Flora and Fauna Guarantee Act 1988

Authorised by the Chief Parliamentary Counsel i Authorised Version No. 048 Flora and Fauna Guarantee Act 1988 No. 47 of 1988 Authorised Version incorporating amendments as at 1 January 2022 TABLE OF PROVISIONS Section Page Part 1—Preliminary 1 1 Purpose 1 2 Commencement 1 3 Definitions 1 4 Objectives of this Act 15 4A Principles of this Act 16 4B Ministers and public authorities to give proper consideration of objectives 17 4C Minister may request information to ensure objectives are being considered 18 5 Flora and fauna which are excluded from the Act 18 6 Crown to be bound 19 6A Traditional owner agreement for natural resources 19 Part 2—Administration 21 7 Functions of the Secretary 21 8 The Scientific Advisory Committee 21 9 Advice 23 Part 3—Listing of threatened taxa and communities and potentially threatening processes 24 Division 1—The Threatened List and the Processes List 24 10 The Threatened List 24 11 Listing of potentially threatening processes 26 Division 2—Eligibility of taxa, communities and processes to be listed under Division 1 26 12 Determination of eligibility for listing 26 13 Eligibility for listing of taxon of flora or fauna 27 14 Eligibility for listing of communities of flora or fauna 27 15 Eligibility of sub-species of flora or fauna or narrowly defined community of flora or fauna 28 16 Eligibility for listing of potentially threatening processes 28 Authorised by the Chief Parliamentary Counsel Section Page ii Division 3—The nomination and assessment process for the listing of taxa, communities and processes 28 16A Nominations for listing 28 16B Consideration of the nomination by the Committee 29 16C Assessment of eligibility of taxon, community or process to be listed 30 16D The Committee's preliminary recommendation 32 16E Taxon assessed by another jurisdiction as to its risk of extinction in Australia 32 16F The Committee's final recommendation 33 16G Minister's recommendation 35 16H Decisions and recommendations must be made on the basis of nature conservation matters 36 Division 4—General 37 16I Recommendations that minor amendments be made to lists 37 16J Consolidated lists to be published on the Internet 38 16K Minister to review Lists 39 Part 4—Management processes 40 Division 1—Biodiversity Strategy 40 17 Biodiversity Strategy 40 18 Preparation of a Biodiversity Strategy 40 18A Public consultation on a Biodiversity Strategy 41 18B Making and publication of a Biodiversity Strategy 41 18C Amendment of a Biodiversity Strategy 42 18D Report on the implementation of a Biodiversity Strategy 42 18E Future review of a Biodiversity Strategy 42 Division 2—Action statements and critical habitat determinations 43 19 Action statements 43 20 Critical habitats 44 20A Role of Committee 45 20B Public consultation on critical habitats 45 20C Making and publication of critical habitat determinations 46 20D Amendment of critical habitat determinations 47 20E Guidelines 47 20F Critical habitat agreements 47 Division 3—Flora and fauna management plans 48 21 Procedure for making management plans 48 22 Amendment and revocation of management plans 49 23 Contents of management plans 49 23A Publication of a management plan 51 24 Review of management plans 51 Authorised by the Chief Parliamentary Counsel Section Page iii Division 4—Public authority management agreements 51 25 Public authority management agreements 51 Part 5—Conservation and control measures 53 Division 1—Habitat conservation orders 53 26 Habitat conservation orders 53 27 Content of habitat conservation orders 54 28 Preparation of habitat conservation orders 55 29 Making, amendment and revocation of habitat conservation orders 57 30 Publication of habitat conservation orders 57 31 Further amendment of habitat conservation orders 58 32 Offence to contravene a habitat conservation order 58 33 Defects in procedure 58 34 Suspension of other licences, permits and authorities 59 35 Permits 59 36 Reviews 60 37 Application for declaration 61 38 Matters Tribunal must take into account 61 39 Compensation 62 40 Minister and Secretary to ensure conservation of taxon, community or habitat 64 41 Habitat conservation orders to prevail over planning schemes 64 42 Register of critical habitat determinations and habitat conservation orders 64 Division 2—The handling of flora 65 45 Reference to flora 65 46 Declaration of flora to be protected flora 65 46A Revocation of declaration of flora to be protected 66 46B Guidelines for declaring flora to be protected flora 67 46C Minister must publish list of taxa of flora declared to be protected 67 47 Offence to take restricted use protected flora 67 47A Offence to take restricted use protected flora which causes significant detrimental impact on restricted use protected flora 68 47B Offence to take other protected flora 69 47C Offence to take other protected flora which causes significant detrimental impact to the relevant taxon or community 70 48 Licence or permit to take, trade in, keep, move or process protected flora 72 48A Authorisation to take, trade in, keep, move or process protected flora 73 48B Offence to contravene terms of authorisation 74 49 Offences relating to flora generally 74 50 Royalties for the taking of flora 74 Authorised by the Chief Parliamentary Counsel Section Page iv 51 Relationship between authorities issued under this Division and authorities issued under other Acts 75 Division 3—The handling of fish 75 52 Offence to take, trade in or keep fish 75 52A Offence to take, trade in or keep fish which causes a significant detrimental impact on the relevant taxon or community 76 53 Licence or permit to take, trade in or keep fish 77 53A Authorisation to take, trade in or keep fish 77 53B Offence to contravene terms of authorisation 79 Part 6—General 80 Division 1—General provisions about licences and permits 80 54 Applications 80 55 Giving of licences and permits 80 56 Offence of not complying with terms and limitations of licence or permit 80 Division 2—Enforcement and powers of authorised officers 81 56A Definition 81 57 Entry without consent or warrant 81 57A Entry with warrant to search for evidence of offence 84 57B Seizure of things not mentioned in warrant 86 57C Announcement before entry 86 57D Copy of warrant to be given to occupier 87 57E Requirements as to taking samples or seizing things 87 57F Samples 87 57G Retention notices 88 57H Evidentiary provisions relating to retention notices 89 57I Disposal or destruction of seized flora or fauna 89 57J Sections 57 to 57I do not limit powers of authorised officers 90 Division 2A—Offences 90 58 Offence to obstruct an authorised officer 90 59 Offence to interfere with notices marks or equipment 91 Division 3—Matters relating to offences 92 59A Time for bringing proceedings 92 60 Cancellation of licence or permit upon conviction 92 61 Requirement to carry out restoration work 93 62 Payment of compensation by offender 93 Division 3A—Remedies 94 62A Enforceable undertakings 94 62B Person may vary or withdraw enforceable undertaking 96 Authorised by the Chief Parliamentary Counsel Section Page v 62C Proceedings for contravention 96 62D Enforcement of enforceable undertaking 96 62E Secretary may take specified actions 97 62F Contempt of court proceedings 98 62G Secretary may recover costs 98 62H Person may recover compensation as debt 99 62I Register of enforceable undertakings 99 Division 4—Simplification of proof 100 63 Proof of contravention 100 64 Proof of identity 100 Division 5—General 100 65 Certificates 100 66 Secrecy 101 67 Availability for inspection 101 68 Matters to be put in annual report 103 Division 6—Regulations 103 69 Regulations 103 Part 7—Transitional provisions and repeals 106 70 Repeal and transitional provision 106 72 Saving of action statements 107 Part 8—Savings and transitional provisions—Flora and Fauna Guarantee Amendment Act 2019 108 73 Definitions 108 74 Scientific Advisory Committee 109 75 Listing of taxa of flora and fauna 109 76 Listing of communities of flora and fauna 112 77 Listing of potentially threatening processes 113 78 Nominations for listing made before commencement of new Part 3 113 79 Flora and Fauna Guarantee Strategy 113 80 Protected flora 114 81 Applications for licences and permits 114 82 Licences, permits and authorisations 114 Schedules 116 ═════════════ Authorised by the Chief Parliamentary Counsel Section Page vi Endnotes 119 1 General information 119 2 Table of Amendments 121 3 Amendments Not in Operation 126 4 Explanatory details 127 Authorised by the Chief Parliamentary Counsel 1 Authorised Version No. 048 Flora and Fauna Guarantee Act 1988 No. 47 of 1988 Authorised Version incorporating amendments as at 1 January 2022 The Parliament of Victoria enacts as follows: Part 1—Preliminary 1 Purpose The purpose of this Act is to establish a legal and administrative structure to enable and promote the conservation of Victoria's native flora and fauna and to provide for a choice of procedures which can be used for the conservation, management or control of flora and fauna and the management of potentially threatening processes. 2 Commencement (1) Sections 1, 2, 3, 4, 8, 11 and 69 come into operation on the day on which this Act receives the Royal Assent. (2) The remaining provisions of this Act come into operation on a day to be proclaimed. 3 Definitions (1) In this Act— * * * * * S. 3(1) def. of Administra tive Appeals Tribunal repealed by No. 52/1998 s. 311(Sch. 1 item 31.1(a)). Authorised by the Chief Parliamentary Counsel Part 1—Preliminary Flora and Fauna Guarantee Act 1988 No. 47 of 1988 2 Administrative Office has the same meaning as in the Public Administration Act 2004; amendment includes addition, deletion or substitution; another jurisdiction means the Commonwealth or another State or a Territory; authorised officer means a person appointed as an authorised officer for the purposes of this Act under— (a) Part 9 of the Conservation, Forests and Lands Act 1987; or (b) Part 3 of the Victorian Fisheries Authority Act 2016; biodiversity means the variability among living organisms from all sources (including terrestrial, marine and other aquatic ecosystems) and includes— (a) diversity within species and between species; and (b) diversity of ecosystems; Biodiversity Strategy means a Biodiversity Strategy made under Division 1 of Part 4; S. 3(1) def. of Administra tive Office inserted by No. 28/2019 s. 4(1). S. 3(1) def. of another jurisdiction inserted by No. 28/2019 s. 4(1). S. 3(1) def. of authorised officer substituted by No. 68/2016 s. 165. S. 3(1) def. of biodiversity inserted by No. 28/2019 s. 4(1). S. 3(1) def. of Biodiversity Strategy inserted by No. 28/2019 s. 4(1). Authorised by the Chief Parliamentary Counsel Part 1—Preliminary Flora and Fauna Guarantee Act 1988 No. 47 of 1988 3 Catchment Management Authority means a Catchment Management Authority under the Catchment and Land Protection Act 1994; category of threat, in relation to a taxon of flora or fauna, means any of the categories of threat referred to in section 13; climate change has the same meaning as in the Climate Change Act 2017; Commissioner for Environmental Sustainability has the same meaning as Commissioner has in the Commissioner for Environmental Sustainability Act 2003; Committee means the Scientific Advisory Committee established under section 8; common assessment method means the method agreed to by the Commonwealth, States and Territories for assessing the risk of extinction of taxa of flora or fauna, which requires— (a) the assessment of the risk of extinction of a taxon of flora or fauna to be assessed first on the basis of whether it is at risk of extinction in Australia; and S. 3(1) def. of Catchment Management Authority inserted by No. 39/1998 s. 14(1)(a), amended by No. 48/2021 s. 146. S. 3(1) def. of category of threat inserted by No. 28/2019 s. 4(1). S. 3(1) def. of climate change inserted by No. 28/2019 s. 4(1). S. 3(1) def. of Commis sioner for Environ mental Sustainability inserted by No. 28/2019 s. 4(1). S. 3(1) def. of common assessment method inserted by No. 28/2019 s. 4(1). Authorised by the Chief Parliamentary Counsel Part 1—Preliminary Flora and Fauna Guarantee Act 1988 No. 47 of 1988 4 (b) that— (i) a category of threat be applied to a taxon of flora or fauna that is assessed at risk of extinction in Australia; and (ii) a category of threat applied to a taxon of flora or fauna be changed if a further assessment as to the risk of extinction in Australia of the taxon is made; Commonwealth Act means the Environment Protection and Biodiversity Conservation Act 1999 of the Commonwealth; community means a type of assemblage which is or which is wholly or substantially made up of taxa of flora or fauna existing together in the wild; * * * * * conservation dependent, in relation to a taxon of fish, means that the taxon needs to be the subject of a plan of management under the law of another jurisdiction that provides for management actions necessary to stop the decline, or support the recovery, of the taxon to maximise its chances of long-term survival in nature; critical habitat means an area of Victoria in respect of which a critical habitat determination is made; S. 3(1) def. of Common wealth Act inserted by No. 28/2019 s. 4(1). S. 3(1) def. of Conservation Advisory Committee repealed by No. 28/2019 s. 4(7). S. 3(1) def. of conservation dependent inserted by No. 28/2019 s. 4(1). S. 3(1) def. of critical habitat inserted by No. 28/2019 s. 4(1). Authorised by the Chief Parliamentary Counsel Part 1—Preliminary Flora and Fauna Guarantee Act 1988 No. 47 of 1988 5 critical habitat determination means a determination made under Division 2 of Part 4; critically endangered, in relation to a taxon of flora or fauna, means that the taxon is facing an extremely high risk of extinction in the wild in the immediate future; Department means the Department of Environment, Land, Water and Planning; development includes— (a) the construction or exterior alteration of a building or other structure; and (b) the demolition or removal of a building or other structure or works; and (c) the construction or carrying out of works; and (d) the subdivision or consolidation of land; and (e) the placing or relocation of a building or other structure or works on land; * * * * * S. 3(1) def. of critical habitat determination inserted by No. 28/2019 s. 4(1). S. 3(1) def. of critically endangered inserted by No. 28/2019 s. 4(1). S. 3(1) def. of Department substituted by Nos 46/1998 s. 7(Sch. 1), 108/2004 s. 117(1) (Sch. 3 item 80.1), amended by Nos 70/2013 s. 4(Sch. 2 item 19.1), 28/2019 s. 4(2). S. 3(1) def. of Director General repealed by No. 76/1998 s. 9(a)(i). Authorised by the Chief Parliamentary Counsel Part 1—Preliminary Flora and Fauna Guarantee Act 1988 No. 47 of 1988 6 endangered, in relation to a taxon of flora or fauna, means that the taxon is not critically endangered but is facing a very high risk of extinction in the wild in the near future; enforceable undertaking means an undertaking accepted by the Secretary under section 62A; Excluded List means the list made under section 5(1); extinct, in relation to a taxon of flora or fauna, means that there is no reasonable doubt that the last member of the taxon has died; extinct in the wild, in relation to a taxon of flora or fauna, means that the taxon is known only to survive in cultivation, in captivity, or as a naturalised population well outside its past range; extinction risk, in relation to a taxon of flora or fauna, means whether the taxon is at risk of extinction in Australia or Victoria; fauna means any animal-life which is indigenous to Victoria whether vertebrate or invertebrate and in any stage of biological development and includes fish and any other living thing generally classified as fauna but does not include humans; fish has the same meaning as in the Fisheries Act 1995; S. 3(1) def. of endangered inserted by No. 28/2019 s. 4(1). S. 3(1) def. of enforceable undertaking inserted by No. 28/2019 s. 4(1). S. 3(1) def. of Excluded List inserted by No. 10/2000 s. 4. S. 3(1) def. of extinct inserted by No. 28/2019 s. 4(1). S. 3(1) def. of extinct in the wild inserted by No. 28/2019 s. 4(1). S. 3(1) def. of extinction risk inserted by No. 28/2019 s. 4(1). S. 3(1) def. of fish amended by No. 92/1995 s. 161(Sch. 2 item 1). Authorised by the Chief Parliamentary Counsel Part 1—Preliminary Flora and Fauna Guarantee Act 1988 No. 47 of 1988 7 flora means any plant-life which is indigenous to Victoria whether vascular or non-vascular and in any stage of biological development and includes any other living thing generally classified as flora; Government Department has the same meaning as Department has in the Public Administration Act 2004; habitat conservation order means a habitat conservation order made under Division 1 of Part 5; keep in relation to flora or fauna, means to have charge or possession of in captivity or in a domesticated state; land includes— (a) buildings and other structures permanently fixed to land; and (b) land covered with water; and (c) any estate, interest, easement, servitude, privilege or right in or over land; landholder— (a) in relation to land which has been alienated from the Crown and is under the operation of the Transfer of Land Act 1958 (other than land in an identified folio under that Act), means the person who is registered as a proprietor, or the persons who are registered as the proprietors, of an estate in fee simple in the land; and S. 3(1) def. of Government Department inserted by No. 28/2019 s. 4(1). S. 3(1) def. of habitat conservation order inserted by No. 28/2019 s. 4(1). S. 3(1) def. of landholder amended by No. 85/1998 s. 24(Sch. item 23(a)(b)). Authorised by the Chief Parliamentary Counsel Part 1—Preliminary Flora and Fauna Guarantee Act 1988 No. 47 of 1988 8 (b) in relation to land which has been alienated from the Crown and is land in an identified folio under the Transfer of Land Act 1958 or land not under the operation of the Transfer of Land Act 1958, means the person who is the owner or the persons who are the owners of the fee or equity of redemption; and (c) in relation to Crown land which is occupied under a lease, licence or other right, means the occupier under that lease, licence or right; and (d) in relation to Crown land which is managed or controlled by a public authority (other than the Minister administering this Act) means the public authority or Minister that manages or controls the land; and (e) in relation to land, whether or not alienated by the Crown, means a person who, whether alone or with others, is in occupation or possession, or has the management or control, of land, and includes the agent of such a person; * * * * * S. 3(1) defs of Land Protection Council, Land Protection Regional Advisory Committee repealed by No. 52/1994 s. 97(Sch. 3 item 12.1). Authorised by the Chief Parliamentary Counsel Part 1—Preliminary Flora and Fauna Guarantee Act 1988 No. 47 of 1988 9 listed means— (a) in relation to a taxon of flora or fauna or a community of flora or fauna, that the taxon or community is specified in the Threatened List; and (b) in relation to a potentially threatening process, that the process is specified in the Processes List; management plan means a management plan made under Division 3 of Part 4; minor amendment, in relation to a list under section 10 or 11, has the same meaning as in section 16I(4); municipal council has the same meaning as Council has in the Local Government Act 1989; national conservation advice has the same meaning as approved conservation advice has in the Commonwealth Act; national recovery plan has the same meaning as recovery plan has in the Commonwealth Act; S. 3(1) def. of listed inserted by No. 28/2019 s. 4(1). S. 3(1) def. of management plan inserted by No. 28/2019 s. 4(1). S. 3(1) def. of minor amendment inserted by No. 28/2019 s. 4(1). S. 3(1) def. of municipal council inserted by No. 28/2019 s. 4(1). S. 3(1) def. of national conservation advice inserted by No. 28/2019 s. 4(1). S. 3(1) def. of national recovery plan inserted by No. 28/2019 s. 4(1). Authorised by the Chief Parliamentary Counsel Part 1—Preliminary Flora and Fauna Guarantee Act 1988 No. 47 of 1988 10 nomination means a nomination made under section 16A; planning scheme means a planning scheme made or having effect under the Planning and Environment Act 1987; potentially threatening process means a process which may have the capability to threaten the survival, abundance or evolutionary development of any taxon or community of flora or fauna; private land means any land other than public land; Processes List means the list established and maintained under section 11(1); protected flora means— (a) any flora that is a member of a taxon of flora that is declared to be protected under section 46; or (b) any flora that is a member of a listed taxon of flora; or (c) any flora that is a part or member of a listed community of flora or fauna to the extent that it occurs within that community; S. 3(1) def. of nomination inserted by No. 28/2019 s. 4(1). S. 3(1) def. of private land inserted by No. 28/2019 s. 4(1). S. 3(1) def. of Processes List inserted by No. 10/2000 s. 4, amended by No. 28/2019 s. 4(3). S. 3(1) def. of protected flora substituted by No. 28/2019 s. 4(4). Authorised by the Chief Parliamentary Counsel Part 1—Preliminary Flora and Fauna Guarantee Act 1988 No. 47 of 1988 11 public authority means a body established for a public purpose by or under any Act and includes— (a) an Administrative Office; and (b) a Government Department; and (c) a municipal council; and (d) a public entity; and (e) a State-owned enterprise; public entity has the same meaning as in the Public Administration Act 2004; public land means Crown land or land owned by, or vested in, a public authority; recategorisation amendment means an amendment made to the Threatened List under section 10(5) in relation to a taxon of flora or fauna; * * * * * restricted use protected flora means a taxon of flora that is declared under section 46 to be protected and is subject to a restriction on use; S. 3(1) def. of public authority substituted by No. 28/2019 s. 4(5). S. 3(1) def. of public entity inserted by No. 28/2019 s. 4(1). S. 3(1) def. of public land inserted by No. 28/2019 s. 4(1). S. 3(1) def. of recategori sation amendment inserted by No. 28/2019 s. 4(1). S. 3(1) def. of Regional Catchment and Land Protection Board inserted by No. 52/1994 s. 97(Sch. 3 item 12.2), repealed by No. 39/1998 s. 14(1)(b). S. 3(1) def. of restricted use protected flora inserted by No. 28/2019 s. 4(1). Authorised by the Chief Parliamentary Counsel Part 1—Preliminary Flora and Fauna Guarantee Act 1988 No. 47 of 1988 12 Secretary means the body corporate established by Part 2 of the Conservation, Forests and Lands Act 1987; State owned enterprise has the same meaning as in the State Owned Enterprises Act 1992; take in relation to flora or fauna, means to kill, injure, disturb or collect flora; taxon means a taxonomic group of any rank into which organisms are categorised; threat abatement plan has the same meaning as in the Commonwealth Act; Threatened List means the list established and maintained under section 10(1); trade includes— (a) to buy, to agree to receive or accept under an agreement to buy, to acquire by barter, or to cause or suffer any of those things; and (b) to sell, to agree to offer or expose for sale or to keep and have in one's possession for sale, to deliver or receive for sale, to dispose of by barter for the purposes of gain or advancement or to cause or suffer any of those things; S. 3(1) def. of Secretary inserted by No. 76/1998 s. 9(a)(ii). S. 3(1) def. of State owned enterprise inserted by No. 28/2019 s. 4(1). S. 3(1) def. of threat abatement plan inserted by No. 28/2019 s. 4(1). S. 3(1) def. of Threatened List inserted by No. 10/2000 s. 4, amended by No. 28/2019 s. 4(6). Authorised by the Chief Parliamentary Counsel Part 1—Preliminary Flora and Fauna Guarantee Act 1988 No. 47 of 1988 13 Tribunal means Victorian Civil and Administrative Tribunal established by the Victorian Civil and Administrative Tribunal Act 1998; use in relation to land includes use or proposed use for the purpose for which the land has been or is being or may be developed; * * * * * * * * * * vulnerable, in relation to a taxon of flora or fauna, means that the taxon is not critically endangered or endangered but is facing a high risk of extinction in the wild in the medium-term future; water manager means a person who manages or controls water; wild means in an independent unpossessed or natural state and not in an intentionally cultivated or domesticated or captive state, regardless of the location or land tenure; S. 3(1) def. of Tribunal inserted by No. 52/1998 s. 311(Sch. 1 item 31.1(b)). S. 3(1) def. of Victorian Catchment and Land Protection Council inserted by No. 52/1994 s. 97(Sch. 3 item 12.3), repealed by No. 39/1998 s. 14(1)(b). S. 3(1) def. of Victorian Catchment Management Council inserted by No. 39/1998 s. 14(1)(a), repealed by No. 48/2021 s. 141. S. 3(1) def. of vulnerable inserted by No. 28/2019 s. 4(1). Authorised by the Chief Parliamentary Counsel Part 1—Preliminary Flora and Fauna Guarantee Act 1988 No. 47 of 1988 14 works in relation to land includes any change to the natural or existing condition or topography of the land including the removal, destruction or lopping of trees and the removal of vegetation or topsoil. (2) In this Act a reference to a landholder's land includes a reference to land occupied, managed or controlled by the landholder. (3) If under the Public Administration Act 2004 the name of the Department of Environment, Land, Water and Planning is changed, a reference in the definition of Department in subsection (1) to that Department must, from the date when the name is changed, be treated as a reference to the Department by its new name. (4) In determining whether an activity has caused or is likely to cause a significant detrimental impact on protected flora or fish under section 47A, 47C or 52A, the following factors may be taken into account in addition to any other relevant factors— (a) the notable nature of the impact or likely impact on the protected flora or fish; (b) the context of the impact which includes, but is not limited to, the region and locality where the impact occurred; (c) the adverse effect that the impact may have on a scientific, cultural or historical resource; (d) the severity of the impact, which considers, but is not limited to, the unique characteristics of the protected flora or fish, the community of which the protected flora or fish is a part or member (the relevant community) or geographic area; S. 3(3) inserted by No. 46/1998 s. 7(Sch. 1), amended by Nos 108/2004 s. 117(1) (Sch. 3 item 80.2), 70/2013 s. 4(Sch. 2 item 19.2), 28/2019 s. 4(8). S. 3(4) inserted by No. 28/2019 s. 4(9). Authorised by the Chief Parliamentary Counsel Part 1—Preliminary Flora and Fauna Guarantee Act 1988 No. 47 of 1988 15 (e) the cumulative impact of the activity and any other activities or processes, regardless of the significance of those other activities or processes; (f) whether the impact is a direct or indirect consequence of the activity; (g) the extent the impact has on— (i) the interaction between the components making up the relevant community; (ii) opportunities for re-establishment and recovery of the protected flora or fish or relevant community; (iii) the capacity for adaptation to environment change of the protected flora or fish or relevant community; (iv) the conservation of the protected flora or fish or relevant community; (v) the alteration of the ecological character of a relevant community; (vi) the genetic diversity of the protected flora or fish or relevant community; (vii) current or future conservation efforts. 4 Objectives of this Act The objectives of this Act are— (a) to guarantee that all taxa of Victoria's flora and fauna, other than taxa specified in the Excluded List, can persist and improve in the wild and retain their capacity to adapt to environmental change; and (b) to prevent taxa and communities of flora and fauna from becoming threatened and to recover threatened taxa and communities so their conservation status improves; and S. 4 amended by No. 10/2000 s. 5, substituted by No. 28/2019 s. 5. Authorised by the Chief Parliamentary Counsel Part 1—Preliminary Flora and Fauna Guarantee Act 1988 No. 47 of 1988 16 (c) to protect, conserve, restore and enhance biodiversity, including— (i) flora and fauna and their habitats; and (ii) genetic diversity; and (iii) ecological communities; and (iv) ecological processes; and (d) to identify and mitigate the impacts of potentially threatening processes to address the important underlying causes of biodiversity decline; and (e) to ensure the use of biodiversity as a natural resource is ecologically sustainable; and (f) to identify and conserve areas of Victoria in respect of which critical habitat determinations are made. 4A Principles of this Act It is a principle of this Act that a decision, policy, program or process gives proper consideration to the following— (a) the rights and interests of traditional owners by— (i) acknowledging cultural and spiritual connections to land, biodiversity and resources through a relationship with country; and (ii) supporting participation in decision making, planning and the development of policies, programs and processes; and (iii) facilitating access to biodiversity and providing opportunities for economic advancement; (b) the potential impacts of climate change; S. 4A inserted by No. 28/2019 s. 6. Authorised by the Chief Parliamentary Counsel Part 1—Preliminary Flora and Fauna Guarantee Act 1988 No. 47 of 1988 17 (c) the best practicably available information relevant to biodiversity; (d) the precautionary principle, such that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation; (e) enabling public participation; (f) supporting collaboration between government, the community and partner agencies. 4B Ministers and public authorities to give proper consideration of objectives (1) In performing any of their functions that may reasonably be expected to impact on biodiversity in Victoria, including a function under this Act or any other Act, a Minister and a public authority must give proper consideration to the objectives of this Act, so far as is consistent with the proper exercising of their functions. (2) In addition to subsection (1), a Minister and a public authority, so far as is consistent with the proper exercising of their functions, must give proper consideration to any instrument made under this Act, including— (a) the Biodiversity Strategy; and (b) action statements; and (c) critical habitat determinations; and (d) management plans. (3) Without limiting subsections (1) and (2), consideration must be given to the potential impacts on biodiversity, including— S. 4B inserted by No. 28/2019 s. 6. Authorised by the Chief Parliamentary Counsel Part 1—Preliminary Flora and Fauna Guarantee Act 1988 No. 47 of 1988 18 (a) long and short-term impacts; and (b) beneficial and detrimental impacts; and (c) direct and indirect impacts; and (d) cumulative impacts; and (e) the impacts of potentially threatening processes. (4) The Minister may make guidelines in relation to the proper consideration of the objectives of this Act and the instruments made under it by public authorities. 4C Minister may request information to ensure objectives are being considered (1) The Minister may request a public authority to provide any information that the Minister considers is necessary and reasonable— (a) to ensure that the duty to consider the objectives of this Act and the instruments made under it is being performed; or (b) to ensure that an action taken, or to be taken, by the public authority does not threaten the persistence of a listed taxon or community or critical habitat. (2) A public authority must comply with a request under subsection (1). (3) The Minister may cause any information obtained under this section to be published on the Internet. 5 Flora and fauna which are excluded from the Act (1) The Governor in Council may, on the recommendation of the Minister, and by Order published in the Government Gazette specify, in a list, a taxon, the members of which constitute a serious threat to human welfare, and may amend the list or repeal the whole or any part of the list. S. 4C inserted by No. 28/2019 s. 6. S. 5(1) substituted by No. 10/2000 s. 6. Authorised by the Chief Parliamentary Counsel Part 1—Preliminary Flora and Fauna Guarantee Act 1988 No. 47 of 1988 19 (2) The Minister may make a recommendation under subsection (1) only after considering a recommendation of the Committee. (3) If the Committee proposes to make a recommendation to the Minister it must advertise the proposed recommendation and the reasons for it in the Government Gazette and in a newspaper circulating generally throughout the State. (4) After advertising its preliminary recommendation the Committee must allow at least 30 days to elapse for public comment to be made and must consider any public comments which are made during that time before making its recommendation. (5) After considering the Committee's recommendation the Minister may decide whether or not to recommend to the Governor in Council that the addition, amendment or repeal be made and the Minister must publish reasons for that decision in the Government Gazette and in a newspaper circulating generally throughout the State. 6 Crown to be bound This Act binds the Crown, not only in right of the State of Victoria but also, so far as the legislative power of the Parliament permits, the Crown in all its other capacities. 6A Traditional owner agreement for natural resources If a traditional owner group entity has an agreement under Part 6 of the Traditional Owner Settlement Act 2010, any provision of this Act that provides for an offence for carrying out an agreed activity (other than section 32) does not apply to a member of the traditional owner group— S. 5(2) substituted by No. 10/2000 s. 6. S. 6A inserted by No. 67/2016 s. 30(1), amended by No. 28/2019 s. 7. Authorised by the Chief Parliamentary Counsel Part 1—Preliminary Flora and Fauna Guarantee Act 1988 No. 47 of 1988 20 (a) who is bound by the agreement; and (b) who is carrying out an agreed activity to which the offence applies in accordance with the agreement and on land to which the agreement applies. Authorised by the Chief Parliamentary Counsel Part 2—Administration Flora and Fauna Guarantee Act 1988 No. 47 of 1988 21 Part 2—Administration 7 Functions of the Secretary (1) The Secretary must administer this Act in such a way as to promote the objectives of this Act. (2) If the Secretary is of the opinion that action taken or to be taken by a public authority is likely to threaten the persistence of a listed taxon or community of flora or fauna or a critical habitat the Secretary may require the public authority to consult with the Secretary either before the action starts, or if the action has already started within 15 days of the request being made. (3) In administering this Act, the Secretary is to give proper consideration to the principles of this Act. 8 The Scientific Advisory Committee (1) There is established by this Act a body to be called the Scientific Advisory Committee. (2) The following are the functions of the Committee— (a) to advise the Minister on the listing of taxa or communities of flora and fauna and potentially threatening processes; (b) to advise the Minister on any other flora and fauna conservation matters. (3) The Committee consists of at least 7 but not more than 9 members appointed by the Minister. S. 7(1) amended by Nos 76/1998 s. 9(b)(i), 28/2019 s. 8(1). S. 7(2) amended by Nos 76/1998 s. 9(b)(i)(ii), 28/2019 s. 8(2). S. 7(3) amended by No. 76/1998 s. 9(b)(i), substituted by No. 28/2019 s. 8(3). S. 8(3) substituted by No. 28/2019 s. 9. Authorised by the Chief Parliamentary Counsel Part 2—Administration Flora and Fauna Guarantee Act 1988 No. 47 of 1988 22 (3A) Subject to subsection (3B), each member of the Committee must be a scientist. (3B) A majority of the members of the Committee must be scientists who are not employed under Part 3 of the Public Administration Act 2004. (4) All members of the Committee must be knowledgeable and experienced in the sciences of flora or fauna conservation or ecology. (5) Each member of the Committee must have in the opinion of the Minister expertise in one or more of the following categories and between them the members of the Committee must have expertise in all the following categories— (a) vertebrate fauna; (b) invertebrate fauna; (c) vascular flora; (d) non-vascular flora; (e) communities of flora or fauna; (f) aquatic taxa or communities of flora or fauna in marine environments; (g) aquatic taxa or communities of flora or fauna in inland aquatic environments; (h) taxa or communities of flora or fauna in terrestrial environments; (i) potentially threatening processes. (6) Except as provided in subsections (7), (8) and (9) the provisions relating to the membership and procedure of committees and councils set out in Schedule 2 to the Conservation, Forests and Lands Act 1987 apply to the Committee. S. 8(3A) inserted by No. 28/2019 s. 9. S. 8(3B) inserted by No. 28/2019 s. 9. Authorised by the Chief Parliamentary Counsel Part 2—Administration Flora and Fauna Guarantee Act 1988 No. 47 of 1988 23 (7) The Convenor must not be a senior government scientific officer. (8) If a Committee member has any interest which is likely to interfere with that member's ability to perform his or her duties as a Committee member that member must disclose that interest to the Committee. (9) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member of the Committee in respect of the office of member. 9 Advice * * * * * (2) Each Catchment Management Authority may provide advice to the Secretary on any matter arising from the administration of this Act for which the Secretary has responsibility. S. 8(9) amended by No. 46/1998 s. 7(Sch. 1), substituted by Nos 108/2004 s. 117(1) (Sch. 3 item 80.3), 80/2006 s. 26(Sch. item 41). S. 9(1) amended by Nos 52/1994 s. 97(Sch. 3 item 12.3), 39/1998 s. 14(2)(a), 28/2019 s. 10(1), repealed by No. 48/2021 s. 142(1). S. 9(2) amended by Nos 52/1994 s. 97(Sch. 3 items 12.3, 12.4), 76/1998 s. 9(c), 39/1998 s. 14(2)(b)(i)(ii), 28/2019 s. 10(2), 48/2021 s. 142(2). Authorised by the Chief Parliamentary Counsel Part 3—Listing of threatened taxa and communities and potentially threatening processes Flora and Fauna Guarantee Act 1988 No. 47 of 1988 24 Part 3—Listing of threatened taxa and communities and potentially threatening processes Division 1—The Threatened List and the Processes List 10 The Threatened List (1) The Governor in Council, in accordance with this section, must establish and maintain a list 1— (a) of threatened taxa of flora and fauna that sets out— (i) the extinction risk of each listed taxon; and (ii) the category of threat that applies to each listed taxon; and (b) of threatened communities of flora or fauna. (2) The Governor in Council— (a) may specify in the list under subsection (1)(a) any taxon of flora or fauna that the Minister, under Division 3, recommends should be specified in the list; and (b) for each taxon specified in the list under subsection (1)(a), must set out, in accordance with the Minister's recommendation under Division 3— (i) the extinction risk of the taxon; and Pt 3 (Headings and ss 10–16) amended by Nos 52/1994 s. 97(Sch. 3 items 12.5, 12.6), 39/1998 s. 14(3)(4), 10/2000 ss 7–9, substituted as Pt 3 (Headings and ss 10– 16K) by No. 28/2019 s. 11. S. 10 substituted by No. 28/2019 s. 11. Authorised by the Chief Parliamentary Counsel Part 3—Listing of threatened taxa and communities and potentially threatening processes Flora and Fauna Guarantee Act 1988 No. 47 of 1988 25 (ii) the category of threat that applies to the taxon. (3) The Governor in Council may specify in the list under subsection (1)(b) any community of flora or fauna that the Minister, under Division 3, recommends should be specified in the list. (4) The Governor in Council— (a) may remove any taxon of flora or fauna from the list under subsection (1)(a) that the Minister, under Division 3, recommends to be removed from the list; and (b) may remove any community of flora or fauna from the list under subsection (1)(b) that the Minister, under Division 3, recommends should be removed from the list. (5) The Governor in Council may amend the list under subsection (1)(a) to change the extinction risk of, or category of threat that applies to, a taxon of flora or fauna specified in the list, if the Minister, under Division 3, so recommends. (6) The Governor in Council may make a minor amendment to the list under subsection (1)(a) or (b) if the Minister, under section 16I, so recommends. (7) A decision of the Governor in Council under this section must be made by Order and published in the Government Gazette. Note Under section 16G(2), the Minister must consider the Committee's final recommendation before making a recommendation to the Governor in Council that an Order be made under this section. Authorised by the Chief Parliamentary Counsel Part 3—Listing of threatened taxa and communities and potentially threatening processes Flora and Fauna Guarantee Act 1988 No. 47 of 1988 26 11 Listing of potentially threatening processes (1) The Governor in Council, in accordance with this section, must establish and maintain a list of potentially threatening processes. 2 (2) The Governor in Council may specify in the list under subsection (1) any potentially threatening process that the Minister, under Division 3, recommends should be specified in the list. (3) The Governor in Council may remove any potentially threatening process from the list under subsection (1) that the Minister, under Division 3, recommends should be removed from the list. (4) The Governor in Council may make a minor amendment to the list under subsection (1) if the Minister, under section 16I, so recommends. (5) A decision of the Governor in Council under this section must be made by Order and published in the Government Gazette. Note Under section 16G(2) the Minister must consider the Committee's final recommendation before making a recommendation to the Governor in Council that an Order be made under this section. Division 2—Eligibility of taxa, communities and processes to be listed under Division 1 12 Determination of eligibility for listing (1) The eligibility of a taxon of flora or fauna (including the extinction risk and the category of threat that applies to the taxon) or the eligibility of a community of flora or fauna to be specified in the Threatened List or the eligibility of a potentially threatening process to be specified in the Processes List must be determined in accordance with the eligibility criteria prescribed for the purposes of this Division that apply to that S. 11 substituted by No. 28/2019 s. 11. S. 12 substituted by No. 28/2019 s. 11. Authorised by the Chief Parliamentary Counsel Part 3—Listing of threatened taxa and communities and potentially threatening processes Flora and Fauna Guarantee Act 1988 No. 47 of 1988 27 taxon, community or potentially threatening process. (2) Any eligibility criteria prescribed for the purposes of this Division must be based only on nature conservation matters. 13 Eligibility for listing of taxon of flora or fauna A taxon of flora or fauna is eligible to be listed in the Threatened List— (a) if at the time of listing it is at risk of extinction in Australia, in one of the following categories of threat— (i) extinct; (ii) extinct in the wild; (iii) critically endangered; (iv) endangered; (v) vulnerable; (vi) in the case of a taxon of fish, conservation dependent; or (b) if at the time of listing it is at risk of extinction in Victoria, in a category of threat referred to in paragraph (a)(i) to (v). 14 Eligibility for listing of communities of flora or fauna A community of flora or fauna is eligible to be listed in the Threatened List if it is— (a) in a demonstrable state of decline that is likely to result in extinction in Victoria; or (b) significantly prone to future threats which are likely to result in extinction in Victoria. S. 13 substituted by No. 28/2019 s. 11. S. 14 substituted by No. 28/2019 s. 11. Authorised by the Chief Parliamentary Counsel Part 3—Listing of threatened taxa and communities and potentially threatening processes Flora and Fauna Guarantee Act 1988 No. 47 of 1988 28 15 Eligibility of sub-species of flora or fauna or narrowly defined community of flora or fauna A taxon of flora or fauna that is below the level of sub-species and a community of flora or fauna that is narrowly defined because of its taxonomic composition, environmental conditions or geography is only eligible for listing on the Threatened List if, in addition to the requirements of section 13 or 14, there is a special need to conserve it. 16 Eligibility for listing of potentially threatening processes A potentially threatening process is eligible to be listed in the Processes List if, in the absence of appropriate management, it poses or has the potential to pose a significant threat to the survival or evolutionary development of a range of flora or fauna. Division 3—The nomination and assessment process for the listing of taxa, communities and processes 16A Nominations for listing (1) A person may make a nomination to the Committee to be considered under this Division— (a) that a taxon of flora or fauna is eligible to be specified in the Threatened List and may, in the nomination, specify an extinction risk and category of threat for the taxon; or (b) that a community of flora or fauna is eligible to be specified in the Threatened List; or (c) that a potentially threatening process is eligible to be specified in the Processes List. S. 15 substituted by No. 28/2019 s. 11. S. 16 substituted by No. 28/2019 s. 11. S. 16A inserted by No. 28/2019 s. 11. Authorised by the Chief Parliamentary Counsel Part 3—Listing of threatened taxa and communities and potentially threatening processes Flora and Fauna Guarantee Act 1988 No. 47 of 1988 29 (2) A person may make a nomination to the Committee to be considered under this Division— (a) that a taxon of flora or fauna that is specified in the Threatened List is no longer eligible to be specified in the Threatened List; or (b) that a community of flora or fauna that is specified in the Threatened List is no longer eligible to be specified in the Threatened List; or (c) that a potentially threatening process that is specified in the Processes List is no longer eligible to be specified in the Processes List. (3) A person may make a nomination to the Committee that a recategorisation amendment be made to the Threatened List in relation to a taxon of flora or fauna specified in that list. (4) A nomination must— (a) include any prescribed information; and (b) be in writing addressed to the Secretary to the Committee unless the nomination is made by the Committee on its own motion. 16B Consideration of the nomination by the Committee (1) This section does not apply in relation to a nomination made by the Committee. (2) The Committee must consider each nomination as soon as possible after it has been made. (3) The Committee may consider different nominations about the same taxon of flora or fauna or community of flora or fauna or potentially threatening process together. S. 16B inserted by No. 28/2019 s. 11. Authorised by the Chief Parliamentary Counsel Part 3—Listing of threatened taxa and communities and potentially threatening processes Flora and Fauna Guarantee Act 1988 No. 47 of 1988 30 (4) The Committee may reject a nomination if— (a) for a nomination made under section 16A(1), the subject of the nomination is already listed; or (b) for a nomination made under section 16A(3), the Committee considers that a reassessment under this Division would not result in a recategorisation amendment being made in relation to the listed taxon of flora or fauna; or (c) the nomination is vexatious; or (d) the nomination is not accompanied by the prescribed information (if any). (5) If the Committee rejects a nomination it must notify the Minister and the nominator of that rejection and must give reasons for rejecting the nomination. 16C Assessment of eligibility of taxon, community or process to be listed (1) The Committee may assess the eligibility for listing of a taxon of flora or fauna, a community of flora or fauna or a potentially threatening process if a nomination has been made in relation to the taxon, community or process— (a) which the Committee has considered and not rejected under section 16B; or (b) by the Committee. (2) An assessment must be conducted by the Committee under this section in accordance with the eligibility criteria prescribed for the purposes of Division 2. S. 16C inserted by No. 28/2019 s. 11. Authorised by the Chief Parliamentary Counsel Part 3—Listing of threatened taxa and communities and potentially threatening processes Flora and Fauna Guarantee Act 1988 No. 47 of 1988 31 (3) Subject to subsection (4), the Committee must assess the eligibility of a taxon of flora or fauna to be specified in the Threatened List first on the basis of its risk of extinction in Australia. (4) The Committee may assess the eligibility of a taxon of flora or fauna to be specified in the Threatened list on the basis of its risk of extinction in Victoria only in any of the following circumstances— (a) the taxon has been assessed by the Committee or under the law of another jurisdiction as not being at risk of extinction in Australia; (b) the taxon has been assessed under the law of another jurisdiction as being at risk of extinction in Australia but the Committee is of the opinion that the assessment was not conducted in accordance with the common assessment method; (c) the taxon is likely to be assessed in accordance with the common assessment method under the law of another jurisdiction but the Committee is of the opinion that there are factors that warrant the assessment of the taxon on the basis of its risk of extinction in Victoria. (5) The Committee may only, under subsection (4), assess the eligibility of a taxon of flora or fauna to be listed on the basis of its risk of extinction in Victoria for any of the following categories of threat— (a) extinct; (b) extinct in the wild; (c) critically endangered; Authorised by the Chief Parliamentary Counsel Part 3—Listing of threatened taxa and communities and potentially threatening processes Flora and Fauna Guarantee Act 1988 No. 47 of 1988 32 (d) endangered; (e) vulnerable. 16D The Committee's preliminary recommendation (1) The Committee, after assessing a nomination, must make a preliminary recommendation that the nomination should either be supported, with or without variation, or not be supported. (2) When the Committee has made a preliminary recommendation it must as soon as possible— (a) notify the nominator (other than the Committee) of the nomination; and (b) publish the Committee's preliminary recommendation and the reasons for it on the Internet together with a statement that submissions may be made on the preliminary recommendation to the Committee within 30 days after publication of the preliminary recommendation; and (c) publish a notice of the making of the preliminary recommendation in the Government Gazette that includes a statement that submissions may be made on the preliminary recommendation to the Committee within 30 days after publication of the preliminary recommendation. (3) After publishing a preliminary recommendation the Committee must allow 30 days to elapse for public comment to be made on the preliminary recommendation. 16E Taxon assessed by another jurisdiction as to its risk of extinction in Australia (1) This section applies if, under the law of another jurisdiction, a taxon of flora or fauna has been assessed in relation to its eligibility to be listed S. 16D inserted by No. 28/2019 s. 11. S. 16E inserted by No. 28/2019 s. 11. Authorised by the Chief Parliamentary Counsel Part 3—Listing of threatened taxa and communities and potentially threatening processes Flora and Fauna Guarantee Act 1988 No. 47 of 1988 33 under that law as threatened with extinction and a determination is made— (a) that the taxon is at risk of extinction in Australia in a particular category of threat; or (b) that the taxon is not at risk of extinction in Australia in a particular category of threat; or (c) that the taxon is at risk of extinction in Australia in a different category of threat to the category of threat that currently applies to the taxon. (2) If the Committee is of the opinion that the assessment of the taxon of flora or fauna was conducted in accordance with the common assessment method, the Committee must decide to make a final recommendation under section 16F in relation to the taxon that is the same as any recommendation arising from the assessment. Note If the Committee does not make a final recommendation under section 16F in relation to a taxon referred to in subsection (1) because the Committee is of the opinion that the assessment of the taxon in another jurisdiction was not conducted in accordance with the common assessment method, a nomination under section 16A could be made by a person or the Committee in relation to the taxon and in that case the assessment process in this Division would apply. 16F The Committee's final recommendation (1) The Committee must make a final recommendation to the Minister— (a) that a nomination should either be supported, with or without variation, or not be supported; or (b) in relation to a taxon of flora or fauna referred to in section 16E(2)— (i) that the taxon be specified in the Threatened List; or S. 16F inserted by No. 28/2019 s. 11. Authorised by the Chief Parliamentary Counsel Part 3—Listing of threatened taxa and communities and potentially threatening processes Flora and Fauna Guarantee Act 1988 No. 47 of 1988 34 (ii) that the taxon be removed from the Threatened List; or (iii) that a change be made to the category of threat that applies to the taxon in the Threatened List; or (iv) that the taxon not be specified in the Threatened List; or (v) that no change be made to the category of threat that applies to the taxon in the Threatened List. (2) If a preliminary recommendation on a nomination has been made under section 16D, the Committee must consider any public comments made within the 30-day period allowed for public comment under section 16D(3) before making a final recommendation to the Minister under subsection (1)(a). (3) The Committee must give reasons for its final recommendation to the Minister. (4) The Committee must make a final recommendation— (a) under subsection (1)(a) within 3 years after the making of the nomination; and (b) under subsection (1)(b) within 2 years after the making of the decision under section 16E(2). (5) When the Committee has made its final recommendation— (a) it must notify any nominator (other than the Committee) of the recommendation; and (b) publish the recommendation and the reasons for it on the Internet; and S. 16F(5)(a) amended by No. 48/2021 s. 143. Authorised by the Chief Parliamentary Counsel Part 3—Listing of threatened taxa and communities and potentially threatening processes Flora and Fauna Guarantee Act 1988 No. 47 of 1988 35 (c) publish a notice of the making of the recommendation in the Government Gazette. 16G Minister's recommendation (1) After receiving a final recommendation from the Committee, the Minister may recommend to the Governor in Council that the Governor in Council— (a) specify any eligible taxon of flora or fauna in the Threatened List and set out the extinction risk of, and the category of threat that applies, to the taxon; or (b) specify an eligible community of flora or fauna in the Threatened List; or (c) remove any taxon of flora or fauna from the Threatened List that is no longer an eligible taxon of flora or fauna; or (d) remove any eligible community of flora or fauna from the Threatened List that is no longer an eligible community of flora or fauna; or (e) amend the Threatened List to change the extinction risk of, or the category of threat that applies to, a taxon of flora or fauna specified in that list; or (f) specify an eligible potentially threatening process in the Processes List; or (g) remove a potentially threatening process from the Processes List that is no longer an eligible potentially threatening process. (2) Before making a recommendation under subsection (1), the Minister must consider the final recommendation of the Committee. S. 16G inserted by No. 28/2019 s. 11. Authorised by the Chief Parliamentary Counsel Part 3—Listing of threatened taxa and communities and potentially threatening processes Flora and Fauna Guarantee Act 1988 No. 47 of 1988 36 (3) For each final recommendation of the Committee, the Minister must— (a) within 60 days after receiving the final recommendation make a decision as to whether or not to support the final recommendation; and (b) if the Minister supports the final recommendation, make a recommendation under subsection (1) in relation to the final recommendation (other than a final recommendation referred to in section 16F(1)(b)(iv) or (v)). Note A final recommendation of the Committee in relation to a taxon of flora or fauna referred to in section 16F(1)(b)(iv) or (v) will not require a recommendation under subsection (1) as there will be no change required to be made to the Threatened List in relation to that taxon. (4) A decision by the Minister under subsection (3) is not made invalid by a failure to make that decision within the 60 day period referred to in that subsection. (5) The Minister must cause— (a) a decision made by the Minister under this section and the reasons for it to be published on the Internet; and (b) a notice of the making of the decision to be published in the Government Gazette. 16H Decisions and recommendations must be made on the basis of nature conservation matters In making a decision or recommendation under this Division, the Minister and the Committee must have regard only to nature conservation matters. S. 16H inserted by No. 28/2019 s. 11. Authorised by the Chief Parliamentary Counsel Part 3—Listing of threatened taxa and communities and potentially threatening processes Flora and Fauna Guarantee Act 1988 No. 47 of 1988 37 Division 4—General 16I Recommendations that minor amendments be made to lists (1) The Committee may recommend to the Minister that a minor amendment be made to the Threatened List or the Processes List. (2) The Minister, within 60 days after receiving the recommendation of the Committee, may recommend to the Governor in Council that the Governor in Council make a minor amendment to the Threatened List or the Processes List. (3) A recommendation by the Minister under subsection (2) is not made invalid by a failure to make that recommendation within the 60-day period referred to in that subsection. (4) Nothing in Division 3 applies— (a) to the Committee in respect of the Committee's decision to make a recommendation under subsection (1); or (b) to the Minister in making a recommendation under subsection (2); or (c) to the making of a minor amendment referred to under subsection (2). (5) In this section— minor amendment means an amendment made to the Threatened List or the Processes List that does not change the status of the listing or category of threat (if applicable) of a listed taxon of flora or fauna, a listed community of flora or fauna or a listed potentially threatening process and includes any of the following— (a) a change in the name of a listed taxon of flora or fauna; S. 16I inserted by No. 28/2019 s. 11. Authorised by the Chief Parliamentary Counsel Part 3—Listing of threatened taxa and communities and potentially threatening processes Flora and Fauna Guarantee Act 1988 No. 47 of 1988 38 (b) a reclassification of a listed taxon of flora or fauna into a further taxon as a result of taxonomic revision; (c) a clarification of a description of a listed community of flora or fauna including to reflect new surveys or research conducted in relation to the community; (d) a correction of any minor error or omission. 16J Consolidated lists to be published on the Internet (1) The Minister must, as soon as practicable after there has been a change made to the Threatened List or the Processes List, ensure that an up-to date consolidated version of the Threatened List or the Processes List is published on the Internet. (2) In this section— change made to the Threatened List or the Processes List means— (a) any additional taxon of flora or fauna, community of flora or fauna or potentially threatening process that is specified in the Threatened List or the Processes List; or (b) any taxon of flora or fauna, community of flora or fauna or potentially threatening process that is removed from the Threatened List or the Processes List; or (c) any recategorisation amendment that is made to the Threatened List in relation to a taxon of flora or fauna; or (d) any minor amendment that is made to the Threatened List or the Processes List. S. 16J inserted by No. 28/2019 s. 11. Authorised by the Chief Parliamentary Counsel Part 3—Listing of threatened taxa and communities and potentially threatening processes Flora and Fauna Guarantee Act 1988 No. 47 of 1988 39 16K Minister to review Lists (1) The Minister must, in accordance with the regulations, ensure that the Threatened List and the Processes List are reviewed for the purposes of identifying any necessary changes referred to in section 16J(2) to be made to those lists. (2) The Minister must ensure that reviews required under subsection (1) are carried out at intervals of no more than 5 years. (3) The first review required under subsection (1) must be carried out within 6 years after the commencement of this Part. (4) The Minister must provide a copy of any review carried out under this section to the Committee. S. 16K inserted by No. 28/2019 s. 11. Authorised by the Chief Parliamentary Counsel Part 4—Management processes Flora and Fauna Guarantee Act 1988 No. 47 of 1988 40 Part 4—Management processes Division 1—Biodiversity Strategy 17 Biodiversity Strategy (1) The Secretary must make a Biodiversity Strategy in relation to the objectives of this Act. (2) A Biodiversity Strategy must include— (a) proposals for achieving the objectives; and (b) targets to measure the achievement of the objectives; and (c) a framework for the purposes of monitoring and evaluating the implementation of the strategy. 18 Preparation of a Biodiversity Strategy In preparing a Biodiversity Strategy, the Secretary must consider— (a) the objectives and principles of this Act; and (b) the need to achieve the objectives and principles of this Act efficiently, effectively and with minimum adverse social and economic impacts; and (c) any approved national biodiversity strategy or equivalent; and (d) any other prescribed matter. Pt 4 Div. 1 (Heading and ss 17, 18) amended by No. 76/1998 s. 9(c), substituted as Pt 4 Div. 1 (Heading and ss 17–18E) by No. 28/2019 s. 12. S. 17 substituted by No. 28/2019 s. 12. S. 18 substituted by No. 28/2019 s. 12. Authorised by the Chief Parliamentary Counsel Part 4—Management processes Flora and Fauna Guarantee Act 1988 No. 47 of 1988 41 18A Public consultation on a Biodiversity Strategy (1) Before making a Biodiversity Strategy, the Secretary must publish— (a) on the Internet— (i) a copy of the draft strategy; and (ii) a statement that submissions on the draft strategy may be made to the Secretary on or before a specified date, being at least 30 days after publication; and (b) in a newspaper circulating generally throughout Victoria a notice that— (i) summarises the contents of the draft strategy; and (ii) specifies where a copy of the draft strategy can be obtained; and (iii) states that submissions on the draft strategy may be made to the Secretary on or before a specified date, being at least 30 days after publication of the notice in the newspaper. (2) The Secretary must consider any submissions received on or before the specified date. 18B Making and publication of a Biodiversity Strategy (1) After considering any submissions on a Biodiversity Strategy, the Secretary may make the strategy. (2) The Secretary must publish notice of the making of a Biodiversity Strategy in— (a) the Government Gazette; and (b) a newspaper circulating generally throughout Victoria. S. 18A inserted by No. 28/2019 s. 12. S. 18B inserted by No. 28/2019 s. 12. Authorised by the Chief Parliamentary Counsel Part 4—Management processes Flora and Fauna Guarantee Act 1988 No. 47 of 1988 42 (3) In addition to the notice under subsection (2), the Secretary must publish a copy of the Biodiversity Strategy on the Internet. 18C Amendment of a Biodiversity Strategy (1) The Secretary may amend a Biodiversity Strategy at any time. (2) Sections 17 to 18B apply to the amendment of a Biodiversity Strategy as if the amendment were a draft strategy. (3) Subsection (2) does not apply if the Secretary considers the amendment to be fundamentally declaratory, machinery or administrative in nature. 18D Report on the implementation of a Biodiversity Strategy (1) The Commissioner for Environmental Sustainability must report on the progress of a Biodiversity Strategy in achieving its proposals and targets no later than 5 years after the making of the first strategy under this Division. (2) The Commissioner for Environmental Sustainability must report on the progress of a Biodiversity Strategy in achieving its proposals and targets every 5 years after the first report made under subsection (1). (3) The Secretary must ensure that a report made under this section is laid before both Houses of the Parliament as soon as practicable after the report is made. 18E Future review of a Biodiversity Strategy (1) The Secretary must cause a review to be made of a Biodiversity Strategy on or before 1 July 2037. (2) The Secretary must cause further reviews to be made of the Biodiversity Strategy on or before 1 July in every twentieth year after 1 July 2037. S. 18C inserted by No. 28/2019 s. 12. S. 18D inserted by No. 28/2019 s. 12. S. 18E inserted by No. 28/2019 s. 12. Authorised by the Chief Parliamentary Counsel Part 4—Management processes Flora and Fauna Guarantee Act 1988 No. 47 of 1988 43 (3) After reviewing a Biodiversity Strategy, the Secretary may amend the strategy in accordance with this Division. Division 2—Action statements and critical habitat determinations 19 Action statements (1) The Secretary must prepare an action statement for any listed taxon or community of flora or fauna or potentially threatening process as soon as possible after that taxon, community or process is listed. (2) The action statement must set out what has been done to conserve and manage that taxon or community or process and what is intended to be done and may include information on what needs to be done. (3) In preparing or amending an action statement the Secretary must consider— (a) any management advice given by the Committee; and (b) any other relevant nature conservation, social and economic matters. (4) The Secretary may amend an action statement. Pt 4 Div. 2 (Heading) amended by No. 28/2019 s. 13. S. 19(1) amended by No. 76/1998 s. 9(c). S. 19(3) amended by No. 76/1998 s. 9(c). S. 19(3)(a) amended by Nos 52/1994 s. 97(Sch. 3 item 12.7), 39/1998 s. 14(5), 28/2019 s. 14. S. 19(4) amended by No. 76/1998 s. 9(c). Authorised by the Chief Parliamentary Counsel Part 4—Management processes Flora and Fauna Guarantee Act 1988 No. 47 of 1988 44 20 Critical habitats (1) The Secretary may determine any area of Victoria to be a critical habitat. (2) A determination under subsection (1) must not be made unless the Secretary considers that— (a) the area significantly contributes to the conservation in Victoria of a listed taxon or community of flora or fauna; or (b) the area significantly contributes to the conservation in Victoria of a taxon or community of flora or fauna that is not listed, but in respect of which— (i) a recommendation has been made by the Committee under section 16D; and (ii) the Minister has not made a decision under section 16G or has made a decision under that section to make a recommendation; or (c) the area supports ecological processes or ecological integrity that significantly contributes to the conservation of a taxon or community that is listed. (3) Without limiting subsection (2), a determination of a critical habitat may be made if— (a) the area is critical to the persistence of a taxon or community of flora or fauna; or (b) flora or fauna aggregate in the area for reproduction or other important life stages; or (c) the area is used by flora or fauna to move between populations, migrate or disperse, or as refugia during environmental stress; or (d) the taxon or community of flora or fauna is occasionally present in the area; or S. 20 amended by No. 76/1998 s. 9(d), substituted by No. 28/2019 s. 15. Authorised by the Chief Parliamentary Counsel Part 4—Management processes Flora and Fauna Guarantee Act 1988 No. 47 of 1988 45 (e) the taxon or community of flora or fauna is not present in the area but was previously present in the area and there is potential to reintroduce it; or (f) the area is likely to be needed by a taxon or community of flora or fauna in the future. 20A Role of Committee (1) The Committee may make a recommendation to the Secretary to make a critical habitat determination. (2) The Secretary must consider a recommendation of the Committee under subsection (1) and decide whether or not to propose to make a critical habitat determination. (3) The Secretary must give reasons to the Committee for a decision to propose or not propose to make a critical habitat determination. (4) The Secretary must publish the decision and the reasons for it on the Internet. 20B Public consultation on critical habitats (1) Before making a critical habitat determination, the Secretary must give written notice to the following— (a) the landholder of any land that is within the area of the proposed determination; (b) any public authority that performs a function or exercises a power in the area of the proposed determination; (c) any person whose interests, in the opinion of the Secretary, are likely to be adversely affected by the proposed determination. S. 20A inserted by No. 28/2019 s. 15. S. 20B inserted by No. 28/2019 s. 15. Authorised by the Chief Parliamentary Counsel Part 4—Management processes Flora and Fauna Guarantee Act 1988 No. 47 of 1988 46 (2) A written notice under subsection (1) must include a statement that submissions on the proposed determination may be made to the Secretary on or before a specified date, being at least 30 days after the giving of the notice. (3) The Secretary must publish on the Internet— (a) a copy of the proposed determination; and (b) a general description of the effect of the proposed determination; and (c) a statement that submissions on the proposed determination may be made to the Secretary on or before a specified date, being at least 30 days after publication. (4) Subsections (1) and (3) do not apply if the Secretary considers that the written notice or publication of a proposed determination is likely to result in damage being done to the habitat within the area that is subject to the determination. (5) Subsection (3) does not apply if the landholder of any land requests that the information be withheld and the Minister approves the withholding of the information. (6) The Secretary must consider any submissions made under this section and received on or before the specified date. (7) The Secretary must consult with the Committee in preparing a critical habitat determination after the specified date. 20C Making and publication of critical habitat determinations (1) After considering any submissions on a proposed critical habitat determination, the Secretary may make the determination with or without amendment. S. 20C inserted by No. 28/2019 s. 15. Authorised by the Chief Parliamentary Counsel Part 4—Management processes Flora and Fauna Guarantee Act 1988 No. 47 of 1988 47 (2) The Secretary must decide whether or not to make a critical habitat determination within 12 months of the publication of the proposed determination under section 20B(3). (3) The Secretary must publish notice of the making of a critical habitat determination in the Government Gazette. 20D Amendment of critical habitat determinations (1) The Secretary may amend a critical habitat determination at any time. (2) Sections 20 to 20C apply to the amendment of a critical habitat determination as if the amendment were a proposed determination. (3) Subsection (2) does not apply if the Secretary considers the amendment to be fundamentally declaratory, machinery or administrative in nature. 20E Guidelines (1) The Secretary may make guidelines in relation to areas that may be eligible for critical habitat determinations. (2) The Secretary must consult with the Committee before making any guidelines under this section. (3) The Secretary must publish a copy of any guidelines made under this section on the Internet. 20F Critical habitat agreements (1) The Secretary must take all reasonable steps to enter into an agreement in respect of an area that is subject to a critical habitat determination. (2) For the purposes of subsection (1), the agreement must be— (a) a public authority management agreement; or S. 20D inserted by No. 28/2019 s. 15. S. 20E inserted by No. 28/2019 s. 15. S. 20F inserted by No. 28/2019 s. 15. Authorised by the Chief Parliamentary Counsel Part 4—Management processes Flora and Fauna Guarantee Act 1988 No. 47 of 1988 48 (b) an agreement under section 69 of the Conservation, Forests and Lands Act 1987. (3) An agreement referred to in this section must specify measures to provide for the long-term conservation and protection of the critical habitat. (4) Subsection (1) does not apply if the Secretary considers that an alternative agreement is in place to provide for the long-term conservation and protection of the critical habitat. Division 3—Flora and fauna management plans 21 Procedure for making management plans (1) Subject to subsection (2), the Secretary may make a management plan for any taxon or community of flora or fauna or potentially threatening process. (2) The Minister may make guidelines in relation to the circumstances in which the Secretary must make a management plan under this section. (3) The Secretary must make a management plan for a taxon or community of flora or fauna or potentially threatening process in accordance with any guidelines made by the Minister. (4) Before making a management plan, the Secretary must publish— (a) on the Internet— (i) a copy of the draft management plan; and (ii) a statement that submissions on the draft management plan may be made to the Secretary on or before a specified S. 21(1) amended by Nos 76/1998 s. 9(d)(i), 28/2019 s. 16(1). S. 21(2) amended by No. 76/1998 s. 9(d), substituted by No. 28/2019 s. 16(2). S. 21(3) amended by No. 76/1998 s. 9(d)(i), substituted by No. 28/2019 s. 16(2). S. 21(4) amended by No. 76/1998 s. 9(d)(i), substituted by No. 28/2019 s. 16(2). Authorised by the Chief Parliamentary Counsel Part 4—Management processes Flora and Fauna Guarantee Act 1988 No. 47 of 1988 49 date, being at least 30 days after publication; and (b) in a newspaper circulating generally throughout Victoria—notice of the preparation of the draft management plan. (5) Any person may make submissions to the Secretary about a draft management plan. (6) After considering all the submissions made within the period set out in the notice the Secretary may make the management plan either with or without changes. (7) A management plan may deal with one or more taxa or communities or potentially threatening processes. 22 Amendment and revocation of management plans (1) The Secretary may amend or revoke a management plan. (2) The procedures applicable to the making of a management plan apply to the revocation of a management plan or the making of an amendment to a management plan which is not a minor amendment. 23 Contents of management plans (1) A management plan must state— (a) the taxon or community of flora or fauna or potentially threatening process to which the plan applies; and S. 21(5) amended by Nos 76/1998 s. 9(d)(i), 28/2019 s. 16(3). S. 21(6) amended by No. 76/1998 s. 9(d)(i). S. 21(7) amended by No. 76/1998 s. 9(d)(i), substituted by No. 28/2019 s. 16(4). S. 22(1) amended by No. 76/1998 s. 9(e). S. 23 amended by No. 76/1998 s. 9(e), substituted by No. 28/2019 s. 17. Authorised by the Chief Parliamentary Counsel Part 4—Management processes Flora and Fauna Guarantee Act 1988 No. 47 of 1988 50 (b) the way in which the objectives of this Act are to be implemented or promoted for the benefit of that taxon or community or the management of that process; and (c) the method by which progress towards achieving the objectives of this Act can be assessed; and (d) the date by which the management plan is recommended for review by the Secretary; and (e) any other prescribed matter. (2) A management plan may provide for any of the following— (a) the conservation or restoration of any taxon or community; (b) the mitigation of impacts to a listed taxon or community, including the manner in which impacts are to be avoided; (c) the management of a listed potentially threatening process; (d) the management of a particular area or resource; (e) the conservation, management or restoration of a critical habitat. (3) In making or amending a management plan the Secretary must consider— (a) the objectives and principles of this Act; and (b) any public submissions; and (c) any comments from the Committee; and (d) any relevant action statement; and Authorised by the Chief Parliamentary Counsel Part 4—Management processes Flora and Fauna Guarantee Act 1988 No. 47 of 1988 51 (e) any relevant national recovery plan, threat abatement plan or national conservation advice; and (f) any other relevant nature conservation, social or economic matters; and (g) any other prescribed matter. 23A Publication of a management plan The Secretary must publish a copy of a management plan on the Internet. 24 Review of management plans The Secretary must review a management plan before the date fixed under section 23(1)(d). Division 4—Public authority management agreements 25 Public authority management agreements (1) Subject to subsection (1A), the Secretary may enter into an agreement with one or more public authorities to provide for the management of any taxon or community of flora or fauna or potentially threatening process. (1A) The Secretary must not enter into an agreement if, in the opinion of the Secretary, the agreement would threaten the conservation of any listed taxon or community of flora or fauna. (2) The Secretary must cause notice of the making of the agreement to be published in the Government Gazette and the agreement must not come into force before the notice is published. (3) The agreement must set out its purposes and aims, the duties and areas of responsibility of the parties and the date on which it begins and (if necessary) ends. S. 23A inserted by No. 28/2019 s. 18. S. 24 amended by No. 76/1998 s. 9(e). S. 25(1) amended by Nos 76/1998 s. 9(e), 28/2019 s. 19(1). S. 25(1A) inserted by No. 28/2019 s. 19(2). S. 25(2) amended by No. 76/1998 s. 9(e). Authorised by the Chief Parliamentary Counsel Part 4—Management processes Flora and Fauna Guarantee Act 1988 No. 47 of 1988 52 (4) An agreement may be changed or terminated by mutual agreement between the parties or according to the terms of the agreement. Authorised by the Chief Parliamentary Counsel Part 5—Conservation and control measures Flora and Fauna Guarantee Act 1988 No. 47 of 1988 53 Part 5—Conservation and control measures Division 1—Habitat conservation orders 26 Habitat conservation orders (1) Subject to this section, the Minister may make a habitat conservation order for the purposes of conserving, protecting or managing— (a) any critical habitat; or (b) any area of Victoria that the Secretary proposes to determine as critical habitat but in respect of which a critical habitat determination has not been made. (2) If a critical habitat determination has been made in relation to a taxon of flora or fauna that is critically endangered or a community of flora or fauna, the Minister must consider whether to make a habitat conservation order for that critical habitat within 2 years of the determination. Pt 5 Div. 1 (Heading and ss 26–44) amended by Nos 92/1990 s. 128(Sch. 1 item 11), 67/1995 s. 58(Sch. 1 item 7), 41/1997 s. 28, 52/1998 s. 311(Sch. 1 items 31.2, 31.3), 76/1998 s. 9(e)–(i), 81/2004 s. 48, 63/2006 s. 61(Sch. item 15), 6/2009 s. 51, 67/2016 s. 30(2), substituted as Pt 5 Div. 1 (Heading and ss 26–42) by No. 28/2019 s. 20. S. 26 substituted by No. 28/2019 s. 20. Authorised by the Chief Parliamentary Counsel Part 5—Conservation and control measures Flora and Fauna Guarantee Act 1988 No. 47 of 1988 54 (3) A habitat conservation order must not be made unless the Minister considers that the order is necessary— (a) to halt, prevent or repair damage that has occurred, is occurring, or is likely to occur to the critical habitat or proposed critical habitat; or (b) to manage the critical habitat or proposed critical habitat to ensure its conservation or protection. (4) A habitat conservation order made in respect of an area of Victoria that the Secretary proposes to determine as critical habitat, but in respect of which a critical habitat determination has not been made, ceases to have effect 12 months after the order is made if a critical habitat determination is not made in respect of that area within that 12-month period. 27 Content of habitat conservation orders (1) A habitat conservation order may provide for any of the following— (a) the conservation, protection or management of flora, fauna, land or water within the critical habitat or proposed critical habitat that is the subject of the order; (b) the prohibition of any activity, land use or development within the critical habitat or proposed critical habitat; (c) a requirement for any person proposing to undertake any activity, land use or development within the critical habitat or proposed critical habitat to obtain a permit from the Minister; S. 27 substituted by No. 28/2019 s. 20. Authorised by the Chief Parliamentary Counsel Part 5—Conservation and control measures Flora and Fauna Guarantee Act 1988 No. 47 of 1988 55 (d) a power to enable the Secretary to undertake any actions or works to conserve, protect or manage the critical habitat or proposed critical habitat; (e) a requirement for the person to repair any damage to the critical habitat or proposed critical habitat that has occurred since the person was given notice of the critical habitat determination or proposed critical habitat determination. (2) In addition to subsection (1), a habitat conservation order may provide for any of the following in respect of an area that is outside the critical habitat or proposed critical habitat but is likely to adversely affect it— (a) the prohibition of any activity, land use or development within the area outside the critical habitat or proposed critical habitat; (b) a requirement for any person proposing to undertake any activity, land use or development within the area outside the critical habitat or proposed critical habitat to obtain a permit from the Minister. (3) A habitat conservation order may specify a period of time for which a requirement imposed under subsection (1) or (2) has effect. (4) A habitat conservation order remains in force for the period specified in the order which must not exceed 10 years after the order takes effect. 28 Preparation of habitat conservation orders (1) In preparing a habitat conservation order, the Minister must consider— (a) the objectives and principles of this Act; and S. 28 substituted by No. 28/2019 s. 20. Authorised by the Chief Parliamentary Counsel Part 5—Conservation and control measures Flora and Fauna Guarantee Act 1988 No. 47 of 1988 56 (b) nature conservation matters; and (c) the social and economic consequences of making the order. (2) Before making a habitat conservation order, the Minister must consult with any other Minister whose area of responsibility is likely to be affected by a habitat conservation order. (3) Subsection (4) applies if the Minister is proposing to make an order in relation to a critical habitat and— (a) some or all of the critical habitat is within an area of land that is the subject of an agreement under Part 6 of the Traditional Owner Settlement Act 2010; and (b) the order will affect the carrying out of an agreed activity under the agreement. (4) The Minister must not make the order— (a) unless before making the order the Secretary takes all reasonable steps to reach agreement with the relevant traditional owner group entity on alternative measures for the conservation, protection or management of the critical habitat; and (b) either of the following applies— (i) agreement is reached by the Secretary and the traditional owner group entity on alternative measures; (ii) a reasonable time is allowed for agreement to be reached by the Secretary and the traditional owner group entity on alternative measures. Authorised by the Chief Parliamentary Counsel Part 5—Conservation and control measures Flora and Fauna Guarantee Act 1988 No. 47 of 1988 57 29 Making, amendment and revocation of habitat conservation orders (1) The Minister must give notice of the making of a habitat conservation order to— (a) any landholder in relation to land within the critical habitat; and (b) any public authority that performs a function or exercises a power in the critical habitat; and (c) any person whose interests, in the opinion of the Secretary, are likely to be adversely affected by the habitat conservation order. (2) A notice under subsection (1) must state that submissions on the habitat conservation order may be made to the Minister on or before a specified date, being at least 30 days after receipt of the notice. (3) After considering any submissions received on or before the specified date, the Minister may confirm, amend or revoke the habitat conservation order. (4) A notice under subsection (1) must be in the prescribed form. 30 Publication of habitat conservation orders (1) The Minister must publish notice of the making of a habitat conservation order in the Government Gazette. (2) A habitat conservation order comes into operation— (a) on the date on which the notice under subsection (1) is published in the Government Gazette; or (b) on any later date specified in the notice. S. 29 substituted by No. 28/2019 s. 20. S. 30 substituted by No. 28/2019 s. 20. Authorised by the Chief Parliamentary Counsel Part 5—Conservation and control measures Flora and Fauna Guarantee Act 1988 No. 47 of 1988 58 31 Further amendment of habitat conservation orders (1) The Minister may amend a habitat conservation order at any time. (2) Sections 26 to 30 apply to the amendment of a habitat conservation order as if the amendment were a proposed order. (3) Subsection (2) does not apply if the Minister considers the amendment to be fundamentally declaratory, machinery or administrative in nature. 32 Offence to contravene a habitat conservation order A person must not contravene a habitat conservation order. Penalty: In the case of a natural person, 240 penalty units or imprisonment for 2 years or both; In the case of a body corporate, 1200 penalty units. 33 Defects in procedure (1) A person cannot bring an action in respect of a failure to comply with the procedure for making a habitat conservation order unless the person is substantially or materially disadvantaged by the failure. (2) A habitat conservation order or an amendment to a habitat conservation order is not made invalid by any failure to comply with the procedure for making or amending a habitat conservation order. (3) A person may apply to the Tribunal for review of a decision to make a habitat conservation order if that person is substantially or materially disadvantaged by a failure to comply with the procedure for making the order. S. 31 substituted by No. 28/2019 s. 20. S. 32 substituted by No. 28/2019 s. 20. S. 33 substituted by No. 28/2019 s. 20. Authorised by the Chief Parliamentary Counsel Part 5—Conservation and control measures Flora and Fauna Guarantee Act 1988 No. 47 of 1988 59 34 Suspension of other licences, permits and authorities (1) The Minister may suspend a licence, permit or other authority issued under any other Act that permits the holder of the licence, permit or authority to act in contravention of a habitat conservation order. (2) A licence, permit or other authority referred to in subsection (1) may be suspended to the extent that it permits the contravention of the habitat conservation order. (3) Before suspending the licence, permit or other authority, the Secretary must consult with the issuer of the licence, permit or authority and advise the Minister of the result of the consultation. (4) The Secretary must give notice of the suspension of the licence, permit or other authority to the holder of the licence, permit or authority. (5) The suspension of the licence, permit or other authority commences— (a) at the time at which the notice is given; or (b) on any later date specified in the notice. 35 Permits (1) A person who wishes to undertake a particular use or activity for which a permit is required under a habitat conservation order must apply to the Minister. (2) In determining whether to grant a permit, the Minister must consider— (a) the objectives and principles of this Act; and (b) the significance of the likely impacts of the proposal on the habitat or the persistence of taxa or communities of flora or fauna within the area; and S. 34 substituted by No. 28/2019 s. 20. S. 35 substituted by No. 28/2019 s. 20. Authorised by the Chief Parliamentary Counsel Part 5—Conservation and control measures Flora and Fauna Guarantee Act 1988 No. 47 of 1988 60 (c) whether all reasonable steps have been taken to avoid the impacts of the proposal on the habitat or the persistence of taxa or communities of flora or fauna within the area; and (d) the likely effectiveness of any proposed measures to mitigate the impacts of the proposal on the habitat or the persistence of taxa or communities of flora or fauna within the area; and (e) any possible social and economic effects that the granting of the permit might have. (3) The Minister must not grant a permit unless the Minister considers that the granting of a permit would not threaten the conservation of any taxon or community of flora or fauna within the area. (4) If the Secretary undertakes any actions or works to manage a habitat or a person is required to repair any damage to the habitat under a habitat conservation order, the Secretary or person is not required to obtain a permit or other authority under the Planning and Environment Act 1987 to carry out those actions or works. 36 Reviews (1) A person may apply to the Tribunal for review of— (a) a requirement or prohibition imposed by a habitat conservation order that affects that person's interests; or (b) a decision of the Minister under a habitat conservation order that affects that person's interests; or (c) a decision of the Minister to suspend a licence, permit or authority of that person under section 34. S. 36 substituted by No. 28/2019 s. 20. Authorised by the Chief Parliamentary Counsel Part 5—Conservation and control measures Flora and Fauna Guarantee Act 1988 No. 47 of 1988 61 (2) If the Minister has not determined an application for a permit within 45 days after it is lodged, the Minister is taken to have made a decision refusing the application at the end of that 45-day period. (3) An application for review must be made— (a) within 30 days after the day on which the applicant was advised of the requirement, prohibition or decision; or (b) in the circumstances referred to in subsection (2), within 30 days after the end of the 45-day period referred to in that subsection. 37 Application for declaration (1) A person may apply to the Tribunal for a declaration concerning the validity of a requirement, prohibition or decision referred to in section 36(1). (2) On an application under subsection (1), the Tribunal may make any declaration it considers appropriate in the circumstances. (3) The Tribunal's power to make a declaration under this section is exercisable only by a presidential member of the Tribunal. 38 Matters Tribunal must take into account In determining an application for review under section 36 or a declaration under section 37 the Tribunal must— (a) take into account any relevant planning scheme; and (b) where appropriate, have regard to any planning scheme or amendment adopted by a planning authority under the Planning and Environment Act 1987 but not, as at the date the application is determined, approved S. 37 substituted by No. 28/2019 s. 20. S. 38 substituted by No. 28/2019 s. 20. Authorised by the Chief Parliamentary Counsel Part 5—Conservation and control measures Flora and Fauna Guarantee Act 1988 No. 47 of 1988 62 by the Minister or the planning authority; and (c) take account of any relevant environment reference standard within the meaning of the Environment Protection Act 2017; and (ca) take account of any Order made by the Governor in Council under section 156 of the Environment Protection Act 2017; and (d) where appropriate, have regard to any agreement made under section 173 of the Planning and Environment Act 1987 affecting land the subject of the application. 39 Compensation (1) A person is entitled to compensation for financial loss suffered as a natural, direct and reasonable consequence of the making of a habitat conservation order where the order affects— (a) an existing use right under the Planning and Environment Act 1987; or (b) an authority granted under another Act. (2) In addition to subsection (1), the holder of a licence, permit or other authority suspended under section 34 is entitled to compensation for financial loss suffered as a natural, direct and reasonable consequence of the suspension of that licence, permit or other authority. (3) The Secretary must determine the amount of compensation to be paid to a person entitled to compensation. S. 38(c) substituted by No. 39/2018, s. 37 (as amended by Nos 27/2019 s. 44, 28/2019 s. 55). S. 38(ca) inserted by No. 39/2018, s. 37 (as amended by Nos 27/2019 s. 44, 28/2019 s. 55). S. 39 substituted by No. 28/2019 s. 20. Authorised by the Chief Parliamentary Counsel Part 5—Conservation and control measures Flora and Fauna Guarantee Act 1988 No. 47 of 1988 63 (4) In making a determination under subsection (3), the Secretary must consult with, and consider the submissions of, any other relevant person or body and must have regard to the following matters— (a) the amount by which, in the Secretary's opinion, the value of the land will be increased or decreased because of the order; (b) the amount of financial loss to the person which, in the Secretary's opinion, would result from compliance with the order; (c) any increase in the value of the land which, in the Secretary's opinion, would result from the carrying out of works by the Secretary; (d) what, in the Secretary's opinion, will be 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, in the Secretary's opinion, 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 Secretary considers relevant. (5) If compensation is payable under this section, the person to whom it is payable is also entitled to be paid for any reasonable costs associated with the claim for compensation and interest associated with the claim for compensation calculated from the time when the loss was first incurred. (6) If a person has applied for compensation, the Secretary may decide to make a payment of an amount determined by the Secretary to that person in advance of any decision being made on that person's application. Authorised by the Chief Parliamentary Counsel Part 5—Conservation and control measures Flora and Fauna Guarantee Act 1988 No. 47 of 1988 64 (7) The Secretary may pay compensation to a person entitled to receive it by part payments at periodic intervals if the Secretary and that person so agree. (8) Parts 10 and 11 and section 37 of the Land Acquisition and Compensation Act 1986, with any necessary changes, apply to the determination of compensation under this section as if the claim were a claim under section 37 of that Act. (9) In this section— existing use right means a use or other thing referred to in section 6(3) of the Planning and Environment Act 1987 (subject to section 6(4) of that Act). 40 Minister and Secretary to ensure conservation of taxon, community or habitat Before a habitat conservation order expires or before a requirement imposed under section 27 expires, the Minister and the Secretary must take all reasonable steps for the purpose of ensuring the long-term conservation of the taxon, community or critical habitat in respect of which the order was made. 41 Habitat conservation orders to prevail over planning schemes Where there is any conflict between a habitat conservation order and a planning scheme, the order prevails over the planning scheme. 42 Register of critical habitat determinations and habitat conservation orders (1) The Secretary must ensure that a register of critical habitat determinations and habitat conservation orders is kept and maintained. S. 40 substituted by No. 28/2019 s. 20. S. 41 substituted by No. 28/2019 s. 20. S. 42 substituted by No. 28/2019 s. 20. Authorised by the Chief Parliamentary Counsel Part 5—Conservation and control measures Flora and Fauna Guarantee Act 1988 No. 47 of 1988 65 (2) The register must include information relating to the following— (a) critical habitat determinations; (b) the amendment or revocation of any critical habitat determinations; (c) agreements with landowners and public authorities relating to areas of critical habitat; (d) habitat conservation orders; (e) the amendment or revocation of any habitat conservation orders. (3) Subject to subsection (4), the Secretary must ensure that an up-to-date copy of the register is made publicly available on the Internet. (4) The Secretary may restrict access to certain information in the register if the Secretary considers that it is necessary to do so in the public interest. Division 2—The handling of flora 45 Reference to flora In this Division and in Part 6 a reference to flora includes a reference to flora which is not indigenous to Victoria and includes a reference to flora in any form including the whole organism or any part or product, whether alive or dead or however processed. 46 Declaration of flora to be protected flora (1) The Governor in Council, on the recommendation of the Minister, may by Order published in the Government Gazette declare a taxon of flora to be protected. S. 46 substituted by No. 28/2019 s. 21. Authorised by the Chief Parliamentary Counsel Part 5—Conservation and control measures Flora and Fauna Guarantee Act 1988 No. 47 of 1988 66 (2) A declaration of a taxon of flora under subsection (1) may provide that the flora is declared to be protected and subject to a restriction on use. (3) The Minister may recommend that a taxon of flora be declared under subsection (1) if the Minister is satisfied that the taxon must be declared to be protected for any one or more of the following reasons— (a) to ensure the taxon survives and retains its capacity to adapt to environmental change; (b) to ensure the use of the taxon is sustainable; (c) to manage risks to the taxon; (d) to ensure genetic diversity of the taxon is maintained. (4) The Minister may recommend, as part of a recommendation made under subsection (3), that a taxon of flora be declared to be protected and that the taxon is subject to a restriction on use if the Minister is of the opinion that unrestricted commercial or personal use of the members of the taxon has the potential to be ecologically unsustainable. 46A Revocation of declaration of flora to be protected (1) The Governor in Council, on the recommendation of the Minister, may by Order published in the Government Gazette revoke a declaration made under section 46 in relation to any taxon of flora declared to be protected. (2) The Minister may recommend that an Order be made be under subsection (1) in relation to a taxon of flora that is declared protected if the Minister is satisfied that there is no longer any reason specified in section 46(3) for declaring the taxon to be protected. S. 46A inserted by No. 28/2019 s. 21. Authorised by the Chief Parliamentary Counsel Part 5—Conservation and control measures Flora and Fauna Guarantee Act 1988 No. 47 of 1988 67 46B Guidelines for declaring flora to be protected flora (1) The Minister must prepare guidelines for determining whether a taxon of flora is eligible to be declared to be protected including being subject to a restriction on use. (2) The guidelines must only relate to nature conservation matters. (3) The Minister may amend the guidelines at any time. (4) The Minister must consult with the Committee before preparing or amending the guidelines. (5) The Minister must ensure that an up-to-date version of the guidelines as amended from time to time is published on the Internet. 46C Minister must publish list of taxa of flora declared to be protected The Minister must ensure that an up-to-date consolidated list of the taxa of flora that have been declared to be protected under section 46 is published on the Internet. 47 Offence to take restricted use protected flora (1) A person must not take, trade in, keep, move or process a restricted use protected flora for the purposes of sale or personal use, unless an exception in subsection (2) applies. Penalty: In the case of a natural person, 120 penalty units; In the case of a body corporate, 600 penalty units. S. 46B inserted by No. 28/2019 s. 21. S. 46C inserted by No. 28/2019 s. 21. S. 47 substituted by No. 28/2019 s. 22. Authorised by the Chief Parliamentary Counsel Part 5—Conservation and control measures Flora and Fauna Guarantee Act 1988 No. 47 of 1988 68 (2) For the purposes of subsection (1), the exceptions are as follows— (a) the person is acting in accordance with a licence or permit under section 48 or an authorisation under section 48A; (b) if the member of the restricted use protected flora was taken from private land, the person— (i) is the landowner or a person given permission by the landowner to take the member; and (ii) did not take the member for the purposes of sale or has not sold or offered the member for sale; (c) the member of the restricted use protected flora was propagated from another member of the restricted use protected flora which had been lawfully obtained and kept. 47A Offence to take restricted use protected flora which causes significant detrimental impact on restricted use protected flora (1) A person must not take, trade in, keep, move or process a member of a restricted use protected flora for the purposes of sale or personal use if that activity causes or is likely to cause a significant detrimental impact on the restricted use protected flora, unless an exception in subsection (2) applies. Penalty: In the case of a natural person, 240 penalty units or imprisonment for 2 years or both; In the case of a body corporate, 1200 penalty units. S. 47A inserted by No. 28/2019 s. 22. Authorised by the Chief Parliamentary Counsel Part 5—Conservation and control measures Flora and Fauna Guarantee Act 1988 No. 47 of 1988 69 Note Section 3(4) sets out factors that are to be taken into account in deciding whether an activity has caused or is likely to cause a significant detrimental impact on a member of restricted use protected flora. (2) For the purposes of subsection (1) the exceptions are as follows— (a) the person is acting in accordance with a licence or permit under section 48 or an authorisation under section 48A; (b) if the member of the restricted use protected flora was taken from private land, the person— (i) is the landowner or a person given permission by the landowner to take the member; and (ii) did not take the member for the purposes of sale or has not sold or offered the member for sale; (c) the member of the restricted use protected flora was propagated from another member of the restricted use protected flora which had been lawfully obtained and kept; (d) the person has accidentally taken the member of the restricted use protected flora despite exercising reasonable care not to take the member. 47B Offence to take other protected flora (1) A person must not take, trade in, keep, move or process protected flora (other than a member of restricted use protected flora) unless an exception in subsection (2) applies. S. 47B inserted by No. 28/2019 s. 22. Authorised by the Chief Parliamentary Counsel Part 5—Conservation and control measures Flora and Fauna Guarantee Act 1988 No. 47 of 1988 70 Penalty: In the case of a natural person, 120 penalty units; In the case of a body corporate, 600 penalty units. (2) For the purposes of subsection (1), the exceptions are as follows— (a) the person is acting in accordance with a licence or permit under section 48 or an authorisation under section 48A; (b) if the protected flora were taken from private land, the person— (i) is the landowner or a person given permission by the landowner to take the protected flora; and (ii) did not take the protected flora for the purposes of sale or has not sold or offered the protected flora for sale; (c) the protected flora were propagated from protected flora which had been lawfully obtained and kept; (d) the person is a public authority that is carrying out an activity referred to in subsection (1) in accordance with a public authority management agreement that provides for the carrying out of that activity. 47C Offence to take other protected flora which causes significant detrimental impact to the relevant taxon or community (1) A person must not take, trade in, keep, move or process protected flora (other than a member of restricted use protected flora) if that activity has caused or is likely to cause a significant detrimental impact on the taxon of flora or community of flora or fauna of which the S. 47C inserted by No. 28/2019 s. 22. Authorised by the Chief Parliamentary Counsel Part 5—Conservation and control measures Flora and Fauna Guarantee Act 1988 No. 47 of 1988 71 protected flora is a member or part, unless an exception in subsection (2) applies. Penalty: In the case of a natural person, 240 penalty units or 2 years imprisonment or both; In the case of a body corporate, 1200 penalty units. Note Section 3(4) sets out factors that are to be taken into account in deciding whether an activity has caused or is likely to cause a significant detrimental impact on protected flora. (2) For the purposes of subsection (1), the exceptions are as follows— (a) the person is acting in accordance with a licence or permit under section 48 or an authorisation under section 48A; (b) if the protected flora were taken from private land, the person— (i) is the landowner or a person given permission by the landowner to take the protected flora; and (ii) did not take the protected flora for the purposes of sale or has not sold or offered the protected flora for sale; (c) the protected flora were propagated from protected flora which had been lawfully obtained and kept; (d) the person has accidentally taken the protected flora despite exercising reasonable care not to take the protected flora; Authorised by the Chief Parliamentary Counsel Part 5—Conservation and control measures Flora and Fauna Guarantee Act 1988 No. 47 of 1988 72 (e) the person is a public authority that is carrying out an activity referred to in subsection (1) in accordance with a public authority management agreement that provides for the carrying out of that activity. 48 Licence or permit to take, trade in, keep, move or process protected flora (1) The Secretary may issue a licence to take (other than for the purpose of controlling), trade in, keep, move or process protected flora. (2) The Secretary may issue a permit to take, trade in, keep, move or process protected flora. (3) In deciding whether or not to issue a licence or permit under this section, the Secretary must take into account the prescribed criteria for making that decision. (4) The Secretary must not issue a licence or permit for the taking, trading, keeping, moving or processing of protected flora if, in the opinion of the Secretary, to do so would threaten the conservation of the taxon of flora or any community of flora or fauna of which the protected flora is a member or part. (5) The Secretary must not issue a permit for the taking of members of a listed taxon of flora for the purpose of control, unless the Secretary is of the opinion that the listed taxon of flora is a serious cause of injury to property, crops, stock or to another listed taxon of flora or fauna or a listed community of flora or fauna. Note There are general provisions relating to licences and permits in Part 6. S. 48 amended by No. 76/1998 s. 9(i), substituted by No. 28/2019 s. 23. Authorised by the Chief Parliamentary Counsel Part 5—Conservation and control measures Flora and Fauna Guarantee Act 1988 No. 47 of 1988 73 48A Authorisation to take, trade in, keep, move or process protected flora (1) The Governor in Council, on the recommendation of the Minister, may by Order published in the Government Gazette authorise the taking (other than for the purpose of controlling), trading in, keeping, moving or processing of protected flora subject to the terms and conditions fixed by the Governor in Council in the Order. (2) In deciding whether or not to recommend that an Order be made under this section the Minister must take into account the prescribed criteria for making that decision. (3) The Minister must not recommend that an Order be made under this section in relation to protected flora if in the opinion of the Minister to do so would threaten the conservation of the taxon of flora or any community of flora or fauna of which the protected flora is a member or part. (4) Before an Order is made under this section, the Minister must ensure that a draft of the proposed Order is published on the Internet together with a statement that submissions may be made on the proposed Order to the Minister within 30 days after publication of the draft. (5) Any person may make a submission on the proposed Order within 30 days of the publication of the draft of the proposed Order under subsection (4). (6) The Minister must consider any submissions made on the proposed Order received within the 30-day period before the Order is made with or without changes. (7) An Order under this section remains in force for the period specified in the Order which must not exceed 10 years after the Order takes effect. S. 48A inserted by No. 62/2010 s. 113, amended by No. 4/2013 s. 32(1), repealed by No. 67/2016 s. 30(3), new s. 48A inserted by No. 28/2019 s. 23. Authorised by the Chief Parliamentary Counsel Part 5—Conservation and control measures Flora and Fauna Guarantee Act 1988 No. 47 of 1988 74 48B Offence to contravene terms of authorisation If the taking, trading in, keeping, moving or processing of protected flora is authorised by an Order under section 48A, a person must not take, trade in, keep, move or process that protected flora in contravention of the terms and conditions fixed in that Order. Penalty: In the case of a natural person, 240 penalty units or imprisonment for 2 years or both; In the case of a body corporate, 1200 penalty units. 49 Offences relating to flora generally (1) A person must not, except as prescribed, without the permit of the Secretary, abandon or release any prescribed flora into the wild. Penalty: In the case of a natural person, 240 penalty units or imprisonment for 2 years or both; In the case of a body corporate, 1200 penalty units. (2) A person must mark any flora that is required by the regulations to be marked in the prescribed circumstances and in the prescribed manner. Penalty: In the case of a natural person, 240 penalty units or imprisonment for 2 years or both; In the case of a body corporate, 1200 penalty units. 50 Royalties for the taking of flora The Secretary may determine royalties for the taking of wild flora in accordance with this Act from Crown land. S. 48B inserted by No. 28/2019 s. 23. S. 49(1) amended by Nos 76/1998 s. 9(i), 28/2019 s. 24(1). S. 49(2) substituted by No. 28/2019 s. 24(2). S. 50 amended by No. 76/1998 s. 9(i). Authorised by the Chief Parliamentary Counsel Part 5—Conservation and control measures Flora and Fauna Guarantee Act 1988 No. 47 of 1988 75 51 Relationship between authorities issued under this Division and authorities issued under other Acts (1) A licence or permit or other authority issued under any Act which authorises the taking, trading in, keeping, moving or processing of flora does not authorise the holder to take, trade in, keep, move or process flora in circumstances in which it would be prohibited under this Division. (2) A licence or permit issued under this Division or an authorisation made under this Division does not authorise a person to take, trade in, keep, move or process flora in circumstances in which that action is prohibited under another Act. Division 3—The handling of fish 52 Offence to take, trade in or keep fish (1) A person must not take, trade in or keep any fish that is a member or part of a listed taxon of fauna or a listed community of flora or fauna, unless the person is acting in accordance with a licence or permit under section 53 or an authorisation under section 53A. Penalty: In the case of a natural person, 120 penalty units; In the case of a body corporate, 600 penalty units. (2) A licence issued under the Fisheries Act 1995 does not authorise the holder to take, trade in or keep fish in circumstances in which the taking, trading in or keeping of fish is prohibited under subsection (1). S. 52 amended by No. 92/1995 s. 161(Sch. 2 item 1), substituted by No. 28/2019 s. 25. Authorised by the Chief Parliamentary Counsel Part 5—Conservation and control measures Flora and Fauna Guarantee Act 1988 No. 47 of 1988 76 52A Offence to take, trade in or keep fish which causes a significant detrimental impact on the relevant taxon or community (1) A person must not take, trade in or keep any fish that is a member or part of a listed taxon of fauna or a listed community of flora or fauna, if that activity causes or is likely to cause a significant detrimental impact on that listed taxon of fauna or listed community of flora or fauna, unless— (a) the person is acting in accordance with a licence or permit under section 53 or an authorisation under section 53A; or (b) the person— (i) has unintentionally taken the fish; and (ii) has not killed the fish or put it into a container; and (iii) has immediately taken all reasonable steps to return the fish to its natural habitat with the least possible injury or damage. Penalty: In the case of a natural person, 240 penalty units or 2 years imprisonment or both; In the case of a body corporate, 1200 penalty units. Note Section 3(4) sets out factors that are to be taken into account in deciding whether an activity has caused or is likely to cause a significant detrimental impact on a fish that is a member or part of a listed taxon of fauna or a listed community of flora or fauna. S. 52A inserted by No. 62/2010 s. 114, amended by No. 4/2013 s. 32(2), repealed by No. 67/2016 s. 30(3), new s. 52A inserted by No. 28/2019 s. 25. Authorised by the Chief Parliamentary Counsel Part 5—Conservation and control measures Flora and Fauna Guarantee Act 1988 No. 47 of 1988 77 (2) A licence issued under the Fisheries Act 1995 does not authorise the holder to take, trade in or keep fish in circumstances in which the taking, trading in or keeping of fish is prohibited under subsection (1). 53 Licence or permit to take, trade in or keep fish (1) The Secretary may issue a licence or a permit to take, trade in or keep any fish that is a member or part of a listed taxon of fauna or a listed community of flora or fauna. (2) In deciding whether or not to issue a licence or permit under this section, the Secretary must take into account the prescribed criteria for making that decision. (3) The Secretary must not issue a licence or permit for the taking, trading or keeping of any fish referred to in subsection (1), if in the opinion of the Secretary to do so would threaten the conservation of the listed taxon of fauna or the listed community of flora or fauna of which the fish is a member or part. (4) A licence or permit issued under subsection (1) does not authorise a person to take, trade in or keep fish in any circumstances in which that action is prohibited under the Fisheries Act 1995. 53A Authorisation to take, trade in or keep fish (1) The Governor in Council, on the recommendation of the Minister, may by Order published in the Government Gazette authorise the taking, trading in or keeping of any fish that is a member or part of a listed taxon of fauna or a listed community of flora or fauna, subject to the terms and conditions fixed by the Governor in Council in the Order. S. 53 amended by Nos 92/1995 s. 161(Sch. 2 item 1), 76/1998 s. 9(i), substituted by No. 28/2019 s. 26. S. 53A inserted by No. 28/2019 s. 26. Authorised by the Chief Parliamentary Counsel Part 5—Conservation and control measures Flora and Fauna Guarantee Act 1988 No. 47 of 1988 78 (2) In deciding whether to recommend that an Order be made under this section the Minister must take into account the prescribed criteria for making that decision. (3) The Minister must not recommend the making of an Order under this section in relation to any fish referred to in subsection (1), if in the opinion of the Minister to do so would threaten the conservation of the listed taxon of fauna or the listed community of flora or fauna of which the fish is a member or part. (4) Before an Order is made under this section, the Minister must ensure that a draft of the proposed Order is published on the Internet together with a statement that submissions may be made on the proposed Order to the Minister within 30 days after publication of the draft. (5) Any person may make a submission on the proposed Order within 30 days of the publication of the draft of the proposed Order under subsection (4). (6) The Minister must consider any submissions made on the proposed Order received within the 30-day period before making the Order with or without changes. (7) An Order under this section remains in force for the period specified in the Order which must not exceed 10 years after the Order takes effect. (8) An authorisation under this section does not authorise a person to take, trade in or keep fish in any circumstances in which that action is prohibited under the Fisheries Act 1995. Authorised by the Chief Parliamentary Counsel Part 5—Conservation and control measures Flora and Fauna Guarantee Act 1988 No. 47 of 1988 79 53B Offence to contravene terms of authorisation If the taking, trading in or keeping of any fish that is a member of a listed taxon of fauna or a part or member of a listed community of flora or fauna is authorised by an Order under section 53A, a person must not take, trade in or keep that fish in contravention of the terms and conditions fixed in that Order. Penalty: 240 penalty units or imprisonment for 2 years or both; In the case of a body corporate, 1200 penalty units. S. 53B inserted by No. 28/2019 s. 26. Authorised by the Chief Parliamentary Counsel Part 6—General Flora and Fauna Guarantee Act 1988 No. 47 of 1988 80 Part 6—General Division 1—General provisions about licences and permits 54 Applications An application for a licence or permit under this Act must be made to the Secretary in writing. 55 Giving of licences and permits (1) If the Secretary gives a licence or permit it must be in writing and may contain those terms and be limited in those ways which the Secretary considers are necessary. (2) The Secretary may give both a licence and a permit or more than one licence or permit together in the same instrument. (3) The Secretary may amend or revoke a licence or permit after first giving notice to the licensee or permit holder of the intention to do so. 56 Offence of not complying with terms and limitations of licence or permit A person who holds a licence or permit issued under this Act must comply with the terms and limitations of that licence or permit. Penalty: 240 penalty units or imprisonment for 2 years or both; In the case of a body corporate, 1200 penalty units. S. 54 amended by No. 76/1998 s. 9(i). S. 55(1) amended by No. 76/1998 s. 9(j)(i)(ii). S. 55(2) amended by No. 76/1998 s. 9(j)(i). S. 55(3) amended by No. 76/1998 s. 9(j)(i). S. 56 substituted by No. 28/2019 s. 27. Authorised by the Chief Parliamentary Counsel Part 6—General Flora and Fauna Guarantee Act 1988 No. 47 of 1988 81 Division 2—Enforcement and powers of authorised officers 56A Definition In this Division— thing includes the whole or part of an animal or plant. 57 Entry without consent or warrant (1) An authorised officer may take any action which is necessary to find out whether the provisions of— (a) this Act; or (b) the regulations; or (c) any Orders in Council made under this Act; or (d) a habitat conservation order; or (e) a licence or permit given under this Act; or (f) a public authority management agreement; or (g) a land management co-operative agreement entered into under the Conservation, Forests and Lands Act 1987 for the purposes of this Act; or (h) any Codes of Practice approved under the Conservation, Forests and Lands Act 1987 for the purposes of this Act— are being complied with. (2) For the purposes of subsection (1) an authorised officer may— (a) at any reasonable time and by any reasonable means and with that assistance which the authorised officer requires enter land, S. 56A inserted by No. 28/2019 s. 28. S. 57 (Heading) inserted by No. 28/2019 s. 29(1). S. 57(1)(d) amended by No. 28/2019 s. 29(2). Authorised by the Chief Parliamentary Counsel Part 6—General Flora and Fauna Guarantee Act 1988 No. 47 of 1988 82 buildings not occupied as places of residence or vehicles; or (b) search any land, buildings not occupied as places of residence or vehicles; or * * * * * (d) inspect equipment, machinery, implements, plants, animals, enclosures or other goods; or (e) require a moving vehicle to be stopped; or (f) ask questions; or (g) seize any thing (including a document) found at the land, building or vehicle if the authorised officer believes on reasonable grounds that it is necessary to seize the thing in order to prevent— (i) its concealment, loss or destruction; or (ii) its use in the contravention of this Act or an instrument referred to in subsection (1); or (h) without payment, take or require a person, who is the landholder of the land or is apparently in charge of the building or vehicle (as the case requires), to give to the authorised officer samples of any thing in respect of which the authorised officer suspects that there has been a contravention of this Act or an instrument referred to in subsection (1) that is found at the land, building or vehicle; or S. 57(2)(c) repealed by No. 28/2019 s. 29(3). S. 57(2)(g) substituted by No. 28/2019 s. 29(4). S. 57(2)(h) substituted by No. 28/2019 s. 29(5). Authorised by the Chief Parliamentary Counsel Part 6—General Flora and Fauna Guarantee Act 1988 No. 47 of 1988 83 (i) require a person to produce a document which the officer believes on reasonable grounds relates to, or may contain evidence of an offence under this Act or the regulations; or (ia) examine, take copies of, or take extracts from, documents that are seized by or produced to the authorised officer; or (j) require the person having custody of any municipal rate book or record to produce it to the officer who may inspect the rate book or record to find the name or address of a landholder or water manager and take extracts from the rate book or record; or (k) having first given notice to the landholder of the land or the person in charge of the building or vehicle (as the case requires), construct, erect and maintain markers or mark any thing, on or in the land, building or vehicle; or (l) having first given notice to the owner and to the person in possession of the land enter land and carry out scientific studies; or (m) request a person to give his or her name and place of residence. (3) An authorised officer who has asked a person to produce a document, sample, plant, animal or other thing under this section (other than under subsection (2)(j)) must inform the person— (a) of the period, which must not be less than 14 days after the request for production, within which the person must produce the thing; and (b) of the place where the thing must be produced. S. 57(2)(ia) inserted by No. 28/2019 s. 29(6). S. 57(2)(k) substituted by No. 28/2019 s. 29(7). S. 57(3) substituted by No. 28/2019 s. 29(8). Authorised by the Chief Parliamentary Counsel Part 6—General Flora and Fauna Guarantee Act 1988 No. 47 of 1988 84 * * * * * * * * * * 57A Entry with warrant to search for evidence of offence (1) An authorised officer may apply to a magistrate for the issue of a search warrant in relation to a particular building that is occupied as a residence if the authorised officer believes on reasonable grounds that there is, or may be within the next 72 hours, on or in the building a particular thing that may be evidence of the commission of an offence against this Act or the regulations. (2) If a magistrate is satisfied by the evidence on oath or by affirmation or by affidavit that there are reasonable grounds for suspecting that there is, or may be within the next 72 hours, in or on the building a particular thing that may be evidence of the commission of an offence against this Act or the regulations, the magistrate may issue a search warrant authorising an authorised officer named in the warrant— (a) to enter the building named or described in the warrant; and (b) to search for and seize a thing named or described in the warrant; and S. 57(4) amended by Nos 57/1989 s. 3(Sch. item 78), 6/2018 s. 68(Sch. 2 item 57.1), repealed by No. 28/2019 s. 29(9). S. 57(5) repealed by No. 28/2019 s. 29(9). S. 57A inserted by No. 28/2019 s. 30. Authorised by the Chief Parliamentary Counsel Part 6—General Flora and Fauna Guarantee Act 1988 No. 47 of 1988 85 (c) to use any assistance or force that may be reasonably necessary to enter the building named or described in the warrant or to search for and seize a thing named or described in the warrant. (3) In addition to any other requirement, a search warrant under this section must state— (a) the offence suspected of being committed; and (b) the building to be searched; and (c) a description of the thing to be searched for; and (d) any condition to which the warrant is subject; and (e) whether entry is authorised to be made at any time or during stated hours; and (f) a day, not later than 7 days after the issue of the warrant, on which the warrant ceases to have effect. (4) A search warrant under this section must be issued in accordance with the Magistrates' Court Act 1989 and in the form prescribed under that Act. (5) The rules to be observed with respect to search warrants set out in the Magistrates' Court Act 1989 extend and apply to search warrants under this section. Authorised by the Chief Parliamentary Counsel Part 6—General Flora and Fauna Guarantee Act 1988 No. 47 of 1988 86 57B Seizure of things not mentioned in warrant If, in the course of executing a search warrant under section 57A, the authorised officer— (a) finds a thing that the authorised officer believes on reasonable grounds to be— (i) connected with the offence referred to in section 57A(1), although not the thing named or described in the warrant; or (ii) connected with another offence against this Act or the regulations; and (b) believes, on reasonable grounds, that it is necessary to seize that thing in order to prevent its concealment, loss or destruction, or its use in committing, continuing or repeating the offence— the warrant is deemed to authorise the authorised officer to seize the thing. 57C Announcement before entry (1) Before executing a search warrant, the authorised officer named in the warrant and any person assisting the authorised officer must announce that the authorised officer or person is authorised by the warrant to enter the building and give any person at the building an opportunity to allow immediate entry to the building. (2) The authorised officer and any person assisting the authorised officer need not comply with subsection (1) if the authorised officer or person believes on reasonable grounds that immediate entry to the building is required to ensure— (a) the safety of any person; or (b) that the effective execution of the search warrant is not frustrated. S. 57B inserted by No. 28/2019 s. 30. S. 57C inserted by No. 28/2019 s. 30. Authorised by the Chief Parliamentary Counsel Part 6—General Flora and Fauna Guarantee Act 1988 No. 47 of 1988 87 57D Copy of warrant to be given to occupier If the occupier, or another person who apparently represents the occupier, is present at the building when a search warrant is being executed, the authorised officer executing the warrant must— (a) produce evidence of the authorised officer's identity and the identity of any person assisting the authorised officer for inspection by the occupier or the occupier's agent; and (b) give to the occupier or the occupier's agent a copy of the warrant. 57E Requirements as to taking samples or seizing things (1) An authorised officer may not, under this Division, take samples of a thing or seize a thing apparently in the possession of a person unless the authorised officer makes out or tenders to the person a written receipt for the sample taken or thing seized. (2) If the authorised officer is unable to ascertain the identity of the owner or custodian of the thing seized or sampled, the authorised officer must leave a receipt with, or post it to, the person apparently in charge of the thing seized. (3) If an authorised officer seizes a thing under this Division, the officer must take reasonable steps to return the thing to the person from whom it was seized if the reason for its seizure no longer exists. 57F Samples If an authorised officer proposes to take a sample under this Division, the authorised officer must advise the owner, if possible, before taking the sample that it is taken for the purpose of analysis. S. 57D inserted by No. 28/2019 s. 30. S. 57E inserted by No. 28/2019 s. 30. S. 57F inserted by No. 28/2019 s. 30. Authorised by the Chief Parliamentary Counsel Part 6—General Flora and Fauna Guarantee Act 1988 No. 47 of 1988 88 57G Retention notices (1) If an authorised officer believes on reasonable grounds that any thing has been taken or is being held in contravention of this Act or the regulations, the authorised officer may issue the person holding the thing with a notice requiring that person to keep the thing in the person's possession and not to sell or dispose of the thing. (2) A notice under subsection (1)— (a) must be in writing; and (b) has effect for the period specified in the notice (which must not be more than 90 days after the issue of the notice); and (c) may be cancelled by the authorised officer; and (d) is subject to any terms and conditions specified in the notice; and (e) must state the penalty for a failure to comply with the notice; and (f) must state that the Secretary may extend the notice for an additional period. (3) If the Secretary is of the opinion that it is reasonably necessary to do so, the Secretary may extend the period for which a notice has effect under subsection (2). (4) The Secretary may extend the period of a notice under this section more than once. (5) If the Secretary extends the period for which a notice has effect, the Secretary must, before the expiry of the notice period— (a) notify the person to whom the notice is issued of the extension; and S. 57G inserted by No. 28/2019 s. 30. Authorised by the Chief Parliamentary Counsel Part 6—General Flora and Fauna Guarantee Act 1988 No. 47 of 1988 89 (b) specify in the notice the period for which the extension is to have effect. (6) The Secretary may cancel an extension of a notice under this section at any time. (7) A person to whom a notice under this section has been issued must comply with the notice. Penalty: In the case of a natural person, 120 penalty units or 12 months imprisonment or both; In the case of a body corporate, 600 penalty units. 57H Evidentiary provisions relating to retention notices (1) In any proceedings under this Act, evidence that a thing specified in a notice under section 57G as being in the possession of a particular person is no longer in the possession of that person, is evidence that the person has not complied with the notice. (2) In any proceedings under this Act, the fact that a thing is specified in a notice under section 57G as being in the possession of a particular person is evidence that the thing was in the possession of that person. 57I Disposal or destruction of seized flora or fauna (1) If any live flora or fauna are seized under this Division, an authorised officer may at any time return the flora or fauna to its natural habitat if the authorised officer considers it appropriate and practical to do so. (2) At any time before proceedings for an offence relating to a thing seized under this Division are finally determined, the Magistrates' Court may, on the application of an authorised officer, order that the thing be destroyed or otherwise disposed of, if the Court is satisfied that— S. 57H inserted by No. 28/2019 s. 30. S. 57I inserted by No. 28/2019 s. 30. Authorised by the Chief Parliamentary Counsel Part 6—General Flora and Fauna Guarantee Act 1988 No. 47 of 1988 90 (a) in the case of flora or fauna, the authorised officer believes on reasonable grounds that the person apparently in possession of the flora or fauna is not authorised by a licence, permit or authorisation under this Act to possess the flora or fauna; and (b) in any other case, the owner of the thing cannot be found. (3) If a person is found guilty by a court of an offence against this Act or the regulations, the court may, in addition to imposing any other penalty, order any thing seized under this Act which relates to that offence to be destroyed or otherwise disposed of in the manner specified in the order. 57J Sections 57 to 57I do not limit powers of authorised officers Sections 57 to 57I are in addition to, and do not limit, the other powers that an authorised officer has under this Act or the Conservation, Forests and Lands Act 1987. Division 2A—Offences 58 Offence to obstruct an authorised officer (1) A person must not wilfully assault, obstruct, threaten, or intimidate an authorised officer who is exercising his or her powers under this Act or the regulations. Penalty: 120 penalty units or imprisonment for 12 months or both. (2) A person must not— (a) contravene a lawful direction, order or requirement of an authorised officer; or S. 57J inserted by No. 28/2019 s. 30. Pt 6 Div. 2A (Heading) inserted by No. 28/2019 s. 31. S. 58(1) amended by No. 28/2019 s. 32(1). S. 58(2) amended by No. 28/2019 s. 32(3). Authorised by the Chief Parliamentary Counsel Part 6—General Flora and Fauna Guarantee Act 1988 No. 47 of 1988 91 (b) when asked by an authorised officer— (i) refuse to give that person's name and place of residence; or (ii) refuse to produce a document, sample, plant, animal or any other thing within any compliance period stipulated by the authorised officer under section 57(3); or (c) destroy, alter or remove a notice placed by an authorised officer; or (d) destroy, damage, interfere with or remove any matter or thing done by an authorised officer in accordance with his or her powers under this Act. Penalty: In the case of a natural person, 60 penalty units; In the case of a body corporate, 300 penalty units. (3) Despite anything to the contrary in subsection (2) a person may refuse to answer an authorised officer's question or to give information to the authorised officer if the person believes that the answer or information would tend to incriminate himself or herself. * * * * * 59 Offence to interfere with notices marks or equipment A person must not interfere with— (a) any notice or marker erected in accordance with this Act; or S. 58(2)(b)(ii) amended by No. 28/2019 s. 32(2). Pt 6 Div. 3 (Heading) repealed by No. 28/2019 s. 33. S. 59 amended by No. 28/2019 s. 34(2). Authorised by the Chief Parliamentary Counsel Part 6—General Flora and Fauna Guarantee Act 1988 No. 47 of 1988 92 (b) any mark which is required to be attached to flora or fauna or any other thing under this Act; or (c) any equipment being used for the purposes of this Act. Penalty: In the case of a natural person, 60 penalty units; In the case of a body corporate, 300 penalty units. Division 3—Matters relating to offences 59A Time for bringing proceedings Despite section 7 of the Criminal Procedure Act 2009, a proceeding for an offence under section 32, 47, 47A, 47B, 47C, 48B, 49, 52, 52A, 53B or 56 must be commenced not later than 2 years after the date on which the offence is alleged to have been committed. 60 Cancellation of licence or permit upon conviction If a licensee or permit holder is convicted of an offence connected with the licence or permit the Court may order— (a) that the licence or permit be cancelled; and (b) that any flora or fauna which is held by the licensee or permit holder and which is connected with the offence be given up to the Crown; and (c) that the person not be entitled to hold a similar licence or permit for the time specified by the Court. S. 59(b) amended by No. 28/2019 s. 34(1). New Pt 6 Div. 3 (Heading) inserted by No. 28/2019 s. 35. S. 59A inserted by No. 28/2019 s. 36. Authorised by the Chief Parliamentary Counsel Part 6—General Flora and Fauna Guarantee Act 1988 No. 47 of 1988 93 61 Requirement to carry out restoration work If a person is convicted of an offence under this Act involving the destruction of or damage to flora, fauna or a critical habitat, the Court may order that person— (a) to carry out restoration work; and (b) to provide security for the performance of that work— and this order may be in addition to or in substitution of any other penalty. 62 Payment of compensation by offender (1) If a person is convicted of an offence under this Act involving the destruction of or damage to flora, fauna or a critical habitat, the Court may order that person to pay compensation for that destruction or damage to the Secretary 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 or by affirmation 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. S. 62(1) amended by No. 76/1998 s. 9(k). S. 62(2) amended by No. 6/2018 s. 68(Sch. 2 item 57.2). Authorised by the Chief Parliamentary Counsel Part 6—General Flora and Fauna Guarantee Act 1988 No. 47 of 1988 94 Division 3A—Remedies 62A Enforceable undertakings (1) The Secretary may accept a written undertaking given by a person who has contravened, or allegedly contravened, a provision of this Act or the regulations if the Secretary considers that, having regard to the matters in subsection (2), the undertaking is necessary to deal with the contravention or alleged contravention. (2) For the purposes of subsection (1), the Secretary must have regard to the following matters— (a) the nature and seriousness of the contravention or alleged contravention; (b) any previous contraventions of this Act or the regulations committed by the person offering the undertaking; (c) the likelihood of the person's compliance with the undertaking; (d) any other matter that the Secretary considers is relevant. (3) An enforceable undertaking must— (a) be in writing; and (b) include the following— (i) the name of the person giving the undertaking and, in the case of a body corporate, its Australian Business Number; Pt 6 Div. 3A (Heading and ss 62A–62I) inserted by No. 28/2019 s. 37. S. 62A inserted by No. 28/2019 s. 37. Authorised by the Chief Parliamentary Counsel Part 6—General Flora and Fauna Guarantee Act 1988 No. 47 of 1988 95 (ii) the details of the contravention or the alleged contravention, including its nature and extent; (iii) timelines for any requirements in the undertaking to take certain actions or to cease certain behaviour or activities, which relate to the contravention or alleged contravention; (iv) a requirement for the person to report to the Secretary on the progress of complying with the undertaking; (v) a statement to the effect that details of the undertaking will be entered in the register of enforceable undertakings and published on the Internet. (4) In addition to the matters under subsection (3), an enforceable undertaking may include, but is not limited to including, any one or more of the following requirements— (a) that the person cease behaviours or activities that have given rise to the contravention or alleged contravention; (b) that the person take action to remediate any harm caused by the contravention or alleged contravention; (c) that the person carry out specified activities or projects for the protection and conservation of any taxon of flora or fauna, including the taxon's habitat, that is or may be detrimentally affected as a result of the contravention or alleged contravention; (d) that the person take certain actions to reduce any future behaviour that may result in a further contravention that is similar to the contravention or alleged contravention; Authorised by the Chief Parliamentary Counsel Part 6—General Flora and Fauna Guarantee Act 1988 No. 47 of 1988 96 (e) that the person monitor and audit any requirement of the undertaking to take an action or to cease a behaviour or activity. 62B Person may vary or withdraw enforceable undertaking A person may withdraw or vary an enforceable undertaking with the consent of the Secretary. 62C Proceedings for contravention (1) While an enforceable undertaking is in force, a proceeding may not be brought for any offence constituted by the contravention or alleged contravention of this Act or the regulations in respect of which the enforceable undertaking is given. (2) If a person withdraws an enforceable undertaking before the undertaking has been fulfilled, proceedings may be brought for any offence constituted by the contravention or alleged contravention in respect of which the enforceable undertaking was given. (3) If a person complies with the requirements of an enforceable undertaking, no further proceedings may be brought for an offence constituted by the contravention or alleged contravention in respect of which the enforceable undertaking was given. 62D Enforcement of enforceable undertaking (1) If the Secretary considers that a person who gave an enforceable undertaking has failed to comply with a term of the enforceable undertaking, the Secretary may apply to the Magistrates' Court for an order under subsection (2). (2) If the Magistrates' Court is satisfied that the person has failed to comply with a term of the enforceable undertaking, the Magistrates' Court S. 62B inserted by No. 28/2019 s. 37. S. 62C inserted by No. 28/2019 s. 37. S. 62D inserted by No. 28/2019 s. 37. Authorised by the Chief Parliamentary Counsel Part 6—General Flora and Fauna Guarantee Act 1988 No. 47 of 1988 97 may make any one or more of the following orders— (a) an order directing the person to comply with the term of the enforceable undertaking; (b) an order that the person take any specified action for the purpose of complying with the term of the enforceable undertaking; (c) an order that directs the person to compensate another person for any reasonable costs incurred in taking any action to prevent, minimise or remedy the harm caused by the failure to comply with the term of the enforceable undertaking; (d) an order that directs the person to take any specified action to prevent, minimise or remedy any damage to the environment that has been, or is likely to be caused by, the failure to comply with the term of the enforceable undertaking; (e) any other order that the Magistrates' Court considers appropriate in the circumstances. 62E Secretary may take specified actions (1) If a person fails to comply with an order made under section 62D (other than under section 62D(2)(c)), the Secretary may give the person a written notice advising the person that the Secretary intends to carry out specified actions that remain to be done under the order unless the person satisfies the Secretary that the person will carry out those actions within a period of time acceptable to the Secretary. (2) A person who is given a written notice under subsection (1) must respond to it within 14 days after being given the notice. S. 62E inserted by No. 28/2019 s. 37. Authorised by the Chief Parliamentary Counsel Part 6—General Flora and Fauna Guarantee Act 1988 No. 47 of 1988 98 (3) If a person who has been given a notice under subsection (1) fails to give the Secretary a satisfactory response within 14 days, or fails to comply with any undertaking given to the Secretary in response to the notice, the Secretary— (a) may do anything that is necessary or expedient to carry out any action that remains to be done under the order and that is still practicable to do; and (b) may publicise the failure of the person to comply with the order. 62F Contempt of court proceedings (1) Section 62E does not prevent contempt of court proceedings from being commenced or continued against a person who has failed to comply with an order made under section 62D. (2) If a person is found in contempt of court for failing to comply with an order made under section 62D (other than under section 62D(2)(c)), the Secretary— (a) may do anything that is necessary or expedient to carry out any action that remains to be done under the order and that is still practicable to do; and (b) may publicise the failure of the person to comply with the order. 62G Secretary may recover costs The Secretary may recover any reasonable cost the Secretary incurs in taking action under section 62E(3) or 62F(2) as a debt due and payable by the person against whom the order was made under section 62D. S. 62F inserted by No. 28/2019 s. 37. S. 62G inserted by No. 28/2019 s. 37. Authorised by the Chief Parliamentary Counsel Part 6—General Flora and Fauna Guarantee Act 1988 No. 47 of 1988 99 62H Person may recover compensation as debt If an order is made under section 62D(2)(c) directing a person to compensate another person for costs incurred, the amount of the costs is a debt due to the person who has incurred the costs and may be recovered in a court of competent jurisdiction. 62I Register of enforceable undertakings (1) The Secretary must maintain a register of enforceable undertakings. (2) The Secretary must enter details of each enforceable undertaking in the register of enforceable undertakings. (3) The register of enforceable undertakings must include— (a) the date the enforceable undertaking was given; and (b) a copy of the enforceable undertaking; and (c) a copy of any order made by the Magistrates' Court under section 62D as a result of non compliance with a term of the enforceable undertaking; and (d) whether the person who gave the enforceable undertaking has been convicted or found guilty of contempt of court for failing to comply with an order made by the Magistrates' Court under section 62D. (4) The Secretary must cause the register of enforceable undertakings to be published on the Internet in any form that the Secretary considers to be appropriate. (5) A person may inspect the register of enforceable undertakings at any reasonable time without charge. S. 62H inserted by No. 28/2019 s. 37. S. 62I inserted by No. 28/2019 s. 37. Authorised by the Chief Parliamentary Counsel Part 6—General Flora and Fauna Guarantee Act 1988 No. 47 of 1988 100 Division 4—Simplification of proof 63 Proof of contravention Evidence that a person except in accordance with this Act has protected flora— (a) in that person's possession or control; or (b) on the premises which that person owns or occupies— is evidence and, in the absence of evidence to the contrary, is proof that the person has taken protected flora in contravention of this Act. 64 Proof of identity A certificate signed by an authorised officer to the effect that a plant described in the certificate is protected flora of a kind stated in the certificate is evidence, and in the absence of evidence to the contrary, is proof of the facts stated in the certificate. Division 5—General 65 Certificates (1) A person may apply to the Secretary for a certificate under this section for land described in the application. (2) An application for a certificate must be in writing in the prescribed form. (3) As soon as possible after receiving an application for a certificate the Secretary must give the certificate to the applicant. (4) A certificate must— (a) be in writing in the prescribed form; and (b) describe the land to which the certificate relates; and S. 65(1) amended by No. 76/1998 s. 9(k). S. 65(3) amended by No. 76/1998 s. 9(k). Authorised by the Chief Parliamentary Counsel Part 6—General Flora and Fauna Guarantee Act 1988 No. 47 of 1988 101 (c) state whether, on a date specified in the certificate, an interim conservation order was in force in respect of the land. (5) In proceedings under this Act, a certificate under this section is evidence and, in the absence of evidence to the contrary, is proof of the facts stated in the certificate. 66 Secrecy (1) The Secretary with the approval of the Minister may declare information about flora or fauna to be confidential if the Secretary is of the opinion that the disclosure of that information is likely to result in an unreasonable level of harm being done to the flora or fauna or its critical habitat. (2) If in the course of performing duties under this Act a person gets 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 that person's duties or for the purpose of legal proceedings. Penalty: 60 penalty units. 67 Availability for inspection The Secretary must make available for inspection at the principal offices of the Department, at the Secretary's principal office and at regional departmental offices which the Secretary considers appropriate without charge during normal office hours— (a) the eligibility criteria prescribed for the purposes of Division 2 of Part 3; and S. 66 amended by No. 28/2019 s. 38. S. 66(1) amended by No. 76/1998 s. 9(k). S. 67 amended by No. 76/1998 s. 9(l)(i)(ii). S. 67(a) amended by No. 28/2019 s. 39(1). Authorised by the Chief Parliamentary Counsel Part 6—General Flora and Fauna Guarantee Act 1988 No. 47 of 1988 102 (b) the Minister's decisions and reasons relating to the making of recommendations under section 16G; and (c) the list of protected flora and the wildlife protected under the Wildlife Act 1975; and (ca) the Excluded List, the Processes List and the Threatened List; and (d) the Biodiversity Strategy; and (e) any action statement; and (f) any critical habitat determination; and (g) any management plan; and (h) any habitat conservation order; and (i) a copy of the Department's latest annual report; and (j) a copy of the Act and the regulations; and (k) a copy of the Second Reading Speeches made during the Parliamentary debate of the Bill to provide for the conservation and management of flora and fauna; and (l) a copy of any public authority management agreement; and S. 67(b) amended by No. 28/2019 s. 39(2). S. 67(ca) inserted by No. 10/2000 s. 10. S. 67(d) substituted by No. 28/2019 s. 39(3). S. 67(f) substituted by No. 28/2019 s. 39(4). S. 67(g) substituted by No. 28/2019 s. 39(4). S. 67(h) substituted by No. 28/2019 s. 39(4). Authorised by the Chief Parliamentary Counsel Part 6—General Flora and Fauna Guarantee Act 1988 No. 47 of 1988 103 (m) the Committee's final recommendation under section 16F relating to the listing of a taxon of flora or fauna, a community of flora or fauna or a potentially threatening process. 68 Matters to be put in annual report The annual report of the Department must set out the activities undertaken by the Department within the reporting year to further the purposes of this Act, including— (a) an assessment of the progress made toward achieving the objectives of this Act; and (b) any prescribed matters. Division 6—Regulations 69 Regulations (1) The Governor in Council may make regulations for or with respect to the following matters— (a) forms for the purposes of this Act; (b) eligibility criteria for the listing of taxa of flora or fauna, communities of flora or fauna or potentially threatening processes which, in the case of a taxon of flora or fauna, may vary according to— (i) the extinction risk of the taxon; and (ii) the category of threat that is to be applied to the taxon; (c) information to be included in nominations; (d) the method of giving notice of the making of a habitat conservation order; S. 67(m) amended by Nos 52/1994 s. 97(Sch. 3 item 12.8), 39/1998 s. 14(6), substituted by No. 28/2019 s. 39(5). S. 68(a) amended by No. 28/2019 s. 40. S. 69(1)(b) substituted by No. 28/2019 s. 41(1). S. 69(1)(d) amended by No. 28/2019 s. 41(2). Authorised by the Chief Parliamentary Counsel Part 6—General Flora and Fauna Guarantee Act 1988 No. 47 of 1988 104 (e) the taking, trading in, keeping, moving or processing of flora; (f) the releasing or abandoning of flora; (g) the marking of flora and fauna; (ga) the decision-making criteria in respect of the issuing of a licence or permit under section 48 or 53 or the giving of an authorisation under section 48A or 53A; (h) the records to be kept by persons holding licences and permits under this Act and the methods of keeping those records and the circumstances in which they must be produced; (i) fees to be paid for licences or permits issued under this Act or applications made under this Act and royalties to be paid for the taking of flora; (j) the procedure to be followed by authorised officers in exercising their powers under this Act; (k) the circumstances in which specimens of flora or fauna must be given and the nature and condition of those specimens; (l) generally prescribing any other matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act. (2) Regulations— (a) may be of general or limited application; and (b) may differ according to differences in time, place or circumstances; and (c) may leave any matter to be approved or determined by the Secretary, or an authorised officer; and S. 69(1)(ga) inserted by No. 28/2019 s. 41(3). S. 69(2)(c) amended by No. 76/1998 s. 9(m). Authorised by the Chief Parliamentary Counsel Part 6—General Flora and Fauna Guarantee Act 1988 No. 47 of 1988 105 (d) may impose penalties not exceeding 20 penalty units for contravention of the regulations. (3) Regulations made under this section may be disallowed, in whole or in part, by resolution of either House of Parliament. * * * * * S. 69(2)(d) amended by No. 28/2019 s. 41(4). S. 69(3) amended by No. 78/2010 s. 24(Sch. 1 item 14.1). S. 69(4) repealed by No. 78/2010 s. 24(Sch. 1 item 14.2). Authorised by the Chief Parliamentary Counsel Part 7—Transitional provisions and repeals Flora and Fauna Guarantee Act 1988 No. 47 of 1988 106 Part 7—Transitional provisions and repeals 70 Repeal and transitional provision * * * * * (2) In— (a) an Act other than this Act; or (b) a subordinate instrument made under an Act; or (c) a document— a reference to the Wild Flowers and Native Plants Protection Act 1958 is on and from the commencement of this section to be treated as a reference to this Act. (3) Any licence issued under the Wild Flowers and Native Plants Protection Act 1958 and in force immediately before the commencement of this section continues in force on the same conditions as applied to it immediately before that commencement and for the remainder of the term for which it was issued. * * * * * S. 70(1) repealed by No. 76/1998 s. 9(n). S. 71 repealed by No. 76/1998 s. 9(n), new s. 71 inserted by No. 10/2000 s. 11, repealed by No. 28/2019 s. 42. Authorised by the Chief Parliamentary Counsel Part 7—Transitional provisions and repeals Flora and Fauna Guarantee Act 1988 No. 47 of 1988 107 72 Saving of action statements (1) If— (a) a taxon or community of flora and fauna was listed immediately before the commencement of section 12 of the Flora and Fauna Guarantee (Amendment) Act 2000; and (b) that taxon or community is listed under section 10 on or after that commencement— any action statement in force in respect of that taxon or community immediately before that commencement is deemed to continue in force on and from the listing of that taxon or community after that commencement. (2) If— (a) a potentially threatening process was listed immediately before the commencement of section 12 of the Flora and Fauna Guarantee (Amendment) Act 2000; and (b) that process is listed under section 10 on or after that commencement— any action statement in force in respect of that process immediately before that commencement is deemed to continue in force on and from the listing of that process after that commencement. S. 72 inserted by No. 10/2000 s. 11. Authorised by the Chief Parliamentary Counsel Part 8—Savings and transitional provisions—Flora and Fauna Guarantee Amendment Act 2019 Flora and Fauna Guarantee Act 1988 No. 47 of 1988 108 Part 8—Savings and transitional provisions—Flora and Fauna Guarantee Amendment Act 2019 73 Definitions In this Part— commencement day means— (a) in relation to section 74, the day on which section 9 of the 2019 Act comes into operation; and (b) in relation to sections 75, 76, 77 and 78, the day on which section 11 of the 2019 Act comes into operation; and (c) in relation to section 79, the day on which section 12 of the 2019 Act comes into operation; and (d) in relation to section 80, the day on which section 21 of the 2019 Act comes into operation; and (e) in relation to section 82(1), the day on which section 20 of the 2019 Act comes into operation; and (f) in relation to sections 81(1) and (2) and 82(2) and (3), the day on which section 23 of the 2019 Act comes into operation; and (g) in relation to sections 81(3) and 82(4) and (5), the day on which section 26 of the 2019 Act comes into operation; old Threatened List means the Threatened List kept under this Act immediately before the commencement day; 2019 Act means the Flora and Fauna Guarantee Amendment Act 2019. Pt 8 (Heading and ss 73–82) inserted by No. 28/2019 s. 43. S. 73 inserted by No. 28/2019 s. 43. Authorised by the Chief Parliamentary Counsel Part 8—Savings and transitional provisions—Flora and Fauna Guarantee Amendment Act 2019 Flora and Fauna Guarantee Act 1988 No. 47 of 1988 109 74 Scientific Advisory Committee Despite the amendment of section 8 of this Act by section 9 of the 2019 Act— (a) the Scientific Advisory Committee established immediately before the commencement day is taken to be the Scientific Advisory Committee established under this Act; and (b) a person appointed as a member of the Scientific Advisory Committee whose appointment is in effect immediately before the commencement day is taken to be appointed as a member of the Scientific Advisory Committee under this Act. 75 Listing of taxa of flora and fauna (1) On and after the commencement day, a taxon of flora or fauna that is specified in the old Threatened List immediately before that day is taken to be specified in the Threatened List under section 10(1) of this Act until an Order under subsection (12) is made in relation to the taxon. (2) If the Minister is satisfied that a taxon of flora or fauna, which is listed in the old Threatened List immediately before the commencement day, is eligible to be specified in the Threatened List in a particular category of threat, the Minister may recommend that the Governor in Council specify the taxon in the Threatened List— (a) if the taxon is at risk of extinction in Australia, as being at risk of extinction in Australia in that category of threat; or (b) if the taxon is not at risk of extinction in Australia, as being at risk of extinction in Victoria in that category of threat. S. 74 inserted by No. 28/2019 s. 43. S. 75 inserted by No. 28/2019 s. 43. Authorised by the Chief Parliamentary Counsel Part 8—Savings and transitional provisions—Flora and Fauna Guarantee Amendment Act 2019 Flora and Fauna Guarantee Act 1988 No. 47 of 1988 110 (3) If the Minister is satisfied that a taxon of flora or fauna, which is listed in the Federal List but not in the old Threatened List immediately before the commencement day, is eligible to be specified in the Threatened List on the basis of its risk of extinction in Australia in a particular category of threat, the Minister may recommend that the Governor in Council specify the taxon in the Threatened List as being at risk of extinction in Australia in that category of threat. (4) If the Minister is satisfied that a taxon of flora or fauna, which is listed on an advisory list but not in the old Threatened List or the Federal List immediately before the commencement day, is eligible to be specified in the Threatened List in a particular category of threat, the Minister may recommend that the Governor in Council specify the taxon in the Threatened List— (a) if the taxon is at risk of extinction in Australia, as being at risk of extinction in Australia in that category of threat; or (b) if the taxon is not at risk of extinction in Australia, as being at risk of extinction in Victoria in that category of threat. (5) If the Minister is satisfied that a taxon of flora or fauna, which is listed in the old Threatened List immediately before the commencement day, is no longer eligible to be specified in the Threatened List, the Minister may recommend that the Governor in Council remove the taxon from the Threatened List. (6) The Minister must, in deciding whether a taxon of flora or fauna is eligible to be specified in the Threatened List under subsection (2), (3) or (4) or in deciding whether to remove a taxon of flora or fauna from the Threatened List under subsection (5), take into account the relevant eligibility Authorised by the Chief Parliamentary Counsel Part 8—Savings and transitional provisions—Flora and Fauna Guarantee Amendment Act 2019 Flora and Fauna Guarantee Act 1988 No. 47 of 1988 111 criteria prescribed for the purposes of Division 2 of Part 3. (7) The Minister must make a recommendation under subsection (2), (3), (4) or (5) within 12 months after the commencement day. (8) The Minister may request advice from the Committee on making a recommendation under subsection (7). (9) The Committee must provide advice to the Minister within 60 days after a request under subsection (8). (10) If the Committee provides advice to the Minister in accordance with subsection (9), the Minister must take into account the advice before making the relevant recommendation under subsection (7). (11) Division 3 of Part 3 does not apply in respect of a recommendation to the Governor in Council made by the Minister under this section. (12) The Governor in Council may by Order published in the Government Gazette in accordance with a recommendation of the Minister under this section— (a) change the extinction risk that applies to a taxon of flora or fauna that is specified in the Threatened List and apply the relevant category of threat to the taxon; or (b) specify a taxon of flora or fauna in the Threatened List setting out the relevant extinction risk of the taxon and the relevant category of threat that applies to the taxon; or (c) remove a taxon of flora or fauna from the Threatened List. Authorised by the Chief Parliamentary Counsel Part 8—Savings and transitional provisions—Flora and Fauna Guarantee Amendment Act 2019 Flora and Fauna Guarantee Act 1988 No. 47 of 1988 112 (13) An Order made by the Governor in Council under subsection (12)— (a) on the recommendation of the Minister under subsection (2), is taken to be an Order made under section 10(5) of this Act; and (b) on the recommendation of the Minister under subsection (3) or (4), is taken to be an Order made under section 10(2) of this Act; and (c) on the recommendation of the Minister under subsection (5), is taken to be an Order made under section 10(4) of this Act. (14) In this section— advisory list means any of the following advisory lists kept by the Department— (a) Advisory list of rare or threatened plants in Victoria—2014; (b) Advisory list of threatened vertebrate fauna in Victoria—2013; (c) Advisory list of threatened invertebrate fauna in Victoria—2009; Note These advisory lists are located on the Internet site of the Department. Federal List means the list of threatened species referred to in section 178 of the Commonwealth Act. 76 Listing of communities of flora and fauna On and after the commencement day, a community of flora or fauna that is specified in the old Threatened List immediately before that day is taken to be specified in the Threatened List under section 10(1) of this Act. S. 76 inserted by No. 28/2019 s. 43. Authorised by the Chief Parliamentary Counsel Part 8—Savings and transitional provisions—Flora and Fauna Guarantee Amendment Act 2019 Flora and Fauna Guarantee Act 1988 No. 47 of 1988 113 77 Listing of potentially threatening processes On and after the commencement day, a potentially threatening process that is specified in the Processes List immediately before that day is taken to be specified in the Processes List under section 11(1) of this Act. 78 Nominations for listing made before commencement of new Part 3 (1) A nomination that was made to the Committee under Part 3 as in force immediately before the commencement day that was under consideration by the Committee under section 13 of that Part immediately before the commencement day is taken— (a) to have been made under Division 3 of Part 3 of this Act as amended by the 2019 Act; and (b) to be under consideration of the Committee under section 16B. (2) A nomination that was made to the Committee under Part 3 as in force immediately before the commencement day in respect of which the Committee had accepted the nomination and for which no Order was made under section 10 of that Part immediately before the commencement day is taken— (a) to have been made under Division 3 of Part 3 of this Act as amended by the 2019 Act; and (b) to be under assessment by the Committee under section 16C. 79 Flora and Fauna Guarantee Strategy On and after the commencement day, a Flora and Fauna Guarantee Strategy prepared under Division 1 of Part 4 as in force immediately before that day is taken to be a Biodiversity Strategy made under this Act. S. 77 inserted by No. 28/2019 s. 43. S. 78 inserted by No. 28/2019 s. 43. S. 79 inserted by No. 28/2019 s. 43. Authorised by the Chief Parliamentary Counsel Part 8—Savings and transitional provisions—Flora and Fauna Guarantee Amendment Act 2019 Flora and Fauna Guarantee Act 1988 No. 47 of 1988 114 80 Protected flora On and after the commencement day, a taxon of flora declared to be protected immediately before that day is taken to have been declared to be protected under section 46 of this Act. 81 Applications for licences and permits (1) On and after the commencement day, an application for a licence under section 48(1) that is in force immediately before that day and in respect of which the Secretary has not made a decision is taken to be an application under section 48(1) of this Act. (2) On and after the commencement day, an application for a permit under section 48(2) that is in force immediately before that day and in respect of which the Secretary has not made a decision is taken to be an application under section 48(2) of this Act. (3) On and after the commencement day, an application for a licence under section 53(1) that is in force immediately before that day and in respect of which the Secretary has not made a decision is taken to be an application under section 53(1) of this Act. 82 Licences, permits and authorisations (1) On and after the commencement day, a permit issued under section 40 that was in force immediately before that day is taken to continue in force on the same terms and conditions as if it had been issued under section 35 of this Act. (2) On and after the commencement day, a licence or permit issued under section 48 that was in force immediately before that day is taken to continue in force on the same terms and conditions as if it had been issued under section 48 of this Act. S. 80 inserted by No. 28/2019 s. 43. S. 81 inserted by No. 28/2019 s. 43. S. 82 inserted by No. 28/2019 s. 43. Authorised by the Chief Parliamentary Counsel Part 8—Savings and transitional provisions—Flora and Fauna Guarantee Amendment Act 2019 Flora and Fauna Guarantee Act 1988 No. 47 of 1988 115 (3) On and after the commencement day, an Order for an authorisation made under section 48 that was in force immediately before that day— (a) is taken to continue in force on the same terms and conditions as if it had been made under section 48A of this Act; and (b) remains in force for 10 years after the commencement day. (4) On and after the commencement day, a licence issued under section 53 that was in force immediately before that day is taken to continue in force on the same terms and conditions as if it had been issued under section 53 of this Act. (5) On and after the commencement day, an Order for an authorisation made under section 53 that was in force immediately before that day— (a) is taken to continue in force on the same terms and conditions as if it had been made under section 53A of this Act; and (b) remains in force for 10 years after the commencement day. Authorised by the Chief Parliamentary Counsel Schedules Flora and Fauna Guarantee Act 1988 No. 47 of 1988 116 Schedules * * * * * Sch. 1 substituted by No. 10/2000 s. 12(1), repealed by No. 28/2019 s. 44. Authorised by the Chief Parliamentary Counsel Schedules Flora and Fauna Guarantee Act 1988 No. 47 of 1988 117 * * * * * Sch. 2 amended by GGs 7.8.91 p. 2210, 14.8.91 p. 2282, 18.12.91 p. 3539, 27.5.92 p. 1258, 30.9.92 p. 2909, 11.2.93 p. 290, 6.5.93 p. 1000, 12.8.93 p. 2272, SG (No. 95) 21.12.93 p. 1, GGs 11.5.95 pp 1153, 1154, 24.8.95 pp 2269, 2270, 21.12.95 p. 3659, 15.8.96 pp 2173, 2174 7.11.96 p. 2909, substituted by No. 10/2000 s. 12(2), repealed by No. 28/2019 s. 44. Authorised by the Chief Parliamentary Counsel Schedules Flora and Fauna Guarantee Act 1988 No. 47 of 1988 118 * * * * * * * * * * ═════════════ Sch. 3 amended by GGs 7.8.91 p. 2211, 18.12.91 p. 3539, 27.5.92 p. 1258, 30.9.92 p. 2909, 6.5.93 p. 1000, 25.8.94 p. 2322, 8.6.95 p. 1391, 15.8.96 p. 2174, 7.11.96 p. 2909, substituted by No. 10/2000 s. 12(3), repealed by No. 28/2019 s. 44. Sch. 4 repealed by No. 76/1998 s. 9(n). Authorised by the Chief Parliamentary Counsel Endnotes Flora and Fauna Guarantee Act 1988 No. 47 of 1988 119 Endnotes 1 General information See www.legislation.vic.gov.au for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information. Minister's second reading speech— Legislative Assembly: 24 March 1988 Legislative Council: 21 April 1988 The long title for the Bill for this Act was "A Bill to provide for the conservation and management of flora and fauna.". The Flora and Fauna Guarantee Act 1988 was assented to on 24 May 1988 and came into operation as follows: Sections 1–4, 8, 11, 69 on 24 May 1988: section 2(1); rest of Act on 25 September 1988: Special Gazette (No. 81) 25 September 1988 page 1. INTERPRETATION OF LEGISLATION ACT 1984 (ILA) Style changes Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act. References to ILA s. 39B Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause. Interpretation As from 1 January 2001, amendments to section 36 of the ILA have the following effects: • Headings All headings included in an Act which is passed on or after 1 January 2001 form part of that Act. Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms. See section 36(1A)(2A). http://www.legislation.vic.gov.au/ Authorised by the Chief Parliamentary Counsel Endnotes Flora and Fauna Guarantee Act 1988 No. 47 of 1988 120 • Examples, diagrams or notes All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act. Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act. See section 36(3A). • Punctuation All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act. Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. See section 36(3B). • Provision numbers All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001. Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs. See section 36(3C). • Location of "legislative items" A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B. • Other material Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act. See section 36(3)(3D)(3E). Authorised by the Chief Parliamentary Counsel Endnotes Flora and Fauna Guarantee Act 1988 No. 47 of 1988 121 2 Table of Amendments This publication incorporates amendments made to the Flora and Fauna Guarantee Act 1988 by Acts and subordinate instruments. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– Magistrates' Court (Consequential Amendments) Act 1989, No. 57/1989 Assent Date: 14.6.89 Commencement Date: S. 4(1)(a)–(e)(2) on 1.9.89: Government Gazette 30.8.89 p. 2210; rest of Act on 1.9.90: Government Gazette 25.7.90 p. 2217 Current State: All of Act in operation Mineral Resources Development Act 1990, No. 92/1990 Assent Date: 18.12.90 Commencement Date: S. 128(Sch. 1 item 11) on 6.11.91: Government Gazette 30.10.91 p. 2970 Current State: This information relates only to the provision/s amending the Flora and Fauna Guarantee Act 1988 Catchment and Land Protection Act 1994, No. 52/1994 Assent Date: 15.6.94 Commencement Date: S. 97(Sch. 3 items 12.1–12.8) on 15.12.94: s. 2(3) Current State: This information relates only to the provision/s amending the Flora and Fauna Guarantee Act 1988 Extractive Industries Development Act 1995, No. 67/1995 Assent Date: 17.10.95 Commencement Date: S. 58(Sch. 1 item 7) on 1.6.96: Special Gazette (No. 60) 31.5.96 p. 4 Current State: This information relates only to the provision/s amending the Flora and Fauna Guarantee Act 1988 Fisheries Act 1995, No. 92/1995 Assent Date: 5.12.95 Commencement Date: S. 161(Sch. 2 item 1) on 1.4.98: Government Gazette 26.2.98 p. 418 Current State: This information relates only to the provision/s amending the Flora and Fauna Guarantee Act 1988 Environment Conservation Council Act 1997, No. 41/1997 Assent Date: 11.6.97 Commencement Date: S. 28 on 1.7.97: Special Gazette (No. 75) 1.7.97 p. 1 Current State: This information relates only to the provision/s amending the Flora and Fauna Guarantee Act 1988 Catchment and Land Protection (Amendment) Act 1998, No. 39/1998 Assent Date: 26.5.98 Commencement Date: S. 14 on 31.1.99: s. 2(3) Current State: This information relates only to the provision/s amending the Flora and Fauna Guarantee Act 1988 Authorised by the Chief Parliamentary Counsel Endnotes Flora and Fauna Guarantee Act 1988 No. 47 of 1988 122 Public Sector Reform (Miscellaneous Amendments) Act 1998, No. 46/1998 Assent Date: 26.5.98 Commencement Date: S. 7(Sch. 1) on 1.7.98: s. 2(2) Current State: This information relates only to the provision/s amending the Flora and Fauna Guarantee Act 1988 Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998, No. 52/1998 Assent Date: 2.6.98 Commencement Date: S. 311(Sch. 1 item 31) on 1.7.98: Government Gazette 18.6.98 p. 1512 Current State: This information relates only to the provision/s amending the Flora and Fauna Guarantee Act 1988 Conservation, Forests and Lands (Miscellaneous Amendments) Act 1998, No. 76/1998 Assent Date: 10.11.98 Commencement Date: S. 9 on 15.12.98: s. 2(5) Current State: This information relates only to the provision/s amending the Flora and Fauna Guarantee Act 1988 Transfer of Land (Single Register) Act 1998, No. 85/1998 Assent Date: 17.11.98 Commencement Date: S. 24(Sch. item 23) on 1.1.99: s. 2(3) Current State: This information relates only to the provision/s amending the Flora and Fauna Guarantee Act 1988 Flora and Fauna Guarantee (Amendment) Act 2000, No. 10/2000 Assent Date: 18.4.00 Commencement Date: Ss 1, 2 on 19.4.00: s. 2(1); rest of Act on 29.6.00: Government Gazette 29.6.00 p. 1455 Current State: All of Act in operation Planning and Environment (General Amendment) Act 2004, No. 81/2004 Assent Date: 16.11.04 Commencement Date: S. 48 on 23.5.05: Government Gazette 19.5.05 p. 930 Current State: This information relates only to the provision/s amending the Flora and Fauna Guarantee Act 1988 Public Administration Act 2004, No. 108/2004 Assent Date: 21.12.04 Commencement Date: S. 117(1)(Sch. 3 item 80) on 5.4.05: Government Gazette 31.3.05 p. 602 Current State: This information relates only to the provision/s amending the Flora and Fauna Guarantee Act 1988 Mineral Resources Development (Sustainable Development) Act 2006, No. 63/2006 Assent Date: 29.8.06 Commencement Date: S. 61(Sch. item 15) on 30.8.06: s. 2(1) Current State: This information relates only to the provision/s amending the Flora and Fauna Guarantee Act 1988 Authorised by the Chief Parliamentary Counsel Endnotes Flora and Fauna Guarantee Act 1988 No. 47 of 1988 123 Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006, No. 80/2006 Assent Date: 10.10.06 Commencement Date: S. 26(Sch. item 41) on 11.10.06: s. 2(1) Current State: This information relates only to the provision/s amending the Flora and Fauna Guarantee Act 1988 Resources Industry Legislation Amendment Act 2009, Act No. 6/2009 Assent Date: 3.3.09 Commencement Date: S. 51 on 1.1.10: s. 2(2) Current State: This information relates only to the provision/s amending the Flora and Fauna Guarantee Act 1988 Traditional Owner Settlement Act 2010, No. 62/2010 Assent Date: 21.9.10 Commencement Date: Ss 113, 114 on 23.9.10: Special Gazette (No. 382) 22.9.10 p. 1 Current State: This information relates only to the provision/s amending the Flora and Fauna Guarantee Act 1988 Subordinate Legislation Amendment Act 2010, No. 78/2010 Assent Date: 19.10.10 Commencement Date: S. 24(Sch. 1 item 14) on 1.1.11: s. 2(1) Current State: This information relates only to the provision/s amending the Flora and Fauna Guarantee Act 1988 Traditional Owner Settlement Amendment Act 2013, No. 4/2013 Assent Date: 19.2.13 Commencement Date: S. 32 on 8.3.13: Special Gazette (No. 70) 5.3.13 p. 1 Current State: This information relates only to the provision/s amending the Flora and Fauna Guarantee Act 1988 Statute Law Revision Act 2013, No. 70/2013 Assent Date: 19.11.13 Commencement Date: S. 4(Sch. 2 item 19) on 1.12.13: s. 2(1) Current State: This information relates only to the provision/s amending the Flora and Fauna Guarantee Act 1988 Traditional Owner Settlement Amendment Act 2016, No. 67/2016 Assent Date: 15.11.16 Commencement Date: S. 30 on 1.5.17: s. 2(2) Current State: This information relates only to the provision/s amending the Flora and Fauna Guarantee Act 1988 Victorian Fisheries Authority Act 2016, No. 68/2016 Assent Date: 15.11.16 Commencement Date: S. 165 on 1.7.17: s. 2(2) Current State: This information relates only to the provision/s amending the Flora and Fauna Guarantee Act 1988 Authorised by the Chief Parliamentary Counsel Endnotes Flora and Fauna Guarantee Act 1988 No. 47 of 1988 124 Oaths and Affirmations Act 2018, No. 6/2018 Assent Date: 27.2.18 Commencement Date: S. 68(Sch. 2 item 57) on 1.3.19: s. 2(2) Current State: This information relates only to the provision/s amending the Flora and Fauna Guarantee Act 1988 Environment Protection Amendment Act 2018, No. 39/2018 (as amended by Nos 27/2019, 28/2019, 11/2020) Assent Date: 28.8.18 Commencement Date: S. 37 on 1.7.21: Special Gazette (No. 124) 16.3.21 p. 1 Current State: This information relates only to the provision/s amending the Flora and Fauna Guarantee Act 1988 Flora and Fauna Guarantee Amendment Act 2019, No. 28/2019 Assent Date: 10.9.19 Commencement Date: Ss 4–44 on 1.6.20: s. 2(2) Current State: This information relates only to the provision/s amending the Flora and Fauna Guarantee Act 1988 Water and Catchment Legislation Amendment Act 2021, No. 48/2021 Assent Date: 3.11.21 Commencement Date: Ss 141–143, 146 on 1.1.22: Special Gazette (No. 717) 14.12.21 p. 1 Current State: This information relates only to the provision/s amending the Flora and Fauna Guarantee Act 1988 ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– Government Gazette 7 August 1991 pages 2210, 2211 Government Gazette 14 August 1991 page 2282 Government Gazette 18 December 1991 page 3539 Government Gazette 27 May 1992 page 1258 Government Gazette 30 September 1992 page 2909 Government Gazette 11 February 1993 pages 289, 290 Government Gazette 6 May 1993 page 1000 Government Gazette 12 August 1993 page 2272 Special Gazette (No. 95) 21 December 1993 page 1 Government Gazette 25 August 1994 page 2322 Government Gazette 11 May 1995 pages 1153, 1154 Government Gazette 8 June 1995 page 1391 Government Gazette 24 August 1995 pages 2269, 2270 Government Gazette 21 December 1995 page 3659 Authorised by the Chief Parliamentary Counsel Endnotes Flora and Fauna Guarantee Act 1988 No. 47 of 1988 125 Government Gazette 15 August 1996 pages 2173, 2174 Government Gazette 7 November 1996 page 2909 ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– Authorised by the Chief Parliamentary Counsel Endnotes Flora and Fauna Guarantee Act 1988 No. 47 of 1988 126 3 Amendments Not in Operation This version does not contain amendments that are not yet in operation. Authorised by the Chief Parliamentary Counsel Endnotes Flora and Fauna Guarantee Act 1988 No. 47 of 1988 127 4 Explanatory details 1 S. 10(1): An updated list of taxa and communities of flora and fauna which are threatened is available on the Department's website. 2 S. 11(1): An updated list of potentially threatening processes is available on the Department's website.