Act No. 194 of 1992 as amended This compilation was prepared on 25 February 2000



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Part 5; Conservation orders
- SECT 56

Outline of this Part

(1)

This Part enables the Minister to make conservation



orders.

(2)


Division 1 is about making interim conservation orders

that relate to Commonwealth areas.

(3)

Division 2 is about making permanent conservation orders



that relate to Commonwealth areas.

(4)


Division 3 is about making impact assessment conservation

orders that impose requirements that apply while certain

procedures are undertaken under the Environment

Protection (Impact of Proposals) Act 1974.

Division 1;Interim conservation orders

- SECT 57

Minister may make interim conservation orders

Subject to section 58, the Minister may, by instrument in

writing, make an interim conservation order:

(a)


prohibiting or restricting specified activities on or

in:


(i)

all Commonwealth areas; or

(ii)

specified Commonwealth areas; or



(b)

requiring specified persons to take specified action

on or in:

(i)


all Commonwealth areas; or

(ii)


specified Commonwealth areas.

Note: Section 86 prohibits contraventions of interim conservation

orders.

- SECT 58



Limitations on the power to make interim conservation

orders


(1)

The Minister must not make an interim conservation order

in relation to a matter at a particular time if, at that

time, the Minister has the power under Division 3 to make

an impact assessment conservation order in relation to the

matter that comes into force immediately after it is made.

(2)

The Minister may make an interim conservation order that



prohibits, restricts or imposes requirements on an

activity that is carried out, or proposed to be carried

out, primarily for a commercial purpose only if:

(a)


the Minister has given notice of:

(i)


his or her intention to make the order; and

(ii)


the prohibitions, restrictions or requirements

in question;

to each other Minister whose areas of responsibility include

a matter that would be affected by such an order; and

(b)

subsection (3) does not apply.



(3)

This subsection applies if:

(a)

a Minister so notified, or another Commonwealth



agency, has the power to prohibit, restrict or impose

requirements on the activity or proposed activity:

(i)

within 24 hours of that Minister being so



notified; and

(ii)


to the extent specified under subparagraph

(2)(a)(ii); and

(b)

within the 24 hours:



(i)

that Minister or the other Commonwealth agency

exercises the power (whether to the same extent,

or to a greater or lesser extent, than the

extent specified under subparagraph (2)(a)(ii)),

or reaches a decision not to exercise the power;

and

(ii)


that Minister notifies the Minister

administering this Act that the power has been

exercised or the decision has been reached.

(4)


For the purposes of subsection (2), the commercial

purposes referred to in that subsection need not be the

commercial purposes of the person carrying out, or

proposing to carry out, the activity in question.

- SECT 59

Grounds for making interim conservation orders

(1)

The Minister may only make an interim conservation order



if he or she reasonably believes that it is necessary to

make the order, on one or more of the following grounds:

(a)

preventing a listed native species or a listed



ecological community from becoming further threatened

with extinction as a result of the carrying out of

particular activities; or

(b)


preventing the recovery of a listed native species or

a listed ecological community from being impeded by

the carrying out of particular activities; or

(c)


ensuring that particular activities do not have a

serious adverse effect on the successful

implementation of a recovery plan or a threat

abatement plan; or

(d)

ensuring that particular activities do not adversely



affect a listed native species or listed ecological

community, or habitat significant to the survival of

a listed native species or listed ecological

community, before an assessment can be made as to

whether any other action should be taken under this

Act to protect the species, community or habitat.

(2)

For the purposes of paragraph (1)(d), activities affecting



the habitat of a listed native species or a listed

ecological community are relevant only to the extent that

they adversely affect features of the habitat that are

significant to the survival of the species or community.

- SECT 60

Consideration of the social and economic impact of interim

conservation orders

In considering whether to make an interim conservation order, the

Minister must, so far as is practicable, ensure that the

prohibitions, restrictions and requirements in the order

will, consistent with the principles of ecologically

sustainable development, minimise any significant adverse

social and economic impacts, while ensuring that they:

(a)


are consistent with furthering the objects of this

Act; and


(b)

adequately address themselves to the grounds on which

the order is made.

- SECT 61

Procedure for making interim conservation orders

(1)


Before making an interim conservation order, the Minister:

(a)


must seek the Director's advice on whether it should

be made; and

(b)

may have regard to any advice of the Advisory



Committee on whether it should be made.

(2)


The Minister is not required, before making the order, to

give notice of his or her intention to make the order to

any person who will be affected by the order.

(3)


Subsection (2) does not prevent the Minister from giving

such notice if he or she thinks fit.

- SECT 62

Duration of interim conservation orders

(1)

An interim conservation order comes into force:



(a)

if a commencement day is specified in the

order;on that day; or

(b)


otherwise;immediately after it is made.

(2)


The order remains in force:

(a)


until:

(i)


if it prohibits, restricts or imposes

requirements on an activity that is carried out,

or proposed to be carried out, primarily for a

commercial purpose;subject to subsection

(3), the end of the period of 28 days after it

is made; or

(ii)

otherwise;the end of the period of 6 months



after it is made; or

(b)


until it is revoked by the Minister under section 65

or subsection 66(2);

whichever happens first.

(3)


The Minister may renew an interim conservation order of

the kind referred to in subparagraph (2)(a)(i) for a

further period of 28 days if he or she reasonably believes

that it is necessary to renew the order on one or more of

the grounds referred to in section 59.

(4)


For the purposes of subparagraph (2)(a)(i), the commercial

purposes referred to in that subsection need not be the

commercial purposes of the person carrying out, or

proposing to carry out, the activity in question.

- SECT 63

Publication of interim conservation orders

(1)

As soon as practicable after making an interim



conservation order, the Minister must inform the Director

that it has been made.

(2)

The Director must, as soon as practicable after being so



informed:

(a)


cause to be published in the Gazette, in a daily

newspaper circulating in each State in which are

located Commonwealth areas to which the order

relates, and in any other way required by the

regulations, a notice containing:

(i)


a copy of the order; and

(ii)


a statement to the effect that contravention of

the order is an offence against this Act; and

(iii)

a statement to the effect that a person (other



than a Commonwealth agency) who is affected by

the order may apply to the Minister, within 28

days of the publication (or within such further

period as the Minister allows), for a

reconsideration of the order by the Minister;

and


(b)

take reasonable steps to ensure that each person who

the Director knows would be affected by the order is

given a notice containing:

(i)

a copy of the order; and



(ii)

unless the person is a Commonwealth agency or a

State agency;a statement to the effect that

contravention of the order is an offence against

this Act; and

(iii)


unless the person is a Commonwealth

agency;a statement to the effect that the

person may apply to the Minister, within 28 days

of being given the notice (or within such

further period as the Minister allows), for a

reconsideration of the order by the Minister.

(3)

Failure to comply with this section does not affect the



validity of the order.

- SECT 64

Application for reconsideration of interim conservation

orders


(1)

A person (other than a Commonwealth agency) who is

affected by an interim conservation order may apply to the

Minister to reconsider the order.

(2)

The application must be in writing.



(3)

Subject to subsection (4), the application must be made

within 28 days, or within such further period as the

Minister allows, after the publication of a copy of the

order under paragraph 63(2)(a).

(4)


If the person is given a copy of the order after that

publication, the period of 28 days within which that

person must make the application is taken to begin on the

day on which the person received the notice.

- SECT 65

Reconsideration of interim conservation orders

(1)

Within one month after receiving such an application, the



Minister must:

(a)


seek the Director's advice on the application; and

(b)


reconsider the order; and

(c)


by instrument in writing, confirm, revoke or vary the

order; and

(d)

inform the Director accordingly.



(2)

As soon as practicable after being so informed, the

Director must:

(a)


notify the applicant in writing of the result of the

reconsideration; and

(b)

if the order is revoked or varied;cause to be



published in the Gazette, and in any other way

required by the regulations, a notice:

(i)

stating that the order has been revoked or



varied, as the case requires; and

(ii)


if the order is varied;setting out a copy

of the order as so varied.

(3)

The Minister may at any time revoke the order even if an



application for its reconsideration has not been made.

(4)


The Minister must not revoke the order under this section

unless he or she is satisfied that none of the grounds set

out in section 59 apply in relation to the order.

(5)


The Minister must not vary the order unless he or she is

satisfied that the order as varied adequately addresses

the grounds set out in section 59 that apply in relation

to the order at the time of the variation.

(6)

Immediately after a variation of the order, the order



continues in force as so varied.

- SECT 66

Director to attempt to enter into conservation

agreements

(1)

If the Director is satisfied that the environmental



protections that an interim conservation order gives could

be given by one or more appropriate conservation

agreements, the Director must take reasonable steps to

negotiate and enter into such conservation agreements.

(2)

If:


(a)

the Director has entered into such conservation

agreements; and

(b)


the Minister is satisfied that the agreements give

the same environmental protections that the order

gives;

the Minister must:



(c)

by instrument in writing, revoke the order; and

(d)

inform the Director accordingly.



(3)

As soon as practicable after being so informed, the

Director must cause to be published:

(a)


in the Gazette; and

(b)


in any other way required by the regulations;

a notice stating that the order has been revoked.

(4)

In this section:



environmental protection means a protective measure that the

order contains relating to any of the following:

(a)

a native species;



(b)

an ecological community;

(c)

habitat of such a species or community;



(d)

a recovery plan;

(e)

a threat abatement plan.



- SECT 67

Assistance for complying with interim conservation

orders

(1)


The Director may assist a person (other than a

Commonwealth agency) to comply with prohibitions,

restrictions or requirements imposed on a person by an

interim conservation order.

(2)

The assistance may take any one or more of the following



forms:

(a)


payment of money;

(b)


provision of goods;

(c)


provision of labour;

(d)


provision of other services.

(3)


The value of the assistance must not exceed that which the

Director thinks are the reasonable and direct costs of

complying with the prohibitions, restrictions or

requirements in question.

(4)

Assistance given under this section must be taken into



account in determining compensation payable under section

172.


Division 2; Permanent conservation orders
- SECT 68

Minister may make permanent conservation orders

The Minister may, by instrument in writing, make a permanent

conservation order:

(a)

prohibiting or restricting specified activities on or



in:

(i)


all Commonwealth areas; or

(ii)


specified Commonwealth areas; or

(b)


requiring specified persons to take specified action

on or in:

(i)

all Commonwealth areas; or



(ii)

specified Commonwealth areas.

Note: Section 86 prohibits contraventions of permanent

conservation orders.

- SECT 69

Grounds for making permanent conservation orders

(1)

The Minister may only make a permanent conservation order



if he or she reasonably believes that it is necessary to

make the order on one or more of the following grounds:

(a)

preventing a listed native species or a listed



ecological community from becoming further threatened

with extinction as a result of the carrying out of

particular activities; or

(b)


preventing the recovery of a listed native species or

a listed ecological community from being impeded by

the carrying out of particular activities; or

(c)


ensuring that particular activities do not have a

serious adverse effect on the successful

implementation of a recovery plan or a threat

abatement plan; or

(d)

ensuring that particular activities do not adversely



affect a listed native species or listed ecological

community, or habitat significant to the survival of

a listed native species or listed ecological

community, before an assessment can be made as to

whether any other action should be taken under this

Act to protect the species, community or habitat.

(2)

For the purposes of paragraph (1)(d), activities affecting



the habitat of a listed native species or a listed

ecological community are relevant only to the extent that

they adversely affect features of the habitat that are

significant to the survival of the species or community.

- SECT 70

Economic and social considerations

In considering whether to make a permanent conservation order,

the Minister must be satisfied that such action for the

conservation of the listed native species or listed

ecological community in question is justified, having

regard to economic and social considerations that are

consistent with the principles of ecologically sustainable

development.

- SECT 71

Procedure for making permanent conservation orders

Before making a permanent conservation order, the Minister:

(a)

must seek the Director's advice on whether it should



be made; and

(b)


may have regard to any advice of the Advisory

Committee on whether it should be made.

- SECT 72

Duration of permanent conservation orders

(1)

Subject to subsection (2), a permanent conservation order



comes into force:

(a)


if a commencement day is specified in the

order;on that day; or

(b)

otherwise;immediately after it is made.



(2)

If the order overlaps an interim conservation order that

is in force, the order:

(a)


does not come into force if the interim conservation

order is revoked under section 65 or subsection

66(2); and

(b)


in any other case;comes into force immediately

after the end of the period of 6 months after the

interim conservation order was made.

(3)


For the purposes of subsection (2), the order overlaps an

interim conservation order if they are the same in

relation to:

(a)


the activities (if any) that they prohibit or

restrict; and

(b)

the persons (if any) on whom they impose



requirements; and

(c)


the Commonwealth areas to which they apply.

(4)


The order remains in force until it is revoked by the

Minister.

- SECT 73

Reviews of permanent conservation orders

(1)

The Minister must:



(a)

at intervals of not more than 5 years, review the

permanent conservation order; and

(b)


after each review, confirm, vary or revoke the order

by instrument in writing.

(2)

Before reviewing the order, the Minister must seek the



Director's advice on the review.

(3)


The Minister must not revoke the order unless he or she is

satisfied that none of the grounds set out in section 69

apply in relation to the order.

(4)


The Minister must not vary the order unless he or she is

satisfied that the order as varied adequately addresses

the grounds set out in section 69 that apply in relation

to the order at the time of the variation.

(5)

Immediately after a variation of the order, the order



continues in force as so varied.

- SECT 74

Publication of permanent conservation orders

(1)


As soon as practicable after making or reviewing a

permanent conservation order, the Minister must cause the

Director to be informed of the making of the order, or the

decision on the review, as the case requires.

(2)

The Director must, as soon as practicable after being so



informed:

(a)


cause to be published in the Gazette, in a daily

newspaper circulating in each State in which are

located Commonwealth areas to which the order

relates, and in any other way required by the

regulations, a notice containing:

(i)


a copy of the order; and

(ii)


a statement to the effect that contravention of

the order is an offence against this Act; and

(iii)

if applicable, a statement of the decision on



the review; and

(iv)


a statement to the effect that a person (other

than a Commonwealth agency) who is affected by

the order may apply to the Minister, within 28

days of the publication (or within such further

period as the Minister allows), for a

reconsideration of the order by the Minister;

and

(b)


take all reasonable steps to ensure that each person

who the Director knows would be affected by the order

is given a notice containing:

(i)


a copy of the order; and

(ii)


if applicable, a statement of the decision on

the review; and

(iii)

unless the person is a Commonwealth agency or a



State agency;a statement to the effect that

contravention of the order is an offence against

this Act; and

(iv)


unless the person is a Commonwealth

agency;a statement to the effect that the

person may apply to the Minister, within 28 days

of being given the notice (or within such

further period as the Minister allows), for a

reconsideration of the order by the Minister.

(3)

Failure to comply with this section does not affect the



validity of the order.

- SECT 75

Application for reconsideration of permanent conservation orders

or decisions on review

(1)

A person (other than a Commonwealth agency) who is



affected by a permanent conservation order, or by the

decision on a review of a permanent conservation order,

may apply to the Minister to reconsider the order or the

decision, as the case requires.

(2)

The application must be in writing.



(3)

Subject to subsection (4), the application must be made

within 28 days, or within such further period as the

Minister allows, after the publication under paragraph

74(2)(a) of the notice relating to the making of the order

or conduct of the review.

(4)

If the person is given a copy of the order after that



publication, the period of 28 days within which that

person must make the application is taken to commence on

the day on which the person received the notice.

- SECT 76

Reconsideration of permanent conservation orders and decisions on

review


(1)

Upon receiving the application, the Minister must:

(a)

seek the Director's advice on the application; and



(b)

reconsider the permanent conservation order or the

decision on review, as the case requires; and

(c)


by instrument in writing:

(i)


confirm, vary or revoke the order; or

(ii)


confirm or vary the decision on review; and

(d)


cause the Director to be informed accordingly.

(2)


As soon as practicable after being so informed, the

Director must:

(a)

notify the applicant in writing of the result of the



reconsideration; and

(b)


if the order is revoked or varied or the decision on

review is varied;cause to be published in the

Gazette, and in any other way required by the

regulations, a notice:

(i)

stating that fact; and



(ii)

in the case of a variation;setting out a

copy of the order or decision as so varied.

(3)


Immediately after a variation of the order, the order

continues in effect as so varied.

- SECT 77

Assistance in complying with permanent conservation

orders

(1)


The Director may assist a person (other than a

Commonwealth agency) to comply with prohibitions,

restrictions or requirements imposed on a person by a

permanent conservation order.

(2)

The assistance may take any one or more of the following



forms:

(a)


payment of money;

(b)


provision of goods;

(c)


provision of labour;

(d)


provision of other services.

(3)


The value of the assistance must not exceed that which the

Director thinks are the reasonable and direct costs of

complying with the prohibitions, restrictions or

requirements in question.

(4)

Assistance given under this section must be taken into



account in determining compensation payable under section

172.


Division 3;Impact assessment conservation orders

- SECT 78

Application of this Division

This Division applies to:

(a)

a Commonwealth agency that is taking, or proposes to



take, action that, under section 5A of the

Environment Protection (Impact of Proposals) Act

1974, is taken to be a matter affecting the

environment to a significant extent within the

meaning of section 5 of that Act; and

(b)


if that action or proposed action involves the

Commonwealth agency giving a governmental approval

that is required before a particular proposed

activity is permitted under the law of the

Commonwealth or a Territory;the person proposing

to carry out the activity.

- SECT 79

Minister may make impact assessment conservation orders

(1)

The Minister may, by instrument in writing, make an impact



assessment conservation order:

(a)


prohibiting or restricting specified activities by

the Commonwealth agency; or

(b)

requiring the Commonwealth agency to take specified



action; or

(c)


subject to subsection (2), prohibiting or restricting

specified activities by a person, being activities

that constitute the whole or part of, or are

connected with, an activity of the kind referred to

in paragraph 78(b) that the person proposes to carry

out.


(2)

An order under paragraph (1)(c) must only relate to

activities that the Minister is satisfied:

(a)


are proposed to be carried out before the end of the

period referred to in paragraph 83(3)(a); and

(b)

would, if carried out before the end of that period,



frustrate the operation of the Environment

Protection (Impact of Proposals) Act 1974.

Note: Sections 86 and 100 prohibit contraventions of impact

assessment conservation orders.

- SECT 80

Grounds for making impact assessment conservation orders

(1)

The Minister may only make an impact assessment



conservation order if he or she reasonably believes that

it is necessary to make the order on one or more of the

following grounds:

(a)


preventing a listed native species or a listed

ecological community from becoming further threatened

with extinction as a result of the carrying out of

particular activities; or

(b)

preventing the recovery of a listed native species or



a listed ecological community from being impeded by

the carrying out of particular activities; or

(c)

ensuring that particular activities do not have a



serious adverse effect on the successful

implementation of a recovery plan or a threat

abatement plan; or

(d)


ensuring that particular activities do not adversely

affect a listed native species or listed ecological

community, or habitat significant to the survival of

a native listed species or listed ecological

community, before an assessment can be made as to

whether any other action should be taken under this

Act to protect the species, community or habitat.

(2)


For the purposes of paragraph (1)(d), activities affecting

the habitat of a listed native species or a listed

ecological community are relevant only to the extent that

they adversely affect features of the habitat that are

significant to the survival of the species or community.

- SECT 81

Consideration of the social and economic impact of impact

assessment conservation orders

In considering whether to make an impact assessment conservation

order, the Minister must, so far as is practicable, ensure

that the prohibitions, restrictions and requirements in

the order will, consistent with the principles of

ecologically sustainable development, minimise any

significant adverse social and economic impacts, while

ensuring that they:

(a)


are consistent with furthering the objects of this

Act; and


(b)

adequately address themselves to the grounds on which

the order is made.

- SECT 82

Procedure for making impact assessment conservation

orders


(1)

Before making an impact assessment conservation order, the

Minister:

(a)


must seek the Director's advice on whether it should

be made; and

(b)

may have regard to any advice of the Advisory



Committee on whether it should be made.

(2)


The Minister is not required, before making the order, to

give notice of his or her intention to make the order to

any person who will be affected by the order.

(3)


Subsection (2) does not prevent the Minister from giving

such notice if he or she thinks fit.

- SECT 83

Duration of impact assessment conservation orders

(1)

Subject to subsection (2), an impact assessment



conservation order comes into force:

(a)


if a commencement day is specified in the

order;on that day; or

(b)

otherwise;immediately after it is made.



(2)

If the day on which the order would come into force under

subsection (1) is earlier than the day on which the

Department administered by the Minister is notified, under

the EPIP administrative procedures, of the proposed action

referred to in section 78, the order comes into force on

the day the Department is so notified.

(3)


The order remains in force:

(a)


until the EPIP administrative procedures have been

complied with in relation to the proposed action

referred to in section 78, except so far as the

procedures relate to review of environmental aspects

of the proposed action; or

(b)


the order is revoked by the Minister;

whichever happens first.

(4)

In this section:



EPIP administrative procedures means the administrative

procedures that are in force under section 6 of the

Environment Protection (Impact of Proposals) Act 1974.

- SECT 84

Publication of impact assessment conservation orders

(1)


As soon as practicable after making an impact assessment

conservation order, the Minister must inform the Director

of the making of the order.

(2)


The Director must, as soon as practicable after being so

informed:

(a)

cause to be published in the Gazette, in a daily



newspaper circulating in each State in which are

located Commonwealth areas to which the order

relates, and in any other way required by the

regulations, a notice containing a copy of the order;

and

(b)


take reasonable steps to ensure that each

Commonwealth agency that the Director knows would be

affected by the order is given a copy of the order.

(3)


Failure to comply with this section does not affect the

validity of the order.



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