Nature Conservation Act 2014

5 Earlier republications 326

6 Expired transitional or validating provisions 328

An Act to make provision for the protection, conservation, enhancement and management of nature in the ACT, for the management of reserves, and for other purposes

1 Name of Act This Act is the Nature Conservation Act 2014.

3 Dictionary The dictionary at the end of this Act is part of this Act. Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere. For example, the signpost definition ‘motor vehicle—see the Road Transport (General) Act 1999, dictionary.’ means that the term ‘motor vehicle’ is defined in that dictionary and the definition applies to this Act. Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

4 Notes A note included in this Act is explanatory and is not part of this Act. Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

Introduction Part 1.1 5 Offences against Act—application of Criminal Code etc Other legislation applies in relation to offences against this Act. Note 1 Criminal Code The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1). The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability). Note 2 Penalty units The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units. 6 Objects of Act (1) The main object of this Act is to protect, conserve and enhance the biodiversity of the ACT. (2) This is to be achieved particularly by— (a) protecting, conserving, enhancing, restoring and improving nature conservation, including— (i) native species of animals and plants and their habitats; and (ii) ecological communities; and (iii) biological diversity at the community, species and genetic levels; and (iv) ecosystems, and ecosystem processes and functions; and Examples—processes and functions 1 decomposition and production of plant matter 2 energy and nutrient exchanges (v) ecological connectivity; and Example—connectivity the movement of organisms from one place to another

(vi) landforms of natural significance, including geological and geomorphological features and processes; and (vii) landscapes of natural significance; and (b) promoting and supporting the management, maintenance and enhancement of biodiversity of local, regional and national significance; and (c) promoting the involvement of, and cooperation between, Aboriginal and Torres Strait Islander people, landholders, other community members and governments in conserving, protecting, enhancing, restoring and improving biodiversity; and (d) encouraging public appreciation, understanding and enjoyment of biodiversity; and (e) recognising and promoting Aboriginal and Torres Strait Islander peoples’ role in, and knowledge of, the conservation and ecologically sustainable use of biodiversity; and (f) recognising the significant stewardship role that landholders have in managing the natural assets on their land; and (g) ensuring that members of the public have— (i) access to reliable and relevant information in appropriate forms to facilitate a good understanding of nature conservation issues; and (ii) opportunities to participate in policy development, nature conservation planning and conservation work; and ACT ParkCare (h) promoting the principles of ecologically sustainable development.

Introduction Part 1.1 (3) In exercising a function under this Act, the Minister must have regard to the objects of this Act. ecologically sustainable development means the effective integration of economic and environmental considerations in decision-making processes achievable through implementation of the following: (a) the precautionary principle; (b) the inter-generational equity principle; (c) conservation of biological diversity and ecological integrity; (d) improved valuation and pricing of environmental resources. inter-generational equity principle means that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations. precautionary principle means that, if there is a threat of serious or irreversible environmental damage, a lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

7 Application of Act to Emergencies Act 2004 (1) This Act does not apply to the exercise or purported exercise by a relevant person of a function under the Emergencies Act 2004 for the purpose of— (a) protecting life or property; or (b) controlling, extinguishing or preventing the spread of a fire. emergency controller—see the Emergencies Act 2004, dictionary. relevant person means— (a) an emergency controller; or (b) a member of the ambulance service; or (c) a member of the fire and rescue service; or (d) a member of the rural fire service; or (e) a member of the SES; or (f) any other person under the control of— (i) an emergency controller; or (ii) the chief officer (ambulance service); or (iii) the chief officer (fire and rescue service); or (iv) the chief officer (rural fire service); or (v) the chief officer (SES); or (g) a police officer.

Relationship to other laws Part 1.2

8 Relationship to environment laws (1) This Act must be construed and administered in a way that is consistent with an environment law unless the contrary intention appears from this Act or that law. (2) This Act is taken to be consistent with an environment law to the extent that it is capable of operating concurrently with that law. environment law means— (a) the Environment Protection Act 1997; and (b) the Fisheries Act 2000; and (c) the Water Resources Act 2007; and (d) any other law of the Territory that has as 1 of its objects or purposes the protection of the environment.

9 What is nature? nature means all aspects of nature including— (a) ecosystems and their constituent parts; and (b) all natural and physical resources; and (c) natural dynamic processes; and (d) the characteristics of places, however large or small, that contribute to their— (i) biological diversity and integrity; or (ii) intrinsic or scientific value.

10 What is conservation? conservation means the protection and maintenance of nature while allowing for its ecologically sustainable use.

11 What is an animal? animal— (a) means a member, alive or dead, of the animal kingdom; and (i) a part of an animal; and skin, feathers, horns, shell, egg yolk (ii) animal reproductive material; but

(c) does not include— (i) a human; or (ii) a fish unless the fish— (A) has special protection status; or (B) is a protected native species; or (iii) an invertebrate unless the invertebrate— (A) has special protection status; or (B) is a protected native species.

12 What is a native animal? native animal— (a) means an animal of a native species; but (b) does not include an animal that is a declared pest.

13 What is a plant? plant— (a) means a member, alive or dead, of the— (i) plant kingdom; or (ii) fungus kingdom; and (i) a part of a plant; and

(ii) plant reproductive material.

14 What is a native plant? native plant— (a) means a plant of a native species; but (b) does not include a plant that is a declared pest.

15 What is a species? species— (a) means a group of biological entities that— (i) interbreed to produce fertile offspring; or (ii) possess common characteristics derived from a common gene pool; and (i) a subspecies; and (ii) a variety; and (iii) a distinct population of biological entities prescribed by regulation to be a species. subspecies means a geographically separate population of a species, being a population that is characterised by morphological or biological differences from other populations of that species.

16 What is a native species? native species— (a) means a species— (i) that is indigenous to— (A) Australia or an external Territory; or (B) the coastal sea of Australia or an external Territory; or (C) the seabed of the coastal sea of Australia or an external Territory; or (D) the continental shelf; or (E) the exclusive economic zone; or (ii) members of which periodically or occasionally visit— (A) Australia or an external Territory; or (B) the coastal sea of Australia or an external Territory; or (C) the exclusive economic zone; or (iii) that was present in Australia or an external Territory before 1400; and (b) includes a species prescribed by regulation to be a native species; but (c) does not include a species prescribed by regulation to not be a native species. Note Coastal sea—see the dictionary. Continental shelf—see the dictionary. Exclusive economic zone—see the dictionary. Seabed—see the dictionary.

17 What is an ecological community? ecological community means the extent in nature in the ACT of an assemblage of native species that— (a) inhabits a particular area in nature; and (b) satisfies the criteria prescribed by regulation (if any).

18 What is a member of a species or ecological community? member includes— (a) for a species of animal— (i) any part of an animal of the species; and (ii) any animal reproductive material of an animal of the species, or any part of that reproductive material; and (iii) the whole or any part of the dead body of an animal of the species; and (b) for a species of plant— (i) any part of a plant of the species; and (ii) any plant reproductive material of a plant of the species, or any part of that reproductive material; and (iii) the whole or any part of a plant of the species that has died; and (c) for an ecological community— (i) any part of an animal or plant of the community; and

(ii) any animal reproductive material of an animal, or plant reproductive material of a plant, of the community, or any part of that animal reproductive material or plant reproductive material; and (iii) the whole or any part of an animal or plant of the community that has died.

19 What is biodiversity? biodiversity— (a) means the variability among living organisms from all sources (including terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part); and (b) includes diversity— (i) within species and between species; and (ii) of ecosystems.

20 Conservator—appointment (1) The director-general must appoint a public servant as the Conservator of Flora and Fauna (the conservator). Note 1 For the making of appointments (including acting appointments), see the Legislation Act, pt 19.3. Note 2 In particular, a person may be appointed for a particular provision of a law (see Legislation Act, s 7 (3)) and an appointment may be made by naming a person or nominating the occupant of a position (see Legislation Act, s 207). (2) However, the director-general may appoint a person as the conservator only if satisfied that the person has suitable qualifications and experience to exercise the functions of the conservator. (3) An appointment is a notifiable instrument.

21 Conservator—functions (1) The conservator’s main functions are— (a) to develop and oversee policies, programs and plans for the effective management of nature conservation in the ACT; and (b) to monitor the state of nature conservation in the ACT; and (c) to provide information to the commissioner for sustainability and the environment for inclusion in a state of the environment report. Note State of the environment report—see s (5). (2) The conservator has any other function given to the conservator under this Act or another territory law.

Conservator of flora and fauna Part 2.1 (3) In exercising a function, the conservator must ensure that it is exercised in a way that is consistent with implementing— (a) the objects of this Act; and Note The objects of this Act are set out in s 6. (b) any conservator guidelines; and (c) the nature conservation strategy for the ACT. Note Nature conservation strategy, for the ACT—see s 47. (4) In exercising a function, the conservator may have regard to any other relevant matter, including the following: (a) the findings of a biodiversity research and monitoring program; Note Biodiversity research and monitoring program—see s 24. (b) an action plan for a species, ecological community or process; Note Action plan—see s 99. (c) a reserve management plan for a reserve; Note Reserve management plan, for a reserve—see s 175. (d) any response of the government to— (i) a state of the environment report under the Commissioner for Sustainability and the Environment Act 1993, section 19 (3) (State of the environment report); or (ii) a special report under the Commissioner for Sustainability and the Environment Act 1993, section 21 (2) (Special reports); (e) any other government policy or plan relating to nature conservation. kangaroo management plan

state of the environment report means a state of the environment report under the Commissioner for Sustainability and the Environment Act 1993.

22 Conservator—delegation The conservator may delegate to a conservation officer the conservator’s functions under this Act or another territory law. Note For the making of delegations and the exercise of delegated functions, see the Legislation Act, pt 19.4.

23 Conservator—guidelines (1) The conservator may make guidelines about how the conservator is to exercise the conservator’s functions under this Act (the conservator guidelines). (2) In preparing the conservator guidelines, the conservator must consult the scientific committee. (3) A conservator guideline is a notifiable instrument.

24 Meaning of biodiversity research and monitoring program—pt 2.1 biodiversity research and monitoring program means a program designed to monitor the— (a) state of nature conservation generally in the ACT; and (b) effective management of nature conservation in the ACT.

Conservator of flora and fauna Part 2.1

25 Biodiversity research and monitoring program— conservator to prepare (1) The conservator must, every 2 years, prepare a biodiversity research and monitoring program for the next 2 years. (2) In preparing the biodiversity research and monitoring program, the (a) consult the scientific committee about— (i) priorities for the program; and (ii) appropriate methods for monitoring; and (b) consider the potential for engaging community organisations in monitoring activities; and using volunteers with Frogwatch to assist in surveying frog numbers (c) consider arrangements for sharing and transferring monitoring data with other entities. (3) The biodiversity research and monitoring program is a notifiable

26 Biodiversity research and monitoring program— conservator to implement (1) The conservator— (a) must take reasonable steps to implement the biodiversity research and monitoring program; and (b) may commission another entity to implement all or part of the program.

(2) The conservator must at the end of each biodiversity research and monitoring program— (a) prepare a report on the implementation of the program (a biodiversity research and monitoring program report); and (b) make the report publicly accessible as soon as possible, but not later than 3 months, after the end of the program. (3) However, if the conservator considers that a plant or animal could be threatened by the disclosure of a particular detail in a finding, the (b) must instead include a general statement of the finding.

ACT parks and conservation service Part 2.2

Part 2.2 ACT parks and conservation service

27 ACT parks and conservation service—establishment (1) The ACT Parks and Conservation Service is established. Note Establish includes continue in existence (see Legislation Act, dict, pt 1). (2) The ACT parks and conservation service is made up of the conservation officers. Note The conservator is a conservation officer. Other conservation officers are appointed by the director-general under s 28. (3) The ACT parks and conservation service must assist— (a) the conservator in the exercise of the conservator’s functions; and (b) for unleased land, or public land, that is a reserve—the custodian for the land in the exercise of the custodian’s functions. Note Custodian, in relation to land—see the Planning Act 2023, (4) The ACT parks and conservation service has any other function given to the service under this Act or another territory law.

28 Conservation officers—appointment (1) The director-general may appoint a person as a conservation officer. Note 1 For the making of appointments (including acting appointments), see the Legislation Act, pt 19.3. Note 2 In particular, a person may be appointed for a particular provision of a law (see Legislation Act, s 7 (3)) and an appointment may be made by naming a person or nominating the occupant of a position (see Legislation Act, s 207). (2) The conservator is a conservation officer.

29 Conservation officers—identity cards (1) The director-general must give a conservation officer an identity card stating the person’s name and that the person is a conservation officer. (2) The identity card must show— (a) a recent photograph of the conservation officer; and (b) the card’s date of issue and expiry; and (c) anything else prescribed by regulation. (3) A person commits an offence if the person— (a) stops being a conservation officer; and (b) does not return the person’s identity card to the director-general as soon as practicable (but not later than 7 days) after the day the person stops being a conservation officer. Maximum penalty: 1 penalty unit. (4) Subsection (3) does not apply to a person if the person’s identity card has been— (a) lost or stolen; or

Conservation officers Part 2.3 (b) destroyed by someone else. mentioned in s (4) (see Criminal Code, s 58).

30 Conservation officers—power not to be exercised before identity card shown A conservation officer may exercise a power under a territory law in relation to a person only if the conservation officer first shows the person the conservation officer’s identity card.

31 Scientific committee—establishment The scientific committee is established.

32 Scientific committee—functions The scientific committee has the following functions: (a) to advise the Minister about nature conservation; (b) to advise the conservator about nature conservation; (c) to exercise any other function given to the committee under this Act or another territory law. Note A provision of a law that gives an entity (including a person) a function also gives the entity powers necessary and convenient to exercise the function (see Legislation Act, s 196 and dict, pt 1, def entity).

33 Scientific committee—annual report (1) The scientific committee must, each financial year, give the Minister a report (an annual report) about the activities of the committee during the year. (2) The scientific committee must make the annual report publicly accessible not later than 30 days after the day the scientific committee gives the report to the Minister.

34 Scientific committee—Minister’s directions (1) The Minister may direct the scientific committee, in writing, to provide advice about a stated nature conservation matter. (2) The Minister must give a copy of each Minister’s direction to the conservator.

(3) A report prepared by the conservator under the Annual Reports (Government Agencies) Act 2004 for a financial year must include— (a) a copy of each Minister’s direction given during the year; and (b) a statement by the conservator about action taken during the year to give effect to any Minister’s direction (whether given before or during the year).

35 Scientific committee—membership The scientific committee is made up of 7 members appointed by the Minister under section 36.

36 Scientific committee—appointment of members (1) The Minister must appoint 7 members to the scientific committee. Note For laws about appointments, see the Legislation Act, pt 19.3. (2) The Minister must ensure that at least 4 members of the committee are not public servants. (3) The Minister must not appoint a person to the committee unless satisfied that the person has appropriate scientific expertise in biology, ecology, conservation science, or conservation management. (4) A member holds office as a part-time member. (5) The appointment of a member is for not longer than 3 years. Note A person may be reappointed to a position if the person is eligible to be appointed to the position (see Legislation Act, s 208 and dict, pt 1, def appoint). (6) The conditions of appointment of a member under this section are the conditions stated in the appointment, subject to any determination under the Remuneration Tribunal Act 1995. (7) An appointment is a disallowable instrument.

37 Scientific committee—chair and deputy chair (1) The Minister must appoint a chair and deputy chair of the scientific committee from the members appointed under section 36. (2) However, the chair and deputy chair must not be public servants.

38 Scientific committee—secretary The director-general must nominate a public servant who is not a member appointed under section 36 to be the secretary of the scientific committee.

39 Scientific committee—ending appointments The Minister may end the appointment of a member— (a) for misbehaviour; or (b) if the member, without reasonable excuse, contravenes section 40; or (c) if the member is absent from 3 consecutive meetings of the scientific committee, other than on approved leave; or (d) for physical or mental incapacity, if the incapacity substantially affects the exercise of the member’s functions. Note A person’s appointment also ends if the person resigns (see Legislation Act, s 210).

40 Scientific committee—disclosure of interests (1) If a member of the scientific committee has a material interest in an issue being considered, or about to be considered, by the committee, the member must disclose the nature of the interest at a committee meeting as soon as practicable after the relevant facts come to the member’s knowledge. Note Material interest is defined in s (4). The definition of indirect interest in s (4) applies to the definition of material interest.

(2) The disclosure must be recorded in the committee’s minutes and, unless the committee otherwise decides, the member must not— (a) be present when the committee considers the issue; or (b) take part in a decision of the committee on the issue. (3) Any other committee member who also has a material interest in the issue must not be present when the committee is considering its decision under subsection (2). associate, of a person, means— (a) the person’s business partner; or (b) a close friend of the person; or (c) a family member of the person. executive officer, of a corporation, means a person (however described) who is concerned with, or takes part in, the corporation’s management, whether or not the person is a director of the corporation. indirect interest—without limiting the kinds of indirect interests a person may have, a person has an indirect interest in an issue if any of the following has an interest in the issue: (a) an associate of the person; (b) a corporation if the corporation has not more than 100 members and the person, or an associate of the person, is a member of the corporation; (c) a subsidiary of a corporation mentioned in paragraph (b); (d) a corporation if the person, or an associate of the person, is an executive officer of the corporation; (e) the trustee of a trust if the person, or an associate of the person, is a beneficiary of the trust;

(f) a member of a firm or partnership if the person, or an associate of the person, is a member of the firm or partnership; (g) someone else carrying on a business if the person, or an associate of the person, has a direct or indirect right to participate in the profits of the business. material interest—a committee member has a material interest in an issue if the member has— (a) a direct or indirect financial interest in the issue; or (b) a direct or indirect interest of any other kind if the interest could conflict with the proper exercise of the member’s functions in relation to the committee’s consideration of the issue.

41 Scientific committee—meetings (1) Meetings of the scientific committee are to be held when and where it decides. (2) However, the chair must call a meeting— (a) as often as needed for the committee to efficiently carry out its functions; and (b) if asked by the Minister. (3) The chair must give the other members of the committee at least 5 working days written notice of a meeting.

42 Scientific committee—presiding member at meetings (1) The chair presides at all meetings at which the chair is present. (2) If the chair is absent, the deputy chair presides. (3) If the chair and the deputy chair are absent, the member chosen by the members present presides.

43 Scientific committee—quorum at meetings Business may be carried on at a meeting of the scientific committee only if at least 1/2 of the appointed members are present.

44 Scientific committee—voting at meetings (1) At a meeting of the scientific committee, each member has a vote on each question to be decided. (2) A question is decided by a majority of the votes of the members present and voting but, if the votes are equal, the member presiding has the deciding vote.

45 Scientific committee—conduct of meetings (1) The scientific committee may conduct its proceedings (including its meetings) as it considers appropriate. (2) The scientific committee must keep minutes of its meetings.

46 Advisory committees (1) The Minister may set up advisory committees that the Minister considers necessary. (2) An advisory committee may decide how to exercise its functions. (3) However, an advisory committee is subject to the direction of the Minister in the exercise of its functions.

Chapter 3 Nature conservation strategy for the ACT

47 What is the nature conservation strategy for the ACT? nature conservation strategy, for the ACT, means a strategy for the ACT, notified under section 54 (Draft strategy—Minister’s approval and notification).

48 What is a draft nature conservation strategy?—ch 3 draft nature conservation strategy, for the ACT— (a) means a statement of— (i) proposals about the protection, management and conservation of— (A) native species indigenous to the ACT; and (B) significant ecosystems of the ACT; and (ii) strategies to address actual and potential impacts of climate change; and guideline.

49 Draft nature conservation strategy—conservator to (1) The conservator must prepare a draft nature conservation strategy for the ACT. (2) In preparing the draft nature conservation strategy, the conservator must consider— (a) landscape scale approaches across tenures; and (b) restoration of habitats; and (c) landscape connectivity; and (d) threats to biodiversity; and (e) the impacts of climate change; and (f) biodiversity research and monitoring program reports.

50 Draft nature conservation strategy—consultation with entities In preparing a draft nature conservation strategy for the ACT, the conservator must consult— (a) the scientific committee; and (b) the commissioner for sustainability and the environment.

51 Draft nature conservation strategy—public consultation (1) If the conservator prepares a draft nature conservation strategy, the conservator must also prepare a notice about the draft nature conservation strategy (a public consultation notice).

about the draft nature conservation strategy; and (b) include the draft nature conservation strategy. nature conservation strategy— the draft strategy; and public consultation period for the draft strategy; and comment on the draft strategy.

52 Draft strategy—revision and submission to Minister (1) If the public consultation period for a draft nature conservation strategy has ended, the conservator must—

(b) make any revisions to the draft strategy that the conservator (2) The conservator must then submit the draft strategy to the Minister for approval. (3) The draft strategy must be accompanied by a report setting out the public consultation period for the draft strategy.

53 Draft strategy—Minister to approve, return or reject If the conservator submits a draft nature conservation strategy to the (a) approve the draft strategy; or (b) return the draft strategy to the conservator and direct the conservator to take 1 or more of the following actions in relation to it: a report of the commissioner for sustainability and the environment under the Commissioner for Sustainability and the Environment Act 1993 (iii) revise the draft strategy in a stated way; or (c) reject the draft strategy.

54 Draft strategy—Minister’s approval and notification (1) A draft nature conservation strategy approved by the Minister under section 53 (a) or section 57 (3) is a nature conservation strategy. (2) A nature conservation strategy is a disallowable instrument. Note Minor amendments may be made to the strategy under s 57.

55 Draft strategy—Minister’s direction to revise etc under section 53 (b). (b) resubmit the draft strategy to the Minister for approval. (3) The Minister must decide, under section 53, what to do with the resubmitted draft strategy.

56 Draft strategy—Minister’s rejection (1) If the Minister rejects a draft nature conservation strategy under section 53 (c), the Minister must prepare a notice stating that the draft strategy is rejected (a rejection notice).

57 Nature conservation strategy—minor amendments (a) a nature conservation strategy for the ACT is in force (the existing strategy); and strategy are appropriate. (a) may prepare a new draft nature conservation strategy, incorporating the minor amendments into the existing strategy; and (c) may submit the new draft nature conservation strategy to the

(3) If the conservator submits a new draft nature conservation strategy to the Minister for approval, the Minister must— (a) approve the strategy; or (b) reject the strategy. Note The new draft nature conservation strategy approved by the Minister is a nature conservation strategy and is a disallowable instrument (see s 54). minor amendment, of a nature conservation strategy for the ACT, efficiency of the strategy without changing the substance of the strategy.

58 Nature conservation strategy—conservator to implement If a nature conservation strategy is in force for the ACT, the conservator must take reasonable steps to implement the strategy.

59 Nature conservation strategy—monitoring (1) The conservator must monitor the effectiveness of the nature conservation strategy for the ACT. (2) The conservator must report to the Minister about the nature conservation strategy for the ACT at least once every 5 years. (3) The Minister must consider the report and may take any action the Minister considers appropriate.

(4) The Minister must make the report publicly accessible not later than

60 Nature conservation strategy—review (1) The conservator must review the nature conservation strategy every 10 years after the strategy commences. (2) However, the Minister may extend the time for conducting the review. (3) In conducting the review, the conservator must— (a) consider each matter mentioned in section 49 (2) (Draft nature conservation strategy—conservator to prepare) in relation to the nature conservation strategy under review; and (b) consult the entities mentioned in section 50; and (c) carry out public consultation in accordance with section 51 (Draft nature conservation strategy—public consultation) as if a reference to a draft nature conservation strategy were a reference to the nature conservation strategy under review. (4) If the public consultation period for the review has ended, the (a) consider each submission received during the public (b) if the person who makes a submission during the public consultation period agrees to the conservator making the submission publicly accessible—make the submission publicly accessible; and

(c) make any recommendation to the Minister about the strategy under review that the conservator considers appropriate. (5) The recommendation must be accompanied by a report setting out the public consultation period for the strategy under review. (6) If the conservator makes a recommendation to the Minister, the Minister must respond to the conservator about the recommendation. (7) If the conservator receives a response from the Minister, the conservator must make the following publicly accessible: (a) the Minister’s response; (b) details of any proposed amendments to the strategy as a result of the review.

Chapter 4 Threatened native species and ecological communities

61 What is a threatened native species? threatened native species means a native species listed in the threatened native species list.

62 What is a threatened native species list? threatened native species list means a list of species notified under section 91 (Final version of list and notification).

63 Threatened native species list—categories (1) The Minister must make a threatened native species list. (2) The list must contain the species eligible to be included in 1 of the following categories (a national category) in the list: (a) extinct; (b) extinct in the wild; (c) critically endangered; (d) endangered; (e) vulnerable; (f) conservation dependent.

(3) The list may contain the species eligible to be included in 1 of the following categories (a regional category) in the list: (a) regionally threatened; (b) regionally conservation dependent; (c) provisional.

64 Threatened native species list—eligibility for national (1) A native species is eligible to be included in the extinct category in the threatened native species list if, assessed at a national scale, there is no reasonable doubt that the last member of the species has died. (2) A native species is eligible to be included in the extinct in the wild category in the threatened native species list if, assessed at a national scale— (a) it is known only to survive in cultivation, in captivity or as a naturalised population well outside its past range; or (b) it has not been recorded in its known or expected habitat, at appropriate seasons, anywhere in its past range, despite exhaustive surveys over a time frame appropriate to its life cycle and form. (3) A native species is eligible to be included in the critically endangered category in the threatened native species list if, assessed at a national scale, it is facing an extremely high risk of extinction in the wild in the immediate future. (4) A native species is eligible to be included in the endangered category in the threatened native species list if, assessed at a national scale— (a) it is not critically endangered; but (b) it is facing a very high risk of extinction in the wild in the near future.

(5) A native species is eligible to be included in the vulnerable category in the threatened native species list if, assessed at a national scale— (a) it is not critically endangered or endangered; but (b) it is facing a high risk of extinction in the wild in the medium-term future. (6) A native species is eligible to be included in the conservation dependent category in the threatened native species list if— (a) it is a fish; and (b) it is the subject of a plan of management, within the meaning of the Environment Protection and Biodiversity Conservation Act 1999 (Cwlth), that identifies actions necessary to stop the decline of, and support the recovery of, the species to maximise its chances of long-term survival in the wild; and (c) the plan of management is in force under a law of the Commonwealth, the Territory or a State; and (d) the ending of the plan may result in the species becoming vulnerable, endangered or critically endangered. assessed at a national scale, for an item—see section 80. Note Item includes a species (see s 80). fish includes all species of bony fish, sharks, crustaceans, molluscs and other marine organisms, but does not include marine mammals or marine reptiles.

64A Threatened native species list—eligibility for regional (1) A native species is eligible to be included in the regionally threatened category in the threatened native species list if— (a) the species occurs or is likely to occur in the ACT; and

(b) there are threatened native species list criteria for the category; and (c) the species satisfies the threatened native species list criteria for the category. (2) A native species is eligible to be included in the regionally conservation dependent category in the threatened native species list if— (a) the species occurs or is likely to occur in the ACT; and (b) there are threatened native species list criteria for the category; and (c) the species satisfies the threatened native species list criteria for the category. (3) A native species is eligible to be included in the provisional category in the threatened native species list if— (a) there is a significant decline in the number of members of the species in the ACT or surrounding region; or (b) the species— (i) occurs or is likely to occur in the ACT or surrounding region; and (ii) is listed as a threatened native species under a law of another jurisdiction corresponding, or substantially corresponding, to this Act; or (c) the species was listed in the extinct category of the threatened native species list but has been definitely located in nature in the ACT or surrounding region since it was last listed as extinct. Note See also s 97 about rediscovery of species that were extinct. (4) A native species is no longer eligible to be included in the provisional category in the threatened native species list if it has been in the category for 18 months.

(5) A native species is not eligible to be included in a regional category in the threatened native species list if— (a) it is eligible to be included in a national category in the list; or (b) it is included in the protected native species list. Note Protected native species list—see s 111. (6) However, a native species that is eligible to be included in the extinct category or extinct in the wild category in the threatened native species list may be included in a regional category in the list if the species is introduced or reintroduced into the ACT. Note Species includes a distinct population of biological entities prescribed by regulation to be a species (see s 15 (1), def species, par (b) (iii)).

65 Threatened native species list—eligibility criteria species is eligible to be included in a category in the threatened native species list (the threatened native species list criteria). (2) The threatened native species list criteria may only include scientific (3) In developing the threatened native species list criteria, the Minister must have regard to— (a) the conservation of the species; and (b) the ecological significance of the species; and (4) In developing the threatened native species list criteria, the Minister must consult—

(5) The threatened native species list criteria are a disallowable

66 Threatened native species list—criteria to review considers that the threatened native species list criteria should be (a) the criteria are not adequately identifying species eligible to be included in a category in the threatened native species list; or Minister that the Minister review the threatened native species list (a) review the threatened native species list criteria under section 65; or (b) refuse to review the threatened native species list criteria. (4) A decision to refuse to review the threatened native species list criteria, including a statement of reasons for the decision, is a

Threatened ecological communities Part 4.2 Part 4.2 Threatened ecological communities

67 What is a threatened ecological community? threatened ecological community means an ecological community listed in the threatened ecological communities list.

68 What is a threatened ecological communities list? threatened ecological communities list means a list of ecological communities notified under section 91 (Final version of list and notification).

69 Threatened ecological communities list—categories The Minister must make a threatened ecological communities list— (a) containing the ecological communities eligible to be included in the list; and (b) divided into the following categories: (i) collapsed; (ii) critically endangered; (iii) endangered; (iv) vulnerable; (v) provisional.

70 Threatened ecological communities list—eligibility for (1) An ecological community is eligible to be included in the collapsed category in the threatened ecological communities list if there is no reasonable doubt that its defining biotic or abiotic features are lost from all occurrences and the characteristic native biota are no longer sustained. Collapse may occur when most of the diagnostic components of the characteristic native biota are lost from the ecological community, or when functional components (biota that perform key roles in ecological community organisation) are greatly reduced in abundance and lose the ability to recruit. (2) An ecological community is eligible to be included in the critically endangered category in the threatened ecological communities list if it is facing an extremely high risk of extinction in the wild in the immediate future. (3) An ecological community is eligible to be included in the endangered (a) it is not critically endangered; but (b) it is facing a very high risk of extinction in the wild in the near future. (4) An ecological community is eligible to be included in the vulnerable (a) it is not critically endangered or endangered; but (b) it is facing a high risk of extinction in the wild in the medium-term future. (5) An ecological community is eligible to be included in the provisional (a) there is a strong decline in the size of the ecological community in the ACT and the surrounding region; or

Threatened ecological communities Part 4.2 (b) the ecological community— (i) exists or is likely to exist in the ACT; and (ii) is listed as a threatened ecological community under a law of another jurisdiction corresponding, or substantially corresponding, to this Act. (6) An ecological community is no longer eligible to be included in the provisional category in the threatened ecological communities list if it has been in the category for 18 months.

71 Threatened ecological communities list—eligibility criteria (1) The Minister must develop criteria to be used in deciding whether an ecological community is eligible to be included in a category in the threatened ecological communities list (the threatened ecological communities list criteria). (2) The threatened ecological communities list criteria may only include scientific matters. (3) In developing the threatened ecological communities list criteria, the Minister must have regard to— (a) the conservation of the ecological community; and (b) the ecological significance of the ecological community; and (4) In developing the threatened ecological communities list criteria, the Minister must consult—

(5) The threatened ecological communities list criteria are a disallowable

72 Threatened ecological communities list criteria—review considers that the threatened ecological communities list criteria should be reviewed because— (a) the criteria are not adequately identifying ecological communities eligible to be included in a category in the threatened ecological communities list; or Minister that the Minister review the threatened ecological communities list criteria. (a) review the threatened ecological communities list criteria under section 71; or (b) refuse to review the threatened ecological communities list (4) A decision to refuse to review the threatened ecological communities list criteria, including a statement of reasons for the decision, is a

Key threatening processes Part 4.3

73 What is a threatening process? threatening process means a process that threatens, or may threaten, the survival, abundance or evolutionary development of a native species or ecological community. Native species—see s 16.

74 What is a key threatening process? key threatening process means a threatening process listed in the key threatening processes list.

75 What is a key threatening processes list? key threatening processes list means— (a) the key threatening processes list made under section 76; or (b) a key threatening processes list notified under section 91 (Final version of list and notification).

76 Key threatening processes list (1) The Minister may make a key threatening processes list in accordance with this part. (2) The key threatening processes list is a notifiable instrument.

77 Key threatening processes list—eligibility A threatening process is eligible to be included in the key threatening processes list if— (a) it could cause— (i) a native species to become eligible for listing in the threatened native species list in a category other than conservation dependent; or (ii) an ecological community to become eligible for listing in the threatened ecological communities list; or (b) it could cause— (i) a threatened native species to become eligible to be listed in the threatened native species list in another category representing a higher degree of endangerment; or (ii) a threatened ecological community to become eligible to be listed in the threatened ecological communities list in another category representing a higher degree of endangerment; or (c) it adversely affects 2 or more threatened native species (other than conservation dependent species) or 2 or more threatened ecological communities.

78 Key threatening processes list—eligibility criteria threatening process is eligible to be included on the key threatening processes list (the key threatening processes list criteria). (2) The key threatening processes list criteria may only include scientific

Key threatening processes Part 4.3 (3) In developing the key threatening processes list criteria, the Minister must have regard to— (a) the conservation of threatened native species and threatened ecological communities; and (b) the ecological significance of threatened native species and threatened ecological communities; and (4) In developing the key threatening processes list criteria, the Minister must consult— (5) The key threatening processes list criteria are a disallowable

79 Key threatening processes list criteria—review considers that the key threatening processes list criteria should be (a) the criteria are not adequately identifying processes eligible to be included on the key threatening processes list; or Minister that the Minister review the key threatening processes list (a) review the key threatening processes list criteria under section 78; or

(b) refuse to review the key threatening processes list criteria. (4) A decision to refuse to review the key threatening processes list criteria, including a statement of reasons for the decision, is a

Definitions—pt 4.4 Division 4.4.1 Part 4.4 Including, transferring and omitting items in list

80 Definitions—pt 4.4 assessed at a national scale, for an item, means the risk assessment criteria under the common assessment method is applied to the item throughout— (a) Australia or an external Territory; or (b) the coastal sea of Australia or an external Territory; or (c) the seabed of the coastal sea of Australia or an external Territory; or (d) the continental shelf; or (e) the exclusive economic zone. Note Coastal sea—see the dictionary. Continental shelf—see the dictionary. Exclusive economic zone—see the dictionary. Seabed—see the dictionary. common assessment method means the methodology used to assess the risk of extinction of a species or collapse of an ecological community, agreed between— (a) the Commonwealth; and (b) the Territory; and (c) a participating State.

item means— (a) for the threatened native species list—a native species; or (b) for the threatened ecological communities list—an ecological community; or (c) for the key threatening processes list—a threatening process. list means— (a) the threatened native species list; or (b) the threatened ecological communities list; or (c) the key threatening processes list. listing assessment—see section 85 (2). nationally threatened, in relation to an item, means— (a) an item that is a listed threatened species or listed ecological community under the Environment Protection and Biodiversity Conservation Act 1999 (Cwlth) (a Commonwealth listed item); or (b) an item (a State assessed item) that— (i) is eligible to be a listed threatened species or listed ecological community under the Environment Protection and Biodiversity Conservation Act 1999 (Cwlth); and (ii) has been assessed by a participating State as a threatened species or ecological community at a national scale, using the common assessment method; or (c) an item that— (i) is either— (A) eligible to be included in a national category of the threatened native species list; or

(B) eligible to be included in the threatened ecological communities list; and (ii) has been assessed by the Territory as a threatened native species or threatened ecological community at a national scale, using the common assessment method. nomination means a nomination mentioned in— (a) section 81; or (b) section 83. participating State means a State that uses the common assessment method to assess a species or ecological community at a national scale. public consultation notice—see section 84 (1). transfer, an item within a list, means transfer the item from 1 category in the list to another category in the list.

Division 4.4.2 Including, transferring and omitting items in list—general

81 Nominations—public may nominate item at any time (1) A person may, at any time, nominate an item to be— (a) included in a list; or (b) transferred within a list; or (c) omitted from a list. (2) A nomination must— (a) comply with any requirements prescribed by regulation for the nomination; and (b) be given to the scientific committee.

(3) A person who gives the scientific committee a nomination may, in writing, withdraw the nomination at any time.

82 Nominations—scientific committee may reject nomination (1) The scientific committee may reject a nomination if the scientific committee considers that— (a) the nomination is vexatious, frivolous or not made in good faith; or (b) a requirement prescribed by regulation for the nomination has not been complied with; or (c) if the nomination is about including a nationally threatened item in, or transferring a nationally threatened item within, a list, and the item is a Commonwealth listed item or a State assessed item—the inclusion or transfer is more appropriately dealt with under section 90A. (2) If the scientific committee rejects a nomination, the scientific committee must take reasonable steps to tell the person who made the nomination about the rejection and the reason for it.

83 Nominations—scientific committee may nominate items itself The scientific committee may, at any time, nominate an item to be— (a) included in a list; or (b) transferred within a list; or (c) omitted from a list.

84 Nominations—public consultation (1) The scientific committee must prepare a notice about a nomination (a public consultation notice) if the nominated item— (a) is a native species nominated to be included in, transferred within or omitted from a national category in the threatened native species list; or (b) is an ecological community nominated to be included in, transferred within or omitted from the threatened ecological community list. (2) In any other case, the scientific committee may prepare a public consultation notice about a nomination. (3) A public consultation notice— (a) must state that— (i) anyone may give a written submission to the scientific committee about the nomination; and (ii) submissions may be given to the scientific committee only during the period starting on the day the public consultation notice is notified under the Legislation Act and ending on a stated day, being a day at least 6 weeks after the day it is notified (the public consultation period); and (b) must include the nomination; and (c) may invite people to comment on other matters that the scientific committee considers relevant. Note The public consultation notice need not contain the precise location of the species (see s 363). (4) A public consultation notice is a notifiable instrument.

(5) If the scientific committee notifies a public consultation notice for a nomination— (a) anyone may give a written submission to the scientific committee about the nomination; and (b) the submission may be given to the scientific committee only during the public consultation period for the nomination; and (6) The scientific committee may make arrangements for people with particular communication needs to ensure they have adequate opportunity to comment on the nomination.

85 Nominations—scientific committee to carry out listing assessment (a) the scientific committee does not notify a public consultation notice for a nomination under section 84 within 4 weeks after receiving the nomination or nominating the item itself; or (b) the public consultation period for a nomination has ended. (2) The scientific committee must assess the nominated item (a listing assessment). (3) A listing assessment for a nominated item must assess— (a) whether the item is eligible for inclusion in, or transfer within, a list; and

(b) if eligible for inclusion or transfer—the category (if any) of the list the item is eligible to be included in or transferred to. (4) In carrying out a listing assessment for a nominated item, the scientific committee must consider— (a) if public consultation about the item has been carried out under section 84—any submissions received during the public consultation period for the item; and (c) the effect that including, transferring or omitting the item could have on the survival of the species or ecological community concerned. (5) The scientific committee must give a listing assessment for an item to the Minister not later than 15 months after the end of the 4-week period, or public consultation period, mentioned in subsection (1). (6) However, the Minister may extend the time for giving the listing assessment under subsection (5).

87 Minister to decide whether to include, transfer or omit item (1) Not later than 3 months after the Minister receives a listing assessment for an item, the Minister must decide whether to— (a) include, or refuse to include, an item in a list under section 88; or (b) transfer, or refuse to transfer, an item within a list under section 89; or (c) omit, or refuse to omit, an item from a list under section 90. Note The Minister may include certain nationally threatened items in a list without a nomination under div 4.4.3. (2) If the decision is to include, transfer or omit an item, the Minister (a) revise the list; and (b) prepare a final version of the list. Note The final version of the list is a notifiable instrument (see s 91). (3) The Minister must take reasonable steps to tell the following people about the decision: (a) if the item was nominated by a person under section 81—the person who made the nomination; (b) if a person made a submission to the scientific committee under section 84—the person who made the submission.

88 Minister’s decision—include item (1) The Minister may include an item in a list, or category in a list, only if satisfied that the item is eligible to be included in the list or category. (2) In deciding whether to include an item, the Minister may only (c) if the item is a species or ecological community—the effect that including the item may have on the survival of the item.

89 Minister’s decision—transfer item (1) The Minister may transfer an item from 1 category in a list to another category in a list (the new category) only if satisfied that the item is eligible to be included in the new category. Note 1 Eligibility for the threatened native species list is dealt with in s 64 and Note 2 There are no categories in the key threatening processes list. (2) In deciding whether to include an item, the Minister may only (b) the eligibility of the item for the new category under— communities list criteria; and (c) the effect that transferring the item may have on the survival of the item.

90 Minister’s decision—omit item (1) The Minister may omit an item from a list only if satisfied that— (a) the item is no longer eligible to be included in the list; or

(b) for a native species or ecological community—the inclusion of the item in the list is not contributing, or will not contribute, to the survival of the item. (2) In deciding whether to omit an item from a list, the Minister may only (c) if the item is a species or ecological community—the effect that the inclusion of the item in the list is having, or may have, on the survival of the item.

Division 4.4.3 Including or transferring certain nationally threatened items Division 4.4.3 Including or transferring certain nationally threatened items 90A Minister may include or transfer nationally threatened items without nomination (1) This section applies to a nationally threatened item that is a Commonwealth listed item or a State assessed item (a relevant item). (2) The Minister may, without a nomination— (a) include a relevant item in a list; or (b) transfer a relevant item from 1 category in a list to another category in a list. (3) Before including a relevant item in, or transferring a relevant item within, a list, the Minister must— (a) consult with the scientific committee; and (b) consider any recommendations of the scientific committee. (4) A relevant item may only be included in, or transferred to, a national category in a list that corresponds with— (a) for a Commonwealth listed item—the category in which the Commonwealth lists the item; and (b) for a State assessed item—the category in which the State assesses the item is eligible to be listed. (5) If the Minister decides to include a relevant item in, or transfer a relevant item within, a list under this section, the Minister must— (a) revise the list; and (b) prepare a final version of the list. Note The final version of the list is a notifiable instrument (see s 91).

Conservation advice Division 4.4.4

90B Conservation advice guidelines (1) The Minister may make guidelines (the conservation advice guidelines) about the preparation of a conservation advice for an item, including— (a) information to be included in a conservation advice; and (b) requirements for the preparation of a conservation advice. (2) A guideline is a notifiable instrument.

90C Conservation advice (1) The scientific committee must prepare an advice about each item included in a list (a conservation advice). (2) However, the scientific committee need not prepare a conservation advice for an item if— (a) the committee adopts an advice for the item under section 90E (Conservation advice—adopting advice for nationally threatened item); or (b) the item is listed in a provisional category of a threatened native species list or a threatened ecological communities list. Note For a nationally threatened item, an advice adopted under s 90E is the conservation advice. (3) The conservation advice must— (a) set out— (i) the grounds on which the item is eligible to be included in, transferred within, or omitted from, the list; and (ii) the main factors that make it eligible; and

(b) include anything else required to be included by a conservation advice guideline. Note 1 The conservation advice need not contain the precise location of a species or community (see s 363). Note 2 Eligibility for the threatened native species list is dealt with in s 64 and (4) A conservation advice, including a conservation advice adopted under section 90E, is a notifiable instrument. (5) However, a conservation advice must be notified within 20 days after the following happens: (a) the Minister makes a decision to include an item on a list or transfer an item within a list; (b) the scientific committee amends the conservation advice. conservation advice guidelines—see section 90B (1).

90E Conservation advice—adopting advice for nationally threatened item (1) This section applies to a nationally threatened item. (2) The scientific committee may adopt an advice prepared by the Commonwealth or a participating State for the item if the advice corresponds, or substantially corresponds, with the requirements for a conservation advice mentioned in section 90C (3). (3) If the scientific committee adopts an advice for the item under this section, the advice is taken to be the conservation advice for the item.

Final version of list and notification Division 4.4.5 conservation advice guidelines—see section 90B (1).

90F Conservation advice—scientific committee to review (1) The scientific committee may review a conservation advice on its own initiative or at the conservator’s request. (2) Following the review of the conservation advice, the scientific committee may make amendments to the advice. Division 4.4.5 Final version of list and notification

91 Final version of list and notification (1) The final version of— (a) a list of species prepared under section 87, section 90A or section 94 is a threatened native species list; and (b) a list of ecological communities prepared under section 87, section 90A or section 94 is a threatened ecological communities list; and (c) a list of processes prepared under section 87, section 90A or section 94 is a key threatening processes list. (2) Each of the following is a notifiable instrument: (a) a threatened native species list; (b) a threatened ecological communities list; (c) a key threatening processes list.

93 What is a minor amendment?—div 4.4.6 In this division: minor amendment, of a list, means an amendment to— (a) include a species in the threatened native species list in the circumstances mentioned in section 95 (Minor amendment— including similar species); or (b) omit a species from the threatened native species list in the circumstances mentioned in section 96 (Minor amendment— omitting similar species); or (c) transfer a species from the extinct category to the provisional category of the threatened native species list in the circumstances mentioned in section 97 (Minor amendment— rediscovery of extinct species); or (d) update the name of a threatened native species or threatened ecological community; or (e) correct an inaccuracy.

94 Minister may make minor amendments (1) This section applies if the Minister considers that a minor amendment to a list is appropriate. (2) The Minister— (a) may prepare a new list, incorporating the minor amendments into the existing list; and (b) need not comply with the requirements in section 84 (Nominations—public consultation) to section 90A (Minister may include or transfer nationally threatened items without nomination); and

Minor amendments of list Division 4.4.6 (c) may prepare a final version of the new list, as amended. Note The final version of the new list is a threatened native species list, threatened ecological communities list, or key threatening processes list and is a notifiable instrument (see s 91).

95 Minor amendment—including similar species appropriate if the amendment is to include a native species in a certain category of the list (the ineligible species) because— (a) it so closely resembles in appearance, at any stage of its biological development, a species that is included in the category (the eligible species) that it is difficult to differentiate between the 2 species; and (b) this difficulty poses an additional threat to the eligible species; and (c) it would substantially promote the objects of this Act if the ineligible species were included in the category. must obtain and consider the advice of the scientific committee. (3) If an ineligible species is included in a category of the threatened native species list under subsection (1) and the eligible species is— (a) transferred to another category of the list, the ineligible species is also transferred to the other category; and (b) omitted from the list, the ineligible species is also omitted from the list. certain category, of the threatened native species list, means— (a) critically endangered; or (b) endangered; or

(c) vulnerable. Note Eligibility for critically endangered category, endangered category and vulnerable category (see s 64 (3) to (5)).

96 Minor amendment—omitting similar species appropriate if the amendment is to omit an ineligible species included under section 95 because its inclusion is not having a significant beneficial effect on the survival of the eligible species. must obtain and consider the advice of the scientific committee.

97 Minor amendment—rediscovery of extinct species appropriate if the amendment is to transfer a species from the extinct category to the provisional category because the species has been definitely located in nature. need not obtain and consider advice from the scientific committee.

98 Definitions—Act regular migratory species means a listed migratory species that regularly occurs in the ACT. Note Listed migratory species—see the Environment Protection and Biodiversity Conservation Act 1999 (Cwlth), s 528. relevant ecological community means the following: (a) a critically endangered ecological community; (b) an endangered ecological community; (c) a vulnerable ecological community. relevant species means— (a) a regular migratory species; and (b) the following species, other than a species that the Minister decides, under section 100A, does not need an action plan: (i) a critically endangered species; (ii) an endangered species; (iii) a vulnerable species; (iv) a regionally threatened species; (v) a regionally conservation dependent species.

99 What is an action plan?—pt 4.5 action plan, for a relevant species, relevant ecological community or key threatening process, means a plan for the species, ecological community or process, notified under section 105 (Draft action plan—final version and notification). Note Key threatening process—see s 74.

100 What is a draft action plan?—pt 4.5 draft action plan, for a relevant species, relevant ecological community or key threatening process— (a) means a draft plan that— (i) for a relevant species— (A) sets out proposals to ensure, as far as practicable, the identification, protection and survival of the species; and (B) if there is a known critical habitat for the species— identifies the critical habitat; and (C) for regular migratory species—may include maps of potential habitats of the species; and (D) may propose management strategies to ensure the persistence of the species; and (E) may state requirements for monitoring the species and its habitats; and

(ii) for a relevant ecological community— (A) sets out proposals to ensure, as far as practicable, the identification, protection and survival of the (B) if there is a known critical habitat for the community—identifies the critical habitat; and (iii) for a key threatening process—sets out proposals to minimise any effect of the process that threatens a relevant species or relevant ecological community; and Note Power to make a statutory instrument includes power to make different provision in relation to different matters or different classes of matters, and to make an instrument that applies differently by reference to stated exceptions or factors (see Examples—instrument that may be applied, adopted or incorporated 1 a native species conservation plan, for a native species (see s 115) 2 a recovery plan under the Environment Protection and Biodiversity Conservation Act 1999 (Cwlth), s 269A

100A Minister to decide if action plan needed (1) This section applies to each of the following species (an applicable species): (a) a critically endangered species;

(b) an endangered species; (c) a vulnerable species; (d) a regionally threatened species; (e) a regionally conservation dependent species. (2) Before an applicable species is included in, or transferred within, a list, the Minister must decide whether an action plan needs to be prepared for the species. (3) In deciding whether an action plan needs to be prepared for an applicable species, the Minister must seek the advice of the scientific committee. (4) The Minister may decide that an action plan does not need to be prepared for an item if satisfied that— (a) the species does not occur in the ACT or occurs infrequently in the ACT; or (b) having no plan will not increase the risk of extinction of the species. list—see section 80.

101 Draft action plan—conservator to prepare (1) The conservator must prepare a draft action plan for each relevant species, relevant ecological community and key threatening process. Note The draft action plan need not contain the precise location of the species, community or critical habitat (see s 363). (2) However, the conservator need not prepare a draft action plan— (a) for a species mentioned in section 100A—if the Minister has decided that an action plan is not needed for the species; or

(b) for a relevant species—if the species is the subject of a native species conservation plan. (3) In preparing a draft action plan for a relevant species or relevant ecological community, the conservator must consider— (a) the impact of climate change on the species or ecological (b) threats to the species or ecological community; and (c) connectivity requirements of the species or ecological (d) critical habitat of the species or ecological community. Note Critical habitat—see the dictionary.

102 Draft action plan—consultation with scientific committee In preparing a draft action plan, the conservator must consult the scientific committee.

103 Draft action plan—public consultation (1) If the conservator prepares a draft action plan, the conservator must also prepare a notice about the draft action plan (a public consultation notice). about the draft action plan; and

(b) include the draft action plan. action plan— comment on the draft action plan.

104 Draft action plan—revision If the public consultation period for a draft action plan has ended, the (c) prepare a final version of the draft plan.

105 Draft action plan—final version and notification (1) The final version of a draft action plan prepared under section 104 or section 106 is an action plan. (2) An action plan is a disallowable instrument.

106 Action plan—minor amendments (a) an action plan for a relevant species, relevant ecological community or key threatening process is in force (the existing (a) may prepare a new draft action plan for the species, community or process, incorporating the minor amendments into the section 103 (Draft action plan—public consultation); and (c) may prepare a final version of the new draft action plan, as Note The final version of the new draft action plan is an action plan and is a disallowable instrument (see s 105).

minor amendment, of an action plan, means an amendment that will improve the effectiveness or technical efficiency of the plan without changing the substance of the plan.

107 Action plan—conservator to implement If an action plan is in force for a relevant species, relevant ecological community or key threatening process, the conservator must take reasonable steps to implement the plan.

108 Action plan—monitoring and review (1) The conservator must— (a) monitor the effectiveness of an action plan; and (b) make the findings of the monitoring publicly accessible. (2) However, if the conservator considers that a species or ecological community could be threatened by the disclosure of a particular detail in a finding, the conservator— (b) must instead include a general statement about the finding. (3) The conservator must report to the Minister about each action plan at least once every 5 years. (4) The Minister must make the report publicly accessible not later than

(5) The scientific committee must review an action plan— (a) every 10 years after the plan commences; and (b) at any other time at the conservator’s request. (6) However, the Minister may extend the time for conducting the review under subsection (5) (a). (7) In reviewing an action plan, the scientific committee may make recommendations to the conservator about the plan, including that the plan is no longer needed for a species.

108A Action plan—ending action plan after review (1) This section applies if the scientific committee recommends to the conservator that an action plan is no longer needed for a species under section 108 (7). (2) The conservator may request that the Minister end the action plan. (3) If the Minister receives a request from the conservator, the Minister must decide whether to end the action plan. (4) In deciding whether to end the action plan, the Minister must have regard to the recommendation of the scientific committee. (5) The Minister may end the action plan if satisfied that ending the plan will not increase the risk of extinction of the species the subject of the

Chapter 5 Protection of native species— conservation plans

109 What is special protection status? special protection status—a native species has special protection status if it is— (a) a threatened native species; or (b) a listed threatened species; or (c) a listed migratory species. Note Listed migratory species—see the Environment Protection and Biodiversity Conservation Act 1999 (Cwlth), s 528. listed threatened species—see the Environment Protection and Biodiversity Conservation Act 1999 (Cwlth), section 528. Note 1 The conservator may make a native species conservation plan for a species that has special protection status (see pt 5.3). Note 2 The conservator must make an action plan for regular migratory species (see s 101).

Protected native species Part 5.2

110 What is a protected native species? protected native species means a native species listed in the protected

111 Minister to make protected native species list (1) The Minister must make a list of native species that are protected native species (the protected native species list). (2) The protected native species list must be divided into the following categories: (a) restricted trade; (b) rare; (c) data deficient; (d) any other category prescribed by regulation. (3) The protected native species list is a notifiable instrument.

112 Protected native species list—eligibility (1) A native species is eligible to be included in the restricted trade category in the protected native species list if unrestricted trade in the species is likely to have a negative impact on populations of the species in the wild. (2) A native species is eligible to be included in the rare category in the protected native species list if— (a) it is not a threatened native species; and

(b) it does not have special protection status; and (c) it is rare in the ACT. (3) A native species is eligible to be included in the data deficient category in the protected native species list if there is insufficient information about the species in the ACT for the species to be eligible to be— (a) a threatened native species; or (b) included in any other category in the protected native species list.

113 Minister to develop criteria and processes for protected native species list species is eligible to be included in a category on the protected native species list (the protected native species list criteria). (2) The protected native species list criteria may only include scientific (3) In developing the protected native species list criteria, the Minister (a) have regard to the conservation of the species; and (b) consult the scientific committee. (4) The protected native species list criteria are a disallowable (5) The Minister must also develop processes to be followed in deciding whether a species is to be included in a category in the protected (6) The processes are a disallowable instrument.

Protected native species Part 5.2

114 Protected native species list criteria—review considers that the protected native species list criteria should be (a) the criteria are not adequately identifying species eligible to be included in a category on the protected native species list; or (2) The conservator, or the scientific committee, must recommend to the Minister that the Minister review the protected native species list (a) review the protected native species list criteria under section 113; or (b) refuse to review the protected native species list criteria. (4) A decision to refuse to review the protected native species list criteria, including a statement of reasons for the decision, is a notifiable

Part 5.3 Native species conservation

115 What is a native species conservation plan? native species conservation plan, for a native species, means a plan for the species on stated land, notified under section 122 (Draft native species conservation plan—final version and notification).

116 What is a draft native species conservation plan?—pt 5.3 draft native species conservation plan, for a native species on stated land— (a) means a draft plan detailing how the native species may be appropriately managed on the stated land; and a fisheries management plan under the Fisheries Act 2000 Note 1 The text of an applied, adopted or incorporated law or instrument, Note 2 A native species conservation plan may include provisions about carrying on an activity that would usually require a nature conservation licence. If a person intends to carry on the activity under a plan, the person must apply for a nature conservation licence in the usual way.

117 Draft native species conservation plan—conservator to The conservator may prepare a draft native species conservation plan for stated land for— (a) a native species that has special protection status; or (b) any other native species the conservator considers appropriate for a native species conservation plan. Note 1 Power to make a statutory instrument includes power to make different Note 2 A species that is the subject of a native species conservation plan is eligible to be included in the conservation dependent category in the threatened native species list if the ending of the plan may result in the species becoming vulnerable, endangered or critically endangered (see s 64A (2)). Note 3 The draft native species conservation plan need not contain the precise location of the species (see s 363).

118 Draft native species conservation plan—consultation with scientific committee In preparing a draft native species conservation plan, the conservator must consult the scientific committee.

119 Draft native species conservation plan—consultation with lessee and custodian (1) In preparing a draft native species conservation plan for stated land, the conservator must consult the relevant person for the stated land if the plan requires the person to do or not do something.

(2) However, the conservator need not consult the relevant person in relation to something the person may do under the plan even though, if done, the thing must be done in the way stated in the plan. relevant person, for stated land, means—

120 Draft native species conservation plan—public (1) If the conservator prepares a draft native species conservation plan, the conservator must also prepare a notice about the draft native species conservation plan (a public consultation notice). about the draft native species conservation plan; and (b) include the draft native species conservation plan. native species conservation plan—

121 Draft native species conservation plan—revision If the public consultation period for a draft native species conservation plan has ended, the conservator must— (c) prepare a final version of the draft plan.

122 Draft native species conservation plan—final version and (1) The final version of a draft native species conservation plan prepared under section 121 or section 123 is a native species conservation plan. (2) A native species conservation plan is a notifiable instrument.

123 Native species conservation plan—minor amendments (a) a native species conservation plan for a native species is in force (the existing plan); and

(a) may prepare a new draft native species conservation plan for the native species, incorporating the minor amendments into the section 119 to section 121; and (c) may prepare a final version of the new draft native species conservation plan, as amended. Note The final version of the new draft native species conservation plan is a native species conservation plan and is a notifiable instrument (see s 122). minor amendment, of a native species conservation plan, means an amendment that will improve the effectiveness or technical efficiency of the plan without changing the substance of the plan.

124 Native species conservation plan—conservator etc to If a native species conservation plan is in force for a native species on stated land, the following people must take reasonable steps to implement the plan: (b) if the land is leased land—the lessee of the land; (c) if the land is unleased land or public land—the custodian of the

125 Native species conservation plan—monitoring and review (1) The conservator must— (a) monitor the effectiveness of a native species conservation plan; and (b) make the findings of the monitoring publicly accessible. (2) However, if the conservator considers that a species could be threatened by the disclosure of a particular detail in a finding, the (b) must instead include a general statement about the finding. (3) The conservator may ask the scientific committee to review a native species conservation plan. (4) In reviewing a native species conservation plan, the scientific committee may make recommendations to the conservator about the

Chapter 6 Protection of native species— offences

126 Definitions—pt 6.1 sell includes— (a) sell by wholesale, retail, auction or tender; and (b) barter or exchange; and (c) supply for profit or other commercial gain; and (d) offer for sale, receive for sale or expose for sale; and (e) have in possession for sale. take includes— (a) for an animal—harvest, catch, capture and trap; and (b) for a plant—harvest, pick, gather and cut.

127 Definitions—div 6.1.2 In this division: interfere with an item, includes damage or destroy the item. nest, of an animal, includes— (a) a place, structure or object that is being, or has been within the previous 2 years, used as a nesting place by the animal; or

(b) a partially constructed nest that has not been used as a nesting place by the animal. prohibited fruit netting means netting that has a mesh hole size greater than 5mm x 5mm when fully stretched.

128 Offence—interfere with nest of native animal (a) interferes with— (b) the animal is a native animal. Note Interfere with an item—see s 127. Nest, of an animal—see s 127. (b) the animal—

129 Offence—interfere with nest of native animal—endanger progeny or breeding (b) the interference— (i) places the animal or its progeny in danger of death; or (ii) places the animal in danger of not being able to breed— (A) if the interference happens during the animal’s breeding season—during the breeding season; or (B) in any other case—during the animal’s next breeding season; and Note Interfere with an item—see s 127. Nest, of an animal—see s 127. Progeny—see s (5).

(b) the interference— (i) places the animal or its progeny in danger of death; or (ii) places the animal in danger of not being able to breed— (A) if the interference happens during the animal’s breeding season—during the breeding season; or (B) in any other case—during the animal’s next breeding season; and (c) the animal— (3) This section does not apply to a person if the person believed on reasonable grounds that— (a) the danger did not exist; or (b) for an offence involving interference with a nest—the thing interfered with was not a nest; or (c) for an offence involving interference with something in the immediate environment of a nest—the thing interfered with was not in the immediate environment of a nest.

progeny, of an animal— (a) means any descendant of the animal; and (b) includes any animal reproductive material of the animal.

130 Offence—kill native animal (b) the conduct causes the death of an animal; and (b) the conduct causes the death of an animal; and (c) the animal—

(3) This section does not apply to a person if the death of the animal was caused— (a) in circumstances in which the animal was a danger to the person; or (b) by an accidental collision with a motor vehicle. The Murray cod is a nationally threatened species that is stocked in Canberra’s lakes. Fishing for Murray cod in areas and at times identified in the native species conservation plan for Murray cod would not be an offence.

131 Offence—injure or endanger native animal (b) the conduct causes injury to an animal; and

(b) the conduct places an animal in danger of injury or death; and (3) This section does not apply to a person if the injury or endangerment of the animal was caused— (a) in circumstances in which the animal was a danger to the person; or (b) by an accidental collision.

132 Offence—take native animal (a) the person takes an animal, whether dead or alive; and (b) the animal is a native animal. Note Take—see s 126. (a) the person takes an animal, whether dead or alive; and (b) the animal— (3) This section does not apply to a person if the animal is suffering from a disease, illness or injury and the person takes the animal to give it to— (a) a conservation officer; or (b) a veterinary practitioner; or (c) someone licensed to keep the animal.

133 Offence—keep non-exempt animal (a) the person keeps an animal; and (a) the person keeps an animal; and (3) This section does not apply to a person if— (a) the animal is suffering from a disease, illness or injury; and

(b) the person keeps the animal to give it to— (i) a conservation officer; or (ii) a veterinary practitioner; or (iii) someone licensed to keep the animal; and (c) the person keeps the animal for not more than 48 hours. (4) A person also has the benefit of the chapter 6 exceptions for an

134 Offence—sell non-exempt animal (a) the person sells an animal; and (a) the person sells an animal; and

135 Offence—offer to sell animal without disclosing licence (a) the person holds a nature conservation licence to sell an animal; and (b) the person offers to sell the animal; and (c) the offer does not disclose— (i) that the person is licensed to sell the animal; and (ii) the person’s licence number.

136 Offence—import non-exempt animal (a) the person imports an animal into the ACT; and (a) the person imports an animal into the ACT; and

137 Offence—export non-exempt animal (a) the person exports an animal from the ACT; and (a) the person exports an animal from the ACT; and

138 Offence—release animal from captivity (1) A person commits an offence if the person releases an animal from captivity. (3) This section does not apply to the release of a dog or a cat if the release would not constitute an offence under the Domestic Animals Act 2000. the defendant proves that the defendant took all reasonable precautions and exercised all appropriate diligence to prevent the commission of the offence.

138A Offence—use prohibited fruit netting (a) the person places netting on a plant; and (b) the plant is on residential premises; and (c) the netting is prohibited fruit netting. (a) netting is on a plant; and (b) the plant is on residential premises; and

(c) the person is the occupier of the premises; and (d) the netting is prohibited fruit netting.

138B Offence—prohibited fruit netting retail display (a) the person displays netting for sale by retail; and (b) the netting is prohibited fruit netting; and (c) the person does not display the netting in accordance with the display requirements for prohibited fruit netting. (3) For this section, the display requirements for prohibited fruit netting are as follows: (a) the display must have a sign containing the following statement: ‘Use of this netting on residential properties is restricted in the ACT as it can lead to wildlife injury or death. Penalties may apply (Nature Conservation Act 2014, section 138A)’; (b) the sign must be placed prominently so that it can be seen and read easily by a person at or near the display; (c) the statement on the sign must be printed in— (i) a colour that contrasts with the background colour of the sign; and (ii) Arial bold typeface in not less than 50 point.

139 Definitions—div 6.1.3 (1) In this division: built-up urban area—see the Urban Forest Act 2023, section 8. damage a tree— (a) includes the following: (i) kill or destroy the tree; (ii) poison the tree; (iii) ringbark the tree (whether partially or completely); (iv) fell or remove the tree; (v) lop or pollard the tree; (vi) remove a hollow from the tree; (vii) anything else done to or in relation to the tree that— (A) is likely to cause it to die; or (B) significantly reduces its life expectancy; or (C) significantly and adversely affects its health, stability or general appearance; but (b) does not include any cultural heritage practice undertaken in relation to the tree. Examples—par (a) (vii) 1 remove, cut or break a branch of the tree 2 contaminate soil around a protected tree by spilling chemicals or washing down construction products, such as cement, on the soil

native timber— (a) means timber from a tree that is a native plant, whether living or dead; and (i) a standing or fallen native tree; and (ii) any material from a standing or fallen native tree; but (c) does not include a tree seedling. native tree— (a) means a tree that is a native plant, whether living or dead; but (b) does not include a tree seedling. plant tag, for a plant, means a tag made of durable material that displays the following details: (a) the name of the person proposing to sell or export the plant; (b) the botanical name and common name (if any) of the plant. tree seedling means a tree that is not more than 2m high. hollow—see the Urban Forest Act 2023, section 14 (3). lop a tree means cut branches or stems of the tree between branch unions. pollard a tree means remove branches of the tree to a previously pruned or lopped point.

140 Offence—take native plant—unleased land

(ii) on unleased land. Note Take—see s 126. (a) the person is a public servant exercising a function as a public servant; or (b) the person is authorised to take the plant under a development approval under the Planning Act 2023, chapter 7; or (c) the person only takes seeds from the plant for domestic use; or (d) an exception under the Urban Forest Act 2023, section 18

141 Offence—take and sell native plant—unleased land (ii) on unleased land; and

(c) the person sells the plant. Note Sell includes offer for sale (see s 126). (2) This section does not apply to a person if the plant is native timber. Note 1 Native timber—see s 139. Note 2 It is an offence to damage a native tree on unleased land (see s 144). It is also an offence to take fallen native timber from unleased land (see s 146). Note 3 The defendant has an evidential burden in relation to the matters

142 Offence—take native plant—protected native species (b) the plant is a protected native species. (2) This section does not apply to a person if the person— (a) is a public servant exercising a function as a public servant; or (b) is an occupier of land outside a built-up urban area and the (i) takes the plant in the course of cultivating the plant on the land; or

(ii) takes seeds from a plant growing on the land to cultivate the plant on the land; or (c) is an occupier of land and the plant— (i) is growing on the land; and (ii) was planted by the person; or (d) is an occupier of land in a built-up urban area and the plant is growing on the land; or (e) is an occupier of land outside a built-up urban area and the person takes the plant in the course of using the land for primary production in accordance with the purpose authorised by the lease; or (f) is authorised to take the plant under a development approval under the Planning Act 2023, chapter 7. Note 1 Built-up urban area—see s 139.

143 Offence—take native plant—special protection status

(2) This section does not apply to a person if the person is— (a) a public servant exercising a function as a public servant; or (b) authorised to take the plant under a development approval under the Planning Act 2023, chapter 7.

144 Offence—damage native tree—unleased land (a) the person damages a tree; and (b) the tree is— (i) a native tree; and (ii) on unleased land. Maximum penalty: 400 penalty units. Note Damage, a tree includes fell the tree—see s 139. Native tree—see s 139. (a) the person is a public servant exercising a function as a public servant; or

offence under a development approval under the Planning Act 2023, chapter 7; or (c) an exception under the Urban Forest Act 2023, section 18 (4) In addition to the penalty that may be imposed for an offence against this section, the court may order the defendant to— (a) make good the damage incurred; or (b) pay the Territory the cost of making good the damage. (5) The Territory may enforce an order made under subsection (4) as if it were a judgment of the Magistrates Court in a civil proceeding.

145 Offence—damage native tree—leased land (a) the person damages a tree; and (b) the tree is— (i) a native tree; and (ii) on leased land outside a built-up urban area. Note Built-up urban area—see s 139. Damage, a tree includes fell the tree—see s 139. Native tree—see s 139.

(a) the tree was planted by an occupier of the land and damaged by an occupier of the land; or (b) the tree was damaged by an occupier of the land with the intention of using it on the land for a purpose other than sale; or Note Sell includes offer for sale (see s 126). (c) the person has a reasonable excuse; or (d) the person is authorised to engage in the conduct constituting the offence under a development approval under the Planning Act 2023, chapter 7; or (e) an exception under the Urban Forest Act 2023, section 18

146 Offence—damage or take fallen native timber (a) the person damages fallen timber; and (b) the timber— (i) is native timber; and (ii) has a diameter of more than 10cm; and (iii) is on unleased land.

(a) the person takes fallen timber from land; and (b) the timber is native timber; and (c) the land is— (i) unleased land; or (ii) leased land outside a built-up urban area. Note Built-up urban area—see s 139. Native timber—see s 139. Take—see s (7). (3) This section does not apply to a person if the person is— (a) a public servant exercising a function as a public servant; or (b) authorised to engage in the conduct constituting the offence under a development approval under the Planning Act 2023, chapter 7. (5) In addition to the penalty that may be imposed for an offence against subsection (2), the court may order the defendant to— (a) make good the damage incurred; or (b) pay the Territory the cost of making good the damage. (6) The Territory may enforce an order made under subsection (5) as if it were a judgment of the Magistrates Court in a civil proceeding.

take means— (a) for timber on leased land—take the timber from the land subject to the lease; or (b) for timber on unleased land—take the timber from the immediate vicinity.

147 Offence—offer to sell native plant without disclosing (a) the person holds a nature conservation licence to sell a native plant; and (b) the person offers to sell the native plant; and (c) the offer does not disclose— (i) that the person is licensed to sell the native plant; and (ii) the person’s licence number.

148 Offence—sell native plant—protected or special

149 Offence—sell native plant without plant tag—protected or special protection status (ii) a protected native species; and

(d) a plant tag is not visibly attached to the plant at the time of sale. Maximum penalty: 25 penalty units. (ii) has special protection status; and (d) a plant tag is not visibly attached to the plant at the time of sale.

150 Offence—import native plant—protected or special (a) the person imports a plant into the ACT; and

(a) the person imports a plant into the ACT; and (3) This section does not apply to the importation of native timber into the ACT. Note 1 Native timber—see s 139.

151 Offence—export native plant—protected or special

152 Offence—export plant without plant tag—protected or special protection status (ii) a protected native species; and (d) a plant tag is not visibly attached to the plant at the time of export. Maximum penalty: 25 penalty units.

(ii) has special protection status; and (d) a plant tag is not visibly attached to the plant at the time of export.

153 Chapter 6 exceptions (1) This section applies if a person has the benefit of the chapter 6 (a) the conduct constituting the offence is— (i) a restricted activity under an activities declaration and the person is complying with the directions and requirements stated in the declaration; or Note Activities declaration—see s 256. Restricted activity—see s 256. (ii) undertaken in accordance with a management agreement under chapter 12; or

Exceptions to offences Division 6.1.4 (iii) undertaken in implementing a controlled native species management plan under section 167 (Controlled native species management plan—conservator etc to implement); or Note Controlled native species management plan—see s 158. (iv) undertaken in accordance with a cultural resource management plan; or Note Cultural resource management plan—see s 168A. (v) undertaken in accordance with a fisheries management plan; or Note Fisheries management plan—see the dictionary. (ii) a public unleased land permit; or (iii) an emergency declaration under the Biosecurity Act 2023, section 38 (1) (Emergency declarations); or (iv) a control declaration under the Biosecurity Act 2023, section 51 (1) (Control declarations); or (v) a licence under the Planning Act 2023, section 378

(c) the person is a conservation officer exercising a function under Note 1 The defendant has an evidential burden in relation to the matters

Other matters Part 6.2 Part 6.2 Other matters

154 What is an exempt animal? exempt animal means an animal for which an exempt animal declaration is in force.

155 Declarations—exempt animals (1) The conservator may declare a stated animal to be an exempt animal (an exempt animal declaration). Note Power to make a statutory instrument (including a regulation) includes power to make different provision for different categories (see (2) In making an exempt animal declaration, the conservator must (a) the need to protect native species in the ACT; and (b) the need to conserve the significant ecosystems of the ACT, New South Wales and Australia; and (c) any biosecurity risk posed by the animal. (3) An exempt animal declaration is a disallowable instrument. biosecurity risk—see the Biosecurity Act 2023, section 13.

156 Interest in native animal ends with escape If a person holds an interest in a native animal and the animal escapes, the person’s interest in the animal ends. Note Also, if the person held a nature conservation licence to keep the escaped native animal, the licence no longer applies in relation to the animal (see s 276 (4)).

Chapter 7 Controlled native species management plans

157 What is a controlled native species?—ch 7 controlled native species means a native species declared to be a controlled native species under subsection (2). (2) The Minister may declare a native species to be a controlled native species if satisfied that the species is having, or is likely to have, an unacceptable environmental, social or economic impact. Example—unacceptable social impact a threatened native species poses a serious threat to human health (3) A declaration is a disallowable instrument.

158 What is a controlled native species management plan? controlled native species management plan, for a controlled native species, means a plan for the species on stated land, notified under section 165 (Draft controlled native species management plan—final version and notification).

159 What is a draft controlled native species management plan?—ch 7 draft controlled native species management plan, for a controlled native species on stated land— (a) means a draft plan detailing how the species may be appropriately managed on the stated land; and Examples—appropriate management 1 prohibiting the feeding of an animal species 2 prohibiting the propagation of a plant species 3 best practice in relation to management of the species a controlled native species management plan may incorporate requirements agreed to in a conservation agreement under the Environment Protection and Biodiversity Conservation Act 1999 (Cwlth) (2) If a controlled native species management plan is inconsistent with an approved code of practice, or mandatory code of practice, under the Animal Welfare Act 1992, the code of practice prevails to the extent of the inconsistency.

160 Draft controlled native species management plan— conservator to prepare The conservator may prepare a draft controlled native species management plan for a controlled native species on stated land.

161 Draft controlled native species management plan— consultation with lessee and custodian (1) In preparing a draft controlled native species management plan for a controlled native species on stated land, the conservator must consult the relevant person for the stated land if the plan requires the relevant person to do or not do something. (2) However, the conservator need not consult the relevant person in relation to something the person may do under the plan even though, if done, the thing must be done in the way stated in the plan. relevant person, for stated land, means—

162 Draft controlled native species management plan—public (1) If the conservator prepares a draft controlled native species management plan, the conservator must also prepare a notice about the draft plan (a public consultation notice).

about the draft controlled native species management plan; and (b) include the draft controlled native species management plan. controlled native species management plan—

163 Draft controlled native species management plan— revision If the public consultation period for a draft controlled native species management plan has ended, the conservator must— (b) make any revisions to the plan that the conservator considers appropriate; and (c) prepare a final version of the plan.

164 Draft controlled native species management plan— emergencies (1) This section applies if the conservator— (a) is preparing a draft controlled native species management plan for a controlled native species; and (b) considers that the situation is an emergency. (a) need not comply with the consultation requirements in section 162 (Draft controlled native species management plan— public consultation); and (b) may prepare a final version of the draft controlled native species Note The final version of a draft controlled native species management plan is a controlled native species management plan and is a disallowable instrument (see s 165).

165 Draft controlled native species management plan—final version and notification (1) The final version of a draft controlled native species management plan prepared under section 163, section 164 or section 166 is a controlled native species management plan. (2) A controlled native species management plan is a disallowable

166 Controlled native species management plan—minor amendments (a) a controlled native species management plan for a controlled native species is in force (the existing plan); and (a) may prepare a new draft controlled native species management plan for the controlled native species, incorporating the minor amendments into the existing plan; and section 162 (Draft controlled native species management plan— public consultation); and (c) may prepare a final version of the new draft controlled native species management plan, as amended. Note The final version of the new draft controlled native species management plan is a controlled native species management plan and is a disallowable instrument (see s 165).

minor amendment, of a controlled native species management plan,

167 Controlled native species management plan— conservator etc to implement (1) If a controlled native species management plan is in force for a controlled native species on stated land, the following people must take reasonable steps to implement the plan: (2) In implementing the plan, the conservator or the custodian may authorise another person to take action to implement the plan. provision in relation to different matters or different classes of matters (see Legislation Act, s 48). (3) An authorisation under subsection (2) must— (b) state— (i) the authorised person; and (ii) the authorised action; and dispersing a camp of grey-headed flying foxes

(iii) any conditions that apply to the action; and shooting of wildlife may only be done at night and in accordance with the animal welfare guidelines (iv) the period of time that the authorisation is in force.

168 Controlled native species management plan—monitoring and review (1) The conservator must monitor the effectiveness of a controlled native species management plan. (2) The conservator must review each controlled native species management plan at least once every 5 years.

Chapter 7A Cultural resource management plan

168A Meaning of cultural resource management plan cultural resource management plan— (a) means a plan about access to land and resources for cultural use; and a fisheries management plan under the Fisheries Act 2000

168B Preparation of draft cultural resource management plan (1) In preparing a draft cultural resource management plan that relates to an area of land, the conservator must— (a) develop the plan in partnership with any person who is a Ngunnawal traditional custodian; and (b) consult the United Ngunnawal Elders Council; and (c) consult the relevant person for the stated land; and (d) consider any relevant requirements under the territory plan.

Cultural resource management plan Chapter 7A relevant person, for land, means—

168C Draft cultural resource management plan—revision and (1) If the conservator has completed consultation under section 168B for a draft cultural resource management plan, the conservator must— (a) consider any submissions received during the consultation; and (2) The conservator must then submit the plan to the Minister for approval.

168D Draft cultural resource management plan—Minister to approve, return or reject (1) If the conservator submits a cultural resource management plan to the (b) return the plan to the conservator and direct the conservator to take 1 or more of the following actions in relation to it: (iii) revise the plan in a stated way; or (c) reject the plan.

(2) A cultural resource management plan approved by the Minister is a disallowable instrument. Note Minor amendments may be made to the plan under s 168F.

168E Draft cultural resource management plan—Minister’s direction to revise etc under section 168D (1) (b). (3) The Minister must decide, under section 168C, what to do with the

168F Cultural resource management plan—minor amendments (a) a cultural resource management plan is in force (the existing (a) may prepare a new draft cultural resource management plan, incorporating the minor amendments into the existing plan; and (b) need not comply with the requirements in sections 168B to 168D; and (c) may make the cultural resource management plan, as amended. (3) An amended cultural resource management plan made by the conservator is a disallowable instrument.

Cultural resource management plan Chapter 7A minor amendment, of a cultural resource management plan, means an amendment that will improve the effectiveness or technical

168G Cultural resource management plan—conservator to (1) If a cultural resource management plan is in force, the conservator must take reasonable steps to implement the plan. (2) In implementing the plan, the conservator may authorise another person to take action to implement the plan.

168H Cultural resource management plan—reporting (1) The conservator must report to the Minister about the cultural resource management plan at least once every 5 years. (2) The Minister must consider the report and may take any action the Minister considers appropriate. (3) The Minister may make the report publicly accessible not later than

168I Cultural resource management plan—review (1) The conservator must review the cultural resource management plan on request from— (a) the Human Rights Commissioner; or

(b) the Minister. (2) In conducting the review, the conservator must consult with the following in relation to any land mentioned in the plan: (a) any person who is a Ngunnawal traditional custodian; (b) a relevant person under section 168B. (3) After completing the review, the conservator— (a) must report to the Minister about the review; and (b) may provide the Minister with a recommendation regarding the (4) A recommendation must be accompanied by a report setting out any issues raised under the review. (5) If the conservator makes a recommendation to the Minister, the Minister must respond to the conservator about the recommendation.

Definitions Part 8.1

Chapter 8 Reserves—management planning

169 What is a reserve?—Act reserve— (a) means— (i) a wilderness area; and (ii) a national park; and (iii) a nature reserve; and (iv) a catchment area; and (b) includes any other area of public land that is— (i) reserved in the territory plan under the Planning Act 2023, section 385 (Reserved areas of public land); and (ii) prescribed by regulation to be a reserve; but (c) does not include an area prescribed by regulation as excluded from a reserve. catchment area means an area of public land reserved in the territory plan for the protection of water supply under the Planning Act 2023, section 385 (g). national park means an area of public land reserved in the territory plan for a national park under the Planning Act 2023, section 385 (b).

nature reserve means an area of public land reserved in the territory plan for a nature reserve under the Planning Act 2023, section 385 (c).

170 What is a wilderness area?—Act wilderness area means an area of public land reserved in the territory plan for a wilderness area under the Planning Act 2023, section 385 (a).

IUCN categories for reserves Part 8.2 Note IUCN refers to the International Union for Conservation of Nature.

171 What is an IUCN category for a reserve?—pt 8.2 IUCN category—see the Environment Protection and Biodiversity Conservation Act 1999 (Cwlth), section 346 (1) (Content of Proclamation declaring Commonwealth reserve).

172 Assignment of reserves to IUCN categories (1) The conservator may assign a reserve to an IUCN category. (2) The conservator may divide a reserve into parts (zones) and assign each zone to an IUCN category. (3) Before the conservator assigns a reserve or zone to an IUCN category, the conservator must— (a) be satisfied that the reserve or zone— (i) has the characteristics (if any) prescribed by regulation for the category; and (ii) meets the criteria (if any) prescribed by regulation for the category; and (iii) will be managed in accordance with the IUCN reserve management objectives for the category; and (b) consult the custodian of the reserve. (4) An assignment of a reserve or zone to an IUCN category is a

173 IUCN reserve management objectives A regulation may prescribe objectives for each IUCN category (the IUCN reserve management objectives).

174 Management of reserve assigned to IUCN category if no reserve management plan (a) there is no reserve management plan in force for a reserve; but (b) the reserve, or a zone of the reserve, has been assigned by the conservator to an IUCN category. (2) If the reserve has been assigned to an IUCN category, the custodian of the reserve must manage the reserve in accordance with the IUCN reserve management objectives for the IUCN category to which the reserve is assigned. (3) If a zone of the reserve has been assigned to an IUCN category, the custodian of the zone must manage the zone in accordance with the IUCN reserve management objectives for the IUCN category to which the zone is assigned. Note The land must also be managed in accordance with the management objectives for the land and any management plan for the land (see Planning Act 2023, s 386).

Note Under the Planning Act 2023, s 386 (b), each area of public land identified in the territory plan must be managed in accordance with the public land management plan for the area. If the area is a reserve, the public land management plan is a reserve management plan for the area under this part (see Planning Act 2023, s 388 (1), def public land management plan, par (a)).

175 What is a reserve management plan? reserve management plan, for a reserve— (a) means a plan for the reserve, notified under section 184 (Draft reserve management plan—Minister’s approval and notification); and (b) if the reserve includes a Ramsar wetland—includes a Ramsar wetlands management plan for the wetland. Ramsar wetland management plan, for a Ramsar wetland—see s 191.

176 What is a draft reserve management plan?—pt 8.3 draft reserve management plan, for a reserve, means a draft management plan for the reserve that— (a) identifies the reserve; and (b) describes how the planning and development management objectives for the reserve are to be implemented or promoted in the reserve; and Note Planning and development management objectives—see the

(c) for a reserve or zone that is assigned to an IUCN category— (i) is consistent with the IUCN reserve management objectives for the category; and (ii) describes how the IUCN reserve management objectives for the reserve are to be implemented or promoted in the reserve or zone. Note IUCN category, for a reserve—see s 171.

177 Draft reserve management plan—custodian to prepare (1) The custodian of a reserve must prepare a draft reserve management plan for the reserve. (2) In preparing a draft reserve management plan, the custodian must consult— (b) the territory planning authority.

179 Draft reserve management plan—public consultation (1) If the custodian of a reserve prepares a draft reserve management plan for the reserve, the custodian must also prepare a notice about the draft reserve management plan (a public consultation notice). (i) anyone may give a written submission to the custodian of the reserve about the draft reserve management plan; and

(ii) submissions may be given to the custodian only during the period starting on the day the public consultation notice is notified under the Legislation Act and ending on a stated (b) include the draft reserve management plan. (4) If the custodian of a reserve notifies a public consultation notice for a draft reserve management plan— (a) anyone may give a written submission to the custodian about the draft plan; and (b) the submission may be given to the custodian only during the (5) The custodian may make arrangements for people with particular

180 Draft reserve management plan—revision and (1) If the public consultation period for a draft reserve management plan has ended, the custodian of the reserve must— (b) make any revisions to the draft plan that the custodian considers appropriate. (2) The custodian of the reserve must then submit the draft plan to the

(3) The submission must be accompanied by a report— (a) setting out the issues raised in any submissions given to the custodian during the public consultation period for the draft plan; and (b) if the conservator or the territory planning authority made a submission during the public consultation period recommending a change to the draft plan and the custodian did not revise the draft plan to incorporate the change—explaining why the custodian did not make the recommended change.

181 Draft reserve management plan—referral to Legislative Assembly committee (1) This section applies if the custodian of a reserve submits a draft reserve management plan to the Minister for approval. (2) The Minister must, not later than 5 working days after the day the Minister receives the draft plan, refer the following to the relevant Assembly committee: (a) the draft plan; (b) the report mentioned in section 180 (3). (3) The committee must consider the draft plan and report and either— (a) recommend that the Minister approves the draft plan; or (b) make another recommendation about the draft plan. (4) The committee must tell the Minister about the recommendation and refer the matter back to the Minister.

182 Draft reserve management plan—committee to report (1) This section applies if the Minister has referred a draft plan to the relevant Assembly committee under section 181.

(2) The Minister must not take action under section 183 in relation to the draft plan until— (a) the committee has referred the draft plan back to the Minister under section 181 (4); or (b) 6 months after the day the draft plan was given to the committee. (3) If the committee has not referred the draft plan back to the Minister 6 months after the day the draft plan was given to the committee, the Minister may take action under section 183 in relation to the draft (4) After the committee refers the draft plan back to the Minister, the Minister must take action under section 183 in relation to the draft

183 Draft reserve management plan—Minister to approve, return or reject (a) a Legislative Assembly committee refers a draft plan back to the Minister under section 181 (4); or (b) the Minister may take action under section 182 (3); or (c) a custodian resubmits a draft plan to the Minister under section 185 (Draft reserve management plan—Minister’s direction to revise etc). (2) If the Legislative Assembly committee has made a recommendation about the draft plan, the Minister must consider the recommendation. (3) The Minister must, not later than the required time— (a) approve the draft plan; or (b) return the draft plan to the custodian and direct the custodian to take 1 or more of the following actions in relation to it:

(i) if the Legislative Assembly committee has made a recommendation about the draft plan—consider the recommendation; (ii) carry out stated further consultation; (iii) consider a revision suggested by the Minister; (iv) revise the draft plan in a stated way; or (c) reject the draft plan. required time means 45 working days after— (a) if subsection (1) (a) applies—the day the committee tells the Minister about the recommendation under section 181 (4); or (b) if subsection (1) (b) applies—the end of the 6-month period mentioned in section 182 (3); or (c) if subsection (1) (c) applies—the day the custodian resubmits the plan to the Minister.

184 Draft reserve management plan—Minister’s approval and (1) A draft reserve management plan approved by the Minister under section 183 (3) (a) or section 187 (3) (a) is a reserve management (2) A reserve management plan is a disallowable instrument. Note Minor amendments may be made to the plan under s 187.

185 Draft reserve management plan—Minister’s direction to revise etc (1) This section applies if the Minister gives the custodian of a reserve a direction under section 183 (3) (b).

(2) The custodian must— (3) The Minister must decide, under section 183, what to do with the

186 Draft reserve management plan—Minister’s rejection (1) If the Minister rejects a draft reserve management plan under section 183 (3) (c), the Minister must prepare a notice stating that the draft plan is rejected (a rejection notice).

187 Reserve management plan—minor amendments (a) a reserve management plan for a reserve is in force (the existing (b) the custodian considers that minor amendments to the existing (2) The custodian— (a) may prepare a new draft reserve management plan for the reserve, incorporating the minor amendments into the existing plan; and (c) may submit the new draft reserve management plan to the (3) If the custodian submits a new draft reserve management plan to the

(b) reject the plan. Note The new draft reserve management plan approved by the Minister is a reserve management plan and is a disallowable instrument (see s 184). minor amendment, of a reserve management plan for a reserve,

188 Reserve management plan—custodian to implement If a reserve management plan is in force for a reserve, the custodian of the reserve must take reasonable steps to implement the plan.

189 Reserve management plan—review (1) This section applies if a reserve management plan is in force for a reserve. (2) The custodian of the reserve must report to the Minister about the implementation of the plan at least once every 5 years. (3) The custodian of the reserve must review the plan— (a) every 10 years after the plan commences; and (b) at any other time at the Minister’s request. (4) However, the Minister may extend the time for conducting a review under subsection (3) (a).

(5) In carrying out a review, the custodian of the reserve must— (a) undertake public consultation in accordance with section 179 (Draft reserve management plan—public consultation) as if a reference to a draft reserve management plan were a reference to the reserve management plan under review; and (b) consider any submissions received during the public consultation period.

Part 8.4 Ramsar wetlands management Note Ramsar wetlands are wetlands of international importance.

190 What is a Ramsar wetland? Ramsar wetland means a declared Ramsar wetland. declared Ramsar wetland—see the Environment Protection and Biodiversity Conservation Act 1999 (Cwlth), section 17 (What is a declared Ramsar wetland?).

191 What is a Ramsar wetland management plan? Ramsar wetland management plan, for a Ramsar wetland, means a plan for the wetland notified under section 198 (Draft Ramsar wetland management plan—Minister’s approval and notification).

192 What is a draft Ramsar wetland management plan?—pt 8.4 (1) In this part: draft Ramsar wetland management plan, for a Ramsar wetland— (a) means a draft plan detailing how the Ramsar wetland, and its surrounding area, is to be managed to preserve and protect the ecological character of the Ramsar wetland; and Note Power to make a statutory instrument includes power to make different provision in relation to different matters or different classes of matters, and to make an instrument that applies differently by reference to stated exceptions or factors (see

ecological character—see the Environment Protection and Biodiversity Conservation Act 1999 (Cwlth), section 16 (3) (Requirement for approval of activities with a significant impact on a declared Ramsar wetland).

193 Draft Ramsar wetland management plan—conservator to The conservator may prepare a draft Ramsar wetland management plan for a Ramsar wetland.

194 Draft Ramsar wetland management plan—consultation with Commonwealth and custodian In preparing a draft Ramsar wetland management plan, the conservator must consult— (a) the Commonwealth Minister responsible for administering the Environment Protection and Biodiversity Conservation Act 1999 (Cwlth); and (b) if the Ramsar wetland is located on unleased land or public land—the custodian of each area of land where the wetland is located.

195 Draft Ramsar wetland management plan—public (1) If the conservator prepares a draft Ramsar wetland management plan, the conservator must also prepare a notice about the draft Ramsar wetland management plan (a public consultation notice). about the draft Ramsar wetland management plan; and (b) include the draft Ramsar wetland management plan. Ramsar wetland management plan—

196 Draft Ramsar wetland management plan—revision and (1) If the public consultation period for a draft Ramsar wetland management plan has ended, the conservator must— (2) The conservator must then submit the draft plan to the Minister for approval. (3) The submission must be accompanied by a report setting out the public consultation period for the draft plan.

197 Draft Ramsar wetland management plan—Minister to approve, return or reject If the conservator submits a draft Ramsar wetland management plan to the Minister for approval, the Minister must, not later than 45 days after receiving the submission— (a) approve the draft plan; or (b) return the draft plan to the conservator and direct the conservator to take 1 or more of the following actions in relation to it: (iii) revise the draft plan in a stated way; or (c) reject the draft plan.

198 Draft Ramsar wetland management plan—Minister’s approval and notification (1) A draft Ramsar wetland management plan approved by the Minister under section 197 (a) or section 201 (3) is a Ramsar wetland (2) A Ramsar wetland management plan is a disallowable instrument. Note Minor amendments may be made to the Ramsar wetland management plan under s 201.

199 Draft Ramsar wetland management plan—Minister’s direction to revise etc under section 197 (b). (3) The Minister must decide, under section 197, what to do with the

200 Draft Ramsar wetland management plan—Minister’s rejection (1) If the Minister rejects a draft nature conservation Ramsar wetland management plan under section 197 (c), the Minister must prepare a notice stating that the draft plan is rejected (a rejection notice).

201 Ramsar wetland management plan—minor amendments (a) a Ramsar wetland management plan for a Ramsar wetland is in force (the existing plan); and

(a) may prepare a new draft Ramsar wetland management plan for the wetland, incorporating the minor amendments into the (c) may submit the new draft Ramsar wetland management plan to the Minister for approval. (3) If the conservator submits a new draft Ramsar wetland management plan to the Minister for approval, the Minister must— (b) reject the plan. Note The new draft Ramsar wetland management plan approved by the Minister is a Ramsar wetland management plan and is a disallowable instrument (see s 198). minor amendment, of a Ramsar wetland management plan, means an amendment that will improve the effectiveness or technical efficiency of the plan without changing the substance of the plan.

202 Ramsar wetland management plan—conservator etc to If a Ramsar wetland management plan is in force for a Ramsar wetland, the following people must take reasonable steps to implement the plan: (b) if the Ramsar wetland is located on unleased land or public land—the custodian of each area of land where the wetland is located.

203 Ramsar wetland management plan—monitoring and review (1) The conservator must monitor the effectiveness of a Ramsar wetland (2) The conservator must report to the Minister about each Ramsar wetland management plan at least once every 7 years.

Part 8.5 Access to biological resources in reserves

204 What are biological resources?—pt 8.5 biological resources includes— (a) genetic resources; and (b) organisms or parts of organisms; and (c) populations of species or ecological communities; and (d) any other biotic component of an ecosystem with actual or potential use or value for humanity.

205 What are genetic resources?—pt 8.5 genetic resources means— (a) any material of plant, animal, microbial or other origin that contains functional units of heredity; and (b) has actual or potential value for humanity.

206 Who is an access provider?—pt 8.5 access provider, for biological resources in a reserve means— (a) the Territory; and (b) if native title exists in relation to the reserve—the native title holders for the reserve.

207 What is accessing biological resources?—pt 8.5 (1) In this part: accessing biological resources— (a) means taking biological resources of native species for research and development on any genetic resources, or biochemical compounds, comprising or contained in the biological resources; but 1 collecting living material for taxonomic research 2 analysing and sampling stored material for potential commercial product development (b) does not include the following activities: (i) Aboriginal or Torres Strait Islander people taking biological resources— (A) for a purpose other than a purpose mentioned in paragraph (a); and (B) in the exercise of their native title rights and interests; (ii) accessing human remains; (iii) taking biological resources that have been cultivated or tended for a purpose other than a purpose mentioned in paragraph (a); (iv) taking public resources for a purpose other than a purpose mentioned in paragraph (a); (v) taking a biological resource that is a genetically modified organism; (vi) accessing biological resources mentioned in a declaration under section 208.

(2) A person is taken to have access to biological resources if there is a reasonable prospect that biological resources taken by the person will be subject to research and development on any genetic resources, or biochemical compounds, comprising or contained in the biological resources. genetically modified organism—see the Gene Technology Act 2003, taking public resources includes the following activities: (a) fishing for commerce or recreation; (b) collecting broodstock for aquaculture; (c) harvesting wildflowers; (d) taking wild animals or plants for food; (e) collecting peat or firewood; (f) taking essential oils from wild plants; (g) collecting plant reproductive material for propagation; (h) commercial forestry.

208 Application—certain biological resources (1) The conservator may declare that this part does not apply to stated biological resources or a stated collection of biological resources (including future additions to the collection) if— (a) the resources are held as specimens away from their natural environment by the Territory or a territory authority and the conservator has reasonable grounds to believe that access to the resources is in a way that is consistent with this part; or

(b) the conservator has reasonable grounds to believe that— (i) access to the resources is under a law in force in the Territory; or (ii) access to the resources is under a law (other than a Commonwealth law) in force in a State and, if the declaration is made, access to the resources would be in a way that is consistent with this part; or (c) use of the resources is required to be controlled under any international agreement to which Australia is a party. Example—international agreement to which Australia is a party the International Treaty on Plant Genetic Resources for Food and Agriculture Note State includes the Northern Territory (see Legislation Act, dict, pt 1). (2) A person may ask the conservator to make a declaration. (3) A declaration may be subject to conditions. (4) A declaration is a notifiable instrument.

209 Offence—access biological resources (a) the person accesses biological resources; and (b) the biological resources are in a reserve. (3) This section does not apply to a person if— (a) the person holds a nature conservation licence authorising the access to the biological resources; or

(b) the person is an access provider for the biological resources.

210 Benefit-sharing agreement—licensee required to enter (1) An applicant for a nature conservation licence to access biological resources for commercial purposes in a reserve must enter into a benefit-sharing agreement with each access provider for the resources to enable the fair and equitable sharing of benefits derived from the use of the resources. Note The conservator may make a model benefit-sharing agreement as a guide (see s 211 (2)). (2) The conservator may, on behalf of the Territory as an access provider, enter into the benefit-sharing agreement. (3) A benefit-sharing agreement takes effect only if a nature conservation licence for the proposed access is issued under chapter 11 (Nature conservation licences).

211 Benefit-sharing agreement—provisions (1) A benefit-sharing agreement must provide for reasonable benefit-sharing arrangements, including protection for, recognition of and valuing of any Aboriginal or Torres Strait Islander people’s knowledge to be used. (2) The conservator may make a model benefit-sharing agreement as a guide for applicants. (3) A model benefit-sharing agreement is a notifiable instrument.

212 Benefit-sharing agreement—informed consent (1) The conservator must not enter into a benefit-sharing agreement on behalf of the Territory concerning access to biological resources for which a native title holder is an access provider unless the conservator is satisfied on reasonable grounds that the access provider has given informed consent to the benefit-sharing agreement. (2) In considering whether an access provider has given informed consent to a benefit-sharing agreement, the conservator must consider the following matters: (a) whether the access provider had adequate knowledge of this part and was able to engage in reasonable negotiations with the applicant for the nature conservation licence about the benefit-sharing agreement; (b) whether the access provider was given adequate time— (i) to consider the application for the nature conservation licence (including time to consult relevant people); and (ii) to negotiate the benefit-sharing agreement; (c) whether the views of any representative Aboriginal body or any other body performing the functions of a representative body for the reserve have been sought; (d) whether the access provider has received independent legal advice about the application and the requirements of this part.

213 Offence—entry fee for reserve not paid (a) the Minister has determined an entry fee under section 368 in relation to the person’s entry to a reserve; and (b) the person enters, or remains in, the reserve; and (c) the entry fee is not paid.

214 Offence—take or allow non-native animal into reserve (a) the person— (i) takes an animal that is not a native animal into a reserve; or (ii) allows an animal that is not a native animal to enter, or remain in, a reserve; and (b) the person is the animal’s keeper.

(3) This section does not apply if— (a) the person only travels through the reserve by road in a motor vehicle with the animal; and (b) the animal is confined in the motor vehicle while in the reserve. Note 1 The chapter 9 exceptions are set out in s 252. Note 2 A person does not commit an offence only because the person is accompanied by an assistance animal and takes, or allows, the animal into any part of a reserve that is a public place or public premises (see Domestic Animals Act 2000, s 106C).

215 Offence—feed animal in reserve (a) feeds an animal; and (b) the animal is in a reserve. (3) This section does not apply if— (a) the animal is allowed to enter, or remain in, the reserve under this Act or another law applying in the ACT; and (b) the person is the animal’s keeper or is allowed by the keeper to feed the animal.

feed, an animal, includes make food available to the animal.

216 Offence—interfere with trap or bait in reserve (a) interferes with a trap or bait; and (b) the trap or bait is in a reserve.

217 Offence—weapons and traps in reserve (1) A person commits an offence if the person possesses or uses, in a reserve— (a) a firearm; or (b) a spear, spear gun, bow or arrow; or (c) a trap, net, snare or other device designed, or capable of being used, to take or capture an animal; or (d) a substance that is capable of being used to take or capture an animal.

(3) Subsection (1) does not apply to a person only because— (a) the person possesses or uses a landing net; and (b) the possession or use is for landing a fish that is already hooked. firearm—see the Firearms Act 1996, section 6. landing net means a net consisting of a hoop or ring that is attached to netting or other soft material and which is to be used for the purpose of landing a fish that is already hooked.

218 Offence—damage native plant in reserve (b) the conduct causes damage to a plant; and (c) the plant is— (ii) in a reserve.

219 Offence—take plant or plant reproductive material into reserve (a) the person takes a plant into a reserve; and (b) the plant is a declared pest. (2) A person commits an offence if the person— (a) takes plant reproductive material into a reserve; and (b) leaves the plant reproductive material in the reserve.

220 Offence—planting a plant in a reserve (1) A person commits an offence if the person plants a plant in a reserve.

221 Offence—remove soil or stone from reserve (1) A person commits an offence if the person removes soil or stone from a reserve.

222 Offence—damage, destroy or remove things in reserve (a) the person damages or destroys— (i) a natural or constructed structure or feature; or (ii) infrastructure; and (b) the structure, feature or infrastructure is in a reserve. Note If a person damages territory property in a reserve, the director-general may direct the person to repair the damage. Failure to comply with the direction is an offence (see Public Unleased Land Act 2013, s 21 and s 22). (a) the person damages or destroys a site or object; and (b) the site or object is— (i) of historical, archaeological, palaeontological or geological interest; and

(ii) in a reserve. (3) A person commits an offence if the person removes infrastructure from a reserve. (4) A person commits an offence if— (a) the person removes an object from a reserve; and (b) the object is of historical, archaeological, palaeontological or geological interest. (5) An offence against this section is a strict liability offence. (6) A person has the benefit of the chapter 9 exceptions for an offence infrastructure, in a reserve means the buildings, roads, items and equipment associated with managing the reserve. Examples—infrastructure in a reserve roads, fences, gates, signs, taps, garbage bins, toilets, visitors centre

Part 9.2 Reserves—offences in wilderness areas

223 Offence—make road in wilderness area (a) makes a track or road; and (b) the track or road is in a wilderness area.

224 Offence—use motor vehicle off road in wilderness area (a) the person uses a motor vehicle in a wilderness area; and (b) the motor vehicle is used outside a track or road that— (i) is designed to be used by vehicles with 4 or more wheels; and (ii) was in existence when the wilderness area was reserved in the territory plan.

225 Offence—excavate in wilderness area without licence (1) A person commits an offence if the person excavates in a wilderness area.

Reserves—offences in wilderness areas Part 9.2 (3) This section does not apply to a person if the person holds a nature conservation licence authorising the excavation. Note 1 Nature conservation licence—see s 262.

226 Direction to restore excavation site (a) excavates in a wilderness area; and (b) when the excavation is finished, fails to restore the excavation site and its surroundings as far as possible to their former state. (2) The conservator may direct the person to restore the site and surroundings as far as possible to their former state (a restore excavation direction). (3) A restore excavation direction must be in writing and state— (a) the wilderness area; and (b) the excavation site and surroundings; and (c) the former state of the site and surroundings; and (d) when the direction must be complied with, being a day at least 1 month after the direction is given to the person.

227 Offence—fail to comply with restore excavation direction (a) is subject to a restore excavation direction; and

(3) This section does not apply to a person if the person takes reasonable steps to restore the excavation site and its surroundings as far as possible to their former state.

228 Restoration of excavation site by Territory (a) is subject to a restore excavation direction; and (a) restore the site and surroundings; and (b) recover from the person the reasonable costs of restoring the site and surroundings.

Reserves—repairing damage Part 9.3

229 Directions to repair damage to reserve (a) a person causes damage to— (i) a reserve; or (ii) Territory property on a reserve; and • fence • visitor facilities (b) the damage is not authorised under a nature conservation (2) The conservator may direct the person to repair the damage (a repair damage direction). (3) A repair damage direction must be in writing and state— (a) the reserve and Territory property (if any); and (b) the damage to be repaired; and (c) when the direction must be complied with, being a day at least 1 month after the direction is given to the person.

230 Offence—fail to comply with repair damage direction (a) is subject to a repair damage direction; and

(3) This section does not apply to a person if the person takes reasonable steps to repair the damage.

231 Repair of damage by Territory (a) is subject to a repair damage direction; and (b) recover from the person the reasonable costs of repairing the

Part 9.4 Reserves—offences about clearing native vegetation

232 What is native vegetation?—pt 9.4 native vegetation, for an area, means any of the following kinds of vegetation indigenous to the area: (a) trees; (b) understorey plants; (c) groundcover consisting of any kind of grass or herbaceous vegetation; (d) plants occurring in a wetland or stream in the area.

233 What is a native vegetation area?—pt 9.4 native vegetation area, means an area where— (a) either— (i) 10% or more of the area is covered with vegetation (whether dead or alive); and (ii) no more than 60% of the ground layer vegetation cover is exotic annual (at any time of year); and (iii) more than 50% of the perennial ground layer vegetation cover is native vegetation; or (b) trees or shrubs indigenous to the area have a canopy cover of 10% or more in any stratum over the area.

234 What is clearing native vegetation?—pt 9.4 clearing native vegetation includes— (a) cutting down, felling, thinning, logging or removing native vegetation; and (b) burning native vegetation; and (c) doing anything else that kills, or is likely to kill, native vegetation.

235 When does clearing native vegetation cause serious harm or material harm to a reserve?—pt 9.4 cause, serious harm or material harm, means substantially contribute directly or indirectly to the harm. material harm—clearing native vegetation in a reserve causes material harm to the reserve if— (a) it happens in a wetland, other than a Ramsar wetland, in the (b) the total area cleared of native vegetation is more than 0.2ha but not more than 2ha; or (c) the cost of action needed to restore native vegetation to the area cleared is within the range of $5 000 to $50 000. serious harm—clearing native vegetation in a reserve causes serious harm to the reserve if— (a) it causes the loss of, or the loss of part of— (i) a critically endangered ecological community in the

(ii) an endangered ecological community in the reserve; or (iii) a vulnerable ecological community in the reserve; or Note Critically endangered, endangered and vulnerable ecological communities are threatened ecological communities—see s 69. (b) it causes a substantial loss of habitat of native plants or native animals in the reserve; or (c) it happens in a Ramsar wetland in the reserve; or (d) the total area cleared of native vegetation in the reserve is more than 2ha; or (e) the cost of action needed to restore native vegetation to the area cleared in the reserve is more than $50 000.

236 Offence—clear vegetation causing serious harm and Maximum penalty: 2 500 penalty units, imprisonment for 7 years or

and Maximum penalty: 2 000 penalty units, imprisonment for 5 years or and Maximum penalty: 1 500 penalty units, imprisonment for 3 years or

237 Offence—clear vegetation causing material harm and Maximum penalty: 1 500 penalty units, imprisonment for 5 years or and Maximum penalty: 1 000 penalty units, imprisonment for 2 years or

and Maximum penalty: 750 penalty units, imprisonment for 1 year or

238 Offence—clear vegetation and (b) the native vegetation area is in a reserve.

the defendant proves that the defendant took all reasonable steps to avoid committing the offence. Note The defendant has a legal burden in relation to the matters mentioned in s (4) (see Criminal Code, s 59).

239 Defence of appropriate diligence for offences—pt 9.4 It is a defence to a prosecution for an offence against this part if the defendant proves that the defendant took all reasonable precautions and exercised all appropriate diligence to prevent the commission of

240 Alternative verdicts for offences—pt 9.4 (1) This section applies if, in a prosecution for a relevant offence, the trier of fact— (a) is not satisfied beyond reasonable doubt that the defendant is guilty of the relevant offence; but (b) is satisfied beyond reasonable doubt that the defendant is guilty of an alternative offence. (2) The trier of fact may find the defendant guilty of the alternative offence, but only if the defendant has been given procedural fairness in relation to that finding of guilt. alternative offence, for a relevant offence, means an offence mentioned in table 240, column 3, for the offence. relevant offence means an offence mentioned in table 240, column 2.

Table 240 Alternative verdicts for offences—pt 9.4 item 1 s 236 (1) (knowingly clear vegetation—serious harm) s 236 (2) (recklessly clear vegetation—serious s 236 (3) (negligently clear vegetation—serious 2 s 236 (2) (recklessly clear vegetation—serious harm) s 236 (3) (negligently clear vegetation—serious 3 s 237 (1) (knowingly clear vegetation—material harm) s 237 (2) (recklessly clear vegetation—material s 237 (3) (negligently clear vegetation—material 4 s 237 (2) (recklessly clear vegetation—material harm) s 237 (3) (negligently clear vegetation—material

241 Order to restore cleared vegetation etc (2) The court may order the person to— (a) take any action the court considers appropriate, including action to— (i) mitigate the effect of the clearing; or (ii) restore native vegetation in the area cleared; or (b) pay an amount to the Territory for reasonable costs incurred, or to be incurred, by the Territory in taking action— (i) mentioned in paragraph (a); or (ii) to monitor the outcome of action ordered under paragraph (a).

(3) The court may also order the person to provide security for the performance of any obligation under the order. (4) The court may take action under this section—

242 Order to publicise conviction or finding of guilt—pt 9.4 (2) The court may order the person to take stated action to publicise— (a) the conviction or finding of guilt; and (b) the environmental and other consequences of the offence; and (c) any order made by the court under section 241 (2) (a); and (d) any action taken by the person— (i) to mitigate the effect of the clearing; or (ii) to restore native vegetation in the area cleared. (3) The court may take action under this section—

Part 9.5 Reserves—offences about damaging land

243 What is damage to land?—pt 9.5 damage, to land, includes the destruction on the land, or removal from the land, of any of the following: (a) clay; (b) gravel; (c) rock; (d) sand; (e) soil; (f) stone. Examples—damage to land • crushing rocks • contaminating soil • heaping rocks, stones, gravel, sand, clay or soil • altering the soil profile