(a) an approval of the taking of the action by the constitutional corporation, Commonwealth agency or person is in operation under Part 9 for the purposes of this section; or
(b) Part 4 lets the constitutional corporation, Commonwealth agency or person take the action without an approval under Part 9 for the purposes of this section; or
(ba) there is in force a determination under section 79E that the action may continue to be taken and the action is taken in accordance with the conditions (if any) specified in the determination; or
(c) there is in force a decision of the Minister under Division 2 of Part 7 that this section is not a controlling provision for the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or
(d) the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process).
Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.
Subdivision B—Wetlands of international importance
16 Requirement for approval of activities with a significant impact on a declared Ramsar wetland
(1) A person must not take an action that:
(a) has or will have a significant impact on the ecological character of a declared Ramsar wetland; or
(b) is likely to have a significant impact on the ecological character of a declared Ramsar wetland.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
(2) Subsection (1) does not apply to an action if:
(a) an approval of the taking of the action by the person is in operation under Part 9 for the purposes of this section; or
(b) Part 4 lets the person take the action without an approval under Part 9 for the purposes of this section; or
(ba) there is in force a determination under section 79E that the action may continue to be taken and the action is taken in accordance with the conditions (if any) specified in the determination; or
(c) there is in force a decision of the Minister under Division 2 of Part 7 that this section is not a controlling provision for the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or
(d) the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process).
ecological character has the same meaning as in the Ramsar Convention.
17 What is a declared Ramsar wetland?
Areas designated for listing
(1) A wetland, or part of a wetland, designated by the Commonwealth under Article 2 of the Ramsar Convention for inclusion in the List of Wetlands of International Importance kept under that Article is a declared Ramsar wetland as long as the wetland or part is not:
(a) excluded by the Commonwealth from the boundaries of a wetland in the List under that Article; or
(b) deleted by the Commonwealth from the List under that Article.
Areas declared by the Minister
(2) A wetland, or part of a wetland, is also a declared Ramsar wetland for the period for which a declaration of the wetland as a declared Ramsar wetland is in force.
17A Making and revoking declarations of wetlands
Declaring threatened wetlands of international importance
(1) The Minister may declare a specified wetland to be a declared Ramsar wetland by notice in the Gazette if the Minister is satisfied that:
(a) the wetland is of international significance or is likely to be of international significance because of its ecology, botany, zoology, limnology or hydrology; and
(b) the ecological character of some or all of the wetland is under threat.
Note: The Minister may make more than one declaration of the same wetland under this section. See subsection 33(1) of the Acts Interpretation Act 1901.
Consulting State or Territory before making declaration
(2) Before the Minister makes a declaration relating to a wetland wholly or partly within a State or self‑governing Territory, the Minister must inform the appropriate Minister of the State or Territory of the proposal to make the declaration, and give him or her a reasonable opportunity to comment on the proposal.
Consultation not required if threat is imminent
(3) However, the Minister need not comply with subsection (2) if he or she is satisfied that the threat mentioned in paragraph (1)(b) is imminent.
Failure to comply with subsection (2)
(4) The validity of a declaration is not affected by a failure to comply with subsection (2) in relation to the making of the declaration.
When a declaration is in force
(5) A declaration comes into force on the day it is published in the Gazette and remains in force for the period specified in the declaration, unless it is revoked earlier.
Specifying period for which declaration is in force
(6) The Minister must specify in a declaration the period for which it is to be in force. The period must not be longer than the shorter of the following periods:
(a) the period the Minister believes the Commonwealth needs to:
(i) decide whether the wetland is of international significance in terms of ecology, botany, zoology, limnology or hydrology; and
(ii) designate the wetland for inclusion in the List of Wetlands of International Importance kept under Article 2 of the Ramsar Convention;
(b) 12 months.
Revocation of declaration of threatened wetland
(7) The Minister must, by notice in the Gazette, revoke a declaration of a wetland if:
(a) the Minister is satisfied that the wetland is not of international significance because of its ecology, botany, zoology, limnology or hydrology; or
(b) the Minister is satisfied that there is no longer a threat to any part of the wetland.
17B Offences relating to declared Ramsar wetlands
(1) A person commits an offence if:
(a) the person takes an action; and
(b) the action results or will result in a significant impact on the ecological character of a wetland; and
(c) the wetland is a declared Ramsar wetland.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(1A) Strict liability applies to paragraph (1)(c).
Note: For strict liability, see section 6.1 of the Criminal Code.
(2) A person commits an offence if:
(a) the person takes an action; and
(b) the action is likely to have a significant impact on the ecological character of a wetland; and
(c) the wetland is a declared Ramsar wetland.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2A) Strict liability applies to paragraph (2)(c).
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) An offence against subsection (1) or (2) is punishable on conviction by imprisonment for a term not more than 7 years, a fine not more than 420 penalty units, or both.
Note 1: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.
Note 2: An executive officer of a body corporate convicted of an offence against this section may also commit an offence against section 495.
Note 3: If a person takes an action on land that contravenes this section, a landholder may commit an offence against section 496C.
(4) Subsections (1) and (2) do not apply to an action if:
(a) an approval of the taking of the action by the person is in operation under Part 9 for the purposes of this section; or
(b) Part 4 lets the person take the action without an approval under Part 9 for the purposes of this section; or
(ba) there is in force a determination under section 79E that the action may continue to be taken and the action is taken in accordance with the conditions (if any) specified in the determination; or
(c) there is in force a decision of the Minister under Division 2 of Part 7 that this section is not a controlling provision for the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or
(d) the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process).
Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.
Subdivision C—Listed threatened species and communities
18 Actions with significant impact on listed threatened species or endangered community prohibited without approval
Species that are extinct in the wild
(1) A person must not take an action that:
(a) has or will have a significant impact on a listed threatened species included in the extinct in the wild category; or
(b) is likely to have a significant impact on a listed threatened species included in the extinct in the wild category.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
Critically endangered species
(2) A person must not take an action that:
(a) has or will have a significant impact on a listed threatened species included in the critically endangered category; or
(b) is likely to have a significant impact on a listed threatened species included in the critically endangered category.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
Endangered species
(3) A person must not take an action that:
(a) has or will have a significant impact on a listed threatened species included in the endangered category; or
(b) is likely to have a significant impact on a listed threatened species included in the endangered category.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
Vulnerable species
(4) A person must not take an action that:
(a) has or will have a significant impact on a listed threatened species included in the vulnerable category; or
(b) is likely to have a significant impact on a listed threatened species included in the vulnerable category.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
Critically endangered communities
(5) A person must not take an action that:
(a) has or will have a significant impact on a listed threatened ecological community included in the critically endangered category; or
(b) is likely to have a significant impact on a listed threatened ecological community included in the critically endangered category.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
Endangered communities
(6) A person must not take an action that:
(a) has or will have a significant impact on a listed threatened ecological community included in the endangered category; or
(b) is likely to have a significant impact on a listed threatened ecological community included in the endangered category.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
18A Offences relating to threatened species etc.
(1) A person commits an offence if:
(a) the person takes an action; and
(b) the action results or will result in a significant impact on:
(i) a species; or
(ii) an ecological community; and
(c) the species is a listed threatened species, or the community is a listed threatened ecological community.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(1A) Strict liability applies to paragraph (1)(c).
Note: For strict liability, see section 6.1 of the Criminal Code.
(2) A person commits an offence if:
(a) the person takes an action; and
(b) the action is likely to have a significant impact on:
(i) a species; or
(ii) an ecological community; and
(c) the species is a listed threatened species, or the community is a listed threatened ecological community.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2A) Strict liability applies to paragraph (2)(c).
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) An offence against subsection (1) or (2) is punishable on conviction by imprisonment for a term not more than 7 years, a fine not more than 420 penalty units, or both.
Note 1: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.
Note 2: An executive officer of a body corporate convicted of an offence against this section may also commit an offence against section 495.
Note 3: If a person takes an action on land that contravenes this section, a landholder may commit an offence against section 496C.
(4) Subsections (1) and (2) do not apply to an action if:
(a) the listed threatened species subject to the significant impact (or likely to be subject to the significant impact) is:
(i) a species included in the extinct category of the list under section 178; or
(ii) a conservation dependent species; or
(b) the listed threatened ecological community subject to the significant impact (or likely to be subject to the significant impact) is an ecological community included in the vulnerable category of the list under section 181.
Note 1: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.
Note 2: Section 19 sets out other defences. The defendant bears an evidential burden in relation to the matters in that section too. See subsection 13.3(3) of the Criminal Code.
19 Certain actions relating to listed threatened species and listed threatened ecological communities not prohibited
(1) A subsection of section 18 or 18A relating to a listed threatened species does not apply to an action if an approval of the taking of the action by the person is in operation under Part 9 for the purposes of any subsection of that section that relates to a listed threatened species.
(2) A subsection of section 18 or 18A relating to a listed threatened ecological community does not apply to an action if an approval of the taking of the action by the person is in operation under Part 9 for the purposes of either subsection of that section that relates to a listed threatened ecological community.
(3) A subsection of section 18 or 18A does not apply to an action if:
(a) Part 4 lets the person take the action without an approval under Part 9 for the purposes of the subsection; or
(aa) there is in force a determination under section 79E that the action may continue to be taken and the action is taken in accordance with the conditions (if any) specified in the determination; or
(b) there is in force a decision of the Minister under Division 2 of Part 7 that the subsection is not a controlling provision for the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or
(c) the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process).
(4) A subsection of section 18 or 18A does not apply to an action, to the extent that it is covered by subsection 517A(7).
Subdivision D—Listed migratory species
20 Requirement for approval of activities with a significant impact on a listed migratory species
(1) A person must not take an action that:
(a) has or will have a significant impact on a listed migratory species; or
(b) is likely to have a significant impact on a listed migratory species.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
(2) Subsection (1) does not apply to an action if:
(a) an approval of the taking of the action by the person is in operation under Part 9 for the purposes of this section; or
(b) Part 4 lets the person take the action without an approval under Part 9 for the purposes of this section; or
(ba) there is in force a determination under section 79E that the action may continue to be taken and the action is taken in accordance with the conditions (if any) specified in the determination; or
(c) there is in force a decision of the Minister under Division 2 of Part 7 that this section is not a controlling provision for the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or
(d) the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process).
20A Offences relating to listed migratory species
(1) A person commits an offence if:
(a) the person takes an action; and
(b) the action results or will result in a significant impact on a species; and
(c) the species is a listed migratory species.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(1A) Strict liability applies to paragraph (1)(c).
Note: For strict liability , see section 6.1 of the Criminal Code.
(2) A person commits an offence if:
(a) the person takes an action; and
(b) the action is likely to have a significant impact on a species; and
(c) the species is a listed migratory species.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.