Environment Protection and Biodiversity Conservation Act 1999

Division 5—Conservation advice, recovery plans, threat abatement plans and wildlife conservation plans

Subdivision AA—Approved conservation advice

266B Approved conservation advice for listed threatened species and listed threatened ecological communities

Minister to ensure there is approved conservation advice

(1) The Minister must ensure that there is approved conservation advice for each listed threatened species (except one that is extinct or that is a conservation dependent species), and each listed threatened ecological community, at all times while the species or community continues to be listed.

(2) For this purpose, approved conservation advice is a document, approved in writing by the Minister (and as changed from time to time in accordance with subsection (3)), that contains:

(a) a statement that sets out:

(i) the grounds on which the species or community is eligible to be included in the category in which it is listed; and

(ii) the main factors that are the cause of it being so eligible; and

(b) either:

(i) information about what could appropriately be done to stop the decline of, or support the recovery of, the species or community; or

(ii) a statement to the effect that there is nothing that could appropriately be done to stop the decline of, or support the recovery of, the species or community.

Changing approved conservation advice

(3) The Minister may, in writing, approve changes to approved conservation advice.

Consultation with Scientific Committee

(4) If the Minister proposes to approve a document as approved conservation advice, the Minister must consult the Scientific Committee about the document, unless its content is substantially the same as material that the Committee has previously provided to the Minister.

(5) If the Minister proposes to approve a change to approved conservation advice, the Minister must consult the Scientific Committee about the change, unless the change is substantially the same as a change that the Scientific Committee has previously advised the Minister should be made.

Publication requirements

(6) If the Minister approves a document as approved conservation advice, the Minister must:

(a) within 10 days of the approval of the document, publish the approved conservation advice on the internet; and

(b) comply with any other publication requirements of the regulations.

(7) If the Minister approves a change to approved conservation advice, the Minister must:

(a) within 10 days of the approval of the change, publish the advice, as changed, on the internet; and

(b) comply with any other publication requirements of the regulations.

Instruments of approval are not legislative instruments

(8) An instrument of approval under subsection (2) or (3) is not a legislative instrument.

Subdivision A—Recovery plans and threat abatement plans

267 Simplified outline of this Subdivision

The following is a simplified outline of this Subdivision:

Recovery plans for listed threatened species and ecological communities and threat abatement plans for key threatening processes bind the Commonwealth and Commonwealth agencies.

The Minister need ensure that a recovery plan is in force for a listed threatened species or ecological community only if the Minister decides to have a recovery plan. The Minister must decide whether to have a recovery plan for the species or community within 90 days after it becomes listed. The Minister may, at any other time, decide whether to have such a plan.

The Minister need ensure a threat abatement plan is in force for a key threatening process only if the Minister decides that a plan is a feasible, effective and efficient way of abating the process. The Minister must consult before making such a decision.

A recovery plan or threat abatement plan can be made by the Minister alone or jointly with relevant States and Territories, or the Minister can adopt a State or Territory plan. There must be public consultation and advice from the Scientific Committee about the plan, regardless of how it is made or adopted.

268 Compliance with recovery plans and threat abatement plans

A Commonwealth agency must not take any action that contravenes a recovery plan or a threat abatement plan.

269 Implementing recovery and threat abatement plans

(1) Subject to subsection (2), the Commonwealth must implement a recovery plan or threat abatement plan to the extent to which it applies in Commonwealth areas.

(2) If a recovery plan or a threat abatement plan applies outside Commonwealth areas in a particular State or self‑governing Territory, the Commonwealth must seek the co‑operation of the State or Territory with a view to implementing the plan jointly with the State or Territory to the extent to which the plan applies in the State or Territory.

269AA Decision whether to have a recovery plan

Minister has an initial obligation and then a discretion

(1) The Minister must decide whether to have a recovery plan for a listed threatened species (except one that is extinct or that is a conservation dependent species) or a listed threatened ecological community within 90 days after the species or community becomes listed. The Minister may, at any other time, decide whether to have a recovery plan for the species or community.

(2) In this section:

(a) the decision that the Minister is required by subsection (1) to make in relation to the species or community within the 90 day period referred to in that subsection is the initial recovery plan decision; and

(b) any subsequent decision that the Minister makes under subsection (1) in relation to the species or community is a subsequent recovery plan decision.

Making the initial recovery plan decision

(3) In making the initial recovery plan decision, the Minister must have regard to the recommendation (the initial recommendation) made by the Scientific Committee as mentioned in paragraph 189(1B)(c) in relation to the species or community.

Making a subsequent recovery plan decision (unless subsection (5) applies)

(4) In making a subsequent recovery plan decision in relation to the species or community, other than a decision to which subsection (5) applies:

(a) the Minister must have regard to the initial recommendation in relation to the species or community; and

(b) the Minister must have regard to any advice subsequently provided to the Minister by the Scientific Committee about whether there should be a recovery plan for the species or community.

Changing from a decision to have a recovery plan to a decision not to have a recovery plan—additional requirements

(5) If, at a time when a decision to have a recovery plan for the species or community is in force (whether or not the plan has yet been made), the Minister is proposing to make a subsequent recovery plan decision that there should not be a recovery plan for the species or community:

(a) the Minister must ask the Scientific Committee for advice relating to the proposed decision; and

(b) the Minister must publish a notice inviting comments on the proposed decision in accordance with subsection (7); and

(i) any advice provided by the Scientific Committee in relation to the proposed decision; and

(ii) subject to subsection (6), the comments the Minister receives in response to the notice referred to in paragraph (b).

(6) The Minister is not required to take a comment referred to in subparagraph (5)(c)(ii) into account if:

(a) the Minister does not receive the comment until after the cut‑off date specified in the notice under paragraph (5)(b); or

(b) the Minister considers that regulations referred to in paragraph (8)(b) have not been complied with in relation to the comment.

(7) The notice referred to in paragraph (5)(b):

(a) must be published in accordance with the regulations referred to in paragraph (8)(a); and

(b) must set out the decision the Minister proposed to make; and

(d) must specify the date (the cut‑off date) by which comments must be received, which must be at least 30 business days after the notice has been published as required by paragraph (a); and

(e) must specify, or refer to, the manner and form requirements that, under regulations referred to in paragraph (8)(b), apply to making comments; and

(f) may also include any other information that the Minister considers appropriate.

(8) The regulations must provide for the following:

(a) how a notice referred to in paragraph (5)(b) is to be published;

(b) the manner and form for making comments.

General publication requirements

(9) The Minister must publish the following:

(a) the Minister’s initial recovery plan decision, and the reasons for it;

(b) each subsequent recovery plan decision (if any), and the reasons for it.

The regulations may specify how the publication is to be made. Subject to any such regulations, the publication must be made in a way that the Minister considers appropriate.

Note: This subsection must be complied with, even if the Minister has already published notice of the proposed decision in accordance with subsections (5) and (7).

Decisions not legislative instruments

(10) An instrument making a decision under subsection (1) is not a legislative instrument.

269A Making or adopting a recovery plan

Application

(1) This section applies only if the Minister’s most recent decision under section 269AA in relation to a listed threatened species (except one that is extinct or that is a conservation dependent species) or a listed threatened ecological community is to have a recovery plan for the species or community.

Note: Subsection 273(1) sets a deadline of 3 years from the decision for ensuring that a recovery plan is in force for the species or community. Subsection 273(2) allows that period to be extended.

Making a plan

(2) The Minister may make a written recovery plan for the purposes of the protection, conservation and management of:

(a) a listed threatened species (except one that is extinct or is a conservation dependent species); or

(b) a listed threatened ecological community.

Making a plan jointly with a State or Territory

(3) The Minister may make a written recovery plan for the purposes of the protection, conservation and management of a listed threatened species (except one that is extinct or is a conservation dependent species) or a listed threatened ecological community jointly with one or more of the States and self‑governing Territories in which the species or community occurs, or with agencies of one or more of those States and Territories.

Content of a plan

(4) The Minister must not make a recovery plan under subsection (2) or (3) unless the plan meets the requirements of section 270.

Prerequisites to making a plan

(5) Before making a recovery plan under subsection (2) or (3) for a listed threatened species or listed threatened ecological community, the Minister must:

(a) consult the appropriate Minister of each State and self‑governing Territory in which the species or community occurs, and in which actions that the plan would provide for would occur, with a view to:

(i) taking the views of each of those States and Territories into account in making the plan under subsection (2); or

(ii) making the plan jointly under subsection (3);

unless the species or community occurs only in a Commonwealth area; and

(b) consider the advice of the Scientific Committee given under section 274; and

Limits on making a plan

(6) The Minister must not make a recovery plan under subsection (2) for a species or ecological community that occurs wholly or partly outside a Commonwealth area unless the Minister is satisfied that it is not reasonably practicable, within the period of 3 years referred to in subsection 273(1), to make the plan under subsection (3) of this section with each State or Territory:

(a) in which the species or community occurs; and

(b) in which actions that the plan would provide for would occur, if the plan were made under subsection (2) of this section.

Adopting a State or Territory plan

(7) The Minister may, by instrument in writing, adopt as a recovery plan a plan made by a State, a self‑governing Territory or an agency of a State or self‑governing Territory (whether or not the plan is in force in the State or Territory). The Minister may adopt the plan with such modifications as are specified in the instrument. This subsection has effect subject to section 277.

Note: Section 277 requires that:

(a) an adopted plan have the content required for a recovery plan by section 270; and

(b) there has been adequate consultation in making the plan adopted; and

Effect of adopting a plan

(8) A plan adopted under subsection (7) has effect as if it had been made under subsection (2) (whether it was adopted with modifications or not).

270 Content of recovery plans

(1) A recovery plan must provide for the research and management actions necessary to stop the decline of, and support the recovery of, the listed threatened species or listed threatened ecological community concerned so that its chances of long‑term survival in nature are maximised.

(2) In particular, a recovery plan must (subject to subsection (2A)):

(a) state the objectives to be achieved (for example, removing a species or community from a list, or indefinite protection of existing populations of a species or community); and

(b) state criteria against which achievement of the objectives is to be measured (for example, a specified number and distribution of viable populations of a species or community, or the abatement of threats to a species or community); and

(ca) identify threats to the species or community; and

(d) identify the habitats that are critical to the survival of the species or community concerned and the actions needed to protect those habitats; and

(e) identify any populations of the species or community concerned that are under particular pressure of survival and the actions needed to protect those populations; and

(f) state the estimated duration and cost of the recovery process; and

(g) identify:

(i) interests that will be affected by the plan’s implementation; and

(ii) organisations or persons who will be involved in evaluating the performance of the recovery plan; and

(h) specify any major benefits to native species or ecological communities (other than those to which the plan relates) that will be affected by the plan’s implementation; and

(j) meet prescribed criteria (if any) and contain provisions of a prescribed kind (if any).

(2A) A recovery plan need only address the matters mentioned in paragraphs (2)(d), (e), (f), (g) and (h) to the extent to which it is practicable to do so.

(3) In making a recovery plan, regard must be had to:

(a) the objects of this Act; and

(b) the most efficient and effective use of the resources that are allocated for the conservation of species and ecological communities; and

(c) minimising any significant adverse social and economic impacts, consistently with the principles of ecologically sustainable development; and

(d) meeting Australia’s obligations under international agreements between Australia and one or more countries relevant to the species or ecological community to which the plan relates; and

(e) the role and interests of indigenous people in the conservation of Australia’s biodiversity.

270A Decision whether to have a threat abatement plan

Decision

(1) The Minister may at any time decide whether to have a threat abatement plan for a threatening process in the list of key threatening processes established under section 183. The Minister must do so:

(a) within 90 days of the threatening process being included in the list; and

(b) within 5 years of the last decision whether to have a threat abatement plan for the process, if that decision was not to have a threat abatement plan for the process.

Basis for decision

(2) The Minister must decide to have a threat abatement plan for the process if he or she believes that having and implementing a threat abatement plan is a feasible, effective and efficient way to abate the process. The Minister must decide not to have a threat abatement plan if he or she does not believe that.

Consultation before making a decision

(3) Before making a decision under this section, the Minister must:

(a) request the Scientific Committee to give advice within a specified period; and

(b) take reasonable steps to request any Commonwealth agency, any State, any self‑governing Territory, and any agency of a State or self‑governing Territory, that would be affected by or interested in abatement of the process to give advice within a specified period;

on the feasibility, effectiveness or efficiency of having and implementing a threat abatement plan to abate the process.

Consulting others

(4) Subsection (3) does not prevent the Minister from requesting any other person or body to give advice within a specified period on the feasibility, effectiveness or efficiency of having and implementing a threat abatement plan to abate the process.

Request may be made before listing

(5) A request for advice on the feasibility, effectiveness or efficiency of having and implementing a threat abatement plan to abate the process may be made before or after the process is included in the list of key threatening processes established under section 183.

Time for giving advice

(6) The Minister must not make a decision whether to have a threat abatement plan for the process before the end of the period within which he or she has requested a person or body to give advice on the feasibility, effectiveness or efficiency of having and implementing a threat abatement plan to abate the process.

Considering views expressed in consultation

(7) When the Minister is making a decision under this section, he or she must consider the advice that a person or body gave on request within the period specified in the request.

Publishing decision and reasons

(8) The Minister must publish in accordance with the regulations (if any):

(a) a decision whether or not to have a threat abatement plan for a key threatening process; and

(b) the Minister’s reasons for the decision.

Special rules for processes included in original list

(9) Subsections (3), (4), (5), (6) and (7) do not apply in relation to a decision about a process included in the list under section 183 as first established.

270B Making or adopting a threat abatement plan

Application

(1) This section applies only if the Minister’s most recent decision under section 270A in relation to a key threatening process is to have a threat abatement plan for the process.

Note: Section 273 sets a deadline of 3 years from the decision for ensuring that a threat abatement plan is in force for the process.

Making a plan

(2) The Minister may make a written threat abatement plan for the purposes of reducing the effect of the process.

Making a plan jointly with a State or Territory

(3) The Minister may make a written threat abatement plan for the purposes of reducing the effect of the process, jointly with the States and self‑governing Territories in which the process occurs or with agencies of those States and Territories.

Content of a plan

(4) The Minister must not make a threat abatement plan under subsection (2) or (3) unless the plan meets the requirements of section 271.

Prerequisites to making a plan

(5) Before making a threat abatement plan for the process under subsection (2) or (3), the Minister must:

(a) consult the appropriate Minister of each State and self‑governing Territory in which the process occurs, with a view to:

(i) taking the views of each of those States and Territories into account in making the plan under subsection (2); or

(ii) making the plan jointly under subsection (3);

unless the process occurs only in a Commonwealth area; and

(b) consider the advice of the Scientific Committee given under section 274; and

Limits on making a plan

(6) The Minister must not make a threat abatement plan under subsection (2) for a process that occurs wholly or partly outside a Commonwealth area unless the Minister is satisfied that it is not reasonably practicable to make the plan:

(a) jointly with each of the States and self‑governing Territories in which the process occurs; and

(b) within 3 years of the decision to have the plan.

Adopting a State or Territory plan

(7) The Minister may, by instrument in writing, adopt as a threat abatement plan for the process a plan made by a State, a self‑governing Territory or an agency of a State or self‑governing Territory (whether or not the plan is in force in the State or Territory). The Minister may adopt the plan with such modifications as are specified in the instrument. This subsection has effect subject to section 277.

Note: Section 277 requires that:

(a) an adopted plan have the content required for a threat abatement plan by section 271; and

(b) there has been adequate consultation in making the plan adopted; and

Effect of adopting a plan

(8) A plan adopted under subsection (7) has effect as if it had been made under subsection (2), whether it was adopted with modifications or not.

271 Content of threat abatement plans

(1) A threat abatement plan must provide for the research, management and other actions necessary to reduce the key threatening process concerned to an acceptable level in order to maximise the chances of the long‑term survival in nature of native species and ecological communities affected by the process.

(2) In particular, a threat abatement plan must:

(a) state the objectives to be achieved; and

(b) state criteria against which achievement of the objectives is to be measured; and

(g) meet prescribed criteria (if any) and contain provisions of a prescribed kind (if any).

(3) In making a threat abatement plan, regard must be had to:

(a) the objects of this Act; and

(b) the most efficient and effective use of the resources that are allocated for the conservation of species and ecological communities; and

(c) minimising any significant adverse social and economic impacts consistently with the principles of ecologically sustainable development; and

(d) meeting Australia’s obligations under international agreements between Australia and one or more countries relevant to the species or ecological community threatened by the key threatening process that is the subject of the plan; and

(e) the role and interests of indigenous people in the conservation of Australia’s biodiversity.

(4) A threat abatement plan may:

(a) state the estimated duration and cost of the threat abatement process; and

(b) identify organisations or persons who will be involved in evaluating the performance of the threat abatement plan; and

(c) specify any major ecological matters (other than the species or communities threatened by the key threatening process that is the subject of the plan) that will be affected by the plan’s implementation.

(5) Subsection (4) does not limit the matters that a threat abatement plan may include.

272 Eradication of non‑native species

If:

(a) the actions specified under paragraph 270(2)(c) in a recovery plan, or under paragraph 271(2)(c) in a threat abatement plan, include the eradication of a non‑native species; and

(b) the species is threatened in a country in which its native habitat occurs;

the recovery plan, or threat abatement plan, must require the Commonwealth to offer to provide stock of the species to that country before the eradication proceeds.

273 Ensuring plans are in force

When a plan comes into force

(1A) A recovery plan or a threat abatement plan comes into force on the day on which it is made or adopted, or on a later day specified by the Minister in writing.

Deadline for recovery plan

(1) Subject to subsection (2), a recovery plan for a listed threatened species or a listed threatened ecological community must be made and in force within 3 years of the decision under section 269AA to have the plan.

(2) The Minister may, in writing, extend the period within which a recovery plan must be made. Only one extension can be granted for the making of the plan, and the period of the extension must not be more than 3 years.

Ensuring recovery plan is in force

(3) Once the first recovery plan for a listed threatened species or a listed threatened ecological community is in force, the Minister must exercise his or her powers under this Subdivision to ensure that a recovery plan is in force for the species or community until the Minister decides under section 269AA not to have a recovery plan for the species or community.

Note: The Minister may revoke a recovery plan for a listed threatened species or a listed threatened ecological community if the Minister decides under section 269AA not to have a recovery plan for the species or community. See section 283A.

Deadline for threat abatement plan

(4) A threat abatement plan for a key threatening process must be made and in force within 3 years of the decision under section 270A to have the plan.

Ensuring threat abatement plan is in force

(5) Once the first threat abatement plan for a key threatening process is in force, the Minister must exercise his or her powers under this Subdivision to ensure that a threat abatement plan is in force for the process until the Minister decides under section 270A not to have a threat abatement plan for the process.

Note: The Minister may revoke a threat abatement plan for a key threatening process if the Minister decides under section 270A not to have a threat abatement plan for the process. See section 283A.

274 Scientific Committee to advise on plans

(1) The Minister must obtain and consider the advice of the Scientific Committee on:

(a) the content of recovery and threat abatement plans; and

(b) the times within which, and the order in which, such plans should be made.

(2) In giving advice about a recovery plan, the Scientific Committee must take into account the following matters:

(a) the degree of threat to the survival in nature of the species or ecological community in question;

(b) the potential for the species or community to recover;

(d) the importance of the species or community to the ecosystem;

(e) the value to humanity of the species or community;

(f) the efficient and effective use of the resources allocated to the conservation of species and ecological communities.

(3) In giving advice about a threat abatement plan, the Scientific Committee must take into account the following matters:

(a) the degree of threat that the key threatening process in question poses to the survival in nature of species and ecological communities;

(b) the potential of species and ecological communities so threatened to recover;

(c) the efficient and effective use of the resources allocated to the conservation of species and ecological communities.

275 Consultation on plans

(1) Before making a recovery plan or threat abatement plan under this Subdivision, the Minister must:

(a) take reasonable steps to ensure that copies of the proposed plan are available for purchase, for a reasonable price, at prescribed places in each State and self‑governing territory; and

(b) give a copy of it, together with a notice of a kind referred to in subsection (2), to the Scientific Committee; and

(i) in the Gazette; and

(ii) in a daily newspaper that circulates generally in each State, and self‑governing Territory, in which the relevant listed threatened native species, listed threatened ecological community or key threatening process occurs; and

(iii) in any other way required by the regulations (if any).

(2) The notice must:

(a) specify the places where copies of the proposed plan may be purchased; and

(b) invite persons to make written comments about the proposed plan; and

(i) an address for lodgment of comments; and

(ii) a day by which comments must be made.

(3) The day specified must not be a day occurring within 3 months after the notice is published in the Gazette.

276 Consideration of comments

The Minister:

(a) must, in accordance with the regulations (if any), consider all comments on a proposed recovery plan or threat abatement plan made in response to an invitation under section 275; and

(b) may revise the plan to take account of those comments.

277 Adoption of State plans

(1) The Minister must not adopt a plan as a recovery plan or a threat abatement plan under this Subdivision unless:

(a) the Minister is satisfied that an appropriate level of consultation has been undertaken in making the plan; and

(b) the plan meets the requirements of section 270 or 271, as the case requires.

(2) Before adopting a plan, the Minister must obtain and consider advice from the Scientific Committee on the content of the plan.

278 Publication of plans

(1) As soon as practicable after the Minister makes or adopts a recovery plan or a threat abatement plan under this Subdivision, the Minister must:

(a) make copies of the plan available for purchase, for a reasonable price, at a prescribed place in each State and self‑governing Territory; and

(b) give notice of the making or adopting of each such plan; and

(i) in the Gazette; and

(ii) in a daily newspaper that circulates generally in each State, and self‑governing Territory; and

(iii) in any other way required by the regulations (if any).

(2) The notice must:

(a) state that the Minister has made or adopted the plan; and

(b) specify the day on which the plan comes into force; and

279 Variation of plans by the Minister

(1) The Minister may, at any time, review a recovery plan or threat abatement plan that has been made or adopted under this Subdivision and consider whether a variation of it is necessary.

(2) Each plan must be reviewed by the Minister at intervals of not longer than 5 years.

(3) If the Minister considers that a variation of a plan is necessary, the Minister may, subject to subsections (4), (5), (6) and (7), vary the plan.

(4) The Minister must not vary a plan, unless the plan, as so varied, continues to meet the requirements of section 270 or 271, as the case requires.

(5) Before varying a plan, the Minister must obtain and consider advice from the Scientific Committee on the content of the variation.

(6) If the Minister has made a plan jointly with, or adopted a plan that has been made by, a State or self‑governing Territory, or an agency of a State or self‑governing Territory, the Minister must seek the co‑operation of that State or Territory, or that agency, with a view to varying the plan.

(7) Sections 275, 276 and 278 apply to the variation of a plan in the same way that those sections apply to the making of a recovery plan or threat abatement plan.

280 Variation by a State or Territory of joint plans and plans adopted by the Minister

(1) If a State or self‑governing Territory varies a plan that:

(a) the Minister has made jointly with the State or self‑governing Territory, or an agency of the State or Territory; or

(b) has been adopted by the Minister as a recovery plan or a threat abatement plan;

the variation is of no effect for the purposes of this Act unless it is approved by the Minister.

(2) Before approving a variation, the Minister must obtain and consider advice from the Scientific Committee on the content of the variation.

(3) The Minister must not approve a variation unless satisfied that:

(a) an appropriate level of consultation was undertaken in varying the plan; and

(b) the plan, as so varied, continues to meet the requirements of section 270 or 271, as the case requires.

(4) If the Minister approves a variation of a plan, the plan has effect as so varied on and after the date of the approval, or such later date as the Minister determines in writing.

(5) Section 278 applies to the variation of a plan in the same way that it applies to the making of a recovery plan or threat abatement plan.

281 Commonwealth assistance

(1) The Commonwealth may give to a State or self‑governing Territory, or to an agency of a State or a self‑governing Territory, financial assistance, and any other assistance, to make or implement a recovery plan or a threat abatement plan.

(2) The Commonwealth may give to a person (other than a State or a self‑governing Territory, or an agency of a State or Territory) financial assistance, and any other assistance, to implement a recovery plan or a threat abatement plan.

(3) The giving of assistance may be made subject to such conditions as the Minister thinks fit. The Minister is to have regard to the advice of the Scientific Committee under section 282 before determining those conditions.

282 Scientific Committee to advise on assistance

(1) The Scientific Committee is to advise the Minister on the conditions (if any) to which the giving of assistance under section 281 should be subject.

(2) In giving advice about assistance for making or implementing a recovery plan, the Scientific Committee must take into account the following matters:

(a) the degree of threat to the survival in nature of the species or ecological community in question;

(b) the potential for the species or community to recover;

(d) the importance of the species or community to the ecosystem;

(e) the value to humanity of the species or community;

(f) the efficient and effective use of the resources allocated to the conservation of species and ecological communities.

(3) In giving advice about assistance for making or implementing threat abatement plan, the Scientific Committee must take into account the following matters:

(a) the degree of threat that the key threatening process in question poses to the survival in nature of species and ecological communities;

(b) the potential of species and ecological communities so threatened to recover;

(c) the efficient and effective use of the resources allocated to the conservation of species and ecological communities.

283 Plans may cover more than one species etc.

(1) A recovery plan made or adopted under this Subdivision may deal with one or more listed threatened species and/or one or more listed ecological communities.

(2) A threat abatement plan made or adopted under this Subdivision may deal with one or more key threatening processes.

283A Revoking a plan

(1) The Minister may, by legislative instrument:

(a) revoke a recovery plan for a listed threatened species or a listed threatened ecological community if the Minister decides under section 269AA not to have a recovery plan for the species or community; or

(b) revoke a threat abatement plan for a key threatening process if the Minister decides under section 270A not to have a threat abatement plan for the process.

(2) The Minister must publish in accordance with the regulations (if any):

(a) the instrument revoking the plan; and

(b) the Minister’s reasons for revoking the plan.

284 Reports on preparation and implementation of plans

The Secretary must include in each annual report a report on the making and adoption under this Subdivision of each recovery plan and threat abatement plan during the year to which the report relates.

Subdivision B—Wildlife conservation plans

285 Wildlife conservation plans

(1) Subject to this section, the Minister may make, by instrument in writing, and implement a wildlife conservation plan for the purposes of the protection, conservation and management of the following:

(a) a listed migratory species that occurs in Australia or an external Territory;

(b) a listed marine species that occurs in Australia or an external Territory;

(d) a conservation dependent species.

(2) The Minister must not make a wildlife conservation plan for a species that is a listed threatened species (except a conservation dependent species).

(3) Subject to section 292, the Minister may, by instrument in writing, adopt a plan that has been made by a State or a self‑governing Territory, or by an agency of a State or self‑governing Territory, as a wildlife conservation plan. The Minister may adopt a plan with such modifications as are specified in the instrument.

(4) A plan, as modified and adopted under subsection (2), has effect as if the plan had been made by the Minister under subsection (1).

(5) The Minister must seek the co‑operation of the States and self‑governing Territories in which:

(a) a listed migratory species occurs; or

(b) a listed marine species occurs; or

(d) a conservation dependent species occurs;

with a view to making and implementing jointly with those States and Territories, or agencies of those States or Territories, a joint wildlife conservation plan unless the species occurs only in a Commonwealth area.

(6) Before making a wildlife conservation plan under subsection (1) or (5), the Minister must:

(a) consider the advice of the Scientific Committee given under section 289; and

(b) consult about the plan in accordance with sections 290 and 291.

(7) A wildlife conservation plan comes into force on the day on which it is made or adopted, or on such later day as the Minister specifies in writing.

286 Acting in accordance with wildlife conservation plans

A Commonwealth agency must take all reasonable steps to act in accordance with a wildlife conservation plan.

287 Content of wildlife conservation plans

(1) A wildlife conservation plan must provide for the research and management actions necessary to support survival of the migratory species, marine species, species of cetacean or conservation dependent species concerned.

(2) In particular, a wildlife conservation plan must:

(a) state the objectives to be achieved; and

(b) state criteria against which achievement of the objectives is to be measured; and

(d) identify the habitats of the species concerned and the actions needed to protect those habitats; and

(e) identify:

(i) interests that will be affected by the plan’s implementation; and

(ii) organisations or persons who will be involved in evaluating the performance of the plan; and

(f) specify any major benefits to migratory species, marine species, species of cetacean or conservation dependent species (other than those to which the plan relates) that will be affected by the plan’s implementation; and

(g) meet prescribed criteria (if any) and contain provisions of a prescribed kind (if any).

(3) In making a wildlife conservation plan, regard must be had to:

(a) the objects of this Act; and

(b) the most efficient and effective use of the resources that are allocated for the conservation of migratory species, marine species, species of cetacean and conservation dependent species; and

(c) minimising any significant adverse social and economic impacts, consistently with the principles of ecologically sustainable development; and

(d) meeting Australia’s obligations under international agreements between Australia and one or more countries relevant to the migratory species, marine species, species of cetacean or conservation dependent species to which the plan relates; and

(e) the role and interests of indigenous people in the conservation of Australia’s biodiversity.

288 Eradication of non‑native species

If:

(a) the actions specified under section 287 in a wildlife conservation plan include the eradication of a non‑native species; and

(b) the species is threatened in a country in which its native habitat occurs;

the wildlife conservation plan must require the Commonwealth to offer to provide stock of the species to that country before the eradication proceeds.

289 Scientific Committee to advise on scheduling of plans

(1) The Minister may seek advice from the Scientific Committee on the need for wildlife conservation plans and the order in which they should be made.

(1A) The Scientific Committee may advise the Minister on its own initiative to make a wildlife conservation plan for a specified species described in subsection 285(1).

(2) In giving advice under subsection (1) or (1A), the Scientific Committee must take into account the resources available for making plans.

(3) Before making a plan, the Minister must obtain and consider advice from the Scientific Committee on the content of the plan.

290 Consultation on plans

(1) Before making a wildlife conservation plan under subsection 285(1) or (5), the Minister must:

(a) take reasonable steps to ensure that copies of the proposed plan are available for purchase, for a reasonable price, at prescribed places in each State and self‑governing Territory; and

(b) give a copy of it, together with a notice of a kind referred to in subsection (2), to the Scientific Committee; and

(i) in the Gazette; and

(ii) in a daily newspaper that circulates generally in each State, and self‑governing Territory; and

(iii) in any other way required by the regulations (if any).

(2) The notice must:

(a) specify the places where copies of the proposed plan may be purchased; and

(b) invite persons to make written comments about the proposed plan; and

(i) an address for lodgment of comments; and

(ii) a day by which comments must be made.

(3) The day specified must not be a day occurring within 3 months after the notice is published in the Gazette.

291 Consideration of comments

The Minister:

(a) must, in accordance with the regulations (if any), consider all comments on a proposed wildlife conservation plan made in response to an invitation under section 290; and

(b) may revise the plan to take account of those comments.

292 Adoption of State plans

(1) The Minister must not adopt a plan as a wildlife conservation plan under subsection 285(3) unless:

(a) the Minister is satisfied that an appropriate level of consultation has been undertaken in making the plan; and

(b) the plan meets the requirements of section 287.

(2) Before adopting a plan, the Minister must obtain and consider advice from the Scientific Committee on the content of the plan.

293 Publication, review and variation of plans

(1) As soon as practicable after the Minister makes or adopts a wildlife conservation plan under section 285, the Minister must:

(a) make copies of the plan available for purchase, for a reasonable price, at a prescribed place in each State and self‑governing Territory; and

(b) give notice of the making or adoption of each such plan; and

(i) in the Gazette; and

(ii) in a daily newspaper that circulates generally in each State, and self‑governing Territory; and

(iii) in any other way required by the regulations (if any).

(2) The notice must:

(a) state that the Minister has made or adopted the plan; and

(b) specify the day on which the plan comes into force; and

294 Variation of plans by the Minister

(1) The Minister may, at any time, review a wildlife conservation plan that has been made or adopted under section 285 and consider whether a variation of it is necessary.

(2) Each plan must be reviewed by the Minister at intervals of not longer than 5 years.

(3) If the Minister considers that a variation of a plan is necessary, the Minister may, subject to subsections (4), (5), (6) and (7) vary the plan.

(4) The Minister must not vary a plan, unless the plan, as so varied, continues to meet the requirements of section 287.

(5) Before varying a plan, the Minister must obtain and consider advice from the Scientific Committee on the content of the variation.

(7) Sections 290, 291 and 293 apply to the variation of a plan in the same way that those sections apply to the making of a wildlife conservation plan.

295 Variation by a State or Territory of joint plans and plans adopted by the Minister

(1) If a State or self‑governing Territory varies a plan that:

(a) the Minister has made jointly with the State or self‑governing Territory, or an agency of the State or Territory; or

(b) has been adopted by the Minister as a wildlife conservation plan;

the variation is of no effect for the purposes of this Act unless it is approved by the Minister.

(2) Before approving a variation, the Minister must obtain and consider advice from the Scientific Committee on the content of the variation.

(3) The Minister must not approve a variation under subsection (1) unless satisfied:

(a) an appropriate level of consultation was undertaken in varying the plan; and

(b) the plan, as so varied, continues to meet the requirements of section 287.

(4) If the Minister approves a variation of a plan, the plan has effect as so varied on and after the date of the approval, or such later date as the Minister determines in writing.

(5) Section 293 applies to the variation of a plan in the same way that it applies to the making of a wildlife conservation plan.

296 Commonwealth assistance

(3) The giving of assistance may be made subject to such conditions as the Minister thinks fit.

297 Plans may cover more than one species etc.

A wildlife conservation plan made or adopted under this Subdivision may deal with all or any of the following:

(a) one or more listed migratory species;

(b) one or more listed marine species;

(d) one or more conservation dependent species.

298 Reports on preparation and implementation of plans

The Secretary must include in each annual report a report on the making and adoption under section 285 of each wildlife conservation plan during the year to which the report relates.

Subdivision C—Miscellaneous

299 Wildlife conservation plans cease to have effect

If:

(a) a wildlife conservation plan is in force for all or any of the following:

(i) a listed migratory species;

(ii) a listed marine species;

(iii) a species of cetacean; and

(b) the species becomes a listed threatened species (except a conservation dependent species);

the wildlife conservation plan ceases to have effect in relation to the species on and from the day on which the species becomes a listed threatened species as mentioned in paragraph (b).

300 Document may contain more than one plan

(1) All or any of the plans made under this Division may be included in the same document.

(2) All or any of the plans adopted under this Division may be included in the same instrument of adoption.

300A State and Territory laws not affected

Sections 269A, 270A, 270B, 273 and 285 do not exclude or limit the concurrent operation of a law of a State or self‑governing Territory.

300B Assistance from the Scientific Committee

(1) The Minister may, at any time, ask the Scientific Committee to provide the Minister with a statement, information or advice for the purpose of assisting the Minister in the performance or exercise of the Minister’s functions or powers under section 266B, 269AA or 270A.

(2) The Scientific Committee may, at any time, provide the Minister with a statement, information or advice for the purpose of assisting the Minister in the performance or exercise of the Minister’s functions or powers under section 266B, 269AA or 270A (whether or not the Committee is acting in response to a request under subsection (1) of this section).

Division 6—Access to biological resources

301 Control of access to biological resources

(1) The regulations may provide for the control of access to biological resources in Commonwealth areas.

(2) Without limiting subsection (1), the regulations may contain provisions about all or any of the following:

(a) the equitable sharing of the benefits arising from the use of biological resources in Commonwealth areas;

(b) the facilitation of access to such resources;

(d) the granting of access to such resources and the terms and conditions of such access.

Division 6A—Control of non‑native species

301A Regulations for control of non‑native species

The regulations may:

(a) provide for the establishment and maintenance of a list of species, other than native species, whose members:

(i) do or may threaten biodiversity in the Australian jurisdiction; or

(ii) would be likely to threaten biodiversity in the Australian jurisdiction if they were brought into the Australian jurisdiction; and

(b) regulate or prohibit the bringing into the Australian jurisdiction of members of a species included in the list mentioned in paragraph (a); and

(i) between Australia and another country; or

(ii) between 2 States; or

(iii) between 2 Territories; or

(iv) between a State and a Territory; or

(v) by a constitutional corporation; and

(d) regulate and prohibit actions:

(i) involving or affecting members of a species included in the list mentioned in paragraph (a); and

(ii) whose regulation or prohibition is appropriate and adapted to give effect to Australia’s obligations under an agreement with one or more other countries; and

(e) provide for the making and implementation of plans to reduce, eliminate or prevent the impacts of members of species included in the list mentioned in paragraph (a) on biodiversity in the Australian jurisdiction.

Division 7—Aid for conservation of species in foreign countries

302 Aid for conservation of species in foreign countries

On behalf of the Commonwealth, the Minister may give financial assistance to the governments of foreign countries and organisations in foreign countries to help the recovery and conservation, in those countries, of species covered by international agreements to which Australia is a party.

Division 8—Miscellaneous

303 Regulations

(1) The regulations may make provision for the conservation of biodiversity in Commonwealth areas.

(2) In particular, the regulations may prohibit or regulate actions affecting a member of a native species in a Commonwealth area. This does not limit subsection (1).

303A Exemptions from this Part

(1) A person proposing to take an action that would contravene a provision of this Part apart from this section may apply in writing to the Minister for an exemption from the provision.

(2) The Minister must decide within 20 business days of receiving the application whether or not to grant the exemption.

(3) The Minister may, by written notice, exempt a specified person from the application of a specified provision of this Part in relation to a specified action.

(4) The Minister may do so only if he or she is satisfied that it is in the national interest that the provision not apply in relation to the person or the action.

(5) In determining the national interest, the Minister may consider Australia’s defence or security or a national emergency. This does not limit the matters the Minister may consider.

(6) A provision specified in the notice does not apply in relation to the specified person or action on or after the day specified in the notice. The Minister must not specify a day earlier than the day the notice is made.

(7) Within 10 business days after making the notice, the Minister must:

(a) publish a copy of the notice and his or her reasons for granting the exemption in accordance with the regulations; and

(b) give a copy of the notice to the person specified in the notice.

303AA Conditions relating to accreditation of plans, regimes and policies

(1) This section applies to an accreditation of a plan, regime or policy under section 208A, 222A, 245 or 265.

(2) The Minister may accredit a plan, regime or policy under that section even though he or she considers that the plan, regime or policy should be accredited only:

(a) during a particular period; or

(b) while certain circumstances exist; or

In such a case, the instrument of accreditation is to specify the period, circumstances or condition.

(3) If an accreditation specifies a particular period as mentioned in subsection (2), the accreditation ceases to be in force at the end of that period.

(4) If an accreditation specifies circumstances as mentioned in subsection (2), the Minister must, in writing, revoke the accreditation if he or she is satisfied that those circumstances have ceased to exist.

(5) The Minister may, in writing, vary an accreditation by:

(a) specifying one or more conditions (or further conditions) to which the accreditation is subject; or

(b) revoking or varying a condition:

(i) specified in the instrument of accreditation; or

(ii) specified under paragraph (a).

(6) A condition may relate to reporting or monitoring.

(7) The Minister must, in writing, revoke an accreditation if he or she is satisfied that a condition of the accreditation has been contravened.

303AB Amended policies, regimes or plans taken to be accredited

(1) If:

(a) a plan, regime or policy is accredited under section 208A, 222A, 245 or 265; and

(b) the plan, regime or policy is amended, or is proposed to be amended; and

(d) the Minister is satisfied that the plan, regime or policy as amended meets, or will meet, the requirements of subsection 208A(1), 222A(1), 245(1) or 265(1) (as the case may be);

the Minister may, by instrument in writing, determine that this subsection applies to the amendments.

(2) If the Minister makes a determination under subsection (1), the plan, regime or policy as amended is, for the purposes of this Act, taken to be accredited under subsection 208A(1), 222A(2), 245(1) or 265(1) (as the case may be).

(3) A determination under subsection (1) of this section is not a legislative instrument.

Part 13A—International movement of wildlife specimens

Division 1—Introduction

303BA Objects of Part

(1) The objects of this Part are as follows:

(a) to ensure that Australia complies with its obligations under CITES and the Biodiversity Convention;

(b) to protect wildlife that may be adversely affected by trade;

(d) to ensure that any commercial utilisation of Australian native wildlife for the purposes of export is managed in an ecologically sustainable way;

(e) to promote the humane treatment of wildlife;

(f) to ensure ethical conduct during any research associated with the utilisation of wildlife;

(h) to ensure that the precautionary principle is taken into account in making decisions relating to the utilisation of wildlife.

Note: CITES means the Convention on International Trade in Endangered Species—see section 528.

(2) In order to achieve its objects, this Part includes special provisions to conserve the biodiversity of Australian native wildlife.

303BAA Certain indigenous rights not affected

To avoid doubt, nothing in this Part prevents an indigenous person from continuing in accordance with law the traditional use of an area for:

(a) hunting (except for the purposes of sale); or

(b) food gathering (except for the purposes of sale); or

303BB Simplified outline

The following is a simplified outline of this Part:

• This Part sets up a system for regulating the international movement of wildlife specimens.

• A CITES specimen is a specimen of a species included in Appendix I, II or III to the Convention on International Trade in Endangered Species (CITES).

• It is an offence to export or import a CITES specimen unless:

(a) the exporter or importer holds a permit; or

(b) an exemption applies.

• A regulated native specimen is a specimen of a native species subject to export control under this Part.

• It is an offence to export a regulated native specimen unless:

(a) the exporter holds a permit; or

(b) an exemption applies.

• A regulated live specimen is a live specimen of a species subject to import control under this Part.

• It is an offence to import a regulated live specimen unless the importer holds a permit.

• It is an offence to possess a specimen that was imported in contravention of this Part.

303BC Definitions

In this Part, unless the contrary intention appears:

eligible listed threatened species means a listed threatened species other than a species in the conservation dependent category.

engage in conduct means:

(a) do an act; or

(b) omit to perform an act.

export means:

(a) export from Australia or from an external Territory; or

(b) export from the sea;

but does not include:

(d) export from an external Territory to Australia; or

(e) export from an external Territory to another external Territory.

export from the sea, in relation to a specimen, means take in a Commonwealth marine area and then take out of that area to another country without bringing into Australia or into an external Territory.

import means:

(a) import into Australia or into an external Territory; or

(b) import by way of introduction from the sea;

but does not include:

(d) import into an external Territory from Australia; or

(e) import into an external Territory from another external Territory.

import by way of introduction from the sea, in relation to a specimen, means take in the marine environment not under the jurisdiction of any country and then bring into Australia or into an external Territory without having been imported into any other country.

marine environment means the sea, and includes:

(a) the air space above the sea; and

(b) the seabed and subsoil beneath the sea.

recipient means:

(a) in relation to a specimen that is exported—the person in the country to which the specimen is exported who is to have the care and custody of the specimen after the export; and

(b) in relation to a specimen that is imported into Australia or into an external Territory—the person in Australia or that Territory, as the case may be, who is to have the care and custody of the specimen after the import.

relevant CITES authority, in relation to a country, means:

(a) if the country is a party to CITES—a Management Authority of that country; or

(b) if the country is not a party to CITES—a competent authority of that country within the meaning of Article X of CITES.

sender, in relation to a specimen that is imported into Australia or an external Territory, means the person in the country from which the specimen is imported who exports it from that country to Australia or to that Territory, as the case may be.

take includes:

(a) in relation to an animal—harvest, catch, capture, trap and kill; and

(b) in relation to a plant specimen—harvest, pick, gather and cut.

trade means trade within the ordinary meaning of that expression.

Note: See also section 528.

Division 2—CITES species

Subdivision A—CITES species and CITES specimens

303CA Listing of CITES species

(1) The Minister must, by instrument published in the Gazette, establish a list of CITES species for the purposes of this Act.

(2) The Minister must ensure that the list is established on the commencement of this section.

Note: See section 4 of the Acts Interpretation Act 1901.

(3) The list must include all species from time to time included in any of Appendices I, II and III to CITES. The list must not include any other species.

(4) For each species included in the list, there is to be a notation:

(a) describing the specimens belonging to that species that are included in a particular Appendix to CITES; and

(b) identifying the Appendix in which the species is included; and

(5) A description mentioned in paragraph (4)(a):

(a) may cover all specimens that belong to the species; or

(b) may cover specified kinds of specimens that belong to the species; or

(c) may state that the inclusion of a specimen in a particular Appendix to CITES is subject to restrictions or conditions.

(6) A restriction or condition mentioned in paragraph (5)(c) may:

(a) impose a quantitative limit in relation to the export or import of a specimen; or

(b) relate to the imposition of a quota in relation to the export or import of specimens; or

(d) reflect any other restriction or condition set out in the relevant Appendix to CITES.

(7) Subsection (6) does not limit paragraph (5)(c).

(8) A notation in the list is to be consistent with CITES.

(9) The Minister may, by instrument published in the Gazette:

(a) correct an inaccuracy or update the name of a species; or

(b) amend the list, as necessary, so that it includes all species required to be included in the list under subsection (3); or

(10) A copy of an instrument under subsection (1) or (9) is to be made available for inspection on the internet.

(11) For the purposes of this section, it is to be assumed that the definition of specimen in CITES includes a reference to a thing that is a specimen for the purposes of this Act.

Note: See also section 303CB.

303CB Stricter domestic measures

(1) The Minister may, by instrument published in the Gazette, declare that the list referred to in section 303CA has effect as if it were modified as set out in the declaration.

Note: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.

(2) The Minister must not make a declaration under subsection (1) unless:

(a) the modification has the effect of treating a specified specimen that is included in Appendix II to CITES as if the specimen were included in Appendix I to CITES; or

(b) the modification has the effect of broadening the range of specimens included in a specified Appendix to CITES in relation to a specified species; or

(c) the modification has the effect of decreasing a quantitative limit in relation to the export or import of a specimen; or

(d) the modification has the effect of treating a specified specimen that is not included in Appendix I, II or III to CITES as if the specimen were included in Appendix I to CITES; or

(e) the modification has the effect of treating a specified specimen that is not included in Appendix I, II or III to CITES as if the specimen were included in Appendix II to CITES.

(3) An instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

(4) A copy of an instrument under subsection (1) is to be made available for inspection on the internet.

(5) A reference in this Act to the list referred to in section 303CA is a reference to that list as modified under this section.

Subdivision B—Offences and permit system

303CC Exports of CITES specimens

(1) A person is guilty of an offence if:

(a) the person exports a specimen; and

(b) the specimen is a CITES specimen.

Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.

Authorised export—permit

(2) Subsection (1) does not apply if the specimen is exported in accordance with a permit that was issued under section 303CG, 303GB or 303GC and is in force.

Authorised export—CITES exemptions

(3) Subsection (1) does not apply if the export of the specimen is an export that, in accordance with a determination made by the Minister under the regulations, is taken to be part of a registered, non‑commercial exchange of scientific specimens between scientific organisations.

(4) Subsection (1) does not apply if the Minister issues a certificate under subsection (5) in relation to the specimen.

(5) If the Minister is satisfied that a specimen was acquired before the provisions of CITES applied to the specimen, the Minister may issue a certificate to that effect.

(6) Subsection (1) does not apply if the export of the specimen is an export that, under the regulations, is taken to be an export of a personal or household effect.

Note 1: See paragraph 3 of Article VII of CITES.

Note 2: The defendant bears an evidential burden in relation to the matters in subsections (2), (3), (4) and (6) (see subsection 13.3(3) of the Criminal Code).

303CD Imports of CITES specimens

(1) A person is guilty of an offence if:

(a) the person imports a specimen; and

(b) the specimen is a CITES specimen.

Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.

Authorised import—permit

(2) Subsection (1) does not apply if the specimen is imported in accordance with a permit that was issued under section 303CG, 303GB or 303GC and is in force.

Authorised import—CITES exemptions

(3) Subsection (1) does not apply if the import of the specimen is an import that, under the regulations, is taken to be an import of a personal or household effect.

Note: See paragraph 3 of Article VII of CITES.

(4) Subsection (1) does not apply if:

(a) the specimen is a CITES II specimen; and

(b) the specimen is not a live specimen; and

(d) in a case where a quantitative limit is applicable to the specimen under a notation in the list referred to in section 303CA—the quantity of the specimen does not exceed that limit; and

(e) the specimen is within the personal baggage of a person entering Australia or an external Territory; and

(f) the specimen is not intended for sale or for any other commercial purpose; and

(g) both:

(i) the country from which the specimen is proposed to be imported has a relevant CITES authority; and

(ii) permission to export the specimen from that country has been given by a relevant CITES authority of that country.

(5) Subsection (1) does not apply if the import of the specimen is an import that, in accordance with a determination made by the Minister under the regulations, is taken to be part of a registered, non‑commercial exchange of scientific specimens between scientific organisations.

(6) Subsection (1) does not apply if:

(a) the country from which the specimen is proposed to be imported has a relevant CITES authority; and

(b) a relevant CITES authority of that country has issued a certificate under paragraph 2 of Article VII of CITES in respect of the specimen.

Note 1: Paragraph 2 of Article VII of CITES deals with a specimen that was acquired before the provisions of CITES applied to the specimen.

Note 2: The defendant bears an evidential burden in relation to the matters in subsections (2), (3), (4), (5) and (6) (see subsection 13.3(3) of the Criminal Code).

303CE Applications for permits

(1) A person may, in accordance with the regulations, apply to the Minister for a permit to be issued under section 303CG.

(2) The application must be accompanied by the fee (if any) prescribed by the regulations.

303CF Further information

(1) The Minister may, within 40 business days after the application is made, request the applicant to give the Minister, within the period specified in the request, further information for the purpose of enabling the Minister to deal with the application.

(2) The Minister may refuse to consider the application until the applicant gives the Minister the information in accordance with the request.

303CG Minister may issue permits

(1) The Minister may, on application made by a person under section 303CE, issue a permit to the person. This subsection has effect subject to subsection (3).

(2) A permit authorises its holder to take the action or actions specified in the permit, in the permitted period, without breaching section 303CC, 303CD, 303DD or 303EK.

(2A) For the purpose of subsection (2), the permitted period is the period specified in the permit as the period during which the action or actions specified in the permit may be taken. The period so specified must start on the date of issue of the permit and end not later than 6 months after that date.

(3) The Minister must not issue a permit unless the Minister is satisfied that:

(a) the action or actions specified in the permit will not be detrimental to, or contribute to trade which is detrimental to:

(i) the survival of any taxon to which the specimen belongs; or

(ii) the recovery in nature of any taxon to which the specimen belongs; or

(iii) any relevant ecosystem (for example, detriment to habitat or biodiversity); and

(b) the specimen was not obtained in contravention of, and the action or actions specified in the permit would not involve the contravention of, any law of the Commonwealth, of a State or of a Territory; and

(c) if the specimen is a live specimen that belongs to a taxon specified in the regulations—the conditions that, under the regulations, are applicable to the welfare of the specimen have been, or are likely to be, complied with; and

(d) if any restriction or condition is applicable to the specimen under a notation in the list referred to in section 303CA—that restriction or condition has been, or is likely to be, complied with; and

(e) if the permit authorises the export of a CITES specimen:

(i) the proposed export would be an eligible non‑commercial purpose export (within the meaning of section 303FA); or

(ii) the relevant conditions set out in the table in section 303CH have been met; and

(f) if the permit authorises the import of a CITES specimen:

(i) the proposed import would be an eligible non‑commercial purpose import (within the meaning of section 303FB); or

(ii) the relevant conditions set out in the table in section 303CH have been met; and

(g) if:

(i) the permit authorises the import of a CITES II specimen; and

(ii) the proposed import would be an eligible non‑commercial purpose import (within the meaning of section 303FB);

the country from which the specimen is proposed to be imported has a relevant CITES authority and permission to export the specimen from that country has been given by a relevant CITES authority of that country; and

(h) if the permit authorises the export of a CITES specimen that is a regulated native specimen—the conditions set out in subsection 303DG(4) have been met; and

(i) if the permit authorises the import of a CITES specimen that is a regulated live specimen—the conditions set out in subsection 303EN(3) have been met.

(4) Subsection (3) does not apply in relation to a permit to export from Australia or an external Territory a specimen (other than a live animal) that has been imported into Australia or that Territory, as the case may be.

(5) The Minister must not issue a permit to export a specimen (other than a live animal) that has been imported into Australia or an external Territory, unless the Minister is satisfied that:

(a) the specimen was lawfully imported (section 303GY); and

(b) if the specimen is a CITES I specimen:

(i) the country to which the specimen is proposed to be exported has a relevant CITES authority; and

(ii) permission to import that specimen into that country has been given by a relevant CITES authority of that country.

(6) This section has effect subject to section 303GA.

Note: Section 303GA deals with controlled actions, and actions for which a non‑Part 13A permit is required.

303CH Specific conditions relating to the export or import of CITES specimens for commercial purposes

(1) The following table sets out the conditions mentioned in paragraphs 303CG(3)(e) and (f):

Specific conditions
Item	Category of specimen	Action	Specific conditions
1	CITES I	Import	(a) the proposed import would be an import from an approved CITES‑registered captive breeding program in accordance with section 303FK; or (b) the specimen is, or is derived from, a plant that was artificially propagated (section 527C).
2	CITES I	Export	(a) the specimen is not a live native mammal, a live native amphibian, a live native reptile or a live native bird; and (b) the country to which the specimen is proposed to be exported has a relevant CITES authority, and permission to import that specimen into that country has been given by a relevant CITES authority of that country; and (c) the proposed export would be an export from: (i) an approved CITES‑registered captive breeding program in accordance with section 303FK; or (ii) an approved artificial propagation program in accordance with section 303FL.
3	CITES II	Import	(a) for any specimen—the country from which the specimen is proposed to be imported has a relevant CITES authority and permission to export the specimen from that country has been given by a relevant CITES authority of that country; and (b) for a specimen that: (i) is specified by the Minister in a notice published in the Gazette to be a declared specimen; and (ii) is not, or is not derived from, an animal that was bred in captivity (section 527B); and (iii) is not, or is not derived from, a plant that was artificially propagated (section 527C); the proposed import of the specimen would be an import from an approved commercial import program in accordance with section 303FU.
4	CITES II	Export	(a) the specimen is not a live native mammal, a live native amphibian, a live native reptile or a live native bird; and (b) the proposed export of the specimen would be: (i) an export from an approved captive breeding program in accordance with section 303FK; or (ii) an export from an approved artificial propagation program in accordance with section 303FL; or (iia) an export from an approved cultivation program in accordance with section 303FLA; or (iii) an export in accordance with an approved wildlife trade operation (section 303FN); or (iv) an export in accordance with an approved wildlife trade management plan (section 303FO).
5	CITES III	Import	The country from which the specimen is proposed to be imported has a relevant CITES authority, and permission to export the specimen from that country has been given by a relevant CITES authority of that country.
6	CITES III	Export	(a) the specimen is not a live native mammal, a live native amphibian, a live native reptile or a live native bird; and (b) the proposed export of the specimen would be: (i) an export from an approved captive breeding program in accordance with section 303FK; or (ii) an export from an approved artificial propagation program in accordance with section 303FL; or (iia) an export from an approved cultivation program in accordance with section 303FLA; or (iii) an export in accordance with an approved wildlife trade operation (section 303FN); or (iv) an export in accordance with an approved wildlife trade management plan (section 303FO).

(2) A notice made under subparagraph (b)(i) of item 3 in the table in subsection (1) is not a legislative instrument.

303CI Time limit for making permit decision

If an application for a permit is made under section 303CE, the Minister must either issue, or refuse to issue, the permit within 40 business days after whichever is the latest of the following days:

(a) the day on which the application is made;

(b) if a request for further information in relation to the application is made under section 303CF—the day on which the applicant complies with the request;

303CJ Duration of permits

A permit under section 303CG:

(a) comes into force on the date on which it is issued; and

(b) unless it is sooner cancelled, remains in force until all of the following periods have ended:

(i) the permitted period (within the meaning of subsection 303CG(2A));

(ii) each period for which one or more conditions of the permit are expressed to apply.

303CK Register of applications and decisions

(1) As soon as practicable after the commencement of this section, the Minister must cause to be established a register that sets out:

(a) prescribed particulars of applications made under section 303CE after the establishment of the register; and

(b) prescribed particulars of decisions made by the Minister under section 303CG after the establishment of the register.

(2) The register may be maintained by electronic means.

(3) The register is to be made available for inspection on the internet.

Subdivision C—Application of CITES

303CL Application of CITES—Management Authority and Scientific Authority

For the purposes of the application of CITES to Australia:

(a) the Minister is the Management Authority; and

(b) the Secretary is the Scientific Authority.

303CM Interpretation of CITES provisions

(1) Except so far as the contrary intention appears, an expression that:

(a) is used in the CITES provisions without definition; and

(b) is used in CITES (whether or not it is defined in, or a particular meaning is assigned to it by, CITES);

has, in the CITES provisions, the same meaning as it has in CITES.

(2) For the purposes of subsection (1), the CITES provisions consist of:

(a) this Division; and

(b) any other provision of this Act in so far as that other provision relates to, or to permits under, this Division.

303CN Resolutions of the Conference of the Parties to CITES

(1) In making a decision under this Part in relation to a CITES specimen, the Minister may have regard to a relevant resolution of the Conference of the Parties under Article XI of CITES.

(2) Subsection (1) applies to a resolution, whether made before or after the commencement of this section.

Division 3—Exports of regulated native specimens

Subdivision A—Regulated native specimens

303DA Regulated native specimens

For the purposes of this Act, a regulated native specimen is a specimen that:

(a) is, or is derived from, a native animal or a native plant; and

(b) is not included in the list referred to in section 303DB.

303DB Listing of exempt native specimens

(1) The Minister must, by instrument published in the Gazette, establish a list of exempt native specimens.

(2) For each specimen included in the list, there is to be a notation that states whether the inclusion of the specimen in the list is subject to restrictions or conditions and, if so, the nature of those restrictions or conditions.

(3) A restriction or condition mentioned in subsection (2) may:

(a) consist of a quantitative limit in relation to the export of the specimen; or

(b) relate to the circumstances of the export of the specimen; or

(d) relate to the circumstances in which the specimen was taken or, if the specimen is derived from another specimen that was taken, the circumstances in which the other specimen was taken; or

(e) relate to an expiry date for the inclusion of the specimen on the list.

(4) Subsection (3) does not limit subsection (2).

(5) The list, as first established, must:

(a) contain the specimens referred to in Part I of Schedule 4 to the Wildlife Protection (Regulation of Exports and Imports) Act 1982, as in force immediately before the commencement of this section; and

(b) reflect the restrictions and conditions that are applicable to the inclusion of those specimens in that Part of that Schedule.

(6) The list must not include a specimen that belongs to an eligible listed threatened species unless:

(a) the Minister is satisfied that the export of the specimen will not:

(i) adversely affect the conservation status of the species concerned; and

(ii) be inconsistent with any recovery plan or wildlife conservation plan for that species; and

(aa) the Minister has had regard to any approved conservation advice for that species; and

(b) the inclusion of the specimen on the list is subject to a restriction or condition to the effect that:

(i) the specimen must be, or be derived from, a plant that was artificially propagated (section 527C); and

(ii) the specimen was propagated in an operation that has derived its stock in a way that did not breach a law of the Commonwealth, a State or a Territory.

(7) A copy of an instrument under subsection (1) is to be made available for inspection on the internet.

303DC Minister may amend list

(1) The Minister may, by instrument published in the Gazette, amend the list referred to in section 303DB by:

(a) including items in the list; or

(b) deleting items from the list; or

(d) varying or revoking a condition or restriction to which the inclusion of a specimen in the list is subject; or

(e) correcting an inaccuracy or updating the name of a species.

(1A) In deciding whether to amend the list referred to in section 303DB to include a specimen derived from a commercial fishery, the Minister must rely primarily on the outcomes of any assessment in relation to the fishery carried out for the purposes of Division 1 or 2 of Part 10.

(1B) Subsection (1A) does not apply to an amendment mentioned in paragraph (1)(e).

(1C) Subsection (1A) does not limit the matters that may be taken into account in deciding whether to amend the list referred to in section 303DB to include a specimen derived from a commercial fishery.

(1D) In this section:

fishery has the same meaning as in section 303FN.

(2) For the purposes of paragraph (1)(e), correcting an inaccuracy includes ensuring that the list complies with subsection 303DB(5).

(3) Before amending the list referred to in section 303DB as mentioned in paragraph (1)(a), (b), (c) or (d) of this section, the Minister:

(a) must consult such other Minister or Ministers as the Minister considers appropriate; and

(b) must consult such other Minister or Ministers of each State and self‑governing Territory as the Minister considers appropriate; and

(4) An instrument under subsection (1) (other than an instrument mentioned in paragraph (1)(e)) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

(5) A copy of an instrument under subsection (1) is to be made available for inspection on the internet.

Subdivision B—Offence and permit system

303DD Exports of regulated native specimens

(1) A person is guilty of an offence if:

(a) the person exports a specimen; and

(b) the specimen is a regulated native specimen.

Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.

Exemption—permit

(2) Subsection (1) does not apply if the specimen is exported in accordance with a permit that was issued under section 303CG, 303DG, 303GB or 303GC and is in force.

Exemption—accredited wildlife trade management plan

(3) Subsection (1) does not apply if:

(a) the export of the specimen would be an export in accordance with an accredited wildlife trade management plan (section 303FP); and

(b) the specimen is not a live native mammal, a live native reptile, a live native amphibian or a live native bird; and

(ba) either:

(i) the specimen is not a live terrestrial invertebrate, or a live freshwater fish, prescribed by the regulations for the purposes of this subparagraph; or

(ii) the export is an export from an approved aquaculture program in accordance with section 303FM; and

(d) the specimen does not belong to an eligible listed threatened species.

Exemption—exchange of scientific specimens

(4) Subsection (1) does not apply if the export of the specimen is an export that, in accordance with a determination made by the Minister under the regulations, is taken to be part of a registered, non‑commercial exchange of scientific specimens between scientific organisations.

Note: The defendant bears an evidential burden in relation to the matters in subsections (2), (3) and (4) (see subsection 13.3(3) of the Criminal Code).

303DE Applications for permits

(1) A person may, in accordance with the regulations, apply to the Minister for a permit to be issued under section 303DG.

(2) The application must be accompanied by the fee (if any) prescribed by the regulations.

303DF Further information

(2) The Minister may refuse to consider the application until the applicant gives the Minister the information in accordance with the request.

303DG Minister may issue permits

(1) The Minister may, on application made by a person under section 303DE, issue a permit to the person. This subsection has effect subject to subsections (3) to (4A).

(2) A permit authorises its holder to take the action or actions specified in the permit, in the permitted period, without breaching section 303DD.

(3) The Minister must not issue a permit authorising the export of a live native mammal, a live native reptile, a live native amphibian or a live native bird unless the Minister is satisfied that the proposed export would be an eligible non‑commercial purpose export (within the meaning of section 303FA).

(3A) The Minister must not issue a permit authorising the export of a live terrestrial invertebrate, or a live freshwater fish, prescribed by the regulations for the purposes of paragraph 303DD(3)(ba) unless the Minister is satisfied that:

(a) the proposed export would be an eligible non‑commercial purpose export (within the meaning of section 303FA); or

(b) the proposed export would be an export from an approved aquaculture program in accordance with section 303FM.

(4) The Minister must not issue a permit unless the Minister is satisfied that:

(a) the export of the specimen will not be detrimental to, or contribute to trade which is detrimental to:

(i) the survival of any taxon to which the specimen belongs; or

(ii) any relevant ecosystem (for example, detriment to habitat or biodiversity); and

(b) if the specimen is a live specimen that belongs to a taxon specified in the regulations—the conditions that, under the regulations, are applicable to the welfare of the specimen have been, or are likely to be, complied with; and

(c) the specimen was not obtained in contravention of, and the export would not involve the contravention of, any law of the Commonwealth, of a State or of a Territory; and

(d) if the specimen belongs to an eligible listed threatened species—the export of the specimen is covered by subsection (7) or (8), and the export would not be inconsistent with any recovery plan for that species; and

(e) if the specimen does not belong to an eligible listed threatened species:

(i) the proposed export would be an eligible non‑commercial purpose export (within the meaning of section 303FA); or

(ii) the proposed export would be an eligible commercial purpose export (within the meaning of section 303FJ).

(4A) If the Minister is considering whether to issue a permit relating to a specimen that belongs to a particular eligible listed threatened species, the Minister must, in deciding whether to issue the permit, have regard to any approved conservation advice for the species.

(5) Subsection (4) does not apply in relation to a permit to export from Australia or an external Territory a specimen (other than a live animal) that has been imported into Australia or that Territory, as the case may be.

(6) The Minister must not issue a permit to export from Australia or an external Territory a specimen (other than a live animal) that has been imported into Australia or that Territory, as the case may be, unless the Minister is satisfied that the specimen was lawfully imported (section 303GY).

Eligible listed threatened species

(7) This subsection covers the export of a specimen if:

(a) the export of the specimen would be an export from an approved captive breeding program in accordance with section 303FK; or

(b) the export of the specimen would be an export from an approved artificial propagation program in accordance with section 303FL; or

(ba) the export of the specimen would be an export from an approved cultivation program in accordance with section 303FLA; or

and the export of the specimen will not adversely affect the conservation status of the species concerned.

Note: See also subsection (3).

(8) This subsection covers the export of a specimen if:

(a) the export of the specimen would be an export for the purposes of research in accordance with section 303FC; or

(b) the export of the specimen would be an export for the purposes of education in accordance with section 303FD; or

(d) the export of the specimen would be an export for the purposes of conservation breeding or propagation in accordance with section 303FF.

Section has effect subject to section 303GA

(9) This section has effect subject to section 303GA.

Note: Section 303GA deals with controlled actions, and actions for which a non‑Part 13A permit is required.

303DH Time limit for making permit decision

If an application for a permit is made under section 303DE, the Minister must either issue, or refuse to issue, the permit within 40 business days after whichever is the latest of the following days:

(a) the day on which the application is made;

(b) if a request for further information in relation to the application is made under section 303DF—the day on which the applicant complies with the request;

303DI Duration of permits

A permit under section 303DG:

(a) comes into force on the date on which it is issued; and

(b) unless it is sooner cancelled, remains in force until all of the following periods have ended:

(i) the permitted period (within the meaning of subsection 303DG(2A));

(ii) each period for which one or more conditions of the permit are expressed to apply.

303DJ Register of applications and decisions

(1) As soon as practicable after the commencement of this section, the Minister must cause to be established a register that sets out:

(a) prescribed particulars of applications made under section 303DE after the establishment of the register; and

(b) prescribed particulars of decisions made by the Minister under section 303DG after the establishment of the register.

(2) The register may be maintained by electronic means.

(3) The register is to be made available for inspection on the internet.

Division 4—Imports of regulated live specimens

Subdivision A—Regulated live specimens

303EA Regulated live specimens

For the purposes of this Act, a regulated live specimen is a specimen that:

(a) is a live animal or a live plant; and

(b) is not included in Part 1 of the list referred to in section 303EB.

303EB Listing of specimens suitable for live import

(1) The Minister must, by instrument published in the Gazette, establish a list of specimens that are taken to be suitable for live import.

(2) The list is to be divided into 2 Parts, as follows:

(a) Part 1 is to be a list of unregulated specimens;

(b) Part 2 is to be a list of allowable regulated specimens.

(3) The list may only contain specimens that are live animals or live plants.

(4) Part 1 of the list, as first established, must contain only the specimens referred to in Part I of Schedule 5 or Part I of Schedule 6 to the Wildlife Protection (Regulation of Exports and Imports) Act 1982, as in force immediately before the commencement of this section.

(5) Part 1 of the list must not contain a CITES specimen.

(6) Part 1 of the list is taken to include a live plant the introduction of which into Australia is in accordance with the Quarantine Act 1908.

(7) For each specimen included in Part 2 of the list (except a specimen referred to in subsection (11A)), there is to be a notation that states whether the inclusion of the specimen in that part of the list is subject to restrictions or conditions and, if so, the nature of those restrictions or conditions.

(8) A restriction or condition referred to in subsection (7) may:

(a) consist of a quantitative limit in relation to the import of the specimen; or

(b) relate to the circumstances of the import of the specimen; or

(d) relate to the circumstances in which the specimen was taken.

(9) Subsection (8) does not limit subsection (7).

(10) Part 2 of the list, as first established, must contain only specimens that were, at any time before the commencement of this section, the subject of an import permit granted under the Wildlife Protection (Regulation of Exports and Imports) Act 1982.

(11) For the purposes of subsection (10), a specimen is taken to have been the subject of an import permit if, and only if, the specimen was identified in the permit at the species or sub‑species level.

(11A) Part 2 of the list is taken to include a live plant that:

(a) is a CITES specimen; and

(b) is introduced into Australia in accordance with the Quarantine Act 1908.

(12) A copy of an instrument under subsection (1) is to be made available for inspection on the internet.

303EC Minister may amend list

(1) The Minister may, by instrument published in the Gazette, amend the list referred to in section 303EB by:

(a) including items in a particular part of the list; or

(b) deleting items from a particular part of the list; or

(d) imposing a restriction or condition to which the inclusion of a specimen in Part 2 of the list is subject; or

(e) varying or revoking a restriction or condition to which the inclusion of a specimen in Part 2 of the list is subject.

(2) For the purposes of paragraph (1)(c), correcting an inaccuracy includes ensuring that the list complies with subsections 303EB(4) and (10).

(3) Before amending the list referred to in section 303EB as mentioned in paragraph (1)(a), (b), (d) or (e) of this section, the Minister:

(a) must consult such other Minister or Ministers as the Minister considers appropriate; and

(b) must consult such other Minister or Ministers of each State and self‑governing Territory as the Minister considers appropriate; and

(4) An instrument under subsection (1) (other than an instrument mentioned in paragraph (1)(c)) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

(5) The Minister must not amend the list referred to in section 303EB by including an item in the list, unless:

(a) the amendment is made following consideration of a relevant report under section 303ED or 303EE; or

(b) the amendment is made following consideration of a relevant review under section 303EJ.

(6) A copy of an instrument under subsection (1) is to be made available for inspection on the internet.

Subdivision B—Assessments relating to the amendment of the list of specimens suitable for import

303ED Amendment of list on the Minister’s own initiative

(1) The Minister may formulate a proposal for the list referred to in section 303EB to be amended by including an item.

(2) Unless subsection (3) applies, the Minister must:

(a) cause to be conducted an assessment of the potential impacts on the environment of the proposed amendment; and

(b) cause to be prepared a report on those impacts.

The report must be prepared in accordance with section 303EF and be given to the Minister.

(3) This subsection applies if:

(a) Biosecurity Australia has prepared a report (whether before or after the amendment was proposed) on the potential impacts on the environment if the specimen were to be imported; and

(b) the report is of a type specified in regulations made for the purposes of this paragraph; and

(d) the Minister determines that subsection (2) does not apply to the proposed amendment.

(4) A determination made under paragraph (3)(d) is not a legislative instrument.

303EE Application for amendment of list

(1) A person may, in accordance with the regulations, apply to the Minister for the list referred to in section 303EB to be amended by including an item.

(2) The Minister must not consider the application unless either subsection (3) or (4) applies to the proposed amendment.

(3) This subsection applies to the proposed amendment if:

(a) subsection (4) does not apply to the proposed amendment; and

(b) an assessment is made of the potential impacts on the environment of the proposed amendment; and

The report must be prepared in accordance with section 303EF.

(4) This subsection applies to the proposed amendment if:

(a) Biosecurity Australia has prepared a report (whether before or after the amendment was proposed) on the potential impacts on the environment if the specimen were to be imported; and

(b) the report is of a type specified in regulations made for the purposes of this paragraph; and

(d) the Minister determines that subsection (3) does not apply to the proposed amendment.

(5) A determination made under paragraph (4)(d) is not a legislative instrument.

303EF Requirement for assessments

(1) The assessment under subsection 303ED(2) or 303EE(3) must provide for:

(a) if the Minister determines that this paragraph applies—the preparation of terms of reference for a report on the relevant impacts; or

(b) if the Minister determines that this paragraph applies—all of the following:

(i) the preparation of draft terms of reference for a report on the relevant impacts;

(ii) the publication of the draft terms of reference for public comment for a period of at least 10 business days that is specified by the Minister;

(iii) the finalisation of the terms of reference, to the Minister’s satisfaction, taking into account the comments (if any) received on the draft terms of reference.

(2) The assessment must also provide for:

(a) the preparation of a draft of a report on the relevant impacts; and

(b) the publication of the draft report for public comment for a period of at least 20 business days that is specified by the Minister; and

(c) the finalisation of the report, taking into account the comments (if any) received after publication of the draft report; and

(d) any other matter prescribed by the regulations.

(3) A determination made under paragraph (1)(a) or (b) is not a legislative instrument.

303EG Timing of decision about proposed amendment

(1) If the Minister receives a report under section 303ED or 303EE in relation to a proposed amendment, the Minister must decide whether or not to make the proposed amendment within:

(a) 30 business days; or

(b) if the Minister, by writing, specifies a longer period—that longer period;

after the first business day after the day on which the report was received.

Notice of extension of time

(2) If the Minister specifies a longer period for the purposes of subsection (1), he or she must:

(a) if section 303EE applies—give a copy of the specification to the applicant; and

(b) publish the specification in accordance with the regulations.

303EH Requesting further information

(1) If:

(a) section 303EE applies; and

(b) the Minister believes on reasonable grounds that he or she does not have enough information to make an informed decision whether or not to make the proposed amendment;

the Minister may request the applicant to give the Minister, within the period specified in the request, information relevant to making the decision.

(2) The Minister may refuse to consider the application until the applicant gives the Minister the information in accordance with the request.

303EI Notice of refusal of proposed amendment

If section 303EE applies and the Minister refuses to make the proposed amendment, the Minister must give the applicant notice of the refusal.

303EJ Reviews

If, following consideration of a relevant report under section 303ED or 303EE, the Minister has made a decision to include, or refusing to include, an item in the list referred to in section 303EB, the Minister may review that decision at any time during the period of 5 years after the decision was made.

Subdivision C—Offence and permit system

303EK Imports of regulated live specimens

(1) A person is guilty of an offence if:

(a) the person imports a specimen; and

(b) the specimen is a regulated live specimen.

Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.

Exemption—permit

(2) Subsection (1) does not apply if:

(a) the specimen is included in Part 2 of the list referred to in section 303EB; and

(b) the specimen is imported in accordance with a permit that was issued under section 303CG, 303EN, 303GB or 303GC and is in force.

Exemption—testing permit

(3) Subsection (1) does not apply if the specimen is imported in accordance with a permit that was issued under section 303GD and is in force.

Note: The defendant bears an evidential burden in relation to the matters in subsections (2) and (3) (see subsection 13.3(3) of the Criminal Code).

303EL Applications for permits

(1) A person may, in accordance with the regulations, apply to the Minister for a permit to be issued under section 303EN.

(2) The application must be accompanied by the fee (if any) prescribed by the regulations.

303EM Further information

(2) The Minister may refuse to consider the application until the applicant gives the Minister the information in accordance with the request.

303EN Minister may issue permits

(1) The Minister may, on application made by a person under section 303EL, issue a permit to the person. This subsection has effect subject to subsection (3).

(2) A permit authorises its holder to take the action or actions specified in the permit, in the permitted period, without breaching section 303EK.

(3) The Minister must not issue a permit unless the Minister is satisfied that:

(a) the proposed import would not be:

(i) likely to threaten the conservation status of a species or ecological community; or

(ii) likely to threaten biodiversity; and

(b) the specimen is included in Part 2 of the list referred to in section 303EB; and

(c) if any restriction or condition is applicable to the specimen under a notation in Part 2 of the list referred to in section 303EB—that restriction or condition has been, or is likely to be, complied with; and

(d) the specimen was not obtained in contravention of, and the import would not involve the contravention of, any law of the Commonwealth, of a State or of a Territory; and

(e) if the specimen belongs to a taxon specified in the regulations—the conditions that, under the regulations, are applicable to the welfare of the specimen have been, or are likely to be, complied with.

(4) This section has effect subject to section 303GA.

Note: Section 303GA deals with controlled actions, and actions for which a non‑Part 13A permit is required.

303EO Time limit for making permit decision

If an application for a permit is made under section 303EL, the Minister must either issue, or refuse to issue, the permit within 40 business days after whichever is the latest of the following days:

(a) the day on which the application is made;

(b) if a request for further information in relation to the application is made under section 303EM—the day on which the applicant complies with the request;

303EP Duration of permits

A permit under section 303EN:

(a) comes into force on the date on which it is issued; and

(b) unless it is sooner cancelled, remains in force until all of the following periods have ended:

(i) the permitted period (within the meaning of subsection 303EN(2A));

(ii) each period for which one or more conditions of the permit are expressed to apply.

303EQ Register of applications and decisions

(1) As soon as practicable after the commencement of this section, the Minister must cause to be established a register that sets out:

(a) prescribed particulars of applications made under section 303EL after the establishment of the register; and

(b) prescribed particulars of decisions made by the Minister under section 303EN after the establishment of the register.

(2) The register may be maintained by electronic means.

(3) The register is to be made available for inspection on the internet.

Subdivision D—Marking of certain specimens for the purposes of identification

303ER Object

The object of this Subdivision is:

(a) to comply with Australia’s obligations under:

(i) the Biodiversity Convention; and

(ii) CITES; and

(b) otherwise to further the protection and conservation of the wild fauna and flora of Australia and of other countries;

by requiring the marking of certain live specimens for the purposes of identification.

Note: See Article 8 of the Biodiversity Convention.

303ES Specimens to which Subdivision applies

This Subdivision applies to a regulated live specimen if:

(a) the specimen has been imported in accordance with:

(i) a permit under this Division; or

(ii) a permit or authority under the Wildlife Protection (Regulation of Exports and Imports) Act 1982; or

(b) the specimen is the progeny of a specimen referred to in paragraph (a).

303ET Extended meaning of marking

A reference in this Subdivision to the marking of a specimen includes a reference to the following:

(a) in the case of a live plant:

(i) the marking or labelling of a container in which the plant is kept or in which the plant is growing; and

(ii) the placement of a label or tag on the plant;

(b) in the case of a live animal:

(i) the implantation of a scannable device in the animal; and

(ii) the placement of a band on any part of the animal; and

(iii) the placement (whether by piercing or otherwise) of a tag or ring on any part of the animal; and

(iv) the marking or labelling of a container within which the animal is kept.

303EU Secretary may make determinations about marking of specimens

Determinations

(1) The Secretary may make a written determination about the marking of specified kinds of specimens for the purposes of identification.

Matters that may be covered by determination

(2) Without limiting subsection (1), a determination by the Secretary under that subsection may:

(a) require specimens to be marked; and

(b) deal with the manner in which specimens are to be marked; and

(d) deal with the removal or destruction of marks; and

(e) deal with the replacement or modification of marks; and

(f) require that marking be carried out by persons approved in writing by the Secretary under that determination; and

(g) deal with the circumstances in which marks may be, or are required to be, rendered useless; and

(h) in the case of a mark that consists of a label, tag, band or device:

(i) set out specifications relating to the label, tag, band or device; and

(ii) require that any destruction or removal of the label, tag, band or device be carried out by a person approved in writing by the Secretary under that determination.

Marking of animals not to involve undue pain etc.

(3) In the case of a live animal, a determination under subsection (1) must not require marking that involves:

(a) undue pain or distress to the animal; or

(b) undue risk of the death of the animal.

Marking of plants not to involve undue risk of death

(4) In the case of a live plant, a determination under subsection (1) must not require marking that involves undue risk of the death of the plant.

Disallowable instrument

(5) A determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

303EV Offences

Owner to ensure specimens marked etc.

(1) If a determination under section 303EU applies to a specimen, the owner of the specimen must comply with the determination.

Person not to remove or interfere with mark etc.

(2) A person contravenes this subsection if:

(a) a specimen is marked in accordance with a determination under section 303EU; and

(b) the person engages in conduct; and

Offence

(3) A person who contravenes subsection (1) or (2) is guilty of an offence punishable on conviction by a fine not exceeding 120 penalty units.

(4) Subsection (2) does not apply if the person engages in the conduct in accordance with a determination under section 303EU.

Note: The defendant bears an evidential burden in relation to the matter in subsection (4). See subsection 13.3(3) of the Criminal Code.

(5) In subsections (1) and (2), strict liability applies to the circumstance that a determination was made under section 303EU.

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

303EW This Subdivision does not limit conditions of permits

This Subdivision does not limit section 303GE (which deals with conditions of permits).

Division 5—Concepts relating to permit criteria

Subdivision A—Non‑commercial purpose exports and imports

303FA Eligible non‑commercial purpose exports

For the purposes of this Part, the export of a specimen is an eligible non‑commercial purpose export if, and only if:

(a) the export of the specimen would be an export for the purposes of research in accordance with section 303FC; or

(b) the export of the specimen would be an export for the purposes of education in accordance with section 303FD; or

(d) the export of the specimen would be an export for the purposes of conservation breeding or propagation in accordance with section 303FF; or

(e) the export of the specimen would be an export of a household pet in accordance with section 303FG; or

(f) the export of the specimen would be an export of a personal item in accordance with section 303FH; or

(g) the export of a specimen would be an export for the purposes of a travelling exhibition in accordance with section 303FI.

303FB Eligible non‑commercial purpose imports

For the purposes of this Part, the import of a specimen is an eligible non‑commercial purpose import if, and only if:

(a) the import of the specimen would be an import for the purposes of research in accordance with section 303FC; or

(b) the import of the specimen would be an import for the purposes of education in accordance with section 303FD; or

(d) the import of the specimen would be an import for the purposes of conservation breeding or propagation in accordance with section 303FF; or

(e) the import of the specimen would be an import of a household pet in accordance with section 303FG; or

(f) the import of the specimen would be an import of a personal item in accordance with section 303FH; or

(g) the import of a specimen would be an import for the purposes of a travelling exhibition in accordance with section 303FI.

303FC Export or import for the purposes of research

(1) The export of a specimen is an export for the purposes of research in accordance with this section if:

(a) the specimen will be used for the purpose of scientific research; and

(b) the objects of the research are covered by any or all of the following subparagraphs:

(i) the acquisition of a better understanding, and/or increased knowledge, of a taxon to which the specimen belongs;

(ii) the conservation of biodiversity;

(iii) the maintenance and/or improvement of human health; and

(d) such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.

(2) The import of a specimen is an import for the purposes of research in accordance with this section if:

(a) the specimen will be used for the purpose of scientific research; and

(b) the objects of the research are covered by any or all of the following subparagraphs:

(i) the acquisition of a better understanding, and/or increased knowledge, of a taxon to which the specimen belongs;

(ii) the conservation of biodiversity;

(iii) the maintenance and/or improvement of human health; and

(d) such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.

303FD Export or import for the purposes of education

(1) The export of a specimen is an export for the purposes of education in accordance with this section if:

(a) the specimen will be used for the purpose of education or training; and

(b) the export is not primarily for commercial purposes; and

(2) The import of a specimen is an import for the purposes of education in accordance with this section if:

(a) the specimen will be used for the purpose of education or training; and

(b) the import is not primarily for commercial purposes; and

303FE Export or import for the purposes of exhibition

(1) The export of a specimen is an export for the purposes of exhibition in accordance with this section if:

(a) the specimen will be used for the purpose of an exhibition; and

(b) the export is not primarily for commercial purposes; and

(2) The import of a specimen is an import for the purposes of exhibition in accordance with this section if:

(a) the specimen will be used for the purpose of an exhibition; and

(b) the import is not primarily for commercial purposes; and

(3) In this section:

exhibition includes a zoo or menagerie.

303FF Export or import for conservation breeding or propagation

(1) The export of a specimen is an export for the purposes of conservation breeding or propagation in accordance with this section if:

(a) the specimen is a live animal or a live plant; and

(b) the specimen is for use in a program the object of which is the establishment and/or maintenance of a breeding population; and

(c) the program is a program that, under the regulations, is taken to be an approved co‑operative conservation program; and

(d) the export is not primarily for commercial purposes; and

(e) such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.

(2) The import of a specimen is an import for the purposes of conservation breeding or propagation in accordance with this section if:

(a) the specimen is a live animal or a live plant; and

(b) the specimen is for use in a program the object of which is the establishment and/or maintenance of a breeding population; and

(c) the program is a program that, under the regulations, is taken to be an approved co‑operative conservation program; and

(d) the import is not primarily for commercial purposes; and

(e) such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.

303FG Export or import of household pets

Export of live native animals

(1) The export of a live native animal (other than a CITES specimen) is an export of a household pet in accordance with this section if:

(a) the animal is included in the list referred to in subsection (4); and

(b) the export is not primarily for commercial purposes; and

Export of live CITES specimens

(2) The export of a CITES specimen is an export of a household pet in accordance with this section if:

(a) the specimen is a live animal; and

(b) if the animal is a native animal—the animal is included in the list referred to in subsection (4); and

(d) such other conditions as are specified in the regulations have been, or are likely to be, satisfied.

Import of live animals

(3) The import of a live animal is an import of a household pet in accordance with this section if:

(a) the conditions specified in the regulations have been, or are likely to be, satisfied; and

(b) the import is not primarily for commercial purposes; and

Listing of native household pet animals

(4) The Minister must, by instrument published in the Gazette, establish a list of native household pet animals.

(5) The list, as first established, must contain the animals referred to in Schedule 7 to the Wildlife Protection (Regulation of Exports and Imports) Act 1982, as in force immediately before the commencement of this section.

(6) The Minister may, by instrument in the Gazette, amend the list referred to in subsection (4) by:

(a) including items in the list; or

(b) deleting items from the list; or

(7) An instrument under subsection (6) (other than an instrument mentioned in paragraph (6)(c)) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

303FH Export or import of personal items

(1) The export of a specimen is an export of a personal item in accordance with this section if:

(a) the specimen is not a live specimen; and

(b) the export is not primarily for commercial purposes; and

(2) The import of a specimen is an import of a personal item in accordance with this section if:

(a) the specimen is not a live specimen; and

(b) the import is not primarily for commercial purposes; and

303FI Export or import for the purposes of a travelling exhibition

(1) The export of a specimen is an export for the purposes of a travelling exhibition in accordance with this section if:

(a) the export is not primarily for commercial purposes; and

(b) the conditions specified in the regulations have been, or are likely to be, satisfied.

(2) The import of a specimen is an import for the purposes of a travelling exhibition in accordance with this section if:

(a) the import is not primarily for commercial purposes; and

(b) the conditions specified in the regulations have been, or are likely to be, satisfied.

Subdivision B—Commercial purpose exports and imports

303FJ Eligible commercial purpose exports

For the purposes of this Part, the export of a specimen is an eligible commercial purpose export if, and only if:

(a) the export of the specimen would be an export from an approved captive breeding program in accordance with section 303FK; or

(b) the export of the specimen would be an export from an approved artificial propagation program in accordance with section 303FL; or

(ba) the export of the specimen would be an export from an approved cultivation program in accordance with section 303FLA; or

(c) the export of the specimen would be an export from an approved aquaculture program in accordance with section 303FM; or

(d) the export of the specimen would be an export in accordance with an approved wildlife trade operation (section 303FN); or

(e) the export of the specimen would be an export in accordance with an approved wildlife trade management plan (section 303FO).

Note: See also subsection 303DD(3), which deals with accredited wildlife trade management plans.

303FK Export or import from an approved captive breeding program

(1) The export of a specimen is an export from an approved captive breeding program in accordance with this section if the specimen was sourced from a program that, under the regulations, is taken to be an approved captive breeding program.

(2) The export of a specimen is an export from an approved CITES‑registered captive breeding program in accordance with this section if the specimen was sourced from a program that, under the regulations, is taken to be an approved CITES‑registered captive breeding program.

(3) The import of a specimen is an import from an approved CITES‑registered captive breeding program in accordance with this section if the specimen was sourced from a program that, under the regulations, is taken to be an approved CITES‑registered captive breeding program.

303FL Export from an approved artificial propagation program

The export of a specimen is an export from an approved artificial propagation program in accordance with this section if the specimen was sourced from a program that, under the regulations, is taken to be an approved artificial propagation program.

303FLA Export from an approved cultivation program

The export of a specimen is an export from an approved cultivation program in accordance with this section if the specimen was sourced from a program that, under the regulations, is taken to be an approved cultivation program.

303FM Export from an approved aquaculture program

The export of a specimen is an export from an approved aquaculture program in accordance with this section if the specimen was sourced from a program that, under the regulations, is taken to be an approved aquaculture program.

303FN Approved wildlife trade operation

(1) The export of a specimen is an export in accordance with an approved wildlife trade operation if the specimen is, or is derived from, a specimen that was taken in accordance with a wildlife trade operation declared by a declaration in force under subsection (2) to be an approved wildlife trade operation.

(2) The Minister may, by instrument published in the Gazette, declare that a specified wildlife trade operation is an approved wildlife trade operation for the purposes of this section.

(3) The Minister must not declare an operation under subsection (2) unless the Minister is satisfied that:

(a) the operation is consistent with the objects of this Part; and

(b) the operation will not be detrimental to:

(i) the survival of a taxon to which the operation relates; or

(ii) the conservation status of a taxon to which the operation relates; and

(ba) the operation will not be likely to threaten any relevant ecosystem including (but not limited to) any habitat or biodiversity; and

(c) if the operation relates to the taking of live specimens that belong to a taxon specified in the regulations—the conditions that, under the regulations, are applicable to the welfare of the specimens are likely to be complied with; and

(d) such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.

(4) In deciding whether to declare an operation under subsection (2), the Minister must have regard to:

(a) the significance of the impact of the operation on an ecosystem (for example, an impact on habitat or biodiversity); and

(b) the effectiveness of the management arrangements for the operation (including monitoring procedures).

(5) In deciding whether to declare an operation under subsection (2), the Minister must have regard to:

(a) whether legislation relating to the protection, conservation or management of the specimens to which the operation relates is in force in the State or Territory concerned; and

(b) whether the legislation applies throughout the State or Territory concerned; and

(6) A declaration under subsection (2) ceases to be in force at the beginning of the third anniversary of the day on which the declaration took effect. However, this rule does not apply if a period of less than 3 years is specified in the declaration in accordance with subsection 303FT(4).

(7) If a declaration ceases to be in force, this Act does not prevent the Minister from making a fresh declaration under subsection (2).

(8) A fresh declaration may be made during the 90‑day period before the time when the current declaration ceases to be in force.

(9) A fresh declaration that is made during that 90‑day period takes effect immediately after the end of that period.

(10) For the purposes of this section, an operation is a wildlife trade operation if, and only if, the operation is an operation for the taking of specimens and:

(a) the operation is an operation that, under the regulations, is taken to be a market‑testing operation; or

(b) the operation is an operation that, under the regulations, is taken to be a small‑scale operation; or

(d) the operation is a commercial fishery; or

(e) the operation is an operation that, under the regulations, is taken to be a provisional operation; or

(f) the operation is an operation of a kind specified in the regulations.

(10A) In deciding whether to declare that a commercial fishery is an approved wildlife trade operation for the purposes of this section, the Minister must rely primarily on the outcomes of any assessment in relation to the fishery carried out for the purposes of Division 1 or 2 of Part 10.

(10B) Subsection (10A) does not limit the matters that may be taken into account in deciding whether to declare that a fishery is an approved wildlife trade operation for the purposes of this section.

(11) In this section:

fish includes all species of bony fish, sharks, rays, crustaceans, molluscs and other marine organisms, but does not include marine mammals or marine reptiles.

fishery means a class of activities by way of fishing, including activities identified by reference to all or any of the following:

(a) a species or type of fish;

(b) a description of fish by reference to sex or any other characteristic;

(d) a method of fishing;

(e) a class of vessels;

(f) a class of persons;

(g) a purpose of activities.

303FO Approved wildlife trade management plan

(1) The export of a specimen is an export in accordance with an approved wildlife trade management plan if the specimen is, or is derived from, a specimen that was taken in accordance with a plan declared by a declaration in force under subsection (2) to be an approved wildlife trade management plan.

(2) The Minister may, by instrument published in the Gazette, declare that a specified plan is an approved wildlife trade management plan for the purposes of this section.

(3) The Minister must not declare a plan under subsection (2) unless the Minister is satisfied that:

(a) the plan is consistent with the objects of this Part; and

(b) there has been an assessment of the environmental impact of the activities covered by the plan, including (but not limited to) an assessment of:

(i) the status of the species to which the plan relates in the wild; and

(ii) the extent of the habitat of the species to which the plan relates; and

(iii) the threats to the species to which the plan relates; and

(iv) the impacts of the activities covered by the plan on the habitat or relevant ecosystems; and

(c) the plan includes management controls directed towards ensuring that the impacts of the activities covered by the plan on:

(i) a taxon to which the plan relates; and

(ii) any taxa that may be affected by activities covered by the plan; and

(iii) any relevant ecosystem (for example, impacts on habitat or biodiversity);

are ecologically sustainable; and

(d) the activities covered by the plan will not be detrimental to:

(i) the survival of a taxon to which the plan relates; or

(ii) the conservation status of a taxon to which the plan relates; or

(iii) any relevant ecosystem (for example, detriment to habitat or biodiversity); and

(e) the plan includes measures:

(i) to mitigate and/or minimise the environmental impact of the activities covered by the plan; and

(ii) to monitor the environmental impact of the activities covered by the plan; and

(iii) to respond to changes in the environmental impact of the activities covered by the plan; and

(f) if the plan relates to the taking of live specimens that belong to a taxon specified in the regulations—the conditions that, under the regulations, are applicable to the welfare of the specimens are likely to be complied with; and

(g) such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.

(4) In deciding whether to declare a plan under subsection (2), the Minister must have regard to:

(a) whether legislation relating to the protection, conservation or management of the specimens to which the plan relates is in force in the State or Territory concerned; and

(b) whether the legislation applies throughout the State or Territory concerned; and

(5) A declaration under subsection (2) ceases to be in force at the beginning of the fifth anniversary of the day on which the declaration took effect. However, this rule does not apply if a period of less than 5 years is specified in the declaration in accordance with subsection 303FT(4).

(6) If a declaration ceases to be in force, this Act does not prevent the Minister from making a fresh declaration under subsection (2).

(7) A fresh declaration may be made during the 90‑day period before the time when the current declaration ceases to be in force.

(8) A fresh declaration that is made during that 90‑day period takes effect immediately after the end of that period.

303FP Accredited wildlife trade management plan

(1) The export of a specimen is an export in accordance with an accredited wildlife trade management plan if the specimen is, or is derived from, a specimen that was taken in accordance with a plan declared by a declaration in force under subsection (2) to be an accredited wildlife trade management plan.

(2) The Minister may, by instrument published in the Gazette, declare that a specified plan is an accredited wildlife trade management plan for the purposes of this section.

(3) The Minister must not declare a plan under subsection (2) unless the Minister is satisfied that:

(a) the plan is in force under a law of the Commonwealth or of a State or Territory; and

(b) the conditions set out in subsection 303FO(3) have been met in relation to the plan; and

(d) the compliance and enforcement measures relating to the plan are likely to be effective in preventing specimens taken in breach of the plan from being traded or exported; and

(e) the plan provides for the monitoring of:

(i) the taking of specimens under the plan; and

(ii) the export of specimens taken under the plan; and

(iii) the status of the species to which the plan relates in the wild; and

(iv) the impacts of the activities under the plan on the habitat of the species to which the plan relates; and

(f) the plan provides for statistical reports about specimens taken under the plan to be given to the Minister on a regular basis; and

(g) such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.

(4) A declaration under subsection (2) ceases to be in force at the beginning of the fifth anniversary of the day on which the declaration took effect. However, this rule does not apply if a period of less than 5 years is specified in the declaration in accordance with subsection 303FT(4).

(5) If a declaration ceases to be in force, this Act does not prevent the Minister from making a fresh declaration under subsection (2).

(6) A fresh declaration may be made during the 90‑day period before the time when the current declaration ceases to be in force.

(7) A fresh declaration that is made during that 90‑day period takes effect immediately after the end of that period.

(8) The Minister must publish on the internet copies of reports given as mentioned in paragraph (3)(f).

(9) The Minister is not required to comply with subsection (8) to the extent to which compliance could reasonably be expected to:

(a) prejudice substantially the commercial interests of a person; or

(b) be detrimental to:

(i) the survival of a taxon to which the plan relates; or

(ii) the conservation status of a taxon to which the plan relates.

303FQ Consultation with State and Territory agencies

Before making a declaration under section 303FO or 303FP, the Minister must consult a relevant agency of each State and self‑governing Territory affected by the declaration.

303FR Public consultation

(1) Before making a declaration under section 303FN, 303FO or 303FP, the Minister must cause to be published on the internet a notice:

(a) setting out the proposal to make the declaration; and

(b) setting out sufficient information to enable persons and organisations to consider adequately the merits of the proposal; and

(c) inviting persons and organisations to give the Minister, within the period specified in the notice, written comments about the proposal.

(2) A period specified in a notice under subsection (1) must not be shorter than 20 business days after the date on which the notice was published on the internet.

(3) In making a decision about whether to make a declaration under section 303FN, 303FO or 303FP, the Minister must consider any comments about the proposal to make the declaration that were given in response to an invitation under subsection (1).

303FRA Assessments

(1) The regulations may prescribe an assessment process that is to be used for the purposes of sections 303FN, 303FO and 303FP to assess the potential impacts on the environment of:

(a) a wildlife trade operation; or

(b) the activities covered by a plan;

where the operation is, or the activities are, likely to have a significant impact on the environment.

(2) If regulations made for the purposes of subsection (1) apply to a wildlife trade operation or to a plan, the Minister must not declare:

(a) the operation under subsection 303FN(2); or

(b) the plan under subsection 303FO(2) or 303FP(2);

unless the assessment process prescribed by those regulations has been followed in relation to the assessment of the operation or plan, as the case may be.

(3) Without limiting subsection (1), regulations made for the purposes of that subsection may make provision for:

(a) the application of Part 8 (except sections 82, 83 and 84) and the other provisions of this Act (so far as they relate to that Part) in relation to the assessment process, subject to such modifications as are specified in the regulations; and

(b) exemptions from the assessment process.

(4) In this section:

modifications includes additions, omissions and substitutions.

wildlife trade operation has the same meaning as in subsection 303FN(10), but does not include an operation mentioned in paragraph 303FN(10)(d).

303FS Register of declarations

(1) The Minister must cause to be maintained a register that sets out declarations made under section 303FN, 303FO or 303FP.

(2) The register may be maintained by electronic means.

(3) The register is to be made available for inspection on the internet.

303FT Additional provisions relating to declarations

(1) This section applies to a declaration under section 303FN, 303FO or 303FP.

(2) A declaration may be made:

(a) on the Minister’s own initiative; or

(b) on written application being made to the Minister.

(3) The Minister may make a declaration about a plan or operation even though he or she considers that the plan or operation should be the subject of the declaration only to the extent that the plan or operation relates to a particular class of specimens. In such a case:

(a) the instrument of declaration is to specify that class of specimens; and

(b) the plan or operation is covered by the declaration only to the extent that the plan or operation relates to that class of specimens.

(4) The Minister may make a declaration about a plan or operation even though he or she considers that the plan or operation should be the subject of the declaration only:

(a) during a particular period; or

(b) while certain circumstances exist; or

In such a case, the instrument of declaration is to specify the period, circumstances or condition.

(5) If a declaration specifies a particular period as mentioned in subsection (4), the declaration ceases to be in force at the end of that period.

(6) If a declaration specifies circumstances as mentioned in subsection (4), the Minister must, by instrument published in the Gazette, revoke the declaration if he or she is satisfied that those circumstances have ceased to exist.

(7) The Minister may, by instrument published in the Gazette, vary a declaration by:

(a) specifying one or more conditions (or further conditions) to which the declaration is subject; or

(b) revoking or varying a condition:

(i) specified in the instrument of declaration; or

(ii) specified under paragraph (a).

(8) A condition may relate to reporting or monitoring.

(9) The Minister must, by instrument published in the Gazette, revoke a declaration if he or she is satisfied that a condition of the declaration has been contravened.

(10) The Minister may, by instrument published in the Gazette, revoke a declaration at any time.

(11) A copy of an instrument under section 303FN, 303FO or 303FP or this section is to be made available for inspection on the internet.

303FU Approved commercial import program

The import of a specimen is an import from an approved commercial import program in accordance with this section if the specimen is sourced from a program that, under the regulations, is taken to be an approved commercial import program.

Division 6—Miscellaneous

303GA Permit decision—controlled action, and action for which a non‑Part 13A permit is required

(1) This section applies if:

(a) an application is made under section 303CE, 303DE or 303EL for a permit (the first permit) to authorise the taking of an action (the proposed action); and

(b) the Minister considers that:

(i) the proposed action may be or is a controlled action; or

(ii) the proposed action is related to an action (the related action) that may be or is a controlled action; or

(iii) the proposed action is an action for which a non‑Part 13A permit is required; or

(iv) the proposed action is related to an action (the related action) that is an action for which a non‑Part 13A permit is required.

Deferral of decision

(2) The Minister must neither issue, nor refuse to issue, the first permit before whichever is the latest of the following days:

(a) if subparagraph (1)(b)(i) applies—the day on which the Minister makes a decision under section 75 about whether the proposed action is a controlled action;

(b) if subparagraph (1)(b)(i) applies and the Minister makes a decision under section 75 that the proposed action is a controlled action—the day on which the Minister makes a decision under section 133 approving, or refusing to approve, the taking of the controlled action;

(c) if subparagraph (1)(b)(ii) applies—the day on which the Minister makes a decision under section 75 about whether the related action is a controlled action;

(d) if subparagraph (1)(b)(ii) applies and the Minister makes a decision under section 75 that the related action is a controlled action—the day on which the Minister makes a decision under section 133 approving, or refusing to approve, the taking of the controlled action;

(e) if subparagraph (1)(b)(iii) applies—the day on which a decision is made to issue, or to refuse to issue, the non‑Part 13A permit referred to in that subparagraph;

(f) if subparagraph (1)(b)(iv) applies—the day on which a decision is made to issue, or to refuse to issue, the non‑Part 13A permit referred to in that subparagraph.

Refusal of permit

(3) The Minister must not issue the first permit if:

(a) subparagraph (1)(b)(i) applies; and

(b) the Minister makes a decision under section 75 that the proposed action is a controlled action; and

(4) The Minister must not issue the first permit if:

(a) subparagraph (1)(b)(ii) applies; and

(b) the Minister makes a decision under section 75 that the related action is a controlled action; and

(5) The Minister must not issue the first permit if:

(a) subparagraph (1)(b)(iii) applies; and

(b) a decision is made to refuse to issue the non‑Part 13A permit referred to in that subparagraph.

(6) The Minister must not issue the first permit if:

(a) subparagraph (1)(b)(iv) applies; and

(b) a decision is made to refuse to issue the non‑Part 13A permit referred to in that subparagraph.

Action for which a non‑Part 13A permit is required

(7) For the purposes of this section, an action that a person proposes to take is an action for which a non‑Part 13A permit is required if the taking of the action by the person without a non‑Part 13A permit would be prohibited by this Act or the regulations if it were assumed that this Part had not been enacted.

(8) For the purposes of this section, a non‑Part 13A permit is a permit issued under this Act (other than this Part) or the regulations.

Related action

(9) For the purposes of this section, if a specimen was taken, the action of exporting or importing the specimen is related to:

(a) that taking; and

(b) any action that affected the specimen after that taking and before that export or import.

(10) For the purposes of this section, if a specimen is derived from a specimen that was taken, the action of exporting or importing the first‑mentioned specimen is related to:

(a) that taking; and

(b) any action that affected the first‑mentioned specimen, or either of those specimens, after that taking and before that export or import.

303GB Exceptional circumstances permit

(1) If:

(a) the Minister is considering an application by a person for a permit to be issued under section 303CG, 303DG or 303EN in relation to a specimen; and

(b) under this Part, the Minister is precluded from issuing that permit unless the Minister is satisfied in relation to a matter; and

(i) the export or import of the specimen, as the case may be, would not be contrary to the objects of this Part; and

(ii) exceptional circumstances exist that justify the proposed export or import of the specimen; and

(iii) the export or import of the specimen, as the case may be, would not adversely affect biodiversity;

the Minister may issue a permit to the person.

(1A) The Minister must not issue a permit under this section unless the grant of that permit would not be contrary to CITES.

(2) A permit under this section authorises the holder of the permit to take the action or actions specified in the permit, in the permitted period, without breaching section 303CC, 303CD, 303DD or 303EK.

(a) if the permit relates to a CITES specimen—6 months after that date; or

(b) if the permit relates to a specimen other than a CITES specimen—12 months after that date.

Duration of permit

(3) A permit under this section:

(a) comes into force on the date on which it is issued; and

(b) unless it is sooner cancelled, remains in force until all of the following periods have ended:

(i) the permitted period (within the meaning of subsection (2A));

(ii) each period for which one or more conditions of the permit are expressed to apply.

Further information

(5) The Minister may, within 40 business days after an application is made as mentioned in subsection (1), request the applicant to give the Minister, within the period specified in the request, further information for the purpose of enabling the Minister to deal with the application.

(6) The Minister may refuse to consider the application until the applicant gives the Minister the information in accordance with the request.

Public consultation

(7) Before issuing a permit under this section, the Minister must cause to be published on the internet a notice:

(a) setting out the proposal to issue the permit; and

(b) setting out sufficient information to enable persons and organisations to consider adequately the merits of the proposal; and

(c) inviting persons and organisations to give the Minister, within the period specified in the notice, written comments about the proposal.

(8) A period specified in a notice under subsection (7) must not be shorter than 5 business days after the date on which the notice was published on the internet.

(9) In making a decision under subsection (1) about whether to issue a permit, the Minister must consider any comments about the proposal to issue the permit that were given in response to an invitation under subsection (7).

303GC Permit authorising the Secretary to export or import specimens

(1) The Secretary may apply to the Minister for a permit to be issued under subsection (2).

(2) The Minister may, on application made by the Secretary under subsection (1), issue a permit to the Secretary. This subsection has effect subject to subsections (4) and (5).

(3) A permit under subsection (2) authorises the Secretary to take the action or actions specified in the permit, in the permitted period, without breaching section 303CC, 303CD, 303DD or 303EK.

(3A) For the purpose of subsection (3), the permitted period is the period specified in the permit as the period during which the action or actions specified in the permit may be taken. The period so specified must start on the date of issue of the permit and end not later than 12 months after that date.

(4) The Minister must not issue a permit under this section to export a specimen unless the Minister is satisfied that:

(a) both:

(i) the recipient of the specimen will be a relevant CITES authority of a country; and

(ii) the specimen will be used by that relevant CITES authority for the purpose of the identification of a specimen and/or for the purpose of education or training; or

(b) both:

(i) the specimen has been seized under this Act; and

(ii) the specimen will be used to facilitate investigations in or outside Australia in relation to trade relating to wildlife.

(5) The Minister must not issue a permit under this section to import a specimen unless the Minister is satisfied that:

(a) the specimen will be used by the Secretary for the purposes of the identification of a specimen; or

(b) both:

(i) the sender of the specimen will be a relevant CITES authority of a country; and

(ii) the specimen will be used for the purpose of the identification of a specimen and/or for the purpose of education or training; or

(i) this Part; or

(ii) the Wildlife Protection (Regulation of Exports and Imports) Act 1982; or

(d) the specimen will be used to facilitate investigations in or outside Australia in relation to trade relating to wildlife.

(6) A permit under this section:

(a) comes into force on the date on which it is issued; and

(b) unless it is sooner cancelled, remains in force until all of the following periods have ended:

(i) the permitted period (within the meaning of subsection (3A));

(ii) each period for which one or more conditions of the permit are expressed to apply.

303GD Testing permit—section 303EE assessments

Applications for permits

(1) A person may, in accordance with the regulations, apply to the Minister for a permit to be issued under subsection (5).

(2) The application must be accompanied by the fee (if any) prescribed by the regulations.

Further information

(3) The Minister may, within 40 business days after the application is made, request the person to give the Minister, within the period specified in the request, further information for the purpose of enabling the Minister to deal with the application.

(4) The Minister may refuse to consider the application until the person gives the Minister the information in accordance with the request.

Minister may issue permits

(5) The Minister may, on application made by a person under subsection (1), issue a permit to the person. This subsection has effect subject to subsections (7) and (8).

(6) A permit authorises its holder to take the action or actions specified in the permit, in the permitted period, without breaching section 303EK.

(6A) For the purpose of subsection (6), the permitted period is the period specified in the permit as the period during which the action or actions specified in the permit may be taken. The period so specified must start on the date of issue of the permit and end not later than 6 months after that date.

(7) The Minister must not issue a permit to a person unless the Minister is satisfied that:

(a) the person has made an application to the Minister under section 303EE for the list referred to in section 303EB to be amended by including an item; and

(b) if the proposed amendment were made, the specimen would be covered by the item; and

(d) if an assessment is to be made under subsection 303EE(3) of the potential impacts on the environment of the proposed amendment—the terms of reference for a report on the assessment have been:

(i) prepared as mentioned in paragraph 303EF(1)(a); or

(ii) finalised as mentioned in subparagraph 303EF(1)(b)(iii); and

(e) the person proposes to conduct tests on the specimen in Australia in order to obtain information for the assessment; and

(f) the information is required for the assessment; and

(g) it is not reasonably practicable for the person to obtain the information without conducting the tests in Australia; and

(h) the tests will be conducted in a controlled environment.

(8) The Minister must not issue a permit under this section unless the permit is subject to one or more conditions about holding the specimen in quarantine.

Duration of permit

(9) A permit under this section:

(a) comes into force on the date on which it is issued; and

(b) unless it is sooner cancelled, remains in force until all of the following periods have ended:

(i) the permitted period (within the meaning of subsection (6A));

(ii) each period for which one or more conditions of the permit are expressed to apply.

Investigations

(10) A reference in this section to tests on the specimen includes a reference to investigations relating to the specimen.

303GE Conditions of permits

(1) This section applies to a permit issued under this Part.

(2) A permit is subject to such conditions as are specified in the permit or as are imposed under subsection (3).

(3) The Minister may, in accordance with the regulations:

(a) vary or revoke a condition of a permit; or

(b) impose further conditions of a permit.

(4) The Minister’s powers under subsection (3) may be exercised:

(a) on the Minister’s own initiative; or

(b) on the application of the holder of the permit concerned.

(5) If a permit authorises its holder to take a particular action, a condition of the permit may require the holder to do, or not do, an act or thing before, at or after the time when the action takes place.

(5A) Without limiting subsection (5), a condition of a permit may be expressed to apply for a period that will not end until after the export or import of a specimen under the permit has occurred, including for example:

(a) a period the length of which is known when the condition is imposed (such as a period that is expressed as a specified number of years); or

(b) a period the length of which is unknown when the condition is imposed (such as a period that is expressed as the life of the specimen, or the life of progeny of the specimen).

Note: Conditions may, for example, relate to how a specimen, and its progeny, are kept or dealt with during their lifetimes.

(6) If a person is given an authority under section 303GG by the holder of a permit, subsections (5) and (5A) apply to the person in a corresponding way to the way in which they apply to the holder of the permit.

(7) Subsections (4), (5), (5A) and (6) are to be disregarded in determining the meaning of a provision of this Act (other than a provision of this Part) that relates to conditions of permits issued otherwise than under this Part.

303GF Contravening conditions of a permit

(1) This section applies to a permit issued under this Part.

(2) A person is guilty of an offence if:

(a) the person is:

(i) the holder of a permit; or

(ii) a person to whom an authority under section 303GG has been given by the holder of a permit; and

(b) the person engages in conduct; and

Penalty: 300 penalty units.

(3) The holder of a permit is guilty of an offence if:

(a) the person is:

(i) the holder of a permit; or

(ii) a person to whom an authority under section 303GG has been given by the holder of a permit; and

(b) the person engages in conduct; and

(d) the condition relates to:

(i) the sale or other disposal of a live animal or a live plant; or

(ii) the sale or other disposal of the progeny of a live animal or a live plant; or

(iii) the release from captivity of a live animal; or

(iv) the release from captivity of the progeny of a live animal; or

(v) the escape of a live plant.

Penalty: 600 penalty units.

(4) For the purposes of subsection (3), a person is taken to have released an animal from captivity if:

(a) that animal has escaped from captivity; and

(b) either:

(i) the person allowed the animal to escape; or

(ii) the person failed to take all reasonable measures to prevent the animal from escaping.

(4A) For the purposes of subsection (3), a person is taken to have allowed a plant to escape if:

(a) the plant has grown or propagated in the wild; and

(b) either:

(i) the person allowed the plant to escape; or

(ii) the person failed to take all reasonable measures to prevent the plant from growing or propagating in the wild.

(5) In subsections (2) and (3), strict liability applies to the circumstance that the person was given an authority under section 303GG.

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

303GG Authorities under permits

(1) This section applies to a permit issued under this Part.

(2) Except as provided in this section, a permit does not authorise the taking of any action by a person for or on behalf of the holder of the permit.

(3) Subject to subsection (4), the holder of a permit may give a person written authority to take for or on behalf of the holder any action authorised by the permit. The authority may be given generally or as otherwise provided by the instrument of authority.

(4) The holder of a permit must not give an authority unless:

(a) the permit contains a condition permitting the holder to do so; and

(b) the authority is given in accordance with any requirements set out in the condition.

(5) A permit is, for the purposes of this Act, taken to authorise the taking of a particular action by a person if the taking of that action by the person is authorised by an authority given by the holder of the permit.

(6) The giving of an authority does not prevent the taking of any action by the holder of the permit.

(7) A person who gives an authority must give to the Minister written notice of it within 14 days after giving the authority.

303GH Transfer of permits

(1) This section applies to a permit issued under this Part.

(2) On the application, in accordance with the regulations, of the holder of a permit, the Minister may, in accordance with the regulations, transfer the permit to another person.

(3) In deciding whether to transfer the permit to another person, the Minister must consider whether the transferee is a suitable person to hold the permit, having regard to the matters set out in the regulations.

303GI Suspension or cancellation of permits

(1) This section applies to a permit issued under this Part.

(2) The Minister may, in accordance with the regulations:

(a) suspend a permit for a specified period; or

(b) cancel a permit.

303GJ Review of decisions

(1) Subject to subsection (2), an application may be made to the Administrative Appeals Tribunal for review of a decision:

(a) to issue or refuse a permit; or

(b) to specify, vary or revoke a condition of a permit; or

(d) to transfer or refuse to transfer a permit; or

(e) to suspend or cancel a permit; or

(f) to issue or refuse a certificate under subsection 303CC(5); or

(g) of the Secretary under a determination in force under section 303EU; or

(h) to make or refuse a declaration under section 303FN, 303FO or 303FP; or

(i) to vary or revoke a declaration under section 303FN, 303FO or 303FP.

(2) Subsection (1) does not apply to a decision made personally by the Minister (but the subsection does apply to a decision made by a delegate of the Minister).

(3) In this section:

permit means a permit under this Part.

303GK Permit to be produced

Export permit

(1) For the purposes of this Part, if the holder of a permit to export a specimen exports that specimen, he or she is not to be taken to have exported that specimen in accordance with that permit unless, before exporting the specimen, he or she:

(a) produced the permit, or caused the permit to be produced, to an authorised officer doing duty in relation to the export of the specimen; or

(b) received written notice from the Secretary authorising the export of the specimen without the production of the permit.

(2) The Secretary must not give the notice referred to in paragraph (1)(b) unless he or she:

(a) is satisfied that the production of the permit is impracticable; and

(b) endorses a copy of the permit to show that the notice is being given; and

Import permit

(3) For the purposes of this Part, if the holder of a permit to import a specimen imports that specimen, he or she is not to be taken to have imported that specimen in accordance with that permit unless, before or within a reasonable time after importing the specimen, he or she produced the permit, or caused the permit to be produced, to an authorised officer doing duty in relation to the import of the specimen.

Authorities under section 303GG

(4) If a person is given an authority under section 303GG by the holder of a permit, this section applies to the person in a corresponding way to the way in which it applies to the holder of the permit.

303GL Pre‑CITES certificate to be produced

Export certificate

(1) If a person exports a specimen and wishes to rely on a certificate issued under subsection 303CC(5), he or she is not entitled to rely on that certificate unless, before exporting the specimen, he or she:

(a) produced the certificate, or caused the certificate to be produced, to an authorised officer doing duty in relation to the export of the specimen; or

(b) received written notice from the Secretary authorising the export of the specimen without the production of the certificate.

(2) The Secretary must not give the notice referred to in paragraph (1)(b) unless he or she:

(a) is satisfied that the production of the certificate is impracticable; and

(b) endorses a copy of the certificate to show that the notice is being given; and

Import certificate

(3) If a person imports a specimen and wishes to rely on a certificate referred to in paragraph 303CD(6)(b), he or she is not entitled to rely on the certificate unless, before or within a reasonable time after importing the specimen, he or she produced the certificate, or caused the certificate to be produced, to an authorised officer doing duty in relation to the import of the specimen.

303GM Fees

(1) This section applies to a permit under this Part.

(2) Such fees (if any) as are prescribed are payable in respect of the following:

(a) the issue or the transfer of a permit;

(b) the variation or revocation of a condition of a permit;

303GN Possession of illegally imported specimens

Object

(1) The object of this section is:

(a) to comply with Australia’s obligations under:

(i) the Biodiversity Convention; and

(ii) CITES; and

(b) to otherwise further the objects of this Part;

by prohibiting the possession of illegally imported specimens and the progeny of such specimens.

Note: See Article 8 of the Biodiversity Convention.

Possession of CITES specimens and unlisted regulated live specimens

(2) A person is guilty of an offence if:

(a) the person has in the person’s possession, in the Australian jurisdiction, a specimen; and

(b) the specimen is:

(i) a CITES specimen; or

(ii) a regulated live specimen that is not included in the list referred to in section 303EB;

and the person is reckless as to that fact; and

Penalty: Imprisonment for 5 years or 1,000 penalty units, or both.

(3) Subsection (2) does not apply if:

(a) the specimen was lawfully imported; or

(b) the specimen was not imported, but all of the specimens of which it is the progeny were lawfully imported.

Note 1: For lawfully imported, see section 303GY.

Note 2: The defendant bears an evidential burden in relation to the matters in subsection (3) (see subsection 13.3(3) of the Criminal Code).

(4) Subsection (2) does not apply if the specimen was neither imported, nor the progeny of any other specimen that was imported.

Note: The defendant bears an evidential burden in relation to the matters in subsection (4) (see subsection 13.3(3) of the Criminal Code).

(5) Subsection (2) does not apply if the defendant has a reasonable excuse.

Note: The defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code).

Possession of listed regulated live specimens

(6) A person is guilty of an offence if:

(a) the person has in the person’s possession, in the Australian jurisdiction, a specimen; and

(b) the specimen is a regulated live specimen that is included in Part 2 of the list referred to in section 303EB, and the person is reckless as to that fact; and

(d) either:

(i) the specimen was unlawfully imported; or

(ii) the specimen was not imported, but any of the specimens of which it is the progeny was unlawfully imported.

Penalty: Imprisonment for 5 years or 1,000 penalty units, or both.

(7) Subsection (6) does not apply if the defendant has a reasonable excuse.

Note: The defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).

Unlawfully imported

(8) For the purposes of this section, a specimen is unlawfully imported if, and only if, it was imported, but was not lawfully imported (section 303GY).

303GO Regulations relating to welfare

(1) This section applies to regulations made for the purposes of paragraph 303CG(3)(c), 303DG(4)(b), 303EN(3)(e), 303FN(3)(c) or 303FO(3)(f).

(2) The conditions specified in those regulations in relation to a live animal may:

(a) deal with the welfare of the animal:

(i) when the animal is taken; or

(ii) when the animal is being held after it has been taken; or

(iii) when the animal is being prepared or shipped; or

(iv) when the animal is under the control of the proposed recipient; and

(b) may deal with eliminating or minimising the risk of:

(i) injury to the animal; or

(ii) adverse effects on the health of the animal; or

(iii) cruel treatment of the animal.

(3) The conditions specified in those regulations in relation to a live plant may:

(a) deal with the welfare of the plant:

(i) when the plant is taken; or

(ii) when the plant is being held after it has been taken; or

(iii) when the plant is being prepared or shipped; or

(iv) when the plant is under the control of the proposed recipient; and

(b) may deal with eliminating or minimising the risk of:

(i) injury to the plant; or

(ii) adverse effects on the health of the plant.

(4) Subsections (2) and (3) do not limit paragraph 303CG(3)(c), 303DG(4)(b), 303EN(3)(e), 303FN(3)(c) or 303FO(3)(f).

303GP Cruelty—export or import of animals

(1) A person is guilty of an offence if:

(a) the person exports or imports a live animal in a manner that subjects the animal to cruel treatment; and

(b) the person knows that, or is reckless as to whether, the export or import subjects the animal to cruel treatment; and

(d) the person contravenes section 303CC or 303CD in relation to the export or import of the animal.

Penalty: Imprisonment for 2 years.

(2) A person is guilty of an offence if:

(a) the person exports a live animal in a manner that subjects the animal to cruel treatment; and

(b) the person knows that, or is reckless as to whether, the export subjects the animal to cruel treatment; and

(d) the person contravenes section 303DD in relation to the export of the animal.

Penalty: Imprisonment for 2 years.

(3) A person is guilty of an offence if:

(a) the person imports a live animal in a manner that subjects the animal to cruel treatment; and

(b) the person knows that, or is reckless as to whether, the import subjects the animal to cruel treatment; and

(d) the person contravenes section 303EK in relation to the import of the animal.

Penalty: Imprisonment for 2 years.

(4) This section does not limit section 303GE.

303GQ Imports of specimens contrary to the laws of a foreign country

(1) A person must not intentionally import a specimen if the person knows that:

(a) the specimen was exported from a foreign country; and

(b) at the time the specimen was exported, the export of the specimen was prohibited by a law of the foreign country that corresponds to this Part.

Penalty: Imprisonment for 5 years.

(2) A prosecution must not be instituted for an offence against this section unless a relevant CITES authority of the foreign country has requested:

(a) the investigation of the offence; or

(b) assistance in relation to a class of offences in which the offence is included.

303GR Evidence

(1) In any proceedings for an offence against this Part:

(a) any record kept in accordance with the regulations or another law of the Commonwealth or a law of a State or Territory is admissible as prima facie evidence of the facts stated in the record; and

(b) a copy of an entry in such a record, being a copy certified by the person by whom the record is kept to be a true copy of the entry, is admissible as prima facie evidence of the facts stated in the entry; and

(c) a document purporting to be a record kept in accordance with the regulations or another law of the Commonwealth, or a law of a State or Territory, or purporting to be such a certified copy as is referred to in paragraph (b), is taken, unless the contrary is established, to be such a record or certified copy, as the case may be.

(2) If, in any proceedings for an offence against this Part, a record referred to in paragraph (1)(a) is tendered as prima facie evidence of a fact stated in the record, the person alleged to have committed the offence may require the person who kept that record to be called as a witness for the prosecution in the proceedings.

303GS Evidence of examiner

(1) The Minister may, by writing, appoint appropriately qualified persons to be examiners for the purposes of this Part.

(2) Subject to subsection (4), a certificate signed by an examiner appointed under subsection (1) setting out, in relation to a substance, matter, specimen or thing, one or more of the following:

(a) that he or she is appointed as the examiner under subsection (1);

(b) when and from whom the substance, matter, specimen or thing was received;

(c) what labels or other means of identification accompanied the substance, matter, specimen or thing when it was received;

(d) what container held the substance, matter, specimen or thing when it was received;

(e) a description, including the weight, of the substance, matter, specimen or thing when it was received;

(f) the name of any method used to analyse the substance, matter, specimen or thing or any portion of it;

(g) the results of any such analysis;

(h) how the substance, matter, specimen or thing was dealt with after handling by the examiner, including details of:

(i) the quantity of the substance, matter, specimen or thing retained after analysis; and

(ii) names of any persons to whom any of the substance, matter, specimen or thing was given after analysis; and

(iii) measures taken to secure any retained quantity of the substance, matter, specimen or thing after analysis;

is admissible in any proceeding for an offence against this Part as prima facie evidence of the matters in the certificate and the correctness of the results of the analysis.

(3) For the purposes of this section, a document purporting to be a certificate referred to in subsection (2) is taken to be such a certificate unless the contrary is established.

(4) A certificate is not to be admitted in evidence in accordance with subsection (2) in proceedings for an offence against this Part unless:

(a) the person charged with the offence; or

(b) a solicitor who has appeared for the person in those proceedings;

has, at least 14 days before the certificate is sought to be admitted, been given a copy of the certificate together with reasonable notice of the intention to produce the certificate as evidence in the proceedings.

(5) Subject to subsection (6), if, under subsection (2), a certificate is admitted in evidence in proceedings for an offence against this Part, the person charged with the offence may require the person giving the certificate to be called as a witness for the prosecution and cross‑examined as if he or she had given evidence of the matters stated in the certificate.

(6) Subsection (5) does not entitle the person charged to require the person giving a certificate to be called as a witness for the prosecution unless:

(a) the prosecutor has been given at least 4 days notice of the person’s intention to require the examiner to be so called; or

(b) the court, by order, allows the person charged to require the person giving the certificate to be so called.

(7) Any evidence given in support, or in rebuttal, of a matter stated in a certificate given under subsection (2) must be considered on its merits and the credibility and probative value of such evidence must be neither increased nor diminished by reason of this section.

303GT Protection of witness

(1) A witness for the prosecution in any proceedings for an offence against this Part is not to be compelled to disclose:

(a) the fact that the witness received any information; or

(b) the nature of any information received by the witness; or

(2) An authorised officer who is a witness in any proceedings for an offence against this Part is not to be compelled to produce any report:

(a) that was made or received by the authorised officer in confidence in his or her capacity as an authorised officer; or

(b) that contains information received by the authorised officer in confidence.

(3) Subsections (1) and (2) are to be disregarded in determining the compellability of witnesses in proceedings for an offence against a provision of this Act other than this Part.

303GU Forms and declarations—persons arriving in Australia or an external Territory

The regulations may provide for forms to be completed, or declarations to be made, in relation to specimens by persons arriving in Australia or an external Territory.

303GV Saving of other laws

(1) This Part is in addition to the following laws:

(a) the Customs Act 1901;

(b) the Quarantine Act 1908;

(c) any other law of the Commonwealth or of an external Territory, whether passed or made before or after the commencement of this Part.

(2) The holder of a permit under this Part authorising the export or import of a specimen is not, by reason only of being the holder of the permit, exempt from compliance with any law referred to in paragraph (1)(a), (b) or (c) that applies in relation to that specimen.

(3) Without limiting subsection (1), this Part, and regulations made for the purposes of this Part, do not authorise or permit the doing of any act in contravention of the Quarantine Act 1908 or of a law of an external Territory relating to quarantine.

303GW Part not to apply to certain specimens

Transhipment

(1) For the purposes of this Part, if a specimen is brought into Australia from a country:

(a) for the purpose of transhipment to another country; or

(b) as part of an aircraft’s stores or ship’s stores;

that specimen:

(d) when it leaves Australia, is taken not to be exported from Australia.

(2) For the purposes of this Part, if a specimen is brought into an external Territory:

(a) for the purpose of transhipment to another country; or

(b) as part of an aircraft’s stores or ship’s stores;

that specimen:

(d) when it leaves that Territory, is taken not to be exported from that Territory.

(3) For the purposes of subsection (1), a specimen is to be taken to be brought into Australia for the purpose of transhipment to another country if, and only if:

(a) the specimen is brought into Australia in the course of being transported to an identified person in the other country; and

(b) any delay in its leaving Australia will be due solely to the arrangements for its transport; and

(4) For the purposes of subsection (2), a specimen is taken to be brought into an external Territory for the purpose of transhipment to another country if, and only if:

(a) the specimen is brought into that Territory in the course of being transported to an identified person in the other country; and

(b) any delay in its leaving that Territory will be due solely to the arrangements for its transport; and

Emergency

(5) For the purposes of this Part, if:

(a) the Minister, the Director of Animal and Plant Quarantine, a prescribed person or a prescribed organisation is satisfied that, in order to meet an emergency involving danger to the life or health of a human or an animal, it is necessary or desirable that a specimen that could be used in treating that person or animal should be sent out of, or brought into, Australia or an external Territory; and

(b) that specimen is sent out of, or brought into, Australia or that Territory, as the case requires, to meet that emergency;

that specimen is taken not to have been exported or imported, as the case may be.

Quarantine

(6) Subject to subsections (1), (2) and (5), if, in accordance with the Quarantine Act 1908 or a law of an external Territory relating to quarantine, a person exercising powers under that Act or law imports a specimen that is subject to quarantine, then, for the purposes of this Part, that specimen is taken to have been imported by:

(a) if a person holds a permit to import that specimen—the holder of that permit; or

(b) in any other case—a person whose identity is not known;

but this subsection does not affect the commission of any offence committed before the importation of that specimen.

Definitions

(7) In this section:

aircraft’s stores and ship’s stores have the same meanings respectively as they have in Part VII of the Customs Act 1901.

303GX Part not to apply to certain specimens used by traditional inhabitants

(1) In this section:

area in the vicinity of the Protected Zone means an area in respect of which a notice is in force under subsection (2).

Australian place means a place in Australia that is in the Protected Zone or in an area in the vicinity of the Protected Zone.

Papua New Guinea place means a place in Papua New Guinea that is in the Protected Zone or in an area in the vicinity of the Protected Zone.

prescribed specimen means a specimen of a kind specified in a notice in force under subsection (3).

Protected Zone means the zone established under Article 10 of the Torres Strait Treaty, being the area bounded by the line described in Annex 9 to that treaty.

Torres Strait Treaty means the Treaty between Australia and the Independent State of Papua New Guinea that was signed at Sydney on 18 December 1978.

traditional activities has the same meaning as in the Torres Strait Treaty.

traditional inhabitants has the same meaning as in the Torres Strait Fisheries Act 1984.

(2) The Minister may, by notice published in the Gazette, declare an area adjacent to the Protected Zone to be an area in the vicinity of the Protected Zone for the purposes of this section.

(3) The Minister may, by notice published in the Gazette, declare that a specimen of a kind specified in the notice is a prescribed specimen for the purposes of this section.

(4) For the purposes of this Part, if a prescribed specimen that is owned by, or is under the control of, a traditional inhabitant and that has been used, is being used or is intended to be used by him or her in connection with the performance of traditional activities in the Protected Zone or in an area in the vicinity of the Protected Zone, is:

(a) brought to an Australian place from a Papua New Guinea place; or

(b) taken from an Australian place to a Papua New Guinea place;

then, subject to subsection (5), that specimen:

(c) in the case where the specimen is brought into Australia as mentioned in paragraph (a)—is taken not to have been imported into Australia; and

(d) in the case where the specimen is taken from Australia as mentioned in paragraph (b)—is taken not to have been exported from Australia.

(5) If:

(a) a prescribed specimen that has been brought into Australia is, under subsection (4), taken not to have been imported into Australia; and

(b) that prescribed specimen is brought to a place in Australia that is not in the Protected Zone or in an area in the vicinity of the Protected Zone;

the prescribed specimen is taken to have been imported into Australia upon being brought to the place referred to in paragraph (b).

303GY When a specimen is lawfully imported

For the purposes of this Part, a specimen is lawfully imported if, and only if, it was imported and:

(a) in a case where the specimen was imported after the commencement of this Part—it was not imported in contravention of this Part; or

(b) in a case where the specimen was imported when the Wildlife Protection (Regulation of Exports and Imports) Act 1982 was in force—it was not imported in contravention of that Act; or

(c) in a case where the specimen was imported before the commencement of the Wildlife Protection (Regulation of Exports and Imports) Act 1982—it was not imported in contravention of:

(i) the Customs (Endangered Species) Regulations; or

(ii) the Customs (Prohibited Imports) Regulations.

Part 14—Conservation agreements

304 Object of this Part

(1) The object of this Part is to provide for:

(a) conservation agreements between the Commonwealth and persons related to the protection and conservation of the following:

(i) biodiversity;

(ii) the world heritage values of declared World Heritage properties;

(iii) the National Heritage values of National Heritage places;

(iv) the Commonwealth Heritage values of Commonwealth Heritage places;

(v) the ecological character of a declared Ramsar wetland;

(vi) the environment, in respect of the impact of a nuclear action;

(vii) the environment in a Commonwealth marine area;

(viii) the environment on Commonwealth land; and

(b) the effect of conservation agreements; and

(2) Conservation agreements are agreements whose primary object is to enhance the conservation of matters referred to in paragraph (1)(a). They may relate to private or public land, or to marine areas.

Note: Conservation agreements cannot cover all or part of a Commonwealth reserve (see subsection 305(4)).

305 Minister may enter into conservation agreements

(1) The Minister may, on behalf of the Commonwealth, enter into an agreement (a conservation agreement) with a person for the protection and conservation of all or any of the following:

(a) biodiversity in the Australian jurisdiction;

(b) the world heritage values of a declared World Heritage property in the Australian jurisdiction;

(d) the Commonwealth Heritage values of a Commonwealth Heritage place (whether inside or outside the Australian jurisdiction);

(e) the ecological character of a declared Ramsar wetland in the Australian jurisdiction;

(f) the environment, in respect of the impact of a nuclear action in the Australian jurisdiction;

(g) the environment in a Commonwealth marine area in the Australian jurisdiction;

(h) the environment on Commonwealth land in the Australian jurisdiction.

Note: Conservation agreements cannot cover all or part of a Commonwealth reserve (see subsection 305(4)).

(1A) The protection and conservation of the matters in subsection (1) include all or any of the following:

(a) the protection, conservation and management of any listed species or ecological communities, or their habitats;

(b) the management of things in a way necessary for the protection and conservation of:

(i) the world heritage values of a declared World Heritage property; or

(ii) the National Heritage values of a National Heritage place; or

(iii) the Commonwealth Heritage values of a Commonwealth Heritage place; or

(iv) the ecological character of a declared Ramsar wetland; or

(v) the environment, in respect of the impact of a nuclear action; or

(vi) the environment in a Commonwealth marine area; or

(vii) the environment on Commonwealth land;

(i) biodiversity; or

(ii) the world heritage values of a declared World Heritage property; or

(iii) the National Heritage values of a National Heritage place; or

(iv) the Commonwealth Heritage values of a Commonwealth Heritage place; or

(v) the ecological character of a declared Ramsar wetland; or

(vi) the environment, in respect of the impact of a nuclear action; or

(vii) the environment in a Commonwealth marine area; or

(viii) the environment on Commonwealth land.

Note: When the Minister is considering entering into a conservation agreement, the Minister must take into account any responsibilities of other Commonwealth Ministers that may be affected by the agreement.

(2) However, the Minister must not enter into a conservation agreement unless satisfied that:

(a) in the case of a proposed agreement wholly or partly for the protection and conservation of biodiversity—the agreement:

(i) will result in a net benefit to the conservation of biodiversity; and

(ii) is not inconsistent with a recovery plan, threat abatement plan or wildlife conservation plan; and

(b) in the case of a proposed agreement wholly or partly for the protection and conservation of heritage values—the agreement:

(i) will result in a net benefit to the conservation of those heritage values; and

(ii) is not inconsistent with at least one of the Australian World Heritage management principles, the National Heritage management principles and the Commonwealth Heritage management principles; and

(c) in the case of a proposed agreement wholly or partly for the protection and conservation of the ecological character of a declared Ramsar wetland—the agreement:

(i) will result in a net benefit to the conservation of that ecological character; and

(ii) is not inconsistent with the Australian Ramsar management principles; and

(d) in the case of a proposed agreement wholly or partly for the protection and conservation of the environment, in respect of the impact nuclear actions—the agreement does not relate to the construction or operation of any of the following nuclear installations:

(i) a nuclear fuel fabrication plant;

(ii) a nuclear power plant;

(iii) an enrichment plant;

(iv) a reprocessing facility; and

(e) in the case of a proposed agreement wholly or partly for the protection and conservation of the environment in a Commonwealth marine area—the agreement will result in a net benefit to the conservation of the environment in that area; and

(f) in the case of a proposed agreement wholly or partly for the protection and conservation of the environment on Commonwealth land—the agreement will result in a net benefit to the conservation of the environment on that land.

(3) For the purposes of subsection (2), in deciding whether a proposed agreement will result in a net benefit to the conservation as mentioned in paragraph (2)(a), (b), (c), (e) or (f), the Minister must have regard to the matters (if any) prescribed by the regulations.

(3A) If:

(a) the Minister is considering whether to enter into a proposed conservation agreement that is wholly or partly for the protection and conservation of biodiversity; and

(b) the agreement would or could affect a particular listed threatened species or listed threatened ecological community;

the Minister must, in deciding whether to enter into the agreement, have regard to any approved conservation advice for the species or community.

(4) A conservation agreement must not cover all or part of a Commonwealth reserve.

(5) Under subsection (1), the Minister may enter into a conservation agreement covering land with one of the following persons who has a usage right relating to the land:

(a) an indigenous person;

(b) a body corporate wholly owned by indigenous persons;

(c) a body corporate established by or under an Act for the purposes of holding for the benefit of indigenous persons land vested in it by or under that Act;

(d) the trustee of a trust that holds land for the benefit of indigenous persons.

This does not limit subsection (1).

(6) The Minister must take account of the following when entering into a conservation agreement that is wholly or partly for the protection and conservation of biodiversity as described in subsection (5):

(a) paragraph (j) of Article 8 of the Biodiversity Convention;

(b) paragraph (c) of Article 10 of the Biodiversity Convention;

(d) objective 1.8.2 of the National Strategy for the Conservation of Australia’s Biological Diversity, published by the Commonwealth in 1996.

306 Content of conservation agreements

(1) Without limiting section 305, a conservation agreement may provide, for example, for all or any of the following:

(a) activities that promote the protection and conservation of all or any of the following:

(i) biodiversity;

(ii) the world heritage values of a declared World Heritage property;

(iii) the National Heritage values of a National Heritage place;

(iv) the Commonwealth Heritage values of a Commonwealth Heritage place;

(v) the ecological character of a declared Ramsar wetland;

(vi) the environment, in respect of the impact of a nuclear action;

(vii) the environment in a Commonwealth marine area;

(viii) the environment on Commonwealth land;

(b) controlling or prohibiting, in any place covered by the agreement, actions or processes that might adversely affect:

(i) the species, ecological communities, habitats or potential habitats covered by the agreement; or

(ii) the world heritage values of a declared World Heritage property; or

(iii) the National Heritage values of a National Heritage place; or

(iv) the Commonwealth Heritage values of a Commonwealth Heritage place; or

(v) the ecological character of a declared Ramsar wetland; or

(vi) the environment, in respect of the impact of a nuclear action; or

(vii) the environment in a Commonwealth marine area; or

(viii) the environment on Commonwealth land;

(c) requiring a person bound by the agreement not to obstruct access by a person authorised under the agreement to places covered by the agreement for the purpose of monitoring compliance with the agreement;

(d) requiring a person bound by the agreement to give such an authorised person information requested by the authorised person that is in the first‑mentioned person’s control and is relevant to compliance with the agreement;

(e) requiring the Commonwealth to provide financial, technical or other assistance to a person bound by the agreement;

(g) the commencement and duration of the agreement.

(2) Without limiting section 305 or subsection (1) of this section, a conservation agreement entered into with the owner of a place may provide, for example, for all or any of the following:

(a) requiring the owner to carry out specified activities, or to do specified things, that promote the conservation of all or any of the following:

(i) biodiversity;

(ii) the world heritage values of a declared World Heritage property;

(iii) the National Heritage values of a National Heritage place;

(iv) the Commonwealth Heritage values of a Commonwealth Heritage place;

(v) the ecological character of a declared Ramsar wetland;

(vi) the environment, in respect of the impact of a nuclear action;

(vii) the environment in a Commonwealth marine area;

(viii) the environment on Commonwealth land;

(b) restricting the use of the place, or requiring the owner to refrain from, control or refuse to permit, actions or processes that may adversely affect:

(i) the species, ecological communities, habitats or potential habitats covered by the agreement; or

(ii) the world heritage values of a declared World Heritage property; or

(iii) the National Heritage values of a National Heritage place; or

(iv) the Commonwealth Heritage values of a Commonwealth Heritage place; or

(v) the ecological character of a declared Ramsar wetland; or

(vi) the environment, in respect of the impact of a nuclear action; or

(vii) the environment in a Commonwealth marine area; or

(viii) the environment on Commonwealth land;

(d) requiring the owner to contribute towards costs incurred in implementing the agreement;

(e) specifying the manner in which any money paid to the owner under the agreement is to be applied by the owner;

(f) requiring the owner to repay to the Commonwealth any money paid to the owner under the agreement if the owner commits a specified breach of the agreement or in other specified circumstances;

(g) providing for any other matter relating to the conservation or enhancement of the place, including the preparation and implementation of a plan of management for the place.

306A Conservation agreement may include declaration that actions do not need approval under Part 9

(1) A conservation agreement may include a declaration to the effect that actions in a specified class do not need approval under Part 9 for the purposes of a specified provision of Part 3. The declaration may specify conditions relating to the taking of actions in the class.

(2) The Minister must not enter into a conservation agreement that contains a declaration under subsection (1) unless the Minister is satisfied that the actions to which the declaration relates are not likely to have a significant impact on the matter protected by the provision of Part 3 proposed to be specified in the declaration.

307 Conservation agreements to be legally binding

A conservation agreement is legally binding on:

(a) the Commonwealth; and

(b) the person or persons with whom the Minister entered into the agreement on behalf of the Commonwealth; and

(c) anyone else who is a successor to the whole or any part of any interest that a person mentioned in paragraph (b) had, when the agreement was entered into, in any place covered by the agreement.

307A Conservation agreements may deal with remediation or mitigation measures

When this section applies

(1) This section applies if the Minister considers that an action taken by a person after the commencement of this section contravened, or may have contravened, a provision of Part 3.

Conservation agreements may provide for measures to repair or mitigate damage

(2) The Minister may enter into a conservation agreement with the person that provides for the protection and conservation of a matter referred to in section 305 by providing for the taking of measures to repair or mitigate damage to the matter protected by the provision of Part 3 (whether or not the damage may or will be, or has been, caused by the action).

(3) The conservation agreement may state that specified provisions of the agreement, being provisions for the taking of measures as mentioned in subsection (2), are provisions that may be enforced in the Federal Court under this section. A provision of the agreement to which such a statement applies is a remediation provision.

(4) If the conservation agreement contains a statement as mentioned in subsection (3), that statement must specify the provision of Part 3 referred to in subsection (1).

Federal Court may order compliance with remediation provision

(5) If the Minister considers that the person has contravened a remediation provision, the Minister may apply to the Federal Court for an order under subsection (6).

(6) If the Federal Court is satisfied that the person has contravened a remediation provision, the Court may make one or more of the following orders:

(a) an order directing the person to comply with the remediation provision;

(b) any other order that the Court considers appropriate.

Civil penalty for contravention of remediation provision

(7) The person must not contravene a remediation provision.

(8) Subsection (7) is a civil penalty provision. Under section 481, the Federal Court may order the person to pay a pecuniary penalty not more than the pecuniary penalty the Court could order the person to pay under that section for a contravention of the provision of Part 3 referred to in subsection (1).

This section does not limit sections 305, 306 and 307

(9) This section does not limit anything in sections 305, 306 and 307.

308 Variation and termination of conservation agreements

(1) A conservation agreement may be varied by a variation agreement entered into by the Minister, on behalf of the Commonwealth, and the person or persons bound by the conservation agreement under paragraph 307(b) or (c).

(2) Sections 305 and 306 apply in relation to variation agreements in the same way as they apply in relation to conservation agreements.

(3) A conservation agreement may be terminated:

(a) by agreement between the Minister, on behalf of the Commonwealth, and the person or persons bound by the conservation agreement under paragraph 307(b) or (c); or

(b) in such other manner, or in such circumstances (if any), as the agreement specifies.

(4) If the Minister is satisfied that a conservation agreement is not capable of achieving its purpose, the Minister may, by order published in the Gazette, terminate the agreement or vary it in any way the Minister thinks necessary to ensure it becomes capable of achieving its purpose.

(5) The Minister may make an order under subsection (4) in relation to a conservation agreement without the agreement of the person or persons bound by the conservation agreement under paragraph 307(b) or (c).

(6) The Minister must cause a copy of an order to be laid before each House of the Parliament within the prescribed period after the publication of the order.

(7) If a conservation agreement is varied by an order, the person or persons bound by the conservation agreement under paragraph 307(b) or (c) may, by written notice given to the Minister, terminate the agreement.

(8) If a conservation agreement is terminated or varied by an order, the person or persons bound by the conservation agreement under paragraph 307(b) or (c) are not entitled to any compensation in respect of the termination or variation.

Note: See Parts 17 and 18 for remedies for breach of conservation agreements.

309 Publication of conservation agreements

(1) As soon as practicable after a conservation agreement has been entered into or varied, other than by an order under subsection 308(4), the Minister must:

(a) take reasonable steps to ensure that copies of the agreement or variation are available for purchase, for a reasonable price, at a prescribed place in each State and self‑governing Territory; and

(b) cause a notice of the agreement or variation to be published:

(i) in the Gazette; and

(ii) in any other way required by the regulations.

(2) The notice must:

(a) state that the agreement or variation has been entered into or made; and

(b) specify the places where copies of the agreement or variation may be purchased.

(3) Subsection (1) does not apply in relation to a conservation agreement, or a variation of such an agreement, or any part of such an agreement or variation, if the Minister is satisfied that disclosure of the agreement or variation, or the part of the agreement or variation, as the case may be, would result in harm being done to:

(a) components of biodiversity; or

(b) the world heritage values of a declared World Heritage property; or

(d) the Commonwealth Heritage values of a Commonwealth Heritage place.

(4) Subsection (1) does not apply in relation to a conservation agreement, or a variation of such an agreement, or any part of such an agreement or variation, if the Minister is satisfied that disclosure of the agreement or variation, or the part of the agreement or variation, as the case may be, would disclose matters that the Minister is satisfied are commercial‑in‑confidence.

(5) The Minister must not be satisfied that matter is commercial‑in‑confidence unless a person demonstrates to the Minister that:

(a) release of information under subsection (1) about the matter would cause competitive detriment to the person; and

(b) the information is not in the public domain; and

(d) the information is not readily discoverable.

310 List of conservation agreements

The Minister must:

(a) maintain an up‑to‑date list of conservation agreements that are in force; and

(b) take reasonable steps to ensure that copies of the list are available for purchase, for a reasonable price, at a prescribed place in each State and self‑governing Territory.

311 Commonwealth, State and Territory laws

(1) A provision of a conservation agreement has no effect to the extent (if any) to which it is inconsistent with a law of the Commonwealth, or of a State or Territory.

(2) For the purposes of subsection (1), a provision of a conservation agreement is not taken to be inconsistent with a law of the Commonwealth, or of a State or Territory, if both the provision and the law are capable of being complied with.

312 Minister must not give preference

The Minister must not, in exercising powers on behalf of the Commonwealth under this Part, give preference to one State or any part thereof within the meaning of section 99 of the Constitution.

Part 15—Protected areas

Division 1—Managing World Heritage properties

Subdivision A—Simplified outline of this Division

313 Simplified outline of this Division

The following is a simplified outline of this Division:

The Commonwealth may submit a property for inclusion in the World Heritage List only after seeking the agreement of relevant States, self‑governing Territories and land‑holders.

The Minister must make plans for managing properties on the World Heritage List that are entirely in Commonwealth areas. The Commonwealth and Commonwealth agencies must not contravene such plans.

The Commonwealth must try to prepare and implement management plans for other properties on the World Heritage List, in co‑operation with the relevant States and self‑governing Territories.

The Commonwealth and Commonwealth agencies have duties relating to World Heritage properties in States and Territories.

The Commonwealth can provide assistance for the protection or conservation of declared World Heritage properties.

Note: Section 12 prohibits an action that has a significant impact on the world heritage values of a declared World Heritage property, unless the person taking the action has the approval of the Minister administering that section or certain other requirements are met.

Subdivision B—Seeking agreement on World Heritage listing

314 Special provisions relating to World Heritage nominations

(1) The Commonwealth may submit to the World Heritage Committee for inclusion in the World Heritage List a property containing an area owned or occupied by another person only if the Minister is satisfied that the Commonwealth has used its best endeavours to reach agreement with the other person on:

(a) the proposed submission of the property (so far as it relates to the area); and

(b) management arrangements for the property (so far as they relate to the area).

(2) The Commonwealth may submit to the World Heritage Committee for inclusion in the World Heritage List a property in a State or self‑governing Territory only if the Minister is satisfied that the Commonwealth has used its best endeavours to reach agreement with the State or Territory on:

(a) the proposed submission of the property; and

(b) management arrangements for the property.

(3) A failure to comply with this section does not affect the submission of a property to the World Heritage Committee for inclusion in the World Heritage List or the status of a property as a declared World Heritage property.

Subdivision C—Notice of submission of property for listing

315 Minister must give notice of submission of property for listing etc.

(1) The Minister must give notice in the Gazette and in the way (if any) prescribed by the regulations of any of the following events as soon as practicable after the event occurs:

(a) the Commonwealth submits a property to the World Heritage Committee for inclusion in the World Heritage List;

(b) the Commonwealth extends the boundaries of a property submitted to the World Heritage Committee for inclusion in the World Heritage List;

(c) the Commonwealth restricts the boundaries of a property submitted to the World Heritage Committee for inclusion in the World Heritage List;

(d) the Commonwealth withdraws the submission of a property for inclusion in the World Heritage List;

(e) a property submitted by the Commonwealth is included in the World Heritage List;

(f) all or part of a property is removed from the World Heritage List.

(2) The notice must specify the area included in, or excluded or deleted from, the submission or World Heritage List as a result of the event.

(3) A failure to comply with this section does not affect the status of an area as a declared World Heritage property.

Subdivision D—Plans for listed World Heritage properties in Commonwealth areas

316 Making plans

Minister must make plan

(1) The Minister must make a written plan for managing a property that is included in the World Heritage List and is entirely within one or more Commonwealth areas. The Minister must do so as soon as practicable after the property:

(a) is included in the World Heritage List; or

(b) becomes entirely within one or more Commonwealth areas.

Amending and replacing plan

(2) The Minister may make a written plan amending, or revoking and replacing, a plan made under subsection (1) or this subsection.

Requirements for plan

(3) A plan must not be inconsistent with:

(a) Australia’s obligations under the World Heritage Convention; or

(b) the Australian World Heritage management principles.

Note: Section 323 explains what Australian World Heritage management principles are.

Ensuring plans reflect current management principles

(4) If the Australian World Heritage management principles change so that a plan (the earlier plan) is inconsistent with them, the Minister must make another plan:

(a) amending the earlier plan so it is not inconsistent with them; or

(b) revoking and replacing the earlier plan.

Plan may be in same document as another plan

(5) To avoid doubt, a plan under this section for a property may be in the same document as:

(a) a plan under this section for another property; or

(b) a plan that this Act or another law of the Commonwealth requires or permits to be prepared.

Commonwealth reserves

(6) Despite subsections (1) and (2), the Minister may not make a plan for so much of a property as is in a Commonwealth reserve.

Note: A management plan must be prepared under Division 4 for a Commonwealth reserve, taking account of Australia’s obligations under the World Heritage Convention.

Heard Island and McDonald Islands

(7) Despite subsections (1) and (2), the Minister may not make a plan for so much of a property as is in the Territory of Heard Island and McDonald Islands and covered by a plan:

(a) that is in operation under the Environment Protection and Management Ordinance 1987 of that Territory; and

(b) that the Minister is satisfied is not inconsistent with:

(i) Australia’s obligations under the World Heritage Convention; or

(ii) the Australian World Heritage management principles.

317 Notice of plans

The Minister must give notice of the making of a plan under section 316, in accordance with the regulations.

318 Commonwealth compliance with plans

(1) The Commonwealth or a Commonwealth agency must not:

(a) contravene a plan made under section 316; or

(b) authorise another person to do, or omit to do, anything that, if it were done or omitted to be done by the Commonwealth or the Commonwealth agency (as appropriate), would contravene such a plan.

(2) If there is no plan in force under section 316 for a particular property described in subsection (1) of that section, the Commonwealth and each Commonwealth agency must take all reasonable steps to ensure that its acts (if any) relating to the property are not inconsistent with the Australian World Heritage management principles.

319 Review of plans every 5 years

(1) The Minister must cause a review of a plan made under section 316 to be carried out at least once in each period of 5 years after the plan is made.

(2) The review must consider whether the plan is consistent with the Australian World Heritage management principles in force at the time.

Note: Section 323 explains what Australian World Heritage management principles are.

Subdivision E—Managing World Heritage properties in States and self‑governing Territories

320 Application

This Subdivision applies in relation to a property that:

(a) is:

(i) in a State; or

(ii) in a self‑governing Territory; or

(iii) on, over or under the seabed vested in a State by the Coastal Waters (State Title) Act 1980 or in the Northern Territory by the Coastal Waters (Northern Territory Title) Act 1980; and

(b) is not entirely within one or more Commonwealth areas.

321 Co‑operating to prepare and implement plans

(1) This section applies in relation to a property that is included in the World Heritage List.

(2) The Commonwealth must use its best endeavours to ensure a plan for managing the property in a way that is not inconsistent with Australia’s obligations under the World Heritage Convention or the Australian World Heritage management principles is prepared and implemented in co‑operation with the State or Territory.

Note: The Commonwealth and the State or Territory could make a bilateral agreement adopting the plan and providing for its implementation.

(3) Subsection (2) does not apply in relation to so much of a property as is in the Great Barrier Reef Marine Park.

Note: A zoning plan must be prepared under the Great Barrier Reef Marine Park Act 1975 for areas that are part of the Great Barrier Reef Marine Park. In preparing a zoning plan, regard must be had to the Australian World Heritage management principles.

322 Commonwealth responsibilities

(1) This section applies in relation to a property that is a declared World Heritage property.

(2) The Commonwealth and each Commonwealth agency must take all reasonable steps to ensure it exercises its powers and performs its functions in relation to the property in a way that is not inconsistent with:

(a) the World Heritage Convention; and

(b) the Australian World Heritage management principles; and

(c) if the property is on the World Heritage List and a plan for managing the property has been prepared as described in section 321—that plan.

Subdivision F—Australian World Heritage management principles

323 Australian World Heritage management principles

(1) The regulations must prescribe principles for the management of natural heritage and cultural heritage. The principles prescribed are the Australian World Heritage management principles.

(2) Before the Governor‑General makes regulations prescribing principles, the Minister must be satisfied that the principles to be prescribed are consistent with Australia’s obligations under the World Heritage Convention.

(3) In this section:

cultural heritage has the meaning given by the World Heritage Convention.

natural heritage has the meaning given by the World Heritage Convention.

Subdivision G—Assistance for protecting World Heritage properties

324 Commonwealth assistance for protecting declared World Heritage properties

(1) The Commonwealth may give financial or other assistance for the protection or conservation of a declared World Heritage property to:

(a) a State or self‑governing Territory in which the property occurs; or

(b) any other person.

(2) The giving of assistance may be made subject to such conditions as the Minister thinks fit.

Division 1A—Managing National Heritage places

Subdivision A—Preliminary

324A Simplified outline of this Division

The following is a simplified outline of this Division:

The Minister may only include a place in the National Heritage List if the Minister is satisfied that the place has one or more National Heritage values.

The Minister must ask the Australian Heritage Council for an assessment of the place’s National Heritage values and may invite public comments on the proposed inclusion of the place in the National Heritage List.

The Minister must make plans to protect and manage the National Heritage values of National Heritage places. The Commonwealth and Commonwealth agencies must not contravene those plans.

The Commonwealth must try to prepare and implement plans for managing other National Heritage places, in co‑operation with the States and self‑governing Territories.

The Commonwealth and Commonwealth agencies have duties relating to National Heritage places in States and Territories.

The Commonwealth can provide assistance for the identification, promotion, protection or conservation of National Heritage places.

Note: Section 15B prohibits an action that has a significant impact on the National Heritage values of a National Heritage place, unless the person taking the action has the approval of the Minister or certain other requirements are met.

Subdivision B—The National Heritage List

324C The National Heritage List

(1) The Minister must keep a written record of places and their heritage values in accordance with this Subdivision and Subdivisions BA, BB and BC. The record is called the National Heritage List.

(2) A place may be included in the National Heritage List only if:

(a) the place is within the Australian jurisdiction; and

(b) the Minister is satisfied that the place has one or more National Heritage values (subject to the provisions in Subdivision BB about the emergency process).

(3) A place that is included in the National Heritage List is called a National Heritage place.

(4) The National Heritage List is not a legislative instrument.

324D Meaning of National Heritage values

(1) A place has a National Heritage value if and only if the place meets one of the criteria (the National Heritage criteria) prescribed by the regulations for the purposes of this section. The National Heritage value of the place is the place’s heritage value that causes the place to meet the criterion.

(2) The National Heritage values of a National Heritage place are the National Heritage values of the place included in the National Heritage List for the place.

(3) The regulations must prescribe criteria for the following:

(a) natural heritage values of places;

(b) indigenous heritage values of places;

The regulations may prescribe criteria for other heritage values of places.

(4) To avoid doubt, a criterion prescribed by the regulations may relate to one or more of the following:

(a) natural heritage values of places;

(b) indigenous heritage values of places;

(d) other heritage values of places.

Subdivision BA—Inclusion of places in the National Heritage List: usual process

324E Simplified outline

The following is a simplified outline of this Subdivision:

This Subdivision sets out the usual process for the inclusion of places in the National Heritage List.

The usual process involves an annual cycle that revolves around 12‑month periods known as assessment periods. The Minister determines the start of the first assessment period (see section 324G).

The usual process involves the following steps for each assessment period:

(a) the Minister may determine heritage themes (this step is optional) (see section 324H);

(b) the Minister invites people to nominate places for inclusion in the National Heritage List, and gives the nominations to the Australian Heritage Council (see sections 324J and 324JA);

(c) the Australian Heritage Council prepares, and gives to the Minister, a list of places (which will mostly be places that have been nominated) that it thinks should be assessed (see sections 324JB, 324JC and 324JD);

(d) the Minister finalises the list of places that are to be assessed (see sections 324JE and 324JF);

(e) the Australian Heritage Council invites people to make comments about the places in the finalised list (see section 324JG);

(f) the Australian Heritage Council assesses the places in the finalised list, and gives the assessments to the Minister (see sections 324JH and 324JI);

(g) the Minister decides whether a place that has been assessed should be included in the National Heritage List (see section 324JJ).

The steps mentioned in paragraphs (a) to (d) will generally be completed before the start of the assessment period.

324F Definitions

In this Subdivision:

assessment period has the meaning given by subsection 324G(1).

eligible for assessment consideration, in relation to an assessment period, has the meaning given by subsection 324JB(3).

finalised priority assessment list for an assessment period has the meaning given by subsection 324JE(4).

proposed priority assessment list for an assessment period has the meaning given by subsection 324JB(1).

324G Meaning of assessment period

(1) For the purposes of this Subdivision, each of the following is an assessment period:

(a) the period of 12 months starting on the day determined in writing by the Minister for the purposes of this paragraph;

(b) each period of 12 months starting on an anniversary of the day so determined.

(2) The Minister must make a determination under paragraph (1)(a) within 3 months after the commencement of this section. The day so determined must not be more than 12 months after that commencement.

(3) A determination under paragraph (1)(a) is a legislative instrument, but neither section 42 nor Part 6 of the Legislative Instruments Act 2003 applies to the determination.

324H Minister may determine heritage themes for an assessment period

(1) Before the Minister invites nominations for an assessment period under section 324J, the Minister may determine one or more heritage themes that the Minister considers should be given priority in relation to the assessment period.

(2) The Minister may request advice from the Australian Heritage Council for the purpose of making a determination under subsection (1), and may have regard to any advice the Council provides in response to the request.

(3) A determination under subsection (1) is a legislative instrument, but section 42 of the Legislative Instruments Act 2003 does not apply to the determination.

324J Minister to invite nominations for each assessment period

(1) Before the start of each assessment period, the Minister must publish a notice inviting people to nominate places for inclusion in the National Heritage List.

(2) A notice under subsection (1):

(a) must be published in accordance with the regulations referred to in paragraph (3)(a); and

(b) must invite people to nominate, to the Minister, places for inclusion in the National Heritage List; and

(d) must specify a date (the cut‑off date) by which nominations must be received, which must be at least 40 business days after the notice has been published as required by paragraph (a); and

(e) must specify, or refer to, the information requirements, and the manner and form requirements, that, under regulations referred to in paragraphs (3)(b) and (c), apply to making nominations; and

(f) may also include:

(i) information related to any heritage themes that the Minister has determined under section 324H should be given priority in relation to the assessment period; and

(ii) any other information that the Minister considers appropriate.

(3) The regulations must provide for the following:

(a) how a notice under subsection (1) is to be published;

(b) the manner and form for making nominations;

324JA Minister to give nominations to Australian Heritage Council

Nominations in relation to first assessment period

(1) Within 30 business days after the cut‑off date specified in the notice under subsection 324J(1) for the first assessment period, the Minister must give the Australian Heritage Council the nominations that the Minister:

(a) had received before the end of that cut‑off date; and

(b) had not already requested the Australian Heritage Council, under section 324E (as in force before the commencement of this section), to assess; and

(d) does not reject under subsection (4).

(2) Subsection (1) does not apply to a nomination of a place if:

(a) the place is outside the Australian jurisdiction; or

(b) the Minister had, before the commencement of this section, included the place in the National Heritage List under section 324F (as in force before the commencement of this section).

Nominations in relation to later assessment periods

(3) Within 30 business days after the cut‑off date (the current cut‑off date) specified in the notice under subsection 324J(1) for an assessment period (other than the first), the Minister must give the Australian Heritage Council the nominations that were received by the Minister in the period:

(a) starting immediately after the end of the cut‑off date specified in the notice under subsection 324J(1) for the immediately preceding assessment period; and

(b) ending at the end of the current cut‑off date;

other than any such nominations that the Minister rejects under subsection (4).

Minister may reject nominations

(4) The Minister may, in writing, reject a nomination if the Minister considers that:

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

(b) the Minister considers that regulations referred to in paragraph 324J(3)(b) or (c) have not been complied with in relation to the nomination.

(5) If a nomination is rejected under paragraph (4)(b), the Minister must, if practicable, notify the person who made the nomination of the rejection of the nomination and the reason for the rejection.

Definition

(6) In this section:

nomination means a nomination of a place for inclusion in the National Heritage List.

324JB Australian Heritage Council to prepare proposed priority assessment list

(1) Within 40 business days after the Australian Heritage Council receives the nominations as required by subsection 324JA(1) in relation to an assessment period, the Council must prepare and give to the Minister a list (the proposed priority assessment list) for the assessment period.

(2) The proposed priority assessment list is to consist of such of the places that are eligible for assessment consideration in relation to the assessment period as the Australian Heritage Council considers it appropriate to include in the list, having regard to:

(a) any heritage themes determined by the Minister under section 324H in relation to the assessment period; and

(b) the Council’s own views about what should be given priority in relation to the assessment period; and

(d) any other matters that the Council considers appropriate.

(3) A place is eligible for assessment consideration in relation to the assessment period if:

(a) the place has been nominated by a nomination referred to in subsection (1); or

(b) the Council itself wishes to nominate the place for inclusion in the National Heritage List; or

(c) the place was eligible for assessment consideration, otherwise than because of this paragraph, in relation to the immediately preceding assessment period (if any) but was not included in the finalised priority assessment list for that assessment period; or

(d) each part of the place is either a place to which paragraph (a) applies, a place to which paragraph (b) applies or a place to which paragraph (c) applies.

(4) Without limiting the generality of the Australian Heritage Council’s discretion under subsection (2), the Council does not have to include in the proposed priority assessment list a place that has been nominated if the Council considers that it is unlikely that the place has any National Heritage values. For this purpose, the Council is not required to have regard to any information beyond the information that was included in the nomination.

(5) The proposed priority assessment list is not a legislative instrument.

324JC Matters to be included in proposed priority assessment list

(1) The proposed priority assessment list for an assessment period is to include, for each place in the list:

(a) a description of the place; and

(b) an assessment completion time; and

(2) The assessment completion time for a place must be either:

(a) a time that is at or before the end of the assessment period to which the list relates; or

(b) if the Australian Heritage Council considers it likely that making an assessment in relation to the place will take a period that is longer than 12 months—the end of that longer period (calculated from the start of the assessment period).

324JD Statement to be given to Minister with proposed priority assessment list

(1) When the Australian Heritage Council gives the Minister the priority assessment list for an assessment period, the Council must also give the Minister a statement setting out such information as the Council considers appropriate relating to:

(a) for each place that is included in the list—why the Council included the place in the list; and

(b) for each place that is not included in the list but that was eligible for assessment consideration because of paragraph 324JB(3)(a) or (c)—why the Council did not include the place in the list.

(2) The statement must also identify, as places nominated by the Australian Heritage Council:

(a) any places that are included in the list because the Council itself wishes to nominate them (see paragraph 324JB(3)(b)); and

(b) any places that are included in the list because of paragraph 324JB(3)(d) that consist of one or more places to which paragraph 324JB(3)(b) applies.

324JE The finalised priority assessment list

(1) Within 20 business days after the Minister, under section 324JB, receives the proposed priority assessment list for an assessment period, the Minister may, in writing, make changes to the list as mentioned in subsection (2).

(2) The changes the Minister may make are as follows:

(a) including a place in the list (and also including the matters referred to in subsection 324JC(1));

(b) omitting a place from the list (and also omitting the matters referred to in subsection 324JC(1));

(d) any other changes of a kind permitted by the regulations.

(3) In exercising the power to make changes, the Minister may have regard to any matters that the Minister considers appropriate.

(4) At the end of the period of 20 business days referred to in subsection (1), the list, as changed (if at all) by the Minister, becomes the finalised priority assessment list for the assessment period.

(5) The Minister must notify the Australian Heritage Council of all changes that the Minister makes to the list.

(6) The finalised priority assessment list is not a legislative instrument.

324JF Publication of finalised priority assessment list

(1) The Australian Heritage Council must publish the finalised priority assessment list for an assessment period on the internet.

(2) The Australian Heritage Council must also publish the finalised priority assessment list in accordance with any requirements of the regulations.

324JG Australian Heritage Council to invite comments on places in finalised priority assessment list

(1) In relation to each place included in the finalised priority assessment list for an assessment period, the Australian Heritage Council must publish a notice inviting people to make comments on the place.

(2) The Australian Heritage Council may, under subsection (1), publish a single notice relating to all of the places on the finalised priority assessment list, or may publish a number of separate notices, each of which relates to one or more of the places.

(3) A notice under subsection (1), in relation to a place or places:

(a) must be published in accordance with the regulations referred to in paragraph (4)(a); and

(b) must identify the place or places to which the notice relates; and

(i) whether the place or places meet any of the National Heritage criteria; and

(ii) whether the place or places should be included in the National Heritage List; and

(d) must specify the date (the cut‑off date) by which comments must be received, which must be at least 30 business days after the notice has been published as required by paragraph (a); and

(e) must specify, or refer to, the manner and form requirements that, under regulations referred to in paragraph (4)(b), apply to making comments; and

(f) may also invite people to comment on other matters that the Australian Heritage Council considers appropriate; and

(g) may also include any other information that the Australian Heritage Council considers appropriate.

(4) The regulations must provide for the following:

(a) how a notice under subsection (1) is to be published;

(b) the manner and form for making comments.

324JH Australian Heritage Council to assess places on finalised priority assessment list and give assessments to Minister

(1) In relation to each place included in the finalised priority assessment list for an assessment period, the Australian Heritage Council must (by the time required by section 324JI):

(a) make a written assessment whether the place meets any of the National Heritage criteria; and

(b) give to the Minister:

(i) the written assessment (or a copy of it); and

(ii) a copy of the comments referred to in paragraphs (2)(a) and (b) (whether or not they have all been taken into account under subsection (2)).

(2) In making an assessment in relation to a place, the Australian Heritage Council, subject to subsections (3) and (4):

(a) must take into account the comments the Council receives in response to the notice under subsection 324JG(1) in relation to the place; and

(b) may take into account the comments the Council receives in response to the opportunity referred to in paragraph (5)(c); and

(3) The Australian Heritage Council is not required to take a comment referred to in paragraph (2)(a) into account if:

(a) the Council does not receive the comment until after the cut‑off date specified in the notice under subsection 324JG(1) in relation to the place; or

(b) the Council considers that regulations referred to in paragraph 324JG(4)(b) have not been complied with in relation to the comment.

(4) In making an assessment, the Australian Heritage Council must not consider any matter that does not relate to the question whether the place meets any of the National Heritage criteria.

(5) If, in making an assessment, the Australian Heritage Council considers that a place might have one or more National Heritage values, the Council must:

(a) take all practicable steps:

(i) to identify each person who is an owner or occupier of all or part of the place; and

(ii) if the Council considers the place might have an indigenous heritage value—to identify each Indigenous person who has rights or interests in all or part of the place; and

(b) take all practicable steps to advise each person identified that the Council is assessing whether the place meets any of the National Heritage criteria; and

(c) give persons advised at least 20 business days to comment in writing whether the place should be included in the National Heritage List.

(6) If the Australian Heritage Council is satisfied that there are likely to be at least 50 persons referred to in subparagraph (5)(a)(i), the Council may satisfy the requirements of subsection (5) in relation to those persons by including the information referred to in paragraphs (5)(b) and (c) in one or more of the following:

(a) advertisements in a newspaper, or newspapers, circulating in the area in which the place is located;

(b) letters addressed to “The owner or occupier” and left at all the premises that are wholly or partly within the place;

(7) If:

(a) the Australian Heritage Council considers that the place might have an indigenous heritage value; and

(b) there are Indigenous persons who:

(i) have rights or interests in all or part of the place; and

(ii) are neither owners nor occupiers of all or part of the place; and

(c) the Australian Heritage Council is satisfied that there is a body, or there are bodies, that can appropriately represent those Indigenous persons in relation to those rights and interests;

the Australian Heritage Council may satisfy the requirements of subsection (5) in relation to those Indigenous persons by giving the information referred to in paragraphs (5)(b) and (c) to that body or those bodies.

324JI Time by which assessments to be provided to Minister

(1) Subsection 324JH(1) must be complied with, in relation to a place included in the finalised priority assessment list for an assessment period, by the assessment completion time specified in the list for the place, or by that time as extended under this section.

(2) The Australian Heritage Council may request the Minister to extend the assessment completion time (or that time as previously extended) if the Council considers that it needs more time to make the assessment.

(3) The Minister may, in response to a request under subsection (2), extend the assessment completion time (or that time as previously extended) by such period (if any) as the Minister considers appropriate. However, the total length of all extensions of the assessment completion time must not be more than 5 years.

(4) An extension under subsection (3) must be made in writing.

(5) If the Minister grants an extension under this section, the Minister must publish particulars of the extension in a way that the Minister considers appropriate.

324JJ Decision about inclusion of a place in the National Heritage List

Minister to decide whether or not to include place

(1) After receiving from the Australian Heritage Council an assessment under section 324JH whether a place (the assessed place) meets any of the National Heritage criteria, the Minister must:

(a) by instrument published in the Gazette, include in the National Heritage List:

(i) the assessed place or a part of the assessed place; and

(ii) the National Heritage values of the assessed place, or that part of the assessed place, that are specified in the instrument; or

(b) in writing, decide not to include the assessed place in the National Heritage List.

Note: The Minister may include a place in the National Heritage List only if the Minister is satisfied that the place has one or more National Heritage values (see subsection 324C(2)).

(2) Subject to subsection (3), the Minister must comply with subsection (1) within 90 business days after the day on which the Minister receives the assessment.

(3) The Minister may, in writing, extend or further extend the period for complying with subsection (1).

(4) Particulars of an extension or further extension under subsection (3) must be published on the internet and in any other way required by the regulations.

(5) For the purpose of deciding what action to take under subsection (1) in relation to the assessed place:

(a) the Minister must have regard to:

(i) the Australian Heritage Council’s assessment whether the assessed place meets any of the National Heritage criteria; and

(ii) the comments (if any), a copy of which were given to the Minister under subsection 324JH(1) with the assessment; and

(b) the Minister may seek, and have regard to, information or advice from any source.

Additional requirements if Minister decides to include place

(6) If the Minister includes the assessed place, or a part of the assessed place (the listed part of the assessed place), in the National Heritage List, he or she must, within a reasonable time:

(a) take all practicable steps to:

(i) identify each person who is an owner or occupier of all or part of the assessed place; and

(ii) advise each person identified that the assessed place, or the listed part of the assessed place, has been included in the National Heritage List; and

(b) if the assessed place:

(i) was nominated; or

(ii) was included in a place that was nominated; or

(iii) includes a place that was nominated;

by a person in response to a notice under subsection 324J(1)—advise the person that the assessed place, or the listed part of the assessed place, has been included in the National Heritage List; and

(d) publish a copy or summary of that instrument in accordance with any other requirements specified in the regulations.

(7) If the Minister is satisfied that there are likely to be at least 50 persons referred to in subparagraph (6)(a)(i), the Minister may satisfy the requirements of paragraph (6)(a) in relation to those persons by including the advice referred to in that paragraph in one or more of the following:

(a) advertisements in a newspaper, or newspapers, circulating in the area in which the assessed place is located;

(b) letters addressed to “The owner or occupier” and left at all the premises that are wholly or partly within the assessed place;

Additional requirements if Minister decides not to include place

(8) If the Minister decides not to include the assessed place in the National Heritage List, the Minister must, within 10 business days after making the decision:

(a) publish the decision on the internet; and

(b) if the assessed place:

(i) was nominated; or

(ii) was included in a place that was nominated; or

(iii) includes a place that was nominated;

by a person in response to a notice under subsection 324J(1)—advise the person of the decision, and of the reasons for the decision.

Note: Subsection (8) applies in a case where the Minister decides that none of the assessed place is to be included in the National Heritage List.

Subdivision BB—Inclusion of places in the National Heritage List: emergency process

324JK Simplified outline

The following is a simplified outline of this Subdivision:

This Subdivision sets out the emergency process for the inclusion of places in the National Heritage List.

The emergency process involves the following steps:

(a) the Minister may include a place in the National Heritage List if it is under threat (see section 324JL);

(b) the Minister asks the Australian Heritage Council to assess the place (see section 324JM);

(d) the Australian Heritage Council assesses the place, and gives the assessment to the Minister (see sections 324JO and 324JP);

(e) the Minister has 12 months from the listing of the place to decide whether it should continue to be listed, and the listing will lapse if the Minister does not make a decision within that period (see section 324JQ).

324JL Minister may include place in National Heritage List if under threat

(1) If the Minister believes that:

(a) a place has or may have one or more National Heritage values; and

(b) any of those values is under threat of a significant adverse impact; and

the Minister may, by instrument published in the Gazette, include in the National Heritage List the place and the National Heritage values the Minister believes the place has or may have.

(2) If:

(a) the place is included in the National Heritage List under subsection (1); and

(b) before that inclusion of the place, the place was being considered for inclusion in the List under the process set out in Subdivision BA;

that process ceases to apply to the place when it is included in the List under subsection (1).

Note: Subsection (2) does not prevent the process in Subdivision BA again starting to apply to the place if (for example) the place ceases to be listed because of subsection 324JQ(1) or (4) and a person subsequently nominates the place under that Subdivision.

(3) If the place is included in the National Heritage List under subsection (1), the Minister must:

(a) within 10 business days after the inclusion of the place, publish a copy of the instrument under subsection (1):

(i) on the internet; and

(ii) in accordance with any other requirements specified in the regulations; and

(b) take all practicable steps to:

(i) identify each person who is an owner or occupier of all or part of the place; and

(ii) advise each person identified that the place has been included in the National Heritage List.

(4) If the Minister is satisfied that there are likely to be at least 50 persons referred to in subparagraph (3)(b)(i), the Minister may satisfy the requirements of paragraph (3)(b) in relation to those persons by including the advice referred to in that paragraph in one or more of the following:

(a) advertisements in a newspaper, or newspapers, circulating in the area in which the place is located;

(b) letters addressed to “The owner or occupier” and left at all the premises that are wholly or partly within the place;

324JM Minister to ask Australian Heritage Council for assessment

(1) If the Minister includes a place in the National Heritage List under section 324JL, the Minister must, in writing, request the Australian Heritage Council to give the Minister an assessment of whether the place meets any of the National Heritage criteria.

(2) The request must specify the assessment completion time for the assessment.

Note: When specifying an assessment completion time, the 12‑month period referred to in subsection 324JQ(1) should be considered.

324JN Publication of listing of place and inviting comments

(1) If the Australian Heritage Council receives a request under subsection 324JM(1) in relation to a place that has been included in the National Heritage List, the Council must publish a notice inviting people to comment on the listing of the place.

(2) A notice under subsection (1) in relation to a place:

(a) must be published in accordance with the regulations referred to in paragraph (3)(a); and

(b) must contain the following:

(i) a description of the place;

(ii) a statement that the place has been included in the National Heritage List, and that specifies the National Heritage values that have been included in the List in relation to the place;

(iii) the date on which the place was so included; and

(i) whether the place meets any of the National Heritage criteria; and

(ii) whether the place should continue to be included in the National Heritage List; and

(d) must specify the date (the cut‑off date) by which comments must be received, which must be at least 30 business days after the notice has been published as required by paragraph (a); and

(e) must specify, or refer to, the manner and form requirements that, under regulations referred to in paragraph (3)(b), apply to making comments.

(3) The regulations may provide for either or both of the following:

(a) how a notice under subsection (1) is to be published;

(b) the manner and form for making comments.

324JO Australian Heritage Council to assess place and give assessment to Minister

(1) Section 324JH applies in relation to a request under subsection 324JM(1) as if:

(a) a reference in section 324JH to a place included in the finalised priority assessment list for an assessment period were a reference to the place to which the request relates; and

(b) a reference in section 324JH to the notice under subsection 324JG(1) in relation to the place were a reference to the notice under subsection 324JN(1) in relation to the place; and

(c) a reference in section 324JH to regulations referred to in paragraph 324JG(4)(b) were a reference to regulations referred to in paragraph 324JN(3)(b); and

(d) a reference in section 324JH to whether the place should be included in the National Heritage List were a reference to whether the place should continue to be included in the National Heritage List.

(2) A reference in another provision of this Act to section 324JH, or to a provision of that section, includes a reference to that section or provision as it applies because of this section.

324JP Time by which assessments to be provided to Minister

(1) Section 324JI applies in relation to a request under subsection 324JM(1) as if:

(a) a reference in section 324JI to a place included in the finalised priority assessment list for an assessment period were a reference to the place to which the request relates; and

(b) a reference in section 324JI to the assessment completion time specified in the list for the place were a reference to the assessment completion time specified in the request.

(2) A reference in another provision of this Act to section 324JI, or to a provision of that section, includes a reference to that section or provision as it applies because of this section.

324JQ Decision about place remaining in the National Heritage List

Minister to decide whether place should remain listed

(1) Within 12 months after the inclusion of a place in the National Heritage List under section 324JL, the Minister must, by instrument published in the Gazette, subject to subsections (2) and (3):

(a) do one of the following:

(i) state that the place remains in the National Heritage List with its boundary unaltered;

(ii) alter the boundary of the place described in the National Heritage List (whether or not the alteration results in an overall increase or decrease in the extent of the place included in the List);

(iii) remove from the National Heritage List the place and its National Heritage values; and

(b) if the place is not removed from the National Heritage List under subparagraph (a)(iii)—do all or any of the following:

(i) state that specified National Heritage values included in the List under section 324JL for the place remain in the List for the place;

(ii) include in the List for the place specified National Heritage values of the place that were not included in the List under section 324JL for the place;

(iii) remove from the List for the place specified National Heritage values that were included in the List under section 324JL for the place.

(2) The Minister must not take action under subsection (1) unless the Minister has received an assessment from the Australian Heritage Council under section 324JH in relation to the place.

(3) The Minister must not take action under subsection (1) that results in the place remaining in the National Heritage List (whether or not with the same or a different boundary) unless the Minister is satisfied that the place has one or more National Heritage values.

Listing lapses automatically if action not taken within 12 months of listing

(4) If the Minister does not take action under subsection (1) within the period referred to in that subsection, the place, and its listed National Heritage values, are automatically removed from the National Heritage List, by force of this subsection, at the end of that period.

Note: This subsection applies even if the Minister is prevented from taking action under subsection (1) because of subsection (2).

Matters to be considered

(5) For the purpose of deciding what action to take under subsection (1) in relation to the place:

(a) the Minister must have regard to:

(i) the Australian Heritage Council’s assessment whether the place meets any of the National Heritage criteria; and

(ii) the comments (if any), a copy of which were given to the Minister under subsection 324JH(1) with the assessment; and

(b) the Minister may seek, and have regard to, information or advice from any source.

Disapplying section 324L

(6) Section 324L does not apply to:

(a) an alteration of the boundary of the place, under subparagraph (1)(a)(ii) of this section, that has the effect of removing part of the place from the National Heritage List; or

(b) the removal of the place and its National Heritage values under subparagraph (1)(a)(iii) of this section; or

Minister to publish copy or summary of subsection (1) notice

(7) The Minister must publish a copy or summary of the instrument referred to in subsection (1). The regulations may specify how the publication is to be made. Subject to any such regulations, the publication must be made in a way that the Minister considers appropriate.

Additional requirements if place etc. is removed under subsection (1)

(8) If, under subsection (1), the Minister removes from the National Heritage List the place or a National Heritage value of the place, or alters the boundary of the place described in the List, the Minister must, within 10 business days after the removal or alteration:

(a) publish a copy of the instrument referred to in subsection (1) on the internet; and

(b) advise each person identified by the Minister as an owner or occupier of all or part of the place of the removal or alteration.

Note: For the obligation to identify owners or occupiers, see subsection 324JL(3).

Requirements if place is removed under subsection (4)

(9) If, under subsection (4), the place, and its listed National Heritage values, are removed from the National Heritage List, the Minister must, within 10 business days after the removal:

(a) publish notice of the removal on the internet; and

(b) advise each person identified by the Minister as an owner or occupier of all or part of the place of the removal.

Note: For the obligation to identify owners or occupiers, see subsection 324JL(3).

Alternative methods of notifying owners and occupiers

(10) If the Minister is satisfied that there are likely to be at least 50 persons referred to in paragraph (8)(b) or (9)(b), the Minister may satisfy the requirements of that paragraph in relation to those persons by including the advice referred to in that paragraph in one or more of the following:

(a) advertisements in a newspaper, or newspapers, circulating in the area in which the place is located;

(b) letters addressed to “The owner or occupier” and left at all the premises that are wholly or partly within the place;

Subdivision BC—Other provisions relating to the National Heritage List

324JR Co‑ordination with Scientific Committee—Council undertaking assessment

(1) This section applies if:

(a) the Australian Heritage Council undertakes an assessment of a place under Subdivision BA or Subdivision BB; and

(b) before giving the assessment to the Minister, the Council becomes aware that:

(i) the Scientific Committee is undertaking, or has undertaken, an assessment under Division 1 of Part 13; and

(ii) there is a matter that is relevant to both the assessment referred to in paragraph (a) and the assessment referred to in subparagraph (i).

(2) A member of the Australian Heritage Council may discuss the matter with a member of the Scientific Committee.

(3) Before the Australian Heritage Council gives an assessment of the place to the Minister under Subdivision BA or Subdivision BB, the Council must comply with subsection (4) or (6).

(4) If the Scientific Committee has not yet given the Minister an assessment that deals with that matter, the Australian Heritage Council must:

(a) give the Scientific Committee a copy of the assessment of the place that the Council proposes to give to the Minister; and

(b) invite the Scientific Committee to give the Council its comments in relation to that matter; and

(c) take into account, in finalising the assessment of the place that the Council gives the Minister, any comments that the Scientific Committee makes in relation to that matter in response to that invitation within 14 days, or such longer period as is specified in the invitation, after being given the invitation.

(5) If the Australian Heritage Council gives the Scientific Committee a copy of a proposed assessment of a place under paragraph (4)(a), the Council must also give the Scientific Committee a copy of the assessment of that place that the Council gives the Minister.

(6) If:

(a) the Scientific Committee has already given the Minister an assessment that deals with that matter; and

(b) the Australian Heritage Council has been given a copy of that assessment;

the Australian Heritage Council must take that assessment into account in finalising the assessment of the place that the Council gives the Minister.

(7) If, under section 194S or 194T, the Scientific Committee gives the Australian Heritage Council a proposed assessment, or an assessment, that deals with a particular matter because the Council is undertaking an assessment that deals with that matter, a member of the Council may discuss that matter with a member of the Scientific Committee.

(8) Subsection (2), paragraph (4)(a) and subsections (5) and (7) have effect despite section 324R.

324JS Co‑ordination with Scientific Committee—Council given assessment to Minister

(1) This section applies if:

(a) the Australian Heritage Council has given to the Minister an assessment of a place under Subdivision BA or Subdivision BB; and

(b) the Council is aware that:

(i) the Scientific Committee is undertaking an assessment under Division 1 of Part 13; and

(ii) there is a matter that is relevant to both the assessment referred to in paragraph (a) and the assessment referred to in subparagraph (i).

(2) The Australian Heritage Council must, within 7 days after becoming aware as referred to in paragraph (1)(b):

(a) ensure the Scientific Committee is aware of the existence of the paragraph (1)(a) assessment dealing with the matter; and

(b) give the Scientific Committee a copy of the assessment.

(3) A member of the Australian Heritage Council may discuss the matter with a member of the Scientific Committee.

(4) Subsections (2) and (3) have effect despite section 324R.

324K Listing process not affected by changing boundaries of a place

(1) This section is about compliance with a provision of Subdivision BA or BB that requires or permits an act to be done in relation to the place identified by express or implied reference to an earlier provision of that Subdivision.

(2) It is sufficient compliance with the provision if the act is done in relation to a place whose boundary overlaps the boundary of the place identified by reference to the earlier provision.

(3) This section does not affect the validity of the act so far as that depends on something other than the act being done in relation to the place.

324L Removal of places or National Heritage values from the National Heritage List

(1) The Minister may remove all or part of a place from the National Heritage List only if the Minister is satisfied that:

(a) ignoring subsection 324D(2), the place no longer has any National Heritage values or the part no longer contributes to any of the National Heritage values of the place; or

(b) it is necessary in the interests of Australia’s defence or security to do so.

Note: A place or part of a place may also be removed from the National Heritage List under subsection 324JQ(1).

(2) The Minister may remove one or more National Heritage values included in the National Heritage List for a National Heritage place only if the Minister is satisfied that:

(a) ignoring subsection 324D(2), the place no longer has the National Heritage value or values; or

(b) it is necessary in the interests of Australia’s defence or security to do so.

(3) The Minister may remove all or part of a place, or a National Heritage value of a place, only by instrument:

(a) published in the Gazette; and

(b) including a statement of the reasons for the removal.

Note: The Minister must first obtain and consider the advice of the Australian Heritage Council (see section 324M).

(4) The instrument must deal with only one of the following kinds of removal:

(a) removal (removal for loss of value) of a place, part or National Heritage value because of paragraph (1)(a) or (2)(a);

(b) removal of a place, part or National Heritage value because of paragraph (1)(b) or (2)(b).

If the instrument purports to deal with both kinds, it has no effect so far as it deals with a removal for loss of value.

(5) If the instrument deals only with removal for loss of value, the instrument:

(a) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901; and

(b) takes effect (despite section 48 of that Act) on the first day on which it is no longer liable to be disallowed, or to be taken to have been disallowed, under that section as it applies in relation to the instrument because of section 46A of that Act.

(6) Within 10 business days of publication of the instrument in the Gazette, the Minister must publish, on the internet and in each other way required by the regulations (if any), a copy of the instrument.

324M Minister must consider advice of the Australian Heritage Council and public comments

(1) Before the Minister removes from the National Heritage List under section 324L all or part of a place or one or more of a place’s National Heritage values in a removal for loss of value, the Minister must:

(a) give the Chair of the Australian Heritage Council a written request for the Council to give the Minister advice on the proposed removal; and

(b) publish, on the internet, in a daily newspaper circulating in each State and self‑governing Territory and in each other way required by the regulations (if any), a notice:

(i) describing the proposed removal; and

(ii) inviting anyone to give the Minister comments, within 20 business days, on the proposed removal.

The Minister must publish the notice within 20 business days of giving the request.

(2) The Australian Heritage Council must give the advice to the Minister within the period specified by the Minister.

(3) The Minister must consider the advice, if he or she receives it by the end of that period, and the comments (if any) received in accordance with the notice.

(4) In preparing the advice, the Australian Heritage Council must not consider any matter that does not relate to the National Heritage values of the place concerned.

(5) The Minister must:

(a) decide whether to remove from the National Heritage List the place or part concerned, or the National Heritage value or values of the place concerned; and

(b) if the Minister decides to remove the place or part, or the National Heritage value or values of the place—ensure that an instrument removing the place, part or National Heritage value or values is published in the Gazette under subsection 324L(3);

within 60 business days after the earlier of the advice being received by the Minister and the specified period for giving advice to the Minister ending.

324N Specifying one or more additional National Heritage values for a National Heritage place

(1) The regulations may make provision for, or in relation to, the specification in the National Heritage List of additional National Heritage values in relation to National Heritage places.

(2) Without limiting the generality of subsection (1), regulations may make provision as mentioned in that subsection by specifying modifications of provisions of this Act. However, regulations must not:

(a) increase, or have the effect of increasing, the maximum penalty for any offence; or

(b) widen, or have the effect of widening, the scope of any offence.

(3) In this section:

modifications includes additions, omissions or substitutions.

324P National Heritage List must be publicly available

The Minister must ensure that:

(a) up‑to‑date copies of the National Heritage List are available for free to the public on request; and

(b) an up‑to‑date copy of the National Heritage List is available on the internet.

Note: The copies of the National Heritage List made publicly available may not contain certain information kept confidential under section 324Q.

324Q Certain information may be kept confidential

(1) This section applies if the Minister considers that the heritage values of a place could be significantly damaged by the disclosure of some or all of the following information, or by the presence or actions of persons if some or all of the following information were disclosed publicly:

(a) the place’s precise location;

(b) the place’s heritage values;

(2) It is sufficient compliance with this Act if only a general description of the place, its location or its National Heritage values is included in:

(a) the National Heritage List as made publicly available; or

(b) an instrument or other document created for the purposes of this Act.

324R Disclosure of Australian Heritage Council’s assessments and advice

(1) A member of the Australian Heritage Council has a duty not to disclose the following to a person other than the Minister, an employee in the Department whose duties relate to the Council or another member of the Council:

(a) an assessment under section 324JH whether a place meets any of the National Heritage criteria, any information relating to the assessment or any information about the nomination (if any) that led to the making of the assessment;

(b) advice under section 324M concerning a place or any information relating to the advice.

(2) However:

(a) the duty not to disclose a thing described in paragraph (1)(a) in relation to a place does not exist after:

(i) publication in the Gazette of an instrument under paragraph 324JJ(1)(a) or subsection 324JQ(1) in relation to the place; or

(ii) the Minister decides under paragraph 324JJ(1)(b) not to include the place in the National Heritage List; and

(b) the duty not to disclose a thing described in paragraph (1)(b) in relation to a place does not exist after:

(i) publication in the Gazette of an instrument under section 324L relating to the place; or

(ii) the Minister decides under section 324M not to remove the place or a part of the place, or one or more of the place’s National Heritage values, from the National Heritage List.

(2A) This section does not prevent the Australian Heritage Council from informing a person, or having discussions with a person, about the consequences that result or may result from:

(a) a place being, or not being, included in the National Heritage List; or

(b) National Heritage values of a place being, or not being, included in the List; or

(2B) Subsection (1) does not apply to a disclosure of particular information if:

(a) the Chair of the Australian Heritage Council requests the Minister to give permission to disclose that information to a particular person (or persons within a particular group of persons); and

(b) the Minister gives that permission; and

(3) After a member of the Australian Heritage Council has ceased under subsection (2) to have a duty not to disclose:

(a) an assessment under section 324JH whether a place meets the National Heritage criteria; or

(b) advice under section 324M concerning a place;

the member must give a copy of the assessment or advice to anyone who asks for it.

(4) If:

(a) a member of the Australian Heritage Council proposes to give a person under subsection (3) a copy of an assessment or advice relating to a place; and

(b) the member is aware that, under section 324Q, it would be sufficient compliance with this Act if the copy included only a general description of the place, its location or its National Heritage values;

the member must take reasonable steps to ensure that the copy given to the person does not include a more detailed description than is necessary for sufficient compliance with this Act under that section.

Subdivision C—Management plans for National Heritage places in Commonwealth areas

324S Management plans for National Heritage places in Commonwealth areas

(1) The Minister must make a written plan to protect and manage the National Heritage values of each National Heritage place that is entirely within one or more Commonwealth areas. The Minister must do so as soon as practicable after the first time the place satisfies both of the following paragraphs:

(a) the place is included in the National Heritage List;

(b) the place is entirely within one or more Commonwealth areas.

Note: However, section 324T precludes the Minister from making plans for managing certain places.

(2) The Minister may, in writing, amend a plan or revoke and replace a plan.

(3) The Minister must give notice, in accordance with the regulations, if the Minister:

(a) makes a plan for a National Heritage place; or

(b) amends such a plan; or

(4) A plan must:

(a) address the matters prescribed by the regulations; and

(b) not be inconsistent with the National Heritage management principles (see Subdivision E).

(5) If the National Heritage management principles change so that a plan (the earlier plan) is inconsistent with them, the Minister must as soon as practicable make a written instrument:

(a) amending the earlier plan to make it consistent with the principles; or

(b) revoking and replacing the earlier plan.

(6) Before making, amending or revoking and replacing a plan, the Minister must:

(a) seek in accordance with the regulations, and consider, comments from anyone about the matters to be addressed by the proposed plan or amendment; and

(b) seek and consider comments from the Australian Heritage Council about those matters.

(7) A plan, an amendment of a plan, or a revocation and replacement of a plan, is a legislative instrument.

324T Restriction on ability to make plans

(1) Despite section 324S, the Minister must not make a plan for managing so much of a National Heritage place as is in a Commonwealth reserve and covered by another plan under this Act.

(2) Despite section 324S, the Minister must not make a plan for managing so much of a National Heritage place as is in the Territory of Heard Island and McDonald Islands and covered by a plan in operation under the Environment Protection and Management Ordinance 1987 of that Territory.

324U Compliance with plans by the Commonwealth and Commonwealth agencies

(1) The Commonwealth or a Commonwealth agency must not:

(a) contravene a plan made under section 324S; or

(b) authorise another person to do, or omit to do, anything that, if it were done or omitted to be done by the Commonwealth or the Commonwealth agency (as appropriate), would contravene such a plan.

(2) If there is no plan in force under section 324S for a particular National Heritage place described in subsection (1) of that section, the Commonwealth and each Commonwealth agency must take all reasonable steps to ensure that its acts (if any) relating to the place are not inconsistent with the National Heritage management principles.

324V Multiple plans in the same document

To avoid doubt, a plan for managing a National Heritage place may be in the same document as:

(a) one or more other plans for managing National Heritage places; or

(b) one or more other plans that this Act or another law of the Commonwealth requires or permits to be prepared.

324W Review of plans at least every 5 years

(1) At least once in every 5 year period after a plan for managing a National Heritage place is made under section 324S, the Minister must cause a review of the plan to be carried out.

(2) The review must:

(a) assess whether the plan is consistent with the National Heritage management principles in force at the time; and

(b) assess whether the plan is effective in protecting and conserving the National Heritage values of the place; and

(3) The person carrying out the review must publish, on the internet and in a daily newspaper circulating in each State and self‑governing Territory, a notice inviting anyone to give the person comments within 20 business days on:

(a) whether the plan is consistent with the National Heritage management principles; and

(b) the effectiveness of the plan in protecting and conserving the National Heritage values of the place.

(4) In carrying out the review, the person must consider the comments (if any) received in accordance with the notice.

Subdivision D—Management of National Heritage places in States and self‑governing Territories

324X Plans and Commonwealth responsibilities

(1) This section applies to a National Heritage place that is not entirely within one or more Commonwealth areas and is:

(a) in a State; or

(b) in a self‑governing Territory; or

(c) on, over or under the seabed vested in a State by the Coastal Waters (State Title) Act 1980 or in the Northern Territory by the Coastal Waters (Northern Territory Title) Act 1980.

(2) The Commonwealth must use its best endeavours to ensure a plan for managing the place, that is not inconsistent with the National Heritage management principles, is prepared and implemented in co‑operation with the State or Territory.

(2A) Subsection (2) does not apply in relation to so much of a place as is in the Great Barrier Reef Marine Park.

(3) The Commonwealth, and each Commonwealth agency, must take all reasonable steps to ensure it exercises its powers and performs its functions in relation to the place in a way that is not inconsistent with:

(a) the National Heritage management principles; or

(b) the plan for managing the place, if one has been prepared under subsection (2).

Subdivision E—The National Heritage management principles

324Y National Heritage management principles

(1) The regulations must prescribe principles for managing National Heritage places. The principles prescribed are the National Heritage management principles.

(2) The regulations may prescribe obligations to implement or give effect to the National Heritage management principles if the obligations relate to:

(a) a constitutional corporation, the Commonwealth or a Commonwealth agency; or

(b) trade or commerce:

(i) between Australia and another country; or

(ii) between 2 States; or

(iii) between a State and Territory; or

(iv) between 2 Territories; or

(i) a Commonwealth area;

(ii) a Territory; or

(d) the National Heritage values, to the extent that they are indigenous heritage values, of a National Heritage place; or

(e) the National Heritage values of a National Heritage place in an area in respect of which Australia has obligations under Article 8 of the Biodiversity Convention.

(3) A person must comply with the regulations to the extent that they impose obligations on the person.

(4) Paragraph (2)(e) applies only to a prescribed obligation that is appropriate and adapted to give effect to Australia’s obligations under Article 8 of the Biodiversity Convention.

Subdivision F—Obligations of Commonwealth agencies

324Z Obligation to assist the Minister and the Australian Heritage Council

(1) A Commonwealth agency that owns or controls a place that has, or might have, one or more National Heritage values must take all reasonable steps to assist the Minister and the Australian Heritage Council in the identification, assessment and monitoring of the place’s National Heritage values.

(2) A Commonwealth agency that owns or controls all or part of a National Heritage place must take all reasonable steps to assist the Minister to make a plan under section 324S for the place.

324ZA Protecting National Heritage values of places sold or leased

(1) This section applies if a Commonwealth agency executes a contract for the sale or lease to someone else of a Commonwealth area in the Australian jurisdiction that is or includes all or part of a National Heritage place. It does not matter whether the agency executes the contract for the Commonwealth or on its own behalf.

(1A) The Commonwealth agency must give the Minister at least 40 business days’ notice before executing the contract.

(2) The Commonwealth agency must ensure that the contract includes a covenant the effect of which is to protect the National Heritage values of the place, unless the agency is satisfied that:

(a) having regard to other means of protecting those values, including such a covenant in the contract is unnecessary to protect them or is unreasonable; or

(b) including such a covenant in the contract is impracticable.

(3) The Commonwealth agency must inform the Minister before executing the contract if:

(a) such a covenant:

(i) would not, or could not be made to, bind the successors in title of the buyer or lessee; or

(ii) could be insufficient to ensure the ongoing protection of the National Heritage values of the place; or

(b) the agency is satisfied as described in subsection (2).

The information must include written reasons why paragraph (a) applies or why the agency is satisfied as described in subsection (2).

(4) If the Minister is informed of a matter in paragraph (3)(a) or that the Commonwealth agency is satisfied that it is unreasonable or impracticable to include such a covenant in the contract, the Minister must:

(a) take all reasonable measures to enter into a conservation agreement with the prospective buyer or lessee for the protection and conservation of the National Heritage values of the place; or

(b) advise the agency about measures to ensure the ongoing protection of the National Heritage values of the place.

(5) If the Minister is informed that the Commonwealth agency is satisfied that it is unnecessary to include such a covenant in the contract, the Minister may advise the agency about measures to ensure the ongoing protection of the National Heritage values of the place.

(6) If the Minister advises the Commonwealth agency under this section about measures to ensure the ongoing protection of the National Heritage values of the place, the agency must take all reasonable steps to ensure that the measures are taken.

Subdivision G—Assistance for protecting National Heritage places

324ZB Commonwealth assistance for protecting National Heritage places

(1) The Commonwealth may give financial or other assistance for the identification, promotion, protection or conservation of a National Heritage place to:

(a) a State or self‑governing Territory in which the place or part of the place is located; or

(b) any other person.

(2) The Commonwealth may give the assistance subject to conditions.

Subdivision H—Reviewing and reporting on the National Heritage List

324ZC Reviewing and reporting on the National Heritage List

(1) At least once in every 5 year period after the National Heritage List is established, the Minister must ensure that:

(a) a review of the National Heritage List is carried out; and

(b) a report of that review is tabled in each House of the Parliament.

(2) The report must include details of:

(a) the number of places included in the National Heritage List; and

(b) any significant damage or threat to the National Heritage values of those places; and

(c) how many plans under Subdivisions C and D for managing National Heritage places have been made, or are being prepared, and how effectively the plans that have been made are operating; and

(d) the operation of any conservation agreements under Part 14 that affect National Heritage places; and

(e) all nominations, assessments and changes to the National Heritage List under this Division during the period of review; and

(f) compliance with this Act in relation to National Heritage places; and

(g) any other matters that the Minister considers relevant.

Division 2—Managing wetlands of international importance

Subdivision A—Simplified outline of this Division

325 Simplified outline of this Division

The following is a simplified outline of this Division:

The Commonwealth may designate a wetland for inclusion in the List of Wetlands of International Importance kept under the Ramsar Convention only after seeking the agreement of relevant States, self‑governing Territories and land‑holders.

The Minister must make plans for managing wetlands listed under the Ramsar Convention that are entirely in Commonwealth areas. The Commonwealth and Commonwealth agencies must not contravene such plans.

The Commonwealth must try to prepare and implement management plans for other wetlands listed under the Ramsar Convention, in co‑operation with the relevant States and self‑governing Territories.

The Commonwealth and Commonwealth agencies have duties relating to declared Ramsar wetlands in States and Territories.

The Commonwealth can provide assistance for the protection or conservation of declared Ramsar wetlands.

Note: Section 16 prohibits an action that has a significant impact on an internationally important wetland, unless the person taking the action has the approval of the Minister administering that section or certain other requirements are met.

Subdivision B—Seeking agreement on Ramsar designation

326 Commonwealth must seek agreement before designation

(1) The Commonwealth may designate for inclusion in the List of Wetlands of International Importance kept under the Ramsar Convention a wetland containing an area owned or occupied by another person only if the Minister is satisfied that the Commonwealth has used its best endeavours to reach agreement with the other person on:

(a) the proposed designation of the wetland (so far as it relates to the area); and

(b) management arrangements for the wetland (so far as they relate to the area).

(2) The Commonwealth may designate a wetland in a State or self‑governing Territory for inclusion in the List of Wetlands of International Importance kept under the Ramsar Convention only if the Minister is satisfied that the Commonwealth has used its best endeavours to reach agreement with the State or Territory on:

(a) the proposed submission of the wetland; and

(b) management arrangements for the wetland.

(3) A failure to comply with this section does not affect the designation of a wetland for inclusion in the List of Wetlands of International Importance kept under the Ramsar Convention or the status of a wetland as a declared Ramsar wetland.

Subdivision C—Notice of designation of wetland

327 Minister must give notice of designation of wetland etc.

(1) The Minister must give notice in the Gazette and in the way (if any) prescribed by the regulations of any of the following events as soon as practicable after the event occurs:

(a) the Commonwealth designates a wetland for inclusion in the List of Wetlands of International Importance kept under the Ramsar Convention;

(b) the Commonwealth extends the boundaries of a wetland it has included in the List;

(d) the Commonwealth deletes from the List a wetland it previously included in the List.

(2) The notice must specify the area included in, or excluded or deleted from, the List as a result of the event.

(3) A failure to comply with this section does not affect the status of an area as a declared Ramsar wetland.

Subdivision D—Plans for listed wetlands in Commonwealth areas

328 Making plans

Minister must make plan

(1) The Minister must make a written plan for managing a wetland that is included in the List of Wetlands of International Importance kept under the Ramsar Convention and is entirely within one or more Commonwealth areas. The Minister must do so as soon as practicable after the wetland:

(a) is included in the List; or

(b) becomes entirely within one or more Commonwealth areas.

Amending and replacing plan

(2) The Minister may make a written plan amending, or revoking and replacing, a plan made under subsection (1) or this subsection.

Requirements for plan

(3) A plan must not be inconsistent with:

(a) Australia’s obligations under the Ramsar Convention; or

(b) the Australian Ramsar management principles.

Note: Section 335 explains what Australian Ramsar management principles are.

Ensuring plans reflect current management principles

(4) If the Australian Ramsar management principles change so that a plan (the earlier plan) is inconsistent with them, the Minister must make another plan:

(a) amending the earlier plan so it is not inconsistent with them; or

(b) revoking and replacing the earlier plan.

Plan may be in same document as another plan

(5) To avoid doubt, a plan under this section for a wetland may be in the same document as:

(a) a plan under this section for another wetland; or

(b) a plan that this Act or another law of the Commonwealth requires or permits to be prepared.

Commonwealth reserves

(6) Despite subsections (1) and (2), the Minister may not make a plan for so much of a wetland as is in a Commonwealth reserve.

Note: A management plan must be prepared under Division 4 for a Commonwealth reserve, taking account of Australia’s obligations under the Ramsar Convention.

Heard Island and McDonald Islands

(7) Despite subsections (1) and (2), the Minister may not make a plan for so much of a wetland as is in the Territory of Heard Island and McDonald Islands and covered by a plan:

(a) that is in operation under the Environment Protection and Management Ordinance 1987 of that Territory; and

(b) that the Minister is satisfied is not inconsistent with:

(i) Australia’s obligations under the Ramsar Convention; or

(ii) the Australian Ramsar management principles.

329 Notice of plans

The Minister must give notice of the making of a plan under section 328, in accordance with the regulations.

330 Commonwealth compliance with plans

(1) The Commonwealth or a Commonwealth agency must not:

(a) contravene a plan made under section 328; or

(b) authorise another person to do, or omit to do, anything that, if it were done or omitted to be done by the Commonwealth or the Commonwealth agency (as appropriate), would contravene such a plan.

(2) If there is no plan in force under section 328 for a particular wetland described in subsection (1) of that section, the Commonwealth and each Commonwealth agency must take all reasonable steps to ensure that its acts (if any) relating to the wetland are not inconsistent with the Australian Ramsar management principles.

331 Review of plans every 5 years

(1) The Minister must cause a review of a plan made under section 328 to be carried out at least once in each period of 5 years after the plan is made.

(2) The review must consider whether the plan is consistent with the Australian Ramsar management principles in force at the time.

Note: Section 335 explains what Australian Ramsar management principles are.

Subdivision E—Management of wetlands in States and self‑governing Territories

332 Application

This Subdivision applies in relation to a wetland that:

(a) is:

(i) in a State; or

(ii) in a self‑governing Territory; or

(iii) on, over or under the seabed vested in a State by the Coastal Waters (State Title) Act 1980 or in the Northern Territory by the Coastal Waters (Northern Territory Title) Act 1980; and

(b) is not entirely within one or more Commonwealth areas.

333 Co‑operating to prepare and implement plans

(1) This section applies in relation to a wetland that is included in the List of Wetlands of International Importance kept under the Ramsar Convention.

(2) The Commonwealth must use its best endeavours to ensure a plan for managing the wetland in a way that is not inconsistent with Australia’s obligations under the Ramsar Convention or the Australian Ramsar management principles is prepared and implemented in co‑operation with the State or Territory.

Note: The Commonwealth and the State or Territory could make a bilateral agreement adopting the plan and providing for its implementation.

334 Commonwealth responsibilities

(1) This section applies in relation to a wetland that is a declared Ramsar wetland.

(2) The Commonwealth and each Commonwealth agency must take all reasonable steps to ensure it exercises its powers and performs its functions in relation to the wetland in a way that is not inconsistent with:

(a) the Ramsar Convention; and

(b) the Australian Ramsar management principles; and

(c) if the wetland is included in the List of Wetlands of International Importance kept under the Ramsar Convention and a plan for managing the property has been prepared as described in section 333—that plan.

Subdivision F—Australian Ramsar management principles

335 Australian Ramsar management principles

(1) The regulations must prescribe principles for the management of wetlands included in the List of Wetlands of International Importance kept under the Ramsar Convention. The principles prescribed are the Australian Ramsar management principles.

Subdivision G—Assistance for protecting wetlands

336 Commonwealth assistance for protecting declared Ramsar wetlands

(1) The Commonwealth may give financial or other assistance for the protection or conservation of a declared Ramsar wetland to:

(a) a State or self‑governing Territory in which the wetland occurs; or

(b) any other person.

(2) The giving of assistance may be made subject to such conditions as the Minister thinks fit.

Division 3—Managing Biosphere reserves

337 Definition of Biosphere reserve

A Biosphere reserve is an area designated for inclusion in the World Network of Biosphere Reserves by the International Co‑ordinating Council of the Man and the Biosphere program of the United Nations Educational, Scientific and Cultural Organization.

338 Planning for management of Biosphere reserves

(1) The Minister may make and implement a written plan for managing a Biosphere reserve, or a part of a Biosphere reserve, entirely within one or more Commonwealth areas. The plan must not be inconsistent with the Australian Biosphere reserve management principles.

(2) The Commonwealth may co‑operate with a State or self‑governing Territory to prepare and implement a plan for managing a Biosphere reserve in the State or Territory. The plan must not be inconsistent with the Australian Biosphere reserve management principles.

339 Commonwealth activities in Biosphere reserves

The Commonwealth and each Commonwealth agency must take all reasonable steps to ensure that it exercises its powers and performs its functions in relation to a Biosphere reserve in a way that is not inconsistent with:

(a) the Australian Biosphere reserve management principles; or

(b) a plan prepared as described in section 338 for managing the Biosphere reserve.

340 Australian Biosphere reserve management principles

(1) The regulations must prescribe principles for the management of Biosphere reserves. The principles prescribed are the Australian Biosphere reserve management principles.

(2) Before the Governor‑General makes regulations prescribing principles, the Minister must be satisfied that the principles to be prescribed are consistent with the Statutory Framework of the World Network of Biosphere Reserves established under the Man and the Biosphere program of the United Nations Educational, Scientific and Cultural Organization.

341 Commonwealth assistance for protecting Biosphere reserves

(1) The Commonwealth may give financial or other assistance for the protection or conservation of a Biosphere reserve to:

(a) a State or self‑governing Territory in which the reserve or part of the reserve occurs; or

(b) any other person.

(2) The giving of assistance may be made subject to such conditions as the Minister thinks fit.

Division 3A—Managing Commonwealth Heritage places

Subdivision A—Preliminary

341A Simplified outline of this Division

The following is a simplified outline of this Division:

The Minister may only include a place in the Commonwealth Heritage List if the place is in a Commonwealth area, or is owned or leased by the Commonwealth or a Commonwealth agency outside the Australian jurisdiction, and the Minister is satisfied that the place has one or more Commonwealth Heritage values.

The Minister must ask the Australian Heritage Council for an assessment of the place’s Commonwealth Heritage values and may invite public comments on the proposed inclusion of the place in the Commonwealth Heritage List.

Commonwealth agencies must make plans to protect and manage the Commonwealth Heritage values of Commonwealth Heritage places. The Commonwealth and Commonwealth agencies must not contravene those plans.

Commonwealth agencies also have other obligations.

The Commonwealth can provide assistance for the identification, promotion, protection or conservation of Commonwealth Heritage places.

341B Extension to places etc. outside the Australian jurisdiction

This Division extends to places, acts and omissions outside the Australian jurisdiction, except so far as the contrary intention appears.

Subdivision B—The Commonwealth Heritage List

341C The Commonwealth Heritage List

(1) The Minister must keep a written record of places and their heritage values in accordance with this Subdivision and Subdivisions BA, BB and BC. The record is called the Commonwealth Heritage List.

(2) A place may be included in the Commonwealth Heritage List only if:

(a) the place either:

(i) is entirely within a Commonwealth area; or

(ii) is outside the Australian jurisdiction and is owned or leased by the Commonwealth or a Commonwealth Authority; and

(b) the Minister is satisfied that the place has one or more Commonwealth Heritage values (subject to the provisions in Subdivision BB about the emergency process).

(3) A place that is included in the Commonwealth Heritage List is called a Commonwealth Heritage place.

(4) The Commonwealth Heritage List is not a legislative instrument.

341D Meaning of Commonwealth Heritage values

(1) A place has a Commonwealth Heritage value if and only if the place meets one of the criteria (the Commonwealth Heritage criteria) prescribed by the regulations for the purposes of this section. The Commonwealth Heritage value of the place is the place’s heritage value that causes the place to meet the criterion.

(2) The Commonwealth Heritage values of a Commonwealth Heritage place are the Commonwealth Heritage values of the place included in the Commonwealth Heritage List for the place.

(3) The regulations must prescribe criteria for the following:

(a) natural heritage values of places;

(b) indigenous heritage values of places;

The regulations may prescribe criteria for other heritage values of places.

(4) To avoid doubt, a criterion prescribed by the regulations may relate to one or more of the following:

(a) natural heritage values of places;

(b) indigenous heritage values of places;

(d) other heritage values of places.

Subdivision BA—Inclusion of places in the Commonwealth Heritage List: usual process

341E Simplified outline

The following is a simplified outline of this Subdivision:

This Subdivision sets out the usual process for the inclusion of places in the Commonwealth Heritage List.

The usual process involves an annual cycle that revolves around 12‑month periods known as assessment periods. The Minister determines the start of the first assessment period (see section 341G).

The usual process involves the following steps for each assessment period:

(a) the Minister invites people to nominate places for inclusion in the Commonwealth Heritage List, and gives the nominations to the Australian Heritage Council (see sections 341H and 341J);

(b) the Australian Heritage Council prepares, and gives to the Minister, a list of places (which will mostly be places that have been nominated) that it thinks should be assessed (see sections 341JA, 341JB and 341JC);

(d) the Australian Heritage Council invites people to make comments about the places in the finalised list (see section 341JF);

(e) the Australian Heritage Council assesses the places in the finalised list, and gives the assessments to the Minister (see sections 341JG and 341JH);

(f) the Minister decides whether a place that has been assessed should be included in the Commonwealth Heritage List (see section 341JI).

The steps mentioned in paragraphs (a) to (c) will generally be completed before the start of the assessment period.

341F Definitions

In this Subdivision:

assessment period has the meaning given by subsection 341G(1).

eligible for assessment consideration, in relation to an assessment period, has the meaning given by subsection 341JA(3).

finalised priority assessment list for an assessment period has the meaning given by subsection 341JD(4).

proposed priority assessment list for an assessment period has the meaning given by subsection 341JA(1).

341G Meaning of assessment period

(1) For the purposes of this Subdivision, each of the following is an assessment period:

(a) the period of 12 months starting on the day determined in writing by the Minister for the purposes of this paragraph;

(b) each period of 12 months starting on an anniversary of the day so determined.

(3) A determination under paragraph (1)(a) is a legislative instrument, but neither section 42 nor Part 6 of the Legislative Instruments Act 2003 applies to the determination.

341H Minister to invite nominations for each assessment period

(1) Before the start of each assessment period, the Minister must publish a notice inviting people to nominate places for inclusion in the Commonwealth Heritage List.

Note: For which places can be included in the Commonwealth Heritage List, see subsection 341C(2).

(2) A notice under subsection (1):

(a) must be published in accordance with the regulations referred to in paragraph (3)(a); and

(b) must invite people to nominate, to the Minister, places for inclusion in the Commonwealth Heritage List; and

(d) must specify a date (the cut‑off date) by which nominations must be received, which must be at least 40 business days after the notice has been published as required by paragraph (a); and

(e) must specify, or refer to, the information requirements, and the manner and form requirements, that, under regulations referred to in paragraphs (3)(b) and (c), apply to making nominations; and

(f) may also include any other information that the Minister considers appropriate.

(3) The regulations must provide for the following:

(a) how a notice under subsection (1) is to be published;

(b) the manner and form for making nominations;

341J Minister to give nominations to Australian Heritage Council

Nominations in relation to first assessment period

(1) Within 30 business days after the cut‑off date specified in the notice under subsection 341H(1) for the first assessment period, the Minister must give the Australian Heritage Council the nominations that the Minister:

(a) had received before the end of that cut‑off date; and

(b) had not already requested the Australian Heritage Council, under section 341E (as in force before the commencement of this section), to assess; and

(d) does not reject under subsection (4).

(2) Subsection (1) does not apply to a nomination of a place if the Minister had, before the commencement of this section, included the place in the Commonwealth Heritage List under section 341F (as in force before the commencement of this section).

Nominations in relation to later assessment periods

(3) Within 30 business days after the cut‑off date (the current cut‑off date) specified in the notice under subsection 341H(1) for an assessment period (other than the first), the Minister must give the Australian Heritage Council the nominations that were received by the Minister in the period:

(a) starting immediately after the end of the cut‑off date specified in the notice under subsection 341H(1) for the immediately preceding assessment period; and

(b) ending at the end of the current cut‑off date;

other than any such nominations that the Minister has rejected under subsection (4).

Minister may reject nominations

(4) The Minister may, in writing, reject a nomination if the Minister considers that:

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

(b) the Minister considers that regulations referred to in paragraph 341H(3)(b) or (c) have not been complied with in relation to the nomination.

Definition

(6) In this section:

nomination means a nomination of a place for inclusion in the Commonwealth Heritage List.

341JA Australian Heritage Council to prepare proposed priority assessment list

(1) Within 40 business days after the Australian Heritage Council receives the nominations as required by subsection 341J(1) in relation to an assessment period, the Council must prepare and give to the Minister a list (the proposed priority assessment list) for the assessment period.

(a) the Council’s own views about what should be given priority in relation to the assessment period; and

(b) the Council’s capacity to make assessments under this Division while still performing its other functions; and

(3) A place is eligible for assessment consideration in relation to the assessment period if:

(a) the place has been nominated by a nomination referred to in subsection (1); or

(b) the Council itself wishes to nominate the place for inclusion in the Commonwealth Heritage List; or

(d) each part of the place is either a place to which paragraph (a) applies, a place to which paragraph (b) applies or a place to which paragraph (c) applies.

(4) Without limiting the generality of the Australian Heritage Council’s discretion under subsection (2), the Council does not have to include in the proposed priority assessment list a place that has been nominated if the Council considers that it is unlikely that the place has any Commonwealth Heritage values. For this purpose, the Council is not required to have regard to any information beyond the information that was included in the nomination.

(5) The proposed priority assessment list is not a legislative instrument.

341JB Matters to be included in proposed priority assessment list

(1) The proposed priority assessment list for an assessment period is to include, for each place in the list:

(a) a description of the place; and

(b) an assessment completion time; and

(2) The assessment completion time for a place must be either:

(a) a time that is at or before the end of the assessment period to which the list relates; or

341JC Statement to be given to Minister with proposed priority assessment list

(a) for each place that is included in the list—why the Council included the place in the list; and

(b) for each place that is not included in the list but that was eligible for assessment consideration because of paragraph 341JA(3)(a) or (c)—why the Council did not include the place in the list.

(2) The statement must also identify, as places nominated by the Australian Heritage Council:

(a) any places that are included in the list because the Council itself wishes to nominate them (see paragraph 341JA(3)(b)); and

(b) any places that are included in the list because of paragraph 341JA(3)(d) that consist of one or more places to which paragraph 341JA(3)(b) applies.

341JD The finalised priority assessment list

(1) Within 20 business days after the Minister, under section 341JA, receives the proposed priority assessment list for an assessment period, the Minister may, in writing, make changes to the list as mentioned in subsection (2).

(2) The changes the Minister may make are as follows:

(a) including a place in the list (and also including the matters referred to in subsection 341JA(1));

(b) omitting a place from the list (and also omitting the matters referred to in subsection 341JA(1));

(d) any other changes of a kind permitted by the regulations.

(3) In exercising the power to make changes, the Minister may have regard to any matters that the Minister considers appropriate.

(5) The Minister must notify the Australian Heritage Council of all changes that the Minister makes to the list.

(6) The finalised priority assessment list is not a legislative instrument.

341JE Publication of finalised priority assessment list

(1) The Australian Heritage Council must publish the finalised priority assessment list for an assessment period on the internet.

(2) The Australian Heritage Council must also publish the finalised priority assessment list in accordance with any requirements of the regulations.

341JF Australian Heritage Council to invite comments on places in finalised priority assessment list

(3) A notice under subsection (1), in relation to a place or places:

(a) must be published in accordance with the regulations referred to in paragraph (4)(a); and

(b) must identify the place or places to which the notice relates; and

(i) whether the place or places meet any of the Commonwealth Heritage criteria; and

(ii) whether the place or places should be included in the Commonwealth Heritage List; and

(d) must specify the date (the cut‑off date) by which comments must be received, which must be at least 30 business days after the notice has been published as required by paragraph (a); and

(e) must specify, or refer to, the manner and form requirements that, under regulations referred to in paragraph (4)(b), apply to making comments; and

(f) may also invite people to comment on other matters that the Australian Heritage Council considers appropriate; and

(g) may also include any other information that the Australian Heritage Council considers appropriate.

(4) The regulations must provide for the following:

(a) how a notice under subsection (1) is to be published;

(b) the manner and form for making comments.

341JG Australian Heritage Council to assess places on finalised priority assessment list and give assessments to Minister

(1) In relation to each place included in the finalised priority assessment list for an assessment period, the Australian Heritage Council must (by the time required by section 341JH):

(a) make a written assessment whether the place meets any of the Commonwealth Heritage criteria; and

(b) give to the Minister:

(i) the written assessment (or a copy of it); and

(ii) a copy of the comments referred to in paragraphs (2)(a) and (b) (whether or not they have all been taken into account under subsection (2)).

(2) In making an assessment in relation to a place, the Australian Heritage Council, subject to subsections (3) and (4):

(a) must take into account the comments the Council receives in response to the notice under subsection 341JF(1) in relation to the place; and

(b) may take into account the comments the Council receives in response to the opportunity referred to in paragraph (5)(c); and

(3) The Australian Heritage Council is not required to take a comment referred to in paragraph (2)(a) into account if:

(a) the Council does not receive the comment until after the cut‑off date specified in the notice under subsection 341JF(1) in relation to the place; or

(b) the Council considers that regulations referred to in paragraph 341JF(4)(b) have not been complied with in relation to the comment.

(4) In making an assessment, the Australian Heritage Council must not consider any matter that does not relate to the question whether the place meets any of the Commonwealth Heritage criteria.

(5) If, in making an assessment, the Australian Heritage Council considers that a place within the Australian jurisdiction might have one or more Commonwealth Heritage values, the Council must:

(a) take all practicable steps:

(i) to identify each person who is an owner or occupier of all or part of the place; and

(ii) if the Council considers the place might have an indigenous heritage value—to identify each Indigenous person who has rights or interests in all or part of the place; and

(b) take all practicable steps to advise each person identified that the Council is assessing whether the place meets any of the Commonwealth Heritage criteria; and

(c) give persons advised at least 20 business days to comment in writing whether the place should be included in the Commonwealth Heritage List.

(a) advertisements in a newspaper, or newspapers, circulating in the area in which the place is located;

(b) letters addressed to “The owner or occupier” and left at all the premises that are wholly or partly within the place;

(7) If:

(a) the Australian Heritage Council considers that the place might have an indigenous heritage value; and

(b) there are Indigenous persons who:

(i) have rights or interests in all or part of the place; and

(ii) are neither owners nor occupiers of all or part of the place; and

(c) the Australian Heritage Council is satisfied that there is a body, or there are bodies, that can appropriately represent those Indigenous persons in relation to those rights and interests;

341JH Time by which assessments to be provided to Minister

(1) Subsection 341JG(1) must be complied with, in relation to a place included in the finalised priority assessment list for an assessment period, by the assessment completion time specified in the list for the place, or by that time as extended under this section.

(4) An extension under subsection (3) must be made in writing.

(5) If the Minister grants an extension under this section, the Minister must publish particulars of the extension in a way that the Minister considers appropriate.

341JI Decision about inclusion of a place in the Commonwealth Heritage List

Minister to decide whether or not to include place

(1) After receiving from the Australian Heritage Council an assessment under section 341JG whether a place (the assessed place) meets any of the Commonwealth Heritage criteria, the Minister must:

(a) by instrument published in the Gazette, include in the Commonwealth Heritage List:

(i) the assessed place or a part of the assessed place; and

(ii) the Commonwealth Heritage values of the assessed place, or that part of the assessed place, that are specified in the instrument; or

(b) in writing, decide not to include the assessed place in the Commonwealth Heritage List.

Note: The Minister may include a place in the Commonwealth Heritage List only if the Minister is satisfied that the place has one or more Commonwealth Heritage values (see subsection 341C(2)).

(2) Subject to subsection (3), the Minister must comply with subsection (1) within 90 business days after the day on which the Minister receives the assessment.

(3) The Minister may, in writing, extend or further extend the period for complying with subsection (1).

(4) Particulars of an extension or further extension under subsection (3) must be published on the internet and in any other way required by regulations.

(5) For the purpose of deciding what action to take under subsection (1) in relation to the assessed place:

(a) the Minister must have regard to:

(i) the Australian Heritage Council’s assessment whether the assessed place meets any of the Commonwealth Heritage criteria; and

(ii) the comments (if any), a copy of which were given to the Minister under subsection 341JG(1) with the assessment; and

(b) the Minister may seek, and have regard to, information or advice from any source.

Additional requirements if Minister decides to include place

(6) If the Minister includes the assessed place, or a part of the assessed place (the listed part of the assessed place), in the Commonwealth Heritage List, he or she must, within a reasonable time:

(a) take all practicable steps to:

(i) identify each person who is an owner or occupier of all or part of the assessed place; and

(ii) advise each person identified that the assessed place, or the listed part of the assessed place, has been included in the Commonwealth Heritage List; and

(b) if the assessed place:

(i) was nominated; or

(ii) was included in a place that was nominated; or

(iii) includes a place that was nominated;

by a person in response to a notice under subsection 341H(1)—advise the person that the assessed place, or the listed part of the assessed place, has been included in the Commonwealth Heritage List; and

(d) publish a copy or summary of that instrument in accordance with any other requirements specified in the regulations.

(7) Paragraph (6)(a) does not apply unless the assessed place is within the Australian jurisdiction.

(8) If the Minister is satisfied that there are likely to be at least 50 persons referred to in subparagraph (6)(a)(i), the Minister may satisfy the requirements of that paragraph in relation to those persons by including the advice referred to in that paragraph in one or more of the following:

(a) advertisements in a newspaper, or newspapers, circulating in the area in which the assessed place is located;

(b) letters addressed to “The owner or occupier” and left at all the premises that are wholly or partly within the assessed place;

Additional requirements if Minister decides not to include place

(9) If the Minister decides not to include the assessed place in the Commonwealth Heritage List, the Minister must, within 10 business days after making the decision:

(a) publish the decision on the internet; and

(b) if the assessed place:

(i) was nominated; or

(ii) was included in a place that was nominated; or

(iii) includes a place that was nominated;

by a person in response to a notice under subsection 341H(1)—advise the person of the decision, and of the reasons for the decision.

Note: Subsection (9) applies in a case where the Minister decides that none of the assessed place is to be included in the Commonwealth Heritage List.

Subdivision BB—Inclusion of places in the Commonwealth Heritage List: emergency process

341JJ Simplified outline

The following is a simplified outline of this Subdivision:

This Subdivision sets out the emergency process for the inclusion of places in the Commonwealth Heritage List.

The emergency process involves the following steps:

(a) the Minister may include a place in the Commonwealth Heritage List if it is under threat (see section 341JK);

(b) the Minister asks the Australian Heritage Council to assess the place (see section 341JL);

(d) the Australian Heritage Council assesses the place, and gives the assessment to the Minister (see sections 341JN and 341JO);

341JK Minister may include place in Commonwealth Heritage List if under threat

(1) If the Minister believes:

(a) a place has or may have one or more Commonwealth Heritage values; and

(b) any of those values is under threat of a significant adverse impact; and

the Minister may, by instrument published in the Gazette, include in the Commonwealth Heritage List the place and the Commonwealth Heritage values the Minister believes the place has or may have.

Note: For which places can be included in the Commonwealth Heritage List, see subsection 341C(2).

(2) If:

(a) the place is included in the Commonwealth Heritage List under subsection (1); and

(b) before that inclusion of the place, the place was being considered for inclusion in the List under the process set out in Subdivision BA;

that process ceases to apply to the place when it is included in the List under subsection (1).

Note: Subsection (2) does not prevent the process in Subdivision BA again starting to apply to the place if (for example) the place ceases to be listed because of subsection 341JP(1) or (4) and a person subsequently nominates the place under that Subdivision.

(3) If the place is included in the Commonwealth Heritage List under subsection (1), the Minister must:

(a) in any case—within 10 business days after the inclusion of the place, publish a copy of the instrument under subsection (1):

(i) on the internet; and

(ii) in accordance with any other requirements specified in the regulations; and

(b) if the place is within the Australian jurisdiction—take all practicable steps to:

(i) identify each person who is an owner or occupier of all or part of the place; and

(ii) advise each person identified that the place has been included in the Commonwealth Heritage List.

(a) advertisements in a newspaper, or newspapers, circulating in the area in which the place is located;

(b) letters addressed to “The owner or occupier” and left at all the premises that are wholly or partly within the place;

341JL Minister to ask Australian Heritage Council for assessment

(1) If the Minister includes a place in the Commonwealth Heritage List under section 341JK, the Minister must, in writing, request the Australian Heritage Council to give the Minister an assessment of whether the place meets any of the Commonwealth Heritage criteria.

(2) The request must specify the assessment completion time for the assessment.

Note: When specifying an assessment completion time, the 12‑month period referred to in subsection 341JP(1) should be considered.

341JM Publication of listing of place and inviting comments

(1) If the Australian Heritage Council receives a request under subsection 341JL(1) in relation to a place that has been included in the Commonwealth Heritage List, the Council must publish a notice inviting people to comment on the listing of the place.

(2) A notice under subsection (1) in relation to a place:

(a) must be published in accordance with the regulations referred to in paragraph (3)(a); and

(b) must contain the following:

(i) a description of the place;

(ii) a statement that the place has been included in the Commonwealth Heritage List, and that specifies the Commonwealth Heritage values that have been included in the List in relation to the place;

(iii) the date on which the place was so included; and

(i) whether the place meets any of the Commonwealth Heritage criteria; and

(ii) whether the place should continue to be included in the Commonwealth Heritage List; and

(d) must specify the date (the cut‑off date) by which comments must be received, which must be at least 30 business days after the notice has been published as required by paragraph (a); and

(e) must specify, or refer to, the manner and form requirements that, under regulations referred to in paragraph (3)(b), apply to making comments.

(3) The regulations may provide for either or both of the following:

(a) how a notice under subsection (1) is to be published;

(b) the manner and form for making comments.

341JN Australian Heritage Council to assess place and give assessment to Minister

(1) Section 341JG applies in relation to a request under subsection 341JL(1) as if:

(a) a reference in section 341JG to a place included in the finalised priority assessment list for an assessment period were a reference to the place to which the request relates; and

(b) a reference in section 341JG to the notice under subsection 341JF(1) in relation to the place were a reference to the notice under subsection 341JM(1) in relation to the place; and

(c) a reference in section 341JG to regulations referred to in paragraph 341JF(4)(b) were a reference to regulations referred to in paragraph 341JM(3)(b); and

(d) a reference in section 341JG to whether the place should be included in the Commonwealth Heritage List were a reference to whether the place should continue to be included in the Commonwealth Heritage List.

(2) A reference in another provision of this Act to section 341JG, or to a provision of that section, includes a reference to that section or provision as it applies because of this section.

341JO Time by which assessments to be provided to Minister

(1) Section 341JH applies in relation to a request under subsection 341JL(1) as if:

(a) a reference in section 341JH to a place included in the finalised priority assessment list for an assessment period were a reference to the place to which the request relates; and

(b) a reference in section 341JH to the assessment completion time specified in the list for the place were a reference to the assessment completion time specified in the request.

(2) A reference in another provision of this Act to section 341JH, or to a provision of that section, includes a reference to that section or provision as it applies because of this section.

341JP Decision about place remaining in the Commonwealth Heritage List

Minister to decide whether place should remain listed

(1) Within 12 months after the inclusion of a place in the Commonwealth Heritage List under section 341JK, the Minister must, by instrument published in the Gazette, subject to subsections (2) and (3):

(a) do one of the following:

(i) state that the place remains in the Commonwealth Heritage List with its boundary unaltered;

(ii) alter the boundary of the place described in the Commonwealth Heritage List (whether or not the alteration results in an overall increase or decrease in the extent of the place included in the List);

(iii) remove from the Commonwealth Heritage List the place and its Commonwealth Heritage values; and

(b) if the place is not removed from the Commonwealth Heritage List under subparagraph (a)(iii)—do all or any of the following:

(i) state that specified Commonwealth Heritage values included in the List under section 341JK for the place remain in the List for the place;

(ii) include in the List for the place specified Commonwealth Heritage values of the place that were not included in the List under section 341JK for the place;

(iii) remove from the List for the place specified Commonwealth Heritage values that were included in the List under section 341JK for the place.

(2) The Minister must not take action under subsection (1) unless the Minister has received an assessment from the Australian Heritage Council under section 341JG in relation to the place.

(3) The Minister must not take action under subsection (1) that results in the place remaining in the Commonwealth Heritage List (whether or not with the same or a different boundary) unless the Minister is satisfied that the place has one or more Commonwealth Heritage values.

Listing lapses automatically if action not taken within 12 months of listing

(4) If the Minister does not take action under subsection (1) within the period referred to in that subsection, the place, and its listed Commonwealth Heritage values, are automatically removed from the Commonwealth Heritage List, by force of this subsection, at the end of that period.

Note: This subsection applies even if the Minister is prevented from taking action under subsection (1) because of subsection (2).

Matters to be considered

(5) For the purpose of deciding what action to take under subsection (1) in relation to the place:

(a) the Minister must have regard to:

(i) the Australian Heritage Council’s assessment whether the place meets any of the Commonwealth Heritage criteria; and

(ii) the comments (if any), a copy of which were given to the Minister under subsection 341JG(1) with the assessment; and

(b) the Minister may seek, and have regard to, information or advice from any source.

Disapplying section 341L

(6) Section 341L does not apply to:

(a) an alteration of the boundary of the place, under subparagraph (1)(a)(ii) of this section, that has the effect of removing part of the place from the Commonwealth Heritage List; or

(b) the removal of the place and its Commonwealth Heritage values under subparagraph (1)(a)(iii) of this section; or

Minister to publish copy or summary of subsection (1) notice

Additional requirements if place etc. is removed under subsection (1)

(8) If, under subsection (1), the Minister removes from the Commonwealth Heritage List the place or a Commonwealth Heritage value of the place, or alters the boundary of the place described in the List, the Minister must, within 10 business days after the removal or alteration:

(a) in any case—publish a copy of the instrument referred to in subsection (1) on the internet; and

(b) if the place is within the Australian jurisdiction—advise each person identified by the Minister as an owner or occupier of all or part of the place of the removal or alteration.

Note: For the obligation to identify owners or occupiers, see subsection 341JK(3).

Requirements if place is removed under subsection (4)

(9) If, under subsection (4), the place, and its listed Commonwealth Heritage values, are removed from the Commonwealth Heritage List, the Minister must, within 10 business days after the removal:

(a) in any case—publish notice of the removal on the internet; and

(b) if the place is within the Australian jurisdiction—advise each person identified by the Minister as an owner or occupier of all or part of the place of the removal.

Note: For the obligation to identify owners or occupiers, see subsection 341JK(3).

Alternative methods of notifying owners and occupiers

(10) If the Minister is satisfied that there are likely to be at least 50 persons referred to in paragraph (8)(b) or (9)(b), the Council may satisfy the requirements of that paragraph in relation to those persons by including the advice referred to in that paragraph in one or more of the following:

(a) advertisements in a newspaper, or newspapers, circulating in the area in which the place is located;

(b) letters addressed to “The owner or occupier” and left at all the premises that are wholly or partly within the place;

Subdivision BC—Other provisions relating to the Commonwealth Heritage List

341JQ Co‑ordination with Scientific Committee—Council undertaking assessment