species conservation plan is a notifiable instrument.

Note 1 A notifiable instrument must be notified under the Legislation Act

Note 2 The power to make a native species conservation plan includes the power to amend or repeal the plan. The power to amend or repeal the plan is exercisable in the same way, and subject to the same conditions, as the power to make the plan (see Legislation Act

, s 46).

121 Native species conservation plan—minor amendments

(1) This section applies if—

(a) a native species conservation plan for a native species is in force (the existing plan); and

(b) the conservator considers that minor amendments to the existing plan are appropriate.

(2) The conservator—

(a) may prepare a new draft native species conservation plan for the native species, incorporating the minor amendments into the existing plan; and

(b) need not comply with the consultation requirements in section 117 to section 119; and

Note The final version of the new draft native species conservation plan is a native species conservation plan and is a notifiable instrument (see s 120).

(3) In this section:

minor amendment, of a native species conservation plan, means an amendment that will improve the effectiveness or technical efficiency of the plan without changing the substance of the plan.

Examples

1 minor correction to improve effectiveness

2 omission of something redundant

3 technical adjustment to improve efficiency

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

122 Native species conservation plan—conservator etc to implement

If a native species conservation plan is in force for a native species on stated land, the following people must take reasonable steps to implement the plan:

(a) the conservator;

(b) if the land is leased land—the lessee of the land;

123 Native species conservation plan—monitoring and review

(1) The conservator must—

(a) monitor the effectiveness of a native species conservation plan; and

(b) make the findings of the monitoring publicly accessible.

Example—publically accessible

published on the directorate website

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

(2) However, if the conservator considers that a species could be threatened by the disclosure of a particular detail in a finding, the conservator—

(a) need not include the particular detail; but

(b) must instead include a general statement about the finding.

(3) The conservator may ask the scientific committee to review a native species conservation plan.

(4) In reviewing a native species conservation plan, the scientific committee may make recommendations to the conservator about the plan.

Chapter 6 Protection of native species—offences

Part 6.1 Offences

Division 6.1.1 Definitions—pt 6.1

124 Definitions—pt 6.1

In this part:

sell includes—

(a) sell by wholesale, retail, auction or tender; and

(b) barter or exchange; and

(d) offer for sale, receive for sale or expose for sale; and

(e) have in possession for sale.

take includes—

(a) for an animal—harvest, catch, capture and trap; and

(b) for a plant—harvest, pick, gather and cut.

Division 6.1.2 Native animals

125 Definitions—div 6.1.2

In this division:

interfere with an item, includes damage or destroy the item.

nest, of an animal, includes—

(a) a place, structure or object that is being, or has been within the previous 2 years, used as a nesting place by the animal; or

(b) a partially constructed nest that has not been used as a nesting place by the animal.

126 Offence—interfere with nest of native animal

(1) A person commits an offence if the person—

(a) interferes with—

(i) the nest of an animal; or

(ii) something in the immediate environment of the nest of an animal; and

(b) the animal is a native animal.

Maximum penalty: 20 penalty units.

Note Interfere with an item—see s 125.

Nest, of an animal—see s 125.

(2) A person commits an offence if—

(a) the person interferes with—

(i) the nest of an animal; or

(ii) something in the immediate environment of the nest of an animal; and

(b) the animal—

(i) is a native animal; and

(ii) has special protection status.

Maximum penalty: 30 penalty units.

Note Special protection status—see s 107.

(3) An offence against this section is a strict liability offence.

(4) A person has the benefit of the chapter 6 exceptions for an offence against this section.

Note The chapter 6 exceptions are set out in s 151.

127 Offence—interfere with nest of native animal—endanger progeny or breeding

(1) A person commits an offence if—

(a) the person interferes with—

(i) the nest of an animal; or

(ii) something in the immediate environment of the nest of an animal; and

(b) the interference—

(i) places the animal or its progeny in danger of death; or

(ii) places the animal in danger of not being able to breed—

(A) if the interference happens during the animal’s breeding season—during the breeding season; or

(B) in any other case—during the animal’s next breeding season; and

Maximum penalty: 100 penalty units, imprisonment for 1 year or both.

Note Interfere with an item—see s 125.

Nest, of an animal—see s 125.

Progeny—see s (5).

(2) A person commits an offence if—

(a) the person interferes with—

(i) the nest of an animal; or

(ii) something in the immediate environment of the nest of an animal; and

(b) the interference—

(i) places the animal or its progeny in danger of death; or

(ii) places the animal in danger of not being able to breed—

(A) if the interference happens during the animal’s breeding season—during the breeding season; or

(B) in any other case—during the animal’s next breeding season; and

(i) is a native animal; and

(ii) has special protection status.

Maximum penalty: 200 penalty units, imprisonment for 2 years or both.

Note Special protection status—see s 107.

(3) This section does not apply to a person if the person believed on reasonable grounds that—

(a) the danger did not exist; or

(b) for an offence involving interference with a nest—the thing interfered with was not a nest; or

(c) for an offence involving interference with something in the immediate environment of a nest—the thing interfered with was not in the immediate environment of a nest.

Note The defendant has an evidential burden in relation to the matters mentioned in s (3) (see Criminal Code

, s 58).

(4) A person has the benefit of the chapter 6 exceptions for an offence against this section.

Note The chapter 6 exceptions are set out in s 151.

(5) In this section:

progeny, of an animal—

(a) means any descendant of the animal; and

(b) includes any animal reproductive material of the animal.

128 Offence—kill native animal

(1) A person commits an offence if—

(a) the person engages in conduct; and

(b) the conduct causes the death of an animal; and

Maximum penalty: 100 penalty units, imprisonment for 1 year or both.

(2) A person commits an offence if—

(a) the person engages in conduct; and

(b) the conduct causes the death of an animal; and

(i) is a native animal; and

(ii) has special protection status.

Maximum penalty: 200 penalty units, imprisonment for 2 years or both.

Note Special protection status—see s 107.

(3) This section does not apply to a person if the death of the animal was caused—

(a) in circumstances in which the animal was a danger to the person; or

(b) by an accidental collision with a motor vehicle.

(4) This section does not apply to a person if—

(a) the animal is a fish that—

(i) has special protection status; or

(ii) is a protected native species; and

(b) the conduct constituting the offence is consistent with a native species conservation plan for the animal.

Example

The Murray cod is a nationally threatened species that is stocked in Canberra’s lakes. Fishing for Murray cod in areas and at times identified in the native species conservation plan for Murray cod would not be an offence.

Note 1 Native species conservation plan, for a native species—see s 113.

Note 2 The defendant has an evidential burden in relation to the matters mentioned in s (3) and s (4) (see Criminal Code

, s 58).

Note 3 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

(5) A person also has the benefit of the chapter 6 exceptions for an offence against this section.

Note The chapter 6 exceptions are set out in s 151.

129 Offence—injure or endanger native animal

(1) A person commits an offence if—

(a) the person engages in conduct; and

(b) the conduct causes injury to an animal; and

Maximum penalty: 50 penalty units.

(2) An offence against subsection (1) is a strict liability offence.

(3) A person commits an offence if—

(a) the person engages in conduct; and

(b) the conduct places an animal in danger of injury or death; and

Maximum penalty: 50 penalty units.

(4) This section does not apply to a person if the injury or endangerment of the animal was caused—

(a) in circumstances in which the animal was a danger to the person; or

(b) by an accidental collision with a motor vehicle.

(5) This section does not apply to a person if—

(a) the animal is a fish that—

(i) has special protection status; or

(ii) is a protected native species; and

(b) the conduct constituting the offence is consistent with a native species conservation plan for the animal.

Note 1 Native species conservation plan, for a native species—see s 113.

Note 2 The defendant has an evidential burden in relation to the matters mentioned in s (4) and s (5) (see Criminal Code

, s 58).

(6) A person also has the benefit of the chapter 6 exceptions for an offence against this section.

Note The chapter 6 exceptions are set out in s 151.

130 Offence—take native animal

(1) A person commits an offence if—

(a) the person takes an animal, whether dead or alive; and

(b) the animal is a native animal.

Maximum penalty: 100 penalty units, imprisonment for 1 year or both.

Note Take—see s 124.

(2) A person commits an offence if—

(a) the person takes an animal, whether dead or alive; and

(b) the animal—

(i) is a native animal; and

(ii) has special protection status.

Maximum penalty: 200 penalty units, imprisonment for 2 years or both.

Note Special protection status—see s 107.

(3) This section does not apply to a person if the animal is suffering from a disease, illness or injury and the person takes the animal to give it to—

(a) a conservation officer; or

(b) a veterinary surgeon; or

Note Nature conservation licence—see s 260.

(4) This section does not apply to a person if—

(a) the animal is a fish that—

(i) has special protection status; or

(ii) is a protected native species; and

(b) the conduct constituting the offence is consistent with a native species conservation plan for the animal.

Note 1 Native species conservation plan, for a native species—see s 113.

Note 2 The defendant has an evidential burden in relation to the matters mentioned in s (3) and s (4) (see Criminal Code

, s 58).

(5) A person also has the benefit of the chapter 6 exceptions for an offence against this section.

Note The chapter 6 exceptions are set out in s 151.

131 Offence—keep non-exempt animal

(1) A person commits an offence if—

(a) the person keeps an animal; and

(b) the animal is not an exempt animal.

Maximum penalty: 100 penalty units, imprisonment for 1 year or both.

Note Exempt animal—see s 152.

(2) A person commits an offence if—

(a) the person keeps an animal; and

(b) the animal has special protection status; and

Maximum penalty: 200 penalty units, imprisonment for 2 years or both.

Note Special protection status—see s 107.

(3) This section does not apply to a person if—

(a) the animal is suffering from a disease, illness or injury; and

(b) the person keeps the animal to give it to—

(i) a conservation officer; or

(ii) a veterinary surgeon; or

(iii) someone licensed to keep the animal; and

Note The defendant has an evidential burden in relation to the matters mentioned in s (3) (see Criminal Code

, s 58).

(4) A person also has the benefit of the chapter 6 exceptions for an offence against this section.

Note The chapter 6 exceptions are set out in s 151.

132 Offence—sell non-exempt animal

(1) A person commits an offence if—

(a) the person sells an animal; and

(b) the animal is not an exempt animal.

Maximum penalty: 100 penalty units, imprisonment for 1 year or both.

Note Exempt animal—see s 152.

Sell includes offer for sale (see s 124).

(2) A person commits an offence if—

(a) the person sells an animal; and

(b) the animal has special protection status; and

Maximum penalty: 200 penalty units, imprisonment for 2 years or both.

Note Special protection status—see s 107.

(3) A person has the benefit of the chapter 6 exceptions for an offence against this section.

Note The chapter 6 exceptions are set out in s 151.

133 Offence—offer to sell animal without disclosing licence

(1) A person commits an offence if—

(a) the person holds a nature conservation licence to sell an animal; and

(b) the person offers to sell the animal; and

(i) that the person is licensed to sell the animal; and

(ii) the person’s licence number.

Maximum penalty: 50 penalty units.

Note Nature conservation licence—see s 260.

Sell includes offer for sale (see s 124).

(2) An offence against this section is a strict liability offence.

134 Offence—import non-exempt animal

(1) A person commits an offence if—

(a) the person imports an animal into the ACT; and

(b) the animal is not an exempt animal.

Maximum penalty: 100 penalty units, imprisonment for 1 year or both.

Note Exempt animal—see s 152.

(2) A person commits an offence if—

(a) the person imports an animal into the ACT; and

(b) the animal has special protection status; and

Maximum penalty: 200 penalty units, imprisonment for 2 years or both.

Note Special protection status—see s 107.

(3) A person has the benefit of the chapter 6 exceptions for an offence against this section.

Note The chapter 6 exceptions are set out in s 151.

135 Offence—export non-exempt animal

(1) A person commits an offence if—

(a) the person exports an animal from the ACT; and

(b) the animal is not an exempt animal.

Maximum penalty: 100 penalty units, imprisonment for 1 year or both.

Note Exempt animal—see s 152.

(2) A person commits an offence if—

(a) the person exports an animal from the ACT; and

(b) the animal has special protection status; and

Maximum penalty: 200 penalty units, imprisonment for 2 years or both.

Note Special protection status—see s 107.

(3) A person has the benefit of the chapter 6 exceptions for an offence against this section.

Note The chapter 6 exceptions are set out in s 151.

136 Offence—release animal from captivity

(1) A person commits an offence if the person releases an animal from captivity.

Maximum penalty: 50 penalty units.

(2) An offence against this section is a strict liability offence.

(3) This section does not apply to the release of a dog or a cat if the release would not constitute an offence under the Domestic Animals Act 2000

Note The defendant has an evidential burden in relation to the matters mentioned in s (3) (see Criminal Code

, s 58).

(4) A person also has the benefit of the chapter 6 exceptions for an offence against this section.

Note The chapter 6 exceptions are set out in s 151.

Division 6.1.3 Native plants

137 Definitions—div 6.1.3

In this division:

built-up urban area—see the Tree Protection Act 2005

, section 7 (2) (Application of Act—built-up urban areas).

damage, a tree, includes the following:

(a) kill or destroy the tree;

(b) poison the tree;

(d) fell or remove the tree;

(e) cut branches or stems of the tree between branch unions;

(f) remove branches of the tree to a previously pruned or lopped point;

(g) major pruning of the tree;

(h) anything else done to or in relation to the tree that—

(i) causes it to die; or

(ii) significantly reduces its expected life; or

(iii) significantly and adversely affects its health, stability or general appearance.

native timber—

(a) means timber from a tree that is a native plant, whether living or dead; and

(b) includes—

(i) a standing or fallen native tree; and

(ii) any material from a standing or fallen native tree; but

native tree—

(a) means a tree that is a native plant, whether living or dead; but

(b) does not include a tree seedling.

plant tag, for a plant, means a tag made of durable material that displays the following details:

(a) the name of the person proposing to sell or export the plant;

(b) the botanical name and common name (if any) of the plant.

tree seedling means a tree that is not more than 2m high.

138 Offence—take native plant—unleased land

(1) A person commits an offence if—

(a) the person takes a plant; and

(b) the plant is—

(i) a native plant; and

(ii) growing on unleased land.

Maximum penalty: 50 penalty units.

Note Take—see s 124.

(2) An offence against this section is a strict liability offence.

(3) This section does not apply to a person if the person—

(a) is a public servant exercising a function as a public servant; or

(b) is authorised to take the plant under a development approval under the Planning and Development Act 2007

, chapter 7 (Development approvals); or

Note The defendant has an evidential burden in relation to the matters mentioned in s (3) (see Criminal Code

, s 58).

(4) A person also has the benefit of the chapter 6 exceptions for an offence against this section.

Note The chapter 6 exceptions are set out in s 151.

139 Offence—take and sell native plant—unleased land

(1) A person commits an offence if—

(a) the person takes a plant; and

(b) the plant is—

(i) a native plant; and

(ii) growing on unleased land; and

Maximum penalty: 100 penalty units, imprisonment for 1 year or both.

Note Sell includes offer for sale (see s 124).

Take—see s 124.

(2) This section does not apply to a person if the plant is native timber.

Note 1 Native timber—see s 137.

Note 2 It is an offence to damage a native tree on unleased land (see s 142). It is also an offence to take fallen native timber from unleased land (see s 144).

Note 3 The defendant has an evidential burden in relation to the matters mentioned in s (2) (see Criminal Code

, s 58).

(3) A person also has the benefit of the chapter 6 exceptions for an offence against this section.

Note The chapter 6 exceptions are set out in s 151.

140 Offence—take native plant—protected native species

(1) A person commits an offence if—

(a) the person takes a plant; and

(b) the plant is a protected native species.

Maximum penalty: 50 penalty units.

Note Protected native species—see s 108.

Take—see s 124.

(2) An offence against this section is a strict liability offence.

(3) This section does not apply to a person if the person—

(a) is a public servant exercising a function as a public servant; or

(b) is an occupier of land outside a built-up urban area and the person—

(i) takes the plant in the course of cultivating the plant on the land; or

(ii) takes seeds from a plant growing on the land to cultivate the plant on the land; or

(i) is growing on the land; and

(ii) was planted by the person; or

(d) is an occupier of land in a built-up urban area and the plant is growing on the land; or

(e) is an occupier of land outside a built-up urban area and the person takes the plant in the course of using the land for primary production in accordance with the purpose authorised by the lease; or

(f) is authorised to take the plant under a development approval under the Planning and Development Act 2007

, chapter 7 (Development approvals).

Note 1 Built-up urban area—see s 137.

Note 2 The defendant has an evidential burden in relation to the matters mentioned in s (3) (see Criminal Code

, s 58).

(4) A person also has the benefit of the chapter 6 exceptions for an offence against this section.

Note The chapter 6 exceptions are set out in s 151.

141 Offence—take native plant—special protection status

(1) A person commits an offence if—

(a) the person takes a plant; and

(b) the plant—

(i) is a native plant; and

(ii) has special protection status.

Maximum penalty: 200 penalty units, imprisonment for 2 years or both.

Note Special protection status—see s 107.

Take—see s 124.

(2) This section does not apply to a person if the person is—

(a) a public servant exercising a function as a public servant; or

(b) authorised to take the plant under a development approval under the Planning and Development Act 2007

, chapter 7 (Development approvals).

Note The defendant has an evidential burden in relation to the matters mentioned in s (2) (see Criminal Code

, s 58).

(3) A person has the benefit of the chapter 6 exceptions for an offence against this section.

Note The chapter 6 exceptions are set out in s 151.

142 Offence—damage native tree—unleased land

(1) A person commits an offence if—

(a) the person damages a tree; and

(b) the tree is—

(i) a native tree; and

(ii) on unleased land.

Maximum penalty: 400 penalty units.

Note Damage, a tree includes fell the tree—see s 137.

Native tree—see s 137.

(2) This section does not apply to a person if the person is—

(a) a public servant exercising a function as a public servant; or

(b) authorised to engage in the conduct constituting the offence under a development approval under the Planning and Development Act 2007

, chapter 7 (Development approvals).

Note The defendant has an evidential burden in relation to the matters mentioned in s (2) (see Criminal Code

, s 58).

(3) A person also has the benefit of the chapter 6 exceptions for an offence against this section.

Note The chapter 6 exceptions are set out in s 151.

(4) In addition to the penalty that may be imposed for an offence against this section, the court may order the defendant to—

(a) make good the damage incurred; or

(b) pay the Territory the cost of making good the damage.

(5) The Territory may enforce an order made under subsection (4) as if it were a judgment of the Magistrates Court in a civil proceeding.

143 Offence—damage native tree—leased land

(1) A person commits an offence if—

(a) the person damages a tree; and

(b) the tree is—

(i) a native tree; and

(ii) on leased land outside a built-up urban area.

Maximum penalty: 200 penalty units, imprisonment for 2 years or both.

Note Built-up urban area—see s 137.

Damage, a tree includes fell the tree—see s 137.

Native tree—see s 137.

(2) This section does not apply to a person if—

(a) the tree was planted by an occupier of the land and damaged by an occupier of the land; or

(b) the tree was damaged by an occupier of the land with the intention of using it on the land for a purpose other than sale; or

Note Sell includes offer for sale (see s 124).

(d) the person is authorised to engage in the conduct constituting the offence under a development approval under the Planning and Development Act 2007

, chapter 7 (Development approvals).

Note The defendant has an evidential burden in relation to the matters mentioned in s (2) (see Criminal Code

, s 58).

(3) A person also has the benefit of the chapter 6 exceptions for an offence against this section.

Note The chapter 6 exceptions are set out in s 151.

144 Offence—damage or take fallen native timber

(1) A person commits an offence if—

(a) the person damages fallen timber; and

(b) the timber—

(i) is native timber; and

(ii) has a diameter of more than 10cm; and

(iii) is on unleased land.

Maximum penalty: 50 penalty units.

(2) A person commits an offence if—

(a) the person takes fallen timber from land; and

(b) the timber is native timber; and

(i) unleased land; or

(ii) leased land outside a built-up urban area.

Maximum penalty: 50 penalty units.

Note Built-up urban area—see s 137.

Native timber—see s 137.

Take—see s (8).

(3) An offence against subsection (2) is a strict liability offence.

(4) This section does not apply to a person if the person is—

(a) a public servant exercising a function as a public servant; or

(b) authorised to engage in the conduct constituting the offence under a development approval under the Planning and Development Act 2007

, chapter 7 (Development approvals).

Note The defendant has an evidential burden in relation to the matters mentioned in s (4) (see Criminal Code

, s 58).

(5) A person has the benefit of the chapter 6 exceptions for an offence against this section.

Note The chapter 6 exceptions are set out in s 151.

(6) In addition to the penalty that may be imposed for an offence against subsection (2), the court may order the defendant to—

(a) make good the damage incurred; or

(b) pay the Territory the cost of making good the damage.

(7) The Territory may enforce an order made under subsection (6) as if it were a judgment of the Magistrates Court in a civil proceeding.

(8) In this section:

take means—

(a) for timber on leased land—take the timber from the land subject to the lease; or

(b) for timber on unleased land—take the timber from the immediate vicinity.

145 Offence—offer to sell native plant without disclosing licence

(1) A person commits an offence if—

(a) the person holds a nature conservation licence to sell a native plant; and

(b) the person offers to sell the native plant; and

(i) that the person is licensed to sell the native plant; and

(ii) the person’s licence number.

Maximum penalty: 50 penalty units.

Note Nature conservation licence—see s 260.

Sell includes offer for sale (see s 124).

(2) An offence against this section is a strict liability offence.

146 Offence—sell native plant—protected or special protection status

(1) A person commits an offence if—

(a) the person sells a plant; and

(b) the plant is—

(i) a native plant; and

(ii) a protected native species.

Maximum penalty: 100 penalty units, imprisonment for 1 year or both.

Note Protected native species—see s 108.

Sell includes offer for sale (see s 124).

(2) A person commits an offence if—

(a) the person sells a plant; and

(b) the plant—

(i) is a native plant; and

(ii) has special protection status.

Maximum penalty: 200 penalty units, imprisonment for 2 years or both.

Note Special protection status—see s 107.

(3) A person has the benefit of the chapter 6 exceptions for an offence against this section.

Note The chapter 6 exceptions are set out in s 151.

147 Offence—sell native plant without plant tag—protected or special protection status

(1) A person commits an offence if—

(a) the person sells a plant; and

(b) the plant is—

(i) a native plant; and

(ii) a protected native species; and

(d) a plant tag is not visibly attached to the plant at the time of sale.

Maximum penalty: 25 penalty units.

Note Protected native species—see s 108.

Sell includes offer for sale (see s 124).

(2) A person commits an offence if—

(a) the person sells a plant; and

(b) the plant—

(i) is a native plant; and

(ii) has special protection status; and

(d) a plant tag is not visibly attached to the plant at the time of sale.

Maximum penalty: 50 penalty units.

Note Special protection status—see s 107.

(3) An offence against this section is a strict liability offence.

148 Offence—import native plant—protected or special protection status

(1) A person commits an offence if—

(a) the person imports a plant into the ACT; and

(b) the plant is—

(i) a native plant; and

(ii) a protected native species.

Maximum penalty: 100 penalty units, imprisonment for 1 year or both.

Note Protected native species—see s 108.

(2) A person commits an offence if—

(a) the person imports a plant into the ACT; and

(b) the plant—

(i) is a native plant; and

(ii) has special protection status.

Maximum penalty: 200 penalty units, imprisonment for 2 years or both.

Note Special protection status—see s 107.

(3) This section does not apply to the importation of native timber into the ACT.

Note 1 Native timber—see s 137.

Note 2 The defendant has an evidential burden in relation to the matters mentioned in s (3) (see Criminal Code

, s 58).

(4) A person has the benefit of the chapter 6 exceptions for an offence against this section.

Note The chapter 6 exceptions are set out in s 151.

149 Offence—export native plant—protected or special protection status

(1) A person commits an offence if—

(a) the person exports a plant from the ACT; and

(b) the plant is—

(i) a native plant; and

(ii) a protected native species.

Maximum penalty: 100 penalty units, imprisonment for 1 year or both.

Note Protected native species—see s 108.

(2) A person commits an offence if—

(a) the person exports a plant from the ACT; and

(b) the plant—

(i) is a native plant; and

(ii) has special protection status.

Maximum penalty: 200 penalty units, imprisonment for 2 years or both.

Note Special protection status—see s 107.

(3) A person has the benefit of the chapter 6 exceptions for an offence against this section.

Note The chapter 6 exceptions are set out in s 151.

150 Offence—export plant without plant tag—protected or special protection status

(1) A person commits an offence if—

(a) the person exports a plant from the ACT; and

(b) the plant is—

(i) a native plant; and

(ii) a protected native species; and

(d) a plant tag is not visibly attached to the plant at the time of export.

Maximum penalty: 25 penalty units.

Note Protected native species—see s 108.

(2) A person commits an offence if—

(a) the person exports a plant from the ACT; and

(b) the plant—

(i) is a native plant; and

(ii) has special protection status; and

(d) a plant tag is not visibly attached to the plant at the time of export.

Maximum penalty: 50 penalty units.

Note Special protection status—see s 107.

(3) An offence against this section is a strict liability offence.

Division 6.1.4 Exceptions to offences

151 Chapter 6 exceptions

(1) This section applies if a person has the benefit of the chapter 6 exceptions for an offence.

(2) The offence does not apply to the person if—

(a) the conduct constituting the offence is—

(i) a restricted activity under an activities declaration and the person is complying with the directions and requirements stated in the declaration; or

Note Activities declaration—see s 254.

Restricted activity—see s 254.

(ii) undertaken in accordance with a management agreement; or

Note Management agreement—see s 308.

(iii) undertaken in implementing a controlled native species management plan under section 165 (Controlled native species management plan—conservator etc to implement); or

Note Controlled native species management plan—see s 156.

(b) the person is authorised to engage in the conduct constituting the offence under—

(i) a nature conservation licence; or

Note Nature conservation licence—see s 260.

(ii) a public unleased land permit; or

Note 1 The defendant has an evidential burden in relation to the matters mentioned in s (2) (see Criminal Code

, s 58).

Note 2 This Act does not apply to emergency services personnel exercising functions under the Emergencies Act 2004

for the purpose of protecting life or property or controlling, extinguishing or preventing the spread of a fire (see s 7).

Part 6.2 Other matters

152 What is an exempt animal?

In this Act:

exempt animal means an animal for which an exempt animal declaration is in force.

153 Declarations—exempt animals

(1) The conservator may declare a stated animal to be an exempt animal (an exempt animal declaration).

Note Power to make a statutory instrument (including a regulation) includes power to make different provision for different categories (see Legislation Act

, s 48).

(2) In making an exempt animal declaration, the conservator must consider—

(a) the need to protect native species in the ACT; and

(b) the need to conserve the significant ecosystems of the ACT, New South Wales and Australia.

(3) An exempt animal declaration is a disallowable instrument.

Note A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act

154 Interest in native animal ends with escape

If a person holds an interest in a native animal and the animal escapes, the person’s interest in the animal ends.

Note Also, if the person held a nature conservation licence to keep the escaped native animal, the licence no longer applies in relation to the animal (see s 274 (4)).

Chapter 7 Controlled native species management plans

155 What is a controlled native species?—ch 7

(1) In this chapter:

controlled native species means a native species declared to be a controlled native species under subsection (2).

(2) The Minister may declare a native species to be a controlled native species if satisfied that the species is having an unacceptable impact on an environmental, social or economic asset.

Example—unacceptable impact on social asset

a threatened native species poses a serious threat to human health

, s 48).

Note 2 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

(3) A declaration is a disallowable instrument.

Note A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act

156 What is a controlled native species management plan?

In this Act:

controlled native species management plan, for a controlled native species, means a plan for the species on stated land, notified under section 163 (Draft controlled native species management plan—final version and notification).

Note The power to make the plan includes the power to amend or repeal the plan. The power to amend or repeal the plan is exercisable in the same way, and subject to the same conditions, as the power to make the plan (see Legislation Act

, s 46).

157 What is a draft controlled native species management plan?—ch 7

(1) In this chapter:

draft controlled native species management plan, for a controlled native species on stated land—

(a) means a draft plan detailing how the species may be appropriately managed on the stated land; and

Examples—appropriate management

1 prohibiting the feeding of an animal species

2 prohibiting the propagation of a plant species

3 best practice in relation to management of the species

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

(b) includes anything required to be included by a conservator guideline; and

Note Conservator guidelines—see s 23.

Example—instrument that may be applied, adopted or incorporated

a controlled native species management plan may incorporate requirements agreed to in a conservation agreement under the Environment Protection and Biodiversity Conservation Act 1999

(Cwlth)

, s 47 (5) or (6) is not disapplied (see s 47 (7)).

Note 2 A notifiable instrument must be notified under the Legislation Act

Note 3 A controlled native species management plan may include provisions about carrying on an activity that would usually require a nature conservation licence. If a person intends to carry on the activity under a plan, the person must apply for a nature conservation licence in the usual way.

(2) If a controlled native species management plan is inconsistent with an approved code of practice, or mandatory code of practice, under the Animal Welfare Act 1992

, the code of practice prevails to the extent of the inconsistency.

158 Draft controlled native species management plan—conservator to prepare

The conservator may prepare a draft controlled native species management plan for a controlled native species on stated land.

, s 48).

159 Draft controlled native species management plan—consultation with lessee and custodian

In preparing a draft controlled native species management plan for a controlled native species on stated land, the conservator must consult—

(a) if the land is leased land—the lessee of the land; and

(b) if the land is unleased land or public land—the custodian of the land.

160 Draft controlled native species management plan—public consultation

(1) If the conservator prepares a draft controlled native species management plan, the conservator must also prepare a notice about the draft plan (a public consultation notice).

(2) A public consultation notice must—

(a) state that—

(i) anyone may give a written submission to the conservator about the draft controlled native species management plan; and

(ii) submissions may be given to the conservator only during the period starting on the day the public consultation notice is notified under the Legislation Act

and ending on a stated day, being a day at least 6 weeks after the day it is notified (the public consultation period); and

(b) include the draft controlled native species management plan.

(3) A public consultation notice is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act

(4) If the conservator notifies a public consultation notice for a draft controlled native species management plan—

(a) anyone may give a written submission to the conservator about the draft plan; and

(b) the submission may be given to the conservator only during the public consultation period for the draft plan; and

(5) The conservator may make arrangements for people with particular communication needs to ensure they have adequate opportunity to comment on the draft plan.

161 Draft controlled native species management plan—revision

If the public consultation period for a draft controlled native species management plan has ended, the conservator must—

(a) consider any submissions received during the public consultation period; and

(b) make any revisions to the plan that the conservator considers appropriate; and

162 Draft controlled native species management plan—emergencies

(1) This section applies if the conservator—

(a) is preparing a draft controlled native species management plan for a controlled native species; and

(b) considers that the situation is an emergency.

(2) The conservator—

(a) need not comply with the consultation requirements in section 160 (Draft controlled native species management plan—public consultation); and

(b) may prepare a final version of the draft controlled native species management plan.

Note The final version of a draft controlled native species management plan is a controlled native species management plan and is a disallowable instrument (see s 163).

163 Draft controlled native species management plan—final version and notification

(1) The final version of a draft controlled native species management plan prepared under section 161, section 162 or section 164 is a controlled native species management plan.

(2) A controlled native species management plan is a disallowable instrument.

Note 1 A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act

Note 2 The power to make a controlled native species management plan includes the power to amend or repeal the plan. The power to amend or repeal the plan is exercisable in the same way, and subject to the same conditions, as the power to make the plan (see Legislation Act

, s 46).

164 Controlled native species management plan—minor amendments

(1) This section applies if—

(a) a controlled native species management plan for a controlled native species is in force (the existing plan); and

(b) the conservator considers that minor amendments to the existing plan are appropriate.

(2) The conservator—

(a) may prepare a new draft controlled native species management plan for the controlled native species, incorporating the minor amendments into the existing plan; and

(b) need not comply with the consultation requirements in section 160 (Draft controlled native species management plan—public consultation); and

Note The final version of the new draft controlled native species management plan is a controlled native species management plan and is a disallowable instrument (see s 163).

(3) In this section:

minor amendment, of a controlled native species management plan, means an amendment that will improve the effectiveness or technical efficiency of the plan without changing the substance of the plan.

Examples

1 minor correction to improve effectiveness

2 omission of something redundant

3 technical adjustment to improve efficiency

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

165 Controlled native species management plan—conservator etc to implement

(1) If a controlled native species management plan is in force for a controlled native species on stated land, the following people must take reasonable steps to implement the plan:

(a) the conservator;

(b) if the land is unleased land or public land—the custodian of the land.

(2) In implementing the plan, the conservator or the custodian may authorise another person to take action to implement the plan.

Note 1 Power to make a statutory instrument includes power to make different provision in relation to different matters or different classes of matters (see Legislation Act

, s 48).

Note 2 The power to make an instrument includes the power to amend or repeal the instrument (see Legislation Act

, s 46).

(3) An authorisation under subsection (2) must—

(a) be in writing; and

(b) state—

(i) the authorised person; and

(ii) the authorised action; and

Example

dispersing a camp of grey-headed flying foxes

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

(iii) any conditions that apply to the action; and

Example

shooting of wildlife may only be done at night and in accordance with the animal welfare guidelines

(iv) the period of time that the authorisation is in force.

166 Controlled native species management plan—monitoring and review

(1) The conservator must monitor the effectiveness of a controlled native species management plan.

(2) The conservator must review each controlled native species management plan at least once every 5 years.

Chapter 8 Reserves—management planning

Part 8.1 Definitions

167 What is a reserve?—Act

(1) In this Act:

reserve—

(a) means—

(i) a wilderness area; and

(ii) a national park; and

(iii) a nature reserve; and

(iv) a catchment area; and

(b) includes any other area of public land that is—

(i) reserved in the territory plan

under the Planning and Development Act 2007

, section 315 (Reserved areas—public land); and

(ii) prescribed by regulation to be a reserve; but

(2) In this section:

catchment area means an area of public land reserved in the territory plan

for the protection of water supply under the Planning and Development Act 2007

, section 315 (g).

national park means an area of public land reserved in the territory plan

for a national park under the Planning and Development Act 2007

, section 315 (b).

nature reserve means an area of public land reserved in the territory plan

for a nature reserve under the Planning and Development Act 2007

, section 315 (c).

168 What is a wilderness area?—Act

In this Act:

wilderness area means an area of public land reserved in the territory plan

for a wilderness area under the Planning and Development Act 2007

, section 315 (a).

Part 8.2 IUCN categories for reserves

Note IUCN refers to the International Union for Conservation of Nature.

169 What is an IUCN category for a reserve?—pt 8.2

In this part:

IUCN category—see the Environment Protection and Biodiversity Conservation Act 1999

(Cwlth), section 346 (1) (Content of Proclamation declaring Commonwealth reserve).

170 Assignment of reserves to IUCN categories

(1) The conservator may assign a reserve to an IUCN category.

(2) The conservator may divide a reserve into parts (zones) and assign each zone to an IUCN category.

(3) Before the conservator assigns a reserve or zone to an IUCN category, the conservator must—

(a) be satisfied that the reserve or zone—

(i) has the characteristics (if any) prescribed by regulation for the category; and

(ii) meets the criteria (if any) prescribed by regulation for the category; and

(iii) will be managed in accordance with the IUCN reserve management objectives for the category; and

(b) consult the custodian of the reserve.

(4) An assignment of a reserve or zone to an IUCN category is a notifiable instrument.

Note 1 A notifiable instrument must be notified under the Legislation Act

Note 2 The power to make an instrument includes the power to amend or repeal the instrument (see Legislation Act

, s 46).

171 IUCN reserve management objectives

A regulation may prescribe objectives for each IUCN category (the IUCN reserve management objectives).

172 Management of reserve assigned to IUCN category if no reserve management plan

(1) This section applies if—

(a) there is no reserve management plan in force for a reserve; but

(b) the reserve, or a zone of the reserve, has been assigned by the conservator to an IUCN category.

(2) If the reserve has been assigned to an IUCN category, the custodian of the reserve must manage the reserve in accordance with the IUCN reserve management objectives for the IUCN category to which the reserve is assigned.

(3) If a zone of the reserve has been assigned to an IUCN category, the custodian of the zone must manage the zone in accordance with the IUCN reserve management objectives for the IUCN category to which the zone is assigned.

Note The land must also be managed in accordance with the management objectives for the land and any management plan for the land (see Planning and Development Act 2007

, s 316).

Part 8.3 Reserve management plans

Note Under the Planning and Development Act 2007

, s 316 (b), each area of public land identified in the territory plan

must be managed in accordance with the public land management plan for the area. If the area is a reserve, the public land management plan is a reserve management plan for the area under this part (see Planning and Development Act 2007

, s 318 (1) (a)).

173 What is a reserve management plan?

In this Act:

reserve management plan, for a reserve—

(a) means a plan for the reserve, notified under section 182 (Draft reserve management plan—Minister’s approval and notification); and

(b) if the reserve includes a Ramsar wetland—includes a Ramsar wetlands management plan for the wetland.

Note 1 Ramsar wetland—see s 188.

Ramsar wetland management plan, for a Ramsar wetland—see s 189.

Note 2 The power to make a plan includes the power to amend or repeal the plan. The power to amend or repeal the plan is exercisable in the same way, and subject to the same conditions, as the power to make the plan (see Legislation Act

, s 46).

174 What is a draft reserve management plan?—pt 8.3

In this part:

draft reserve management plan, for a reserve, means a draft management plan for the reserve that—

(a) identifies the reserve; and

(b) describes how the planning and development management objectives for the reserve are to be implemented or promoted in the reserve; and

Note Planning and development management objectives—see the dictionary.

(i) is consistent with the IUCN reserve management objectives for the category; and

(ii) describes how the IUCN reserve management objectives for the reserve are to be implemented or promoted in the reserve or zone.

Note IUCN category, for a reserve—see s 169.

IUCN reserve management objectives—see s 171.

175 Draft reserve management plan—custodian to prepare

(1) The custodian of a reserve must prepare a draft reserve management plan for the reserve.

, s 48).

(2) In preparing a draft reserve management plan, the custodian must consult—

(a) the conservator; and

(b) the planning and land authority.

176 Draft reserve management plan—planning reports and strategic environmental assessments

(1) At any time before a draft reserve management plan for a reserve is approved by the Minister under section 181 (3) (a), the Minister may direct the planning and land authority to prepare—

(a) a planning report for the draft plan; or

(b) a strategic environmental assessment for the draft plan.

(2) If a planning report or strategic environmental assessment is prepared under subsection (1), the custodian of the reserve must consider the report or assessment in preparing the draft reserve management plan for the reserve.

(3) In this section:

planning and land authority—see the Planning and Development Act 2007

, dictionary.

planning report—see the Planning and Development Act 2007

, section 97 (What is a planning report?).

strategic environmental assessment—see the Planning and Development Act 2007

, section 99 (What is a strategic environmental assessment?).

177 Draft reserve management plan—public consultation

(1) If the custodian of a reserve prepares a draft reserve management plan for the reserve, the custodian must also prepare a notice about the draft reserve management plan (a public consultation notice).

(2) A public consultation notice must—

(a) state that—

(i) anyone may give a written submission to the custodian of the reserve about the draft reserve management plan; and

(ii) submissions may be given to the custodian only during the period starting on the day the public consultation notice is notified under the Legislation Act

and ending on a stated day, being a day at least 6 weeks after the day it is notified (the public consultation period); and

(b) include the draft reserve management plan.

(3) A public consultation notice is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act

(4) If the custodian of a reserve notifies a public consultation notice for a draft reserve management plan—

(a) anyone may give a written submission to the custodian about the draft plan; and

(b) the submission may be given to the custodian only during the public consultation period for the draft plan; and

(5) The custodian may make arrangements for people with particular communication needs to ensure they have adequate opportunity to comment on the draft plan.

178 Draft reserve management plan—revision and submission to Minister

(1) If the public consultation period for a draft reserve management plan has ended, the custodian of the reserve must—

(a) consider any submissions received during the public consultation period; and

(b) make any revisions to the draft plan that the custodian considers appropriate.

(2) The custodian of the reserve must then submit the draft plan to the Minister for approval.

(3) The submission must be accompanied by a report—

(a) setting out the issues raised in any submissions given to the custodian during the public consultation period for the draft plan; and

(b) if the conservator or the planning and land authority made a submission during the public consultation period recommending a change to the draft plan and the custodian did not revise the draft plan to incorporate the change—explaining why the custodian did not make the recommended change.

179 Draft reserve management plan—referral to Legislative Assembly committee

(1) This section applies if the custodian of a reserve submits a draft reserve management plan to the Minister for approval.

(2) The Minister must, not later than 5 working days after the day the Minister receives the draft plan, refer the following to an appropriate committee of the Legislative Assembly:

(a) the draft plan;

(b) the report mentioned in section 178 (3).

(3) The committee must consider the draft plan and report and either—

(a) recommend that the Minister approves the draft plan; or

(b) make another recommendation about the draft plan.

(4) The committee must tell the Minister about the recommendation and refer the matter back to the Minister.

180 Draft reserve management plan—committee to report

(1) This section applies if the Minister has referred a draft plan to a committee of the Legislative Assembly under section 179.

(2) The Minister must not take action under section 181 in relation to the draft plan until—

(a) the committee has referred the draft plan back to the Minister under section 179 (4); or

(b) 6 months after the day the draft plan was given to the committee.

(3) If the committee has not referred the draft plan back to the Minister 6 months after the day the draft plan was given to the committee, the Minister may take action under section 181 in relation to the draft plan.

(4) After the committee refers the draft plan back to the Minister, the Minister must take action under section 181 in relation to the draft plan.

181 Draft reserve management plan—Minister to approve, return or reject

(1) This section applies if—

(a) a Legislative Assembly committee refers a draft plan back to the Minister under section 179 (4); or

(b) the Minister may take action under section 180 (3); or

(c) a custodian resubmits a draft plan to the Minister under section 183 (Draft reserve management plan—Minister’s direction to revise etc).

(2) If the Legislative Assembly committee has made a recommendation about the draft plan, the Minister must consider the recommendation.

(3) The Minister must, not later than the required time—

(a) approve the draft plan; or

(b) return the draft plan to the custodian and direct the custodian to take 1 or more of the following actions in relation to it:

(i) if the Legislative Assembly committee has made a recommendation about the draft plan—consider the recommendation;

(ii) carry out stated further consultation;

(iii) consider a revision suggested by the Minister;

(iv) revise the draft plan in a stated way; or

(4) In this section:

required time means 45 working days after—

(a) if subsection (1) (a) applies—the day the committee tells the Minister about the recommendation under section 179 (4); or

(b) if subsection (1) (b) applies—the end of the 6-month period mentioned in section 180 (3); or

182 Draft reserve management plan—Minister’s approval and notification

(1) A draft reserve management plan approved by the Minister under section 181 (3) (a) or section 185 (3) (a) is a reserve management plan.

(2) A reserve management plan is a disallowable instrument.

Note 1 A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act

Note 2 The power to make a reserve management plan includes the power to amend or repeal the plan. The power to amend or repeal the plan is exercisable in the same way, and subject to the same conditions, as the power to make the plan (see Legislation Act

, s 46).

Note 3 Minor amendments may be made to the plan under s 185.

183 Draft reserve management plan—Minister’s direction to revise etc

(1) This section applies if the Minister gives the custodian of a reserve a direction under section 181 (3) (b).

(2) The custodian must—

(a) give effect to the direction; and

(b) resubmit the draft plan to the Minister for approval.

(3) The Minister must decide, under section 181, what to do with the resubmitted draft plan.

184 Draft reserve management plan—Minister’s rejection

(1) If the Minister rejects a draft reserve management plan under section 181 (3) (c), the Minister must prepare a notice stating that the draft plan is rejected (a rejection notice).

(2) A rejection notice is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act

185 Reserve management plan—minor amendments

(1) This section applies if—

(a) a reserve management plan for a reserve is in force (the existing plan); and

(b) the custodian considers that minor amendments to the existing plan are appropriate.

(2) The custodian—

(a) may prepare a new draft reserve management plan for the reserve, incorporating the minor amendments into the existing plan; and

(b) need not comply with the requirements in this part; and

(3) If the custodian submits a new draft reserve management plan to the Minister for approval, the Minister must—

(a) approve the plan; or

(b) reject the plan.

Note The new draft reserve management plan approved by the Minister is a reserve management plan and is a disallowable instrument (see s 182).

(4) In this section:

minor amendment, of a reserve management plan for a reserve, means an amendment that will improve the effectiveness or technical efficiency of the plan without changing the substance of the plan.

Examples

1 minor correction to improve effectiveness

2 omission of something redundant

3 technical adjustment to improve efficiency

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

186 Reserve management plan—custodian to implement

If a reserve management plan is in force for a reserve, the custodian of the reserve must take reasonable steps to implement the plan.

187 Reserve management plan—review

(1) This section applies if a reserve management plan is in force for a reserve.

(2) The custodian of the reserve must report to the Minister about the implementation of the plan at least once every 5 years.

(3) The custodian of the reserve must review the plan—

(a) every 10 years after the plan commences; and

(b) at any other time at the Minister’s request.

(4) However, the Minister may extend the time for conducting a review under subsection (3) (a).

(5) In carrying out a review, the custodian must consult the conservator.

Part 8.4 Ramsar wetlands management plans

Note Ramsar wetlands are wetlands of international importance.

188 What is a Ramsar wetland?

(1) In this Act:

Ramsar wetland means a declared Ramsar wetland.

(2) In this section:

declared Ramsar wetland—see the Environment Protection and Biodiversity Conservation Act 1999

(Cwlth), section 17 (What is a declared Ramsar wetland?).

189 What is a Ramsar wetland management plan?

In this Act:

Ramsar wetland management plan, for a Ramsar wetland, means a plan for the wetland notified under section 196 (Draft Ramsar wetland management plan—Minister’s approval and notification).

190 What is a draft Ramsar wetland management

plan?—pt 8.4

(1) In this part:

draft Ramsar wetland management plan, for a Ramsar wetland—

(a) means a draft plan detailing how the Ramsar wetland, and its surrounding area, is to be managed to preserve and protect the ecological character of the Ramsar wetland; and

, s 48).

(b) includes anything required to be included by a conservator guideline; and

Note Conservator guidelines—see s 23.

, s 47 (5) or (6) is not disapplied (see s 47 (7)).

Note 2 A notifiable instrument must be notified under the Legislation Act

(2) In this section:

ecological character—see the Environment Protection and Biodiversity Conservation Act 1999

(Cwlth), section 16 (3) (Requirement for approval of activities with a significant impact on a declared Ramsar wetland).

191 Draft Ramsar wetland management plan—conservator to prepare

The conservator may prepare a draft Ramsar wetland management plan for a Ramsar wetland.

192 Draft Ramsar wetland management plan—consultation with Commonwealth and custodian

In preparing a draft Ramsar wetland management plan, the conservator must consult—

(a) the Commonwealth Minister responsible for administering the Environment Protection and Biodiversity Conservation Act 1999

(Cwlth); and

(b) if the Ramsar wetland is located on unleased land or public land—the custodian of each area of land where the wetland is located.

193 Draft Ramsar wetland management plan—public consultation

(1) If the conservator prepares a draft Ramsar wetland management plan, the conservator must also prepare a notice about the draft Ramsar wetland management plan (a public consultation notice).

(2) A public consultation notice must—

(a) state that—

(i) anyone may give a written submission to the conservator about the draft Ramsar wetland management plan; and

(ii) submissions may be given to the conservator only during the period starting on the day the public consultation notice is notified under the Legislation Act

and ending on a stated day, being a day at least 6 weeks after the day it is notified (the public consultation period); and

(b) include the draft Ramsar wetland management plan.

(3) A public consultation notice is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act

(4) If the conservator notifies a public consultation notice for a draft Ramsar wetland management plan—

(a) anyone may give a written submission to the conservator about the draft plan; and

(b) the submission may be given to the conservator only during the public consultation period for the draft plan; and

(5) The conservator may make arrangements for people with particular communication needs to ensure they have adequate opportunity to comment on the draft plan.

194 Draft Ramsar wetland management plan—revision and submission to Minister

(1) If the public consultation period for a draft Ramsar wetland management plan has ended, the conservator must—

(a) consider any submissions received during the public consultation period; and

(b) make any revisions to the draft plan that the conservator considers appropriate.

(2) The conservator must then submit the draft plan to the Minister for approval.

(3) The submission must be accompanied by a report setting out the issues raised in any submissions given to the conservator during the public consultation period for the draft plan.

195 Draft Ramsar wetland management plan—Minister to approve, return or reject

If the conservator submits a draft Ramsar wetland management plan to the Minister for approval, the Minister must, not later than 45 days after receiving the submission—

(a) approve the draft plan; or

(b) return the draft plan to the conservator and direct the conservator to take 1 or more of the following actions in relation to it:

(i) carry out stated further consultation;

(ii) consider a relevant report;

(iii) revise the draft plan in a stated way; or

196 Draft Ramsar wetland management plan—Minister’s approval and notification

(1) A draft Ramsar wetland management plan approved by the Minister under section 195 (a) or section 199 (3) is a Ramsar wetland management plan.

(2) A Ramsar wetland management plan is a disallowable instrument.

Note 1 A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act

Note 2 The power to make a Ramsar wetland management plan includes the power to amend or repeal the plan. The power to amend or repeal the plan is exercisable in the same way, and subject to the same conditions, as the power to make the plan (see Legislation Act

, s 46).

Note 3 Minor amendments may be made to the Ramsar wetland management plan under s 199.

197 Draft Ramsar wetland management plan—Minister’s direction to revise etc

(1) This section applies if the Minister gives the conservator a direction under section 195 (b).

(2) The conservator must—

(a) give effect to the direction; and

(b) resubmit the draft plan to the Minister for approval.

(3) The Minister must decide, under section 195, what to do with the resubmitted draft plan.

198 Draft Ramsar wetland management plan—Minister’s rejection

(1) If the Minister rejects a draft nature conservation Ramsar wetland management plan under section 195 (c), the Minister must prepare a notice stating that the draft plan is rejected (a rejection notice).

(2) A rejection notice is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act

199 Ramsar wetland management plan—minor amendments

(1) This section applies if—

(a) a Ramsar wetland management plan for a Ramsar wetland is in force (the existing plan); and

(b) the conservator considers that minor amendments to the existing plan are appropriate.

(2) The conservator—

(a) may prepare a new draft Ramsar wetland management plan for the wetland, incorporating the minor amendments into the existing plan; and

(b) need not comply with the requirements in this part; and

(3) If the conservator submits a new draft Ramsar wetland management plan to the Minister for approval, the Minister must—

(a) approve the plan; or

(b) reject the plan.

Note The new draft Ramsar wetland management plan approved by the Minister is a Ramsar wetland management plan and is a disallowable instrument (see s 196).

(4) In this section:

minor amendment, of a Ramsar wetland management plan, means an amendment that will improve the effectiveness or technical efficiency of the plan without changing the substance of the plan.

Examples

1 minor correction to improve effectiveness

2 omission of something redundant

3 technical adjustment to improve efficiency

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

200 Ramsar wetland management plan—conservator etc to implement

If a Ramsar wetland management plan is in force for a Ramsar wetland, the following people must take reasonable steps to implement the plan:

(a) the conservator;

(b) if the Ramsar wetland is located on unleased land or public land—the custodian of each area of land where the wetland is located.

201 Ramsar wetland management plan—monitoring and review

(1) The conservator must monitor the effectiveness of a Ramsar wetland management plan.

(2) The conservator must report to the Minister about each Ramsar wetland management plan at least once every 5 years.

Part 8.5 Access to biological resources in reserves

202 What are biological resources?—pt 8.5

In this part:

biological resources includes—

(a) genetic resources; and

(b) organisms or parts of organisms; and

(d) any other biotic component of an ecosystem with actual or potential use or value for humanity.

203 What are genetic resources?—pt 8.5

In this part:

genetic resources means—

(a) any material of plant, animal, microbial or other origin that contains functional units of heredity; and

(b) has actual or potential value for humanity.

204 Who is an access provider?—pt 8.5

In this part:

access provider, for biological resources in a reserve means—

(a) the Territory; and

(b) if native title exists in relation to the reserve—the native title holders for the reserve.

205 What is accessing biological resources?—pt 8.5

(1) In this part:

accessing biological resources—

(a) means taking biological resources of native species for research and development on any genetic resources, or biochemical compounds, comprising or contained in the biological resources; but

Examples

1 collecting living material for taxonomic research

2 analysing and sampling stored material for potential commercial product development

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

(b) does not include the following activities:

(i) Aboriginal or Torres Strait Islander people taking biological resources—

(A) for a purpose other than a purpose mentioned in paragraph (a); and

(B) in the exercise of their native title rights and interests;

(ii) accessing human remains;

(iii) taking biological resources that have been cultivated or tended for a purpose other than a purpose mentioned in paragraph (a);

(iv) taking public resources for a purpose other than a purpose mentioned in paragraph (a);

(v) taking a biological resource that is a genetically modified organism;

(vi) accessing biological resources mentioned in a declaration under section 206.

(2) A person is taken to have access to biological resources if there is a reasonable prospect that biological resources taken by the person will be subject to research and development on any genetic resources, or biochemical compounds, comprising or contained in the biological resources.

(3) In this section:

genetically modified organism—see the Gene Technology Act 2003

, dictionary.

taking public resources includes the following activities:

(a) fishing for commerce or recreation;

(b) collecting broodstock for aquaculture;

(d) taking wild animals or plants for food;

(e) collecting peat or firewood;

(f) taking essential oils from wild plants;

(g) collecting plant reproductive material for propagation;

(h) commercial forestry.

206 Application—certain biological resources

(1) The conservator may declare that this part does not apply to stated biological resources or a stated collection of biological resources (including future additions to the collection) if—

(a) the resources are held as specimens away from their natural environment by the Territory or a territory authority and the conservator has reasonable grounds to believe that access to the resources is in a way that is consistent with this part; or

(b) the conservator has reasonable grounds to believe that—

(i) access to the resources is under a law in force in the Territory; or

(ii) access to the resources is under a law (other than a Commonwealth law) in force in a State and, if the declaration is made, access to the resources would be in a way that is consistent with this part; or

Example—international agreement to which Australia is a party

the International Treaty on Plant Genetic Resources for Food and Agriculture

Note 1 State includes the Northern Territory (see Legislation Act

, dict, pt 1).

Note 2 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

(2) A person may ask the conservator to make a declaration.

Note If a form is approved under s 363 for this provision, the form must be used.

(3) A declaration may be subject to conditions.

(4) A declaration is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act

207 Offence—access biological resources

(1) A person commits an offence if—

(a) the person accesses biological resources; and

(b) the biological resources are in a reserve.

Maximum penalty: 50 penalty units.

(2) An offence against this section is a strict liability offence.

(3) This section does not apply to a person if—

(a) the person holds a nature conservation licence authorising the access to the biological resources; or

Note Nature conservation licence—see s 260.

(b) the person is an access provider for the biological resources.

Note The defendant has an evidential burden in relation to the matters mentioned in s (3) (see Criminal Code

, s 58).

208 Benefit-sharing agreement—licensee required to enter

(1) An applicant for a nature conservation licence to access biological resources for commercial purposes in a reserve must enter into a benefit-sharing agreement with each access provider for the resources to enable the fair and equitable sharing of benefits derived from the use of the resources.

Note The conservator may make a model benefit-sharing agreement as a guide (see s 209 (2)).

(2) The conservator may, on behalf of the Territory as an access provider, enter into the benefit-sharing agreement.

(3) A benefit-sharing agreement takes effect only if a nature conservation licence for the proposed access is issued under chapter 11 (Nature conservation licences).

209 Benefit-sharing agreement—provisions

(1) A benefit-sharing agreement must provide for reasonable benefit-sharing arrangements, including protection for, recognition of and valuing of any Aboriginal or Torres Strait Islander people’s knowledge to be used.

(2) The conservator may make a model benefit-sharing agreement as a guide for applicants.

(3) A model benefit-sharing agreement is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act

210 Benefit-sharing agreement—informed consent

(1) The conservator must not enter into a benefit-sharing agreement on behalf of the Territory concerning access to biological resources for which a native title holder is an access provider unless the conservator is satisfied on reasonable grounds that the access provider has given informed consent to the benefit-sharing agreement.

(2) In considering whether an access provider has given informed consent to a benefit-sharing agreement, the conservator must consider the following matters:

(a) whether the access provider had adequate knowledge of this part and was able to engage in reasonable negotiations with the applicant for the nature conservation licence about the benefit-sharing agreement;

(b) whether the access provider was given adequate time—

(i) to consider the application for the nature conservation licence (including time to consult relevant people); and

(ii) to negotiate the benefit-sharing agreement;

(c) whether the views of any representative Aboriginal body or any other body performing the functions of a representative body for the reserve have been sought;

(d) whether the access provider has received independent legal advice about the application and the requirements of this part.

Chapter 9 Reserves—offences

Part 9.1 Reserves—offences generally

211 Offence—enter reserve without paying entry fee

(1) A person commits an offence if—

(a) the Minister has determined an entry fee for a reserve; and

Note An entry fee may be determined under s 362 for this provision.

(b) a conservation officer asks the person to pay the entry fee for the reserve; and

(d) the person enters the reserve.

Maximum penalty: 20 penalty units.

(2) An offence against this section is a strict liability offence.

212 Offence—take animal into reserve

(1) A person commits an offence if—

(a) the person—

(i) takes an animal into a reserve; or

(ii) allows an animal to enter a reserve; and

(b) the animal is not a native animal.

Maximum penalty: 50 penalty units.

(2) An offence against this section is a strict liability offence.

(3) This section does not apply to a person if the animal is an assistance animal.

Note The defendant has an evidential burden in relation to the matters mentioned in s (3) (see Criminal Code

, s 58).

(4) A person has the benefit of the chapter 9 exceptions for an offence against this section.

Note The chapter 9 exceptions are set out in s 250.

(5) In this section:

assistance animal—see the Domestic Animals Act 2000

, dictionary.

213 Offence—feed native animal in reserve

(1) A person commits an offence if—

(a) the person feeds an animal in a reserve; and

(b) the animal is a native animal.

Maximum penalty: 10 penalty units.

(2) An offence against this section is a strict liability offence.

(3) A person has the benefit of the chapter 9 exceptions for an offence against this section.

Note The chapter 9 exceptions are set out in s 250.

214 Offence—interfere with trap or bait in reserve

(1) A person commits an offence if the person—

(a) interferes with a trap or bait; and

(b) the trap or bait is in a reserve.

Maximum penalty: 30 penalty units.

Note Reserve—see s 167.

(2) An offence against this section is a strict liability offence.

(3) A person has the benefit of the chapter 9 exceptions for an offence against this section.

Note The chapter 9 exceptions are set out in s 250.

215 Offence—weapons and traps in reserve

(1) A person commits an offence if the person possesses or uses, in a reserve—

(a) a firearm; or

(b) a spear, spear gun, bow or arrow; or

(d) a substance that is capable of being used to take or capture an animal.

Maximum penalty: 50 penalty units.

(2) An offence against this section is a strict liability offence.

(3) A person has the benefit of the chapter 9 exceptions for an offence against this section.

Note The chapter 9 exceptions are set out in s 250.

(4) In this section:

firearm—see the Firearms Act 1996

, section 6.

216 Offence—damage native plant in reserve

(1) A person commits an offence if—

(a) the person engages in conduct; and

(b) the conduct causes damage to a plant; and

(i) a native plant; and

(ii) in a reserve.

Maximum penalty: 50 penalty units.

Note Reserve—see s 167.

(2) An offence against this section is a strict liability offence.

(3) A person has the benefit of the chapter 9 exceptions for an offence against this section.

Note The chapter 9 exceptions are set out in s 250.

217 Offence—take plant or plant reproductive material into reserve

(1) A person commits an offence if—

(a) the person takes a plant into a reserve; and

(b) the plant is a pest plant.

Maximum penalty: 30 penalty units.

(2) A person commits an offence if the person—

(a) takes plant reproductive material into a reserve; and

(b) leaves the plant reproductive material in the reserve.

Maximum penalty: 30 penalty units.

(3) An offence against this section is a strict liability offence.

218 Offence—planting a plant in a reserve

(1) A person commits an offence if the person plants a plant in a reserve.

Maximum penalty: 30 penalty units.

(2) An offence against this section is a strict liability offence.

(3) A person has the benefit of the chapter 9 exceptions for an offence against this section.

Note The chapter 9 exceptions are set out in s 250.

219 Offence—remove soil or stone from reserve

(1) A person commits an offence if the person removes soil or stone from a reserve.

Maximum penalty: 30 penalty units.

Note Reserve—see s 167.

(2) An offence against this section is a strict liability offence.

(3) A person has the benefit of the chapter 9 exceptions for an offence against this section.

Note The chapter 9 exceptions are set out in s 250.

220 Offence—damage, destroy or remove things in reserve

(1) A person commits an offence if—

(a) the person damages or destroys—

(i) a natural or constructed structure or feature; or

(ii) infrastructure; and

(b) the structure, feature or infrastructure is in a reserve.

Maximum penalty: 50 penalty units.

Note If a person damages territory property in a reserve, the director-general may direct the person to repair the damage. Failure to comply with the direction is an offence (see Public Unleased Land Act 2013

, s 21 and s 22).

(2) A person commits an offence if—

(a) the person damages or destroys a site or object; and

(b) the site or object is—

(i) of historical, archaeological, palaeontological or geological interest; and

(ii) in a reserve.

Maximum penalty: 50 penalty units.

(3) A person commits an offence if the person removes infrastructure from a reserve.

Maximum penalty: 50 penalty units.

(4) A person commits an offence if—

(a) the person removes an object from a reserve; and

(b) the object is of historical, archaeological, palaeontological or geological interest.

Maximum penalty: 50 penalty units.

(5) An offence against this section is a strict liability offence.

(6) A person has the benefit of the chapter 9 exceptions for an offence against this section.

Note The chapter 9 exceptions are set out in s 250.

(7) In this section:

infrastructure, in a reserve means the buildings, roads, items and equipment associated with managing the reserve.

Examples—infrastructure in a reserve

roads, fences, gates, signs, taps, garbage bins, toilets, visitors centre

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

Part 9.2 Reserves—offences in wilderness areas

221 Offence—make road in wilderness area

(1) A person commits an offence if the person—

(a) makes a track or road; and

(b) the track or road is in a wilderness area.

Maximum penalty: 50 penalty units.

(2) An offence against this section is a strict liability offence.

222 Offence—use motor vehicle off road in wilderness area

(1) A person commits an offence if—

(a) the person uses a motor vehicle in a wilderness area; and

(b) the motor vehicle is used outside a track or road that—

(i) is designed to be used by vehicles with 4 or more wheels; and

(ii) was in existence when the wilderness area was reserved in the territory plan

Maximum penalty: 50 penalty units.

(2) An offence against this section is a strict liability offence.

223 Offence—excavate in wilderness area without licence

(1) A person commits an offence if the person excavates in a wilderness area.

Maximum penalty: 50 penalty units.

(2) An offence against this section is a strict liability offence.

(3) This section does not apply to a person if the person holds a nature conservation licence authorising the excavation.

Note 1 Nature conservation licence—see s 260.

Note 2 The defendant has an evidential burden in relation to the matters mentioned in s (3) (see Criminal Code

, s 58).

224 Direction to restore excavation site

(1) This section applies if a person—

(a) excavates in a wilderness area; and

(b) when the excavation is finished, fails to restore the excavation site and its surroundings as far as possible to their former state.

(2) The conservator may direct the person to restore the site and surroundings as far as possible to their former state (a restore excavation direction).

(3) A restore excavation direction must be in writing and state—

(a) the wilderness area; and

(b) the excavation site and surroundings; and

(d) when the direction must be complied with, being a day at least 1 month after the direction is given to the person.

Note The power to make a direction includes the power to amend or repeal the direction. The power to amend or repeal the direction is exercisable in the same way, and subject to the same conditions, as the power to make the direction (see Legislation Act

, s 46).

225 Offence—fail to comply with restore excavation direction

(1) A person commits an offence if the person—

(a) is subject to a restore excavation direction; and

(b) fails to comply with the direction.

Maximum penalty: 20 penalty units.

(2) An offence against this section is a strict liability offence.

(3) This section does not apply to a person if the person takes reasonable steps to restore the excavation site and its surroundings as far as possible to their former state.

Note The defendant has an evidential burden in relation to the matters mentioned in s (3) (see Criminal Code

, s 58).

226 Restoration of excavation site by Territory

(1) This section applies if a person—

(a) is subject to a restore excavation direction; and

(b) fails to comply with the direction.

(2) The conservator may—

(a) restore the site and surroundings; and

(b) recover from the person the reasonable costs of restoring the site and surroundings.

Note An amount owing under a law may be recovered as a debt in a court of competent jurisdiction or the ACAT (see Legislation Act

, s 177).

Part 9.3 Reserves—repairing damage

227 Directions to repair damage to reserve

(1) This section applies if—

(a) a person causes damage to—

(i) a reserve; or

(ii) Territory property on a reserve; and

Examples

• fence

• visitor facilities

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

(b) the damage is not authorised under a nature conservation licence.

Note Nature conservation licence—see s 260.

(2) The conservator may direct the person to repair the damage (a repair damage direction).

(3) A repair damage direction must be in writing and state—

(a) the reserve and Territory property (if any); and

(b) the damage to be repaired; and

, s 46).

228 Offence—fail to comply with repair damage direction

(1) A person commits an offence if the person—

(a) is subject to a repair damage direction; and

(b) fails to comply with the direction.

Maximum penalty: 20 penalty units.

(2) An offence against this section is a strict liability offence.

229 Repair of damage by Territory

(1) This section applies if a person—

(a) is subject to a repair damage direction; and

(b) fails to comply with the direction.

(2) The conservator may—

(a) repair the damage; and

(b) recover from the person the reasonable costs of repairing the damage.

Note An amount owing under a law may be recovered as a debt in a court of competent jurisdiction or the ACAT (see Legislation Act

, s 177).

Part 9.4 Reserves—offences about clearing native vegetation

230 What is native vegetation?—pt 9.4

In this part:

native vegetation, for an area, means any of the following kinds of vegetation indigenous to the area:

(a) trees;

(b) understorey plants;

(d) plants occurring in a wetland or stream in the area.

231 What is a native vegetation area?—pt 9.4

In this part:

native vegetation area, means an area where—

(a) either—

(i) 10% or more of the area is covered with vegetation (whether dead or alive); and

(ii) no more than 60% of the ground layer vegetation cover is exotic annual (at any time of year); and

(iii) more than 50% of the perennial ground layer vegetation cover is native vegetation; or

(b) trees or shrubs indigenous to the area have a canopy cover of 10% or more in any stratum over the area.

232 What is clearing native vegetation?—pt 9.4

In this part:

clearing native vegetation includes—

(a) cutting down, felling, thinning, logging or removing native vegetation; and

(b) burning native vegetation; and

233 When does clearing native vegetation cause serious harm or material harm to a reserve?—pt 9.4

In this part:

cause, serious harm or material harm, means substantially contribute directly or indirectly to the harm.

material harm—clearing native vegetation in a reserve causes material harm to the reserve if—

(a) it happens in a wetland, other than a Ramsar wetland, in the reserve; or

Note Ramsar wetland—see s 188.

(b) the total area cleared of native vegetation is more than 0.2ha but not more than 2ha; or

serious harm—clearing native vegetation in a reserve causes serious harm to the reserve if—

(a) it causes the loss of, or the loss of part of—

(i) a critically endangered ecological community in the reserve; or

(ii) an endangered ecological community in the reserve; or

(iii) a vulnerable ecological community in the reserve; or

Note Critically endangered, endangered and vulnerable ecological communities are threatened ecological communities—see s 67.

(b) it causes a substantial loss of habitat of native plants or native animals in the reserve; or

Note Ramsar wetland—see s 188.

(d) the total area cleared of native vegetation in the reserve is more than 2ha; or

(e) the cost of action needed to restore native vegetation to the area cleared in the reserve is more than $50 000.

234 Offence—clear vegetation causing serious harm

(1) A person commits an offence if—

(a) the person clears native vegetation in a native vegetation area; and

(b) the native vegetation area is in a reserve; and

(d) the person knows that—

(i) the vegetation is native vegetation; and

(ii) the area cleared is in a reserve; and

(iii) the clearing causes serious harm to the reserve.

Maximum penalty: 2 500 penalty units, imprisonment for 7 years or both.

(2) A person commits an offence if—

(a) the person clears native vegetation in a native vegetation area; and

(b) the native vegetation area is in a reserve; and

(d) the person is reckless about whether—

(i) the vegetation is native vegetation; and

(ii) the area cleared is in a reserve; and

(iii) the clearing causes serious harm to the reserve.

Maximum penalty: 2 000 penalty units, imprisonment for 5 years or both.

(3) A person commits an offence if—

(a) the person clears native vegetation in a native vegetation area; and

(b) the native vegetation area is in a reserve; and

(d) the person is negligent about whether—

(i) the vegetation is native vegetation; and

(ii) the area cleared is in a reserve; and

(iii) the clearing causes serious harm to the reserve.

Maximum penalty: 1 500 penalty units, imprisonment for 3 years or both.

(4) A person has the benefit of the chapter 9 exceptions for an offence against this section.

Note The chapter 9 exceptions are set out in s 250.

235 Offence—clear vegetation causing material harm

(1) A person commits an offence if—

(a) the person clears native vegetation in a native vegetation area; and

(b) the native vegetation area is in a reserve; and

(d) the person knows that—

(i) the vegetation is native vegetation; and

(ii) the area cleared is in a reserve; and

(iii) the clearing causes material harm to the reserve.

Maximum penalty: 1 500 penalty units, imprisonment for 5 years or both.

(2) A person commits an offence if—

(a) the person clears native vegetation in a native vegetation area; and

(b) the native vegetation area is in a reserve; and

(d) the person is reckless about whether—

(i) the vegetation is native vegetation; and

(ii) the area cleared is in a reserve; and

(iii) the clearing causes material harm to the reserve.

Maximum penalty: 1 000 penalty units, imprisonment for 2 years or both.

(3) A person commits an offence if—

(a) the person clears native vegetation in a native vegetation area; and

(b) the native vegetation area is in a reserve; and

(d) the person is negligent about whether—

(i) the vegetation is native vegetation; and

(ii) the area cleared is in a reserve; and

(iii) the clearing causes material harm to the reserve.

Maximum penalty: 750 penalty units, imprisonment for 1 year or both.

(4) A person has the benefit of the chapter 9 exceptions for an offence against this section.

Note The chapter 9 exceptions are set out in s 250.

236 Offence—clear vegetation

(1) A person commits an offence if—

(a) the person clears native vegetation in a native vegetation area; and

(b) the native vegetation area is in a reserve.

Maximum penalty: 100 penalty units.

(2) An offence against this section is a strict liability offence.

(3) A person has the benefit of the chapter 9 exceptions for an offence against this section.

Note The chapter 9 exceptions are set out in s 250.

(4) It is a defence to a prosecution for an offence against this section if the defendant proves that the defendant took all reasonable steps to avoid committing the offence.

Note The defendant has a legal burden in relation to the matters mentioned in s (4) (see Criminal Code

, s 59).

237 Defence of appropriate diligence for offences—pt 9.4

It is a defence to a prosecution for an offence against this part if the defendant proves that the defendant took all reasonable precautions and exercised all appropriate diligence to prevent the commission of the offence.

238 Alternative verdicts for offences—pt 9.4

(1) This section applies if, in a prosecution for a relevant offence, the trier of fact—

(a) is not satisfied beyond reasonable doubt that the defendant is guilty of the relevant offence; but

(b) is satisfied beyond reasonable doubt that the defendant is guilty of an alternative offence.

(2) The trier of fact may find the defendant guilty of the alternative offence, but only if the defendant has been given procedural fairness in relation to that finding of guilt.

(3) In this section:

alternative offence, for a relevant offence, means an offence mentioned in table 238, column 3, for the offence.

relevant offence means an offence mentioned in table 238, column 2.

Table 238 Alternative verdicts for offences—pt 9.4

column 1 item	column 2 relevant offence	column 3 alternative offence
1	s 234 (1) (knowingly clear vegetation—serious harm)	s 234 (2) (recklessly clear vegetation—serious harm) s 234 (3) (negligently clear vegetation—serious harm)
2	s 234 (2) (recklessly clear vegetation—serious harm)	s 234 (3) (negligently clear vegetation—serious harm)
3	s 235 (1) (knowingly clear vegetation—material harm)	s 235 (2) (recklessly clear vegetation—material harm) s 235 (3) (negligently clear vegetation—material harm)
4	s 235 (2) (recklessly clear vegetation—material harm)	s 235 (3) (negligently clear vegetation—material harm)

239 Order to restore cleared vegetation etc

(1) This section applies if a court convicts a person, or finds a person guilty, of an offence against this part.

(2) The court may order the person to—

(a) take any action the court considers appropriate, including action to—

(i) mitigate the effect of the clearing; or

(ii) restore native vegetation in the area cleared; or

(b) pay an amount to the Territory for reasonable costs incurred, or to be incurred, by the Territory in taking action—

(i) mentioned in paragraph (a); or

(ii) to monitor the outcome of action ordered under paragraph (a).

(3) The court may also order the person to provide security for the performance of any obligation under the order.

(4) The court may take action under this section—

(a) on its own initiative or on the application of the conservator; and

(b) in addition to, or instead of, any other penalty it may impose for the offence.

240 Order to publicise conviction or finding of guilt—pt 9.4

(1) This section applies if a court convicts a person, or finds a person guilty, of an offence against this part.

(2) The court may order the person to take stated action to publicise—

(a) the conviction or finding of guilt; and

(b) the environmental and other consequences of the offence; and

(d) any action taken by the person—

(i) to mitigate the effect of the clearing; or

(ii) to restore native vegetation in the area cleared.

(3) The court may take action under this section—

(a) on its own initiative or on the application of the conservator; and

(b) in addition to, or instead of, any other penalty it may impose for the offence.

Part 9.5 Reserves—offences about damaging land

241 What is damage to land?—pt 9.5

In this part:

damage, to land, includes the destruction on the land, or removal from the land, of any of the following:

(a) clay;

(b) gravel;

(d) sand;

(e) soil;

(f) stone.

Examples—damage to land

• crushing rocks

• contaminating soil

• heaping rocks, stones, gravel, sand, clay or soil

• altering the soil profile

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

242 When does damage to land cause serious harm or material harm to a reserve?—pt 9.5

In this part:

cause serious or material harm, means substantially contribute directly or indirectly to the harm.

material harm—damage to land in a reserve causes material harm to the reserve if the cost of action needed to rehabilitate the area damaged is within the range of $5 000 to $50 000.

serious harm—damage to land in a reserve causes serious harm to the reserve if—

(a) it causes the loss of, or the loss of part of—

(i) a critically endangered ecological community in the reserve; or

(ii) an endangered ecological community in the reserve; or

(iii) a vulnerable ecological community in the reserve; or

Note Critically endangered, endangered and vulnerable ecological communities are threatened ecological communities—see s 67.

(b) it causes a substantial loss of habitat of native plants or native animals in the reserve; or

(d) the cost of action needed to rehabilitate the land damaged in the reserve is more than $50 000.

243 Offence—damage land causing serious harm

(1) A person commits an offence if—

(a) the person damages land; and

(b) the land is in a reserve; and

(d) the person knows that—

(i) the land damaged is in a reserve; and

(ii) the damage causes serious harm to the reserve.

Maximum penalty: 2 500 penalty units, imprisonment for 7 years or both.

(2) A person commits an offence if—

(a) the person damages land; and

(b) the land is in a reserve; and

(d) the person is reckless about whether—

(i) the land damaged is in a reserve; and

(ii) the damage causes serious harm to the reserve.

Maximum penalty: 2 000 penalty units, imprisonment for 5 years or both.

(3) A person commits an offence if—

(a) the person damages land; and

(b) the land is in a reserve; and

(d) the person is negligent about whether—

(i) the land damaged is in a reserve; and

(ii) the damage causes serious harm to the reserve.

Maximum penalty: 1 500 penalty units, imprisonment for 3 years or both.

(4) A person has the benefit of the chapter 9 exceptions for an offence against this section.

Note The chapter 9 exceptions are set out in s 250.

244 Offence—damage land causing material harm

(1) A person commits an offence if—

(a) the person damages land; and

(b) the land is in a reserve; and

(d) the person knows that—

(i) the land damaged is in a reserve; and

(ii) the damage causes material harm to the reserve.

Maximum penalty: 1 500 penalty units, imprisonment for 5 years or both.

(2) A person commits an offence if—

(a) the person damages land; and

(b) the land is in a reserve; and

(d) the person is reckless about whether—

(i) the land damaged is in a reserve; and

(ii) the damage causes material harm to the reserve.

Maximum penalty: 1 000 penalty units, imprisonment for 2 years or both.

(3) A person commits an offence if—

(a) the person damages land; and

(b) the land is in a reserve; and

(d) the person is negligent about whether—

(i) the land damaged is in a reserve; and

(ii) the damage causes material harm to the reserve.

Maximum penalty: 750 penalty units, imprisonment for 1 year or both.

(4) A person has the benefit of the chapter 9 exceptions for an offence against this section.

Note The chapter 9 exceptions are set out in s 250.

245 Offence—damage land causing harm

(1) A person commits an offence if—

(a) the person damages land; and

(b) the land is in a reserve; and

Maximum penalty: 100 penalty units.

(2) An offence against this section is a strict liability offence.

(3) A person has the benefit of the chapter 9 exceptions for an offence against this section.

Note The chapter 9 exceptions are set out in s 250.

(4) It is a defence to a prosecution for an offence against this section if the defendant proves that the defendant took all reasonable steps to avoid committing the offence.

Note The defendant has a legal burden in relation to the matters mentioned in s (4) (see Criminal Code

, s 59).

(5) In this section:

harm, to a reserve, includes any loss or disadvantage to the environment in the reserve.

246 Defence of appropriate diligence for offences—pt 9.5

247 Alternative verdicts for offences—pt 9.5

(1) This section applies if, in a prosecution for a relevant offence, the trier of fact—

(a) is not satisfied beyond reasonable doubt that the defendant is guilty of the relevant offence; but

(b) is satisfied beyond reasonable doubt that the defendant is guilty of an alternative offence.

(2) The trier of fact may find the defendant guilty of the alternative offence, but only if the defendant has been given procedural fairness in relation to that finding of guilt.

(3) In this section:

alternative offence, for a relevant offence, means an offence mentioned in table 247, column 3, for the offence.

relevant offence means an offence mentioned in table 247, column 2.

Table 247 Alternative verdicts for offences—pt 9.5

column 1 item	column 2 relevant offence	column 3 alternative offence
1	s 243 (1) (knowingly damage land—serious harm)	s 243 (2) (recklessly damage land—serious harm) s 243 (3) (negligently damage land—serious harm)
2	s 243 (2) (recklessly damage land—serious harm)	s 243 (3) (negligently damage land—serious harm)
3	s 244 (1) (knowingly damage land—material harm)	s 244 (2) (recklessly damage land—material harm) s 244 (3) (negligently damage land—material harm)
4	s 244 (2) (recklessly damage land—material harm)	s 244 (3) (negligently damage land—material harm)

248 Order to rehabilitate land etc

(1) This section applies if a court convicts a person, or finds a person guilty, of an offence against this part.

(2) The court may order the person to—

(a) take any action the court considers appropriate, including action to—

(i) mitigate the effect of the damage; or

(ii) rehabilitate the land damaged as closely as possible to its condition before the damage; or

(b) pay an amount to the Territory for reasonable costs incurred, or to be incurred, by the Territory in taking action—

(i) mentioned in paragraph (a); or

(ii) to monitor the outcome of action ordered under paragraph (a).

(3) The court may also order the person to provide security for the performance of any obligation under the order.

(4) The court may take action under this section—

(a) on its own initiative or on the application of the conservator; and

(b) in addition to, or instead of, any other penalty it may impose for the offence.

249 Order to publicise conviction or finding of guilt—pt 9.5

(1) This section applies if a court convicts a person, or finds a person guilty, of an offence against this part.

(2) The court may order the person to take stated action to publicise—

(a) the conviction or finding of guilt; and

(b) the environmental and other consequences of the offence; and

(d) any action taken by the person—

(i) to mitigate the effect of the damage; or

(ii) to rehabilitate the land damaged as closely as possible to its condition before the damage.

(3) The court may take action under this section—

(a) on its own initiative or on the application of the conservator; and

(b) in addition to, or instead of, any other penalty it may impose for the offence.

Part 9.6 Exceptions to offences

250 Chapter 9 exceptions

(1) This section applies if a person has the benefit of the chapter 9 exceptions for an offence.

(2) The offence does not apply to the person if—

(a) the conduct constituting the offence is—

(i) a restricted activity under an activities declaration and the person is complying with the directions and requirements stated in the declaration; or

Note Activities declaration—see s 254.

Restricted activity—see s 254.

(ii) undertaken in accordance with a management agreement; or

Note Management agreement—see s 308.

(iii) undertaken in implementing a controlled native species management plan under section 165 (Controlled native species management plan—conservator etc to implement); or

Note Controlled native species management plan—see s 156.

(b) the person is authorised to engage in the conduct constituting the offence under—

(i) a nature conservation licence; or

Note Nature conservation licence—see s 260.

(ii) a strategic bushfire management plan under the Emergencies Act 2004

, section 72; or

(iii) a development approval under the Planning and Development Act 2007

, chapter 7 (Development approvals); or

(iv) a public unleased land permit; or

Note 1 The defendant has an evidential burden in relation to the matters mentioned in s (2) (see Criminal Code

, s 58).

Note 2 This Act does not apply to emergency services personnel exercising functions under the Emergencies Act 2004

for the purpose of protecting life or property or controlling, extinguishing or preventing the spread of a fire (see s 7).

Chapter 10 Reserves—prohibited and restricted activities

Note Because reserves are public unleased land, the provisions of the Public Unleased Land Act 2013

also apply. For example, a person wishing to camp in a reserve may need a public unleased land permit if the camping is not authorised under this Act.

Part 10.1 Resource protection areas

251 What is a resource protection area?—ch 10

In this chapter:

resource protection area means an area declared by the Minister to be a resource protection area under section 252.

252 Resource protection area—declaration

(1) The Minister may declare an area in a reserve to be a resource protection area (a resource protection area declaration).

Note The power to make a declaration includes the power to amend or repeal the declaration. The power to amend or repeal the declaration is exercisable in the same way, and subject to the same conditions, as the power to make the declaration (see Legislation Act

, s 46).

(2) A resource protection area declaration must—

(a) state the purpose of the declaration, including a description of the environmental harm that the declaration is intended to reduce; and

(b) identify the area to be declared as a resource protection area.

(3) In deciding whether to make a resource protection area declaration, the Minister must consider—

(a) the purpose for which the area was reserved in the territory plan

under the Planning and Development Act 2007

, section 315 (Reserved areas—public land); and

(b) the planning and development management objectives for the area; and

Note Planning and development management objectives—see the dictionary.

(c) for an area in a reserve that the conservator has assigned to an IUCN category—the IUCN reserve management objectives identified for the reserve.

Note IUCN category—see s 169.

IUCN reserve management objectives—see s 171.

(4) In deciding whether to make a resource protection area declaration, the Minister must consult—

(a) the conservator; and

(b) the custodian of the area.

(5) A resource protection area declaration is a disallowable instrument.

Note A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act

(6) In this section:

environmental harm—see the Environment Protection Act 1997

, dictionary.

253 Resource protection area—review

(1) The conservator must review a resource protection area declaration at least once every 3 years after the declaration commences.

(2) In reviewing a resource protection area declaration, the conservator—

(a) must consider the effectiveness of the declaration in achieving its stated purpose; and

(b) may make recommendations to the Minister about the declaration.

Part 10.2 Prohibited and restricted activities

254 Conservator may make activities declarations

(1) This section applies if the conservator reasonably believes that a certain activity, if carried out in a reserve, may have a negative impact on the reserve.

(2) The conservator may declare (an activities declaration) that a stated activity—

(a) may be carried out in a stated reserve only if stated directions or requirements are complied with (a restricted activity); or

(b) is prohibited in a stated reserve (a prohibited activity).

Examples—activities in reserves

• driving a motor vehicle

• parking a motor vehicle

• mooring a vessel

• taking an animal

• lighting, maintaining or using a fire

• camping

• swimming

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

(3) In deciding whether to make an activities declaration for a reserve, the conservator must consider the reserve management plan for the reserve.

Note Reserve management plan—see s 173.

(4) An activities declaration is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act

(5) If the conservator makes an activities declaration for a reserve, the conservator must—

(a) publish a notice about the declaration in a daily newspaper; and

(b) display a notice about the declaration in a conspicuous place at the reserve.

Note The power to make a declaration includes the power to amend or repeal the declaration (see Legislation Act

, s 46).

255 Offence—carry on restricted activity in reserve

(1) A person commits an offence if—

(a) an activities declaration is in force for a reserve; and

(b) the activities declaration states that an activity is a restricted activity for the reserve; and

Maximum penalty: 10 penalty units.

(2) A person commits an offence if—

(a) an activities declaration is in force for a resource protection area in a reserve; and

(b) the activities declaration states that an activity is a restricted activity for the resource protection area; and

(c) the person carries out the restricted activity in the resource protection area in contravention of the activities declaration.

Maximum penalty: 30 penalty units.

Note Resource protection area—see s 251.

(3) An offence against this section is a strict liability offence.

(4) A person has the benefit of the part 10.2 exceptions for an offence against this section.

Note The part 10.2 exceptions are set out in s 259.

256 Offence—carry on prohibited activity in reserve

(1) A person commits an offence if—

(a) an activities declaration is in force for a reserve; and

(b) the activities declaration states that an activity is a prohibited activity for the reserve; and

Maximum penalty: 20 penalty units.

(2) A person commits an offence if—

(a) an activities declaration is in force for a resource protection area in a reserve; and

(b) the activities declaration states that an activity is a prohibited activity for the resource protection area; and

Maximum penalty: 50 penalty units.

Note Resource protection area—see s 251.

(3) An offence against this section is a strict liability offence.

(4) A person has the benefit of the part 10.2 exceptions for an offence against this section.

Note The part 10.2 exceptions are set out in s 259.

257 Conservator may close reserve

(1) This section applies if the conservator reasonably believes that public access to a reserve may—

(a) endanger public safety; or

(b) interfere with the management of the reserve.

(2) The conservator may declare (a closed reserve declaration) that—

(a) access to a reserve is restricted to stated people or a stated class of people; or

(b) public access to a reserve is prohibited.

(3) A closed reserve declaration is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act

(4) If the conservator makes a closed reserve declaration, the conservator must—

(a) publish a notice about the declaration in a daily newspaper; and

(b) display a notice about the declaration in a conspicuous place at the reserve.

Note The power to make a declaration includes the power to amend or repeal the declaration (see Legislation Act

, s 46).

258 Offence—enter closed reserve

(1) A person commits an offence if—

(a) a closed reserve declaration is in force for a reserve; and

(b) the person enters the reserve in contravention of the declaration.

Maximum penalty: 50 penalty units.

(2) An offence against this section is a strict liability offence.

(3) It is a defence to a prosecution for an offence against this section if the defendant proves that the defendant took reasonable steps to ensure that the contravention did not happen.

Note The defendant has a legal burden in relation to the matters mentioned in s (3) (see Criminal Code

, s 59).

259 Part 10.2 exceptions

(1) This section applies if a person has the benefit of the part 10.2 exceptions for an offence.

(2) The offence does not apply to the person if—

(a) the person is authorised to engage in the conduct constituting the offence under—

(i) a nature conservation licence; or

Note Nature conservation licence—see s 260.

(ii) a licence to occupy or use the land under the Planning and Development Act 2007

, section 303; or

(iii) a development approval under the Planning and Development Act 2007

, chapter 7; or

(iv) a work approval under the Public Unleased Land Act 2013

, section 19; or

(v) a public unleased land permit; or

(vi) a licence to park and use a vehicle on the land to sell goods or services under the Hawkers Act 2003

; or

(vii) another law of the Territory; or

(b) the person is a conservation officer exercising a function under this Act.

Note The defendant has an evidential burden in relation to the matters mentioned in s (2) (see Criminal Code

, s 58).

(3) It is a defence to a prosecution for an offence against this section if the defendant proves that the defendant took reasonable steps to ensure that the contravention did not happen.

Note 1 The defendant has a legal burden in relation to the matters mentioned in s (3) (see Criminal Code

, s 59).

Note 2 This Act does not apply to emergency services personnel exercising functions under the Emergencies Act 2004

for the purpose of protecting life or property or controlling, extinguishing or preventing the spread of a fire (see s 7).

Chapter 11 Nature conservation licences

Part 11.1 Licences—preliminary

260 What is a nature conservation licence?

In this Act:

nature conservation licence means a licence that authorises the licensee to carry on 1 or more activities (the licensed activity) that would otherwise be an offence under this Act.

Note Some activities are unsuitable for a licence (see s 266 (1) (b)).

261 Offence—fail to comply with condition of licence

(1) A person commits an offence if—

(a) the person holds a licence; and

(b) the licence is subject to a condition; and

Maximum penalty: 20 penalty units.

(2) A person commits an offence if—

(a) the person holds a licence; and

(b) the licence is subject to a financial assurance condition; and

Maximum penalty: 30 penalty units.

Note Financial assurance condition, on a licence—see s 276.

(3) An offence against this section is a strict liability offence.

Part 11.2 Licences—application and suitability

262 Licence—application

(1) A person may apply to the conservator for a licence.

(2) The application must—

(a) be in writing; and

(b) state the activity for the licence; and

(i) the applicant; and

(ii) if the applicant is a corporation—each influential person for the applicant; and

(iii) if someone other than the applicant is to have management or control of the activity for the licence—each person who is to have management or control; and

(iv) the activity for the licence.

Note 1 Suitability information, about a person—see s 264.

Suitability information, about an activity—see s 267.

Note 2 Giving false or misleading information is an offence against the Criminal Code

, s 338.

Note 3 If a form is approved under s 363 for this provision, the form must be used.

Note 4 A fee may be determined under s 362 for this provision.

263 Who is a suitable person to hold a licence?—ch 11

(1) In this chapter:

suitable person, to hold a licence, means a person who the conservator is satisfied is a suitable person to hold the licence.

(2) In deciding whether a person is a suitable person to hold a licence, the conservator must consider each of the following:

(a) suitability information about the person;

(b) any information given to the conservator under section 265 (Suitability of people—further information about people).

264 What is suitability information about a person?—ch 11

In this chapter:

suitability information, about a person, means information about—

(a) any conviction of, or finding of guilt against, the person for an offence against the following:

(i) this Act;

(ii) the Animal Welfare Act 1992

;

(iii) the Domestic Animals Act 2000

;

(iv) the Environment Protection Act 1997

;

(v) the Fisheries Act 2000

;

(vi) the Water Resources Act 2007

;

(vii) a law of another jurisdiction corresponding, or substantially corresponding, to this Act or an Act mentioned in subparagraphs (ii) to (vi); and

Examples—subpar (vii)

1 Environment Protection and Biodiversity Conservation Act 1999

(Cwlth)

2 National Parks and Wildlife Act 1974

(NSW)

3 Threatened Species Conservation Act 1995

(NSW)

Note 1 A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation Act

, s 104).

Note 2 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

(b) any noncompliance by the person with a requirement under an Act mentioned in paragraph (a); and

Example

failing to comply with a treatment direction (see s 328)

(c) any refusal of an application by the person for a licence, permit or other authority (however described) under an Act mentioned in paragraph (a); and

(d) any other matter relevant to the person’s ability to appropriately carry on an activity in relation to an animal, plant or land; and

(e) any other matter prescribed by regulation.

265 Suitability of people—further information about people

(1) This section applies if the conservator is making a decision about whether a person is a suitable person to hold a licence.

(2) The conservator may, by written notice given to the person (a personal information notice), require the person to give the conservator stated information about 1 or more of the following people, not later than a stated reasonable time:

(a) the person;

(b) if the person is a corporation—an influential person for the corporation.

(3) The conservator need not decide whether a person is a suitable person to hold a licence if—

(a) the conservator has given the person a personal information notice; and

(b) the person does not comply with the notice.

266 What is a suitable activity for a licence?

(1) In this Act:

suitable activity, for a licence—

(a) means an activity that the conservator is satisfied is suitable for the licence; but

(b) does not include an activity prescribed by regulation as an unsuitable activity.

(2) In deciding whether an activity is suitable for a licence, the conservator must consider each of the following:

(a) suitability information about the activity;

(b) any information about the activity given to the conservator under section 268 (Suitability of activities—further information about activity);

(c) any risk management plan given to the conservator under section 269 (Suitability of activities—risk management plan);

(d) the results of any inspection of a place by the conservator under section 270 (Suitability of activities—inspection of place);

(e) if the activity involves a relevant species, relevant ecological community or key threatening process for which an action plan is in force—the action plan;

Note Action plan—see s 97.

Key threatening process—see s 72.

Relevant ecological community and relevant species—see s 96.

(f) if the activity involves a species for which a native species conservation plan is in force—the native species conservation plan;

Note Native species conservation plan—see s 113.

(g) if the activity involves a native species and a controlled native species management plan is in force for the native species—the controlled native species management plan;

(h) if the activity is to be carried out in a reserve—

(i) the planning and development management objectives for the reserve; and

Note Planning and development management objectives—see the dictionary.

(ii) for a reserve assigned to an IUCN category under section 170—the IUCN reserve management objectives identified for the reserve or area;

Note IUCN category—see s 169.

IUCN reserve management objectives—see s 171.

(i) if the activity is to be carried out in a resource protection area—the purpose of the resource protection area declaration, including the environmental harm that the declaration is intended to reduce.

Note Resource protection area declaration—see s 252.

(3) In deciding whether an activity to be carried out in a reserve is suitable for a licence, the conservator must consult the custodian of the reserve.

267 What is suitability information about an activity?

In this Act:

suitability information, about an activity, means information about—

(a) the impact of the activity on the animal, plant or land; and

Examples

• ecological survey

• action plan

• species conservation plan

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

(b) the purpose of the activity; and

Examples

• scientific research

• education

• commercial trade

(d) if the activity involves a native species—the number and species of each native species involved in the activity; and

(e) any other matter prescribed by regulation.

Note The conservator must also consider suitability information for an activity when deciding to amend or renew a licence (see s 284, s 286 and s 290).

268 Suitability of activities—further information about activity

(1) This section applies if the conservator is making a decision about whether an activity is a suitable activity for a licence.

(2) The conservator may, by written notice given to the applicant (an activity information notice), require the applicant to give the conservator stated information about the activity, not later than a stated reasonable time.

(3) The conservator need not decide whether an activity is a suitable activity for a licence if—

(a) the conservator has given the applicant an activity information notice; and

(b) the applicant does not comply with the notice.

269 Suitability of activities—risk management plan

(1) This section applies if the conservator is—

(a) making a decision about whether an activity is a suitable activity for a licence; and

(b) satisfied that carrying on the activity in accordance with the licence is likely to cause undue risk to people or property.

(2) The conservator may, by written notice given to the applicant (a risk management plan notice), require the applicant to prepare a risk management plan for the licence.

(3) The risk management plan must—

(a) identify the risks to people and property; and

(b) set out the procedures, practices and arrangements for eliminating or minimising the risks.

(4) The conservator need not decide an application for a licence if—

(a) the conservator has given the applicant a risk management plan notice; and

(b) the applicant does not comply with the notice.

270 Suitability of activities—inspection of place

(1) This section applies if—

(a) the conservator is making a decision about whether an activity is suitable for a licence; and

(b) the activity involves keeping an animal.

(2) The conservator may, by written notice given to the applicant (an inspection notice), require the applicant to allow the conservator to inspect the place where the animal is to be kept within a stated reasonable time.

(3) The conservator need not decide whether an activity is a suitable activity for a licence if—

(a) the conservator has given the applicant an inspection notice; and

(b) the applicant does not comply with the notice.

Part 11.3 Licences—decision

271 Licence—decision on application

(1) This section applies if the conservator receives an application for a licence.

(2) The conservator may issue the licence to the applicant only if reasonably satisfied that—

(a) the applicant is a suitable person to hold the licence; and

(b) if the applicant is a corporation—each influential person for the applicant is a suitable person to hold the licence; and

(c) if someone other than the applicant is to have management or control of the activity for the licence—each person who is to have management or control of the activity is a suitable person to hold the licence; and

(d) the activity is a suitable activity for the licence.

Note Suitable activity, for a licence—see s 266.

Suitable person, to hold a licence—see s 263.

(3) The conservator must, not later than the required time—

(a) decide the application; and

(b) tell the applicant about the decision on the application.

(4) In this section:

required time means the latest of the following:

(a) if the conservator gives the applicant a personal information notice under section 265—28 days after the day the conservator receives the stated information;

(b) if the conservator gives the applicant an activity information notice under section 268—28 days after the day the conservator receives the information;

(c) if the conservator gives the applicant a risk management plan notice under section 269—28 days after the day the conservator receives the risk management plan;

(d) if the conservator gives the applicant an inspection notice under section 270—28 days after the day the conservator inspects the place;

(e) 28 days after the day the conservator receives the application.

Note Failure to issue a licence within the required time is taken to be a decision not to issue the licence (see ACT Civil and Administrative Tribunal Act 2008

, s 12).

272 Licence—conditions generally

A licence is subject to any condition—

(a) prescribed by regulation; and

(b) that the conservator reasonably believes is necessary to meet the objects of this Act.

Examples—par (b)

1 that the licensee may carry on the activity only during a stated season

2 that the licensee may carry on the activity only for non-commercial purposes

3 a financial assurance condition (see s 276)

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

273 Licence—conditions about native species conservation plans etc

(1) This section applies if—

(a) a licence is issued to carry out an activity on stated land; and

(b) the land is subject to a native species conservation plan.

Note Native species conservation plan, for a native species—see s 113.

(2) The licence is subject to the condition that the activity must be carried out in accordance with the plan.

274 Licence—term

(1) A licence starts on the day stated in the licence.

(2) The conservator must not issue a licence for longer than 5 years.

(3) A licence expires on the day stated in the licence.

(4) However, if the licensed activity involves keeping a native animal and the animal escapes, the licence no longer applies in relation to the animal.

275 Licence—form

(1) A licence must—

(a) be in writing; and

(b) include the following information:

(i) the name of the licensee;

(ii) a unique identifying number (the licence number);

(iii) the licensed activity;

(iv) the animal, plant or land for the licence;

(v) the term of the licence;

(vi) the conditions on the licence;

(vii) anything else prescribed by regulation.

(2) A licence may include anything else the conservator considers relevant.

Part 11.4 Licences—financial assurance conditions

276 What is a financial assurance condition?

In this Act:

financial assurance condition, on a licence, means a condition requiring the licensee to give the conservator a financial assurance of a stated kind and amount.

277 Financial assurance condition—imposition

(1) The conservator may impose a financial assurance condition on a licence if satisfied that it is justified having regard to—

(a) the likelihood that the licensed activity will cause serious or material damage to—

(i) a population of a species or ecological community; or

(ii) a habitat of a species or ecological community; or

(iii) an ecosystem; and

(b) the likelihood that action will need to be taken in the future to repair the damage; and

Note Financial assurance considerations—see s (5).

(d) any other relevant matter.

(2) A financial assurance must be in the form of—

(a) a bank guarantee; or

(b) a bond; or

(d) if the conservator reasonably believes that, in the circumstances, the forms of assurance in paragraphs (a), (b) and (c) are not appropriate—another form of security that the conservator considers appropriate.

(3) The conservator must not require financial assurance of an amount greater than the total amount that the conservator reasonably believes is needed to repair the damage that could result from the activity.

(4) A financial assurance must be given for the period stated in the financial assurance condition on the licence.

(5) The Minister may determine matters to be considered by the conservator in deciding whether to impose a financial assurance condition on a licence (financial assurance considerations).

(6) A determination is a disallowable instrument.

Note A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act

278 Financial assurance condition—show cause

(1) If the conservator proposes to impose a financial assurance condition on a licence, the conservator must give the applicant or licensee written notice of the intention to impose the condition.

(2) The notice must state—

(a) the grounds for the proposed financial assurance condition; and

(b) the amount and form of the proposed financial assurance; and

(c) that the applicant or licensee may give a written submission to the conservator showing cause why the proposed financial assurance condition should not be imposed; and

(d) that submissions may be given to the conservator only during the 20 working days after the day the notice is given to the licensee (the show cause period).

(3) The conservator must, within 20 working days after the end of the show cause period—

(a) consider any submissions received under subsection (2) (d); and

(b) decide whether to impose the financial assurance condition; and

(i) about the decision; and

(ii) if the condition is to be imposed—when the financial assurance must be provided (the due date).

(4) The conservator must not decide a due date that is earlier than 10 working days after the day the decision notice is given to the licensee.

279 Financial assurance condition—licence cancellation

(1) This section applies if—

(a) the conservator imposes a financial assurance condition on a licence; and

(b) the licensee does not provide the financial assurance—

(i) in accordance with the financial assurance condition; or

(ii) by the due date.

(2) The conservator must cancel the licence.

280 Financial assurance condition—claim or realisation

(1) This section applies if—

(a) a licence is subject to a financial assurance condition; and

(b) a population, habitat or ecosystem is seriously or materially damaged because of the licensed activity; and

(d) the damage is the kind of harm for which the financial assurance may be claimed or realised; and

(e) the damage was not licensed under this Act.

(2) The conservator may recover the reasonable expenses of repairing the damage by making a claim on or realising the financial assurance.

281 Financial assurance condition—notice before claim or realisation

(1) Before acting under section 280, the conservator must give the licensee, a written notice stating—

(a) the serious or material damage caused by the use of the licensed place; and

(b) details of the action taken, or to be taken, to repair the damage; and

(d) that the licensee may give a written submission to the conservator showing cause why the financial assurance should not be claimed or realised as proposed; and

(e) that a submission may be given to the conservator only during the 20 working days (the show cause period) after the day the notice is given to the licensee.

(2) The conservator must, within 20 working days after the end of the show cause period—

(a) consider any submission received under subsection (1) (e); and

(b) decide whether to make a claim on or realise the financial assurance; and

282 Financial assurance condition—recovery of extra costs

(1) This section applies if—

(a) the conservator makes a claim on or realises a financial assurance under a licence; and

(b) the amount recovered by the conservator (the realised assurance) is less than the reasonable expenses that the conservator incurred, or will incur, in repairing the damage.

(2) The conservator may give the licensee written notice—

(a) requiring the licensee to pay the stated amount, being the difference between the reasonable expenses and the realised assurance; and

(b) stating when the stated amount is required to be paid (the due date).

(3) The conservator must not decide a due date that is earlier than 20 working days after the day the notice is given to the licensee.

(4) If the licensee does not pay the stated amount on or before the due date, the amount that remains unpaid, together with interest on the unpaid amount, is a debt due to the Territory by the licensee.

Note 1 A rate of interest may be determined under s 362 for this provision.

Note 2 An amount owing under a law may be recovered as a debt in a court of competent jurisdiction or the ACAT (see Legislation Act

, s 177).

283 Financial assurance condition—money held by Territory

(1) If an amount of money is held by the Territory as a financial assurance, the following provisions apply:

(a) interest accrues on so much of the original amount as from time to time remains unclaimed by the conservator under section 280 (Financial assurance condition—claim or realisation);

Note A rate of interest may be determined under s 362 for this provision.

(b) for a claim made by the conservator under section 280—the financial assurance is taken to include any accrued interest other than interest to which the licensee is entitled to be paid under paragraph (c);

(c) during the period for which the financial assurance is required, on each anniversary of the payment of the original amount, the licensee is entitled to be paid by the Territory so much of the interest that accrued during the year that ended on the day before that anniversary as remains unclaimed by the conservator under section 280;

(d) the amount of the original amount and accrued interest that remains unclaimed by the conservator under section 280 must be paid by the Territory to the licensee if the financial assurance is no longer required by the conservator.

(2) For this section, a financial assurance is no longer required by the conservator if—

(a) the conservator is satisfied that a financial assurance condition is no longer justified under section 277 (Financial assurance condition—imposition); or

(b) the licence has ended and section 280 (Financial assurance condition—claim or realisation) does not apply.

Part 11.5 Licences—amendment, transfer and renewal

284 Licence—amendment initiated by conservator

(1) The conservator may, by written notice (an amendment notice) given to a licensee, amend the licence if satisfied that—

(a) the licensee is a suitable person to hold the licence as amended; and

(b) if the licensee is a corporation—each influential person for the licensee is a suitable person to hold the licence as amended; and

Note Suitable activity, for a licence—see s 266.

Suitable person, to hold a licence—see s 263.

(2) However, the conservator may amend the licence only if—

(a) the conservator has given the licensee written notice of the proposed amendment (a proposal notice); and

(b) the proposal notice states that written submissions about the proposal may be made to the conservator before the end of a stated period of at least 14 days after the day the proposal notice is given to the licensee; and

(c) after the end of the stated period, the conservator has considered any submissions made in accordance with the proposal notice.

(3) Subsection (2) does not apply to a person if the licensee applied for, or agreed in writing to, the amendment.

(4) The amendment takes effect on the day the amendment notice is given to the licensee or a later day stated in the notice.

285 Licence—application to amend licence

(1) A licensee may apply to the conservator to amend the licence.

(2) A licensee must apply to the conservator for amendment of the licence if someone else (the new person) is to—

(a) have management or control of the licensed activity; or

(b) if the licensee is a corporation—become an influential person for the licensee.

(3) The application must—

(a) be in writing; and

(b) if the application is under subsection (2)—include complete details of suitability information about the new person.

Note 1 Suitability information, about a person—see s 264.

Note 2 Giving false or misleading information is an offence against the Criminal Code

, s 338.

Note 3 If a form is approved under s 363 for this provision, the form must be used.

Note 4 A fee may be determined under s 362 for this provision.

286 Licence—decision on application to amend licence

(1) This section applies if the conservator receives an application to amend a licence under section 285.

(2) The conservator may amend the licence only if satisfied that—

(a) the licensee is a suitable person to hold the licence as amended; and

(b) if the licensee is a corporation—each influential person for the licensee is a suitable person to hold the licence as amended; and

(c) if someone other than the proposed new licensee is to have management or control of the activity for the licence—each person who is to have management or control of the activity is a suitable person to hold the licence as amended; and

(d) the licensed activity is a suitable activity for the licence as amended.

Note Suitable activity, for a licence—see s 266.

Suitable person, to hold a licence—see s 263.

(3) If the conservator decides to amend the licence, the conservator may impose or amend a condition on the licence.

(4) The conservator must, not later than the required time—

(a) decide the application for amendment; and

(b) tell the licensee about the decision.

(5) In this section:

required time means the latest of the following:

(a) if the conservator gives a person mentioned in section 285 (2) a personal information notice under section 265—28 days after the day the conservator receives the stated information;

(b) if the conservator gives the applicant an activity information notice under section 268—28 days after the day the conservator receives the information;

(c) if the conservator gives the applicant a risk management plan notice under section 269—28 days after the day the conservator receives the risk management plan;

(d) if the conservator gives the applicant an inspection notice under section 270—28 days after the day the conservator inspects the place;

(e) 28 days after the day the conservator receives the application.

Note Failure to amend a licence within the required time is taken to be a decision not to amend the licence (see ACT Civil and Administrative Tribunal Act 2008

, s 12).

287 Licence—application to transfer licence

(1) A licensee may apply to the conservator to transfer the licence to someone else (the proposed new licensee).

(2) The application must—

(a) be in writing; and

(b) include complete details of suitability information about—

(i) the proposed new licensee; and

(ii) if the proposed new licensee is a corporation—each influential person for the proposed new licensee; and

(iii) if someone other than the proposed new licensee is to have management or control of the activity for the licence—each person who is to have management or control of the activity.

Note 1 Suitability information, about a person—see s 264.

Note 2 Giving false or misleading information is an offence against the Criminal Code

, s 338.

Note 3 If a form is approved under s 363 for this provision, the form must be used.

Note 4 A fee may be determined under s 362 for this provision.

288 Licence—decision on application to transfer licence

(1) This section applies if the conservator receives an application to transfer a licence under section 287.

(2) The conservator may transfer the licence to the proposed new licensee only if satisfied that each of the following people is a suitable person to hold the licence:

(a) the proposed new licensee;

(b) if the proposed new licensee is a corporation—each influential person for the proposed new licensee;

(c) if someone other than the proposed new licensee is to have management or control of the activity for the licence—each person who is to have management or control of the activity.

Note Suitable person, to hold a licence—see s 263.

(3) If the conservator decides to transfer the licence, the conservator may impose or amend a condition on the licence.

(4) The conservator must, not later than the required time—

(a) decide the application for transfer; and

(b) tell the old licensee and new licensee about the decision.

(5) In this section:

required time means the latest of the following:

(a) if the conservator gives a person mentioned in section 287 (2) (b) a personal information notice under section 265—28 days after the day the conservator receives the stated information;

(b) 28 days after the day the conservator receives the application.

Note Failure to transfer a licence within the required time is taken to be a decision not to transfer the licence (see ACT Civil and Administrative Tribunal Act 2008

, s 12).

289 Licence—application for renewal of licence

(1) A licensee may apply to the conservator to renew the licence for a period not longer than 5 years.

Note 1 If a form is approved under s 363 for an application, the form must be used.

Note 2 A fee may be determined under s 362 for this provision.

(2) The application must be—

(a) in writing; and

(b) received by the conservator at least 30 days before the licence expires.

(3) However, the conservator may extend the time for making an application.

Note A licensee may apply to the conservator for the time to be extended, and the conservator may extend the time, even though the time has ended (see Legislation Act

, s 151C).

(4) If a licensee applies to renew a licence under this section, the licence remains in force until the application is decided.

290 Licence—decision on application for renewal of licence

(1) This section applies if the conservator receives an application for renewal of a licence under section 289.

(2) The conservator may renew the licence only if satisfied that—

(a) the licensee continues to be a suitable person to hold the licence; and

(b) if the licensee is a corporation—each influential person for the licensee continues to be a suitable person to hold the licence; and

(c) if someone other than the licensee has management or control of the licensed activity—each person who is to have management or control of the activity continues to be a suitable person to hold the licence; and

(d) the licensed activity continues to be a suitable activity for the licence.

Note Suitable activity, for a licence—see s 266.

Suitable person, to hold a licence—see s 263.

(3) If the conservator decides to renew the licence, the conservator may impose or amend a condition on the licence.

(4) The conservator must, not later than the required time—

(a) decide the application for renewal; and

(b) tell the licensee about the decision.

(5) In this section:

required time means the latest of the following:

(a) if the conservator gives the applicant a personal information notice under section 265—28 days after the day the conservator receives the stated information;

(b) if the conservator gives the applicant an activity information notice under section 268—28 days after the day the conservator receives the information;

(c) if the conservator gives the applicant a risk management plan notice under section 269—28 days after the day the conservator receives the risk management plan;

(d) if the conservator gives the applicant an inspection notice under section 270—28 days after the day the conservator inspects the place;

(e) 28 days after the day the conservator receives the application.

Note Failure to renew a licence within the required time is taken to be a decision not to renew the licence (see ACT Civil and Administrative Tribunal Act 2008

, s 12).

291 Licence—replacing when lost, stolen or destroyed

(1) The conservator may issue a replacement licence to a licensee if satisfied that the licensee’s original licence has been lost, stolen or destroyed.

(2) For subsection (1), the conservator may require the licensee to give the conservator a statutory declaration signed by the licensee, stating that the original licence has been lost, stolen or destroyed.

Note 1 A fee may be determined under s 362 for this provision.

Note 2 It is an offence to make a false or misleading statement, give false or misleading information or produce a false or misleading document (see Criminal Code

, pt 3.4).

Note 3 The Statutory Declarations Act 1959

(Cwlth) applies to the making of statutory declarations under ACT laws.

292 Licence—surrender

(1) A licensee may surrender the licence by giving written notice of the surrender (a surrender notice) to the conservator.

Note If a form is approved under s 363 for this provision, the form must be used.

(2) The surrender notice must be accompanied by—

(a) the licence; or

(b) if the licence has been lost, stolen or destroyed—a statutory declaration signed by the licensee stating that the licence has been lost, stolen or destroyed.

Note The Statutory Declarations Act 1959

(Cwlth) applies to the making of statutory declarations under ACT laws.

293 Offence—fail to notify change of name or address

(1) A person commits an offence if—

(a) the person is a licensee; and

(b) the person’s name or address changes; and

(i) written notice of the change; and

(ii) the licence.

Maximum penalty: 1 penalty unit.

(2) An offence against this section is a strict liability offence.

294 Licence—conservator to change name and address

(1) This section applies if a licensee gives the conservator—

(a) written notice of a change to the person’s name or address; and

(b) the licence.

(2) The conservator must enter the changed details on the licence and return it to the licensee.

Part 11.6 Licences—regulatory action

295 Licence—grounds for regulatory action

(1) Each of the following is a ground for regulatory action against a licensee:

(a) the licensee has contravened, or is contravening, a provision of this Act;

Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation Act

, s 104).

(b) the licensee has contravened a condition of the licence.

(2) In this section:

licensee includes, if the person is a corporation, each executive officer of the corporation.

296 Licence—regulatory action

Each of the following is regulatory action when taken against a licensee:

(a) imposing a condition on, or amending a condition on, the licence;

(b) suspending the licence for a stated period or until a stated thing happens;

(d) cancelling the licence and disqualifying the person from applying for a licence of that kind for a stated period or until a stated thing happens.

297 Licence—taking regulatory action

(1) If the conservator proposes to take regulatory action in relation to a licensee, the conservator must give the licensee a written notice (a show cause notice) stating—

(a) details of the proposed regulatory action; and

(b) the grounds for the proposed regulatory action; and

(c) that the licensee may, not later than 14 days after the day the licensee is given the notice, give a written submission to the conservator about the proposed regulatory action.

(2) In deciding whether to take the proposed regulatory action, the conservator must consider any submission given to the conservator in accordance with the show cause notice.

(3) If the conservator believes on reasonable grounds that a ground for regulatory action has been established in relation to the licensee, the conservator may—

(a) take the regulatory action stated in the show cause notice; or

(b) if the proposed regulatory action is cancelling the licence and disqualifying the person from applying for a licence—

(i) cancel the licence; or

(ii) suspend the licence; or

(iii) impose a condition on, or amend a condition on, the licence; or

(i) suspend the licence; or

(ii) impose a condition on, or amend a condition on, the licence; or

(d) if the proposed regulatory action is suspending the licence—

(i) suspend the licence for a shorter period; or

(ii) impose a condition on, or amend a condition on, the licence.

(4) Regulatory action under this section takes effect on—

(a) the day the licensee is given written notice of the decision; or

(b) if the written notice states a later date of effect—that date.

298 Licence—immediate suspension

(1) This section applies if—

(a) the conservator gives a show cause notice to a licensee; and

(b) having regard to the grounds stated in the notice, the conservator believes on reasonable grounds that the person’s licence should be suspended immediately because of a risk to—

(i) public safety; or

(ii) the safety of an animal or plant.

(2) The conservator must give the licensee a written notice (an immediate suspension notice) suspending the person’s licence.

(3) The suspension of a licence under this section takes effect when the immediate suspension notice is given to the licensee.

(4) The suspension of a licence under this section ends—

(a) if regulatory action is taken against the person—at the earlier of the following times:

(i) when the regulatory action takes effect;

(ii) 30 days after the day the immediate suspension notice is given to the person; or

(b) if regulatory action is not taken against the person—at the earlier of the following times:

(i) when the person is given written notice of the conservator’s decision not to take regulatory action;

(ii) 30 days after the day the immediate suspension notice is given to the person.

299 Licence—effect of suspension

(1) A suspended licence does not authorise the carrying on of any activity under the licence during the suspension.

(2) If the conservator suspends a licence, the licensee is, during the suspension—

(a) taken not to hold the licence; and

(b) disqualified from applying for a licence.

300 Offence—fail to return amended, suspended or cancelled licences

(1) A person commits an offence if—

(a) the person is a licensee; and

(b) the licence is amended, suspended or cancelled under this division; and

(c) the person fails to return the licence to the conservator as soon as practicable (but not later than 7 days) after the day the person is given a reviewable decision notice under section 355.

Maximum penalty: 10 penalty units.

(2) An offence against this section is a strict liability offence.

301 Action by conservator in relation to amended or suspended licence

(1) This section applies if—

(a) a licence is amended or suspended under this part; and

(b) the licence is returned to the conservator.

(2) For an amended licence, the conservator must—

(a) return the amended licence to the licensee; or

(b) give the licensee a replacement licence that includes the amendment.

(3) If a licence is suspended under this part and the suspension ends before the end of the term of the licence, the conservator must return the licence to the licensee when the suspension ends.

Part 11.7 Licence—register, records and royalties

302 Licence register

(1) The conservator must keep a register of licences (the licence register).

(2) The licence register must include the following details for each licence:

(a) the name of the licensee;

(b) the licence number;

(d) the term of the licence;

(e) the conditions on the licence;

(f) anything else prescribed by regulation.

(3) The licence register may include anything else the conservator considers relevant.

(4) The licence register may be kept in any form, including electronically, that the conservator decides.

303 Licence register—correction and keeping up to date

(1) The conservator may correct a mistake, error or omission in the licence register.

(2) The conservator may change a detail included in the register to keep the register up to date.

304 Offence—fail to keep records

(1) A person commits an offence if—

(a) the person is a licensee; and

(b) the licence authorises the person to carry on an activity involving an animal or plant; and

Maximum penalty: 10 penalty units.

(2) A person commits an offence if—

(a) the person is a licensee; and

(b) the licence authorises the person to carry on an activity involving an animal, or plant, that has special protection status; and

Maximum penalty: 20 penalty units.

Note Special protection status—see s 107.

(3) An offence against this section is a strict liability offence.

Note A conservation officer may direct a licensee to produce records required to be kept under this Act (see s 315). It is an offence to fail to comply with the direction (see s 316).

305 Royalty

(1) This section applies if a licence authorises a licensee to—

(a) take a native animal; or

(b) take a native plant; or

Note Native timber—see s 137.

(2) If the licensee sells or otherwise disposes of an animal, plant or timber taken under the licence, the licensee must pay royalty for the animal, plant or timber to the Territory at the rate prescribed by regulation.

Note Power to make a statutory instrument (including a regulation) includes power to make different provision in relation to different matters or different classes of matters, and to make a regulation that applies differently by reference to stated exceptions or factors (see Legislation Act

, s 48).

Chapter 12 Management agreements with utility suppliers, land developers and others

306 What are agencies and activities of agencies?—ch 12

(1) In this chapter:

agency—

(a) means an entity that is—

(i) a supplier of gas, electricity, water or sewerage services; or

(ii) responsible for the construction, repair and maintenance of navigation serving beacons and telecommunications facilities; or

(iii) responsible for a development of land; and

(b) includes the Territory to the extent to which the Territory is an entity mentioned in paragraph (a).

Note Entity includes a person (see Legislation Act

, dict, pt 1).

(2) In this chapter:

activities, of an agency means—

(a) for an entity that supplies gas, electricity, water or sewerage services—construction, repair or maintenance carried out by the entity in association with the supply of the services; or

(b) for an entity responsible for the construction, repair and maintenance of navigation serving beacons and telecommunications facilities—the construction, repair and maintenance of navigation serving beacons and telecommunications facilities carried out by the entity; or

(3) In this section:

development, of land—see the Planning and Development Act 2007

, section 7 (Meaning of development).

telecommunications facility—see the Utilities (Telecommunications Installations) Act 2001

, dictionary.

307 What are management objectives?—ch 12

(1) In this chapter:

management objectives, for public land or unleased territory land—

(a) means the objective of conserving the qualities of the natural environment on and near the land; and

(b) includes—

(i) any objectives, policies or purposes stated in the Territory plan for the land; and

(ii) for public land—the planning and development management objectives for the land.

Note Planning and development management objectives—see the dictionary.

(2) In this section:

natural environment means all biological, physical and visual elements of the earth and its atmosphere, whether natural or modified.

308 What is a management agreement?—ch 12

In this chapter:

management agreement means an agreement between the conservator and an agency, in relation to public land or unleased territory land, that—

(a) sets out standards and conditions for avoiding or minimising any conflict with the management objectives for the land which may arise as a result of the agency’s activities; and

(b) may deal with the following matters:

(i) access to the public land or unleased territory land;

(ii) fire management on the public land or unleased territory land;

(iii) drainage on the public land or unleased territory land;

(iv) management and maintenance of public or private facilities on the public land or unleased territory land;

(v) rehabilitation of the public land or unleased territory land or public or private facilities on the land;

(vi) indemnities;

(vii) emergency procedures to be used on the public land or unleased territory land;

(viii) internal stockpiling on the public land or unleased territory land;

(ix) fencing on the public land or unleased territory land;

(x) feral animals and weed control on the public land or unleased territory land; but

, chapter 7.

309 Management agreement—conservator may propose

(1) The conservator may propose a management agreement to an agency if—

(a) the agency’s activities affect, or may affect, public land or unleased territory land; and

(b) the conservator reasonably believes the activities may conflict with the management objectives for the land.

(2) If the conservator intends to propose a management agreement to an agency, the conservator must—

(a) consult the agency in developing the agreement; and

(b) consider any representations made by the agency about the agreement.

(3) After consulting and considering any representations under subsection (2), the conservator must give the agreement (the proposed agreement) to the agency together with a notice stating—

(a) that the agency may—

(i) enter into the proposed agreement by signing the agreement and returning it to the conservator within 28 days after the date of the notice (the due date); or

(ii) refuse to enter into the proposed agreement by telling the conservator, in writing, of the refusal before the due date; and

(b) that if the agency does not act under paragraph (a) before the due date, that the agency will be taken to have refused to enter into the proposed agreement; and

(i) refusing to enter into the proposed agreement; and

(ii) if the agency enters the agreement—breaching a term of the agreement.

310 Management agreement—agency may enter or refuse

(1) If the conservator has given a proposed agreement to an agency under section 309, the agency may—

(a) enter into the proposed agreement by signing the agreement and returning it to the conservator before the due date; or

(b) refuse to enter into the agreement by telling the conservator, in writing, of the refusal before the due date.

(2) If an agency does not act under subsection (1), the agency is taken to have refused to enter into the proposed agreement.

311 Management agreement—refusal and repairing damage

(1) This section applies if—

(a) an agency refuses to enter into a proposed agreement for public land or unleased territory land; and

(b) the agency’s activities damage the land.

(2) The conservator may—

(a) repair the damage; and

(b) recover from the agency the reasonable costs of repairing the damage.

Note An amount owing under a law may be recovered as a debt in a court of competent jurisdiction or the ACAT (see Legislation Act

, s 177).

312 Management agreement—breach of agreement and repairing damage

(1) This section applies if—

(a) an agency enters into a management agreement for public land or unleased territory land; and

(b) the agency carries on activities on the land that are inconsistent with the agreement; and

(2) The conservator may—

(a) repair the damage; and

(b) recover from the agency the reasonable costs of repairing the damage.

Note An amount owing under a law may be recovered as a debt in a court of competent jurisdiction or the ACAT (see Legislation Act

, s 177).

Chapter 13 Enforcement

Part 13.1 Directions

313 Direction to give name and address

(1) This section applies if a conservation officer believes on reasonable grounds that a person—

(a) has committed, is committing or is about to commit an offence against this Act; or

(b) may be able to assist in the investigation of an offence against this Act.

Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation Act

, s 104).

(2) The conservation officer may direct the person to give the conservation officer, immediately, any of the following personal details (a name and address direction):

(a) the person’s full name;

(b) the person’s home address.

Note 1 The conservation officer must first show the person the conservation officer’s identity card (see s 30).

Note 2 The power to make a direction includes the power to amend or repeal the direction. The power to amend or repeal the direction is exercisable in the same way, and subject to the same conditions, as the power to make the direction (see Legislation Act

, s 46).

(3) If the conservation officer believes on reasonable grounds that a personal detail given by a person in response to a name and address direction is false or misleading, the conservation officer may direct the person to produce evidence immediately of the correctness of the detail (an evidence direction).

(4) If a conservation officer gives a direction to a person, the officer must tell the person that it is an offence if the person fails to comply with the direction.

314 Offence—fail to comply with direction to give name and address

(1) A person commits an offence if the person—

(a) is subject to—

(i) a name and address direction; or

(ii) an evidence direction; and

(b) fails to comply with the direction.

Maximum penalty: 5 penalty units.

Note It is an offence to make a false or misleading statement or give false or misleading information (see Criminal Code

, pt 3.4).

(2) An offence against this section is a strict liability offence.

(3) This section does not apply to a person if the conservation officer did not—

(a) produce the conservation officer’s identity card for inspection by the person before giving the direction; or

(b) before giving the direction, warn the person that failure to comply with the direction is an offence.

Note The defendant has an evidential burden in relation to the matters mentioned in s (3) (see Criminal Code

, s 58).

315 Direction to produce licence or records

(1) A conservation officer may direct a licensee to produce—

(a) the licensee’s nature conservation licence; or

(b) a record required to be kept by the licensee under this Act.

Note 1 A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation Act

, s 104).

Note 2 It is an offence to make a false or misleading statement or give false or misleading information (see Criminal Code

, pt 3.4).

Note 3 The power to make a direction includes the power to amend or repeal the direction. The power to amend or repeal the direction is exercisable in the same way, and subject to the same conditions, as the power to make the direction (see Legislation Act

, s 46).

(2) The direction must be in writing and state—

(a) the licence or record to be produced; and

(b) where and to whom the licence or record is to be produced; and

(c) when the direction must be complied with (the due date), being a day at least 2 days after the day the direction is given to the person; and

(d) that if the licence or record is not provided by the due date, the person may be committing an offence under section 316.

(3) The conservation officer may do 1 or more of the following:

(a) inspect the licence or record produced;

(b) make copies of, or take extracts from the licence or record produced;

(c) seize and remove the licence or record produced if the officer believes on reasonable grounds that it may provide evidence of an offence against this Act.

316 Offence—fail to comply with direction to produce licence or record

(1) A person commits an offence if the person—

(a) is subject to a direction under section 315; and

(b) fails to comply with the direction.

Maximum penalty: 10 penalty units.

(2) An offence against this section is a strict liability offence.

(3) This section does not apply to a person if the person has a reasonable excuse for failing to comply with the direction.

Note The defendant has an evidential burden in relation to the matters mentioned in s (3) (see Criminal Code

, s 58).

317 Direction to provide information

(1) This section applies if a conservation officer suspects on reasonable grounds that a person has information or documents reasonably required by the conservation officer for the administration or enforcement of this Act.

(2) The conservation officer may direct the person to provide the information or documents to the conservation officer (an information direction).

(3) The direction must be in writing and state—

(a) the name of the person to whom it is directed; and

(b) the information or documents required to be provided; and

(d) when the direction must be complied with (the due date), being a day at least 2 days after the day the direction is given to the person; and

(e) that if the information is not provided by the due date the person may be committing an offence under section 318.

, s 46).

318 Offence—fail to comply with information direction

(1) A person commits an offence if the person—

(a) is subject to an information direction; and

(b) fails to comply with the direction.

Maximum penalty: 50 penalty units.

Note It is an offence to make a false or misleading statement or give false or misleading information (see Criminal Code

, pt 3.4).

(2) An offence against this section is a strict liability offence.

(3) This section does not apply to a person if the person—

(a) did not know, and could not reasonably be expected to know or find out, the information required under the direction; or

(b) did not have reasonable access to the documents required under the direction.

Note The defendant has an evidential burden in relation to the matters mentioned in s (3) (see Criminal Code

, s 58).

319 Direction to leave reserve

(1) This section applies if a conservation officer believes on reasonable grounds that a person—

(a) is in a reserve; and

(b) either—

(i) has acted in—

(A) an offensive way; or

(B) a way that creates a public nuisance; or

(ii) has committed, is committing or is about to commit an offence against this Act.

Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation Act

, s 104).

(2) The conservation officer may direct the person to immediately leave the reserve (a leave reserve direction).

Note The conservation officer must first show the person the conservation officer’s identity card (see s 30).

(3) A leave reserve direction must state—

(a) the location of the reserve; and

(b) when the person may return to the reserve, being a time not more than 24 hours after the direction is given to the person.

(4) If a conservation officer gives a direction to a person, the officer must tell the person that it is an offence if the person fails to comply with the direction.

, s 46).

320 Offence—fail to comply with direction to leave reserve

(1) A person commits an offence if the person—

(a) is subject to a leave reserve direction; and

(b) fails to comply with the direction.

Maximum penalty: 10 penalty units.

(2) An offence against this section is a strict liability offence.

(3) This section does not apply to a person if the conservation officer did not—

(a) produce the conservation officer’s identity card for inspection by the person before giving the direction; or

(b) before giving the direction, warn the person that failure to comply with the direction is an offence.

Note The defendant has an evidential burden in relation to the matters mentioned in s (3) (see Criminal Code

, s 58).

321 Direction to stop vehicle containing animal or plant

(1) This section applies if a conservation officer suspects on reasonable grounds that an animal or plant is in a vehicle in contravention of this Act.

Note In, a vehicle, includes on the vehicle (see dict).

Vehicle includes vessel (see dict).

(2) The conservation officer may, to exercise a function under division 13.2.2 (Powers of conservation officers), direct the driver of the vehicle to stop the vehicle (a stop vehicle direction)—

(a) without delay; or

(b) at the nearest place that the vehicle can be safely stopped as indicated by the conservation officer.

Note A conservation officer can enter a vehicle stopped under this section (see s 332 (1) (g)) and inspect or examine, etc anything in the vehicle (see s 335).

(3) A direction may be given to a driver orally or by means of a sign or signal (electronic or otherwise) or in any other way.

(4) A direction to a driver ceases to be operative to the extent that a conservation officer—

(a) gives the driver or other person a later inconsistent direction; or

(b) indicates to the driver that the direction is no longer operative.

(5) However, a conservation officer may direct a vehicle to be stopped only for the amount of time necessary for the conservation officer to exercise the function.

, s 46).

322 Offence—fail to comply with stop vehicle direction

(1) A person commits an offence if the person—

(a) is subject to a stop vehicle direction under section 321; and

(b) fails to comply with the direction.

Maximum penalty: 10 penalty units.

(2) An offence against this section is a strict liability offence.

(3) This section does not apply to a person if the conservation officer did not produce the conservation officer’s identity card for inspection by the person as soon as practicable after giving the direction.

Note The defendant has an evidential burden in relation to the matters mentioned in s (3) (see Criminal Code

, s 58).

323 Urgent directions

(1) This section applies if the conservator reasonably believes that a person—

(a) has breached, is breaching or is about to breach a nature conservation licence; or

(b) has contravened, is contravening or is about to contravene a provision of this Act; or

Examples—contravention of provision of Act

1 contravention of an action plan

2 contravention of a native species conservation plan

3 contravention of a controlled native species management plan

Note 1 A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation Act

, s 104).

Note 2 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

(i) a native species that has special protection status; or

Note Special protection status—see s 107.

(ii) a threatened ecological community; or

Note Threatened ecological community—see s 65.

(iii) the habitat of—

(A) a native species that has protection status; or

(B) a threatened ecological community; or

(iv) a Ramsar wetland.

Note Ramsar wetland—see s 188.

(2) The conservator may direct (an urgent direction) the person to—

(a) take action to stop the breach, contravention or threat; or

(b) cease conduct causing the breach, contravention or threat.

(3) An urgent direction must either—

(a) state—

(i) the action to be taken; and

(ii) when the direction must be complied with; or

(b) state—

(i) the conduct not to be undertaken; and

(ii) how long the direction is in force.

(4) An urgent direction must not state a day or time for compliance that is earlier than the day or time the person is given the direction.

, s 46).

324 Offence—fail to comply with urgent direction

(1) A person commits an offence if the person—

(a) is subject to an urgent direction; and

(b) fails to take reasonable steps to comply with the direction.

Maximum penalty: 50 penalty units.

(2) An offence against this section is a strict liability offence.

(3) This section does not apply to a person if the conservation officer did not produce the conservation officer’s identity card for inspection by the person before giving the direction.

Note The defendant has an evidential burden in relation to the matters mentioned in s (3) (see Criminal Code

, s 58).

325 Conservator’s directions

(1) This section applies if—

(a) 1 or more of the following is on occupied land:

(i) a native species;

Note Native species—see s 16.

(ii) an ecological community;

Note Ecological community—see s 17.

(iii) the habitat of a native species or ecological community; and

(b) the conservator reasonably believes that there is conduct that the occupier—

(i) may engage in that may threaten the native species, community or habitat; or

(ii) could engage in that would promote the protection or conservation of the native species, community or habitat.

(2) The conservator may give the occupier a direction about the protection or conservation of the species, community or habitat on the land (a conservator’s direction).

(3) A conservator’s direction must be consistent with each of the following (if any) that applies to the species, community or habitat:

(a) a conservation advice;

Note Conservation advice—see s 90 (2).

(b) an action plan;

Note Action plan, for a relevant species, relevant ecological community or key threatening process—see s 97.

Note Native species conservation plan, for a native species—see s 113.

(d) a controlled native species management plan.

Note Controlled native species management plan, for a controlled native species—see s 156.

(4) A conservator’s direction must—

(a) be in writing; and

(b) state when the direction must be complied with, being a day at least 14 days after the day the direction is given to the occupier.

Note The power to make a direction includes the power to amend or repeal the direction (see Legislation Act

, s 46).

326 Offence—fail to comply with conservator’s direction

(1) A person commits an offence if the person—

(a) is subject to a conservator’s direction; and

(b) fails to comply with the direction.

Maximum penalty: 50 penalty units.

(2) A person commits an offence if—

(a) the person is subject to a conservator’s direction; and

(b) the direction relates to—

(i) a native species that has special protection status; or

(ii) a threatened ecological community; or

(iii) the habitat of—

(A) a native species that has special protection status; or

(B) a threatened ecological community; or

(iv) a Ramsar wetland; and

Maximum penalty: 100 penalty units.

Note Ramsar wetland—see s 188.

Special protection status—see s 107.

Threatened ecological community—see s 65.

(3) An offence against this section is a strict liability offence.

(4) This section does not apply to a person if the person took reasonable steps to comply with the conservator’s direction.

Note The defendant has an evidential burden in relation to the matters mentioned in s (4) (see Criminal Code

, s 58).

327 Treatment directions

(1) This section applies if the conservator reasonably believes that—

(a) a person is keeping a native animal or native plant; and

(b) the animal or plant is suffering from a disease; and

(2) The conservator may direct the keeper of the native animal or native plant to carry out a stated treatment on the animal or plant (a treatment direction).

(3) In deciding whether to make a treatment direction, the conservator must consider the following matters:

(a) the likelihood of the disease infecting other animals or plants;

(b) the impact of the disease if it were to infect other animals or plants;

(d) any other matter relevant to the protection or conservation of native animals and native plants.

(4) A treatment direction must be in writing and state the following:

(a) the native animal or native plant to which it relates;

(b) the disease to which it relates;

(d) when the direction must be complied with.

, s 46).

328 Offence—fail to comply with treatment direction

(1) A person commits an offence if the person—

(a) is subject to a treatment direction; and

(b) fails to comply with the direction.

Maximum penalty: 50 penalty units.

(2) An offence against this section is a strict liability offence.

329 Treatment of animal or plant by Territory

(1) This section applies if a person—

(a) is subject to a treatment direction; and

(b) either—

(i) fails to comply with the direction; or

(ii) complies with the direction but the native animal or native plant does not respond satisfactorily to the treatment within a reasonable time.

(2) The conservator may direct the person to—

(a) give the native animal or native plant to the conservator; or

(b) destroy the native animal or native plant.

, s 46).

(3) If the person fails to comply with the direction under subsection (2), the conservator may—

(a) enter the premises where the native animal or native plant is kept, with the assistance that the conservator considers necessary; and

(b) seize the native animal or native plant.

Note Premises includes land (whether vacant or occupied), a vessel and a vehicle (see dict).

(4) If the conservator seizes a native animal or native plant under subsection (3), the conservator may—

(a) carry out the treatment, and dispose of the animal or plant in the way, that the conservator considers appropriate; and

(b) recover the reasonable costs of treating and disposing of the animal or plant from the person.

Note 1 General powers of entry and seizure are in pt 13.2.

Note 2 An amount owing under a law may be recovered as a debt in a court of competent jurisdiction or the ACAT (see Legislation Act

, s 177).

330 Injunctions to restrain contravention of urgent directions and conservator’s directions

(1) This section applies if a person (the relevant person) has engaged, is engaging, or proposes to engage, in conduct that was, is, or would be, a contravention of—

(a) an urgent direction; or

Note Urgent direction—see s 323 (2).

(b) a conservator’s direction.

Note Conservator’s direction—see s 325 (2).

(2) The conservator or anyone else may apply to the Supreme Court for an injunction.

(3) On application under subsection (2), the Supreme Court may grant an injunction—

(a) restraining the relevant person from engaging in the conduct; and

(b) if satisfied that it is desirable to do so—requiring the relevant person to do anything.

(4) The Supreme Court may grant an injunction restraining a relevant person from engaging in conduct of a particular kind—

(a) if satisfied that the person has engaged in conduct of that kind, 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; or

(b) if it appears to the court that, if an injunction is not granted, it is likely the person will engage in conduct of that kind, whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to someone else if the person engages in conduct of that kind.

(5) This section applies whether or not a proceeding for an offence against this chapter has begun or is about to begin.

Part 13.2 Enforcement by conservation officers

Division 13.2.1 Definitions—pt 13.2

331 Definitions—pt 13.2

In this part:

connected—a thing is connected with an offence if—

(a) the offence has been committed in relation to it; or

(b) it will provide evidence of the commission of the offence; or

occupier, of premises, includes—

(a) a person believed on reasonable grounds to be an occupier of the premises; and

(b) a person apparently in charge of the premises; and

offence includes an offence that there are reasonable grounds for believing has been, is being, or will be, committed.

warrant means a warrant issued under division 13.2.3 (Search warrants).

Division 13.2.2 Powers of conservation officers

332 Power to enter premises

(1) For this Act, a conservation officer may—

(a) at any reasonable time, enter premises that the public is entitled to use or that are open to the public (whether or not on payment of money); or

Note Premises includes land (whether vacant or occupied), a vehicle, a vessel and an aircraft (see dict).

(b) at any time, enter premises with the occupier’s consent; or

(d) at any reasonable time, enter premises if the conservation officer suspects that—

(i) an animal that is not an exempt animal is on the premises; or

(ii) a native plant is on the premises; or

(e) enter premises in accordance with a search warrant; or

(f) at any time, enter premises if the conservation officer believes on reasonable grounds that the circumstances are so serious and urgent that immediate entry to the premises without the authority of a search warrant is necessary; or

(g) if a vehicle is stopped under section 321—enter the vehicle.

(2) However, subsection (1) (a) and (c) do not authorise entry into a part of premises that is being used only for residential purposes.

(3) For subsection (1) (f), the conservation officer may enter the premises with any necessary and reasonable assistance and force.

(4) A conservation officer may, without the consent of the occupier of premises, enter land around the premises to ask for consent to enter the premises.

(5) To remove any doubt, a conservation officer may enter premises under subsection (1) without payment of an entry fee or other charge.

(6) In this section:

at any reasonable time includes at any time when the public is entitled to use the premises or when the premises are open to or used by the public (whether or not on payment of money).

333 Production of identity card

A conservation officer must not remain at premises entered under this part if the conservation officer does not produce his or her identity card when asked by the occupier.

Note Premises includes land (whether vacant or occupied), a vehicle, a vessel and an aircraft (see dict).

334 Consent to entry

(1) When seeking the consent of an occupier of premises to enter premises under section 332 (1) (b), a conservation officer must—

(a) produce his or her identity card; and

(b) tell the occupier—

(i) the purpose of the entry; and

(ii) that anything found and seized under this part may be used in evidence in court; and

(iii) that consent may be refused.

(2) If the occupier consents, the conservation officer must ask the occupier to sign a written acknowledgment (an acknowledgment of consent)—

(a) that the occupier was told—

(i) the purpose of the entry; and

(ii) that anything found and seized under this part may be used in evidence in court; and

(iii) that consent may be refused; and

(b) that the occupier consented to the entry; and

(3) If the occupier signs an acknowledgment of consent, the conservation officer must immediately give a copy to the occupier.

(4) A court must find that the occupier did not consent to entry to the premises by the conservation officer under this part if—

(a) the question arises in a proceeding in the court whether the occupier consented to the entry; and

(b) an acknowledgment of consent is not produced in evidence; and

335 General powers on entry to premises

(1) A conservation officer who enters premises under this part may, for this Act, do 1 or more of the following in relation to the premises or anything on the premises:

(a) inspect or examine;

(b) take measurements or conduct tests;

(d) take photographs, films or audio, video or other recordings;

(e) require the occupier, or anyone at the premises, to give the conservation officer reasonable help to exercise a power under this part.

Note 1 Premises includes land (whether vacant or occupied), a vehicle, a vessel and an aircraft (see dict).

Note 2 The Legislation Act

, s 170 and s 171 deal with the application of the privilege against self-incrimination and client legal privilege.

(2) A person must take reasonable steps to comply with a requirement made of the person under subsection (1) (e).

Maximum penalty: 20 penalty units.

336 Power to seize things

(1) A conservation officer who enters premises under this part with the occupier’s consent may seize anything at the premises if—

(a) the conservation officer is satisfied on reasonable grounds that the thing is connected with an offence against this Act; and

(b) seizure of the thing is consistent with the purpose of the entry told to the occupier when seeking the occupier’s consent.

(2) A conservation officer who enters premises under a warrant under this part may seize anything at the premises that the conservation officer is authorised to seize under the warrant.

(3) A conservation officer who enters premises under this part (whether with the occupier’s consent, under a warrant or otherwise) may seize anything at the premises if satisfied on reasonable grounds that—

(a) the thing is connected with an offence against this Act; and

(b) the seizure is necessary to prevent the thing from being—

(i) concealed, lost or destroyed; or

(ii) used to commit, continue or repeat the offence.

(4) Also, a conservation officer who enters premises under this part (whether with the occupier’s consent, under a warrant or otherwise) may seize anything at the premises if satisfied on reasonable grounds that the thing poses a risk to the health or safety of people or of damage to property or the environment.

(5) The powers of a conservation officer under subsections (3) and (4) are additional to any powers of the conservation officer under subsection (1) or (2) or any other territory law.

(6) Having seized a thing, a conservation officer may—

(a) remove the thing from the premises where it was seized (the place of seizure) to another place; or

(b) leave the thing at the place of seizure but restrict access to it.

(7) A person commits an offence if—

(a) the person interferes with a seized thing, or anything containing a seized thing, to which access has been restricted under subsection (6); and

(b) the person does not have a conservation officer’s approval to interfere with the thing.

Maximum penalty: 20 penalty units.

(8) An offence against this section is a strict liability offence.

337 Seizure and release of distressed native birds

(1) This section applies if—

(a) a conservation officer suspects on reasonable grounds that—

(i) a person is in possession of a native bird; and

(ii) the bird is connected with the commission of an offence against this Act; and

(b) the person does not, when asked by the conservation officer, produce for inspection by the conservation officer a nature conservation licence authorising the possession of the bird; and

Note Nature conservation licence—see s 260.

(i) the bird is suffering pain or is in a state of distress; or

(ii) the keeping of the bird in captivity, or in the kind of captivity in which it is being kept by the person, is likely to endanger the life of, or cause distress or otherwise be harmful to, the bird.

(2) The conservation officer may—

(a) seize the bird; and

(b) if the conservation officer believes on reasonable grounds that the welfare of the bird is best provided for by releasing the bird—release the bird.

Note The Territory may be required to pay the owner of the animal reasonable compensation for its loss (see s 351).

(3) However, a conservation officer must not seize or release a bird under subsection (2) if the conservation officer does not produce the conservation officer’s identity card for inspection if asked by the person.

(4) In this section:

native bird means a bird that is—

(a) a native animal; but

Note Native animal—see s 12.

(b) not an exempt animal.

Note Exempt animal—see s 152.

338 Release of distressed animals—court orders

(1) If the conservator considers that an animal seized under section 336 (Power to seize things) is likely to die or suffer pain or be subjected to distress unless it is released from captivity, the conservator may apply to the Magistrates Court for an order that the animal be released from captivity.

(2) An application must clearly state the reasons for seeking the order.

(3) An application may only be made before a prosecution is begun for an offence against this Act in relation to the animal or during the prosecution.

(4) The court may, before deciding an application, require notice of the application to be given to anyone that the court considers appropriate.

(5) On deciding an application, the court may—

(a) order that the animal be released from captivity; or

(b) dismiss the application.

(6) If the court makes an order for the release of an animal—

(a) the court may give the directions relating to observations to be made, and records to be kept, about the animal that the court considers appropriate; and

(b) the animal must not be released until the directions have been complied with.

Note The Territory may be required to pay the owner of the animal reasonable compensation for its loss (see s 351).

Division 13.2.3 Search warrants

339 Warrants generally

(1) A conservation officer may apply to a magistrate for a warrant to enter premises.

(2) The application must be sworn and state the grounds on which the warrant is sought.

(3) The magistrate may refuse to consider the application until the conservation officer gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires.

(4) The magistrate may issue a warrant only if satisfied there are reasonable grounds for suspecting—

(a) there is a particular thing or activity connected with an offence against this Act; and

(b) the thing or activity—

(i) is, or is being engaged in, at the premises; or

(ii) may be, or may be engaged in, at the premises within the next 7 days.

(5) The warrant must state—

(a) that a conservation officer may, with any necessary assistance and force, enter the premises and exercise the conservation officer’s powers under this part; and

(b) the offence for which the warrant is issued; and

(d) the hours when the premises may be entered; and

(e) the date, within 7 days after the day of the warrant’s issue, the warrant ends.

340 Warrants—application made other than in person

(1) A conservation officer may apply for a warrant by phone, fax, email, radio or other form of communication if the conservation officer considers it necessary because of—

(a) urgent circumstances; or

(b) other special circumstances.

(2) Before applying for the warrant, the conservation officer must prepare an application stating the grounds on which the warrant is sought.

(3) The conservation officer may apply for the warrant before the application is sworn.

(4) After issuing the warrant, the magistrate must immediately fax a copy to the conservation officer if it is practicable to do so.

(5) If it is not practicable to fax a copy to the conservation officer—

(a) the magistrate must tell the conservation officer—

(i) the terms of the warrant; and

(ii) the date and time the warrant was issued; and

(b) the conservation officer must complete a form of warrant (the warrant form) and write on it—

(i) the magistrate’s name; and

(ii) the date and time the magistrate issued the warrant; and

(iii) the warrant’s terms.

(6) The faxed copy of the warrant, or the warrant form properly completed by the conservation officer, authorises the entry and the exercise of the conservation officer’s powers under this part.

(7) The conservation officer must, at the first reasonable opportunity, send to the magistrate—

(a) the sworn application; and

(b) if the conservation officer completed a warrant form—the completed warrant form.

(8) On receiving the documents, the magistrate must attach them to the warrant.

(9) A court must find that a power exercised by the conservation officer was not authorised by a warrant under this section if—

(a) the question arises in a proceeding in the court whether the exercise of power was authorised by a warrant; and

(b) the warrant is not produced in evidence; and

341 Search warrants—announcement before entry

(1) A conservation officer must, before anyone enters premises under a search warrant—

(a) announce that the conservation officer is authorised to enter the premises; and

(b) give anyone at the premises an opportunity to allow entry to the premises; and

(c) if the occupier of the premises, or someone else who apparently represents the occupier, is present at the premises—identify himself or herself to the person.

(2) The conservation officer is not required to comply with subsection (1) if the conservation officer believes on reasonable grounds that immediate entry to the premises is required to ensure—

(a) the safety of anyone (including the conservation officer or any person assisting); or

(b) that the effective execution of the warrant is not frustrated.

342 Details of search warrant to be given to occupier etc

If the occupier of premises, or someone else who apparently represents the occupier, is present at the premises while a search warrant is being executed, the conservation officer or a person assisting must make available to the person—

(a) a copy of the warrant; and

(b) a document setting out the rights and obligations of the person.

343 Occupier entitled to be present during search etc

(1) If the occupier of premises, or someone else who apparently represents the occupier, is present at the premises while a search warrant is being executed, the person is entitled to observe the search being conducted.

(2) However, the person is not entitled to observe the search if—

(a) to do so would impede the search; or

(b) the person is under arrest, and allowing the person to observe the search being conducted would interfere with the objectives of the search.

(3) This section does not prevent 2 or more areas of the premises being searched at the same time.

Division 13.2.4 Return and forfeiture of things seized

344 Receipt for things seized

(1) As soon as practicable after a conservation officer seizes a thing under this part, the conservation officer must give a receipt for it to the person from whom it was seized.

(2) If, for any reason, it is not practicable to comply with subsection (1), the conservation officer must leave the receipt, secured conspicuously, at the place of seizure under section 336 (Power to seize things).

(3) A receipt under this section must include the following:

(a) a description of the thing seized;

(b) an explanation of why the thing was seized;

(d) if the thing is moved from the premises where it is seized—

(i) where the thing is to be taken; or

(ii) if the thing seized is an animal—how the animal is to be kept.

345 Moving things to another place for examination or processing under search warrant

(1) A thing found at premises entered under a search warrant may be moved to another place for examination or processing to decide whether it may be seized under the warrant if—

(a) both of the following apply:

(i) there are reasonable grounds for believing that the thing is or contains something to which the warrant relates;

(ii) it is significantly more practicable to do so having regard to the timeliness and cost of examining the thing at another place and the availability of expert assistance; or

(b) the occupier of the premises agrees in writing.

(2) The thing may be moved to another place for examination for not longer than 72 hours.

(3) A conservation officer may apply to a magistrate for an extension of time if the conservation officer believes on reasonable grounds that the thing cannot be examined within 72 hours.

(4) The conservation officer must give notice of the application to the occupier of the premises, and the occupier is entitled to be heard on the application.

(5) If a thing is moved to another place under this section, the conservation officer must, if practicable—

(a) tell the occupier of the premises the address of the place where, and time when, the examination or processing will be carried out; and

(b) allow the occupier or the occupier’s representative to be present during the examination or processing.

(6) The provisions of this part relating to the issue of search warrants apply, with any necessary changes, to the giving of an extension under this section.

346 Access to things seized

A person who would, apart from the seizure, be entitled to inspect a thing seized under this part may—

(a) inspect it; and

(b) if it is a document—take extracts from it or make copies of it.

347 Return of things seized

(1) A thing seized under this part must be returned to its owner, or reasonable compensation must be paid to the owner by the Territory for the loss of the thing, unless—

(a) a prosecution for an offence against a territory law in connection with the thing is begun within 1 year after the day the seizure is made and the thing is required to be produced in evidence in the prosecution; or

(b) an application for the forfeiture of the seized thing is made to a court under the Confiscation of Criminal Assets Act 2003

or another territory law within 1 year after the day the seizure is made; or

(c) all proceedings in relation to the offence with which the seizure was connected have ended and the court has not made an order about the thing.

(2) However, this section does not apply to a thing—

(a) if the conservator believes on reasonable grounds that the only practical use of the thing in relation to the premises where it was seized would be an offence against this Act; or

(b) if possession of it by its owner would be an offence.

348 Forfeiture of things seized

(1) This section applies if—

(a) a thing seized under this part has not been—

(i) released under—

(A) section 337 (Seizure and release of distressed native birds); or

(B) section 338 (Release of distressed animals—court orders); or

(ii) returned under section 347; and

(b) an application for disallowance of the seizure under section 350—

(i) has not been made within 10 days after the day of the seizure; or

(ii) has been made within the 10-day period, but the application has been refused or withdrawn before a decision in relation to the application had been made.

(2) The thing seized—

(a) is forfeited to the Territory; and

(b) may be sold, destroyed or otherwise disposed of as the conservator directs.

349 Power to destroy unsafe things

(1) This section applies to anything inspected or seized under this part by a conservation officer if the conservation officer is satisfied on reasonable grounds that the thing poses a risk to the health or safety of people or of damage to property or the environment.

(2) The conservation officer may direct a person in charge of the premises where the thing is to destroy or otherwise dispose of the thing.

, s 46).

(3) The direction may state 1 or more of the following:

(a) how the thing must be destroyed or otherwise disposed of;

(b) how the thing must be kept until it is destroyed or otherwise disposed of;

(4) A person in charge of the premises where the thing is commits an offence if the person contravenes a direction given to the person under subsection (2).

Maximum penalty: 20 penalty units.

(5) Alternatively, if the thing has been seized under this part, the conservation officer may destroy or otherwise dispose of the thing.

(6) Costs incurred by the Territory in relation to the disposal of a thing under subsection (5) are a debt owing to the Territory by, and are recoverable together and separately from, the following people:

(a) the person who owned the thing;

(b) each person in control of the premises where the thing was.

Note An amount owing under a law may be recovered as a debt in a court of competent jurisdiction or the ACAT (see Legislation Act

, s 177).

(7) An offence against this section is a strict liability offence.

350 Application for order disallowing seizure

(1) A person claiming to be entitled to anything seized under this part may apply to the Magistrates Court within 10 days after the day of the seizure for an order disallowing the seizure.

(2) The application may be heard only if the applicant has served a copy of the application on the conservator.

(3) The conservator is entitled to appear as respondent at the hearing of the application.

351 Order for return of things seized

(1) This section applies if a person claiming to be entitled to anything seized under this part applies to the Magistrates Court under section 350 for an order disallowing the seizure.

(2) The Magistrates Court must make an order disallowing the seizure if satisfied that—

(a) the applicant would, apart from the seizure, be entitled to the return of the thing seized; and

(b) the thing is not connected with an offence against this Act; and

(3) The Magistrates Court may also make an order disallowing the seizure if satisfied there are exceptional circumstances justifying the making of the order.

(4) If the Magistrates Court makes an order disallowing the seizure, the court may make 1 or more of the following ancillary orders:

(a) an order directing the conservator to return the thing to the applicant or to someone else who appears to be entitled to it;

(b) if the thing cannot be returned or has depreciated in value because of the seizure—an order directing the Territory to pay reasonable compensation;

Division 13.2.5 Enforcement—damage and compensation

352 Damage etc to be minimised

(1) In the exercise, or purported exercise, of a function under this part, a conservation officer must take all reasonable steps to ensure that the officer causes as little inconvenience, detriment and damage as practicable.

(2) If a conservation officer damages anything in the exercise or purported exercise of a function under this part, the conservation officer must give written notice of the particulars of the damage to the person the conservation officer believes on reasonable grounds is the owner of the thing.

(3) The notice must state that—

(a) the person may claim compensation from the Territory if the person suffers loss or expense because of the damage; and

(b) compensation may be claimed and ordered in a proceeding for compensation brought in a court of competent jurisdiction; and

(c) the court may order the payment of reasonable compensation for the loss or expense only if satisfied it is just to make the order in the circumstances of the particular case.

(4) If the damage happens at premises entered under this part in the absence of the occupier, the notice may be given by leaving it, secured conspicuously, at the premises.

353 Compensation for exercise of enforcement powers

(1) A person may claim compensation from the Territory if the person suffers loss or expense because of the exercise, or purported exercise, of a function under this part by a conservation officer.

(2) Compensation may be claimed and ordered in a proceeding for—

(a) compensation brought in a court of competent jurisdiction; or

(b) an offence against this Act brought against the person making the claim for compensation.

(3) A court may order the payment of reasonable compensation for the loss or expense only if satisfied it is just to make the order in the circumstances of the particular case.

(4) A regulation may prescribe matters that may, must or must not be taken into account by the court in considering whether it is just to make the order.

Chapter 14 Notification and review of decisions

354 Meaning of reviewable decision—ch 14

In this chapter:

reviewable decision means a decision mentioned in schedule 1, column 3 under a provision of this Act mentioned in column 2 in relation to the decision.

355 Reviewable decision notices

If the conservator makes a reviewable decision, the conservator must give a reviewable decision notice to each entity mentioned in schedule 1, column 4 in relation to the decision.

Note 1 The conservator must also take reasonable steps to give a reviewable decision notice to any other person whose interests are affected by the decision (see ACT Civil and Administrative Tribunal Act 2008

, s 67A).

Note 2 The requirements for a reviewable decision notice are prescribed under the ACT Civil and Administrative Tribunal Act 2008

356 Applications for review

The following may apply to the ACAT for review of a reviewable decision:

(a) an entity mentioned in schedule 1, column 4 in relation to the decision;

(b) any other person whose interests are affected by the decision.

Note If a form is approved under the ACT Civil and Administrative Tribunal Act 2008

for the application, the form must be used.

Chapter 15 Miscellaneous

357 Certain information may be kept confidential

(1) This section applies if a relevant person—

(a) is preparing a document under this Act; and

(b) considers that the survival of a native species or ecological community may be threatened by the disclosure of the precise location of—

(i) the species, or community, in the wild; or

(ii) if the species or community has a known critical habitat—the critical habitat for the species or community.

(2) It is sufficient compliance with this Act if only a general description of the location of the species, community or habitat is included in the document.

(3) In this section:

relevant person means—

(a) the Minister; or

(b) the conservator; or

358 Offences—use or divulge protected information

(1) A person to whom this section applies commits an offence if—

(a) the person uses information; and

(b) the information is protected information about someone else; and

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

(2) A person to whom this section applies commits an offence if—

(a) the person does something that divulges information; and

(b) the information is protected information about someone else; and

(i) the information is protected information about someone else; and

(ii) doing the thing would result in the information being divulged to someone else.

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

(3) Subsections (1) and (2) do not apply to a person if the information is used or divulged—

(a) under this Act or another territory law; or

(b) in relation to the exercise of a function, as a person to whom this section applies, under this Act or another territory law; or

(4) Subsections (1) and (2) do not apply to the using or divulging of protected information about a person with the person’s consent.

Note The defendant has an evidential burden in relation to the matters mentioned in s (3) and s (4) (see Criminal Code

, s 58).

(5) A person to whom this section applies need not divulge protected information to a court, or produce a document containing protected information to a court, unless it is necessary to do so for this Act or another law applying in the territory.

(6) In this section:

court includes a tribunal, authority or person having power to require the production of documents or the answering of questions.

divulge includes—

(a) communicate; or

(b) publish.

person to whom this section applies means—

(a) a person who is or has been the conservator; or

(b) a person who is or has been a conservation officer; or

produce includes allow access to.

protected information means information about a person that is disclosed to, or obtained by, a person to whom this section applies because of the exercise of a function under this Act by the person or someone else.

use information includes make a record of the information.

359 Acts and omissions of representatives

(1) This section applies to a prosecution for any offence against this Act.

(2) If it is relevant to prove a person’s state of mind about an act or omission, it is enough to show—

(a) the act was done or omission made by a representative of the person within the scope of the representative’s actual or apparent authority; and

(b) the representative had the state of mind.

(3) An act done or omitted to be done on behalf of a person by a representative of the person within the scope of the representative’s actual or apparent authority is also taken to have been done or omitted to be done by the person.

(4) However, subsection (3) does not apply to a person if the person establishes that reasonable precautions were taken and appropriate diligence was exercised to avoid the act or omission.

(5) A person who is convicted of an offence cannot be punished by imprisonment for the offence if the person would not have been convicted of the offence without subsection (2) or (3).

(6) In this section:

person means an individual.

Note See the Criminal Code

, pt 2.5 for provisions about corporate criminal responsibility.

representative, of a person, means an employee or agent of the person.

state of mind, of a person, includes—

(a) the person’s knowledge, intention, opinion, belief or purpose; and

(b) the person’s reasons for the intention, opinion, belief or purpose.

360 Criminal liability of executive officers

(1) An executive officer of a corporation commits an offence if—

(a) the corporation contravenes a provision of this Act; and

(b) the contravention is an offence against this Act (a relevant offence); and

(d) the officer was in a position to influence the conduct of the corporation in relation to the contravention; and

(e) the officer failed to take all reasonable steps to prevent the contravention.

Maximum penalty: The maximum penalty that may be imposed for the commission of the relevant offence by an individual.

(2) This section applies whether or not the corporation is prosecuted for, or convicted of, the relevant offence.

(3) In deciding whether the executive officer took (or failed to take) reasonable steps to prevent the contravention, a court must have regard to the following:

(a) any action the officer took directed towards ensuring the following (to the extent that the action is relevant to the act or omission):

(i) that the corporation arranges regular professional assessments of the corporation’s compliance with the contravened provision;

(ii) that the corporation implements any appropriate recommendation arising from such an assessment;

(iii) that the corporation’s employees, agents and contractors have a reasonable knowledge and understanding of the requirement to comply with the contravened provision;

(b) any action the officer took when the officer became aware that the contravention was, or might be, about to happen.

(4) Subsection (3) does not limit the matters to which the court may have regard.

(5) This section does not apply if the corporation would have a defence to a prosecution for the relevant offence.

(6) In this section:

executive officer, of a corporation, means a person, however described and whether or not the person is a director of the corporation, who is concerned with, or takes part in, the corporation’s management.

361 Evidentiary certificates

(1) The conservator may give a signed certificate—

(a) stating that on a stated date, or during a stated period, a stated person was or was not a licensee; and

(b) if the person was a licensee—including details of the person’s nature conservation licence.

(2) A certificate under this section is evidence of the matters stated in it.

(3) Unless the contrary is proved, a document that purports to be a certificate under this section is taken to be a certificate.

362 Determination of fees etc

(1) The Minister may determine—

(a) fees for this Act; and

(b) the annual percentage rate at which interest payable under section 282 (4) (Financial assurance condition—recovery of extra costs) is to be calculated; and

(c) the annual percentage rate at which interest accruing under section 283 (a) (Financial assurance condition—money held by Territory) is to be calculated.

Note The Legislation Act

contains provisions about the making of determinations and regulations relating to fees, charges and other amounts (see pt 6.3).

(2) A determination is a disallowable instrument.

Note A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act

363 Approved forms

(1) The director-general may approve forms for this Act.

(2) If the director-general approves a form for a particular purpose, the approved form must be used for that purpose.

Note For other provisions about forms, see the Legislation Act

, s 255.

(3) An approved form is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act

364 Regulation-making power

(1) The Executive may make regulations for this Act.

Note A regulation must be notified, and presented to the Legislative Assembly, under the Legislation Act

(2) A regulation may create offences and fix maximum penalties of not more than 30 penalty units for the offences.

Chapter 16 Repeals and consequential amendments

365 Legislation repealed

(1) The following legislation is repealed:

• Nature Conservation Act 1980

(A1980-20)

• Nature Conservation Regulation 1982

(SL1982-11)

• Magistrates Court (Nature Conservation Infringement Notices) Regulation 2005

(SL2005-33).

(2) All other legislative instruments, other than the following instruments, under the Nature Conservation Act 1980

are repealed:

(a) a nature conservation strategy under the Nature Conservation Act 1980

, division 3.1 (Nature conservation strategy);

Note Section 401 (Nature conservation strategy) provides that a nature conservation strategy made under the Nature Conservation Act 1980

is taken to be made under this Act and continues in force.

(b) an action plan under the Nature Conservation Act 1980

, section 42 (Preparation of action plan);

Note Section 406 (Action plans) provides that an action plan made under the Nature Conservation Act 1980

is taken to be made under this Act and continues in force.

, part 10 (Management agreements).

Note Section 413 (Management agreements) provides that a management agreement made under the Nature Conservation Act 1980

is taken to be made under this Act and continues in force.

366 Legislation amended—sch 2

This Act amends the legislation mentioned in schedule 2.

Chapter 20 Transitional

400 Meaning of commencement day—ch 20

In this chapter:

commencement day means the day section 3 commences.

401 Nature conservation strategy

(1) This section applies if, immediately before the commencement day, a nature conservation strategy for the ACT is in force under the Nature Conservation Act 1980

(an old nature conservation strategy).

(2) The old nature conservation strategy is, on the commencement day, taken to be a nature conservation strategy (a new nature conservation strategy).

Note Nature conservation strategy, for the ACT—see s 46.

(3) A new nature conservation strategy is, for section 58 (Nature conservation strategy—monitoring and review), taken to have commenced on the day the old nature conservation strategy commenced.

402 Endangered species

(1) This section applies if, immediately before the commencement day, a species is declared to be an endangered species under the Nature Conservation Act 1980

, section 38 (Declaration of species, community or process).

(2) The species is, on the commencement day, taken to be eligible to be included in the endangered category on the threatened native species list under section 62 (4) (Threatened native species list—eligibility for categories).

Note The Minister must make a threatened native species list that includes an endangered category (see s 61).

403 Vulnerable species

(1) This section applies if, immediately before the commencement day, a species is declared to be a vulnerable species under the Nature Conservation Act 1980

, section 38 (Declaration of species, community or process).

(2) The species is, on the commencement day, taken to be eligible to be included in the vulnerable category on the threatened native species list under section 62 (5) (Threatened native species list—eligibility for categories).

Note The Minister must make a threatened native species list that includes a vulnerable category (see s 61).

404 Endangered ecological communities

(1) This section applies if, immediately before the commencement day, an ecological community is declared to be an endangered ecological community under the Nature Conservation Act 1980

, section 38 (Declaration of species, community or process).

(2) The ecological community is, on the commencement day, taken to be eligible to be included in the endangered category on the threatened ecological communities list under section 68 (2) (Threatened ecological communities list—eligibility for categories).

Note The Minister must make a threatened ecological communities list that includes an endangered category (see s 67).

405 Threatening processes to be key threatening processes

(1) This section applies if, immediately before the commencement day, a process is declared to be a threatening process under the Nature Conservation Act 1980

, section 38 (Declaration of species, community or process).

(2) The process is, on the commencement day, taken to be eligible to be included on the key threatening processes list under section 75 (Key threatening processes list—eligibility).

Note The Minister must make a key threatening processes list (see s 74).

406 Action plans

(1) This section applies if, immediately before the commencement day, an action plan for a species, ecological community or process (an old action plan) is in force under the Nature Conservation Act 1980

, section 42 (Preparation of action plan).

(2) The old action plan is, on the commencement day, taken to be an action plan (a new action plan).

Note Action plan, for a relevant species, relevant ecological community or key threatening process—see s 97.

(3) A new action plan is, for section 106 (Action plan—monitoring and review), taken to have commenced on the day the old action plan commenced.

407 Protected fish, invertebrates, native plants and native animals to be protected species

(1) This section applies if, immediately before the commencement day, under the Nature Conservation Act 1980

, section 34 (Declaration of protected and exempt flora and fauna)—

(a) a fish is declared to be a protected fish; or

(b) an invertebrate is declared to be a protected invertebrate; or

(d) a native animal is declared to be a protected native animal.

(2) The fish, invertebrate, native plant or native animal is, on the commencement day, taken to be eligible to be included in the restricted trade category on the protected native species list under section 110 (Protected native species list—eligibility).

Note The Minister must make a protected native species list that includes a rare category (see s 109).

408 Exempt animals

(1) This section applies if, immediately before the commencement day, an animal is declared to be an exempt animal under the Nature Conservation Act 1980

, section 34 (1) (b) (Declaration of protected and exempt flora and fauna).

(2) The animal is, on the commencement day, taken to be eligible to be declared as an exempt animal under section 153 (Declarations—exempt animals).

409 Plans of management for reserves to be reserve management plans

(1) This section applies if, immediately before the commencement day, a plan of management for a reserve (an old plan of management) is in force under the Planning and Development Act 2007

, part 10.4 (Plans of management for public land).

(2) The old plan of management is, on the commencement day, taken to be a reserve management plan (a new reserve management plan).

Note Reserve management plan, for a reserve—see s 173.

(3) A new reserve management plan is, for section 187 (Reserve management plan—review), taken to have commenced on the day the old plan of management commenced under the Planning and Development Act 2007

Note An old plan of management for an area of land that is not a reserve is taken to be a land management plan under the Planning and Development Act 2007

, s 328 (see Planning and Development Act 2007

, s 474).

410 Draft plans of management for reserves—public consultation stage

(1) This section applies if, immediately before the commencement day, the proponent of a draft plan of management for a reserve (an old draft plan)—

(a) has made copies of the old draft plan available for public inspection under the Planning and Development Act 2007

, section 323 (Public consultation about draft plans of management); but

(b) has not given the old draft plan to the Minister under the Planning and Development Act 2007

, section 325 (Giving draft plans of management to Minister).

(2) The old draft plan is, on the commencement day, taken to be a draft reserve management plan for the reserve (a new draft plan) notified under section 177 (Draft reserve management plan—public consultation).

(3) The period stated in the public inspection notice for the old draft plan under the Planning and Development Act 2007

, section 323 (3) is, on the commencement day, taken to be the public consultation period for the new draft plan under section 177 (2) (a) (ii).

411 Draft plans of management for reserves—submission to Minister stage

(1) This section applies if, immediately before the commencement day—

(a) the proponent of a draft plan of management for a reserve (an old draft plan) has given the old draft plan to the Minister under the Planning and Development Act 2007

, section 325 (Giving draft plans of management to Minister); but

(b) the Minister has not made a decision about the old draft plan under the Planning and Development Act 2007

, section 327 (Minister’s powers on receiving draft plans of management).

(2) The old draft plan is, on the commencement day, taken to be a draft reserve management plan (a new draft plan) given to the Minister under section 178 (Draft reserve management plan—revision and submission to Minister).

(3) The report for the old draft plan under the Planning and Development Act 2007

, section 325 (a) is, on the commencement day, taken to be the report for the new draft plan under section 178 (3) (a).

(4) An explanation for the old draft plan under the Planning and Development Act 2007

, section 325 (b) is, on the commencement day, taken to be a report for the new draft plan under section 178 (3) (b).

412 Licences

(1) This section applies if, immediately before the commencement day, a person holds a licence (an old licence) under the Nature Conservation Act 1980

, section 104 (Grant of licence).

(2) The old licence is, on the commencement day, taken to be a nature conservation licence under section 260 (What is a nature conservation licence?)—

(a) in the same terms as the old licence; and

(b) subject to the same conditions as the old licence.

(3) The nature conservation licence—

(a) is taken to expire on the day stated in the old licence; and

(b) must not be amended, transferred or renewed.

413 Management agreements

(1) This section applies if, immediately before the commencement day, a management agreement between the conservator and an agency (an old management agreement), in relation to controlled land, is in force under the Nature Conservation Act 1980

(2) The old management agreement is, on the commencement day, taken to be a management agreement between the conservator and the agency, in relation to the land, under section 308 (What is a management agreement?—ch 12).

414 Transitional regulations

(1) A regulation may prescribe transitional matters necessary or convenient to be prescribed because of the enactment of this Act.

(2) A regulation may modify this chapter (including in relation to another territory law) to make provision in relation to anything that, in the Executive’s opinion, is not, or is not adequately or appropriately, dealt with in this chapter.

(3) A regulation under subsection (2) has effect despite anything elsewhere in this Act or another territory law.

415 Expiry—ch 20

This chapter expires 2 years after the day it commences.

Note Transitional provisions are kept in the Act for a limited time. A transitional provision is repealed on its expiry but continues to have effect after its repeal (see Legislation Act

, s 88).

Schedule 1 Reviewable decisions

(see ch 14)

column 1 item	column 2 section	column 3 decision	column 4 entity
1	224 (2)	issue restore excavation direction	person directed
2	227 (2)	issue repair damage direction	person directed
3	271 (2)	issue nature conservation licence
4	271 (2)	refuse to issue nature conservation licence	applicant for licence
5	272 (b)	issue nature conservation licence—impose condition	licensee
6	277	impose financial assurance condition on nature conservation licence	licensee
7	280	claim a financial assurance	licensee
8	284 (1)	amend nature conservation licence	licensee
9	286 (2)	refuse to amend nature conservation licence	licensee
10	286 (3)	amend nature conservation licence—impose or amend condition	licensee
11	288 (2)	refuse to transfer nature conservation licence	licensee proposed new licensee
12	288 (3)	transfer nature conservation licence—impose or amend condition	new licensee
13	290(2)	refuse to renew nature conservation licence	licensee
14	290 (3)	renew nature conservation licence—impose or amend condition	licensee
15	297 (3)	take regulatory action	licensee
16	298	immediately suspend nature conservation licence	licensee
17	325 (2)	issue conservator’s direction	person directed
18	327 (2)	issue treatment direction	person directed
19	329 (2) (a)	issue direction to give animal or plant to conservator	person directed
20	329 (2) (b)	issue direction to destroy animal or plant	person directed
21	349 (2)	issue direction to destroy or otherwise dispose of a thing	person directed

Schedule 2 Consequential amendments

(see s 352)

Part 2.1 Animal Welfare Act 1992

[2.1] Section 2, note 1

substitute

Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere.

For example, the signpost definition ‘native animal—see the Nature Conservation Act 2014, section 12.’ means that the term ‘native animal’ is defined in that section and the definition applies to this Act.

[2.2] Section 27 (2) (e)

omit

Nature Conservation Act 1980

substitute

Nature Conservation Act 2014

[2.3] Section 38 (2) (c)

omit

Nature Conservation Act 1980

substitute

Nature Conservation Act 2014

[2.4] Section 55 (4) (e)

omit

Nature Conservation Act 1980

substitute

Nature Conservation Act 2014

[2.5] Dictionary, definition of native animal

substitute

native animal—see the Nature Conservation Act 2014, section 12.

Part 2.2 Common Boundaries Act 1981

[2.6] Section 2B (b)

substitute

(b) the land is a reserve; or

[2.7] New section 2B (2)

insert

(2) In this section:

reserve—see the Nature Conservation Act 2014, section 167.

Note Reserves include wilderness areas, national parks, nature reserves, catchment areas and other areas of public land.

Part 2.3 Emergencies Act 2004

[2.8] Section 77 (3)

omit

plan of management in force under the Planning and Development Act 2007

, part 10.4 (Plans of management for public land)

substitute

public land management plan in force under the under the Planning and Development Act 2007

, section 318 (What is a public land management plan for an area of public land?)

Part 2.4 Environment Protection Regulation 2005

[2.9] Schedule 2, section 2.2 (1), new definition of reserve

insert

reserve—see the Nature Conservation Act 2014, section 167.

Note Reserves include wilderness areas, national parks, nature reserves, catchment areas and other areas of public land.

[2.10] Schedule 2, section 2.2 (1), definition of reserved area and note

omit

[2.11] Schedule 2, section 2.2, table 2.3, item 2, column 2

omit

reserved area

substitute

reserve

[2.12] Dictionary, new definition of reserve

insert

reserve—for schedule 2, part 2.3 (Noise conditions)—see the Nature Conservation Act 2014, section 167.

Note Reserves include wilderness areas, national parks, nature reserves, catchment areas and other areas of public land.

[2.13] Dictionary, definition of reserved area

omit

Part 2.5 Firearms Act 1996

[2.14] New section 61 (4)

before the table, insert

(4) In this section:

nature conservation licence—see the Nature Conservation Act 2014, section 260.

public unleased land permit—see the Public Unleased Land Act 2013

, section 40.

reserve—see the Nature Conservation Act 2014, section 167.

Note Reserves include wilderness areas, national parks, nature reserves, catchment areas and other areas of public land.

[2.15] Table 61, column 3, requirement 2.2

substitute

2.2 For vermin control in a reserve—the applicant holds a nature conservation licence, or a public unleased land permit, authorising the applicant to use a firearm in a reserve to kill animals.

Part 2.6 Firearms Regulation 2008

[2.16] Section 3, note 1

substitute

Note 1 The dictionary at the end of this regulation defines certain terms used in this regulation, and includes references (signpost definitions) to other terms defined elsewhere.

For example, the signpost definition ‘reserve—see the Nature Conservation Act 2014, section 167.’ means that the term ‘reserve’ is defined in that section and the definition applies to this regulation.

[2.17] Table 15, item 3, column 2

omit

on land within a reserved area

substitute

in a reserve

[2.18] Table 15, item 3, column 3

omit

on land within a stated reserved area

substitute

in a stated reserve

[2.19] Dictionary, new definition of reserve

insert

reserve—see the Nature Conservation Act 2014, section 167.

Note Reserves include wilderness areas, national parks, nature reserves, catchment areas and other areas of public land.

[2.20] Dictionary, definition of reserved area

omit

Part 2.7 Fisheries Act 2000

[2.21] Section 26 (1) (a)

substitute

(a) whether the applicant has been convicted, or found guilty, of an offence against—

(i) this Act; or

(ii) the Nature Conservation Act 2014, division 6.1.2 (Native animals); or

(iii) a law of another jurisdiction corresponding, or substantially corresponding, to this Act or that division; and

[2.22] Section 28 (1) (a)

substitute

(a) whether the applicant has been convicted, or found guilty, of an offence against—

(i) this Act; or

(ii) the Nature Conservation Act 2014, division 6.1.2 (Native animals); or

(iii) a law of another jurisdiction corresponding, or substantially corresponding, to this Act or that division; and

[2.23] Section 28 (1) (d)

substitute

(d) whether fish that may be imported or exported under the licence—

(i) are an endangered species; or

(ii) are a vulnerable species; or

(iii) have special protection status; or

(iv) are a protected native species; or

(v) are exempt animals; and

[2.24] New section 28 (3)

insert

(3) In this section:

endangered species—see the Nature Conservation Act 2014, dictionary.

exempt animal—see the Nature Conservation Act 2014, section 152.

protected native species—see the Nature Conservation Act 2014, section 108.

special protection status—see the Nature Conservation Act 2014, section 107.

vulnerable species—see the Nature Conservation Act 2014, dictionary.

[2.25] Section 28A (1) (a)

substitute

(a) whether the applicant has been convicted, or found guilty, of an offence against—

(i) this Act; or

(ii) the Nature Conservation Act 2014, division 6.1.2 (Native animals); or

(iii) a law of another jurisdiction corresponding, or substantially corresponding, to this Act or that division; and

[2.26] Section 34 (1) (b)

substitute

(b) the licensee is convicted, or found guilty, of an offence against—

(i) this Act; or

(ii) the Nature Conservation Act 2014, division 6.1.2 (Native animals); or

(iii) a law of another jurisdiction corresponding, or substantially corresponding, to this Act or that division; or

[2.27] Dictionary, definition of conservation officer

substitute

conservation officer—see the Nature Conservation Act 2014, dictionary.

Part 2.8 Heritage Act 2004

[2.28] Section 76 (1), definition of conservation officer

substitute

conservation officer—see the Nature Conservation Act 2014, dictionary.

Part 2.9 Legislation Act 2001

[2.29] Dictionary, part 1, definition of conservator of flora and fauna

omit

Nature Conservation Act 1980

substitute

Nature Conservation Act 2014

Part 2.10 Magistrates Court (Fisheries Infringement Notices) Regulation 2004

[2.30] Section 12

omit

under the Nature Conservation Act 1980

, section 8

[2.31] New section 12 (2)

insert

(2) In this section:

conservation officer—see the Nature Conservation Act 2014, dictionary.

Part 2.11 Planning and Development Act 2007

[2.32] Section 120 (e)

omit

plan of management

substitute

public land management plan

[2.33] Section 129 (f)

omit

plan of management

substitute

public land management plan

[2.34] Part 10.1

omit

[2.35] Section 316 (b)

omit

any plan of management

substitute

the public land management plan

[2.36] Part 10.4

substitute

Part 10.4 Public land management plans for public land

Division 10.4.1 Public land management plans

318 What is a public land management plan for an area of public land?

(1) In this Act:

public land management plan, for an area of public land, means—

(a) if the area is a reserve—a reserve management plan for the area; or

(b) if the area is not a reserve—a land management plan for the area.

Note 1 Reserves include wilderness areas, national parks, nature reserves, catchment areas and other prescribed areas of public land.

Note 2 Public land that is not a reserve may include special purpose reserves, urban open spaces, cemeteries, lakes, sport and recreation reserves and heritage areas.

(2) In this section:

reserve—see the Nature Conservation Act 2014, section 167.

reserve management plan, for a reserve—see the Nature Conservation Act 2014, section 173.

Division 10.4.2 Land management plans

319 What is a land management plan?—pt 10.4

In this part:

land management plan, for an area of public land, means a management plan for the area, notified under section 328 (Land management plan—Minister’s approval and notification).

, s 48).

320 What is a draft land management plan?—div 10.4.2

In this division:

draft land management plan, for an area of public land, means a draft management plan for the area that—

(a) identifies the area; and

(b) describes how the management objectives for the area are to be implemented or promoted in the area.

321 Draft land management plan—custodian to prepare

(1) The custodian of an area of public land must prepare a draft land management plan for the area.

Note 1 The power to make an instrument includes the power to amend or repeal the instrument. The power to amend or repeal the instrument is exercisable in the same way, and subject to the same conditions, as the power to make the instrument (see Legislation Act

, s 46).

Note 2 Under the Nature Conservation Act 2014, s 175, the custodian of a reserve must prepare a draft reserve management plan for the reserve.

(2) In preparing a draft land management plan, the custodian must consult—

(a) the conservator; and

(b) the planning and land authority.

322 Draft land management plan—planning reports and strategic environmental assessments

(1) At any time before a draft land management plan for an area of public land is approved by the Minister under section 327 (3) (a), the Minister may direct the planning and land authority to prepare—

(a) a planning report for the draft plan; or

(b) a strategic environmental assessment for the draft plan.

(2) If a planning report or strategic environmental assessment is prepared under subsection (1), the custodian of the area of public land must consider the report or assessment in preparing the draft land management plan for the area.

323 Draft land management plan—public consultation

(1) If the custodian of an area of public land prepares a draft land management plan for the area, the custodian must also prepare a notice (a public consultation notice) about the draft land management plan.

(2) A public consultation notice must—

(a) state that—

(i) anyone may give a written submission to the custodian about the draft land management plan; and

(ii) submissions may be given to the custodian only during the period starting on the day the public consultation notice is notified under the Legislation Act

and ending on a stated day, being a day at least 6 weeks after the day it is notified (the public consultation period); and

(b) include the draft land management plan.

(3) A public consultation notice is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act

(4) If the custodian notifies a public consultation notice for a draft land management plan—

(a) anyone may give a written submission to the custodian about the draft plan; and

(b) the submission may be given to the custodian only during the public consultation period for the draft plan; and

(5) The custodian may make arrangements for people with particular communication needs to ensure they have adequate opportunity to comment on the draft land management plan.

324 Draft land management plan—revision and submission to Minister

(1) If the public consultation period for a draft land management plan has ended, the custodian of the area of public land must—

(a) consider any submissions received during the public consultation period; and

(b) make any revisions to the draft plan that the custodian considers appropriate.

(2) The custodian of the area must then submit the draft plan to the Minister for approval.

(3) The submission must be accompanied by a report—

(a) setting out the issues raised in any submissions given to the custodian during the public consultation period for the draft plan; and

325 Draft land management plan—referral to Legislative Assembly committee

(1) This section applies if the custodian of an area of public land submits a draft land management plan to the Minister for approval.

(2) The Minister must, not later than 5 working days after the day the Minister receives the draft plan, refer the following to an appropriate committee of the Legislative Assembly:

(a) the draft plan;

(b) the report mentioned in section 324 (3).

(3) The committee must consider the draft plan and report and either—

(a) recommend that the Minister approves the draft plan; or

(b) make another recommendation about the draft plan.

(4) The committee must tell the Minister about the recommendation and refer the matter back to the Minister.

326 Draft land management plan—committee to report

(1) This section applies if the Minister has referred a draft plan to a committee of the Legislative Assembly under section 325.

(2) The Minister must not take action under section 327 in relation to the draft plan until—

(a) the committee has referred the draft plan back to the Minister under section 325 (4); or

(b) 6 months after the day the draft plan was given to the committee.

(3) If the committee has not referred the draft plan back to the Minister 6 months after the day the draft plan was given to the committee, the Minister may take action under section 327 in relation to the draft plan.

(4) After the committee refers the draft plan back to the Minister, the Minister must take action under section 327 in relation to the draft plan.

327 Draft land management plan—Minister to approve, return or reject

(1) This section applies if—

(a) a Legislative Assembly committee refers a draft plan back to the Minister under section 325 (4); or

(b) the Minister may take action under section 326 (3); or

(c) a custodian resubmits a draft plan to the Minister under section 329 (Draft land management plan—Minister’s direction to revise etc).

(2) If the Legislative Assembly committee has made a recommendation about the draft plan, the Minister must consider the recommendation.

(3) The Minister must, not later than the required time—

(a) approve the draft plan; or

(b) return the draft plan to the custodian and direct the custodian to take 1 or more of the following actions in relation to it:

(i) if the Legislative Assembly committee has made a recommendation about the draft plan—consider the recommendation;

(ii) carry out stated further consultation;

(iii) consider a revision suggested by the Minister;

(iv) revise the draft plan in a stated way; or

(4) In this section:

required time means 45 working days after—

(a) if subsection (1) (a) applies—the day the committee tells the Minister about the recommendation under section 325 (4); or

(b) if subsection (1) (b) applies—the end of the 6-month period mentioned in section 326 (3); or

328 Land management plan—Minister’s approval and notification

(1) A draft land management plan approved by the Minister under section 327 (3) (a) or section 331 (3) (a) is a land management plan.

(2) A land management plan is a disallowable instrument.

Note 1 A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act

Note 2 The power to make a land management plan includes the power to amend or repeal the plan. The power to amend or repeal the plan is exercisable in the same way, and subject to the same conditions, as the power to make the plan (see Legislation Act

, s 46).

Note 3 Minor amendments may be made to the land management plan under s 331.

329 Draft land management plan—Minister’s direction to revise etc

(1) This section applies if the Minister gives the custodian of an area of public land a direction under section 327 (3) (b).

(2) The custodian must—

(a) give effect to the direction; and

(b) resubmit the draft plan to the Minister for approval.

(3) The Minister must decide, under section 327, what to do with the resubmitted draft plan.

330 Draft land management plan—Minister’s rejection

(1) If the Minister rejects a draft land management plan under section 327 (3) (c), the Minister must prepare a notice (a rejection notice) stating that the draft plan is rejected.

(2) A rejection notice is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act

331 Land management plan—minor amendments

(1) This section applies if—

(a) a land management plan for an area of public land is in force (the existing plan); and

(b) the custodian considers that minor amendments to the existing plan are appropriate.

(2) The custodian—

(a) may prepare a new draft land management plan for the area, incorporating the minor amendments into the existing plan; and

(b) need not comply with the requirements in this part; and

(3) If the custodian submits a new draft land management plan to the Minister for approval, the Minister must—

(a) approve the plan; or

(b) reject the plan.

Note The new draft land management plan is a land management plan and is a disallowable instrument (see s 328).

(4) In this section:

minor amendment, of a land management plan for an area of public land, means an amendment that will improve the effectiveness or technical efficiency of the plan without changing the substance of the plan.

Examples

1 minor correction to improve effectiveness

2 omission of something redundant

3 technical adjustment to improve efficiency

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

332 Land management plan—custodian to implement

If a land management plan is in force for an area of public land, the custodian of the area of public land must take reasonable steps to implement the plan.

332A Land management plan—review

(1) This section applies if a land management plan is in force for an area of public land.

(2) The custodian of the area of public land must report to the Minister about the implementation of the plan at least once every 5 years.

(3) The custodian of the area of public land must review the plan—

(a) every 10 years after the plan commences; and

(b) at any other time at the Minister’s request.

(4) However, the Minister may extend the time for conducting a review under subsection (3) (a).

(5) In carrying out a review, the custodian must consult the conservator.

[2.37] New chapter 20

insert

Chapter 20 Transitional—Nature Conservation Act 2014—plans of management

473 Definitions—ch 20

In this chapter:

commencement day means the day the Nature Conservation Act 2014, section 3 commences.

474 Certain plans of management to be land management plans

(1) This section applies if, immediately before the commencement day, a plan of management for an area of land that is not a reserve (an old plan of management) is in force under part 10.4 (Plans of management for public land).

(2) The old plan of management is, on the commencement day, taken to be a land management plan (a new land management plan).

Note Land management plan, for an area of public land—see s 319.

(3) A new land management plan is, for section 332A (Land management plan—review), taken to have commenced on the day the old plan of management commenced.

(4) In this section:

reserve—see the Nature Conservation Act 2014, section 167.

Note 1 Reserves include wilderness areas, national parks, nature reserves, catchment areas and other areas of public land.

Note 2 A plan of management for an area of land that is a reserve is taken to be a reserve management plan under the Nature Conservation Act 2014, s 409.

475 Draft plans of management—public consultation stage

(1) This section applies if, immediately before the commencement day, the proponent of a draft plan of management for public land that is not a reserve (an old draft plan)—

(a) has made copies of the old draft plan available for public inspection under section 323 (Public consultation about draft plans of management); but

(b) has not given the old draft plan to the Minister under section 325 (Giving draft plans of management to Minister).

(2) The old draft plan is, on the commencement day, taken to be a draft land management plan for the land (a new draft plan) notified under section 323 (Draft land management plan—public consultation).

(3) The period stated in the public inspection notice for the old draft plan under section 323 (3) (Public consultation about draft plans of management) is, on the commencement day, taken to be the public consultation period for the new draft plan under section 323 (2) (a) (ii) (Draft land management plan—public consultation).

476 Draft plans of management—submission to Minister stage

(1) This section applies if, immediately before the commencement day—

(a) the proponent of a draft plan of management for public land that is not a reserve (an old draft plan) has given the old draft plan to the Minister under section 325 (Giving draft plans of management to Minister); but

(b) the Minister has not made a decision about the old draft plan under section 327 (Minister’s powers on receiving draft plans of management).

(2) The old draft plan is, on the commencement day, taken to be a draft land management plan for the land (a new draft plan) given to the Minister under section 324 (Draft land management plan—revision and submission to Minister).

(3) The report for the old draft plan under section 325 (a) (Giving draft plans of management to Minister) is, on the commencement day, taken to be the report for the new draft plan under section 324 (3) (a) (Draft land management plan—revision and submission to Minister).

(4) An explanation for the old draft plan under section 325 (b) (Giving draft plans of management to Minister) is, on the commencement day, taken to be a report for the new draft plan under section 324 (3) (b) (Draft land management plan—revision and submission to Minister).

477 Transitional regulations

(1) A regulation may prescribe transitional matters necessary or convenient to be prescribed because of the enactment of the Nature Conservation Act 2014.

(3) A regulation under subsection (2) has effect despite anything elsewhere in this Act or another territory law.

478 Expiry—ch 20

This chapter expires 2 years after the day it commences.

Note Transitional provisions are kept in the Act for a limited time. A transitional provision is repealed on its expiry but continues to have effect after its repeal (see Legislation Act

, s 88).

[2.38] Schedule 4, section 4.1, new definition of action plan

insert

action plan, for a relevant species, relevant ecological community or key threatening process—see the Nature Conservation Act 2014, section 97.

[2.39] Schedule 4, section 4.1, definitions of biodiversity corridor and clearing

substitute

biodiversity corridor means a river corridor or wildlife corridor identified in the territory plan

, the nature conservation strategy for the ACT or an action plan.

clearing native vegetation—see the Nature Conservation Act 2014, section 232.

[2.40] Schedule 4, section 4.1, new definitions

insert

conservation dependent species—see the Nature Conservation Act 2014, dictionary.

critically endangered species—

(a) see the Nature Conservation Act 2014, dictionary; and

(b) includes a species included in the critically endangered category of the list of threatened native species under the Environment Protection and Biodiversity Conservation Act 1999

(Cwlth).

[2.41] Schedule 4, section 4.1, definitions of ecological community and endangered

omit

[2.42] Schedule 4, section 4.1, new definition of endangered species

insert

endangered species—

(a) see the Nature Conservation Act 2014, dictionary; and

(b) includes a species included in the endangered category of the list of threatened native species under the Environment Protection and Biodiversity Conservation Act 1999

(Cwlth).

[2.43] Schedule 4, section 4.1, definition of flora and fauna committee

omit

[2.44] Schedule 4, section 4.1, new definitions

insert

listed migratory species—see the Environment Protection and Biodiversity Conservation Act 1999

(Cwlth), section 528.

listed threatened ecological community—see the Environment Protection and Biodiversity Conservation Act 1999

(Cwlth), section 528.

native species conservation plan, for a native species—see the Nature Conservation Act 2014, section 113.

[2.45] Schedule 4, section 4.1, definition of native vegetation

substitute

native vegetation, for an area—see the Nature Conservation Act 2014, section 230.

[2.46] Schedule 4, section 4.1, new definitions

insert

native vegetation area—see the Nature Conservation Act 2014, section 231.

nature conservation strategy, for the ACT—see the Nature Conservation Act 2014, section 46.

[2.47] Schedule 4, section 4.1, definition of protected

omit

[2.48] Schedule 4, section 4.1, new definitions

insert

protected native species—see the Nature Conservation Act 2014, section 108.

provisionally listed threatened species—see the Nature Conservation Act 2014, dictionary.

Ramsar wetland—see the Nature Conservation Act 2014, section 188.

Note The Nature Conservation Act 2014, s 188 defines a Ramsar wetland to be a declared Ramsar wetland under the Environment Protection and Biodiversity Conservation Act 1999

(Cwlth), s 17.

[2.49] Schedule 4, section 4.1, definition of special protection status

omit

[2.50] Schedule 4, section 4.1, new definition of threatened ecological community

insert

threatened ecological community—

(a) see the Nature Conservation Act 2014, section 65; and

(b) includes a listed threatened ecological community.

Note Threatened ecological communities are divided into the following categories (see Nature Conservation Act 2014, s 67):

• critically endangered ecological communities;

• endangered ecological communities;

• vulnerable ecological communities;

• provisionally listed threatened ecological communities.

[2.51] Schedule 4, section 4.1, definitions of threatening process and vulnerable

omit

[2.52] Schedule 4, section 4.1, new definition of vulnerable species

insert

vulnerable species—

(a) see the Nature Conservation Act 2014, dictionary; and

(b) includes a species included in the vulnerable category of the list of threatened native species under the Environment Protection and Biodiversity Conservation Act 1999

(Cwlth).

[2.53] Schedule 4, part 4.3, item 1

substitute

proposal that is likely to have a significant adverse environmental impact on 1 or more of the following, unless the conservator of flora and fauna provides an environmental significance opinion indicating that the proposal is not likely to have a significant adverse environmental impact:

(a) a critically endangered species;

(b) an endangered species;

(d) a conservation dependent species;

(e) a provisionally listed threatened species;

(f) a listed migratory species;

(g) a threatened ecological community;

(h) a protected native species;

(i) a Ramsar wetland

[2.54] Schedule 4, part 4.3, item 2, column 2, paragraph (a)

omit

native vegetation other than on land that is designated as a future urban area under the territory plan

substitute

native vegetation in a native vegetation area, other than on land that is designated as a future urban area under the territory plan

[2.55] Schedule 4, part 4.3, item 2, column 2, paragraph (b)

omit

native vegetation on land that is designated as a future urban area under the territory plan

substitute

native vegetation in a native vegetation area, on land that is designated as a future urban area under the territory plan

[2.56] Dictionary, new definition of action plan

insert

action plan, for schedule 4 (Development proposals in impact track because of need for EIS)—see the Nature Conservation Act 2014, section 97.

[2.57] Dictionary, definition of clearing

substitute

clearing native vegetation, for schedule 4 (Development proposals in impact track because of need for EIS)—see the Nature Conservation Act 2014, section 232.

[2.58] Dictionary, new definitions

insert

conservation dependent species, for schedule 4 (Development proposals in impact track because of need for EIS)—see the Nature Conservation Act 2014, dictionary.

critically endangered species, for schedule 4 (Development proposals in impact track because of need for EIS)—see schedule 4, section 4.1.

draft land management plan, for an area of public land, for division 10.4.2 (Land management plans)—see section 320.

[2.59] Dictionary, definitions of ecological community and endangered

omit

[2.60] Dictionary, new definition of endangered species

insert

endangered species, for schedule 4 (Development proposals in impact track because of need for EIS)—see schedule 4, section 4.1.

[2.61] Dictionary, definition of flora and fauna committee

omit

[2.62] Dictionary, new definitions

insert

land management plan, for an area of public land, for part 10.4 (Public land management plans for public land)—see section 319.

listed migratory species, for schedule 4 (Development proposals in impact track because of need for EIS)—see the Environment Protection and Biodiversity Conservation Act 1999

(Cwlth), section 528.

listed threatened ecological community, for schedule 4 (Development proposals in impact track because of need for EIS)—see the Environment Protection and Biodiversity Conservation Act 1999

(Cwlth), section 528.

native species conservation plan, for schedule 4 (Development proposals in impact track because of need for EIS)—see the Nature Conservation Act 2014, section 113.

[2.63] Dictionary, definition of native vegetation

substitute

native vegetation, for schedule 4 (Development proposals in impact track because of need for EIS)—see the Nature Conservation Act 2014, section 230.

[2.64] Dictionary, new definitions

insert

native vegetation area, for schedule 4 (Development proposals in impact track because of need for EIS)—see the Nature Conservation Act 2014, section 231.

nature conservation strategy, for the ACT, for schedule 4 (Development proposals in impact track because of need for EIS)—see the Nature Conservation Act 2014, section 46.

[2.65] Dictionary, definition of plan of management

omit

[2.66] Dictionary, definition of proponent

substitute

proponent, for a development proposal, for chapter 8 (Environmental impact statements and inquiries)—see section 206.

[2.67] Dictionary, definition of protected

omit

[2.68] Dictionary, new definitions

insert

protected native species, for schedule 4 (Development proposals in impact track because of need for EIS)—see the Nature Conservation Act 2014, section 108.

provisionally listed threatened species, for schedule 4 (Development proposals in impact track because of need for EIS)—see the Nature Conservation Act 2014, dictionary.

public consultation period, for a draft land management plan, for division 10.4.2 (Land management plans)—see section 323.

public land management plan, for an area of public land—see section 318.

Ramsar wetland, for schedule 4 (Development proposals in impact track because of need for EIS)—see the Nature Conservation Act 2014, section 188.

[2.69] Dictionary, definitions of special protection status and technical variation

omit

[2.70] Dictionary, new definition of threatened ecological community

insert

threatened ecological community, for schedule 4 (Development proposals in impact track because of need for EIS)—see schedule 4, section 4.1.

[2.71] Dictionary, definition of threatening process

omit

[2.72] Dictionary, definition of variation

substitute

variation, of a lease—

(a) includes the surrender of the lease and the grant of a new lease to the same lessee, subject to different provisions, over land that—

(i) is all or part of the land comprised in the surrendered lease; and

(ii) is not in an area identified in the territory plan

as a future urban area; and

(b) without limiting paragraph (a), includes the surrender of a concessional lease and the grant of a new lease to the same lessee as a market value lease; and

(d) does not include—

(i) the surrender of the lease and the grant of a further lease under section 254 (Grant of further leases); or

(ii) a variation to a deed that is incorporated into, or referred to in, the lease, if the deed is varied in a way that is provided for in the deed.

Note The terms ‘vary’ a lease and ‘lease variation’ have meanings corresponding to ‘variation of a lease’ (see Legislation Act

, s 157 (Defined terms—other parts of speech and grammatical forms)).

[2.73] Dictionary, definition of vulnerable

omit

[2.74] Dictionary, new definition of vulnerable species

insert

vulnerable species, for schedule 4 (Development proposals in impact track because of need for EIS)—see schedule 4, section 4.1.

Part 2.12 Planning and Development Regulation 2008

[2.75] Schedule 1, section 1.1, definitions of clearing and native vegetation

substitute

clearing native vegetation—see the Nature Conservation Act 2014, section 232.

native vegetation—see the Nature Conservation Act 2014, section 230.

[2.76] Schedule 1, section 1.14 (1) (d)

substitute

(d) the Nature Conservation Act 2014.

[2.77] Schedule 1, section 1.85 (2) (b) and note

substitute

(b) the development does not result in the clearing of more than 0.5ha of native vegetation in a native vegetation area; and

Note Clearing native vegetation—see the Nature Conservation Act 2014, s 232.

Native vegetation—see the Nature Conservation Act 2014, s 230.

Native vegetation area—see the Nature Conservation Act 2014, s 231.

[2.78] Schedule 1, section 1.90 (2), definition of landscaping, paragraph (a) and note

substitute

(a) clearing more than 0.5ha of native vegetation in a native vegetation area;

[2.79] Schedule 1, section 1.93 (1) (b) and note

substitute

(b) the work does not result in the clearing of more than 0.5ha of native vegetation in a native vegetation area; and

[2.80] Dictionary, definitions of clearing and native vegetation

substitute

clearing native vegetation, for schedule 1 (Exemptions from requirement for development approval)—see the Nature Conservation Act 2014, section 232.

native vegetation, for an area, for schedule 1 (Exemptions from requirement for development approval)—see the Nature Conservation Act 2014, section 230.

[2.81] Dictionary, new definition of native vegetation area

insert

native vegetation area, for schedule 1 (Exemptions from requirement for development approval)—see the Nature Conservation Act 2014, section 231.

Part 2.13 Public Unleased Land Act 2013

[2.82] New section 19 (2A)

insert

(2A) If the public unleased land is a reserve, the director-general must consult the conservator about the application.

[2.83] Section 21 (1) (b)

substitute

(b) the damage is not authorised under—

(i) an approval under this Act; or

Examples—approvals that may authorise damage

1 closed road approval

2 work approval

(ii) a public unleased land permit; or

(iii) a nature conservation licence under the Nature Conservation Act 2014, section 260 (What is a nature conservation licence?).

[2.84] Section 43 (4) (a)

substitute

(a) holds a licence under the—

(i) Planning and Development Act 2007

, section 303 (Decision on licence applications for unleased land), to occupy or use the public unleased land; or

(ii) Nature Conservation Act 2014, section 260 (What is a nature conservation licence?), authorising the person to carry on an activity on the land; and

[2.85] New section 43 (4A)

insert

(4A) This section does not apply to a person carrying out an activity in a reserve if—

(a) an activities declaration under the Nature Conservation Act 2014 is in force for the reserve, providing that the activity may be carried out in the reserve if stated directions or requirements are complied with; and

(b) the person complies with the stated directions or requirements.

[2.86] Section 45 (2) (b) (i), new note

insert

Note Some activities are not permitted in wilderness areas (see s 57 (2A)).

[2.87] New section 52A

insert

52A Suitability of activities—consultation with conservator

(1) This section applies if—

(a) the director-general is making a decision about whether an activity is a suitable activity for a public unleased land permit; and

(b) the public unleased land is a reserve.

(2) In making the decision, the director-general must consult the conservator.

[2.88] New section 57 (2A)

insert

(2A) However, the director-general must not issue a public unleased land permit to carry on any of the following activities in a wilderness area:

(a) erect a building, booth, stall, post, sign or other structure;

(b) supply goods or services.

[2.89] Dictionary, new definitions

insert

conservator—see the Nature Conservation Act 2014, dictionary.

reserve—see the Nature Conservation Act 2014, section 167.

Note Reserves include wilderness areas, national parks, nature reserves, catchment areas and other areas of public land.

wilderness area—see the Nature Conservation Act 2014, section 168.

Dictionary

(see s 3)

Note 1 The Legislation Act

contains definitions and other provisions relevant to this Act.

Note 2 For example, the Legislation Act

, dict, pt 1, defines the following terms:

• ACAT

• ACT legislation register

• ambulance service

• Australia

• chief officer (ambulance service)

• chief officer (fire and rescue)

• chief officer (rural fire service)

• chief officer (SES)

• commissioner for sustainability and the environment

• contravene

• daily newspaper

• director-general (see s 163)

• disallowable instrument (see s 9)

• Executive

• exercise

• external territory

• fire and rescue

• function

• notifiable instrument (see s 10)

• penalty unit (see s 133)

• police officer

• reviewable decision notice

• rural fire service

• SES

• the Territory

• working day.

accessing biological resources, for part 8.5 (Access to biological resources in reserves)—see section 205.

access provider, for biological resources in a reserve, for part 8.5 (Access to biological resources in reserves)—see section 204.

action plan, for a relevant species, relevant ecological community or key threatening process, for part 4.5 (Action plans)—see section 97.

activities, of an agency, for chapter 12 (Management agreements with utility suppliers, land developers and others)—see section 306.

activities declaration, for a reserve—see section 254.

activity information notice, for an activity—see section 268.

ACT parks and conservation service means the ACT parks and conservation service established under section 27.

agency, for chapter 12 (Management agreements with utility suppliers, land developers and others)—see section 306.

animal—see section 11.

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.

biodiversity—see section 19.

biodiversity research and monitoring program, for part 2.1 (Conservator of flora and fauna)—see section 24.

biodiversity research and monitoring program report—see section 26.

biological resources, for part 8.5 (Access to biological resources in reserves)—see section 202.

built-up urban area, for division 6.1.3 (Native plants)—see section 137.

cause, serious harm or material harm—

(a) for part 9.4 (Reserves—offences about clearing native vegetation)—see section 233; and

(b) for part 9.5 (Reserves—offences about damaging land)—see section 242.

clearing native vegetation, for part 9.4 (Reserves—offences about clearing native vegetation)—see section 232.

closed reserve declaration, for a reserve, for part 10.2 (Prohibited and restricted activities)—see section 257.

connected, for part 13.2 (Enforcement by conservation officers)—see section 331.

conservation—see section 10.

conservation advice—see section 90.

conservation dependent species means a species included in the conservation dependent category on the threatened native species list.

conservation officer means a conservation officer mentioned in section 28.

conservator—see section 20.

conservator guidelines—see section 23.

conservator’s direction—see section 325 (2).

controlled native species, for chapter 7 (Controlled native species management plans)—see section 155.

controlled native species management plan, for a controlled native species—see section 156.

critical habitat, for a species or ecological community, means a habitat that is critical to the survival of the species or ecological community.

critically endangered ecological community means an ecological community included in the critically endangered category on the threatened ecological communities list.

critically endangered species means a species included in the critically endangered category on the threatened native species list.

custodian, for an area of land—see the Planning and Development Act 2007

, section 333 (What is a custodian?).

Note Custodian only applies to land that is unleased land or public land.

damage—

(a) a tree, for division 6.1.3 (Native plants)—see section 137; and

(b) to land, for part 9.5 (Reserves—offences about damaging land)—see section 241.

data deficient species means a species included in the data deficient category on the protected native species list.

draft action plan, for a relevant species, relevant ecological community or key threatening process, for part 4.5 (Action plans)—see section 98.

draft controlled native species management plan, for a controlled native species, for chapter 7 (Controlled native species management plans)—see section 157.

draft native species conservation plan, for a native species on stated land, for part 5.3 (Native species conservation plans)—see section 114.

draft nature conservation strategy, for the ACT, for chapter 3 (Nature conservation strategy for the ACT)—see section 47.

draft Ramsar wetland management plan, for a Ramsar wetland, for part 8.4 (Ramsar wetlands management plans)—see section 190.

draft reserve management plan, for a reserve, for part 8.3 (Reserve management plans)—see section 174.

due date—

(a) for when the financial assurance must be provided—see section 278; and

(b) for when a proposed management agreement is to be signed and returned to the conservator—see section 309.

ecological community—see section 17.

ecosystem means a dynamic complex of plant, animal and micro-organism communities and their non-living environment interacting as a functional unit.

eligible species—see section 93 (1).

endangered ecological community means an ecological community included in the endangered category on the threatened ecological communities list.

endangered species means a species included in the endangered category on the threatened native species list.

evidence direction—see section 313 (3).

exempt animal—see section 152.

export an item, means take the item to another place for any purpose.

Examples—purpose

• sale or trade

• personal use

• gift

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

extinct in the wild species means a species included in the extinct in the wild category on the threatened native species list.

extinct species means a species included in the extinct category on the threatened native species list.

financial assurance condition, on a licence—see section 276.

financial assurance considerations—see section 277.

genetic resources, for part 8.5 (Access to biological resources in reserves)—see section 203.

ground for regulatory action, against a licensee—see section 295.

habitat means an area—

(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.

import an item, means bring in the item from another place for any purpose.

Examples—purpose

• sale or trade

• personal use

• gift

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

in, a vehicle, includes on the vehicle.

ineligible species—see section 93 (1).

information direction—see section 317 (2).

inspection notice, for a licence—see section 270.

interfere with an item, for division 6.1.2 (Native animals)—see section 125.

item, for part 4.4 (Including, transferring and omitting items in list)—see section 78.

IUCN category, for a reserve, for part 8.2 (IUCN categories for reserves)—see section 169.

IUCN reserve management objectives, for an IUCN category, for part 8.2 (IUCN categories for reserves)—see section 171.

keep, an animal, means have charge or possession of the animal, either in captivity or in a domesticated state.

key threatening process—see section 72.

key threatening processes list—see section 73.

key threatening processes list criteria—see section 76.

lease—see the Planning and Development Act 2007

, section 235.

leave reserve direction, for part 13.1 (Directions)—see section 319 (2).

licence means a nature conservation licence.

licence number, for a licence—see section 275.

licence register—see section 302.

licensed activity, for a licence—see section 260.

list, for part 4.4 (Including, transferring and omitting items in list)—see section 78.

listed migratory species—see the Environment Protection and Biodiversity Conservation Act 1999

(Cwlth), section 528.

listing advice—see section 84.

listing assessment—see section 83.

management agreement, for public land or unleased territory land, for chapter 12 (Management agreements with utility suppliers, land developers and others)—see section 308.

management objectives, for public land or unleased territory land, for chapter 12 (Management agreements with utility suppliers, land developers and others)—see section 307.

material harm, to a reserve—

(a) for clearing native vegetation, for part 9.4 (Reserves—offences about clearing native vegetation)—see section 233; or

(b) for damage to land, for part 9.5 (Reserves—offences about damaging land)—see section 242.

member—

(a) for a species of animal—see section 18 (a); or

(b) for a species of plant—see section 18 (b); or

minor amendment, of a list, for part 4.4 (Including, transferring and omitting items in list)—see section 91.

motor vehicle—see the Road Transport (General) Act 1999

, dictionary.

name and address direction—see section 313 (2).

native animal—see section 12.

native plant—see section 14.

native species—see section 16.

native species conservation plan, for a native species—see section 113.

native timber, for division 6.1.3 (Native plants)—see section 137.

native tree, for division 6.1.3 (Native plants)—see section 137.

native vegetation, for an area, for part 9.4 (Reserves—offences about clearing native vegetation)—see section 230.

native vegetation area, for part 9.4 (Reserves—offences about clearing native vegetation)—see section 231.

nature—see section 9.

nature conservation licence—see section 260.

nature conservation strategy, for the ACT—see section 46.

nest, of an animal, for division 6.1.2 (Native animals)—see section 125.

nomination, for part 4.4 (Including, transferring and omitting items in list)—see section 78.

occupier, of premises, for part 13.2 (Enforcement by conservation officers)—see section 331.

offence, for part 13.2 (Enforcement by conservation officers)—see section 331.

organism includes—

(a) a virus; and

(b) the reproductive material of an organism; and

personal information notice—see section 265.

pest animal—see the Pest Plants and Animals Act 2005

, dictionary.

pest plant—see the Pest Plants and Animals Act 2005

, dictionary.

planning and development management objectives, for an area of public land, means the management objectives under the Planning and Development Act 2007

, section 317 (Management objectives for areas of public land).

Note The management objectives are stated in the following:

• the Planning and Development Act 2007

, sch 3;

• determinations made by the conservator under the Planning and Development Act 2007

, s 317 (2).

plant—see section 13.

plant reproductive material means—

(a) a seed or spore of a plant; or

(b) a cutting from a plant; or

plant tag, for a plant, for division 6.1.3 (Native plants)—see section 137.

population, of a species or ecological community, means an occurrence of the species or community in a particular area.

premises includes—

(a) land (whether vacant or occupied); and

(b) a vehicle; and

(d) an aircraft.

prohibited activity, for a reserve—see section 254.

proposed agreement—see section 309.

proposed new licensee, for a licence—see section 287.

protected native species—see section 108.

protected native species list—see section 109 (1).

protected native species list criteria—see section 112 (1).

provisionally listed threatened ecological community means an ecological community included in the provisional category on the threatened ecological communities list.

provisionally listed threatened species means a species included in the provisional category on the threatened native species list.

public consultation notice—for a nomination, for part 4.4 (Including, transferring and omitting items in list)—see section 82 (2).

public consultation period—

(a) for a draft action plan, for part 4.5 (Action plans)—see section 101 (2); and

(b) for a draft controlled native animal management plan, for chapter 7 (Controlled native species management plans)—see section 160 (2); and

(c) for a draft native species conservation plan, for part 5.3 (Native species conservation plans)—see section 118 (2); and

(d) for a draft nature conservation strategy, for chapter 3 (Nature conservation strategy for the ACT)—see section 50 (2); and

(e) for a draft Ramsar wetland management plan, for part 8.4 (Ramsar wetlands management plans)—see section 193 (2); and

(f) for a draft reserve management plan, for part 8.3 (Reserve management plans)—see section 177 (2); and

(g) for a nomination, for part 4.4 (Including, transferring and omitting items in list)—see section 82 (2).

public land—see the Planning and Development Act 2007

, dictionary.

public unleased land permit—see the Public Unleased Land Act 2013

, section 40.

Ramsar wetland—see section 188.

Ramsar wetland management plan, for a Ramsar wetland—see section 189.

rare species means a species included in the rare category on the protected native species list.

regular migratory species—see section 96.

regulatory action, against a licensee—see section 296.

relevant ecological community—see section 96.

relevant species—see section 96.

repair damage direction, for part 9.3 (Reserves—repairing damage)—see section 227 (2).

reserve—see section 167.

reserve management plan, for a reserve, for part 8.3 (Reserve management plans)—see section 173.

resource protection area, for chapter 10 (Reserves—prohibited and restricted activities)—see section 251.

resource protection area declaration, for a resource protection area—see section 252.

restore excavation direction, for part 9.2 (Reserves—offences in wilderness areas)—see section 224 (2).

restricted activity, for a reserve—see section 254.

restricted trade species means a species included in the restricted trade category on the protected native species list.

reviewable decision, for chapter 14 (Notification and review of decisions)—see section 354.

risk management plan notice, for a licence—see section 269.

scientific committee means the scientific committee established under section 31.

sell, for part 6.1 (Offences)—see section 124.

serious harm, to a reserve—

(a) for clearing native vegetation, for part 9.4 (Reserves—offences about clearing native vegetation)—see section 233; or

(b) for damage to land, for part 9.5 (Reserves—offences about damaging land)—see section 242.

show cause notice, for a licensee, for part 11.6 (Licences—regulatory action)—see section 297.

special protection status, for a native species—see section 107.

species—see section 15.

stop vehicle direction, for part 13.1 (Directions)—see section 321 (2).

suitability information—

(a) about an activity—see section 267; or

(b) about a person—see section 264.

suitable activity, for a licence—see section 266.

suitable person, to hold a licence, for chapter 11 (Nature conservation licences)—see section 263.

take, for part 6.1 (Offences)—see section 124.

threatened ecological communities list—see section 66.

threatened ecological communities list criteria—see section 69.

threatened ecological community—see section 65.

threatened native species—see section 59.

threatened native species list—see section 60.

threatened native species list criteria—see section 63.

threatening process—see section 71.

transfer, an item within a list, for part 4.4 (Including, transferring and omitting items in list)—see section 78.

treatment direction, for part 13.1 (Directions)—see section 327.

tree seedling, for division 6.1.3 (Native plants)—see section 137.

urgent direction, for part 13.1 (Directions)—see section 323.

vehicle includes vessel.

vessel includes hovercraft.

vulnerable ecological community means an ecological community included in the vulnerable category on the threatened ecological communities list.

vulnerable species means a species included in the vulnerable category on the threatened native species list.

warrant, for part 13.2 (Enforcement by conservation officers)—see section 331.

wilderness area—see section 168.

Endnotes

1 Presentation speech

Presentation speech made in the Legislative Assembly on 18 September 2014.

2 Notification

Notified under the Legislation Act

on 2014.

3 Republications of amended laws

For the latest republication of amended laws, see www.legislation.act.gov.au

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