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Contents (1995 - 101)
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Threatened Species Conservation Act 1995 No 101
Repealed version for 18 August 2017 to 24 August 2017 (accessed 24 September 2017 at 00:42)
Part 7
Part 7 Other conservation measures
Introductory note.
 This Part deals with certain other measures that may be taken to conserve threatened species, populations and ecological communities, and their habitats. These involve the making of stop work orders by the Chief Executive or the making of joint management agreements between the Chief Executive and other public authorities to manage or regulate actions on land that may jeopardise the survival of threatened species, populations or ecological communities, or their habitats.
Measures available under the National Parks and Wildlife Act 1974, involving the making of interim protection orders by the Minister or the entering into of conservation agreements by the Minister with land owners, may also be employed for the conservation of threatened species, populations or ecological communities, or their habitats.
Division 1 deals with the making of stop work orders by the Chief Executive, appeals, consultations about modification of detrimental action and recommendations for the making of interim protection orders under the National Parks and Wildlife Act 1974.
Division 2 deals with the preparation, contents and publication of joint management agreements, and provides for review of joint management agreements, and the performance of parties to them, by the Scientific Committee.
Division 1 Stop work orders
114   Chief Executive may make stop work order
(1)  If the Chief Executive is of the opinion that any action is being, or is about to be, carried out that is likely to result in one or more of the following:
(a)  harm to a threatened species, population or ecological community (so far as animals are concerned),
(b)  picking of a threatened species, population or ecological community (so far as plants are concerned),
(c)  damage to critical habitat,
(d)  damage to habitats of threatened species, populations or ecological communities,
the Chief Executive may order that the action is to cease and that no action, other than such action as may be specified in the order, is to be carried out in or in the vicinity of the critical habitat or the habitat of the threatened species, population or ecological community within a period of 40 days after the date of the order.
(2)  An order takes effect on and from the date on which:
(a)  a copy of the order is affixed in a conspicuous place in the critical habitat or other habitat the subject of the order, or
(b)  the person performing or about to perform the action is notified that the order has been made,
whichever is the sooner.
(3)  This section does not apply in relation to anything authorised to be done by or under:
(a)  a licence granted under this Act or the National Parks and Wildlife Act 1974, or
(b)  the State Emergency and Rescue Management Act 1989 that is reasonably necessary in order to avoid a threat to life or property.
(3A)  This section does not apply in relation to any thing authorised to be done by or under the Rural Fires Act 1997 in relation to any emergency fire fighting act within the meaning of that Act.
(4)  This section does not apply in relation to anything that is essential for the carrying out of:
(a)  development in accordance with a development consent within the meaning of the Planning Act, or
(a1)  clearing of native vegetation as authorised by a property vegetation plan approved under the Native Vegetation Act 2003, being clearing that had the benefit of biodiversity certification of the native vegetation reform package under Division 4 of Part 7 when the plan was approved, or
(a2)  State significant infrastructure approved under Part 5.1 of the Planning Act, or
(b)  an activity, whether by a determining authority or pursuant to an approval of a determining authority within the meaning of Part 5 of that Act if the determining authority has complied with that Part.
(5)  In this Division, a reference to action being, or about to be, carried out includes a reference to action that should be, but is not being, carried out and the Chief Executive may make an order, in accordance with this Division, that any such action is to be carried out.
(6)  A person must not contravene an order under this section.
Maximum penalty (subsection (6)):
(a)  in the case of a corporation—10,000 penalty units and, in the case of a continuing offence, a further penalty of 1,000 penalty units for each day the offence continues, or
(b)  in the case of an individual—1,000 penalty units and, in the case of a continuing offence, a further penalty of 100 penalty units for each day the offence continues.
Note.
 An offence against subsection (6) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 152.
115   Prior notification of making of stop work order not required
The Chief Executive is not required, before making an order under this Division, to notify any person who may be affected by the order.
116   Appeal to Minister
(1)  A person against whom an order is made under this Division may appeal to the Minister against the making of the order.
(2)  After hearing an appeal, the Minister may:
(a)  confirm the order, or
(b)  modify or rescind the order, but only if this is consistent with the principles of ecologically sustainable development.
117   Extension of stop work order
The Chief Executive may extend an order under this Division for such further period or periods of 40 days as the Chief Executive thinks fit.
118   Consultation about modification of proposed detrimental action
(1)  After making an order under this Division, the Chief Executive must immediately consult with the person proposing to perform the action to determine whether any modification of the action may be sufficient to protect the threatened species, populations or ecological communities, critical habitat or other habitat concerned.
(2)  The Chief Executive may, for the purposes of making such determination and considering whether the adoption of any other steps, such as the grant of a licence under Part 6, may be appropriate, request the person proposing to perform the action to provide the information referred to in section 92 (3).
(3)  After considering any information provided under subsection (2) in accordance with the requirements of section 94, the Chief Executive may, if appropriate and if the person concerned wishes to apply for a licence under Part 6, request the person to provide an application for a licence and a species impact statement for determination under that Part.
119   Recommendation for making of interim protection order
(1)  The Chief Executive must recommend to the Minister the making of an interim protection order under Part 6A of the National Parks and Wildlife Act 1974 if, after consulting with the person proposing to perform the action, the Chief Executive is of the opinion that satisfactory arrangements cannot be made to protect the threatened species, populations or ecological communities, critical habitat or other habitat that is the subject of an order under this Division.
(2)  The Chief Executive must not recommend the making of an interim protection order in relation to anything that is authorised to be done by or under an authority referred to in section 114 (3) or that is essential for a purpose referred to in section 114 (4).
120   Stop work order prevails over other instruments
(1)  An approval, notice, order or other instrument made or issued by or under any other Act or law that requires or permits critical habitat, the subject of an order in force under this Division, to be significantly affected is inoperative to the extent of any inconsistency with the order under this Division.
(2)  This section has effect whether the approval, notice, order or other instrument concerned was made or issued before or after the making of the order under this Division.
Division 2 Joint management agreements
121   Joint management agreements
The Chief Executive may enter into a joint management agreement with one or more public authorities for the management, control, regulation or restriction of an action that is jeopardising the survival of a threatened species, population or ecological community.
Note.
 It is a defence to certain offences under the National Parks and Wildlife Act 1974 if the act constituting the offence was authorised by and done in accordance with a joint management agreement.
122   Role of Scientific Committee
(1)  Before a joint management agreement is entered into, the Scientific Committee must review the draft joint management agreement and provide the Chief Executive with comments on the review by the date specified for the making of public submissions on the draft agreement.
(2)  The Scientific Committee must also:
(a)  conduct an annual review of the performance of all parties to a joint management agreement, and
(b)  advise the Chief Executive of any deficiencies in implementation of any joint management agreement by any party to it.
(3)  The Chief Executive is to incorporate the Scientific Committee’s advice on the annual review of joint management agreements in the Chief Executive’s annual report to Parliament under the National Parks and Wildlife Act 1974.
123   Contents of joint management agreements
(1)  A joint management agreement is to contain terms, binding on all parties, that:
(a)  identify the threatened species, population or ecological community to which the agreement applies, and
(b)  identify the action that it manages, controls, regulates or restricts, and
(c)  state its objective (for example, maintenance of a habitat in a state that will contribute to the long-term survival of the species, population or ecological community), and
(d)  state the way in which the objective is to be achieved, and
(e)  specify the measures by which progress towards achieving the objective is to be assessed, and
(f)  identify the parties who are responsible for the implementation of those measures.
(2)  A joint management agreement entered into with a council or a consent authority (within the meaning of the Planning Act) is void to the extent to which it fetters any discretion of the council or consent authority in the granting or refusal of a consent or approval under the Planning Act or the Local Government Act 1993.
124   Publication of draft joint management agreement
(1)  As soon as practicable after preparing a draft joint management agreement, the Chief Executive must:
(a)  give a copy of the draft joint management agreement to the Scientific Committee for review, and
(b)  publish notice of the preparation of the draft joint management agreement in a newspaper circulating generally throughout the State and in a newspaper circulating generally in the area or areas likely to be affected by the agreement, and
(c)  publish notice of the preparation of the draft agreement in the Gazette.
(2)  The notice must:
(a)  state that the draft joint management agreement has been prepared, and
(b)  specify the address of the place at which copies of the draft joint management agreement may be inspected, and
(c)  invite persons to make written submissions to the Chief Executive about the draft joint management agreement, and
(d)  specify the address of the place to which submissions about the draft joint management agreement may be forwarded and the date by which submissions must be made.
125   Consideration of submissions by Chief Executive
(1)  The Chief Executive must consider all written submissions received by the Chief Executive on or before the date specified in the notice.
(2)  The Chief Executive may, with the consent of the other parties to the agreement, amend the draft joint management agreement to take into account any of those submissions and any comments made by the Scientific Committee about the draft agreement.
126   Amendment of joint management agreement
A joint management agreement may only be amended by a joint management agreement.
Division 3 Conservation agreements
126A   Conservation agreements
(1)  A conservation agreement relating to land that is entered into under the National Parks and Wildlife Act 1974 for the purpose of the conservation of critical habitat or the conservation of threatened species, populations or ecological communities, or their habitats, may make provision for assistance in connection with the following:
(a)  maintaining and promoting sustainable farming practices and achieving the objects of this Act,
(b)  implementing the requirements of a recovery plan that relates to the land (if appropriate),
(c)  ensuring the continued and appropriate agricultural use of the land by the owner of the land.
(2)  This section does not limit section 69C of the National Parks and Wildlife Act 1974.
Division 4 Biodiversity certification of native vegetation reform package
126B   Native vegetation reform package
For the purposes of this Division, the native vegetation reform package is the package of reforms comprising the following:
(a)  the Native Vegetation Act 2003 and the regulations under that Act,
(b)  State-wide standards and targets for natural resource management issues recommended under the Natural Resources Commission Act 2003 and adopted by the Government,
(c)  local strategic plans under the Local Land Services Act 2013,
(d)  protocols and guidelines adopted or made under the regulations under the Native Vegetation Act 2003 and the Natural Resources Commission Act 2003.
126C   Biodiversity certification of native vegetation reform package
(1)  The Minister may by order published in the Gazette confer biodiversity certification on the native vegetation reform package for the purposes of this Act.
(2)  The Minister may confer biodiversity certification even if the native vegetation reform package does not comprise all the elements of the package.
(3)  The Minister may, by order published in the Gazette, suspend biodiversity certification of the native vegetation reform package if the composition of the package changes after its certification (for instance by any amendment of the Native Vegetation Act 2003 or regulations under that Act, or by the approval or amendment of a State-wide standard or target or of a local strategic plan under the Local Land Services Act 2013). The Minister may by order published in the Gazette lift any suspension under this subsection.
(4)  The Minister may, in an order conferring biodiversity certification or in another order published in the Gazette, exclude from the certification of the native vegetation reform package any specified class of activity.
(5)  In deciding on any action under this section, the Minister is to have regard to the likely impact of the native vegetation reform package (or any relevant aspect of its operation) on the achievement of the objects of this Act.
Editorial note.
 For orders under this section, see Gazettes No 142 of 25.11.2005, p 9809; No 97 of 1.8.2007, p 5338 and No 141 of 25.10.2013, p 4605.
126D   Effect of biodiversity certification
While biodiversity certification of the native vegetation reform package is in force, any activity on land within a region (within the meaning of the Local Land Services Act 2013) has the benefit of that biodiversity certification (except any activity excluded from certification under section 126C (4)).
Note.
 Biodiversity certification has the following effects:
(a)  the clearing of native vegetation as authorised by a property vegetation plan that is approved while the clearing has the benefit of biodiversity certification is a defence to a prosecution for certain offences under Part 8A of the NPW Act, and
(b)  development consent to clearing of native vegetation that has the benefit of biodiversity certification does not require the preparation of a species impact statement or consultation between Ministers. (See section 14 (4) of the Native Vegetation Act 2003.)
126E   Suspension of certification in connection with implementation of package
(1)  The Minister may by order published in the Gazette suspend biodiversity certification of the native vegetation reform package in its application to a particular region (within the meaning of the Local Land Services Act 2013) if the Minister is of the opinion that Local Land Services:
(a)  has failed to properly exercise its functions under the native vegetation reform package, or
(b)  has otherwise failed to exercise its functions in a manner that promotes the conservation of threatened species, populations and ecological communities.
(2)  During the suspension of biodiversity certification of the native vegetation reform package in its application to a particular region (within the meaning of the Local Land Services Act 2013), land within that region does not have the benefit of the biodiversity certification of the native vegetation reform package.
(3)  The Minister is only entitled to form an opinion for the purposes of this section:
(a)  based on the outcomes of any audit undertaken by the NRC, or
(b)  based on the results of an investigation conducted by the Chief Executive, or
(c)  in such other circumstances as may be prescribed by the regulations.
126F   Notification of certification, variation or suspension
(1)  Notice of the grant of biodiversity certification under this Division or of any suspension of that certification under this Division is to be given within 14 days:
(a)  to the Secretary of the Department of Planning and Environment, and
(b)  on the website of the Office.
(2)  The Minister is to keep a register containing copies of each notice of the grant of biodiversity certification under this Division and of any suspension or revocation of that certification.
(3)  The register is to be open for public inspection, without charge, during ordinary business hours, and copies of or extracts from the register are to be made available to the public on request, on payment of the fee fixed by the Minister.
Division 5
  (Repealed)