Part 6Threatened species, threatened ecological communities and listed ecological entities

Part 6—Threatened species, threatened ecological communities and listed ecological entities Division 1—Designated lists 70—Threatened species list The Minister must establish and maintain a threatened species list that— (a) contains the native species that are eligible to be included in the list; and (b) includes the following categories: (i) nationally extinct; (ii) nationally extinct in the wild; (iii) nationally critically endangered; (iv) nationally endangered; (v) nationally vulnerable; (vi) nationally conservation dependent; (vii) SA extinct; (viii) SA extinct in the wild; (ix) SA critically endangered; (x) SA endangered; (xi) SA vulnerable; (xii) SA rare; (xiii) any other category prescribed by the regulations. 71—Threatened ecological communities list The Minister must establish and maintain a threatened ecological communities list that— (a) contains the ecological communities eligible to be included in the list; and (b) includes the following categories: (i) nationally collapsed; (ii) nationally critically endangered; (iii) nationally endangered; (iv) nationally vulnerable; (v) SA collapsed; (vi) SA critically endangered; (vii) SA endangered; (viii) SA vulnerable; (ix) SA rare; (x) any other category prescribed by the regulations. 72—Ecological entities list The Minister may establish and maintain a list in respect of any ecological entity, other than a native species, ecological community or critical habitat, that— (a) contains the ecological entities eligible to be included in the list; and (b) includes any prescribed categories. Division 2—Eligibility 73—Eligibility criteria (1) The Governor may, by regulation made on the recommendation of the Minister, prescribe the criteria to be applied to determine the eligibility of a native species, ecological community or ecological entity to be included in a designated list and in a particular category of a designated list. (2) The Minister must, in recommending eligibility criteria to be prescribed for the purposes of subsection (1), be satisfied that the criteria— (a) only relate to matters of biodiversity conservation; and (b) take into account national and international best practice in relation to criteria and categories. (3) Before recommending eligibility criteria to be prescribed for the purposes of subsection (1), the Minister must consult with the Scientific Committee on the proposed criteria. Division 3—Processes 74—Establishing or revoking designated lists (1) A designated list will be established by the Minister in accordance with processes prescribed by the regulations. (2) An ecological entities list established and maintained under section 72 may be revoked by the Minister in circumstances prescribed by the regulations and in accordance with processes determined by the Minister or prescribed by the regulations. 75—Listing decision For the purposes of this Part, a listing decision in respect of a designated list is a decision to— (a) add a native species, ecological community or ecological entity to a designated list; or (b) remove a native species, ecological community or ecological entity from a designated list; or (c) move a native species, ecological community or ecological entity to a different category within a designated list; or (d) otherwise amend a designated list in relation to a native species, ecological community or ecological entity; or (e) not amend a designated list in a manner referred to in a preceding paragraph. 76—Listing process (1) Subject to section 77, a listing decision may only be made in accordance with the process set out in this section. (2) Any entity (including the Department or Scientific Committee) may, in a manner and form determined by the Minister, nominate a native species, ecological community or other ecological entity to the Minister for a listing assessment. (3) The Minister may reject a nomination under subsection (2) in the following circumstances: (a) the nomination was not made in a manner or form determined by the Minister or does not contain sufficient documentation or evidence; (b) the Minister considers that the nomination is vexatious, frivolous or not made in good faith; (c) the Minister considers that it is unlikely that the nomination will result in a listing decision referred to in section 75(a) to (d) (inclusive). (4) Before the Minister rejects a nomination, the Minister must seek the advice of the Scientific Committee. (5) The Minister must, unless the nomination is rejected, undertake a listing assessment against the eligibility criteria prescribed in accordance with section 73 within the prescribed period and make a preliminary listing decision. (6) The Minister's preliminary listing decision must take into account any advice provided by the Scientific Committee and must be made in accordance with any requirements prescribed by the regulations. (7) After a preliminary listing decision has been made, the Minister must— (a) notify the entity that made the nomination of the preliminary listing decision; and (b) publish a notice on a website determined by the Minister that invites submissions on the preliminary listing decision; and (c) if the listing decision relates to a fish or aquatic plant—notify the Minister responsible for the administration of the Fisheries Management Act 2007 of the preliminary listing decision; and (d) carry out any other consultation prescribed for the purposes of this paragraph. (8) After the Minister has complied with subsection (7), the Minister must refer the preliminary listing decision to the Scientific Committee for a final listing decision. (9) The Scientific Committee must, by notice in the Gazette, make a final listing decision in accordance with any requirements prescribed by the regulations and within the prescribed period. (10) Before the Scientific Committee makes a final listing decision, the Scientific Committee must consider any submissions received in relation to the preliminary listing decision, insofar as the submissions relate to biodiversity conservation. (11) The Scientific Committee must cause a statement of reasons for the final listing decision to be published on the Biodiversity Register. (12) The Minister must update the designated list in respect of which the final listing decision is made in accordance with that decision and publish the updated list on the Biodiversity Register. 77—Expedited listing process (1) The Minister and the Scientific Committee need not follow the process set out in section 76 in the following circumstances: (a) to incorporate or reflect a list, or a change to such a list, in another Australian jurisdiction relating to a native species or ecological community; (b) to make a minor amendment to a designated list; (c) to make a provisional listing under section 78. Australian jurisdiction means the Commonwealth or another State or a Territory of the Commonwealth; minor amendment means an amendment to reflect a change in nomenclature, minor taxonomic revisions or typographical errors, or an amendment in prescribed circumstances. 78—Provisional listing (1) The Scientific Committee may, by notice in the Gazette, make a provisional listing in the following circumstances: (a) if a native species or ecological community is discovered in the State and is considered by the Scientific Committee to be threatened; (b) if a new native species or new ecological community is described resulting from a taxonomic revision and is considered by the Scientific Committee to be threatened; (c) if a native species that was presumed to be extinct or extinct in the wild (whether nationally or in the State) has been located or reintroduced in the State and is considered by the Scientific Committee to be threatened; (d) if an ecological community that was presumed to be collapsed (whether nationally or in the State) has been located or reintroduced in the State and is considered by the Scientific Committee to be threatened; (e) if an event rapidly changes the extinction risk or potential extinction risk of a native species or ecological community; (f) in circumstances of a kind prescribed by the regulations. (2) Circumstances prescribed under subsection (1)(f) must relate to matters of biodiversity conservation. (3) A provisional listing expires— (a) on the making of a final listing decision in place of that provisional listing; or (b) 2 years after the provisional listing is made, whichever occurs sooner. (4) If a provisional listing has been made in respect of a native species or ecological community, that species or community (as the case may be) will be taken to be a threatened species or threatened ecological community (as the case requires) during the period that the provisional listing is in operation. (5) In this section— threatened means eligible, or likely to be eligible, to be the subject of a listing decision referred to in section 75(a) to (d) (inclusive). Division 4—Protection of threatened species, threatened ecological communities and listed ecological entities etc 79—Action plans (1) The Minister may prepare and publish on the Biodiversity Register an action plan in respect of a threatened species, threatened ecological community, listed ecological entity or critical habitat. (2) In preparing an action plan, the Minister must— (b) undertake such consultation on the proposed plan as the Minister considers appropriate; and (c) have regard to any submissions received during the consultation period. (3) If an action plan relates to a native species or ecological community that is a Culturally Significant Biodiversity Entity, the Minister must undertake such engagement with Aboriginal persons and groups as the Minister considers appropriate, having regard to any relevant policy or other document published under this Act, and must take into account any feedback provided by such persons and groups. (4) An action plan may refer to, apply or incorporate, wholly or partially and with or without modification, any document prepared or published by an entity referred to in the plan. (5) The regulations may prescribe matters relating to an action plan, including in relation to the form and content of, and procedures for developing, a plan. (6) The Minister must— (a) take reasonable steps to implement an action plan; and (b) report on the implementation and effectiveness of the plan in accordance with the requirements prescribed by the regulations for the purposes of this paragraph. 80—Declaration of key threatening process The Minister may, by notice in the Gazette, declare a threatening process to be a key threatening process if, in the Minister's opinion— (a) it adversely affects 1 or more threatened species, threatened ecological communities or listed ecological entities; or (b) it could cause 1 or more native species that are not threatened species to become eligible to be added to the threatened species list; or (c) it could cause 1 or more ecological communities that are not threatened ecological communities to become eligible to be added to the threatened ecological communities list. 81—Threat abatement plans (1) The Minister may prepare and publish on the Biodiversity Register a threat abatement plan in respect of a key threatening process. (2) In preparing a threat abatement plan, the Minister must— (b) undertake such consultation on the proposed plan as the Minister considers appropriate; and (c) have regard to any submissions received during the consultation period. (3) A threat abatement plan may refer to, apply or incorporate, wholly or partially and with or without modification, any document prepared or published by an entity referred to in the plan. (4) The regulations may prescribe matters relating to a threat abatement plan including in relation to the form and content of, and procedures for developing, a plan. (5) The Minister must— (a) take reasonable steps to implement a threat abatement plan; and (b) report on the implementation and effectiveness of the plan in accordance with the requirements prescribed by the regulations for the purposes of this paragraph. 82—Extinction inquiry (1) If the Scientific Committee considers that— (a) it is possible that a native species endemic to the State has, after the commencement of this section, become extinct in the State or extinct in the wild in the State; or (b) it is possible that an ecological community endemic to the State has, after the commencement of this section, collapsed in the State, the Scientific Committee must undertake an inquiry into the potential extinction of the native species or the potential collapse of the ecological community (as the case requires) in the State. (2) If the Scientific Committee considers that— (a) it is possible that a native species not endemic to the State has, after the commencement of this section, become extinct in the State or extinct in the wild in the State; or (b) it is possible that an ecological community not endemic to the State has, after the commencement of this section, collapsed in the State, the Scientific Committee may undertake an inquiry into the potential extinction of the native species or the potential collapse of the ecological community (as the case requires) in the State. (3) The regulations will prescribe requirements in relation to the conduct of an inquiry under this section. 83—Protection of threatened species of fish (1) If a species of fish is added to the threatened species list, the Minister must consult with the Minister responsible for the administration of the Fisheries Management Act 2007 to determine appropriate mechanisms for ongoing protection of the species aimed at ensuring sustainability of the species. (2) If, after consultation under subsection (1), the Minister determines that protections under the Fisheries Management Act 2007 are appropriate, the Minister may not prescribe the species of fish for the purposes of the definition of protected animal in section 3. Division 5—Protection of critical habitat 84—Declaration of critical habitat (1) The Minister may, by notice in the Gazette, declare habitat of a threatened species, threatened ecological community or listed ecological entity to be critical habitat if the habitat is eligible to be so declared in accordance with subsection (2). (2) A habitat is eligible to be critical habitat if, in the opinion of the Minister after consideration of the biodiversity policy referred to in section 175(4)(c), the habitat significantly contributes to the conservation of a threatened species, threatened ecological community or listed ecological entity such that its loss would increase the risk of extinction or collapse, or negatively impact on the recovery, of the threatened species, threatened ecological community or listed ecological entity (as the case may be). (3) A declaration under subsection (1) must identify the habitat by reference to— (a) the features that make it eligible to be critical habitat in accordance with subsection (2) (the critical habitat features); and (b) the area in which the habitat is located. (4) The Minister must make a critical habitat declaration decision, being a decision to— (a) make a declaration under subsection (1); or (b) repeal a declaration made under subsection (1); or (c) amend a declaration made under subsection (1); or (d) not make a decision of a kind referred to in a preceding paragraph, within 6 months following the making of a final listing decision of a kind referred to in section 75(a) to (d) (inclusive) or on the recommendation of the Scientific Committee, and may make such a decision at any other time. (5) The Minister must publish a statement of reasons for any critical habitat declaration decision on the Biodiversity Register within 30 days after the decision is made. (6) Before making a critical habitat declaration decision, the Minister must— (b) undertake public consultation, and such other engagement as the Minister considers appropriate, on the proposed declaration in the manner the Minister considers appropriate; and (c) where reasonably practicable, seek to consult with any owners of land affected by the proposed declaration and any other person with a legal or equitable interest in that land or with a prescribed right in relation to that land; and (d) if the proposed declaration relates to a native species or ecological community that is a Culturally Significant Biodiversity Entity—undertake such engagement with Aboriginal persons and groups as the Minister considers appropriate, having regard to any relevant policy or other document published under this Act, and take into account any feedback provided by such persons and groups; and (e) have regard to any submissions received during the consultation period. (7) The Minister may make a critical habitat declaration decision referred to in subsection (4)(b) or (c) if the Minister considers that the decision is appropriate on the basis of the eligibility requirements under subsection (2). 85—Minister may enter into agreement or arrange for action plan The Minister may take steps to engage with the owner of land on which critical habitat is located to do 1 or both of the following: (a) enter into a biodiversity agreement to protect the habitat; (b) arrange for the preparation of an action plan under section 79 in respect of the habitat. 86—Offence to destroy, damage or disturb critical habitat without authorisation (1) Subject to this Act, a person must not destroy, damage or disturb critical habitat features of critical habitat unless the person is taken to hold an authorisation under section 88 authorising the person to carry out or undertake the destruction, damage or disturbance (as the case requires). (b) in the case of an individual—$500 000 or imprisonment for 5 years. (2) For the purposes of an offence against subsection (1), the Minister may make a biodiversity policy in relation to each critical habitat that outlines what does or does not constitute destruction, damage or disturbance of critical habitat features of that habitat and whether a person has committed an offence against subsection (1) will be determined in accordance with the policy. 87—Destroying, damaging or disturbing critical habitat by Aboriginal persons (1) This section does not apply to the destruction, damage or disturbance of, or in respect of— (a) critical habitat, or critical habitat features of critical habitat, of a prescribed class; or (b) critical habitat features of critical habitat by a prescribed means or in prescribed circumstances. (2) Nothing in this Division prevents an Aboriginal person from destroying, damaging or disturbing critical habitat features of critical habitat for the purposes of using the critical habitat features for a non‑commercial cultural or spiritual practice (which may include using the features as food in the course of that practice). In destroying, damaging or disturbing critical habitat features of critical habitat in accordance with this section, an Aboriginal person is subject to laws of general application. 88—Authorisation to destroy, damage or disturb critical habitat features (1) For the purposes of section 86, a person is taken to hold an authorisation to destroy, damage or disturb critical habitat features of critical habitat if— (a) in the case of destruction, damage or disturbance that constitutes a regulated act or activity under Part 4 carried out or undertaken in respect of critical habitat features that comprise or constitute native plants— (i) in the case of a regulated act or activity under Part 4 constituting clearance of native plants— (A) subject to section 56, the person has been given written consent by the CAC in accordance with Part 4 Division 3 to clear the critical habitat features; or (B) the act or activity is carried out or undertaken in prescribed circumstances; or (ii) in the case of a regulated act or activity under Part 4 constituting taking native plants—the person has been granted a permit by the Minister under Part 9 to take the critical habitat features; or (b) in any other case—the person has been given consent by the CAC in accordance with this Division to destroy, damage or disturb the critical habitat features. (2) If a person who is (apart from this subsection) taken to hold an authorisation to destroy, damage or disturb critical habitat features of critical habitat in accordance with this section fails to destroy, damage or disturb the critical habitat features in accordance with the consent or permit (as the case requires), the person is taken not to hold the authorisation. 89—Application for consent (1) An application for consent under this Division may be made by any person. (2) An application for consent under this Division must be made in a manner and form approved by the CAC and must be accompanied by— (a) such information as the CAC reasonably requires; and (b) the prescribed fee. (3) The CAC may, following receipt of an application under this section, request the applicant to provide such additional documents or information as the CAC may reasonably require to assess the application. (4) A person may, at any time, make an application for destroying, damaging or disturbing critical habitat features of critical habitat, or land on which critical habitat is situated, in respect of which an application under this section has previously been made. 90—Circumstances in which consent may be given etc (1) If proposed destruction, damage or disturbance of critical habitat features of critical habitat that is the subject of an application under section 89 is, in the opinion of the CAC, likely to negatively impact on, or hinder the recovery of, the threatened species, threatened ecological community or listed ecological entity that was the basis for the habitat's eligibility to be declared as critical habitat, the CAC must not give consent unless satisfied that the negative impact or hindrance cannot be avoided or further mitigated and— (a) that the applicant has carried out or undertaken, or caused to be carried out or undertaken, an act or activity that the CAC is satisfied has offset any residual negative impacts or hindrance to positively impact on the recovery of the threatened species, threatened ecological community or listed ecological entity (as the case may be); or (b) that the applicant proposes to carry out or undertake, or cause to be carried out or undertaken, an act or activity that the CAC is satisfied will offset any residual negative impacts or hindrance to positively impact on the recovery of the threatened species, threatened ecological community or listed ecological entity (as the case may be). (2) For the purposes of subsection (1), the CAC may not consider payment into a fund as an act or activity which offsets any residual negative impacts or hindrance caused by the destruction, damage or disturbance of critical habitat features. 91—Consultation and representations (1) The CAC must, before giving its consent under this Division, undertake such consultation as is required (if any) by a scheme set out in the regulations. (2) The CAC must allow any person who desires to do so to make representations in writing to the CAC in relation to the giving or refusal of consent to an application to destroy, damage or disturb critical habitat features of critical habitat within the period of 28 days from the day on which the application is received by the CAC. (3) The CAC may, as it thinks fit, allow a person to appear personally or by representative before it to be heard on whether the CAC should or should not consent to an application to destroy, damage or disturb critical habitat features of critical habitat. 92—Conditions of consent (1) A consent given under this Division is subject to such conditions (if any) as the CAC thinks fit to impose. (2) Without limiting subsection (1), consent may be subject to a condition that the destruction, damage or disturbance of the critical habitat features of the critical habitat be undertaken by the owner of the land on which the destruction, damage or disturbance is to be undertaken or a person authorised to undertake the destruction, damage or disturbance by the owner of the land. (3) If the applicant has, in accordance with section 90(1)(b), proposed to carry out or undertake, or cause to be carried out or undertaken, an act or activity to offset any residual negative impacts or hindrance caused by the destruction, damage or disturbance of the critical habitat features of the critical habitat, the CAC must attach a condition to the consent requiring that the proposed act or activity be achieved. (4) Conditions imposed on consent given under this Division are binding on, and enforceable against— (a) the holder of the consent; and (b) the owner, and any subsequent owner, of the land to be cleared and any other land to which a condition relates; and (c) an occupier of the land to be cleared and any other person who acquires the benefit of the consent. (5) The CAC must inform the Registrar‑General of all conditions imposed under this section that relate to land in accordance with section 170. 93—Contravention of condition of consent A person must not contravene a condition of a consent given under this Division that is held by the person. (b) in the case of an individual—$500 000 or imprisonment for 5 years. 94—Assignment of consent (1) The CAC may, on application, assign a consent under this Division to another person. (2) An application for the assignment of a consent under this section must be made in a manner and form approved by the CAC. (3) A consent assigned under subsection (1) is subject to the same conditions to which it was subject immediately before it was assigned. (4) If the CAC assigns a consent under subsection (1), the person to whom it is assigned becomes the holder of the consent. 95—Other matters relating to consents (1) Consent under this Division must be given in writing and remains in force for 2 years or for such longer period (which must not be more than 5 years after the consent is given) as the CAC may fix at the time of giving consent or subsequently on application by a person who has the benefit of the consent. (2) If, following the giving of a consent under this Division, the CAC becomes aware that information in, or provided in support of, the application for consent was incorrect or incomplete, the CAC may, by notice in writing to the applicant— (a) vary the consent (including by varying or removing conditions of the consent or by imposing additional conditions) to reflect the consent that would have been given had the CAC been aware of the correct or complete information at the time the application was determined; or (b) revoke the consent if the application would have been refused had the CAC been aware of the correct or complete information at the time the application was determined. (3) The CAC must observe the rules of natural justice when considering and determining an application for consent under this Division. (4) The CAC must provide the applicant with a written statement of the reasons for its decision under this Division. (5) The CAC must cause its decisions and statements of reasons under this Division to be published on the Biodiversity Register.