(2) The Scientific Committee must, within 7 days after giving the assessment to the Minister, or becoming aware, as referred to in paragraph (1)(b):
(a) ensure the Australian Heritage Council is aware of the existence of the paragraph (1)(a) assessment dealing with the matter; and
(b) give the Council a copy of the assessment.
(3) A member of the Scientific Committee may discuss the matter with a member of the Australian Heritage Council.
(4) Subsections (2) and (3) have effect despite section 189B.
Subdivision B—Permit system
195 Subdivision does not apply to cetaceans
This Subdivision does not apply to a member of a listed threatened species that is a cetacean.
196 Killing or injuring member of listed threatened species or community
(1) A person commits an offence if:
(a) the person takes an action; and
(b) the action results in the death or injury of a member of a species or a member of an ecological community; and
(c) the member is a member of a listed threatened species (except a conservation dependent species) or of a listed threatened ecological community; and
(d) the member is in or on a Commonwealth area.
Penalty:
(a) in the case of an aggravated offence—imprisonment for 2 years or 3,000 penalty units, or both;
(b) in any other case—imprisonment for 2 years or 1,000 penalty units, or both.
Note 1: For the extra element of an aggravated offence, see section 196F.
Note 2: This section does not apply in the circumstances described in section 197. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.
(2) Strict liability applies to paragraphs (1)(c) and (d).
Note: For strict liability, see section 6.1 of the Criminal Code.
196A Strict liability for killing or injuring member of listed threatened species or community
(1) A person commits an offence if:
(a) the person takes an action; and
(b) the action results in the death or injury of a member of a native species or a member of an ecological community; and
(c) the member is a member of a listed threatened species (except a conservation dependent species) or of a listed threatened ecological community; and
(d) the member is in or on a Commonwealth area.
Penalty:
(a) in the case of an aggravated offence—1,500 penalty units;
(b) in any other case—500 penalty units.
Note 1: For the extra element of an aggravated offence, see section 196F.
Note 2: This section does not apply in the circumstances described in section 197. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.
(2) Strict liability applies to paragraphs (1)(a), (b), (c) and (d).
Note: For strict liability, see section 6.1 of the Criminal Code.
196B Taking etc. member of listed threatened species or community
(1) A person commits an offence if:
(a) the person takes, trades, keeps or moves a member of a species or a member of an ecological community; and
(b) the member is a member of a listed threatened species (except a conservation dependent species) or a listed threatened ecological community; and
(c) the member is in or on a Commonwealth area.
Penalty:
(a) in the case of an aggravated offence—imprisonment for 2 years or 3,000 penalty units, or both;
(b) in any other case—imprisonment for 2 years or 1,000 penalty units, or both.
Note 1: For the extra element of an aggravated offence, see section 196F.
Note 2: This section does not apply in the circumstances described in section 197. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.
(2) Strict liability applies to paragraphs (1)(b) and (c).
Note: For strict liability, see section 6.1 of the Criminal Code.
196C Strict liability for taking etc. member of listed threatened species or community
(1) A person commits an offence if:
(a) the person takes, trades, keeps or moves a member of a native species or a member of an ecological community; and
(b) the member is a member of a listed threatened species (except a conservation dependent species) or a listed threatened ecological community; and
(c) the member is in or on a Commonwealth area.
Penalty:
(a) in the case of an aggravated offence—1,500 penalty units;
(b) in any other case—500 penalty units.
Note 1: For the extra element of an aggravated offence, see section 196F.
Note 2: This section does not apply in the circumstances described in section 197. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.
(2) Strict liability applies to paragraphs (1)(a), (b) and (c).
Note: For strict liability, see section 6.1 of the Criminal Code.
196D Trading etc. member of listed threatened species or community taken in Commonwealth area
(1) A person commits an offence if:
(a) the person trades, keeps or moves a member of a species or a member of an ecological community; and
(b) the member is a member of a listed threatened species (except a conservation dependent species) or a listed threatened ecological community; and
(c) the member has been taken in or on a Commonwealth area.
Penalty:
(a) in the case of an aggravated offence—imprisonment for 2 years or 3,000 penalty units, or both;
(b) in any other case—imprisonment for 2 years or 1,000 penalty units, or both.
Note 1: For the extra element of an aggravated offence, see section 196F.
Note 2: This section does not apply in the circumstances described in section 197. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.
(2) Strict liability applies to paragraphs (1)(b) and (c).
Note: For strict liability, see section 6.1 of the Criminal Code.
196E Strict liability for trading etc. member of listed threatened species or community taken in Commonwealth area
(1) A person commits an offence if:
(a) the person trades, keeps or moves a member of a native species or a member of an ecological community; and
(b) the member is a member of a listed threatened species (except a conservation dependent species) or a listed threatened ecological community; and
(c) the member has been taken in or on a Commonwealth area.
Penalty:
(a) in the case of an aggravated offence—1,500 penalty units;
(b) in any other case—500 penalty units.
Note 1: For the extra element of an aggravated offence, see section 196F.
Note 2: This section does not apply in the circumstances described in section 197. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.
(2) Strict liability applies to paragraphs (1)(a), (b) and (c).
Note: For strict liability, see section 6.1 of the Criminal Code.
196F Aggravated offence—member of listed threatened species that is a dugong or turtle
(1) For the purposes of this Subdivision, an offence against section 196, 196A, 196B, 196C, 196D or 196E (the underlying offence) is an aggravated offence if the member to which the underlying offence relates is:
(a) a member of a listed threatened species; and
(b) a member of a species mentioned in paragraph 248(2)(f), (g) or (h).
Note: Marine turtles and leatherback turtles are members of the species mentioned in paragraphs 248(2)(g) and (h), and on the day this section commenced, these species were listed threatened species.
(2) If the prosecution intends to prove an aggravated offence, the charge must allege the relevant aggravated offence.
(3) Strict liability applies to the physical elements of circumstance, that the member is:
(a) a member of a listed threatened species; and
(b) a member of a species mentioned in paragraph 248(2)(f), (g) or (h).
Note: For strict liability, see section 6.1 of the Criminal Code.
197 Certain actions are not offences
Sections 196, 196A, 196B, 196C, 196D, 196E and 207B do not apply to:
(a) an action authorised by a permit that was issued under section 201 and is in force; or
(b) an action provided for by, and done in accordance with, a recovery plan in force under Division 5; or
(c) an action that is covered by an approval in operation under Part 9 for the purposes of subsection 18(1), (2), (3), (4), (5) or (6) or 18A(1) or (2); or
(d) an action that:
(i) is one of a class of actions declared by the Minister under section 33 not to require an approval under Part 9 for the purposes of subsection 18(1), (2), (3), (4), (5), or (6) or 18A(1) or (2); and
(ii) is taken in accordance with a management arrangement or authorisation process that is an accredited management arrangement or an accredited authorisation process for the purposes of the declaration; or
(da) an action that:
(i) is an action, or one of a class of actions, declared by the Minister under section 37A not to require an approval under Part 9 for the purposes of subsection 18(1), (2), (3), (4), (5), or (6) or 18A(1) or (2); and
(ii) is taken in accordance with the bioregional plan to which the declaration relates; or
(db) in the case of sections 196B, 196C, 196D and 196E—an action that is trading, keeping or moving a member of a listed threatened species or a listed ecological community, if:
(i) when the member of the species or community was taken, the species or community was not a listed threatened species or a listed threatened ecological community, as the case requires; and
(ii) the trading, keeping or moving of the member of the species or community occurs during the period of 6 months that started when the species or community became a listed threatened species or a listed threatened ecological community, as the case requires; or
(e) an action that is taken in a humane manner and is reasonably necessary to relieve or prevent suffering by a member of a listed threatened species or listed threatened ecological community; or
(f) an action that is reasonably necessary to prevent a risk to human health; or
(g) an action by a Commonwealth agency, or an agency of a State or of a self‑governing Territory, that is reasonably necessary for the purposes of law enforcement; or
(h) an action that is reasonably necessary to deal with an emergency involving a serious threat to human life or property; or
(i) an action that occurs as a result of an unavoidable accident, other than an accident caused by negligent or reckless behaviour; or
(j) an action that is taken in accordance with a permit issued under regulations made under the Great Barrier Reef Marine Park Act 1975 and in force; or
(k) an action provided for by, and taken in accordance with, a plan or regime that is accredited under section 208A; or
(l) an action, to the extent that it is covered by subsection 517A(7); or
(m) an action provided for by, and done in accordance with, a conservation agreement in force under Part 14; or
(n) an action taken in a Commonwealth reserve in accordance with a management plan made under Part 15 and in operation for the reserve; or
(o) an action provided for by, and taken in accordance with, a traditional use of marine resources agreement that:
(i) was made and accredited in accordance with regulations made under the Great Barrier Reef Marine Park Act 1975; and
(ii) is in force; or
(p) an action that is taken in accordance with a permit that:
(i) was issued under the Antarctic Treaty (Environment Protection) Act 1980 or under regulations made under that Act; and
(ii) is in force; or
(q) an action that consists of the transit of a member through a Commonwealth area in circumstances where the member was:
(i) obtained from an area that is not a Commonwealth area; or
(ii) taken from a Commonwealth area in circumstances covered by paragraph (a), (c), (d), (da), (db), (j), (k), (m), (n), (o) or (p).
Note: A defendant bears an evidential burden in relation to the matters in this section. See subsection 13.3(3) of the Criminal Code.
198 Operation of sections 18 and 18A not affected
To avoid doubt, sections 196, 196A, 196B, 196C, 196D, 196E, 196F and 197 do not affect the operation of section 18 or 18A.
199 Failing to notify taking of listed threatened species or listed ecological community
(1) This section applies to an action taken by a person if all of the following conditions are met:
(a) the person’s action either:
(i) results in the death or injury of a member of a listed threatened species (except a conservation dependent species), or a member of a listed threatened ecological community, that is in or on a Commonwealth area; or
(ii) consists of, or involves, trading, taking, keeping or moving a member of a listed threatened species (except a conservation dependent species), or a member of a listed threatened ecological community, that is in or on a Commonwealth area;
(b) the person’s action does not constitute an offence against section 196, 196A, 196B, 196C, 196D or 196E, otherwise than because of paragraph 197(db);
(c) the person’s action is not an action that the person was authorised by a permit to take.
Note 1: Section 197 sets out most of the circumstances in which an action described in paragraph (1)(a) will not be an offence against section 196, 196A, 196B, 196C, 196D or 196E.
Note 2: A person is authorised by a permit to take an action if the person is the holder of the permit or the person is given an authority under section 204 by the holder of the permit to take the action.
Note 3: The conditions of a permit may require the holder of the permit to give certain notices.
(2) Within 7 days of becoming aware of the action, the person must notify the Secretary in writing, by telephone or by use of any other electronic equipment:
(a) that the action was taken; and
(b) of other particulars (if any) about the action that are prescribed by the regulations.
(3) An example of the particulars about the action that the regulations may prescribe is the time and place of taking the action. This does not limit the particulars the regulations may prescribe.
(4) Subsection (2) does not apply if:
(a) the person, or any other person or body, is required by or under a law of the Commonwealth to notify the Secretary of the action; or
(b) the action is in a class of actions:
(i) that is specified in an agreement or arrangement between the Secretary and a Commonwealth agency, or an agency of a State or self‑governing Territory; and
(ii) that the agreement or arrangement provides is to be notified to the Secretary by the agency.
Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.
(5) A person commits an offence punishable on conviction by a fine not exceeding 100 penalty units if the person:
(a) fails to do an act; and
(b) the failing to do the act results in a contravention of subsection (2).
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
200 Application for permits
(1) A person may, in accordance with the regulations, apply to the Minister for a permit to be issued under section 201.
(2) The application must be accompanied by the fee prescribed by the regulations (if any).
(3) As soon as practicable after receiving the application, the Minister must cause to be published on the internet:
(a) details of the application; and
(b) an invitation for anyone to give the Minister comments within 10 business days (measured in Canberra) on whether the permit should be issued.
Note: If the action is also the subject of a referral under Division 1 of Part 7 and the referral is made at the same time as the application, the application and invitation for comments that must be published under this subsection may be published together with the referral and invitation for comments that must be published under subsection 74(3).
201 Minister may issue permits
(1) Subject to subsections (3) and (3A), the Minister may, on application by a person under section 200, issue a permit to the person.
(2) A permit authorises its holder to take an action specified in the permit without breaching section 196, 196A, 196B, 196C, 196D, 196E or 207B.
(3) The Minister must not issue the permit unless satisfied that:
(a) the specified action will contribute significantly to the conservation of the listed threatened species or listed threatened ecological community concerned; or
(b) the impact of the specified action on a member of the listed threatened species or listed threatened ecological community concerned is incidental to, and not the purpose of, the taking of the action and:
(i) the taking of the action will not adversely affect the survival or recovery in nature of that species or ecological community; and
(ii) the taking of the action is not inconsistent with a recovery plan that is in force for that species or ecological community; and
(iii) the holder of the permit will take all reasonable steps to minimise the impact of the action on that species or ecological community; or
(c) the specified action is of particular significance to indigenous tradition and will not adversely affect the survival or recovery in nature of the listed threatened species or listed threatened ecological community concerned; or
(d) the specified action is necessary in order to control pathogens and is conducted in a way that will, so far as is practicable, keep to a minimum any impact on the listed threatened species or listed threatened ecological community concerned.
(3A) The Minister must, in deciding whether to issue the permit, have regard to any approved conservation advice for the listed threatened species or listed threatened ecological community concerned.
(4) In this Act:
indigenous tradition means the body of traditions, observances, customs and beliefs of indigenous persons generally or of a particular group of indigenous persons.
(5) In making a decision on the application, the Minister must consider the comments (if any) received: