Part 8Enforcement

Part 8—Enforcement Division 1—Authorised officers 100—Appointment of authorised officers (1) The following persons are authorised officers under this Act: (a) persons appointed by the Minister; (b) police officers; (c) wardens appointed under the National Parks Act 1972, other than wardens whose appointments are limited to a particular provision or provisions of the National Parks Act 1972 or to a particular reserve or reserves. (2) The Minister may only appoint an officer of a local council to be an authorised officer under this Act with the written approval of the relevant council. (3) If the Minister appoints an officer of a local council to be an authorised officer under this Act, the Minister must reimburse the local council for any reasonable costs incurred by the local council in connection with the appointment. (4) The Minister may, at any time— (a) vary or revoke the appointment of an authorised officer appointed by the Minister; or (b) limit the powers of an authorised officer appointed by the Minister. 101—Identification of authorised officers (1) A person appointed by the Minister as an authorised officer under this Act must be issued with an identity card— (a) containing the person's name and a photograph of the person; and (b) stating that the person is an authorised officer under this Act; and (c) stating any limitations on the authorised officer's powers. (2) If the powers of an authorised officer appointed by the Minister have been limited, the identity card issued to the authorised officer must contain a statement of those limitations. (3) An authorised officer (other than a police officer in uniform) must, at the request of another person in relation to whom the authorised officer intends to exercise powers under this Part, produce for the other person's inspection— (a) if the officer was appointed by the Minister as an authorised officer under this Act—the identity card issued to the officer under this section; or (b) if the officer is an authorised officer because the person holds an office under another Act—the identity card issued to the officer under that Act. 102—Powers of authorised officers (1) An authorised officer may, as may reasonably be required in connection with the administration, operation or enforcement of this Act, at any reasonable time— (a) enter and inspect any place; and (b) enter and inspect any vehicle and for that purpose require a vehicle to stop, or to be presented for inspection at a place and time specified by the authorised officer, and board any vessel or craft; and (c) inspect (including open) any thing that is in or on any place or vehicle, including a package in the postal system; and (d) use reasonable force to break into or open any part of, or anything in or on, any place or vehicle, but only if the authorised officer— (i) is exercising the power on the authority of a warrant issued by the Magistrates Court or a justice; or (ii) is acting with the permission of the owner of the relevant land or the person apparently in charge of the vehicle (as the case requires); or (iii) reasonably believes that immediate action is required in the circumstances (including in order to prevent the destruction of, or otherwise preserve, evidence of a breach of this Act); and (e) give directions with respect to the stopping, securing or movement of a vehicle, plant, equipment or other thing; and (f) with the authority of a warrant issued by the Magistrates Court or a justice, stop and search a person who is reasonably suspected of having, on or about their person, any thing that constitutes evidence of a breach of this Act; and (g) take blood or other material (or authorise any other person to take blood or other material) from an animal (whether alive or dead) or from any animal product or egg, for the purpose of obtaining a DNA profile; and (h) take measurements or place any markers, pegs, buoys or other items or equipment at any place; and (i) take samples of any substance or thing from any place (including under any land) or vehicle; and (j) dig up any land by the use of hand‑held equipment for the purpose of taking samples; and (k) with the authority of a warrant issued by the Magistrates Court or a justice, to the extent to which it is reasonably required, take mechanical equipment on to any land and dig up the land, or any part of it, for the purposes of taking samples that the authorised officer reasonably suspects may constitute evidence of a breach of this Act; and (l) require any person to produce any documents, including a written record that reproduces in an understandable form information stored by computer, microfilm or other process, as reasonably required in connection with the administration or enforcement of this Act; and (m) examine, copy or take extracts from any documents or information so produced or require a person to provide a copy of any such document or information; and (n) take photographs, films, audio, video or other recordings; and (o) examine or test any vehicle, plant, equipment, fitting or other thing, or cause or require it to be so examined or tested, or seize it or require its production for such examination or testing; and (p) seize and retain anything that the authorised officer reasonably suspects has been used in, or may constitute evidence of, a breach of this Act, or require a person to surrender, either immediately or within a specified period and at a specified place, anything held or maintained in breach of this Act; and (q) without limiting the operation of paragraph (p), if the authorised officer finds any animals or plants that are being held or maintained contrary to any requirement or provision of this Act, or that are prohibited from being in the State under any other Act or law, seize and remove the animals or plants or take measures for their destruction or control; and (r) require a person who the authorised officer reasonably suspects has committed, is committing or is about to commit, a breach of this Act to state the person's full name and usual place of residence and to produce evidence of the person's identity; and (s) require a person who the authorised officer reasonably suspects has knowledge of matters in respect of which information is required for the administration or enforcement of this Act— (i) to answer questions in relation to those matters; or (ii) to attend at a specified place at a specified time and answer questions in relation to those matters; and (t) request a person holding or required to hold a consent, permit or other authority under this Act, or acting in reliance of a consent, permit or other authority under this Act, to produce the consent, permit or authority for inspection; and (u) give expiation notices under the Expiation of Offences Act 1996 for alleged offences against this Act; and (v) exercise any power prescribed by the regulations; and (w) give directions reasonably required in connection with the exercise of a power conferred by any of the above paragraphs or otherwise in connection with the administration, operation or enforcement of this Act. (2) An authorised officer, in exercising powers under this section, may be accompanied by such assistants as are reasonably required in the circumstances. (3) Where an authorised officer is a police officer, the powers under this section apply in addition to any powers that the police officer has under any other Act or law. 103—Issue of warrants (1) The Magistrates Court or a justice must not issue a warrant for the purposes of this Part unless— (a) satisfied that the warrant is reasonably required in the circumstances; and (b) in the case of a warrant authorising an authorised officer to take action under section 102(1)(k)—satisfied that there are reasonable grounds to believe that a person may have committed a breach of this Act. (2) An application for the issue of a warrant may be made either personally or by telephone. (3) The grounds of an application for a warrant must be verified by affidavit. (4) An application for the issue of a warrant may not be made by telephone unless in the opinion of the applicant a warrant is urgently required and there is insufficient time to make the application personally. (5) If an application for the issue of a warrant is made by telephone, the following provisions apply: (a) the applicant must inform the Magistrates Court or justice of their name and identify themself as an authorised officer, and the Magistrates Court or justice, on receiving that information, is entitled to assume, without further inquiry, that the applicant is an authorised officer; (b) the applicant must inform the Magistrates Court or justice of the grounds on which the applicant seeks the issue of the warrant; (c) if it appears to the Magistrates Court or justice from the information furnished by the applicant that there are proper grounds for the issue of a warrant, the Magistrates Court or justice must inform the applicant of the facts on which the Magistrates Court or justice relies as grounds for the issue of the warrant, and must not proceed to issue the warrant unless the applicant undertakes to make an affidavit verifying those facts; (d) if the applicant gives such an undertaking, the Magistrates Court or justice may then make out and sign a warrant, noting on the warrant the facts on which the Magistrates Court or justice relies as grounds for the issue of the warrant; (e) the warrant will be taken to have been issued, and will come into force, when signed by the Magistrates Court or justice; (f) the Magistrates Court or justice must inform the applicant of the terms of the warrant; (g) the applicant must, as soon as practicable after the issue of the warrant, forward to the Magistrates Court or justice an affidavit verifying the facts referred to in paragraph (c). (6) An authorised officer who executes a warrant must, as soon as practicable after execution of the warrant— (a) prepare a notice in the prescribed form containing— (i) the authorised officer's own name and a statement that they are an authorised officer under this Act; and (ii) the name of the person who issued the warrant and the date and time of its issue; and (iii) a description of the authority conferred by the warrant; and (b) give the notice to the person affected by the warrant. (7) A warrant, if not executed at the expiration of 1 month from the date of its issue, then expires. 104—Provisions relating to seizure (1) If a thing has been seized under this Division, the following provisions apply: (a) the thing must be held pending proceedings under this Act related to the thing seized, unless the Minister, on the Minister's own motion or on application, authorises its release to the person from whom it was seized, or to any person who had legal title to it at the time of its seizure, subject to such conditions as the Minister thinks fit (including conditions as to the giving of security for satisfaction of an order under paragraph (b)(ii)); (b) if proceedings under this Act relating to the thing are instituted within the prescribed period after its seizure and a person is, as a result of the proceedings, convicted or found guilty of an offence or is otherwise found to have breached this Act, the court may— (i) order that it be forfeited to the Minister; or (ii) if it has been released in accordance with paragraph (a)— (A) if the thing is an animal, animal product, egg or plant—order that it be forfeited to the Minister; or (B) in any other case—order that the person to whom it was released, or the person who is, as a result of the proceedings, convicted or found guilty of an offence or is otherwise found to have breached this Act, pay to the Minister an amount equal to its market value at the time of its seizure; (c) if proceedings under this Act relating to the thing are instituted within the prescribed period after its seizure and a person is, as a result of the proceedings, convicted or found guilty of an offence or is otherwise found to have breached this Act, the Minister may recover from the person the costs of having retained the thing; (d) if— (i) proceedings are not instituted under this Act relating to the thing within the prescribed period after its seizure; or (ii) proceedings have been so instituted but— (A) no person is, as a result of the proceedings, convicted or found guilty of an offence or otherwise found to have breached this Act; or (B) a person is, as a result of the proceedings, convicted or found guilty of an offence or is otherwise found to have breached this Act but no order for forfeiture is made under paragraph (b); or (C) the thing is no longer required to furnish evidence for the purposes of the proceedings, then the person from whom the thing was seized, or any person with legal title to it, is entitled to recover from the Minister (if necessary, by action in a court of competent jurisdiction) the thing itself, or if it has been damaged, destroyed, released or otherwise disposed of, compensation of an amount equal to its market value at the time of its seizure; (e) if the Minister is unable, after reasonable inquiry, to ascertain the whereabouts of a person to whom a thing is to be returned, the thing may be sold or disposed of as the Minister thinks fit and, if sold, the proceeds of sale must be paid into the Biodiversity Conservation Fund; (f) if, in the opinion of the Minister, an animal, animal product, egg or plant seized under this Act will suffer a loss in its value before the question of its forfeiture under this section can be determined, the thing may be sold or disposed of as the Minister thinks fit (unless it is required for evidentiary purposes) and, if sold, the proceeds of the sale will be dealt with under this section as if they were the thing; (g) if a living animal is seized under this section, the Minister may make arrangements for— (i) the animal's care; or (ii) if, in the opinion of the Minister— (A) it is in the best interests of the welfare of the animal to be released into the wild—its release into the wild; or (B) it is necessary for the welfare of the animal to be destroyed—its destruction. owner in relation to an object seized under this section means either or both of the following persons: (a) a person who has legal title to the object; (b) a person who was, immediately before seizure of the object, legally in possession or control of the object; prescribed period means 12 months or such longer period as the ERD Court may, on application by the Minister, allow; thing includes— (a) an animal, animal product or egg; and (b) a plant; and (c) a vehicle; and (d) a cage or container; and (e) a firearm or taking device; and (f) a poison or other substance; and (g) a document or record. 105—Offence to hinder etc authorised officers (1) A person who— (a) hinders or obstructs an authorised officer, or a person assisting an authorised officer, in the exercise of powers conferred by this Act; or (b) uses abusive, threatening or insulting language to an authorised officer, or a person assisting an authorised officer; or (c) refuses or fails to comply with a requirement or direction of an authorised officer under this Act; or (d) when required by an authorised officer under this Act to answer a question, refuses or fails to answer the question to the best of the person's knowledge, information and belief; or (e) falsely represents, by words or conduct, that they are an authorised officer, is guilty of an offence. Maximum penalty: $15 000. (2) A person who assaults an authorised officer, or a person assisting an authorised officer in the exercise of powers under this Act, is guilty of an offence. Maximum penalty: $15 000 or 2 years imprisonment. 106—Self‑incrimination (1) It is not a reasonable excuse for a person to fail to answer a question or to produce, or provide a copy of, a document or information as required under this Act on the ground that to do so might tend to incriminate the person or make the person liable to a penalty. (2) If compliance by an individual with a requirement under this Act might tend to incriminate the person or make the person liable to a penalty, then— (a) in the case of a person who is required to produce, or provide a copy of, a document or information—the fact of production, or provision of a copy of, the document or the information (as distinct from the contents of the document or the information); or (b) in any other case—the answer given in compliance with the requirement, is not admissible in evidence against the person in proceedings for an offence or for the imposition of a penalty (other than proceedings in respect of the making of a false or misleading statement). Division 2—Power to require or obtain information 107—Information discovery orders (1) An authorised officer may issue an information discovery order under this Division for the purpose of obtaining information reasonably required for the administration, operation or enforcement of this Act. (2) An information discovery order may be issued to any person who the authorised officer reasonably suspects has knowledge of matters, or has possession or control of a document dealing with matters, in respect of which information is required. (3) An information discovery order— (b) must specify the person to whom it is issued (whether by name or a description sufficient to identify the person); and (c) may require information, as specified in the order, to be furnished to the authorised officer in such manner and within such period as is specified in the order; and (d) must state the purpose for which the information is required; and (e) must state that the person may, within 14 days, appeal to the ERD Court against the order. (4) If an information discovery order has been issued to a person by an authorised officer, the authorised officer may, by written notice served on the person, vary or revoke the order. (5) A person to whom an information discovery order is issued must comply with the order. Maximum penalty: $8 000. 108—Obtaining of information on non‑compliance with order (1) If a person— (a) fails to furnish information as required by an information discovery order; or (b) being required by such an order to furnish information, furnishes information that is inaccurate or incomplete, the authorised officer who issued the order may take such action as is reasonably required to obtain the information. (2) The reasonable costs and expenses incurred by an authorised officer in taking action under this section may be recovered by the authorised officer as a debt from the person whose failure gave rise to the action. 109—Appeal to ERD Court (1) A person to whom an information discovery order has been issued may appeal to the ERD Court against the order or any variation of the order. (2) An appeal must be made in a manner and form determined by the Court, setting out the grounds of the appeal. (3) Subject to this section, an appeal under this section must be made within 14 days after the order is issued or the variation is made. (4) The ERD Court may, if it is satisfied that it is just and reasonable in the circumstances to do so, dispense with the requirement that an appeal be made within the period fixed by this section. (5) An appeal must be referred in the first instance to a conference under section 16 of the Environment, Resources and Development Court Act 1993 (and the provisions of that Act will then apply in relation to the appeal). Division 3—Administrative remedies 110—Interpretation In this Division— designated authority means the Minister, the CAC or an authorised officer. 111—Compliance orders (1) A designated authority may issue a compliance order, or an emergency compliance order, for the purposes of securing compliance with a requirement imposed, or duty created, by or under this Act. (2) A compliance order— (b) must specify the person to whom it is issued (whether by name or a description sufficient to identify the person); and (c) must identify the person or body issuing the order; and (d) must state the grounds on which it is made with reasonable particularity; and (e) may impose any requirement reasonably required for the purpose for which the order is issued including 1 or more of the following: (i) a requirement that the person discontinue, or not commence, a specified activity indefinitely or for a specified period or until further notice; (ii) a requirement that the person not carry on a specified activity except at specified times or subject to specified conditions; (iii) a requirement that the person take specified action in a specified way, and within a specified period or at specified times or subject to specified conditions; (iv) a requirement that the person enter into a bond in such sum and subject to such terms and conditions specified in the order, or enter into some other arrangement specified in the order (which may include payment of a sum of money into the relevant fund under this Act), to ensure that money is available to address the costs of any damage, or threatened damage, to biodiversity; (v) a requirement that the person take action to prevent or minimise any damage to biodiversity or to control any specified activity; (vi) a requirement that the person undertake specified tests or monitoring; (vii) a requirement that the person furnish to the Minister specified results or reports; (viii) a requirement that the person appoint or engage a person with specified qualifications to prepare a plan or report or to undertake tests or monitoring required by the order; and (f) must state that the person may, within 21 days, appeal to the ERD Court against the order or any subsequent variation of the order. (3) A designated authority may, if of the opinion that urgent action is required for the protection of biodiversity, issue an emergency compliance order imposing requirements of a kind referred to in subsection (2)(e) (other than a requirement for payment into the relevant fund under this Act) as reasonably required for the protection of biodiversity. (4) An emergency compliance order may be issued orally by the designated authority but, in that event, the person to whom the order is issued must be advised as soon as practicable of the person's right to appeal to the ERD Court against the order. (5) If an emergency compliance order is issued orally, the designated authority that issued it must confirm it in writing (with or without variations) at the earliest opportunity (and in any event within 2 business days) by written notice given to the person to whom it applies. (6) A designated authority may, if of the opinion that it is reasonably necessary to do so in the circumstances, include in an emergency or other compliance order a requirement for an act or omission that might otherwise constitute a breach of this Act and, in that event, a person incurs no liability to a penalty under this Act for compliance with the requirement. (7) A designated authority may, by written notice served on a person to whom a compliance order has been issued, vary or revoke the order. (8) A person to whom a compliance order is issued must comply with the order. (a) if the order was issued for the purpose of securing compliance with a requirement imposed by or under this Act and a penalty is fixed by this Act for breach of that requirement—that penalty; (b) in any other case—$70 000. (9) A person must not hinder or obstruct a person complying with a compliance order. 112—Reparation orders (1) If a designated authority is satisfied that a person has caused harm to biodiversity by breach of any requirement imposed, or duty created, by or under this Act, the designated authority may issue a reparation order requiring the person to do 1 or more of the following: (a) to take specified action within a specified period to make good any resulting damage to biodiversity (including by taking action to restore ecological function); (b) without limiting paragraph (a)— (i) to take specified action to achieve a significant environmental benefit in accordance with the requirements of the SEB policy; or (ii) to make a payment into the Biodiversity Restoration Fund of an amount considered by the designated authority to be sufficient to achieve the significant environmental benefit that would otherwise be required by the SEB policy; (c) to make a payment into the Biodiversity Conservation Fund of an amount determined to be sufficient to remedy the impact of the alleged breach; (d) to make a payment into the relevant fund under this Act of an amount determined to be appropriate in the circumstances on account of any benefit that the person has gained, or can reasonably expect to gain, from the alleged breach; (e) to discontinue, or not commence, a specified activity, or to take specified action in a specified way, to ensure that the person does not gain an ongoing benefit from the alleged breach. (2) A reparation order— (b) must specify the person to whom it is issued (whether by name or a description sufficient to identify the person); and (c) must identify the person or body issuing the order; and (d) must state the grounds on which it is made with reasonable particularity; and (e) may impose any requirement reasonably required for the purpose for which the order is issued including 1 or more of the following: (i) a requirement for action to be taken to prevent or mitigate further harm to biodiversity or for a plan of action to be prepared to the satisfaction of the designated authority; (ii) a requirement for specified monitoring of actions taken in accordance with a requirement imposed under subsection (1)(a), (b)(i) or (e); (iii) a requirement for providing specified information or reports to the designated authority; (iv) a requirement that the person to whom it is issued appoint or engage a person with specified qualifications to prepare a management plan or report or to undertake monitoring required by the order; and (f) must state that the person may, within 21 days, appeal to the ERD Court against the order or any subsequent variation of the order. (3) If the person to whom a reparation order is issued is not the owner or occupier of land in relation to which action must be taken in accordance with the order, the order authorises the person (or other person authorised by that person) to— (a) enter the land with such materials and equipment as are reasonably necessary to comply with the order; and (b) to enter and cross any other land specified in the order with the materials and equipment referred to in paragraph (a) for the purpose of gaining access to the land in relation to which action must be taken in accordance with the order. (4) The designated authority may, if of the opinion that urgent action is required to prevent or mitigate further harm, issue an emergency reparation order containing requirements of a kind referred to in subsection (2) (other than a requirement for payment into a fund under this Act) as reasonably required to prevent or mitigate further harm. (5) An emergency reparation order may be issued orally by the designated authority but, in that event, the person to whom the order is issued must be advised as soon as practicable of the person's right to appeal to the ERD Court against the order. (6) If an emergency reparation order is issued orally, the designated authority that issued it must confirm it in writing (with or without variations) at the earliest opportunity (and in any event within 2 business days) by written notice given to the person to whom it applies. (7) A designated authority may, if of the opinion that it is reasonably necessary to do so in the circumstances, include in an emergency or other reparation order a requirement for an act or omission that might otherwise constitute a breach of this Act and, in that event, a person incurs no liability to a penalty under this Act for compliance with the requirement. (8) A designated authority may, by written notice served on a person to whom a reparation order has been issued, vary or revoke the order. (9) A person to whom a reparation order is issued must comply with the order. (a) if the order was issued for the purpose of securing compliance with a requirement imposed by or under this Act and a penalty is fixed by this Act for breach of that requirement—that penalty; (b) in any other case—$70 000. (10) A person must not hinder or obstruct a person complying with a reparation order. 113—Action on non‑compliance with compliance order or reparation order (1) If the requirements of a compliance order or reparation order are not complied with, the Minister may take any action required to give effect to the order. (2) Action to be taken by the Minister under subsection (1) may be taken on the Minister's behalf by an authorised officer or another person authorised by the Minister for that purpose. (3) An authorised officer or another person authorised by the Minister taking action under this section is authorised to enter any place, including by use of reasonable force, as is reasonably necessary at any reasonable time with any materials and equipment and with any assistance as is required. (4) The powers in subsection (3) are in addition to any powers an authorised officer has under this Act. (5) The reasonable costs and expenses incurred by the Minister in taking action under this section may be recovered as a debt from the person who failed to comply with the requirements of the compliance order or reparation order. (6) If an amount is recoverable from a person under this section— (a) the Minister may, by notice in writing to the person, fix a period, being not less than 28 days from the date of the notice, within which the amount must be paid by the person, and, if the amount is not paid by the person within that period, the person is liable to pay interest charged at the rate prescribed by regulation on the amount unpaid and on any unpaid interest; and (b) the amount together with any interest so payable is, until paid, a first charge in favour of the Minister on all land owned by the person. 114—Registration of orders by Registrar‑General (a) a designated authority has issued a compliance order or reparation order; and (b) the order is issued in relation to an activity carried out on land, or requires a person to take action on or in relation to land, the Minister may apply to the Registrar‑General for the registration of the order in relation to that land. (2) An application under this section must— (a) define the land to which it relates; and (b) comply with any requirements imposed by the Registrar‑General for the purposes of this section. (3) The Registrar‑General must on— (a) due application under subsection (2); and (b) the lodgement of a copy of the relevant order, register the order in relation to the land by making such entries in any register book, memorial or other book or record in the Lands Titles Registration Office or in the GRO as the Registrar‑General thinks fit. (4) The Minister must provide to the Registrar‑General notice of any variation to an order registered under this section. (5) An order registered under this section (as varied from time to time) is binding on each owner and occupier from time to time of the land. (6) The Registrar‑General must, on application by the Minister, cancel the registration of an order in relation to land and make such endorsements to that effect in the appropriate register book, memorial or other book or record in respect of the land as the Registrar‑General thinks fit. (7) The Minister may, if the Minister thinks fit, apply to the Registrar‑General for cancellation of the registration of an order under this section in relation to land, and must do so— (a) on revocation of the order; or (b) on full compliance with the requirements of the order; or (c) if action has been taken by the Minister under this Division—on payment to the Minister of any amount recoverable by the Minister under this Division in relation to the action so taken. (8) The Minister must, as soon as is reasonably practicable, notify each owner or occupier of the relevant land by notice in writing if— (a) an order is registered under subsection (3); or (b) the cancellation of the registration of an order is given effect to under subsection (7). 115—Enforceable voluntary undertakings (1) The Minister may accept (by written notice) a written undertaking given by a person in connection with a matter relating to a breach or alleged breach by the person of this Act. (2) The giving of an undertaking does not constitute an admission of guilt by the person giving the undertaking in respect of the breach or alleged breach to which the undertaking relates. (3) A person must not contravene an undertaking made by the person that is in effect. Maximum penalty: $70 000. (4) If the Minister considers that a person has contravened an undertaking accepted by the Minister, the Minister may apply to the ERD Court for enforcement of the undertaking. (5) If the ERD Court is satisfied that the person has contravened the undertaking, the Court, in addition to the imposition of any penalty, may make any of the following orders: (a) an order that the person must comply with the undertaking or take specified action to comply with the undertaking; (b) an order discharging the undertaking; (c) an order directing the person to pay to the Minister— (i) the costs of the proceedings; and (ii) the reasonable costs of the Minister in monitoring compliance with the undertaking in the future; (d) any other order that the Court considers appropriate in the circumstances. (6) A person who has made an undertaking may, at any time, with the written agreement of the Minister— (a) vary the undertaking; or (b) withdraw the undertaking. (7) Subject to this section, no proceedings for a breach or alleged breach of this Act may be brought against a person if an undertaking is in effect in relation to that breach. (8) No proceedings for a breach or alleged breach of this Act may be brought against a person who has made an undertaking under this section in relation to that breach and who has completely discharged the undertaking. (9) The Minister may accept an undertaking in relation to a breach or alleged breach before proceedings in respect of that breach have been finalised. (10) If the Minister accepts an undertaking before the proceedings are finalised, the Minister must take all reasonable steps to have the proceedings discontinued as soon as possible. Division 4—Enforcement proceedings Subdivision 1—Civil enforcement 116—Application to ERD Court for enforcement (1) The following persons may apply to the ERD Court for an order to remedy or restrain a breach of this Act: (a) the Minister; (b) in the case of unlawful clearance of native plants or unlawful destruction, damage or disturbance of critical habitat features of critical habitat—the CAC; (c) a person who owns or who has any other legal or equitable interest in land that has been, or will be, affected by the breach; (d) in the case of a contravention of a term of a biodiversity agreement—a party to the agreement; (e) in the case of a breach involving a Culturally Significant Biodiversity Entity—any affected Aboriginal person; (f) with permission of the Court—an Aboriginal person who has a cultural or spiritual connection to the land that has been, or will be, affected by the breach; (g) other than in respect of an application to restrain or remedy a breach of the general duty in section 11—any other person with the permission of the Court. (2) In determining whether to grant permission under subsection (1)(f) or (g), the ERD Court must be satisfied that— (a) there is a real or significant likelihood that the requirements for the making of an order under this section would be satisfied; and (b) allowing the proceeding would be likely to promote the objects and principles of this Act; and (c) the person has given written notice to the Minister asking the Minister to bring a proceeding and the Minister has failed to act within a reasonable time; and (d) the proceedings would not be frivolous or vexatious or otherwise be an abuse of the process of the Court, and may have regard to any other matter the Court considers relevant to the person's standing to bring and maintain proceedings. (3) Proceedings under this section may be brought in a representative capacity with the consent of all persons on whose behalf they are to be brought. (4) If proceedings under this section relate to the unlawful clearance of plants or the unlawful destruction, damage or disturbance of critical habitat features of critical habitat and are brought by a person other than the CAC— (a) the applicant must serve a copy of the application on the CAC within 3 days after filing the application with the ERD Court; and (b) the Court must, on application by the CAC, join the CAC as a party to the proceedings. (5) An application may be made in the absence of the respondent and, if the ERD Court is satisfied on the application that the respondent has a case to answer, it may grant the applicant permission to serve a summons requiring the respondent to appear before the Court to show cause why an order should not be made under this section. (6) An application under this section must be referred in the first instance to a conference under section 16 of the Environment, Resources and Development Court Act 1993. (7) If— (a) after hearing— (i) the applicant and the respondent; and (ii) any other person or body who, in the opinion of the ERD Court, has a proper interest in the subject matter of the proceedings or is otherwise referred to in subsection (1) and desires to be heard in the proceedings, the Court is satisfied, on the balance of probabilities, that the respondent to the application has breached this Act; or (b) the respondent fails to appear in response to the summons or, having appeared, does not avail themself of an opportunity to be heard, and the Court is satisfied, on the balance of probabilities, that the respondent to the application has breached this Act, the Court may, by order, exercise 1 or more of the following powers: (c) require the respondent to refrain, either temporarily or permanently, from the act, activity or course of action, that constitutes the breach; (d) require the respondent to make good the breach in a manner, and within a period, specified by the Court, or to take such other action as may appear appropriate to the Court, taking into account the nature and extent of the impacted biodiversity; (e) require the respondent to pay to any person who has suffered loss or damage as a result of the breach, or incurred costs or expenses as a result of the breach, compensation for the loss or damage or an amount for, or towards, those costs or expenses; (f) require the respondent to pay into the relevant fund under this Act an amount, determined by the Court to be appropriate in the circumstances, on account of the financial benefit that the respondent has gained, or can reasonably be expected to gain, by committing the breach; (g) require the respondent to pay into the relevant fund under this Act an amount, determined by the Court, in the nature of exemplary damages (and this amount may be in addition to any amount ordered to be paid under paragraph (f)); (h) require the respondent to take specified action to publicise— (i) the breach of this Act; and (ii) the environmental and other consequences flowing from the breach; and (iii) the other requirements of the order made against the respondent; (i) require the respondent to refrain from an act, activity or course of action, or to undertake an act, activity or course of action, to ensure that the respondent does not gain an ongoing benefit from the breach. (8) The power conferred by subsection (7)(f) or (g) can only be exercised by a Judge of the ERD Court. (9) In assessing damages under subsection (7)(g), the ERD Court must have regard to— (a) the extent of the harm caused or likely to be caused by the commission of the offence; and (b) the sensitivity of the receiving environment or component of biodiversity, including whether it is a threatened species, threatened ecological community, listed ecological entity or critical habitat; and (c) whether the harm caused or likely to be caused impacts on a Culturally Significant Biodiversity Entity (unless that entity is included in a part of the Biodiversity Register that is not made available to the public in accordance with section 177(3) and is not otherwise known by the respondent to be a Culturally Significant Biodiversity Entity) and any impacts to Aboriginal persons; and (d) whether the harm caused or likely to be caused occurs in a designated area; and (e) any benefit (including a financial benefit) that the respondent has gained or sought to gain by committing the breach; and (f) any other matter the Court may consider relevant. (10) Subject to subsection (12), the ERD Court may make such order in relation to costs of proceedings under this section as it thinks just and reasonable. (11) Without limiting the generality of subsection (10), in determining whether to make any order in relation to costs the ERD Court may have regard to the following matters (so far as they are relevant): (a) whether the applicant is pursuing a personal interest only in bringing the proceedings or is furthering a wider group interest or the public interest; (b) whether or not the proceedings raise significant issues relating to the administration of this Act. (12) The ERD Court may only make an order in relation to costs of proceedings under this section against an applicant bringing proceedings in accordance with subsection (1)(e) or (f) if the Court is satisfied after hearing the proceedings that the application was frivolous or vexatious. (13) In this section— breach of this Act includes a threatened contravention of a provision this Act, the regulations or a term of a biodiversity agreement or a biodiversity management plan. 117—Order where native plants have been cleared (1) Subject to subsections (7)(d) and (8), if the ERD Court is satisfied on the balance of probabilities that the respondent— (a) has cleared native plants in breach of this Act; or (b) has cleared native plants in accordance with the CAC's consent but has not complied with a condition of a kind referred to in section 53 attached to the consent, the Court must make an order against the respondent under section 116(7)(d). (2) In making the order under section 116(7)(d), the ERD Court may (or, if requested to do so by the CAC, must) consider whether the respondent should be required to enter into a biodiversity agreement in respect of the land. (3) The order under section 116(7)(d) must direct the respondent to— (a) remove the buildings, works or plants (if any) that have been erected, undertaken or planted on the land since the clearance occurred; and (b) establish plants of a species specified in the order in such numbers and on such parts of the cleared land as is specified in the order; and (c) nurture, protect and maintain the plants until they are fully established or for such period as is specified in the order; and (d) pay into the Biodiversity Restoration Fund an amount, determined by the ERD Court to be appropriate in the circumstances, on account of the financial benefit that the respondent has gained, or can reasonably be expected to gain, by committing the breach; and (e) refrain from an act, activity or course of action, or to undertake an act, activity or course of action, to ensure that the respondent does not gain an ongoing benefit from the breach. (4) The order under section 116(7)(d) may do 1 or more of the following: (a) where some of the original plants are still growing or situated on the land—direct that they be removed so that the new plants can be established on the land; (b) include such ancillary directions or orders as the ERD Court thinks fit. (5) If the respondent is not the owner or occupier of the land, the order authorises the respondent (or a person authorised by the respondent) to— (a) enter the land with such materials and equipment as are reasonably necessary to comply with the order; and (b) to enter and cross any other land specified in the order with the materials and equipment referred to in paragraph (a) for the purpose of gaining access to the cleared land. (6) An owner or occupier of land or any other person who hinders or obstructs the respondent (or a person authorised by the respondent) in carrying out the directions of an order under this section or entering and crossing land under subsection (5) is guilty of an offence. (7) If the ERD Court is satisfied on the balance of probabilities that— (a) the owner or occupier of the cleared land did not know and could not reasonably have been expected to know of the circumstances referred to in subsection (1) requiring the making of an order under section 116(7)(d); and (b) compliance with an order under section 116(7)(d) will cause financial loss to that person, the Court may— (c) assess the amount of the financial loss and order the respondent to pay that amount to the owner or occupier of the land; or (d) refuse to make the order or make the order in a modified form. (8) If the ERD Court is satisfied that compliance with any order under section 116(7)(d) would not be reasonably practicable, it may refuse to make the order or may make the order in a modified form. (9) However, the ERD Court cannot take into account financial grounds when making an assessment under subsection (8) unless the Court is satisfied that it would be unduly harsh not to do so. (10) If, in the opinion of the ERD Court, it should refuse under subsection (7)(d) or (8) to make an order under section 116(7)(d), the Court may make an order against the respondent requiring the establishment of plants in accordance with the provisions of this section on some other land specified by the Court. 118—No development orders (1) If the owner of land— (a) on which native plants are growing or situated is convicted of an offence against section 45 in relation to clearance of native plants; or (b) is convicted or found guilty of an offence against section 46 where the effect of the contravention of the condition that constitutes the offence is that native plants growing or situated on that land have been cleared without consent, the ERD Court may, in addition to imposing a penalty for the offence, order that no development of the land in relation to which the offence was committed may be undertaken during a period (not exceeding 10 years) fixed by the Court except for the purpose of re‑establishing or restoring native plants cleared in, or otherwise making good any damage to native plants caused through, the commission of the offence. (2) Before making an order under this section, the ERD Court must give— (a) any person with a registered interest in the land; and (b) if the land is within the area of a local council—the local council, a reasonable opportunity to make submissions on whether the order should be made and, if made, the term of the order. (3) The ERD Court may, on application, vary or revoke an order made under this section. (4) An application to vary or revoke an order made under this section may not be made by the owner of the land who was convicted of the offence against section 45 or 46 (the owner) or a person who the ERD Court considers is acting on behalf of the owner or is otherwise associated with the owner. (5) A person who undertakes development contrary to an order under this section is, in addition to liability for contempt of the order, guilty of an offence. (b) in the case of an individual—$500 000. (6) In this section— development has the same meaning as in the Planning, Development and Infrastructure Act 2016; land in relation to which the offence was committed means— (a) land on which the plant is or was growing or is or was situated; and (b) land that has been, or will be, affected in any way (including by an increase in its value) by reason of the commission of the offence. 119—Interim order (1) If, on an application under this Division or before the determination of the proceedings commenced by an application under this Division, the ERD Court is satisfied that, in order to protect biodiversity or to preserve the rights or interests of parties to the proceedings, or for any other reason, it is desirable to make an interim order under this section, the Court may make such an order. (2) An interim order— (a) may be made on an application in the absence of the respondent; and (b) may be made whether or not the application has been referred to a conference under section 116(6); and (c) will be made subject to such conditions as the ERD Court thinks fit; and (d) will not (as such) operate after the proceedings in which it is made are finally determined. 120—Enforcement of ERD Court orders (1) A person who contravenes an order of the ERD Court under this Division is, in addition to liability for contempt of the order, guilty of an offence. (b) in the case of an individual—$500 000. (2) If the ERD Court makes an order under section 116(7)(d) and the respondent fails to comply with the order within the period specified by the Court, the Minister may cause any work contemplated by the order to be carried out, and may recover the reasonable costs and expenses of that work, as a debt, from the respondent. (3) Section 117(5) and (6) apply to, and in relation to, the Minister when acting under subsection (2) as though it were the respondent. (4) If an amount is recoverable from a person by the Minister under subsection (2)— (a) the Minister may, by notice in writing to the person, fix a period, being not less than 28 days from the date of the notice, within which the amount must be paid by the person, and, if the amount is not paid by the person within that period, the person is liable to pay interest charged at the rate prescribed by regulation on the amount unpaid and on any unpaid interest; and (b) the amount together with any interest so payable is, until paid, a first charge in favour of the Minister on all land owned by the person. 121—Miscellaneous provisions (1) If the ERD Court makes an order under this Division that requires any act or activity to be carried out on land or otherwise affects the future use of land, the Court must include in the order a requirement that a copy of the order be served on the Registrar‑General and that the Registrar‑General note the order against the relevant certificate or other instrument of title or, in the case of land not under the Real Property Act 1886, against the land (and the Registrar‑General must, on service of the order, make the note and then must not remove the note except in accordance with an order of the Court). (2) The ERD Court may order an applicant in proceedings under section 116— (a) to provide security for the payment of costs that may be awarded against the applicant if the application is subsequently dismissed; and (b) to give an undertaking as to the payment of any amount that may be awarded against the applicant under subsection (3). (3) If, on an application under section 116, the ERD Court is satisfied— (a) that the respondent has not breached this Act (within the meaning of that section); and (b) that the respondent has suffered loss or damage as a result of the actions of the applicant; and (c) that in the circumstances it is appropriate to make an order under this provision, the Court may, on the application of the respondent (and in addition to any order as to costs), require the applicant to pay to the respondent an amount, determined by the Court, to compensate the respondent for the loss or damage which the respondent has suffered. (4) The ERD Court may only require an applicant bringing proceedings in accordance with section 116(1)(e) or (f) to make a payment under subsection (3) if the Court is satisfied that the application was frivolous or vexatious. (5) A person who fails to comply with an order of the ERD Court under this Division commits a contempt of Court. (6) The ERD Court may, if it considers it appropriate to do so, either on its own initiative or on the application of a party, vary or revoke an order previously made under subsection (2) or (3). (7) The ERD Court may, on application under this subsection by a person to whom a notice has been given under section 113(6)(a) or 120(4)(a) extend the period that has been fixed by the Minister for the purposes of the notice (and the relevant order of the Court under this subsection will then have effect according to its terms). 122—Commencement of proceedings Proceedings under this Subdivision must be commenced— (a) if the proceedings relate to an offence under this Act which the respondent has expiated or of which the respondent has been convicted or found guilty—within 1 year after the date on which the respondent so expiated, or was convicted or found guilty of, the offence (as the case requires); or (b) in any other case—within 5 years after the date on which the breach is alleged to have occurred or, with the authorisation of the Attorney‑General, within 10 years after the date on which the breach is alleged to have occurred. 123—Initiating civil proceedings to require offender to make good clearance of plants (1) If a court finds a person guilty— (a) of an offence against section 45 in relation to clearance of native plants; or (b) of an offence against section 46 where the effect of the contravention of the condition that constitutes the offence is that a native plant has been cleared without the consent of the CAC, the CAC must, within the prescribed period, initiate civil proceedings under this Subdivision in order to require the offender to make good the breach of this Act unless such proceedings have already been commenced in, or an order has already been made by, the ERD Court under this Subdivision in relation to the matter, or the finding of guilt is overturned on appeal. prescribed period, in relation to the initiation of civil proceedings against an offender, means— (a) 1 year after the time within which the offender may appeal against the relevant finding of guilt; or (b) if an appeal is commenced—1 year after— (i) the appeal is dismissed, struck out or withdrawn; or (ii) any questions raised by the appeal have been finally determined. 124—Recovery of civil penalty in respect of breach (1) Subject to this section, if the relevant authority is satisfied that a person has committed an offence by breaching this Act, the relevant authority may, as an alternative to criminal proceedings, recover, by negotiation or by application to the ERD Court, an amount as a civil penalty in respect of the breach. (2) The relevant authority may determine whether to initiate proceedings for an offence or take action under this section, having regard to the seriousness of the breach, the previous record of the offender and any other relevant factors. (3) The relevant authority may not make an application to the ERD Court under this section to recover an amount from a person as a civil penalty in respect of a breach— (a) unless the relevant authority has served on the person a notice in the prescribed form advising the person that the person may, by written notice to the relevant authority, elect to be prosecuted for the breach and the person has been allowed not less than 21 days after service of the relevant authority's notice to make such an election; or (b) if the person serves written notice on the relevant authority, before the making of such an application, that the person elects to be prosecuted for the breach. (4) In undertaking negotiations to agree a civil penalty, the relevant authority must have regard to the principles and procedures set out in the biodiversity policy relating to the calculation of civil penalties. (5) The maximum amount that the relevant authority may recover by negotiation as a civil penalty in respect of a breach is the sum of the amount specified by this Act as the criminal penalty in relation to that breach and the amount of any economic benefit acquired by the person, or accrued or accruing to the person, as a result of the breach. (6) If, on an application by the relevant authority, the ERD Court is satisfied on the balance of probabilities that a person has breached this Act, the ERD Court may order the person to pay to the relevant authority an amount as a civil penalty (but not exceeding the amount specified by this Act as the criminal penalty in relation to that breach). (7) In determining the amount to be paid by a person as a civil penalty, the ERD Court must have regard to the matters set out in the biodiversity policy relating to the calculation of civil penalties. (8) The jurisdiction conferred by this section is to be part of the civil jurisdiction of the ERD Court. (9) If conduct of a person constitutes a breach of 2 or more provisions of this Act or the regulations, an amount may be recovered from the person under this section in relation to the breach of any 1 or more of those provisions (provided that the person is not liable to pay more than 1 amount as a civil penalty in respect of the same conduct). (10) Proceedings for an order under this section that a person pay an amount as a civil penalty in relation to a breach of this Act, or for enforcement of such an order, are stayed if criminal proceedings are started or have already been started against the person for an offence constituted by conduct that is substantially the same as the conduct alleged to constitute the breach. (11) Proceedings referred to in subsection (10) may only be resumed if the criminal proceedings do not result in a formal finding of guilt being made against the person. (12) Evidence of information given or evidence of the production of documents by a person is not admissible in criminal proceedings against the person if— (a) the person gave the evidence or produced the documents in the course of negotiations or proceedings under this section for the recovery of an amount as a civil penalty in relation to a breach of this Act; and (b) the conduct alleged to constitute the offence is substantially the same as the conduct that was alleged to constitute the breach. (13) However, subsection (12) does not apply to criminal proceedings in respect of the making of a false or misleading statement. (14) Proceedings for an order under this section may be commenced at any time within 5 years after the date of the alleged breach or, with the authorisation of the Attorney‑General, at any later time within 10 years after the date of the alleged breach. (15) In this section— relevant authority means— (a) the Minister; or (b) if the breach relates to the clearance of native plants or the destruction, damage or disturbance of critical habitat features of critical habitat—the CAC. Subdivision 2—Criminal enforcement 125—Jurisdiction of ERD Court Offences constituted by this Act lie within the criminal jurisdiction of the ERD Court. 126—Applications during or after criminal proceedings (1) If, during the course of criminal proceedings before a court in respect of an offence against this Act, the prosecutor applies for an order under this Act relating to the offence, the court must deal with the application during the course of the criminal proceedings unless satisfied by the defendant that to do so would not be appropriate in the circumstances. (2) If an application for an order under this Act is made to a court before which a person was convicted or found guilty of an offence against this Act— (a) the application may be dealt with by the court; and (b) any power in relation to the relevant order may be exercised by the court, whether or not the court is constituted in the same way as when the person was convicted or found guilty of the offence. 127—Commencement of proceedings for offence Proceedings for an offence against this Act may be commenced at any time within 5 years after the date on which the offence is alleged to have been committed or, with the authorisation of the Attorney‑General, at any later time within 10 years after the date on which the offence is alleged to have been committed. 128—Offences by bodies corporate Where a body corporate is guilty of an offence against this Act, each member of the governing body, and the manager, of the body corporate are guilty of an offence and liable to the same penalty as is prescribed for the principal offence. 129—Sentencing considerations In imposing a penalty for an offence under this Act, the court is to consider any relevant information before the court as to the following matters: (a) the extent of the harm caused or likely to be caused by the offence; (b) the sensitivity of the receiving environment or component of biodiversity, including whether it is a threatened species, threatened ecological community, listed ecological entity or critical habitat; (c) whether the harm caused or likely to be caused by the offence impacts on a Culturally Significant Biodiversity Entity (unless that entity is included in a part of the Biodiversity Register that is not made available to the public in accordance with section 177(3) and is not otherwise known by the respondent to be a Culturally Significant Biodiversity Entity) and any impacts to Aboriginal persons; (d) whether the harm caused or likely to be caused by the offence occurs in a designated area; (e) any financial or other benefit that the defendant sought to gain by committing the offence, and may consider such other matters as the court thinks fit. Subdivision 3—Defences 130—Application of defences (1) A person charged with an offence against this Act bears the legal onus of proving, on the balance of probabilities, any defence under this Act. (2) If a statement of fact or opinion in support of a defence is challenged by the prosecution, the court must disregard that fact or opinion unless it is substantiated on oath. 131—Notice of defences (1) A person who intends to rely on a defence under this Act may only do so if the person gives notice in writing of that intention to the Minister. (2) A notice under subsection (1) must be given— (a) if the proceedings are for a summary offence—within 28 days after the summons to answer the charge is served on the person; or (b) if the proceedings are for a minor indictable offence where the charge is to be dealt with in the same way as a charge of a summary offence—not less than 28 days before the date for hearing of the charge; or (c) in any other case—within 7 days after the person is committed for trial. 132—General defence (1) It is a defence to a charge of an offence against this Act if the defendant proves that the alleged offence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence. (2) The regulations may prescribe particular circumstances in which the defence under this section does not apply or is to apply in a modified form. 133—Acts authorised under legislation It is a defence to a charge of an offence against this Act to prove that the defendant acted— (a) in compliance with a requirement of, or in accordance with a power under, this Act or another Act; or (b) in prescribed circumstances. 134—Defences in relation to Part 5 (1) It is a defence to a charge of an offence against section 65 in respect of taking a protected animal if the defendant proves that— (a) the animal had attacked, or was attacking, any person; or (b) subject to subsection (2), the animal was in dangerous proximity to any person; or (c) they were acting reasonably in the best interests of the animal as the animal— (i) was suffering from injury, disease or exhaustion; or (ii) was entangled or otherwise incapacitated by material of human origin. (2) The defence in subsection (1)(b) does not apply if the person in relation to whom the animal was in dangerous proximity was in that proximity deliberately so that the defence could be relied on. (3) It is a defence to a charge of an offence against section 65 in respect of taking a protected animal or a protected egg where it is alleged the defendant used poison in committing the offence if the defendant proves that— (a) the defendant used the poison in good faith for the purpose of complying with an obligation under Part 9 of the Landscape South Australia Act 2019 or section 22 of the Dog Fence Act 1946; and (b) the defendant exercised such precautions as the defendant might reasonably be expected to have exercised in the circumstances to avoid endangering protected animals by the use of poison. (4) It is a defence to a charge of an offence against section 65 in respect of interfering with a protected animal if the defendant proves that— (a) the defendant acted in the best interests of the animal concerned; or (b) the defendant acted reasonably to frighten the animal in order to protect themself or another person or to protect— (i) property comprising plants cultivated for commercial or other purposes or animals; or (ii) property of any other kind. 135—Defence in relation to hunting It is a defence to a charge of an offence against section 166 if the defendant proves that the hunting was for the purpose of— (a) the destruction of animals (other than protected animals) that are endangering human life; or (b) the destruction of animals (other than protected animals) by the owner of any land, a member of their household, or an employee or agent of the owner, that are causing damage to crops, stock or other property on the land; or (c) complying with an obligation under Part 9 of the Landscape South Australia Act 2019. Subdivision 4—Evidentiary provisions 136—Interpretation In this Subdivision— defendant includes a respondent in civil proceedings; prosecution includes an applicant or plaintiff in civil proceedings. 137—General evidentiary matters (1) In proceedings under this Act, an allegation in the application or information— (a) that a place is, or was at a time specified, a reserve, sanctuary or other conservation area under Part 7 Division 1, wilderness protection area or wilderness protection zone or is situated within a reserve, sanctuary or other conservation area under Part 7 Division 1, wilderness protection area or wilderness protection zone; or (b) that a person is, or was at a time specified, an authorised officer; or (c) that a specified act or activity was a regulated act or activity; or (d) that a plant is or was a native plant; or (e) that a plant is or was of a specified species; or (f) that clearance or taking of a native plant was carried out or undertaken by the owner or occupier (or both the owner and occupier) of the land on which the native plant is or was growing or situated; or (g) that an animal, animal product or egg is or was a protected animal, protected animal product or protected egg (as the case may be); or (h) that an animal is or was of a specified species; or (i) that an animal product or egg is or was the product or egg of an animal of a specified species; or (j) that a specified feature of habitat is or was a critical habitat feature of critical habitat; or (k) that a specified habitat is or was critical habitat; or (l) that native plants to which the proceedings relate were not intentionally sown or planted by a person, is taken to be proved in the absence of proof to the contrary. (2) If, in proceedings under this Act, it is proved that the defendant— (a) was found in possession of a plant, it will be presumed, unless the defendant proves to the contrary, that the plant was illegally taken or acquired by the defendant; or (b) was found in possession of an animal, animal product or egg, it will be presumed, unless the defendant proves to the contrary, that the animal, animal product or egg was illegally taken or acquired by the defendant; or (c) had possession of an animal, firearm, taking device, poison or bait capable of being used for the purpose of taking a protected animal or hunting, it will be presumed, unless the defendant proves to the contrary, that the defendant had possession of the animal, firearm, taking device, poison or bait for the purpose of taking a protected animal or for hunting (as the case requires). (3) In any proceedings under this Act, the onus of proving that an act or activity that is the subject of the proceedings was carried out or undertaken in accordance with the terms of any applicable Schedule, Council guidelines, biodiversity policy or other document under this Act (as the case may be) lies with the defendant. (4) If in proceedings under this Act, it is proved that the defendant was found in possession or control of a trafficable quantity of protected animals, protected animal products or eggs of a protected animal (whether a protected egg or otherwise) it will be presumed, in the absence of proof to the contrary, that the animals, animal products or eggs (as the case may be) were illegally taken from the wild. (5) If, in proceedings under this Act, a person seeks to rely on being an Aboriginal person, the onus of proving that they are an Aboriginal person lies on that person. (6) In proceedings under this Act, the prosecution does not need to prove that the defendant knew or was reckless with respect to the following: (a) in the case of proceedings relating to a plant—the particular species of the plant or that the plant was a native plant or a threatened species (as the case may be); (b) in the case of proceedings relating to an animal—the particular species of the animal or that the animal was a protected animal or threatened species (as the case may be); (c) in the case of proceedings relating to an animal product or egg—the particular species of the animal from which the animal product or egg derives or that the animal from which the animal product or egg derives was a protected animal or threatened species (as the case may be); (d) in the case of proceedings relating to habitat—whether a feature of habitat was a critical habitat feature of critical habitat. 138—Documents and data (1) In proceedings under this Act, an apparently genuine document purporting to be a certificate signed by an authorised officer and certifying as to any of the following matters must be accepted as proof of the matter so certified in the absence of proof to the contrary: (a) that a particular measurement, position or other thing has been determined by the use of an electronic, sonic, optical, mechanical or other device by an authorised officer or person assisting an authorised officer; (b) that a remotely sensed image specified in the document— (i) was captured by a specified device and is accurate to the extent indicated in the document; and (ii) was captured at a specified time on a specified date; and (iii) is an image of a specified place. (2) For the purposes of this section, a reference to an electronic, sonic, optical, mechanical or other device includes a reference to any software used by, or in relation to, such a device. (3) In proceedings under this Act, an apparently genuine document purporting to be a certificate signed by the Minister and certifying as to any of the following matters must be accepted as proof of the matter so certified in the absence of proof to the contrary: (a) a person had, or had not, been given consent under this Act; (b) a person was, or was not, the holder of a permit or other authorisation under this Act; (c) a designated list contained particular information; (d) an entity was a Culturally Significant Biodiversity Entity. (4) In proceedings under this Act, an apparently genuine document purporting to be a certificate signed by the Attorney‑General and certifying as to any of the following matters must be accepted as proof of the matter so certified in the absence of proof to the contrary: (a) that the commencement of proceedings under section 122, 124 or 127 was authorised; (b) that the Attorney‑General gave consent that a specified offence may be prosecuted as a major indictable offence under section 140(4). (5) In proceedings under this Act or other legal proceedings, an apparently genuine document appearing to be a copy of a biodiversity agreement or a biodiversity management plan certified by the Minister is to be accepted, in the absence of proof to the contrary, as proof of the agreement or plan and its terms. (6) In this section— image includes— (a) a copy of an image; and (b) data from which an image can be produced; remotely sensed image includes— (a) an image captured by a device (whether a camera or otherwise) mounted on or in a satellite, craft or other such machine; and (b) any other image declared by the regulations to be included in the ambit of this definition. 139—Possession (1) For the purposes of this Act, a person has possession of a plant, animal, animal product, egg, firearm, or any other thing included in the ambit of this section by regulation, if— (a) the person has physical possession or control of the thing or has the thing in the physical possession or control of another; or (b) the person has and exercises access to the thing; or (c) the person controls access to the thing; or (d) the person occupies, or has care, control or management of, premises, or is in charge of a vehicle, vessel or craft, where the thing is found. (2) However, subsection (1)(d) does not apply if the person proves that— (a) they did not know, and could not reasonably be expected to have known, that the plant, animal, animal product, egg, firearm or other thing was on or in the premises, vehicle, vessel or craft; or (b) the plant, animal, animal product, egg, firearm or other thing was in the lawful possession of another or they believed on reasonable grounds that the plant, animal, animal product, egg, firearm or other thing was in the lawful possession of another. Subdivision 5—General provisions 140—Classification of offences (1) Despite any other Act or law, but subject to this section, all offences under this Act are classified as minor indictable offences. (2) Despite any other Act or law, an offence under this Act is a summary offence if— (a) the maximum fine for the offence does not exceed twice a Division 1 fine; and (b) the maximum term of imprisonment (if any) for the offence does not exceed 2 years. (3) For the purposes of subsection (2), if a different maximum penalty is specified in relation to an offence depending on whether the offence is committed by an individual or a body corporate, the classification of the offence is to be determined by reference to the maximum penalty applicable if the offence is committed by an individual. (4) An offence that would, but for the operation of subsection (1), be classified as a major indictable offence may be prosecuted as a major indictable offence with the consent of the Attorney‑General. 141—Aggregation of offences (1) If a person has committed multiple offences against Part 5— (a) in relation to different species of protected animals, or animal products or eggs of protected animals of different species, and the offences were committed by the person on the same occasion or within 12 months of each other or in the course of an organised commercial activity relating to the protected animals, protected animal products or eggs of protected animals (as the case may be) carried on by the person; or (b) in relation to the same species of protected animal, or animal products or eggs of protected animals of the same species, on different occasions and the offences were committed by the person within 12 months of each other or in the course of an organised commercial activity relating to the protected animals, protected animal products or eggs of protected animals (as the case may be) carried on by the person, the person may be charged with a single offence against Part 5 in respect of all of the different species, or all of the different occasions, (as the case requires) and, subject to subsection (2), the quantity of the protected animals, protected animal products or eggs of protected animals (as the case may be) concerned for the purposes of that offence is the total quantity of the protected animals, protected animal products or eggs of protected animals (as the case requires) in respect of the different separate offences. (2) If a person is charged with a single offence against Part 5 and the charge relates to more than 1 kind of species of protected animal, or animal products or eggs of protected animals of more than 1 kind of species, the quantity of the protected animals, protected animal products or eggs of protected animals (as the case may be) for the purposes of the charge is a trafficable quantity if the sum of the fractions obtained by dividing the actual quantity of each kind of species of protected animal, or animal products or eggs of protected animals of each kind of species, by the quantity prescribed in relation to that kind of species for the purposes of the definition of trafficable quantity in section 3 is equal to or greater than 1. 142—Culturally sensitive information On the hearing of proceedings that involve culturally sensitive information, a court may dispense with any formalities it considers appropriate in order to facilitate the hearing of that information. 143—Interest (1) Interest accrues on an amount payable under sections 113 and 120 and on unpaid interest under those sections in accordance with the regulations. (2) A person who is liable to pay an amount under the provisions referred to in subsection (1) is also liable to pay interest that accrues, or has accrued, on or in relation to that amount. (3) Regulations referred to in subsection (1) may (without limiting their scope) prescribe the time from which interest accrues. 144—Sale of land for non‑payment (1) If an amount payable under this Act, or interest in relation to such an amount, is a first charge on land and has been unpaid for 1 year or more, the Minister may sell the land. (2) Before the Minister sells land in pursuance of this section, they must serve notice on the owner and occupier of the land— (a) stating the period for which the amount and interest have been unpaid; and (b) stating the amount of the total liability for the amount and interest presently outstanding and charged on the land; and (c) stating that if that amount is not paid in full within 1 month of service of the notice (or such longer time as the Minister may allow), the Minister intends to sell the land for non‑payment of the amount and interest. (3) A copy of a notice must be served on the registered mortgagee or encumbrancee of the land (if any). (4) If the outstanding amount is not paid in full within the time allowed under subsection (2), the Minister may proceed to sell the land. (5) The sale will, except in the case of land held from the Crown under a lease, licence or agreement to purchase, be by public auction (and the Minister may set a reserve price for the purposes of the auction). (6) An auction under this section must be advertised on at least 2 separate occasions in a newspaper circulating generally throughout the State, and on a website determined by the Minister. (7) If, before the date of the auction, the outstanding amount and the costs incurred by the Minister in proceeding under this section are paid to the Minister, the Minister must withdraw the land from auction. (8) If— (a) an auction fails; or (b) the land is held from the Crown under a lease, licence or agreement to purchase, the Minister may sell the land by private contract for the best price that the Minister can reasonably obtain. (9) Any money received by the Minister in respect of the sale of land under this section will be applied as follows: (a) firstly—in paying the costs of the sale and any other costs incurred in proceeding under this section; (b) secondly—in discharging the liability for the amount and interest payable under this Act; (c) thirdly—in discharging any liability to the Crown for rates, charges or taxes (including rates, charges or taxes that are a first charge on the land); (d) fourthly—in discharging any liability to a council for rates or any other liability to a council in respect of the land; (e) fifthly—in discharging any liabilities secured by registered mortgages, encumbrances or charges; (f) sixthly—in discharging any other mortgages, encumbrances and charges of which the Minister has notice; (g) seventhly—in payment to the former owner of the land. (10) If the former owner cannot be found after making reasonable inquiries as to their whereabouts, an amount payable to the former owner must be dealt with in accordance with section 6 of the Unclaimed Money Act 2021 as money the owner of which cannot be found. (11) If land is sold by the Minister in pursuance of this section, an instrument of transfer executed by the Minister will operate to vest title to the land in the purchaser. (12) The title vested in a purchaser under subsection (11) will be free of— (a) all mortgages and charges; and (b) except in the case of land held from the Crown under lease or licence—all leases and licences, (and the Registrar‑General, when registering or enrolling an instrument of transfer to vest title in the purchaser, must discharge any caveat relating to the land, and may make any note or endorsement, or take any other action in relation to any instrument, certificate, register or record, as the Registrar‑General thinks fit). (13) An instrument of transfer passing title to land in pursuance of a sale under this section must, when lodged with the Registrar‑General for registration or enrolment, be accompanied by a certificate of the Minister stating that the requirements of this section in relation to the sale of the land have been observed. (14) A reference in this section to land, or title to land, held from the Crown under lease, licence or agreement to purchase, is a reference to the interest of the lessee, licensee or purchaser in the land. 145—Constitution of ERD Court Subject to this Act, the following provisions apply in respect of the constitution of the ERD Court when exercising jurisdiction under this Act: (a) the Court may be constituted in a manner provided by the Environment, Resources and Development Court Act 1993 or may, if the Senior Judge of the Court so determines, be constituted of— (i) in relation to proceedings for an offence against this Act—a magistrate and 1 commissioner; or (ii) in any case—a Judge and 1 commissioner; (b) the provisions of the Environment, Resources and Development Court Act 1993 apply in relation to the Court constituted of a Judge and 1 commissioner, or a magistrate and 1 commissioner, in the same way as in relation to a full bench of the Court; (c) the Court may not be constituted of or include a commissioner unless— (i) in a case where only 1 commissioner is to sit (whether alone or with another member or members of the Court)—the commissioner; or (ii) in any other case—at least 1 commissioner, is a commissioner who has been specifically designated by the Governor as a person who has wide practical knowledge of, and experience in, the preservation and management of biodiversity. 146—Assessment of costs and expenses For the purposes of this Act, the reasonable costs and expenses that have been or would be incurred by the Minister in taking any action are to be assessed by reference to the reasonable costs and expenses that would have been or would be incurred in having the action taken by independent contractors engaged for that purpose. 147—Vicarious liability For the purposes of this Act, an act or omission of an employee or agent will be taken to be the act or omission of the employer or principal unless it is proved that the act or omission did not occur in the course of the employment or agency. 148—Statement of officer evidence against body corporate In proceedings for an offence against this Act by a body corporate or proceedings against a body corporate for the payment of an amount as a civil penalty in respect of an alleged breach of this Act, a statement made by an officer of the body corporate is admissible as evidence against the body corporate. 149—Recovery from related bodies corporate (a) an amount is payable by a body corporate in accordance with this Act or an order of a court made under this Act; and (b) at the time of the breach giving rise to that liability, that body and another body were related bodies corporate, the related bodies corporate are jointly and severally liable to make the payment. related body corporate has the same meaning as in the Corporations Act 2001 of the Commonwealth. Subdivision 6—Appeals 150—Appeal to ERD Court against prescribed order (1) A person to whom a prescribed order has been issued under this Act may appeal to the ERD Court against the order or any variation of the order. (2) Subject to subsection (3), an appeal must be made within 21 days after the order or variation of the order is served. (3) The ERD Court may, if it is satisfied that it is just and reasonable in the circumstances to do so, dispense with the requirement that an appeal be made within the period referred to in subsection (2). (4) An appeal under this section must be referred in the first instance to a conference under section 16 of the Environment, Resources and Development Court Act 1993. (5) Subject to subsection (6), the making of an appeal to the ERD Court does not affect the operation of an order or any variation of an order to which the appeal relates or prevent the taking of action to implement the order or the order as varied. (6) The ERD Court, or the person or body that issued the order may, on their own initiative or on application by a party to an appeal, suspend the operation of the order or variation of the order until the determination of an appeal. (7) A suspension under subsection (6) may be made subject to specified conditions, and may be varied or revoked by the ERD Court or by the person or body that granted the suspension at any time. (8) The ERD Court may, on hearing an appeal, do 1 or more of the following: (a) confirm, vary or revoke the order or any variation of an order appealed against; (b) remit the subject matter of the appeal to the person or body who issued the order or variation of the order for further consideration; (c) order or direct a person or body to take such action as the Court thinks fit, or to refrain, either temporarily or permanently, from such action or activity as the Court thinks fit; (d) make any consequential or ancillary order or direction, or impose any condition, that it considers necessary or expedient. (9) In this section— prescribed order means a compliance order, reparation order or order to comply with an enforceable voluntary undertaking under section 115. 151—Appeals to Supreme Court (1) Subject to the rules of the Supreme Court, an appeal lies against— (a) an order of a court made in the exercise of the jurisdiction conferred by Division 4 Subdivision 1 of this Part; or (b) a decision by a court not to make an order under Division 4 Subdivision 1 of this Part, to the Supreme Court. (2) An appeal under this section must be instituted within 60 days of the date of the decision or order subject to appeal, or such longer period as may be allowed by the Supreme Court.