Part 4Conservation of native plants

Part 4—Conservation of native plants 46—Application of this Part (1) Subject to this section, this Part applies throughout the State. (2) The Governor may, by proclamation, declare that this Part, or any provisions of this Part specified in the proclamation, will not apply at any time or during periods specified in the proclamation— (a) within a part of the State specified in the proclamation; or (b) to a specified species of native plant; or (c) to a specified species of native plant in a specified part of the State, and the operation of this Part will be modified accordingly. (3) The Governor may, by proclamation, revoke or vary a proclamation under this section. 47—Unlawful taking of native plants (1) Subject to this Part, a person must not take a native plant— (a) on any reserve, wilderness protection area or wilderness protection zone; or (b) on any other Crown land; or (c) on any land reserved for or dedicated to public purposes; or (d) on any forest reserve. (2) A person must not take a native plant of a prescribed species on private land. (3) A person who contravenes subsection (1) or (2) is guilty of an offence. In the case of a native plant of a rare species, $5 000 or imprisonment for 12 months. (4) A person must not take a native plant on private land without the consent of the owner of the land. (5) If in proceedings for an offence against this section it is proved that the defendant was found in possession of a native plant, it will be presumed, in the absence of proof to the contrary, that the defendant took the plant in contravention of this Act. (6) It is a defence to a charge of an offence against this section to prove that the act alleged against the defendant— (a) was neither intentional nor negligent; or (b) was done in pursuance of some statutory authority. 48—Unlawful disposal of native plants (1) A person must not sell or give away a native plant of a prescribed species. In the case of a native plant of a rare species, $5 000 or imprisonment for 12 months. (2) It is a defence to a charge of an offence against this section to prove that the native plant was taken pursuant to a licence under the Forestry Act 1950. 48A—Illegal possession of native plants (1) A person must not have in his or her possession or control a native plant that has been illegally taken or acquired. In the case of a native plant of a rare species, $5 000 or imprisonment for 12 months. (2) For the purposes of this section, a native plant is illegally taken or acquired if taken or acquired contrary to this Act or any other Act or law of the State, or contrary to the law of another State or Territory of the Commonwealth. (3) In proceedings for an offence against this section the onus lies on the defendant to prove that the native plant was not taken or acquired illegally. 49—Permits (1) The Minister may grant a permit authorising— (a) the taking of native plants; or (b) the sale or gift of native plants, subject to the conditions of the permit. (2) No offence is committed by reason of the taking, or the sale, of native plants in accordance with a permit under this section. 49A—Permits for commercial purposes (1) The Minister may, by notice published in the Gazette and on a website determined by the Minister— (a) declare that this section applies to, and in relation to, a species of plant; and (b) vary or revoke a declaration referred to in paragraph (a). (2) Where this section applies to, and in relation to, a species of plant, the Minister must prepare draft recommendations in relation to the following matters: (a) the effect of taking individual plants for commercial purposes on the species and on the ecosystem of which the plants taken formed part; and (b) the need for research in relation to that species; and (c) the identification of plants and plant products; and (d) any other matters that should, in the opinion of the Minister be addressed, and must make the recommendations available to the public for at least three months for comment before adoption by the Minister. (3) Before adopting the draft recommendation, the Minister must have regard to comments (if any) made by members of the public and may, if the Minister thinks fit, vary the recommendations to take account of those comments. (4) Recommendations adopted by the Minister must be published in the Gazette and on a website determined by the Minister and may be revoked or varied by further recommendations prepared by the Minister in accordance with this section. (5) The taking and sale of plants of a species to which this section applies for commercial purposes pursuant to a permit under section 49 is subject to restrictions or conditions imposed from time to time by regulation or by the Minister when granting the permit. (6) Restrictions and conditions imposed by regulation must implement recommendations adopted by the Minister under this section in relation to the commercial taking and sale of plants of the species concerned. (7) Where a permit granted for commercial purposes relates to plants of a species to which this section applies and a royalty is payable under this Act in respect of the taking of plants of that species, the Minister may require the applicant to pay in advance an amount equal to the total amount of royalty that would be payable if all the plants that could be taken pursuant to the permit were taken.