Part 10Miscellaneous

Part 10—Miscellaneous 166—Offence to hunt without permit Subject to this Act, a person must not hunt unless the person holds a permit granted by the Minister under Part 9 authorising the person to hunt. 167—Hunting by Aboriginal persons Nothing in section 166 prevents an Aboriginal person from hunting for the purposes of using the hunted animal for a non‑commercial cultural or spiritual practice (which may include using the animal as food in the course of that practice). In hunting in accordance with this section, an Aboriginal person is subject to laws of general application. 168—Unlawful entry on land (1) A person must not be on any land for the following purposes, unless the owner of that land has given that person permission in writing to be on the land for that purpose: (a) taking a native plant; (b) taking a protected animal or a protected egg; (c) hunting. (2) If the owner or occupier of land, or the agent of the owner of the land, suspects that a person is committing, has committed, or is about to commit an offence against this Act on the land, they may request the person— (a) to state their full name and usual place of residence; and (b) to leave the land. (3) A person of whom a request is made under subsection (2) must comply with it as soon as practicable. (4) A person who has been requested to leave land under this section must not re‑enter the land without the permission of the owner. 169—Restriction on use of certain devices (1) The Governor may, by proclamation, restrict or prohibit the use of firearms, ammunition or taking devices of a specified class for the taking of specified species of animals or for the taking of animals generally. (2) A person must not contravene a restriction or prohibition imposed under subsection (1). 170—Noting of conditions or agreements against title to land (a) the CAC is required to inform the Registrar‑General of conditions imposed under this Act; or (b) the Minister is required to inform the Registrar‑General of an agreement, a variation or termination of an agreement or the expiration of a term of a agreement under this Act, the CAC or Minister (as the case requires) must— (c) inform the Registrar‑General of the information in writing; and (d) provide the Registrar‑General with such further information as the Registrar‑General requires to comply with subsection (2). (2) The Registrar‑General must note the conditions or agreement (as the case may be) against the relevant instrument of title for the land or, in the case of land not under the Real Property Act 1886, against the land. (3) The Registrar‑General must, on the application of the Minister or CAC— (a) in the case of a condition noted in accordance with subsection (2)—after the variation or revocation of the condition; or (b) in the case of an agreement noted in accordance with subsection (2)—after the variation or termination of the agreement, or the expiration of a term of the agreement, vary or cancel the relevant note under subsection (2) (but must otherwise ensure that the note is not removed once made). 171—Minister may sell or dispose of surrendered animal, animal product or egg The Minister may sell, or dispose of as the Minister thinks fit, any protected animal, protected animal product or egg of a protected animal surrendered to the Minister, or an entity prescribed by the regulations for the purposes of Schedule 4 clause 1(a), and must pay any proceeds into the Biodiversity Conservation Fund. 172—State biodiversity data (1) The Minister is responsible for compiling, maintaining and updating State biodiversity data and for providing access to such data in accordance with this section. (2) Public sector agencies must co‑operate in furnishing to the Minister any information or materials determined by the Minister to be State biodiversity data. (3) The Minister must ensure that public sector agencies and members of the public have appropriate access to State biodiversity data in accordance with any requirements prescribed by the regulations. (4) Without limiting section 183, the regulations— (a) may prescribe the kinds of data that will or will not be considered to be State biodiversity data; and (b) may require persons or bodies referred to in the regulations to provide the Minister with State biodiversity data that is in their possession; and (c) may specify the kind or kinds of State biodiversity data to which subsection (2) applies; and (d) may prescribe requirements relating to access to State biodiversity data for the purposes of subsection (3); and (e) must prescribe purposes for which State biodiversity data may be restricted from access (the prescribed purposes); and (f) may prescribe payment of a prescribed fee for access to State biodiversity data where fair and reasonable cost recovery is warranted; and (g) may set standards and requirements relating to how State biodiversity data is managed, used and shared; and (h) may prescribe the form in which the Minister can accept State biodiversity data. (5) If a person or body has been required to provide data in accordance with a regulation under subsection (4)(b), the person or body may request that the Minister not make the data publicly available and must, in the request, identify the prescribed purpose that they are relying on as the basis for their request. (6) If a person or body has made a request under subsection (5), the Minister may, if the Minister considers that there is good reason to do so after considering the request and the prescribed purposes— (a) not make the data publicly available; or (b) not disclose the data to another person. (7) In this section— data has the same meaning as in the Public Sector (Data Sharing) Act 2016; State biodiversity data means data relating to biodiversity in the State including specimens and observation records (whether collected or made before or after the commencement of this Act). 173—State Biodiversity Plan (1) The Minister must prepare, publish and maintain a State Biodiversity Plan. (2) The first State Biodiversity Plan must be prepared and published within 2 years of the day on which section 2 of this Act comes into operation. (3) The Minister must ensure that the State Biodiversity Plan is reviewed and updated at least once every 5 years and that a report on the review is published. (4) The State Biodiversity Plan must— (a) set out principles, policies and strategic directions for achieving the objects of this Act; and (b) identify priorities for the conservation, restoration, enhancement and recovery of biodiversity having regard for future climate scenarios; and (c) as far as practicable, represent the priorities referred to in paragraph (b) spatially; and (d) set measurable targets and set expectations for monitoring and evaluating the state and condition of biodiversity in the State; and (e) identify State‑wide biodiversity indicators; and (f) include or address any other matter required by this Act, prescribed by the regulations or determined by the Minister. (5) In preparing or reviewing the State Biodiversity Plan, the Minister must— (a) have regard to any threatened species, threatened ecological communities, listed ecological entities, Culturally Significant Biodiversity Entities, critical habitat and key threatening processes; and (b) seek the advice of the Council, CAC, ABC and Scientific Committee in the manner determined by the Minister; and (c) undertake public consultation in the manner the Minister considers appropriate and such other consultation as may be prescribed by the regulations for the purposes of this paragraph; and (d) comply with any other requirement of this Act or prescribed by the regulations. (6) The Minister must prepare and publish regular reports on the implementation of the State Biodiversity Plan, including an evaluation of progress towards targets set by the Plan. (7) Public sector agencies must co‑operate in furnishing to the Minister any information required by the Minister for the purposes of this section. (8) Material required to be published under this section may be published on the Biodiversity Register. (9) Without limiting section 183, the regulations may prescribe the following: (a) requirements for the preparation, review and amendment of the State Biodiversity Plan; (b) any additional matters to be addressed by the State Biodiversity Plan; (c) requirements for consultation in respect of preparing, reviewing or amending the State Biodiversity Plan; (d) requirements relating to reporting and evaluation for the purposes of subsection (6). 174—Council guidelines (1) The Council may prepare and adopt guidelines in relation to the following: (a) the clearance or taking of native plants; (b) damaging, destroying or disturbing critical habitat features of critical habitat; (c) any other matter required by this Act or the regulations. (2) Without limiting subsection (1), the Council must prepare and adopt guidelines in relation to the following: (a) applications for consent to clear native plants; (b) decision‑making in relation to consent to clear native plants; (c) the application of the mitigation hierarchy; (d) clearance of native plants that is seriously at variance with the principles of preservation of native plants; (e) assessing the potential cumulative impact that is reasonably likely to result from a proposed clearance for the purposes of section 50(1)(c); (f) categorising levels of clearance; (g) financial and other assistance provided by the Council under section 99; (h) any guidelines required under Schedule 2; (i) any other matter required by this Act or the regulations. (3) Guidelines prepared and adopted under this section may relate to 1 or more matters referred to in subsection (2). (4) Guidelines prepared and adopted under this section may refer to, apply or incorporate, wholly or partially and with or without modification, a code, standard, policy or other document prepared or published by an entity referred to in the guidelines. (5) Guidelines may apply generally or in relation to a specified entity or sector. (6) Subject to subsection (7), in preparing and adopting guidelines for the purposes of this section, the Council must— (a) prepare draft guidelines; and (b) undertake consultation on the draft guidelines for a period of at least 30 days that includes— (i) public consultation on the draft guidelines in the manner the Minister considers appropriate; and (ii) notifying and inviting comment on the draft guidelines from the following entities: (A) the Minister; (B) Primary Producers SA Incorporated; (C) the Conservation Council of South Australia Incorporated; (D) the Local Government Association of South Australia; (E) if the draft guidelines relate to pastoral land, the Pastoral Board; (F) if the draft guidelines relate to land within the Murray‑Darling Basin, the Minister responsible for the administration of the River Murray Act 2003; (G) if the draft guidelines relate to mineral exploration, the Minister responsible for the administration of the Mining Act 1971; (H) any other entity prescribed by the regulations for the purposes of this subparagraph; and (c) have regard to any submissions received during consultation; and (d) if, following the period of consultation, the Council considers that the guidelines should be adopted (with or without amendment) the Council must adopt the guidelines (with any amendments incorporated). (7) In preparing and adopting guidelines that refer to, apply or incorporate, wholly or partially and with or without modification, a code, standard, policy or other document prepared or published by an entity referred to in the guidelines (the relevant entity), the Council— (a) must consult with the relevant entity, the Minister and any other entity that the Council considers appropriate; and (b) need not undertake the consultation set out in subsection (6)(b). (8) Following adoption of the guidelines, the Council must cause the guidelines to be published on the Biodiversity Register. (9) Subject to subsection (10), the Council may, by following the procedures required by this section for the preparation and adoption of guidelines, vary guidelines adopted under this section as if the variation to guidelines is a new set of guidelines. (10) The Council need not follow the procedures required by this section to vary guidelines adopted under this section if the variations to the guidelines constitute minor amendments. (11) Guidelines prepared and adopted under this section that have substantially the same subject matter as guidelines previously adopted under this section may revoke those previous guidelines. (12) In this section— minor amendment, in relation to varying guidelines adopted under this section, means an amendment that does not alter the general meaning, scope, purpose or intent of the guidelines. 175—Biodiversity policies (1) The Minister may make biodiversity policies for the purposes of this Act (other than policies relating to the matters referred to in subsection (5)). (2) A designated entity may only make a biodiversity policy if satisfied that the provisions of the policy are consistent with the objects and principles of this Act. (3) Without limiting the matters that may be set out in a biodiversity policy, a biodiversity policy may— (a) set out matters to be taken into account in determining matters under this Act, including in relation to measures that may be reasonable and practicable measures for the purposes of the general duty, or what constitutes harm to biodiversity; or (b) set out requirements, standards, goals or guidelines. (4) Without limiting the generality of subsection (1), the Minister must make a biodiversity policy relating to each of the following: (a) the consideration and application of Aboriginal knowledges; (b) the identification, approval and management of Culturally Significant Biodiversity Entities; (c) determining the eligibility of habitat to be critical habitat; (d) biodiversity agreements; (e) the calculation of civil penalties; (f) the approach to be taken to compliance and enforcement; (g) cultural burning of native plants undertaken by Aboriginal persons. (5) The Council must make a biodiversity policy relating to each of the following: (a) significant environmental benefits (the SEB policy); (b) environmental benefit credits. (6) Without limiting the content of the SEB policy, that policy must— (a) provide that a significant environmental benefit may be achieved by— (i) measures, actions or requirements taken, undertaken or complied with, or to be taken, undertaken or complied with, by a person; or (ii) application of the value of an environmental benefit credit granted to a person under section 59 or assigned to a person under section 60; and (b) set out additional requirements in respect of significant environmental benefits that apply in relation to clearance of native plants that is seriously at variance with the principles of preservation of native plants; and (c) set out how the part of the Biodiversity Restoration Fund that constitutes payments made in lieu of a requirement to achieve a significant environmental benefit will be applied. (7) A biodiversity policy may apply, adopt or incorporate, with or without modification, any code, standard or other document prepared, published or approved by a body or authority referred to in the policy as in force from time to time or as in force at a specified time. (8) Before making a biodiversity policy referred to in subsection (4)(a), (b) or (g), the Minister must seek advice on the policy from the ABC and comply with any requirements prescribed by the regulations. (9) Before making the SEB policy, the Council must refer the proposed policy to the Minister and take into account any advice provided by the Minister. (10) The process for making a biodiversity policy is as follows: (a) the designated entity must prepare a proposed biodiversity policy; (b) the designated entity must undertake consultation on the proposed biodiversity policy for a period of at least 30 days that includes— (i) public consultation on the proposed biodiversity policy in the manner the designated entity considers appropriate; and (ii) consultation on the proposed biodiversity policy with any prescribed entities in the manner the designated entity considers appropriate; (c) the designated entity must have regard to any submissions received during the consultation period; (d) if, following consultation, the designated entity considers that the biodiversity policy (whether as proposed or incorporating changes arising from consultation) should be made, the designated entity must make the biodiversity policy by publishing it, or causing it to be published, on the Biodiversity Register. (11) Subject to subsection (12), a designated entity may, by following the process set out in subsection (10), vary a policy made by the designated entity under this section as if the variation to the policy is a new policy. (12) A designated entity need not follow the process set out in subsection (10) to vary a policy made under this section if the variations to the policy constitute minor amendments. (13) The regulations may prescribe additional matters relating to the making or varying of a biodiversity policy. (14) A designated entity may revoke a biodiversity policy made by the designated entity in accordance with any processes prescribed by the regulations. (15) In this section— designated entity means— (a) in relation to a policy referred to in subsection (5)—the Council; or (b) in any other case—the Minister; minor amendment, in relation to varying a policy made under this section, means an amendment that does not alter the general meaning, scope, purpose or intent of the policy. 176—Biodiversity management plans (1) A biodiversity management plan required for the purposes of this Act must be prepared in a manner and form approved by the CAC and may contain such provisions as the CAC thinks fit, including (without limiting the generality of this subsection) provisions relating to— (a) the planting and nurturing of specified native plants, or native plants of a specified class, on specified land; and (b) proposed acts or activities to manage, minimise or avoid negative impacts on biodiversity; and (c) the management, control and destruction of introduced animal species and plants that are not native plants; and (d) the management and control of native animal and native plant species; and (e) erecting, improving and maintaining fences or other barriers; and (f) the exclusion of livestock and other animals from access to native plants; and (g) the monitoring and auditing of native plants and biodiversity; and (h) the reporting or provision of specified information; and (i) the review or variation of the plan, and may specify the period for or within which specified measures, actions or requirements are to be taken, undertaken or complied with. (2) A biodiversity management plan required for the purposes of this Act must be approved by the CAC. (3) The CAC may, in considering whether to approve a biodiversity management plan for the purposes of Schedule 2 clause 28, 29(2) or 30(1), seek and consider the advice of the regional landscape board for the landscape management region in which the relevant land is situated. (4) If, in considering whether to approve a biodiversity management plan for the purposes of Schedule 2 clause 28, 29(2) or 30(1), the CAC is of the opinion that the clearance or taking would be likely to result in residual significant adverse impacts despite the application of the Council guidelines or biodiversity management plan (or both), the plan must not be approved. (5) In approving a biodiversity management plan, the CAC may take into account any relevant matters, including the following: (a) in relation to a biodiversity management plan required as a condition of a consent for clearance—whether the provisions of the plan are considered satisfactory to achieve or facilitate the achievement of the required condition; (b) in relation to a biodiversity management plan required in relation to achieving a significant environmental benefit—whether the provisions of the plan are considered satisfactory to achieve or facilitate the achievement of the significant environmental benefit in accordance with the SEB policy; (c) in relation to a biodiversity management plan required in relation to an environmental benefit credit—whether the provisions of the plan are considered satisfactory to achieve or facilitate the achievement of the environmental benefit; (d) in relation to a biodiversity management plan required by a biodiversity agreement—whether the provisions of the plan are considered satisfactory to achieve or facilitate the achievement of the desired outcome of the biodiversity agreement; (e) in relation to an act or activity specified in Schedule 2 clause 28 for the conservation, restoration or enhancement of biodiversity—whether the provisions of the biodiversity management plan are considered satisfactory to achieve the proposed conservation, restoration or enhancement objectives; (f) in relation to an act or activity specified in Schedule 2 clause 29 relating to grazing practices—whether the provisions of the biodiversity management plan are considered satisfactory to ensure there will not be permanent degradation of the land; (g) in relation to an act or activity specified in Schedule 2 clause 30 for the maintenance of existing agriculture, forestry or farming—whether the provisions of the biodiversity management plan are considered satisfactory to ensure there will not be permanent degradation or loss of native plants. 177—Biodiversity Register (1) The Minister must establish and maintain a website for the purposes of this Act (the Biodiversity Register). (2) The Biodiversity Register will include the following: (a) the following information in respect of applications received by the CAC for consent to clear native plants under Part 4 and for consent to destroy, damage or disturb critical habitat features of critical habitat under Part 6: (i) the date on which the application was received by the CAC; (ii) a description of the application; (iii) the location and a description of the land to which the application relates; (iv) when it is made, the decision made by the CAC in relation to the application; (v) any other information required by the regulations; (b) prescribed information in relation to clearances in respect of which the CAC must be notified under Schedule 2; (c) the following matters relating to environmental benefit credits under Part 4 Division 4: (i) each credit under section 59; (ii) each assignment of credit under section 60; (d) biodiversity agreements; (e) each prescribed area of land; (f) each Culturally Significant Biodiversity Entity; (g) any management plans adopted under section 68; (h) the threatened species list; (i) the threatened ecological communities list; (j) an ecological entities list established and maintained under section 72; (k) an action plan made under section 79; (l) a threat abatement plan made under section 81; (m) habitat declared to be critical habitat under section 84; (n) records of compliance orders and reparation orders issued under this Act; (o) records of proceedings under this Act in respect of enforcement and any decision, order or determination of a court in such proceedings; (p) enforceable voluntary undertakings accepted by the Minister under section 115; (q) any management plans adopted under section 158; (r) a record of any notice in the Gazette required by or under this Act; (s) Council guidelines; (t) biodiversity policies; (u) any other document or matter required by this Act to be published on the register or prescribed by the regulations, in such form and containing such information as the Minister thinks fit or as prescribed by the regulations. (3) The Minister is not required to make available to the public any part of the register that, in the opinion of the Minister, should be kept confidential for cultural, safety or security reasons. (4) The Minister may also establish or authorise arrangements that restrict or prohibit access to the register (or a part of the register) to protect information that, in the opinion of the Minister, is commercially sensitive or should be protected for some other reasonable cause. (5) No fee may be imposed for access to the register but the Minister may fix fees for the supply of copies of the register or for extracts from the register. (6) Information on the register may be made available on conditions determined or approved by the Minister. (7) The regulations may prescribe the person responsible for providing information to be included in the register and the form in, and time within, which information is to be provided. (8) The Biodiversity Register is to maintain (insofar as is reasonably practicable) historical as well as current versions of documents, instruments or materials required to be published on the Biodiversity Register. (9) In this section— prescribed area of land means any of the following: (a) a sanctuary or other conservation area under Part 7 Division 1; (b) land that is subject to a biodiversity agreement; (c) a reserve; (d) a wilderness protection area; (e) a wilderness protection zone; (f) a marine park; (g) the Arkaroola Protection Area under the Arkaroola Protection Act 2012; (h) land subject to a management agreement under the Landscape South Australia Act 2019; (i) an aquatic reserve under the Fisheries Management Act 2007; (j) a native forest reserve under the Forestry Act 1950; (k) any other land prescribed by the regulations for the purposes of this definition. 178—False and misleading information A person must not make a statement that is false or misleading in a material particular (whether by reason of the inclusion or omission of any particular) in any information furnished under this Act. 179—Service of notices etc A notice or other document required or authorised by this Act to be given to a person may be served— (a) by personal service on the person or an agent of the person; or (b) by leaving it for the person at their place of residence or business with someone apparently over the age of 16 years; or (c) by sending it by post to the person or an agent of the person to the person's or agent's last known address; or (d) by email to the person's email address (in which case the document will be taken to have been given or served at the time of transmission); or (e) if the whereabouts of the person is unknown—by affixing it in a prominent position on the land to which it relates or publishing a copy of it on a website determined by the Minister; or (f) in any other manner prescribed by the regulations. 180—Concurrence under Planning, Development and Infrastructure Act (1) If a request is made for the Minister's concurrence under section 73 of the Planning, Development and Infrastructure Act 2016, the Minister must, in determining whether to grant concurrence (whether subject to conditions or otherwise), have regard to, and seek to further, the objects and principles of this Act and act consistently with the State Biodiversity Plan. (2) The Minister must determine whether to grant concurrence under section 73 of the Planning, Development and Infrastructure Act 2016 within the prescribed period. 181—Reports of public sector agencies (1) An annual report that is required to be prepared by a public sector agency must, to the extent that it is relevant to the operations or activities of the agency, include a report on the manner in which the agency is addressing matters relating to biodiversity conservation, restoration and enhancement. (2) In preparing a report under this section, a public sector agency must have regard to any prescribed matter and any biodiversity policy made for the purposes of this section. 182—Waiver etc of fees The Minister may waive, reduce or remit a fee imposed under this Act if the Minister considers it appropriate to do so. 183—Regulations and fee notices (1) The Governor may make such regulations as are contemplated by, or necessary or expedient for the purposes of, this Act. (2) Without limiting the generality of subsection (1), the regulations may, for example— (a) provide for the exemption (whether conditional or unconditional) of any class of person, animal, plant, thing, location or circumstance, from the operation of a specified provision or provisions of this Act; and (b) make provision in respect of regulated acts or activities under Part 4 and Part 5; and (c) prescribe requirements in relation to the process for making listing decisions under Part 6, including setting timeframes in respect of the process; and (d) regulate hunting; and (e) make any other provision that may, in the opinion of the Governor, provide for the conservation, restoration and enhancement of biodiversity; and (f) fix fines, not exceeding $50 000, for offences against the regulations; and (g) fix expiation fees, not exceeding $1 500, for offences against this Act or the regulations; and (h) include evidentiary provisions to facilitate proof of breaches of this Act or the regulations for the purposes of proceedings under this Act. (3) The regulations may— (a) be of general or limited application; and (b) make different provision according to the matters or circumstances to which they are expressed to apply; and (c) make provisions of a saving or transitional nature consequent on the enactment of this Act or on the commencement of specified provisions of this Act or on the making of regulations under this Act; and (d) provide that a matter or thing in respect of which regulations may be made is to be determined according to the discretion of a specified entity; and (e) apply or incorporate, wholly or partially and with or without modification, a code, standard, policy or other document prepared or published by the Minister or another specified entity. (4) A provision of a regulation made under subsection (3)(c) may, if the regulation so provides, take effect from the commencement of this subsection or from a later day. (5) To the extent to which a provision takes effect under subsection (4) from a day earlier than the day of the regulation's publication in the Gazette, the provision does not operate to the disadvantage of a person by— (a) decreasing the person's rights; or (b) imposing liabilities on the person. (6) The regulations may amend Schedule 2 to Schedule 4 (inclusive). (7) The Minister may prescribe fees for the purposes of this Act by fee notice under the Legislation (Fees) Act 2019. (8) A fee notice may prescribe a fee by specifying an amount or by setting out the manner in which the fee amount is to be calculated. (9) If a code, standard or other document is referred to or incorporated in the regulations— (a) a copy of the code, standard or other document must be published on a website determined by the Minister; and (b) evidence of the contents of the code, standard or other document may be given in any legal proceedings by production of a document apparently certified by the Minister to be a true copy of the code, standard or other document. 184—Review of Act (1) The Minister must— (a) as soon as practicable after the expiry of 5 years from the commencement of this section; and (b) at further times required by the Minister (provided that a review is commenced within 10 years after the Minister receives the report on the last review), appoint an independent person who has, in the opinion of the Minister, extensive knowledge, skills and experience in relation to the management of biodiversity, to conduct a review of the operation and effectiveness of this Act since that commencement or since the last review (as the case requires). (2) A report on a review under this section must be submitted to the Minister within 6 months of the commencement of the review. (3) The Minister must, within 6 sitting days after receiving a report under this section, cause a copy of the report to be laid before both Houses of Parliament and publish the report on a website determined by the Minister.