Commonwealth Public Inquiry into Access to Biological Resources in Commonwealth Areas

John Voumard, Inquiry Chair
© Commonwealth of Australia, 2000
ISBN 0642547157

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Appendix 1: Excerpts from the Environment Protection and Biodiversity Conservation Act 1999

Section 301 Control of access to biological resources

The regulations may provide for the control of access to biological resources in Commonwealth areas.
Without limiting subsection (1), the regulations may contain provisions about all or any of the following:
1. the equitable sharing of the benefits arising from the use of biological resources in Commonwealth areas;
2. the facilitation of access to such resources;
3. the right to deny access to such resources; and
4. the granting of access to such resources and the terms and conditions of such access.

Section 525 Commonwealth areas

What is a Commonwealth area?

Each of the following, and any part of it, is a Commonwealth area:
1. land owned by the Commonwealth or a Commonwealth agency (including land owned in Norfolk Island) and airspace over the land;
2. an area of land held under lease by the Commonwealth or a Commonwealth agency (including an area held under lease in Norfolk Island) and airspace over the land;
3. land in:
  1. an external Territory (except Norfolk Island); or
  2. the Jervis Bay Territory;
  and airspace over the land;
4. the coastal sea of Australia or an external Territory;
5. the continental shelf, and the waters and airspace over the continental shelf;
6. the waters of the exclusive economic zone, the seabed under those waters and the airspace above those waters;
7. any other area of land, sea or seabed that is included in a Commonwealth reserve.
Territory Land in the ACT is not a Commonwealth area.
Despite paragraph (1)(a), an area of land that is Territory Land, within the meaning of the Australian Capital Territory (Planning and Land Management) Act 1988 is not a Commonwealth area merely because of that paragraph, unless it is held under lease by the Commonwealth or a Commonwealth agency.
Coastal waters of States and the Northern Territory are not Commonwealth areas.
Despite paragraphs (1)(d), (e) and (f), none of the following areas (or parts of them) are Commonwealth areas:
1. the seabed vested in a State under section 4 of the Coastal Waters (State Title) Act 1980; and
2. the seabed vested in the Northern Territory under section 4 of the Coastal Waters (Northern Territory Title) Act 1980; and
3. the subsoil under the seabed described in paragraph (a) or (b); and
4. any water and airspace over seabed described in paragraph (a) or (b).

Section 528 Definitions

animal means any member, alive or dead, of the animal kingdom (other than a human being).

biodiversity means the variability among living organisms from all sources (including terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part) and includes:

diversity within species and between species; and
diversity of ecosystems.

Biodiversity Convention means the Convention on Biological Diversity done at Rio de Janeiro on 5 June 1992, as in force for Australia immediately before the commencement of this Act. Note: The English text of this Convention is set out in Australian Treaty Series 1993 No 32.

biological resources includes genetic resources, organisms, parts of organisms, populations and any other biotic component of an ecosystem with actual or potential use or value for humanity.

Commonwealth area has the meaning given by section 525.

Commonwealth land has the meaning given by section 27.

Commonwealth marine area has the meaning given by section 24.

Commonwealth reserve means a reserve declared under Division 4 of Part 15.

genetic resources means any material of plant, animal, microbial or other origin that contains functional units of heredity and that has actual or potential value for humanity.

native species means a species:

that is Indigenous to Australia or an external Territory; or
that is Indigenous to the seabed of the coastal sea of Australia or an external Territory; or
that is Indigenous to the continental shelf; or
that is Indigenous to the exclusive economic zone; or
members of which periodically or occasionally visit:
1. Australia or an external Territory; or
2. the exclusive economic zone; or
that was present in Australia or an external Territory before 1400.
Note: A reference to Australia or an external Territory includes a reference to the coastal sea of Australia or the Territory. See section 15B of the Acts Interpretation Act 1901.

organism includes:

a virus; and
the reproductive material of an organism; and
an organism that has died.

plant means a member, alive or dead, of the plant kingdom or of the fungus kingdom, and includes a part of a plant and plant reproductive material.

plant reproductive material means:

a seed or spore of a plant; or
a cutting from a plant; or
any other part, or product, of a plant from which another plant can be produced.

precautionary principle has the meaning given by subsection 391(2).

Section 356 Regulations controlling activities relating to Commonwealth reserves

The regulations may:
1. regulate or prohibit the pollution of soil, air or water in a manner that is, or is likely to be, harmful to:
  1. people, biodiversity or heritage in Commonwealth reserves; or
  2. the natural features of Commonwealth reserves; and
2. regulate or prohibit tourism in Commonwealth reserves; and
3. provide for the protection and preservation of Commonwealth reserves and property and things in Commonwealth reserves; and
4. provide for the protection and conservation of biodiversity in Commonwealth reserves; and
5. regulate or prohibit access to all or part of a Commonwealth reserve by persons or classes of persons; and
6. provide for the removal of trespassers from Commonwealth reserves; and
7. regulate or prohibit camping in Commonwealth reserves; and
8. provide for the safety of persons in Commonwealth reserves; and
9. regulate or prohibit the use of fire in Commonwealth reserves; and
10. regulate the conduct of persons in Commonwealth reserves; and
11. regulate or prohibit the carrying on of any trade or commerce in a Commonwealth reserve; and
12. regulate or prohibit the use of vehicles in Commonwealth reserves and provide for signs and road markings for those purposes; and
13. provide for:
  1. the removal of vehicles, aircraft or vessels from places in Commonwealth reserves where they have been left in contravention of the regulations or have been abandoned; and
  2. the impounding of such vehicles, aircraft or vessels; and
14. provide that the person taken for the purposes of the regulations to be the owner of a motor vehicle involved in a contravention of a provision of the regulations relating to the parking or stopping of vehicles in a Commonwealth reserve is, except as provided otherwise, taken to commit an offence against the provision; and
15. provide for a person to be taken to be the owner of a motor vehicle for the purposes of regulations made under paragraph (n) (including a person in whose name the motor vehicle is registered under the law of a State or Territory); and
16. regulate or prohibit the use of vessels in, and the passage of vessels through, Commonwealth reserves; and
17. regulate or prohibit the landing and use of aircraft in, and the flying of aircraft over, Commonwealth reserves; and
18. provide for the giving of effect to management plans for Commonwealth reserves; and
19. regulate or prohibit the taking of animals or plants into or out of Commonwealth reserves; and
20. provide for the impounding, removal, destruction or disposal of animals found straying in Commonwealth reserves; and
21. regulate or prohibit the taking into Commonwealth reserves, and the use in Commonwealth reserves, of weapons, traps, nets, snares, fishing apparatus and other devices; and
22. regulate or prohibit the laying of baits and the use of explosives and poisons in Commonwealth reserves; and
23. provide for the collection of specimens and the pursuit of research in Commonwealth reserves for scientific purposes; and
24. provide for the issue of licences, permits and authorities relating to activities in Commonwealth reserves, the conditions subject to which they are issued and the charging of fees by the Commonwealth in respect of such licences, permits and authorities; and
25. provide for any matter incidental to or connected with a matter described in another paragraph.
A provision of the regulations regulating or prohibiting the flying of aircraft over a Commonwealth reserve does not have any effect so far as it is inconsistent with a law of the Commonwealth. For this purpose, a provision is not inconsistent with such a law if it can be complied with without contravention of the law.
A law of a Territory has effect so far as it is not inconsistent with a provision of the regulations having effect in that Territory. For this purpose, such a law is not inconsistent with the provision so far as it can operate concurrently with the provision.

Section 505A Establishment

The Indigenous Advisory Committee is established.
The Minister is to determine in writing the composition of the Committee, including the qualifications of its members.
The Minister is to appoint the members of the Committee on a part-time basis, and must appoint one of the members to chair the Committee.

Section 505B Functions of the Committee

The function of the Committee is to advise the Minister on the operation of the Act, taking into account the significance of Indigenous peoples' knowledge of the management of land and the conservation and sustainable use of biodiversity.
The Minister may give the Committee written guidelines about its function.

Section 391 Minister must consider precautionary principle in making decisions taking account of precautionary principle

The Minister must take account of the precautionary principle in making a decision listed in the table in subsection (3), to the extent he or she can do so consistently with the other provisions of this Act.

Precautionary principle

The precautionary principle is that lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment where there are threats of serious or irreversible environmental damage.
The decisions are:
Decisions in which precautionary principle must be considered

Item	Section under which decision is made	Nature of decision
1	75	whether an action is a controlled action
2	133	whether or not to approve the taking of an action
3	201	whether or not to grant a permit
4	216	whether or not to grant a permit
5	237	whether or not to grant a permit
6	258	whether or not to grant a permit
7	269A	about making a recovery plan or adopting a plan as a recovery plan
7A	270A	whether or not to have a threat abatement plan for a key threatening process
7B	270B	about making a threat abatement plan or adopting a plan as a threat abatement plan
8	280	about approving a variation of a plan adopted as a recovery plan or threat abatement plan
9	285	about making a wildlife conservation plan or adopting a plan as a wildlife conservation plan
10	295	about approving a variation of a plan adopted as a wildlife conservation plan
11	316	about making a plan for managing a property that is included in the World Heritage List and is entirely within one or more Commonwealth areas
12	328	about making a plan for managing a wetland that is designated for inclusion in the List of Wetlands of International Importance kept under the Ramsar Convention and is entirely within one or more Commonwealth areas
13	338	about making a plan for managing a Biosphere reserve entirely within one or more Commonwealth areas
14	370	about approving a management plan for a Commonwealth reserve

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