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



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Part 6; Obligations to protect species etc.
- SECT 85

Outline of this Part

(1)

This Part imposes obligations on persons (particularly



Commonwealth agencies) in order to:

(a)


protect listed native species and listed ecological

communities; and

(b)

ensure the effectiveness of protective measures



adopted under Parts 3 and 5.

(2)


Division 1 imposes obligations on all persons relating to:

(a)


contravention of conservation orders; and

(b)


protection of members of listed native species.

(3)


Division 2 provides for the Director, in limited

circumstances, to issue permits allowing acts such as the

taking of listed native species.

(4)


Division 3 imposes additional obligations on Commonwealth

agencies relating to contravention of recovery plans,

threat abatement plans and impact assessment conservation

orders.


(5)

Division 4 concerns the Minister's role in advising

whether proposed actions breach obligations imposed by

this Part.

(6)

Division 5 concerns repair of damage caused by breaching



of this Act or its protective measures, and liability for

the costs of repair.

Division 1; Obligations on persons generally

- SECT 86

Compliance with conservation orders

(1)


A person must not knowingly or recklessly contravene:

(a)


an interim conservation order; or

(b)


a permanent conservation order; or

(c)


an impact assessment order made under paragraph

79(1)(c).

Penalty: $50,000.

(2)


If a person believes that taking action that he or she

proposes to take may contravene a particular interim

conservation order or permanent conservation order, the

person may seek the Minister's advice under subsection

104(4) on whether the order would be contravened by taking

that action.

(3)

The person does not contravene the order if he or she acts



in accordance with advice given to him or her under

subsection 104(4) to the effect that the order would not

be contravened.

- SECT 87

Taking etc. listed native species

(1)


Subject to subsection (4), a person must not knowingly or

recklessly take, trade, keep, or move any member of a

listed native species that is in or on a Commonwealth

area.


Penalty: $50,000.

(2)


Subject to subsection (4), a person must not knowingly or

recklessly trade, keep or move any member of a listed

native species that has been taken in or on a Commonwealth

area.


Penalty: $50,000.

(3)


If a person carries out an activity that results, directly

or indirectly, in the taking (otherwise than knowingly or

recklessly) of one or more members of a listed native

species in or on a Commonwealth area, the person must, as

soon as practicable after becoming aware of the taking,

give the Director a written notice that:

(a)

informs the Director that the activity resulted in



the taking; and

(b)


contains such other particulars relating to the

taking (for example, the time and place of the

taking) as are specified in the regulations.

Penalty: $10,000.

(4)

This section does not apply to an act:



(a)

that is done in accordance with a permit issued by

the Director under section 89; or

(b)


that is provided for in a recovery plan or threat

abatement plan for the purposes of its

implementation; or

(c)


that is done in accordance with a governmental

approval given or made under:

(i)

the Great Barrier Reef Marine Park Act 1975;



or

(ii)


the National Parks and Wildlife Conservation

Act 1975; or

(iii)

the Wildlife Protection (Regulation of Exports



and Imports) Act 1982; or

(iv)


the Whale Protection Act 1980; or

(d)


that is done by a Commonwealth agency or State agency

and is reasonably necessary for the purposes of law

enforcement.

(5)


In this section:

keep, in relation to a member of a listed native species,

means:

(a)


in the case of a species of fauna;have charge or

possession of the member of the species either in

captivity or in a domesticated state; or

(b)


in the case of a species of flora;have

possession of the member of the species.

member of a listed native species includes, in the case of a

species of fauna, the whole or part of the dead body of a

member of the species.

take includes kill, destroy, damage or collect.

trade includes:

(a)


buy, agree to receive under an agreement to buy,

agree to accept under such an agreement or acquire by

barter; or

(b)


sell, offer for sale, agree to sell, have in one's

possession for the purpose of sale, deliver for the

purpose of sale, receive for the purpose of sale or

dispose of by barter for the purpose of gain or

advancement; or

(c)


export from Australia or import into Australia; or

(d)


cause or allow any of the acts referred to in

paragraph (a), (b) or (c) to be done.

Division 2;Permits for taking etc. listed native species

- SECT 88

Application for permits

(1)


A person may apply in writing to the Director for a permit

to be issued under section 89.

(2)

The application may be made:



(a)

on the applicant's own behalf; or

(b)

on behalf of one or more other specified persons; or



(c)

on behalf of the members, from time to time, of a

specified group of persons.

(3)


The application:

(a)


must be in the form prescribed by the regulations;

and


(b)

must be accompanied by the fee prescribed by the

regulations.

(4)


The fee prescribed by the regulations must not be such as

to amount to taxation.

- SECT 89

Director may issue permits

(1)

Subject to this Division, the Director may, in writing,



issue a permit to a person under which:

(a)


the person or persons on whose behalf the application

for the permit was made; or

(b)

if the application was made on behalf of the members,



from time to time, of a specified group of

persons;any person who is, at the relevant time,

a member of the group of persons specified in the

permit;


the person or persons may do the acts specified in the permit without

breaching section 87.

(2)

The Director may include in the permit any conditions to



which the permit is subject, including (for example)

conditions stating the period within which the acts

specified in the permit may be done.

(3)


The Director must not issue the permit unless satisfied

that the acts specified in the permit:

(a)

will significantly contribute to the conservation of



the listed native species concerned or another listed

native species; or

(b)

are merely incidental to other acts and will not:



(i)

appreciably reduce the survival or recovery in

nature of the listed native species concerned;

or

(ii)



be inconsistent with a recovery plan for the

species that is in force; or

(c)

are of particular significance to Aboriginal or



Torres Strait Islander tradition and will not

appreciably reduce the survival or recovery in nature

of the listed native species concerned; or

(d)


are necessary in order to control pathogens and are

conducted in a way that will, so far as is

practicable, keep to a minimum any impact on the

listed native species concerned.

(4)

In this section:



Aboriginal means a member of the Aboriginal race of Australia.

Aboriginal or Torres Strait Islander tradition means the

body of traditions, observances, customs and beliefs of

Aboriginals and Torres Strait Islanders generally or of a

particular group of Aboriginals or Torres Strait

Islanders.

Torres Strait Islander means a descendant of an

indigenous inhabitant of the Torres Strait Islands.

- SECT 90

Public consultation

(1)

The Director must, at intervals of not more than 12



months, cause to be published in the Gazette and in a

national daily newspaper a notice inviting applications

from persons or bodies wishing to be registered for

receipt of advice on applications for permits.

(2)

The Director must register any person or body that applies



in writing for registration.

(3)


Registration has effect for the period specified in the

notice.


(4)

As soon as practicable after receiving an application

under section 88, the Director must cause a notice of the

application to be given to each person registered under

this section.

(5)


The notice must:

(a)


state that an application for a permit has been made;

and


(b)

set out details of the application; and

(c)

invite persons to make written submissions to the



Director about whether a permit should be issued; and

(d)


specify:

(i)


an address for lodgment of submissions; and

(ii)


a day by which submissions must be lodged.

(6)


The day specified must not be a day occurring within 5

days after the last day on which the notice was given.

(7)

In making a decision on the application, the Director must



consider all written submissions made by persons or bodies

registered under this section to the Director on or before

the day, and at the address for lodgment, specified in the

notice.


- SECT 91

Deadline for making a decision

(1)

The Director must:



(a)

decide whether to issue, or refuse to issue, a

permit; and

(b)


inform the applicant, by notice in writing, of the

decision;

within 90 days after receiving the application.

(2)


The Director is taken to have made a decision to refuse

the application if he or she has not informed the

applicant of the decision on the application before the

end of the period of 90 days.

- SECT 92

Cancellation of permits

(1)

The Director may cancel a permit if:



(a)

the person to whom the permit was issued is convicted

of:

(i)


an offence against section 87; or

(ii)


an offence against the Wildlife Protection

(Regulation of Exports and Imports) Act 1982;

or

(iii)


an offence against section 6, 7 or 7A, or

subsection 86(1), of the Crimes Act 1914 that

relates to section 87 of this Act or to the

Wildlife Protection (Regulation of Exports and

Imports) Act 1982; or

(b)


the Director is satisfied that:

(i)


the grounds set out in subsection 89(3) on which

the permit was issued no longer apply; and

(ii)

none of the other grounds set out in subsection



89(3) apply.

(2)


The Director must give written notice of the cancellation

to the person to whom the permit was issued.

- SECT 93

Notification of rights to reconsideration

(1)

The notice informing a person of a decision to issue, or



refusing to issue, a permit, or a decision cancelling a

permit, must contain:

(a)

a statement to the effect that the applicant may



apply to the Minister, within 28 days after receiving

the notice, for a reconsideration of the decision;

and

(b)


a statement to the effect that, if the applicant has

applied for a reconsideration and is dissatisfied

with the Minister's decision on that reconsideration,

application may, subject to the Administrative

Appeals Tribunal Act 1975, be made to the

Administrative Appeals Tribunal for review of the

decision; and

(c)


a statement to the effect that the applicant may

request a statement under section 28 of that Act in

relation to the decision on that reconsideration.

(2)


Failure to comply with this section does not affect the

validity of the decision.

- SECT 94

Application for reconsideration

(1)

The person given the notice may apply to the Minister to



reconsider the Director's decision.

(2)


The application must be in writing.

(3)


The application must be made within 28 days, or such

further period as the Minister allows, after the applicant

received notice of the decision.

- SECT 95

Reconsideration of decisions

(1)


Upon receiving the application for reconsideration, the

Minister must:

(a)

reconsider the decision; and



(b)

by instrument in writing:

(i)

if the decision is to refuse to issue a



permit;confirm the decision, or vary the

decision and direct the Director to issue a

permit in the terms specified by the Minister;

or

(ii)



if the decision is to issue a

permit;confirm the decision, or vary the

decision and direct the Director to issue a

fresh permit in the terms specified by the

Minister; or

(iii)


if the decision is to cancel a

permit;confirm or revoke the decision.

(2)

In reconsidering the decision, the Minister is to have



regard to the grounds set out in subsection 89(3) for

issuing a permit.

(3)

The Minister must not, under subparagraph (1)(a)(ii), vary



a decision in a way that makes it less favourable to the

applicant, unless the Minister is satisfied that changes

in the circumstances under which the permit was issued

have made such a variation necessary.

(4)

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 a decision to issue, or refusing to issue, a



permit is varied;issue a permit, or fresh

permit, as directed.

(5)

The notice under paragraph (4)(a) must include:



(a)

a statement to the effect that, if the applicant is

dissatisfied with the decision on that

reconsideration, application may, subject to the

Administrative Appeals Tribunal Act 1975, be made

to the Administrative Appeals Tribunal for review of

the decision; and

(b)


a statement to the effect that the applicant may

request a statement under section 28 of that Act in

relation to the decision on that reconsideration.

(6)


Failure to comply with subsection (5) does not affect the

validity of the decision on the reconsideration.

(7)

If the applicant is not notified of the result of the



reconsideration within the period of 28 days after the

Minister received the application, the Minister is taken,

at the end of that period, to have confirmed the decision

on the application.

- SECT 96

Review by the Administrative Appeals Tribunal

Applications may be made to the Administrative Appeals Tribunal

to review:

(a)

a decision to issue, or refusing to issue, a permit;



or

(b)


a decision cancelling a permit;

if the Minister has confirmed or varied the decision under subsection

95(1).

- SECT 97



Surrender of permits

(1)


A person to whom a permit was issued may, at any time,

surrender the permit by:

(a)

returning the permit to the Director; and



(b)

giving the Director written notice that the permit is

surrendered.

(2)


The surrender of the permit takes effect (unless the

permit is sooner cancelled):

(a)

if a day of effect is stated in the notice;at



the end of that day; or

(b)


otherwise;at the end of the day on which the

notice is given.

- SECT 98

Publication of permit details etc.

The Director must give to any person who so requests written

details of:

(a)

permits that have been issued; and



(b)

applications for permits that have been refused.

Division 3;Additional obligations of Commonwealth agencies

- SECT 99

Compliance with recovery plans and threat abatement

plans


Subject to section 101, a Commonwealth agency must not take any

action that contravenes a recovery plan or threat

abatement plan.

- SECT 100

Compliance with impact assessment conservation orders

Subject to section 101, a Commonwealth agency must not take any

action that contravenes an impact assessment conservation

order made under paragraph 79(1)(a) or (b).

- SECT 101

Effect of Minister's advice on proposed actions etc.

A Commonwealth agency does not contravene section 99 or 100 if it

acts in accordance with advice given to it by the Minister

under subsection 104(4) to the effect that the section

would not be contravened.

- SECT 102

Commonwealth agencies to have regard to certain State

laws

If a law of a State relating to protection of native species or



ecological communities, or the habitats of such species or

communities, does not apply to a Commonwealth agency

solely because it is a Commonwealth agency, the

Commonwealth agency must, in taking any action or making

any decision, have regard to the desirability of complying

with the requirements of that law.

Division 4;Consideration by the Minister of proposed actions etc.

- SECT 103

Commonwealth agencies to seek advice on proposed actions

etc.


(1)

If a Commonwealth agency (other than the Minister)

believes that action that it proposes to take may be

action to which section 99 or 100 applies, the

Commonwealth agency must notify the Minister in writing of

the proposed action and the grounds for its belief.

(2)

The Commonwealth agency must not take the action before it



receives the Minister's advice under subsection 104(4).

- SECT 104

Minister to consider proposed actions etc.

(1)


This section applies to a proposed action if:

(a)


the Minister is notified of it under section 103; or

(b)


without being so notified, the Minister forms the

opinion that section 99 or 100 applies to the

proposed action; or

(c)


it is referred to the Minister under section 86 for

the Minister's advice on whether it would contravene

an interim conservation order, permanent conservation

order or impact assessment conservation order.

(2)

If this section applies to a proposed action because of



the operation of paragraph (1)(b), the Minister must, in

writing, notify the Commonwealth agency that proposes to

take the action of the Minister's intention to refer the

matter to the Director under paragraph (4)(a).

(3)

A person who proposes to take the action may make written



submissions to the Minister about the proposed action.

(4)


The Minister must:

(a)


refer the proposed action, together with any

submissions received by the Minister about the

proposed action, to the Director; and

(b)


after considering the Director's advice on the

matter, give to:

(i)

the Commonwealth agency concerned, and any



person who made submissions; or

(ii)


the person who sought the Minister's advice

under section 86;

as the case requires, a written notice of the Minister's

advice on the proposed action.

- SECT 105

Contents of notices of advice

(1)

The notice of advice must state whether the Minister



thinks that:

(a)


section 99 or 100 applies to the proposed action; or

(b)


the proposed action would contravene an interim

conservation order or a permanent conservation order;

whichever is applicable.

(2)


If the notice of advice is given to a person who is not a

Commonwealth agency, it must include:

(a)

a statement to the effect that, if the person is



dissatisfied with the Minister's decision to give

that advice, application may, subject to the

Administrative Appeals Tribunal Act 1975, be made

to the Administrative Appeals Tribunal for review of

the decision; and

(b)


a statement to the effect that the person may request

a statement under section 28 of that Act in relation

to the decision.

- SECT 106

Review by the Administrative Appeals Tribunal

(1)


Applications may be made to the Administrative Appeals

Tribunal for review of the Minister's decision to give the

advice.

(2)


Despite section 27 of the Administrative Appeals Tribunal

Act 1975, applications are not to be made by or on behalf

of Commonwealth agencies.

Division 5;Repair of damage to species etc.

- SECT 107

Repair of damage

(1)

If the Director suspects that an act or omission



constitutes an offence against this Act, or a breach of a

recovery plan, threat abatement plan or conservation

agreement, the Director may cause to be taken such steps

as the Director thinks proper:

(a)

to repair or remove any condition arising from that



act or omission; or

(b)


to mitigate any damage arising from that act or

omission; or

(c)

to prevent any damage likely to arise from that act



or omission.

(2)


This section does not authorise anything to be done

outside a Commonwealth area unless it affects the

Commonwealth area.

(3)


Nothing in this section affects the exercise by the

Commonwealth or the Director of powers under another

provision of this Act or under any other law.

- SECT 108

Liability for expenses incurred by the Commonwealth

(1)


Subject to this section, if:

(a)


a person has been convicted of an offence against

this Act; and

(b)

the Commonwealth or the Director has incurred



expenses or other liabilities in relation to

rectifying the act or omission constituting the

offence;

the person convicted is liable to pay to the Commonwealth or to the

Director, as the case requires, an amount equal to the total amount of

those expenses or liabilities.

(2)

If 2 or more persons would be liable to pay an amount



under subsection (1) in respect of the same expenses or

liabilities, those persons are jointly and severally

liable to pay the total amount.

(3)


If the total amount of expenses or liabilities incurred by

the Commonwealth or the Director exceeds an amount that

was reasonable in the circumstances, a person is not

liable under this section to pay the amount of the excess.

(4)

A reference in this section to rectifying an act or



omission is a reference to the taking of steps (whether in

the exercise of powers conferred by section 107, by any

provision of this Act or by another law):

(a)


to repair or remove any condition arising from that

act or omission; or

(b)

to mitigate any damage arising from that act or



omission; or

(c)


to prevent any damage likely to arise from that act

or omission.

- SECT 109

Ancillary offences

If a person is convicted of an offence against this Act because

of the application of section 5, 6, 7 or 7A, or subsection

86(1), of the Crimes Act 1914 in relation to a

contravention or possible contravention of this Act,

section 108 of this Act has effect as if the reference in

paragraph 108(1)(b) to an offence were a reference to the

contravention or possible contravention to which the

offence relates.

- SECT 110

Court may order convicted persons to pay amounts

If a person is convicted before a court of an offence against

this Act, the court may (whether or not it has imposed a

penalty on the person) order the person to pay an amount

that the person is liable to pay under section 108.

- SECT 111

Enforcement of orders for payment

(1)

If the court that made the order has civil jurisdiction to



the extent of the amount, the order is enforceable in all

respects as a final judgment of the court in favour of the

Commonwealth or the Director, as the case requires.

(2)


If the court that made the order:

(a)


does not have civil jurisdiction; or

(b)


has civil jurisdiction, but not to the extent of the

amount;


a proper officer of the court must issue to the Minister or the

Director, as the case requires, a certificate in the prescribed form

containing the prescribed particulars.

(3)


The certificate may, in a prescribed manner and subject to

the prescribed conditions (if any), be registered in a

court having civil jurisdiction to the extent of the

amount ordered to be paid to the Commonwealth or the

Director, as the case requires.

(4)


Upon registration under subsection (3), the certificate is

enforceable in all respects as a final judgment of the

court in favour of the Commonwealth or the Director, as

the case requires.

(5)

Subject to the prescribed conditions (if any), the cost of



registration of the certificate and other proceedings

under this section are taken to be payable under the

certificate.

- SECT 112

Further orders relating to the same act or omission

Making an order under section 110 in respect of an expense or

liability incurred in relation to rectifying an act or

omission does not prevent the making of an order under

section 110 in respect of another expense or liability

incurred in relation to rectifying that act or omission.



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