Threatened Species Protection Act 1995

Threatened Species Protection Act 1995

An Act to provide for the protection and management of threatened native flora and fauna and to enable and promote the conservation of native flora and fauna

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART 1 - Preliminary

1.   Short title

This Act may be cited as the Threatened Species Protection Act 1995 .

2.   Commencement

This Act commences on the day on which it receives the Royal Assent.

3.   Interpretation

(1)  In this Act, unless the contrary intention appears –

authorised officer means a ranger appointed under section 8 of the National Parks and Wildlife Act 1970 ;

business day means a day that is not –

(a) a Saturday or a Sunday; or

(b) a public holiday or bank holiday in the place concerned;

compensation means a payment of compensation made by the Minister to a landholder under Part 5 ;

contravene includes fail to comply with;

CRC means the Community Review Committee established under section 9 ;

critical habitat means an area of land defined on a map under section 23 which the Director determines as a critical habitat of a listed taxon of flora or fauna;

Crown land means land that is vested in the Crown and is not contracted to be granted in fee simple and includes land granted in fee simple that has revested in the Crown by way of purchase or otherwise;

Director means the person holding office as Director of National Parks and Wildlife;

fauna includes any taxon of fauna, whether vertebrate or invertebrate, in any stage of biological development and includes eggs and any part of any such taxon;

flora includes any taxon of plant, whether vascular or non-vascular, in any stage of biological development and any part of any such taxon;

function includes duty;

habitat means the area, locality, site or particular type of environment occupied by any taxon of flora or fauna or any part of any such area, locality, site or type of environment;

interim protection order means an interim protection order made under section 32 ;

keep means to have charge or possession of any flora or fauna;

land includes land covered by the sea or other waters and any part of the sea or waters covering that land;

land management agreement means an agreement made and in force under section 30 for any purpose arising from a land management plan;

land management plan means a land management plan made and in force under section 29 ;

landholder means –

(a) the person who is registered as proprietor of an estate in fee simple in land under the Land Titles Act 1980 ; or

(b) the owner of the fee or equity of redemption in land that has been alienated from the Crown and is not subject to the Land Titles Act 1980 ; or

(c) the occupier of Crown land which he or she occupies under a lease, licence or other right; or

(d) in the case of Crown land that is managed or controlled by a public authority, the public authority or the Minister who manages or controls the land –

and includes a person who, whether alone or with others, is in occupation or possession, or has the management or control, of any land and also includes the agent of any such person;

listed taxon means a taxon of flora or fauna that is listed in Schedule 3 , 4 or 5 ;

native flora and fauna means flora and fauna naturally occurring in Tasmania and includes migrants, vagrants and hybrids;

permit means a permit in force under this Act;

private land means any land that is not Crown land;

public authority means –

(a) any council; or

(b) any other body corporate established by an enactment having jurisdiction limited to a district, locality or part of Tasmania; or

(c) any body corporate established under an enactment or in the exercise of the prerogative rights of the Crown to administer or control any department, business, undertaking or public institution on behalf of Tasmania;

public authority management agreement means an agreement made under section 31 ;

public notification means publication in the Gazette and in each newspaper circulating generally in Tasmania;

recovery plan means a recovery plan made under section 25 for any species of flora or fauna which is under threat of extinction;

SAC means the Scientific Advisory Committee established under section 8 ;

species means a population or group of individual flora or fauna which interbreed to produce fertile offspring or which possess common characteristics derived from a common gene pool;

survival means the continued existence of viable populations of a taxon in the wild;

take includes kill, injure, catch, damage, destroy and collect;

taxon means a taxonomic group of any rank into which organisms are categorised;

threat abatement plan means a threat abatement plan made and in force under section 27 ;

threatened species means a taxon of flora or fauna that is listed in Schedule 3 , 4 or 5 ;

threatening process means any action which poses a threat to the natural survival of any native taxon of flora or fauna;

wild means in an independent, unpossessed or natural state and not in an intentionally cultivated, domesticated or captive state, regardless of the location or land tenure.

(2)  In this Act, a reference to a landholder's land includes a reference to land occupied, managed or controlled by the landholder.

4.   Objectives to be furthered

It is the obligation of any person on whom a function is imposed, or a power is conferred, under this Act to perform the function or to exercise the power in such a manner as to further the objectives specified in Schedule 1 .

5.   Administration of public authorities

A person who performs a function, or exercises a power, in the administration of a public authority must in so doing have regard to the objectives specified in Schedule 1 for the conservation and management of native flora and fauna.

6.   Crown to be bound

This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.

PART 2 - Administration

7.   Functions of Director

The Director has the following functions:

(a) to prepare a threatened species strategy;

(b) to provide for and implement programmes of community education in the conservation of native flora and fauna;

(c) to arrange for the preparation of listing statements in consultation with the Scientific Advisory Committee;

(d) to prepare and implement species recovery plans and threat abatement plans;

(e) to prepare and implement land management plans and land management agreements;

(f) to take such action as may be necessary to protect threatened native flora and fauna;

(g) to encourage the conservation of threatened native flora and fauna in the community;

(h) to recommend to the Minister the making of interim protection orders;

(i) to take such other action as may be necessary to protect any threatened native flora and fauna.

8.   Scientific Advisory Committee

(1)  There is established a body to be called the Scientific Advisory Committee.

(2)  The functions of SAC are to advise the Minister and the Director on –

(a) the listing and de-listing of taxa of flora and fauna; and

(b) threatening processes; and

(c) the criteria to be followed in the determination of critical habitats; and

(d) other matters relating to the conservation of threatened native flora and fauna; and

(e) the review and approval of listing statements.

(3)  SAC is to consist of 7 members to be appointed by the Minister of whom not more than 3 are to be employees within the meaning of the Tasmanian State Service Act 1984 and of whom one is to be appointed as chairperson.

(4)  All members of SAC are to have special knowledge and experience in the sciences of flora or fauna conservation or ecology.

(5)  The members of SAC must collectively have expertise in the following categories and each member must have expertise in one or more of the following categories:

(a) vertebrate fauna;

(b) invertebrate fauna;

(c) vascular flora;

(d) non-vascular flora;

(e) taxonomy;

(f) marine ecology;

(g) freshwater ecology;

(h) terrestrial ecology;

(i) population ecology.

(6)  For the purposes of giving advice to the Minister and the Director under this section, SAC may consult with members of the broader scientific community as it considers appropriate.

(7)  Schedule 2 has effect in relation to the members and meetings of SAC.

9.   Community Review Committee

(1)  There is established a body to be called the Community Review Committee.

(2)  CRC is to consist of 9 members appointed by the Minister as follows:

(a) a person appointed by the Minister as chairperson of the committee;

(b) a person nominated by the Tasmanian Farmers and Graziers Association;

(c) an economist;

(d) a person representing rural industry;

(e) a person representing the forest industry;

(f) a person representing the fishing industry;

(g) 2 members of SAC nominated by SAC;

(h) a person nominated by the Local Government Association of Tasmania.

(3)  The functions of the CRC are as follows:

(a) to receive and consider draft recovery plans and listing statements;

(b) in respect of private land, to assist in, and make recommendations to the Minister on, the preparation of land management plans and land management agreements;

(c) to provide for conciliation as may be required in any matter arising from a land management agreement or for the purpose of making any such agreement;

(d) to consider the social and economic impact of the implementation of land management agreements;

(e) to advise the Minister on the effect of interim protection orders;

(f) to consider, and advise on, such other matters as may be referred to it by the Minister.

(4)  Schedule 2 has effect in relation to the members and meetings of CRC.

(5)  If a body referred to in paragraph (b) or (h) of subsection (2) changes its name, the Governor may, by order, amend that paragraph by substituting the new name of that body.

PART 3 - Conservation of Threatened Species

Division 1 - Threatened species strategy

10.   Threatened species strategy

(1)  As soon as practicable after the commencement of this section, the Director must prepare a strategy for the conservation of threatened native flora and fauna specifying the means by which the objectives of this Act are to be achieved.

(2)  The strategy is to include proposals for –

(a) ensuring the survival, and conditions for evolutionary development in the wild, of threatened native flora and fauna; and

(b) ensuring the identification, and proper management of, threatening processes; and

(c) education of the community in respect of conservation and management of threatened native flora and fauna; and

(d) ensuring the availability of resources to accomplish the objectives of conservation and management of threatened native flora and fauna.

(3)  In giving effect to subsection (2) , the strategy is to have regard to –

(a) the need to achieve the objectives of this Act with minimal social and economic impact; and

(b) the rights and interests of landholders and the community.

11.   Procedure for making strategy

(1)  Before making a strategy, the Director must prepare and give public notification of a draft strategy.

(2)  The notice –

(a) is to seek public comment; and

(b) is to specify a date, which must be at least 30 days after the date on which the notice is published in the Gazette, before which submissions may be made to the Director; and

(c) is to specify a time and place at which a copy of the draft strategy will be available for public inspection.

(3)  Any person may make submissions to the Director about the draft strategy.

(4)  After considering all the submissions, the Director, with the Minister's approval, may make the strategy.

12.   Amendment and revocation of strategy

(1)  The Director may amend or revoke a strategy.

(2)  The procedures applicable to the making of a strategy apply to –

(a) an amendment of a strategy; or

(b) the revocation of a strategy.

Division 2 - Listing of threatened flora and fauna

13.   Lists of threatened flora and fauna

(1)  The taxa of native flora and fauna which are endangered are specified in Schedule 3 , extant taxa being listed in Part 1 and taxa presumed to be extinct being listed in Part 2 .

(2)  The taxa of native flora and fauna which are vulnerable are specified in Schedule 4 .

(3)  The taxa of native flora and fauna which are rare are specified in Schedule 5 .

(4)  SAC may recommend to the Minister that an eligible taxon of native flora or fauna be added to Schedule 3 , 4 or 5 or that any taxon of native flora or fauna which is no longer eligible be omitted from Schedule 3 , 4 or 5 .

(5)  After considering a recommendation of SAC and after giving notice in accordance with section 14 , the Minister may, by order published in the Gazette, add an item to, amend an item in, or omit an item from, Schedule 3 , 4 or 5 .

(6)  SAC must, at least once in each period of 5 years, review each taxon listed in Schedules 3 , 4 and 5 and recommend to the Minister any variation of those Schedules considered appropriate.

14.   Notification by Minister and right of appeal

(1)  In this section, Tribunal means the Resource Management and Planning Appeal Tribunal.

(2)  The Minister must, before making an order under section 13 (5) , give public notification of the proposed order.

(3)  During a period of 30 days after the public notification, a person may appeal to the Tribunal against the proposed order and the appeal is to be brought in accordance with the regulations.

(4)  For the purposes of this section –

(a) Part 5 of the Resource Management and Planning Appeal Tribunal Act 1993 extends to the appeal; and

(b) the Tribunal must reconsider all the material considered by SAC on which the recommendation for the proposed order was based; and

(c) SAC is entitled to be represented at the hearing –

but, subject to this subsection, the Tribunal may determine its own procedure.

(5)  On hearing the appeal, the Tribunal may uphold or dismiss the appeal.

(6)  If the appeal is upheld –

(a) the Tribunal must give public notification of that fact as soon as practicable; and

(b) on that notification, the order is taken to be disallowed and ceases to have effect –

but this subsection does not affect the validity of the order before disallowance.

15.   Eligibility for listing

(1)  An extant taxon of native flora or fauna may be listed as endangered if it is in danger of extinction because long term survival is unlikely while the factors causing it to be endangered continue operating.

(2)  A taxon of native flora or fauna may be listed as endangered because it is presumed to be extinct on the ground that no occurrence of the taxon in the wild can be confirmed during the past 50 years.

(3)  A taxon of native flora or fauna may be listed as vulnerable if it is likely to become an endangered taxon while the factors causing it to be vulnerable continue operating.

(4)  A taxon of native flora or fauna may be listed as rare if it has a small population in Tasmania that is not endangered or vulnerable but is at risk.

(5)  A taxon of native flora or fauna which is below the level of sub-species and which is narrowly defined owing to its taxonomic position, environmental conditions or geography may be listed only if, in addition to the requirements of this section, there is a special need to conserve it in Tasmania.

(6)  SAC is responsible for preparing guidelines as to how the criteria specified in subsections (1) to (5) , both inclusive, are to be applied to particular taxonomic groups and must, from time to time, publish those guidelines in the Gazette.

(7)  In determining the criteria for listing, SAC must have regard only to matters of nature conservation and not to social and economic matters.

16.   Nomination for listing

(1)  Any person may nominate an eligible taxon of flora or fauna to be added to, or an ineligible taxon of flora or fauna to be omitted from, Schedule 3 , 4 or 5 .

(2)  A nomination is to be in the prescribed form.

17.   Consideration of nomination by SAC

(1)  SAC must consider each nomination as soon as practicable after it has been made.

(2)  SAC may reject a nomination if –

(a) the subject of the nomination is already listed; or

(b) the nomination is vexatious; or

(c) the nomination is not in the prescribed form.

(3)  If SAC rejects a nomination under this section, it must notify the Minister and nominator of the rejection and give reasons for it.

18.   Preliminary recommendation by SAC

(1)  SAC, after considering a nomination, must make a preliminary recommendation that the nomination is to be supported or is to be rejected.

(2)  SAC must, within 30 days after making a preliminary recommendation –

(a) notify the nominator; and

(b) give public notification of its preliminary recommendation and also give notice of the recommendation in a newspaper circulating generally in the area likely to be affected by the recommendation.

(3)  SAC must consider any public comments made during a period of 30 days after public notification is given.

19.   Final recommendation by SAC

(1)  After considering any public comments, SAC must make a final recommendation to the Minister that the nomination is to be supported or rejected and must give reasons for the recommendation.

(2)  SAC must make a final recommendation within one year after the making of the nomination.

20.   CRC to be advised of public notification

SAC must advise CRC of a public notification given under section 18 (2) .

21.   Minister's decision

(1)  The Minister must, within 30 days after receiving a final recommendation, decide whether or not a taxon of flora or fauna is to be added to, or omitted from, Schedule 3 , 4 or 5 .

(2)  In considering a recommendation for the listing of a taxon of flora or fauna in Schedule 3 , 4 or 5 , the Minister must have regard only to matters of nature conservation.

(3)  On a decision under subsection (1) , the Director must –

(a) give public notification of the decision and also give notice of the decision in a newspaper circulating generally in the area likely to be affected by it; and

(b) advise CRC of the decision; and

(c) make the reasons for the decision available to the public at the offices of the Director in Hobart and Launceston.

Division 3 - Listing statements

22.   Listing statements

(1)  The Director must prepare a listing statement for any taxon of flora or fauna specified in Schedule 3 , 4 or 5 as soon as practicable after that taxon is listed.

(2)  The listing statement is to specify –

(a) a description, the distribution and the habitat of the taxon; and

(b) its conservation status with reasons; and

(c) management objectives; and

(d) management issues; and

(e) actions that need to be taken for the purposes of management and conservation of the taxon; and

(f) threats to the taxon; and

(g) any information relating to the taxon that is available in published references.

(3)  The Director may amend a listing statement.

(4)  In preparing or amending a listing statement, the Director must consider –

(a) any management advice given by SAC; and

(b) any other relevant matters relating to nature conservation –

and provide CRC with a copy of the statement.

Division 4 - Critical habitats

23.   Determination of critical habitats

(1)  Where the Director, after consultation with SAC, is satisfied that the whole or any part of the habitat of any listed taxon of native flora or fauna is critical to the survival of that taxon, the Director must determine the whole or the part of that habitat to be a critical habitat.

(2)  Subject to this section, the Director must –

(a) give public notification of the area determined as a critical habitat by reference to a map registered in the central plan office under the Survey Co-ordination Act 1944 showing the boundaries, extent and details of the area and, in particular, identifying the area by reference to rectangular grid co-ordinates on the Australian Map Grid or Map Grid Australia; and

(b) notify any landholder or other person who is likely to be affected by the determination; and

(c) notify CRC of the determination.

(3)  On making a determination of a critical habitat, the Director must give notice of the determination to the Recorder of Titles and the determination is of no effect until the Director does so.

(4)  A notice under subsection (3) –

(a) is to be in a form approved by the Recorder of Titles; and

(b) is to identify, as provided by subsection (2) (a) , the land that is subject to the determination of a critical habitat; and

(c) is taken to be a dealing within the meaning of the Land Titles Act 1980 .

(5)  The Director must, within 30 days after making a determination but subject to subsections (6) and (7) , publish notice of the determination in the Gazette.

(6)  The Director need not comply with subsection (2) (a) or (5) if the Minister is of the opinion that disclosure of the location of the habitat would result in any harm being done to it or to the flora or fauna which it supports.

(7)  The Director may not advertise a determination of a critical habitat that is on private land unless the landholder agrees.

24.   Amendment and revocation of determinations

(1)  The Director may amend or revoke a determination.

(2)  The procedures applicable to the making of a determination apply to –

(a) an amendment of a determination; or

(b) the revocation of a determination.

Division 5 - Recovery plans for threatened species

25.   Recovery plans

(1)  The Director may, with the Minister's approval, make a recovery plan for any listed taxon of flora or fauna.

(2)  A recovery plan is to specify –

(a) the listed taxon of flora or fauna to which it applies; and

(b) objectives for the conservation and management of that taxon, including –

(i) ways in which those objectives are to be achieved or promoted for the benefit of that taxon; and

(ii) resources required to achieve those objectives; and

(c) the date within 5 years after the plan is made before which it is to be reviewed by the Director.

(3)  In making a recovery plan, the Director must consider social and economic issues as well as matters relating to nature conservation.

(4)  Before making a recovery plan the Director must prepare a draft of the plan and –

(a) provide a copy of the draft plan to CRC; and

(b) seek public comment on the plan.

(5)  The Director must, within 30 days after preparing a draft recovery plan, give public notification of the draft plan and also notify the making of the plan in a newspaper circulating generally in the area to which the plan applies.

(6)  The Director may, after considering any public comment received during the period of 30 days after public notification, prepare, with the Minister's approval, a final recovery plan.

26.   Amendment and revocation of recovery plans

(1)  The Director may amend or revoke a recovery plan.

(2)  The procedures applicable to the making of a recovery plan apply to –

(a) an amendment of a recovery plan; or

(b) the revocation of a recovery plan.

(3)  The Director must review a recovery plan within a period of 5 years after it is made.

Division 6 - Threat abatement plans

27.   Threat abatement plans

(1)  The Director may prepare a threat abatement plan in respect of any process which, in the opinion of the Director, is a threatening process.

(2)  A threat abatement plan –

(a) may relate to one or more taxa of flora and fauna; and

(b) is to specify a process that threatens any listed taxon; and

(c) is to specify objectives for removing or controlling the threat; and

(d) may specify research needed and actions required by which the threatening process is to be controlled and managed; and

(e) may specify the resources required to carry out those actions.

(3)  The Director must, within 30 days after preparing a draft threat abatement plan, give public notification of the draft plan and also notify the making of the plan in a newspaper circulating generally in the area to which the plan applies.

(4)  The Director must, after considering any public comments received during the period of 30 days after public notification of the draft plan, make, with the Minister's approval, a final threat abatement plan.

28.   Amendment and revocation of threat abatement plans

(1)  The Director may amend or revoke a threat abatement plan.

(2)  The procedures applicable to the making of a threat abatement plan apply to –

(a) an amendment of a threat abatement plan; or

(b) the revocation of a threat abatement plan.

(3)  The Director must review a threat abatement plan within a period of 5 years after it is made.

Division 7 - Land management plans and agreements

29.   Land management plans

(1)  The Director may, after consultation with an affected landholder, make a land management plan for the purpose of protecting a listed taxon of flora or fauna.

(2)  A land management plan –

(a) is to define the area of land, whether held by one or more landholders, to which it relates; and

(b) is to specify the objectives for management of land for the purposes of conservation and management of a taxon to which the plan relates; and

(c) is to specify actions to be taken by the Director, the landholder or any other person for the purpose of achieving those objectives.

(3)  The Director must review a land management plan within a period of 5 years after it is made.

(4)  The Director must, within 90 days after making a determination of a critical habitat for a listed taxon of flora or fauna and after consultation with any landholder affected by the determination, prepare a land management plan for the purpose of protecting that taxon.

30.   Agreements arising from land management plans

(1)  The Director may make an agreement with any landholder for any purpose arising from a land management plan.

(2)  An agreement –

(a) may provide for the carrying out of works and payment for those works; and

(b) may provide for compensation for financial loss arising from the agreement; and

(c) is to contain provisions –

(i) enabling the Director to cancel the agreement if it is no longer required for the conservation of the relevant taxon; and

(ii) providing for conciliation by CRC in respect of any matter arising from the agreement or the land management plan to which it gives effect.

31.   Public authority management agreements

(1)  The Director may make an agreement with one or more public authorities providing for the management of any listed taxon of flora or fauna or potentially threatening process.

(2)  The Director must cause notice of the making of the agreement to be published in the Gazette and the agreement is not to take effect before the notice is published.

(3)  The Director need not comply with subsection (2) if the Minister is of opinion that disclosure of details of the agreement would result in any harm being done to the relevant flora and fauna.

(4)  The agreement must specify its purposes and aims, the functions of the parties, the date on which it takes effect and, if appropriate, the date on which it ceases to have effect.

(5)  The agreement may be amended or terminated by mutual agreement between the parties or according to the terms of the agreement.

PART 4 - Interim Protection Orders

32.   Power of Minister to make interim protection orders

(1)  The Minister may make an interim protection order to conserve the critical habitat of a listed taxon of flora or fauna or a nominated taxon of flora or fauna which has been accepted by SAC for listing and which in either case is on –

(a) private land; or

(b) Crown land and not subject to a public authority agreement.

(2)  The powers conferred by subsection (1) extend to the making of an interim protection order relating to acts done or omitted to be done outside the critical habitat of a listed taxon which threaten that taxon.

(3)  In making an interim protection order the Minister must consider –

(a) matters relating to nature conservation; and

(b) the social and economic consequences of making the order; and

(c) if the order relates to private land, any comments made by CRC; and

(d) any other relevant matters.

(4)  On making an interim protection order the Minister must provide CRC with a copy of the order.

(5)  An interim protection order may have effect from the day on which it is made or any later day.

(6)  An interim protection order ceases to be in force after –

(a) if the order relates to Crown land, a period of 65 business days; or

(b) if the order relates to private land, a period of 30 business days.

(7)  The Director may recommend to the Minister that an amendment be made to the order and, if the Minister makes the amendment, the Director must give notice of that amendment to –

(a) the person to whom the original notice was given; and

(b) any other person to whom, before the making of the amendment, notice had been given about the order.

(8)  The Minister may, with the agreement of all persons affected by an interim protection order, extend the period during which the order is in force.

33.   Terms of interim protection orders

An interim protection order may be subject to such terms and conditions as are specified in the order and may provide for all or any of the following:

(a) the protection and management of flora, fauna and the land within the habitat which is the subject of the order;

(b) the prohibition or regulation of any activity which takes place on the land or the use and management of the land within the habitat which is the subject of the order;

(c) the prohibition, regulation and management of any activity which takes place outside the habitat which is the subject of the order but which is likely to affect the habitat adversely;

(d) a requirement to undertake works or activities specified in the order;

(e) the issue of permits;

(f) compensation payable under section 45 .

34.   Notice of order to landholder

The Minister must, as soon as practicable after an interim protection order is made, give notice in writing that the order has been made to any landholder whose land is affected by the order.

35.   Recommendation by Public Land Use Commissioner

(1)  Where an interim protection order relates to Crown land that is not subject to a public authority agreement –

(a) the Minister must, on making the order, notify the Public Land Use Commissioner of the terms of the order; and

(b) the Commissioner must, within 30 days after notification, advise the Minister of all use, and intended use, of the land known to the Commissioner with a recommendation, taking into account the objectives of this Act, as to the future use of the land; and

(c) the Minister may impose conditions limiting the future use of the land taking into account that advice and recommendation.

(2)  If any such conditions are imposed in respect of fish, within the meaning of the Fisheries Act 1959 , the Minister must first consult with the Minister for Primary Industry and Fisheries.

36.   Notice to comply

(1)  At any time during the operation of an interim protection order the Director may serve notice on any person –

(a) who is a landholder, employee or agent of a landholder whose land is the subject of the order; or

(b) who is carrying on an activity on or outside the land which is the subject of the order where the activity is likely to affect detrimentally a listed taxon on the land which is the subject of the order –

requiring him or her to cease undertaking the activity or otherwise to comply with the order.

(2)  In the case of a notice affecting Crown land, the Director must not serve the notice unless the Minister approves after consulting with any other Minister or authority responsible for the management of, or any activities carried out on, that land.

(3)  A person who contravenes an interim protection order or a notice issued under subsection (1) is guilty of an offence and is liable on summary conviction to a fine not exceeding 1 000 penalty units and a daily fine not exceeding 100 penalty units in respect of each day during which the offence continues.

37.   Notification to other Ministers

As soon as practicable after the making, or amending, of an interim protection order, the Minister must give notice of the order or amendment to any other Minister responsible for the administration of any law under which any act may be done or omitted to be done that is likely to be affected by the order.

38.   Limitation of licences, permits, &c., issued under other Acts

(1)  If, at any time during the operation of an interim protection order, the Minister becomes aware of a licence, permit or other authority which would permit the holder to act in contravention of the terms of the order, the Minister may limit the operation of that licence, permit or other authority to the extent that it permits that action.

(2)  Before the licence, permit or other authority is limited under subsection (1) , the Minister must consult with the person responsible for issuing that licence, permit or other authority.

(3)  The Minister must give notice in writing of the limitation of the operation of the licence, permit or other authority to the holder.

(4)  The limitation of the licence, permit or other authority takes effect at the time at which the notice is given or on a date specified in the notice and ceases when the interim protection order no longer operates or on an earlier date specified in the notice.

39.   Interim protection orders to prevail over planning schemes

Where there is a conflict between an interim protection order and a planning scheme in force under section 29 of the Land Use Planning and Approvals Act 1993 , the order prevails over the planning scheme.

40.   Issue of permits

(1)  The Director may issue a permit to a landholder authorising him or her to undertake an activity on land that is subject to an interim protection order.

(2)  In deciding whether to grant the permit, the Director must consider –

(a) any relevant listing statements or recovery plans relating to the flora or fauna which is the subject of the order; and

(b) any significant effects which the granting of the permit will have on listed taxa of flora or fauna or the habitat which is the subject of the order; and

(c) any possible social and economic effects which the granting of the permit might have; and

(d) any other relevant matters.

41.   Applications for permits

An application for a permit is to be made to the Director in writing in a form approved by the Director.

42.   Powers of Director

(1)  A permit issued by the Director is to be in writing and may be subject to such terms and conditions as the Director thinks necessary for the conservation of any listed taxon of flora or fauna.

(2)  The Director may issue more than one permit in the same instrument.

(3)  The Director may amend or revoke a permit after first giving notice to the holder of his or her intention to do so.

43.   Contravention of terms or conditions of permits

A person who holds a permit and who contravenes a term or condition of that permit is guilty of an offence and liable on summary conviction to a fine not exceeding 100 penalty units.

PART 5 - Financial Provisions

44.   Threatened Species Fund

(1)  For the purposes of this Act, a fund called the Threatened Species Fund is established as a trust account within the Special Deposits and Trust Fund or, if the Treasurer so directs, as more than one such trust account for specific matters relating to the conservation of native flora and fauna.

(2)  The Fund consists of –

(a) all fines paid to the Fund in respect of offences under this Act; and

(b) any amount paid to the Director, or the value of anything forfeited to the Director, as a result of the exercise of the power of seizure under section 48 (2) ; and

(c) any money appropriated by Parliament for the purposes of the Fund; and

(d) any money received by way of grant, gift or bequest for the purposes of the Fund; and

(e) any income from investment of money belonging to the Fund; and

(f) any money received from any other source.

(3)  The Fund may be applied by the Director –

(a) in making payments for or towards the cost of any action taken to deal with an emergency in the conservation of native flora or fauna or the effects of any such emergency; and

(b) for the purposes of education and training programs in relation to the conservation of native flora and fauna; and

(c) for the purposes of any investigations, research, pilot programs and other projects relating to the conservation of native flora and fauna; and

(d) in making grants to assist in the conservation of native flora and fauna –

but must otherwise be applied in the administration of this Act.

45.   Compensation

(1)  A landholder is entitled to compensation for financial loss suffered directly resulting from an interim protection order or a land management agreement.

(2)  A person who is required to comply with a notice under section 36 is entitled to compensation for financial loss as a result of being required to comply with that notice.

(3)  The holder of a licence, permit or other authority limited under section 38 is entitled to compensation for financial loss.

(4)  An application for compensation under this section is to be made to the Minister.

(5)  The Minister must determine the amount of compensation to be paid to a person entitled to compensation.

(6)  In making a determination, the Minister must have regard to the following matters:

(a) the amount by which the value of the land will be increased or decreased as a result of the interim protection order;

(b) the amount of financial loss, including loss of profit, loss occasioned by breach of contract, loss of production and other consequential loss, to the landholder or other person which would result from compliance with the order;

(c) any increase in the value of the land which would result from the carrying out of works for the purposes of this Act;

(d) the cost of any works required to be carried out on the land;

(e) any change in the value of chattels or improvements which would occur because the land use or activity to which they relate is to be restricted or prohibited by the order;

(f) any other matter which the Minister considers relevant.

(7)  If compensation is payable under this section, the person to whom it is payable is also entitled to be paid for any reasonable costs and interest arising from the claim for compensation calculated from the time when the loss was first incurred.

(8)  If a person has applied for compensation, the Minister may make a payment of an amount determined by the Minister to that person before a decision is made on that person's application.

(9)  The Minister must undertake to assist any person who is required to carry out works under an interim protection order if the Minister is of the opinion that that person could claim compensation for those works and the assistance is to be given before the requirement is enforced.

(10)  The assistance given by the Minister may be either –

(a) payment of money; or

(b) provision of labour, goods or other services –

and the money paid or cost of other assistance given is to be that which in the Minister's opinion reflects the reasonable and actual costs of carrying out the works.

(11)  The Minister may pay compensation to a person entitled to receive it by part payments at periodic intervals if the Minister and that person so agree.

(12)  Parts 3 , 4 and 5 of the Land Acquisition Act 1993 , with any necessary changes, apply to the determination of compensation under this section as if the landholder were entitled to compensation under that Act.

(13)  A payment of compensation or any other payment required by the terms of an agreement made under this Act is to be made from the Fund.

46.   Claims for compensation

A claim for compensation under this Part is to be made in a form approved by the Minister within –

(a) 90 days after the occurrence of the event by virtue of which compensation becomes payable; or

(b) such extended period as the Minister may allow.

47.   Recovery of compensation

(1)  Compensation payable under this Part may be recovered in any court of competent jurisdiction as a debt due by the Crown.

(2)  Nothing in this section prevents the making or operation of an agreement between the Crown and a person claiming compensation under this Part for submission to arbitration in accordance with the Commercial Arbitration Act 1986 if the agreement has been made within 45 days after an application is lodged under section 45 .

PART 6 - Miscellaneous and Supplemental

Division 1 - Powers of authorised officers

48.   Powers of authorised officers

(1)  In this section, conveyance means a vehicle, vessel or aircraft or any other contrivance intended for the carriage of persons or goods over land or water or in the air.

(2)  Where an authorised officer reasonably believes that there has been a contravention of –

(a) this Act; or

(b) an interim protection order; or

(c) a term or condition of a permit; or

(d) a land management agreement –

the authorised officer may –

(e) at any reasonable time, by any reasonable means and with any assistance which the authorised officer requires, enter a conveyance, land or a building not occupied as a place of residence; or

(f) search any conveyance, land or a building not occupied as a place of residence; or

(g) with a warrant, search a building occupied as a place of residence; or

(h) inspect any equipment, machine, implement, flora, fauna, enclosure, container or other goods; or

(i) require a conveyance to be stopped; or

(j) seize, examine or take copies of, or extracts from documents; or

(k) seize any flora or fauna; or

(l) require a person to give to the authorised officer samples or articles; or

(m) require a person to produce a document which may relate to, or contain evidence of, an offence under this Act; or

(n) require a person to produce any permit issued to him or her; or

(o) require a person to give his or her name and place of residence; or

(p) seize any equipment or material which is being used by any person in contravention of this Act.

(3)  A justice may issue a warrant to an authorised officer to enter and search any building used as a residence if the justice is satisfied on the application of the authorised officer that there are reasonable grounds for believing that –

(a) any flora or fauna is being held in the building in contravention of this Act; or

(b) any equipment or material in the building is being, or was, used in contravention of this Act.

49.   Authorised officer may enter land, &c.

If an authorised officer believes on reasonable grounds that a landholder has not complied with the terms of an interim protection order, the authorised officer may, with any assistance that the authorised officer reasonably considers necessary –

(a) enter the land of the landholder; and

(b) take any action which the authorised officer reasonably believes to be necessary to ensure compliance with the order.

Division 2 - Legal provisions and offences

50.   Effect of licences, &c., in force under other laws

A licence, permit or other authority in force under any law which relates to the taking, trading in, keeping, moving, processing or disturbing of flora or fauna does not authorise the holder to take, trade in, keep, move, process or disturb flora or fauna in circumstances in which it would be prohibited under this Act.

51.   Offences relating to listed flora and fauna

A person must not knowingly, without a permit –

(a) take, trade in, keep or process any listed flora or fauna; or

(b) disturb any listed flora or fauna found on land subject to an interim protection order; or

(c) disturb any listed flora or fauna contrary to a land management agreement; or

(d) disturb any listed flora or fauna that are subject to a conservation covenant made under section 37B of the National Parks and Wildlife Act 1970 ; or

(e) abandon or release any listed flora or fauna into the wild.

Penalty:  Fine not exceeding 100 penalty units and a daily penalty not exceeding 20 penalty units for each day during which the offence continues after conviction.

52.   Offence to obstruct an authorised officer

(1)  A person must not assault, obstruct, threaten or intimidate an authorised officer who is exercising powers under this Act.

Penalty:  Fine not exceeding 50 penalty units.

(2)  A person must not contravene a lawful direction, order or requirement of an authorised officer.

Penalty:  Fine not exceeding 50 penalty units.

53.   Additional penalties on conviction

Where a person is convicted of an offence against this Act, the court before which he or she is convicted may order –

(a) that any permit held by the person convicted is to be cancelled and that he or she is to be disqualified from holding or obtaining a further permit for such period as the court may determine; and

(b) that any equipment or material used by the person convicted in the commission of the offence is to be forfeited to the Crown; and

(c) that any flora or fauna or the product of any flora or fauna in the possession of the person convicted, or bought, sold or dealt with by him or her in contravention of this Act is to be forfeited to the Crown.

54.   Requirement to carry out restoration work

If a person is convicted of an offence under this Act involving the destruction of, or damage to, listed flora or fauna or a critical habitat, the court may order that the person must carry out restoration work and the order may be in addition to, or in substitution for, any other penalty.

55.   Payment of compensation by offender

(1)  If a person is convicted of an offence under this Act involving the destruction of, or damage to, listed flora or fauna or a habitat, the court may order that the person must pay compensation for that destruction or damage to the Director in addition to any other penalty.

(2)  The amount of compensation payable under subsection (1) may be fixed by the court after taking evidence on oath from any person who may assist the court to determine the nature and extent of the damage.

(3)  In fixing the amount of compensation to be paid, the court must have regard to the cost of any restoration work required to be carried out as a result of the offence.

56.   Alternative to prosecution

(1)  In this section, prescribed fine means a fine of an amount not exceeding the amount that the Director accepts is equal, or approximately equal, to twice the amount required to make good any damage done, or any loss incurred, by reason of the commission of an offence against this Act.

(2)  If the Director is satisfied that a person has committed an offence against this Act but the circumstances do not merit the imposition of a penalty, the Director may, on payment of a prescribed fine by the alleged offender, cause any proceedings in respect of the alleged offence to be waived or discontinued.

(3)  The amount of a prescribed fine is, after deducting such amount as the Director determines for the purpose of making good any damage done or any loss incurred by reason of the commission of the offence, to be paid into the Threatened Species Fund.

Division 3 - Supplemental

57.   Application of Division 3

This Division has effect subject to sections 23 (4) , 31 (3) and 58 .

58.   Publication of strategies, statements, plans, &c.

On the making of a threatened species strategy, listing statement, recovery plan, threat abatement plan or public authority agreement, the Director must give public notification of the strategy, statement, plan or agreement specifying –

(a) the places where copies of it may be obtained; and

(b) a fee, as determined by the Minister, payable for a copy –

and must forward copies of the strategy, statement, plan or agreement to SAC and CRC.

59.   Secrecy

(1)  The Director may, with the approval of the Minister, declare information about listed flora or fauna or any plan, agreement, determination or interim protection order to be confidential if the Director is of the opinion that disclosure of that information is likely to result in any harm being done to the flora or fauna or its habitat.

(2)  If, in the course of performing duties under this Act, a person receives information which has been declared to be confidential, that person must not disclose or make use of that information except to the extent necessary to perform his or her duties or for the purpose of legal proceedings.

Penalty:  Fine not exceeding 20 penalty units.

60.   Availability of listing criteria, decisions, &c., for inspection

The Director must make available for inspection at the principal office of the Department and at such other offices as the Director considers appropriate without charge during normal office hours –

(a) the listing criteria; and

(b) the Minister's decisions and reasons for listing; and

(c) any listing statement; and

(d) any recovery plan or threat abatement plan; and

(e) any determination of a critical habitat; and

(f) a copy of a public authority management agreement; and

(g) SAC's preliminary recommendation on nominations for listing; and

(h) any reports of CRC.

Division 4 - Regulations

61.   Regulations

(1)  The Governor may make regulations for the purposes of this Act.

(2)  Without limiting the generality of subsection (1) , the Governor may make regulations as to –

(a) the issue of permits to take, buy, sell, keep, disturb, process, export or import any listed flora or fauna; and

(b) the method of giving notice of the making of an interim protection order; and

(c) the marking of listed taxa of flora and fauna; and

(d) the records to be kept by persons holding permits, the methods of keeping those records and the circumstances in which they must be produced; and

(e) fees to be paid for permits issued, or applications made, under this Act and royalties to be paid for the taking of any listed flora or fauna.

(3)  The regulations may –

(a) provide that a contravention of any of the regulations is an offence; and

(b) in respect of such an offence, provide for the imposition of a fine not exceeding 100 penalty units and, in the case of a continuing offence, a further fine not exceeding 20 penalty units for each day during which the offence continues.

(4)  Regulations may be made so as to apply differently according to matters, limitations or restrictions, whether as to time, circumstance or otherwise, specified in the regulations.

Division 5 - Administration

62.   Administration of Act

Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990 –

(a) the administration of this Act is assigned to the Minister for Environment and Land Management; and

(b) the Department responsible to the Minister for Environment and Land Management in relation to the administration of this Act is the Department of Environment and Land Management.

SCHEDULE 1 - Objectives

Section 4

PART 1 - Objectives of the Resource Management and Planning System of Tasmania

1.   The objectives of the resource management and planning system of Tasmania are –

(a) to promote the sustainable development of natural and physical resources and the maintenance of ecological processes and genetic diversity; and

(b) to provide for the fair, orderly and sustainable use and development of air, land and water; and

(c) to encourage public involvement in resource management and planning; and

(d) to facilitate economic development in accordance with the objectives set out in paragraphs (a) , (b) and (c) ; and

(e) to promote the sharing of responsibility for resource management and planning between the different spheres of Government, the community and industry in Tasmania.

2.   In clause 1 (a) , sustainable development means managing the use, development and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic and cultural well-being and for their health and safety while –

(a) sustaining the potential of natural and physical resources to meet the reasonably foreseeable needs of future generations; and

(b) safeguarding the life-supporting capacity of air, water, soil and ecosystems; and

(c) avoiding, remedying or mitigating any adverse effects of activities on the environment.

PART 2 - Objectives of the Threatened Species Protection System Established by this Act

3.   The objectives of the threatened species protection system established by this Act are, in support of the objectives specified in Part 1 of this Schedule –

(a) to ensure that all native flora and fauna in Tasmania can survive, flourish and retain their potential for evolutionary development in the wild; and

(b) to ensure that the genetic diversity of native flora and fauna is maintained; and

(c) to educate the community in the conservation of native flora and fauna; and

(d) to encourage co-operative management of native flora and fauna including the making of co-operative agreements for land management under this Act; and

(e) to assist landholders to enable native flora and fauna to be conserved; and

(f) to encourage the conserving of native flora and fauna through co-operative community endeavours.

SCHEDULE 2 - Members and Meetings of Scientific Advisory Committee and Community Review Committee

Sections 8 (7) and 9 (4)

1.   Interpretation

In this Schedule, Committee means the Scientific Advisory Committee or the Community Review Committee.

2.   Term of office

A member of a Committee is to be appointed for such term, not exceeding 3 years, as is specified in the instrument of appointment and, if otherwise qualified, is eligible for re-appointment for a term, not exceeding 3 years, specified in the instrument of re-appointment.

3.   Provisions relating to members

Where, by or under any Act, provision is made requiring the holder of an office to devote the whole of his or her time to the duties of his or her office, that provision does not operate to disqualify him or her from holding that office and also the office of a member of a Committee.

4.   Remuneration, &c., of members

A member of a Committee is to be paid such remuneration, expenses and allowances as the Minister may determine, but no such determination applies in respect of a member of the Committee who holds office in the State Service unless the Commissioner for Public Employment approves of the determination.

5.    Tasmanian State Service Act 1984 not to apply

The provisions of the Tasmanian State Service Act 1984 do not apply to, or in respect of, the appointment of a member of a Committee and a member of the Committee is not, in his or her capacity as such a member, subject to the provisions of that Act during his or her term of office.

6.   Appointment of substitute to act during absence of member of Committee

(1) The Minister may appoint any person (including a member of a Committee other than the chairperson of the Committee) to act in the office of the chairperson or appoint any person to act in the office of a member of the Committee other than the chairperson while the chairperson or that member of the Committee, as the case may be, is absent from office through illness or any other cause.

(2) A member of a Committee other than the chairperson is, for the purposes of subclause (1) , taken to be absent from his or her office if the member is acting in the office of chairperson under subclause (1) .

(3) A member of a Committee is, for the purposes of subclause (1) , taken to be absent from his or her office if there is a vacancy in that office which has not been filled in accordance with clause 8 .

(4) A person is not concerned to inquire whether or not any occasion has arisen requiring or authorising a person to act in the office of a member of a Committee and all things done or omitted to be done by that person while so acting are as valid, and have the same consequences, as if they had been done or omitted to be done by that member.

7.   Vacation of office

(1) The office of a member of a Committee becomes vacant –

(a) when the member dies; or

(b) if the member becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration or estate for their benefit; or

(c) if the member is absent from 3 consecutive ordinary meetings of the Committee of which reasonable notice has been given to him or her, either personally or in the ordinary course of post, unless on leave granted by the Minister or unless, before the expiration of 3 weeks after the last of those meetings, the member is excused by the Minister for his or her absence from those meetings; or

(d) if the member is convicted in Tasmania of a crime or offence which is punishable by imprisonment for a period of not less than 12 months, or if the member is convicted elsewhere than in Tasmania of an offence which, if committed in Tasmania, would be a crime or an offence so punishable; or

(e) if the member resigns his or her office by writing under his or her hand addressed to the Minister and the Minister accepts the resignation; or

(f) if the member is removed from office by the Minister under subclause (2) .

(2) The Minister may remove from office a member of a Committee if the Minister is satisfied that the member –

(a) has voted at any meeting of the Committee in respect of any matter in which the member was at the time interested (otherwise than as a member of the public or as an elector of, or rate-payer to, any municipality, or as a shareholder in a company in which there were at that time more than 20 members and of which the member was not at that time a director or officer); or

(b) is unable to perform adequately or competently the duties of the member's office.

(3) A member of a Committee must not be removed from office otherwise than in accordance with this clause.

8.   Filling of casual vacancies

On the occurrence of a vacancy in the office of a member of a Committee otherwise than by the expiration of the term for which the member was appointed, the Minister may appoint a person to the vacant office for the balance of his or her predecessor's term of office.

9.   Protection of members of Committee

A member of a Committee is not personally liable for an honest act or omission in the performance or the purported performance of functions, or exercise or purported exercise of powers, under this Act.

10.   Validity of proceedings, &c.

(1) An act or proceeding of a Committee is not invalidated or prejudiced by reason only of the fact that, at the time when the act or proceeding was done, taken or commenced, there was a vacancy in the membership of the Committee.

(2) All acts and proceedings of a Committee are, notwithstanding the subsequent discovery of any defect in the appointment of any member of the Committee or that any person was disqualified from acting as, or incapable of being, a member of the Committee, as valid as if the member had been duly appointed and was qualified to act, or capable of being, a member and as if the Committee had been fully constituted.

11.   Presumptions

In any proceedings by or against a Committee, unless evidence is given to the contrary, proof is not required of –

(a) the constitution of the Committee; or

(b) any resolution of the Committee; or

(c) the appointment of any member of the Committee; or

(d) the presence of a quorum at any meeting of the Committee.

12.   Convening of meetings of Committee

Meetings of a Committee may be convened by the chairperson of the Committee or by any 3 members of the Committee.

13.   Procedure at meetings

(1) Five members of a Committee form a quorum at any meeting of the Committee.

(2) Questions arising at a meeting of a Committee are to be determined by a majority of votes of the members of the Committee present and voting.

(3) A Committee may obtain information from any person so as to assist it in the discharge of its functions.

(4) A Committee must keep full and accurate minutes of the proceedings at each of its meetings.

14.   Chairing of meetings

The chairperson of a Committee or, in the absence of the chairperson, the person acting in the office of chairperson is to preside at a meeting of the Committee.

15.   General procedure

The procedure for the calling of, and for the conduct of business at, meetings of a Committee is, subject to any procedure that is specified in this Schedule, to be as determined by the Committee.

SCHEDULE 3 - Taxa of Flora and fauna which are endangered

Sections 13 , 16 , 21 and 22

PART 1 - Extant taxa

VERTEBRATES

INVERTEBRATES

FLORA

PART 2 - Taxa presumed to be extinct

VERTEBRATES

INVERTEBRATES

FLORA

SCHEDULE 4 - Taxa of Flora and Fauna which are vulnerable

Sections 13 , 16 , 21 and 22

VERTEBRATES

INVERTEBRATES

FLORA

SCHEDULE 5 - Taxa of Flora and Fauna which are rare

Sections 13 , 16 , 21 and 22

VERTEBRATES

INVERTEBRATES

FLORA