(4) In deciding whether to delete an ecological community from a particular category (whether as a result of a transfer or otherwise), the only matters the Minister may consider are matters relating to:
(a) whether the ecological community is eligible to be included in that category; or
(b) the effect that the inclusion of the ecological community in that category is having, or could have, on the survival of the ecological community.
188 Amending list of key threatening processes
(1) The Minister must not add a threatening process to the list unless satisfied that it is eligible to be treated as a key threatening process.
(2) The Minister must not delete a threatening process from the list unless satisfied that it is no longer eligible to be treated as a key threatening process.
(3) A process is a threatening process if it threatens, or may threaten, the survival, abundance or evolutionary development of a native species or ecological community.
(4) A threatening process is eligible to be treated as a key threatening process if:
(a) it could cause a native species or an ecological community to become eligible for listing in any category, other than conservation dependent; or
(b) it could cause a listed threatened species or a listed threatened ecological community to become eligible to be listed in another category representing a higher degree of endangerment; or
(c) it adversely affects 2 or more listed threatened species (other than conservation dependent species) or 2 or more listed threatened ecological communities.
189 Minister must consider advice from Scientific Committee
(1) In deciding whether to make an amendment covered by paragraph 184(1)(aa), (b) or (d), the Minister must, in accordance with the regulations (if any), obtain and consider advice from the Scientific Committee on the proposed amendment.
(1A) Subsection (1) has effect subject to section 192.
(1B) If advice from the Scientific Committee for the purposes of subsection (1) is to the effect that a particular native species, or a particular ecological community, is eligible to be included in the relevant list in a particular category, the advice must also contain:
(a) a statement that sets out:
(i) the grounds on which the species or community is eligible to be included in the category; and
(ii) the main factors that are the cause of it being so eligible; and
(b) either:
(i) information about what could appropriately be done to stop the decline of, or support the recovery of, the species or community; or
(ii) a statement to the effect that there is nothing that could appropriately be done to stop the decline of, or support the recovery of, the species or community; and
(c) a recommendation on the question whether there should be a recovery plan for the species or community.
(2) In preparing advice under subsection (1), the Scientific Committee may obtain advice from a person with expertise relevant to the subject matter of the proposed amendment.
(3) In preparing advice for a proposed amendment to delete an item:
(a) included in a category of a list referred to in section 178 or 181; and
(b) that had not been included in that category in accordance with subsection 186(3), (4) or (5);
the only matters the Scientific Committee may consider are matters relating to:
(c) the survival of the native species or ecological community concerned; or
(d) the effect that the inclusion in the list of the native species or ecological community concerned is having, or could have, on the survival of that native species or ecological community.
(3A) In preparing advice for a proposed amendment to:
(a) include a native species in a category of the list referred to in section 178 in accordance with subsection 186(3), (4) or (5) because of the species’ resemblance to another species; or
(b) delete a native species from a category of the list referred to in section 178 that had been included in that category in accordance with subsection 186(3), (4) or (5) because of the species’ resemblance to another species;
the only matters the Scientific Committee may consider are matters relating to:
(c) the survival of either species; or
(d) the effect that the inclusion in the list of the first‑mentioned species is having, or could have, on the survival of either species.
189A Certain information may be kept confidential
(1) This section applies if the Minister considers that the survival of a native species or ecological community could be threatened by the disclosure of some or all of the following information, or by the presence or actions of persons if some or all of the following information were disclosed publicly:
(a) the precise location of the species in the wild, or of the community;
(b) any other information about the species or community.
(2) It is sufficient compliance with this Act if only a general description of the location of the species or community is included in an instrument or other document created for the purposes of this Act.
189B Disclosure of Scientific Committee’s assessments and advice
(1) A member of the Scientific Committee has a duty not to disclose the following to a person other than the Minister, an employee in the Department whose duties relate to the Committee or another member of the Committee:
(a) an assessment under section 194N in relation to whether an item is eligible for inclusion (whether as a result of a transfer or otherwise) in a list referred to in section 178, 181 or 183, any information relating to the assessment or any information about the nomination (if any) that led to the making of the assessment;
(b) advice under section 189 concerning an amendment covered by subsection 189(1) or any information relating to the advice.
(2) However:
(a) the duty not to disclose a thing described in paragraph (1)(a) in relation to an item does not exist after:
(i) registration under Division 3 of Part 4 of the Legislative Instruments Act 2003 of an instrument made under section 189 in relation to the item; or
(ii) the Minister decides under paragraph 194Q(1)(b) not to include the item in a list referred to in section 178, 181 or 183; and
(b) the duty not to disclose a thing described in paragraph (1)(b) in relation to an amendment does not exist after:
(i) registration under Division 3 of Part 4 of the Legislative Instruments Act 2003 of an instrument made under section 189 relating to the amendment; or
(ii) the Minister decides under this Subdivision not to remove the item from a list referred to in section 178, 181 or 183.
(3) Subsection (1) does not apply to a disclosure of particular information if:
(a) the Chair of the Scientific Committee requests the Minister to give permission to disclose that information to a particular person (or persons within a particular group of persons); and
(b) the Minister gives that permission; and
(c) the disclosure is made to that person (or a person within that group).
(4) After a member of the Scientific Committee has ceased under subsection (2) to have a duty not to disclose:
(a) an assessment under section 194N in relation to whether an item is eligible for inclusion (whether as a result of a transfer or otherwise) in a list referred to in section 178, 181 or 183; or
(b) advice under section 189 concerning an amendment covered by subsection 189(1);
the member must give a copy of the assessment or advice to anyone who asks for it.
(5) If:
(a) a member of the Scientific Committee proposes to give a person under subsection (4):
(i) a copy of an assessment relating to an item concerning a native species or ecological community; or
(ii) a copy of advice relating to an amendment concerning a native species or ecological community; and
(b) the member is aware that, under section 189A, it would be sufficient compliance with this Act if the copy included only a general location of the species or community;
the member must take reasonable steps to ensure that the copy given to the person does not include a more detailed description than is necessary for sufficient compliance with this Act under that section.
190 Scientific Committee may provide advice about species or communities becoming threatened
(1) If the Scientific Committee is of the opinion that a native species or ecological community is not eligible to be included in any category of the list mentioned in section 178 or 181, the Committee may give advice to the Minister concerning any action that is necessary to prevent the species or community becoming threatened.
(2) The Minister is to have regard to any advice given under subsection (1) in performing any function, or exercising any power, under this Act relevant to the species or community.
192 Rediscovery of threatened species that were extinct
(1) If the Minister is satisfied that a native species that is listed in the extinct category has been definitely located in nature since it was last listed as extinct, the Minister may, under section 184, transfer the species from the extinct category to another category without considering advice from the Scientific Committee.
(2) Subsection (1) does not prevent the Minister from making such an amendment after having considered advice from the Scientific Committee.
193 Species posing a serious threat to human health
(1) If the Minister is satisfied that a native species poses a serious threat to human health, the Minister may, by legislative instrument, determine that the species is not appropriate for inclusion in any of the categories of the list referred to in section 178.
(2) While the determination is in force, the species is not to be added to that list.
(4) The Minister must cause a notice summarising the information contained in an instrument to be published in accordance with the regulations (if any).
194 Lists must be publicly available
The Minister must ensure that:
(a) up‑to‑date copies of the lists referred to in sections 178, 181 and 183 are available for free to the public on request; and
(b) up‑to‑date copies of the lists are available on the internet.
Note: The copies of the lists made publicly available may not contain certain information kept confidential under section 189A.
Subdivision AA—The nomination and listing process
194A Simplified outline
The following is a simplified outline of this Subdivision:
This Subdivision sets out the usual process for including an item in a list referred to in section 178, 181 or 183, or transferring an item from one category in one of those lists to another category in the list.
The usual process involves an annual cycle that revolves around 12‑month periods known as assessment periods. The Minister determines the start of the first assessment period (see section 194C).
The usual process involves the following steps for each assessment period for a list:
(a) the Minister may determine conservation themes (this step is optional) (see section 194D);
(b) the Minister invites people to nominate items for inclusion in the list referred to in section 178, 181 or 183, and gives the nominations to the Scientific Committee (see sections 194E and 194F);
(c) the Scientific Committee prepares, and gives to the Minister, a list of items (which will mostly be items that have been nominated) that it thinks should be assessed (see sections 194G to 194J);
(d) the Minister finalises the list of items that are to be assessed (see sections 194K and 194L);
(e) the Scientific Committee invites people to make comments about the item in the finalised list (see section 194M);
(f) the Scientific Committee assesses the item in the finalised list, and gives the assessments to the Minister (see sections 194N and 194P);
(g) the Minister decides whether an item that has been assessed should be included in the list referred to in section 178, 181 or 183 (see section 194Q).
The steps mentioned in paragraphs (a) to (d) will generally be completed before the start of the assessment period.
194B Definitions
(1) In this Subdivision:
assessment period has the meaning given by subsection 194C(1).
eligible for assessment consideration, in relation to an assessment period, has the meaning given by subsection 194G(3).
finalised priority assessment list for an assessment period has the meaning given by subsection 194K(4).
includes has a meaning affected by subsection (2).
proposed priority assessment list for an assessment period has the meaning given by subsection 194G(1).
Subdivision A List means a list referred to in section 178, 181 or 183.
(2) A reference in this Subdivision to including an item in a list referred to in section 178 or 181 includes a reference to transferring the item from one category in the list to another category in the list.
194C Meaning of assessment period
(1) For the purposes of this Subdivision, each of the following is an assessment period for a Subdivision A List:
(a) the period of 12 months starting on the day determined in writing by the Minister for the purposes of this paragraph in relation to the Subdivision A List;
(b) each period of 12 months starting on an anniversary of the day so determined.
(2) The Minister must make a determination under paragraph (1)(a) within 3 months after the commencement of this section. The day so determined must not be more than 12 months after that commencement.
(3) A determination under paragraph (1)(a) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the determination.
Note: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not apply to the determination. See regulations made for the purposes of paragraph 54(2)(b) of that Act.
194D Minister may determine conservation themes for an assessment period
(1) Before the Minister invites nominations for an assessment period for a Subdivision A List under section 194E, the Minister may determine one or more conservation themes that the Minister considers should be given priority in relation to the assessment period for the Subdivision A List.
(2) Without limiting subsection (1), the Minister may determine as a conservation theme that priority should be given to the conservation of:
(a) particular groups of species; or
(b) particular species; or
(c) particular regions of Australia.
(3) The Minister may request advice from the Scientific Committee for the purpose of making a determination under subsection (1), and may have regard to any advice the Committee provides in response to the request.
(4) A determination under subsection (1) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the determination.
194E Minister to invite nominations for each assessment period
(1) Before the start of each assessment period for a Subdivision A List, the Minister must publish a notice inviting people to nominate items for inclusion in the Subdivision A List.
Note: Nominations can be for the transfer of an item already on a list covered by section 178 or 181 from one category in the list to another category in the list (see subsection 194B(2)).
(2) A notice under subsection (1):
(a) must be published in accordance with the regulations referred to in paragraph (3)(a); and
(b) must invite people to nominate, to the Minister, items for inclusion in the Subdivision A List; and
(c) must identify the assessment period to which the notice relates; and
(d) must specify a date (the cut‑off date) by which nominations must be received, which must be at least 40 business days after the notice has been published as required by paragraph (a); and
(e) must specify, or refer to, the information requirements, and the manner and form requirements, that, under regulations referred to in paragraphs (3)(b) and (c), apply to making nominations; and
(f) may also include:
(i) information related to any conservation themes that the Minister has determined under section 194D should be given priority in relation to the assessment period for the Subdivision A List; and
(ii) any other information that the Minister considers appropriate.
(3) The regulations must provide for the following:
(a) how a notice under subsection (1) is to be published;
(b) the manner and form for making nominations;
(c) what information is to be included in a nomination.
194F Minister to give nominations to Scientific Committee
Nominations in relation to first assessment period
(1) Within 30 business days after the cut‑off date specified in the notice under subsection 194E(1) for the first assessment period, the Minister must give the Scientific Committee the nominations that the Minister:
(a) had received before the end of that cut‑off date; and
(b) had not already forwarded to the Scientific Committee, under section 191 (as in force before the commencement of this section), to assess; and
(c) had not already rejected under section 191 (as in force before the commencement of this section); and
(d) does not reject under subsection (3).
Nominations in relation to later assessment periods
(2) Within 30 business days after the cut‑off date (the current cut‑off date) specified in the notice under subsection 194E(1) for an assessment period (other than the first) for a Subdivision A List, the Minister must give the Scientific Committee the nominations that were received by the Minister in the period:
(a) starting immediately after the end of the cut‑off date specified in the notice under subsection 194E(1) for the immediately preceding assessment period for the Subdivision A List; and
(b) ending at the end of the current cut‑off date for the Subdivision A List;
other than any such nominations that the Minister has rejected under subsection (3).
Minister may reject nominations
(3) The Minister may, in writing, reject a nomination if the Minister considers that:
(a) the nomination is vexatious, frivolous or not made in good faith; or