Section 238 — Environment Protection and Biodiversity Conservation Act 1999: Minister may issue permits

(1) Subject to subsections (3) to (4), the Minister may, on application by a person under section 237, issue a permit to the person. (2) A permit authorises its holder to take an action specified in the permit without breaching sections 229, 229A, 229B, 229C, 229D and 230. (3) The Minister must not issue the permit unless satisfied that: (a) the specified action will contribute significantly to the conservation of cetaceans; or (b) if the specified action will interfere with cetaceans, the interference is incidental to, and not the purpose of, the taking of the action and: (i) the taking of the action will not adversely affect the conservation status of a species of cetacean or a population of that species; and (ii) the taking of the action is not inconsistent with a recovery plan or wildlife conservation plan that is in force for a species of cetacean; and (iii) the holder of the permit will take all reasonable steps to minimise the interference with cetaceans; or (c) the specified action is whale watching (other than whale watching covered by paragraph 231(aa)) and: (i) the whale watching is carried out in accordance with the regulations (if any) made for the purposes of this section; or (ii) the whale watching will not adversely affect the conservation status of a species of cetacean or a population of that species, and is not inconsistent with a recovery plan or wildlife conservation plan that is in force for a species of cetacean. (3AA) If the specified action would or could relate to a species of cetacean that is a listed threatened species, the Minister must, in deciding whether to issue the permit, have regard to any approved conservation advice for the species of cetacean. (3A) In making a decision on the application, the Minister must consider the comments (if any) received: (a) in response to the invitation under subsection 237(3) for anyone to give the Minister comments on whether the permit should be issued; and (b) within the period specified in the invitation. (4) The Minister must not grant a permit authorising its holder to kill a cetacean or to take a cetacean for live display. (5) In this Act: whale watching means any activity conducted for the purpose of observing a cetacean, including but not limited to being in the water for the purposes of observing or swimming with a cetacean, or otherwise interacting with a cetacean.