Part 7 Protection of aquatic habitats

Division 1 Habitat protection plans

192   Preparation of habitat protection plans

(1)  The Minister may, in accordance with this section, determine plans for the protection of any habitat of fish (habitat protection plans), whether the habitat is essential for the survival of the species or required to maintain harvestable populations of the species.

(1A)  Without limiting subsection (1), a habitat protection plan may be determined for the protection of critical habitat declared under Part 7A.

(2)  A habitat protection plan:

(a)  may relate to habitat that is essential for spawning, shelter or other reason, and

(b)  may apply generally or to particular areas or fish, and

(c)  is to describe the importance of particular habitat features to which it applies, and

(d)  may set out practical methods for the protection of any such habitat features, and

(e)  may contain any other matter concerning the protection of the habitat of fish that the Minister considers appropriate.

(3)  The Minister may amend or replace a habitat protection plan.

(4)  A habitat protection plan (including any amendment or new plan) is to be published in the Gazette.

(5)  Before the Minister determines a habitat protection plan (including any amendment or new plan), the Minister is required to give the public an opportunity to make submissions on the proposed plan (or proposed amendment or new plan) and to take any submission that is duly made into account.

193   Implementation of habitat protection plans

(1)  The Minister is to have regard to any relevant habitat protection plan in the exercise of the Minister’s functions under this Part.

(2)  Public authorities are to have regard to any habitat protection plan that is relevant to the exercise of their functions.

(3)  A public authority is to notify the Minister of any function it proposes to exercise that is inconsistent with a habitat protection plan. The Minister may refer any dispute to the Minister responsible for the public authority. If the dispute cannot be resolved by those Ministers, it is to be referred to the Premier for resolution.

(4)  Any such resolution of a dispute is to be given effect to despite anything to the contrary in this section.

(5)  The exercise of a function is not invalid merely because it is inconsistent with a habitat protection plan.

(6)  This section:

(a)  does not render the exercise of a function invalid merely because it is inconsistent with a habitat protection plan, and

(b)  does not require or authorise action that is inconsistent with any statutory or other legal obligation of a Minister or a public authority.

Division 2 Aquatic reserves

Subdivision 1 Declaration of aquatic reserves

194   Declaration of aquatic reserves

(1)  The Minister may, by notice published in the Gazette, declare an area specified in the notice to be an aquatic reserve.

(2)  The purpose of declaring an area to be an aquatic reserve is to conserve the biodiversity of fish and marine vegetation and, consistently with that purpose:

(a)  to protect fish habitat in the reserve, or

(b)  to provide for species management in the reserve, or

(c)  to protect threatened species, populations and ecological communities (within the meaning of Part 7A) in the reserve, or

(d)  to facilitate educational activities and scientific research.

(3)  Land that is the subject of an aquaculture lease may be declared to be an aquatic reserve. However, nothing in this Division prevents the lessee from undertaking aquaculture in accordance with this Act in the area concerned during the currency of the lease.

(4)  Land that is dedicated for a public purpose may be declared to be an aquatic reserve. However, nothing in this Division prevents the land from being used for the purpose for which it is dedicated or permits the land to be used contrary to the provisions of any Act or statutory instrument applying to the land.

195   Consent required for declarations

(1)  The Minister is required to obtain the appropriate consent before declaring an area to be an aquatic reserve.

(2)  The appropriate consent for an area (other than an area of public water land) is the consent of the owner of the land concerned.

(3)  The appropriate consent for an area of public water land is:

(a)  in the case of public water land that is within a dam or reservoir used primarily for domestic water supply or within an area designated by or under an Act as a catchment area in respect of such a dam or reservoir—the consent of:

(i)  the authority controlling the dam or reservoir, and

(ii)  the Ministers respectively administering the Public Health Act 2010 and the Public Works Act 1912, and

(b)  in the case of public water land that is Crown land—the consent of the Minister administering the Crown Lands Act 1989, and

(c)  in the case of public water land (other than that referred to in paragraph (a)) that is vested in a public authority or in trustees for a public purpose—the consent of that authority or those trustees.

(4)  This section does not apply:

(a)  to an area of water (other than freshwater) and the land submerged by that water below mean high water mark, or

(b)  to an area vested in the Minister, or

(c)  to an area subject to an aquaculture lease.

195A   Consent of owners

If an owner of land whose consent is required under section 195 to the declaration of an area as an aquatic reserve cannot, after diligent inquiry, be found or identified, the declaration may be made without the consent of that owner.

195B   Meaning of “diligent inquiry”

(1)  For the purposes of section 195A, diligent inquiry to identify a person is the taking of the following actions:

(a)  the searching of the following registers:

(i)  the Register kept under the Real Property Act 1900, and

(ii)  the General Register of Deeds kept under the Conveyancing Act 1919, and

(iii)  the National Native Title Register kept under the Native Title Act 1993 of the Commonwealth,

(b)  placing, on a board or other structure in a conspicuous place on the land concerned, a notice:

(i)  stating that it is intended to declare the land as part of an aquatic reserve, and

(ii)  inviting the owner of the land to contact the Minister at a specified address,

(c)  publishing a notice referred to in paragraph (b) in a newspaper circulating in the vicinity of the land concerned and in a newspaper circulating generally in New South Wales.

(2)  For the purposes of section 195A, a person who is a native title holder is taken to have been unable, after diligent inquiry, to be found or identified if:

(a)  notice of the proposed declaration is served by the Minister in accordance with section 288A, and

(b)  at the expiration of the period of 4 months commencing on service of the notice, the person is neither a registered native title claimant nor a registered native title body corporate in relation to the land concerned.

195C   Existing interests and changes in ownership

(1)  A declaration of an aquatic reserve in relation to an area is not affected by:

(a)  an existing interest in respect of land in the area, or

(b)  a change of ownership of land in the area.

(2)  Subject to this Act, a provision of this Act or the regulations has effect in relation to an area of an aquatic reserve despite any such existing interest or change of ownership, unless the provision otherwise specifies.

196   Revocation or variation of declaration

(1)  The Minister may, subject to this section, revoke or vary the declaration of an aquatic reserve by notice published in the Gazette.

(2)  Before a declaration is revoked or varied, the Minister must cause notice of the proposed revocation or variation to be tabled in both Houses of Parliament.

(3)  Either House of Parliament may pass a resolution disallowing the proposed revocation or variation at any time after notice of the proposal is tabled in that House, but only if notice of the resolution was given within 15 sitting days of that House after notice of the proposal was so tabled.

(4)  If notice of a resolution to disallow a proposed revocation or variation is duly given, the Minister may not revoke or vary the declaration unless the resolution is not passed or it is withdrawn or lapses.

(5)  The provisions of sections 195 to 195C apply to a variation of a declaration that adds an area to an aquatic reserve in the same way as those provisions apply to the declaration of an aquatic reserve.

197   Regulations relating to aquatic reserves

The regulations may:

(a)  prohibit or regulate the taking of fish or marine vegetation from aquatic reserves, and

(b)  provide for the management, protection and development of aquatic reserves, and

(c)  classify areas within an aquatic reserve for different uses (such as recreational uses or as a sanctuary).

197A   Management plans for aquatic reserves

(1)  The Minister may arrange for the preparation of a draft management plan for an aquatic reserve.

(2)  The management plan for an aquatic reserve may make provision for or with respect to the following:

(a)  the objectives of the aquatic reserve,

(b)  the regulation of activities in the aquatic reserve in order to achieve those objectives,

(c)  performance indicators to monitor whether the objectives of the reserve are being attained,

(d)  reviews of the management plan,

(e)  any other matter for or with respect to which regulations may be made under this Act in respect of an aquatic reserve.

(3)  The Minister is required to give the public an opportunity to make submissions on any proposed management plan (including any proposed amendment to the plan or new plan) and to take any submission that is duly made into account.

(4)  A management plan for an aquatic reserve (including any amendment or new plan):

(a)  is to be made by regulation, and

(b)  may create an offence punishable by a penalty not exceeding 1,000 penalty units.

(5)  The management plan commences when the regulation making the plan commences.

(6)  If a provision of a management plan for an aquatic reserve is inconsistent with any other regulation under this Act relating to aquatic reserves, the management plan prevails.

Subdivision 2 Development and activities within aquatic reserves

197B   Mining in aquatic reserve prohibited

(1)  It is unlawful to prospect or mine for minerals in an aquatic reserve, except as expressly authorised by an Act of Parliament.

(2)  The Offshore Minerals Act 1999, the Mining Act 1992, the Petroleum (Onshore) Act 1991 and the Petroleum (Offshore) Act 1982 do not apply to or in respect of any area within an aquatic reserve.

(3)  This section does not apply to or in respect of any licence, permit, authorisation or lease in force under any of those Acts at the commencement of this section. However, no renewal or extension of such a licence, permit, authorisation or lease may be granted after that commencement except as expressly authorised by an Act of Parliament.

197C   Development within aquatic reserve—application of EPA Act

(1)  Before determining a development application under Part 4 of the Environmental Planning and Assessment Act 1979 for the carrying out of development within an aquatic reserve, a consent authority must:

(a)  take into consideration:

(i)  the objects of this Act specified in section 3, and

(ii)  if a management plan for the aquatic reserve has been made under section 197A, the objectives of the aquatic reserve, and

(iii)  the permissible uses of the area concerned under this Act, and

(b)  if the consent authority intends to grant consent to the carrying out of the development, obtain the concurrence of the Minister to the granting of the consent.

(2)  A Minister who is a determining authority must not carry out, or grant approval to carry out, an activity (within the meaning of Part 5 of the Environmental Planning and Assessment Act 1979) within an aquatic reserve unless the Minister has:

(a)  taken into consideration:

(i)  the objects of this Act specified in section 3, and

(ii)  if a management plan for the aquatic reserve has been made under section 197A, the objectives of the aquatic reserve, and

(iii)  the permissible uses of the area concerned under this Act, and

(b)  in the case of an activity for which an environmental impact statement is required to be prepared under Division 3 of that Part, consulted with the Minister on the carrying out of the activity or the granting of approval.

(3)  A determining authority (not being a Minister) must not carry out, or grant approval to carry out, an activity (within the meaning of Part 5 of the Environmental Planning and Assessment Act 1979) within an aquatic reserve unless the determining authority has:

(a)  taken into consideration:

(i)  the objects of this Act specified in section 3, and

(ii)  if a management plan for the aquatic reserve has been made under section 197A, the objectives of the aquatic reserve, and

(iii)  the permissible uses of the area concerned under this Act, and

(b)  in the case of an activity for which an environmental impact statement is required to be prepared under Division 3 of that Part, obtained the concurrence of the Minister to the carrying out of the activity or the granting of approval.

(4)  In deciding whether or not concurrence should be granted under this section, the Minister must take into consideration:

(a)  the objects of this Act specified in section 3, and

(b)  if a management plan for the aquatic reserve has been made under section 197A, the objectives of the aquatic reserve, and

(c)  the permissible uses of the area concerned under this Act.

(5)  The provisions of section 79B (8)–(11) of the Environmental Planning and Assessment Act 1979, and the regulations under that Act, apply to and in respect of a requirement under this section to obtain the concurrence of the Minister in the same way as they apply to a requirement to obtain concurrence imposed on a consent authority by an environmental planning instrument under that Act.

(6)  For the purposes of applying those provisions, a reference in those provisions to the matters stated pursuant to section 30 (3) of the Environmental Planning and Assessment Act 1979 (however expressed) is to be read as a reference to the objects of this Act specified in section 3 and the permissible uses of the area concerned under the regulations.

197D   Development affecting aquatic reserve—application of EPA Act

(1)  In determining a development application under Part 4 of the Environmental Planning and Assessment Act 1979 for the carrying out of development on land that is in the locality of an aquatic reserve, the consent authority must take into consideration the objects of this Act, the permissible uses of the area concerned under this Act and any advice given to it by the Director-General about the impact on the aquatic reserve of development in the locality.

(2)  If the consent authority is of the opinion that development proposed in the development application is likely to have an effect on the plants or animals within the aquatic reserve and their habitat, the consent authority must consult with the Minister before finally determining the application.

(3)  A determining authority must not carry out, or grant an approval to carry out, an activity on land that is in the locality of an aquatic reserve in purported compliance with Part 5 of the Environmental Planning and Assessment Act 1979 unless:

(a)  the determining authority has taken into consideration the objects of this Act, the permissible uses of the area concerned under this Act and any advice given to it by the Director-General on the impact on the aquatic reserve of the carrying out of an activity in the locality, and

(b)  if the determining authority is of the opinion that the proposed activity is likely to have an effect on the plants or animals within the aquatic reserve or their habitat, the determining authority has consulted with the Minister.

Subdivision 3 Aquatic reserve notifications

197E   Prohibition of activities in aquatic reserves

(1)  The Minister may from time to time, by notification, prohibit the carrying out of any specified activity (including the taking of fish) in an aquatic reserve or part of an aquatic reserve.

(2)  Any such prohibition is called an aquatic reserve notification.

(3)  An aquatic reserve notification:

(a)  may apply absolutely or subject to conditions, and

(b)  must specify the activities that are prohibited and the area or areas to which it applies, and

(c)  may only apply to the aquatic reserve specified in the notification, and

(d)  has effect despite any provision of the regulations.

197F   Publication of aquatic reserve notification

(1)  An aquatic reserve notification is to be published:

(a)  in the Gazette, and

(b)  in a newspaper circulating, or by radio or television broadcast, in the area adjacent to the aquatic reserve to which the notification applies, and

(c)  by causing a copy of the notification to be exhibited in a prominent place or places adjacent to the aquatic reserve to which the notification applies.

(2)  However, if the Minister considers that the aquatic reserve notification is required urgently, the Minister may publish the notification in accordance with subsection (1) (b) or (c) so long as the notification is published in the Gazette as soon as practicable.

197G   General provisions relating to aquatic reserve notifications

(1)  An aquatic reserve notification takes effect on the first publication of the notification or on a later date specified in the notification.

(2)  An aquatic reserve notification remains in force, subject to this Act, for the period (not exceeding 5 years) specified in the notification, but may be remade (with or without modification) by a further notification in accordance with this Subdivision.

197H   Amendment or revocation of notification

The Minister may from time to time amend or revoke an aquatic reserve notification by a further notification published in accordance with this Subdivision.

197I   General provisions relating to notification

Sections 42, 43 and 45 of the Interpretation Act 1987 apply to aquatic reserve notifications in the same way as they apply to statutory rules within the meaning of that Act.

Note. The above provisions of the Interpretation Act 1987 contain standard provisions that will authorise the adoption of other publications by reference, the making of differential notifications, the amendment or repeal of notifications and judicial notice and presumptions as to validity for notifications.

197J   Regulations relating to notifications

The regulations may make provision for or with respect to giving effect to aquatic reserve notifications or to any other matter relating to aquatic reserve notifications.

197K   Offence provisions

(1)  A person who carries out any activity in contravention of an aquatic reserve notification is guilty of an offence.

Maximum penalty: In the case of a corporation, 1,000 penalty units or, in any other case, 200 penalty units or imprisonment for 6 months, or both.

(2)  A person who is in possession of any animal, plant, rock, sand or other thing that has been taken in contravention of an aquatic reserve notification is guilty of an offence.

Maximum penalty: In the case of a corporation, 500 penalty units or, in any other case, 100 penalty units or imprisonment for 3 months, or both.

(3)  It is a defence to a prosecution for an offence under subsection (2) if the person charged satisfies the court that the person did not know and could not reasonably have known that the animal, plant, rock, sand or other thing had been taken in contravention of a provision of or made under this Act.

Division 3 Dredging and reclamation

198   Objects of Division

The objects of this Division are to conserve the biodiversity of fish and aquatic vegetation and to protect fish habitat by providing for the management of dredging and reclamation work, consistent with the objectives of ecologically sustainable development.

198A   Definitions

In this Division:

dredging work means:

(a)  any work that involves excavating water land, or

(b)  any work that involves the removal of material from water land that is prescribed by the regulations as being dredging work to which this Division applies.

farm dam means the backed up waters of any dam, or impoundment, located on land that is not public water land.

reclamation work means any work that involves:

(a)  using any material (such as sand, soil, silt, gravel, concrete, oyster shells, tyres, timber or rocks) to fill in or reclaim water land, or

(b)  depositing any such material on water land for the purpose of constructing anything over water land (such as a bridge), or

(c)  draining water from water land for the purpose of its reclamation.

water land means land submerged by water:

(a)  whether permanently or intermittently, or

(b)  whether forming an artificial or natural body of water,

and includes wetlands and any other land prescribed by the regulations as water land to which this Division applies.

wetlands includes marshes, mangroves, swamps, or other areas that form a shallow body of water when inundated intermittently or permanently with fresh, brackish or salt water, and where the inundation determines the type and productivity of the soils and the plant and animal communities.

198B   Application of Division

This Division applies to any dredging work or any reclamation work, except the following:

(a)  any dredging work or reclamation work carried out in respect of an artificial body of water, unless the body of water is permanently or intermittently connected to a natural body of water or unless the regulations otherwise provide,

(b)  any dredging work or reclamation work carried out in respect of a farm dam, unless the regulations otherwise provide,

(c)  anything permitted by or under this Act (such as digging for bait),

(d)  anything exempted from this Division by the regulations.

199   Circumstances in which a public authority (other than local authority) may carry out dredging or reclamation

(1)  A public authority (other than a local government authority) must, before it carries out or authorises the carrying out of dredging or reclamation work:

(a)  give the Minister written notice of the proposed work, and

(b)  consider any matters concerning the proposed work that are raised by the Minister within 28 days after the giving of the notice (or such other period as is agreed between the Minister and the public authority).

(2)  Any such public authority is to notify the Minister of any dredging or reclamation work that it proposes to carry out or authorise despite any matter raised by the Minister. The Minister may, within 14 days after being so notified, refer any dispute to the Minister responsible for the public authority. If the dispute cannot be resolved by those Ministers, it is to be referred to the Premier for resolution.

(3)  In this section, public authority includes the Minister administering the Crown Lands Act 1989.

200   Circumstances in which a local government authority may carry out dredging or reclamation

(1)  A local government authority must not carry out dredging or reclamation work except under the authority of a permit issued by the Minister.

Maximum penalty: 2,000 penalty units.

(2)  This section does not apply to:

(a)  work authorised under the Crown Lands Act 1989, or

(b)  work authorised by a relevant public authority (other than a local government authority).

(3)  This section has effect irrespective of any other Act to the contrary.

201   Circumstances in which a person may carry out dredging or reclamation work

(1)  A person must not carry out dredging or reclamation work except under the authority of a permit issued by the Minister.

Maximum penalty: In the case of a corporation, 2,000 penalty units or, in any other case, 1,000 penalty units.

(2)  This section does not apply to:

(a)  work authorised under the Crown Lands Act 1989, or

(b)  work carried out, or authorised, by a relevant public authority (other than a local government authority), or

(c)  work excluded from the operation of this section by the regulations.

202   Appeal to the Land and Environment Court

(1)  A person (including a local government authority) who is dissatisfied with a decision of the Minister concerning dredging or reclamation work may appeal against the decision to the Land and Environment Court within 30 days of receiving notice of the decision.

(2)  The lodging of an appeal does not, except to the extent that the Land and Environment Court otherwise directs in relation to the appeal, operate to stay the decision appealed against.

203   Minister may order carrying out of certain work

(1)  If dredging or reclamation work is carried out in contravention of section 200 or 201, the Minister may, by order in writing given to the local government authority or person concerned, require that authority or person to carry out, within a period specified in the order, such remedial work as the Minister considers necessary to rectify the damage caused by the dredging or reclamation work to fisheries and fish habitats.

(2)  A court that convicts a person of an offence against section 200 or 201 may also make an order of the kind referred to in subsection (1).

(3)  If the requirements of an order under this section are not complied with within the period specified in it, the Minister:

(a)  may cause the work specified in the order to be carried out, and

(b)  may, by proceedings brought in a court of competent jurisdiction, recover as a debt from the local government authority or person to whom the order was given the cost of complying with those requirements.

(4)  Action may be taken against a local government authority or person in respect of a dredging or reclamation work under this section regardless of whether the local government authority or person has been charged with having committed an offence against this Division in relation to the same work.

(5)  This section extends to a contravention of Division 4 or 5 and to damage caused by any such contravention. Accordingly, a reference to section 200 or 201 includes a reference to that Division and a reference to dredging or reclamation work includes a reference to work to which that Division applies.

Division 4 Protection of mangroves and certain other marine vegetation

204   Application and interpretation

(1)  This Division does not apply to a threatened species, population or ecological community of marine vegetation within the meaning of Part 7A.

(2)  In this Division:

foreshore means any land adjacent to public water land, or adjacent to an area that is the subject of an aquaculture lease, that is below the highest astronomical tide level of the waters by which the land or area is submerged.

harm, in relation to marine vegetation, means gather, cut, pull up, destroy, poison, dig up, remove, injure, prevent light from reaching or otherwise harm the marine vegetation, or any part of it.

marine vegetation means marine vegetation, whether living or dead.

protected area means any public water land, or any area that is the subject of an aquaculture lease, and includes:

(a)  that part of the foreshore of any public water land or area that is the subject of an aquaculture lease that is below the mean high water mark of the waters by which the land or area is submerged, and

(b)  any other part of the foreshore of any public water land or area that is the subject of an aquaculture lease that is declared by the Minister, by order published in the Gazette, to be a protected area.

204A   Marine vegetation protected from any harvesting or other harm

(1)  This section applies to any marine vegetation declared by the regulations to be protected marine vegetation.

(2)  A person must not harm any such protected marine vegetation in a protected area.

Maximum penalty: In the case of a corporation, 2,000 penalty units or, in any other case, 1,000 penalty units.

204B   Marine vegetation protected from any commercial harvesting

(1)  This section applies to any marine vegetation declared by the regulations to be protected from commercial harvesting.

(2)  A person must not gather or collect for commercial purposes any such protected marine vegetation in a protected area.

Maximum penalty: In the case of a corporation, 2,000 penalty units or, in any other case, 1,000 penalty units.

Note. Permits for the commercial harvesting of other marine vegetation may be required by regulations under section 191.

205   Marine vegetation—regulation of harm

(1)  This section applies to:

(a)  mangroves, or

(b)  seagrasses, or

(c)  any other marine vegetation declared by the regulations to be marine vegetation to which this section applies,

      but does not apply to protected marine vegetation under section 204A.

(2)  A person must not harm any such marine vegetation in a protected area, except under the authority of a permit issued by the Minister under this Part.

Maximum penalty: In the case of a corporation, 2,000 penalty units or, in any other case, 1,000 penalty units.

205A   Exemptions

(1)  This Division does not apply to any marine vegetation that is being cultivated or kept in accordance with the authority conferred by an aquaculture permit.

(2)  The regulations may exempt any activity, class of activities, or area from the operation of this Division or from specified provisions of this Division.

205B   Activities harmful to marine vegetation

(1)  For the purposes of this Division, a person is presumed to have harmed marine vegetation if the person carries out an activity prescribed for the purposes of this section by the regulations, unless the person establishes that the particular activity caused no actual harm to marine vegetation.

(2)  The regulations may prescribe an activity in relation to one or more of the following:

(a)  all protected areas,

(b)  a specific protected area,

(c)  part of a protected area.

Division 5 Protection of spawning of salmon, trout and certain other fish

206   Protection of spawning areas of salmon, trout and certain other fish

(1)  A person who damages gravel beds in any waters knowing that it is a place where salmon or trout spawn or are likely to spawn is guilty of an offence.

Maximum penalty: 1,000 penalty units.

(1A)  In proceedings for an offence under this section in respect of an act or an omission of a person that causes damage to gravel beds in any waters where salmon or trout spawn or are likely to spawn, it is to be conclusively presumed that the person knew that the waters were waters of that kind if it is established that:

(a)  the act or omission occurred in the course of the carrying out of development or an activity for which development consent under Part 4 of the Environmental Planning and Assessment Act 1979, or an approval to which Part 5 of that Act applies, was required but not obtained, or

(b)  the act or omission constituted a failure to comply with any such development consent or approval.

(1B)  A person is not guilty of an offence against this section if the act or omission that constitutes the offence was done or omitted under the authority of a permit issued under this Part.

(2)  The regulations may make other provision for or with respect to preventing damage to any place where fish of any species spawn or are likely to spawn.

207   Prohibition on taking or disturbing salmon, trout and certain other fish while spawning

(1)  This section applies to salmon and trout and to any other fish of a species prescribed by the regulations.

(2)  A person who wilfully takes or disturbs fish to which this section applies knowing that they are spawning or are on or near their spawning beds is guilty of an offence.

Maximum penalty: 50 penalty units.

208   Defence for authorised activities

A defence to a prosecution for an offence of damaging critical habitat under Part 7A is also available as a defence to a prosecution for an offence against this Division.

Division 6 Noxious fish and noxious marine vegetation

209   Definitions

For the purposes of this Act:

noxious fish means a species of fish that is noxious fish for the purposes of this Act under section 209A or 209B.

noxious marine vegetation means a species of marine vegetation that is noxious marine vegetation for the purposes of this Act under section 209A or 209B.

209A   Noxious fish and noxious marine vegetation

(1)  Column 1 of Schedule 6C specifies the species of fish and marine vegetation that are noxious fish and noxious marine vegetation for the purposes of this Act.

(2)  If Column 3 of Schedule 6C specifies particular waters in relation to which a particular species of fish or marine vegetation is noxious fish or noxious marine vegetation, the species is noxious fish or noxious marine vegetation only when located in those specified waters.

(3)  The common name of a species of fish or marine vegetation specified in Column 2 of Schedule 6C is for information purposes only and does not limit the description of the species of fish or marine vegetation in Column 1.

(4)  The Governor may, by regulation on the recommendation of the Minister, amend Schedule 6C to insert, alter or omit any matter in that Schedule.

209B   Urgent declarations by Minister

(1)  In the case of an emergency, the Minister may, by order published in the Gazette, declare any specified species of fish or marine vegetation to be noxious fish or noxious marine vegetation for the purposes of this Act.

(2)  An order made by the Minister under this section may:

(a)  limit the declaration to fish or marine vegetation located in any specified waters, and

(b)  declare that specified provisions of this Division do not apply in respect of the relevant species of fish or marine vegetation or apply only in the circumstances specified in the declaration.

(3)  An order has effect according to its terms and remains in force (unless sooner revoked by another order) for the period, not exceeding 6 months, specified in the order.

209C   Minister may declare quarantine area

(1)  The Minister may, by order, declare any area or boat specified in the order to be a quarantine area because of the presence or suspected presence of noxious fish or noxious marine vegetation.

(2)  An area may be declared a quarantine area if:

(a)  it is subject to an aquaculture permit, or

(b)  it is an area of water, or

(c)  it is an area in the immediate vicinity of an area of water, or

(d)  it is a pet shop or an aquarium kept for commercial purposes or other place where noxious fish or suspected noxious fish are found that is used for commercial purposes.

(3)  An order declaring a quarantine area is to be published in the Gazette. However, if the Minister considers the order is required urgently, the order may be published:

(a)  in a newspaper circulating, or by radio or television broadcast, in the area to which the order applies, or

(b)  on the Department’s internet website.

(4)  The order is not required to be so published if served on the owner or occupier of the area or boat concerned.

(5)  The order commences on the day it is published or served in accordance with this section, or on such later day as may be specified in the order.

(6)  An order declaring a quarantine area may:

(a)  prohibit the taking of fish or marine vegetation or specified fish or marine vegetation in or from the quarantine area, and

(b)  prohibit or restrict the movement of fish or marine vegetation or specified fish or marine vegetation into, within or out of the quarantine area, and

(c)  exclude specified provisions of this Division in respect of any fish or marine vegetation, or specified fish or marine vegetation, taken from or deposited in the quarantine area or any part of the quarantine area, and

(d)  require a relevant person to take such action as is specified in the order or directed by a fisheries officer (including the destruction or treatment of fish or marine vegetation cultivated or located in the quarantine area), and

(e)  contain any other provisions authorised by the regulations.

If the order is not published in accordance with this section, the provisions of the order apply only to the persons on whom the order is served.

(7)  For the purposes of this section, a relevant person means:

(a)  the holder of an aquaculture permit in respect of a quarantine area or part of a quarantine area, or

(b)  the owner or occupier of any land or premises or any boat that is or is within a quarantine area or the master of any such boat.

(8)  A person who, without reasonable excuse, contravenes a provision of an order declaring a quarantine area is guilty of an offence.

Maximum penalty: In the case of a corporation, 1,000 penalty units or, in any other case, 500 penalty units.

(9)  If a relevant person fails to take any action required by an order declaring a quarantine area, a fisheries officer may enter the quarantine area and take the required action.

(10)  Subsection (9) does not authorise a fisheries officer to enter any premises used for residential purposes.

(11)  If the fisheries officer takes such action:

(a)  the relevant person is not entitled to any compensation for any loss reasonably caused in taking that action, and

(b)  the Minister may recover from the relevant person the costs of taking that action as a debt in a court of competent jurisdiction.

209D   Release of noxious fish or noxious marine vegetation prohibited

(1)  A person must not intentionally or recklessly release into any waters any live noxious fish or live noxious marine vegetation otherwise than under the authority of a permit issued by the Minister for the purposes of this section.

Maximum penalty: In the case of a corporation, 500 penalty units or, in any other case, 100 penalty units.

(2)  This section does not apply:

(a)  if the fish are released in waters in which they are not noxious fish, or the marine vegetation is released in waters in which it is not noxious marine vegetation, for the purposes of this Division, or

(b)  to the immediate return of fish to waters from which they were taken.

(3)  In this section, release fish or marine vegetation includes depositing them or permitting them to escape.

210   Sale of noxious fish or noxious marine vegetation prohibited

(1)  A person who sells live noxious fish or noxious marine vegetation otherwise than under the authority of a permit issued by the Minister is guilty of an offence.

Maximum penalty: In the case of a corporation, 500 penalty units or, in any other case, 100 penalty units.

(2)  This section applies even if the fish are only noxious fish, or the marine vegetation is only noxious marine vegetation, for the purposes of this Division when in particular waters.

211   Possession of noxious fish or noxious marine vegetation prohibited

(1)  A person who has possession of live noxious fish or noxious marine vegetation otherwise than under the authority of a permit issued by the Minister under this Part or an aquaculture permit is guilty of an offence.

Maximum penalty: In the case of a corporation, 100 penalty units or, in any other case, 50 penalty units.

(2)  It is a defence to a prosecution for an offence under this section if the person charged satisfies the court that the person neither introduced the noxious fish or noxious marine vegetation into the waters concerned nor maintained the noxious fish or marine vegetation in those waters.

(3)  This section does not apply if the fish are in waters in which they are not noxious fish, or the marine vegetation is in waters in which it is not noxious marine vegetation, for the purposes of this Division.

212   Use of aquaculture permit to control noxious fish or noxious marine vegetation

Conditions may be included in an aquaculture permit for the purpose of the destruction or control of noxious fish or noxious marine vegetation.

213   Destruction of noxious fish or noxious marine vegetation

(1)  A fisheries officer may seize and destroy any live noxious fish or noxious marine vegetation.

(2)  A fisheries officer may take possession of:

(a)  any fish the officer suspects are noxious fish in order to determine whether they are noxious fish, or

(b)  any marine vegetation the officer suspects is noxious marine vegetation in order to determine whether it is noxious marine vegetation.

(3)  The Minister may, by notice in writing given to the owner or occupier of premises on which noxious fish are, or noxious marine vegetation is, located, require the owner or occupier to take such measures as are specified in the notice to destroy the fish or marine vegetation within a specified period.

(4)  If the owner or occupier to whom such a notice is given fails within the period specified in the notice to comply with any of the requirements of the notice, a fisheries officer may:

(a)  enter the premises where live noxious fish are, or noxious marine vegetation is, believed to be located, and

(b)  take such measures to destroy those fish or that marine vegetation as the fisheries officer considers appropriate.

This subsection does not authorise a fisheries officer to enter any premises used for residential purposes.

(5)  Compensation is not payable for the seizure or destruction of live noxious fish or live noxious marine vegetation under this section or for the destruction of other live fish or live marine vegetation if, in destroying the noxious fish or the noxious marine vegetation, the destruction of the other fish or marine vegetation could not reasonably be avoided.

(6)  The Minister may, by proceedings brought in a court of competent jurisdiction, recover as a debt from an owner or occupier to whom a notice has been given under this section the costs incurred in taking the measures referred to in subsection (4).

214   Search warrant

(1)  A fisheries officer may apply to an authorised officer for a search warrant if the fisheries officer believes on reasonable grounds that live noxious fish are, or live noxious marine vegetation is, located on any specified premises.

(2)  An authorised officer to whom an application is made under this section may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising a fisheries officer named in the warrant:

(a)  to enter the premises, and

(b)  to search the premises for, and to seize and destroy, any noxious fish or noxious marine vegetation on the premises.

(3)  Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section.

(4)  In this section:

authorised officer has the same meaning as it has in the Law Enforcement (Powers and Responsibilities) Act 2002.

214A   Exemptions

(1)  The Minister may, by order published in the Gazette, declare that any specified provisions of this Division do not apply in respect of specified noxious fish or noxious marine vegetation or apply only in the circumstances specified in the order.

(2)  Such an order has effect according to its terms.

214B   Regulations relating to noxious fish and noxious marine vegetation

(1)  The regulations may make provision for or with respect to eliminating or preventing the spread of noxious fish and noxious marine vegetation.

(2)  In particular, the regulations may make provision for or with respect to the following:

(a)  the destruction of noxious fish or noxious marine vegetation,

(b)  the examination and testing of fish or marine vegetation taken from or found in a quarantine area,

(c)  the notification to the Minister or a fisheries officer of the presence or suspected presence of noxious fish or noxious marine vegetation in an area subject to an aquaculture permit, pet shop, aquarium or other place or in or on a boat.

Division 7 Protection of fish and marine vegetation from disease

215   Purposes of Division

The purposes of this Division are:

(a)  to prevent the spread of diseases in fish and marine vegetation, and

(b)  to prevent any adverse effect on existing fish and marine vegetation and their habitats by introduced species of fish and marine vegetation.

216   Releasing live fish into waters prohibited

(1)  A person must not release into any waters any live fish except under the authority of a permit issued by the Minister or an aquaculture permit.

Maximum penalty: In the case of a corporation, 100 penalty units or, in any other case, 50 penalty units.

(2)  This section does not apply to the immediate return of fish to waters from which they were taken.

(3)  This section applies only to the release of fish into the sea, into a river, creek or other flowing stream of water or into a lake.

(4)  In this section, release a fish, includes depositing them or permitting them to escape.

217   Importation of live exotic fish

(1)  A person must not bring into New South Wales any live fish of a species or class prescribed by the regulations except under the authority of a permit issued by the Minister.

Maximum penalty: In the case of a corporation, 100 penalty units or, in any other case, 50 penalty units.

(2)  A person who sells, buys or has possession of fish knowing that the fish has been brought into New South Wales in contravention of this section is guilty of an offence.

Maximum penalty: In the case of a corporation, 100 penalty units or, in any other case, 50 penalty units.

(3)  This section does not apply in respect of any species of fish that was established in the waters of the State, or in the waters of the sea adjacent to the State within the Australian fishing zone, before European settlement.

217A   Importation of live exotic marine vegetation

(1)  A person must not bring into New South Wales any live marine vegetation of a species or class prescribed by the regulations except under the authority of a permit issued by the Minister.

Maximum penalty: In the case of a corporation, 100 penalty units or, in any other case, 50 penalty units.

(2)  A person who sells, buys or has possession of marine vegetation knowing that it has been brought into New South Wales in contravention of this section is guilty of an offence.

Maximum penalty: In the case of a corporation, 100 penalty units or, in any other case, 50 penalty units.

(3)  This section does not apply in respect of any species of marine vegetation that existed in the State before European settlement.

Division 8 Miscellaneous provisions

218   Fishways to be provided in construction of dams and weirs

(1)  The Minister may, by order in writing, require a person (other than a public authority) who constructs, alters or modifies a dam, weir or reservoir on a waterway to carry out, within the period specified in the order, such works as may be so specified to enable fish to pass through or over the dam, weir or reservoir.

(2)  The Minister may also, by order in writing, require a person responsible for the management or control of a dam, weir or reservoir to carry out repairs to a fishway or fish by-pass.

(3)  A person who fails to comply with an order under this section is guilty of an offence.

Maximum penalty: In the case of a corporation, 2,000 penalty units or, in any other case, 1,000 penalty units.

(4)  If a person fails to carry out the work specified in an order under this section within the period so specified, the Minister:

(a)  may cause the work to be carried out, and

(b)  may, by proceedings brought in a court of competent jurisdiction, recover from the person as a debt the cost of carrying out the work.

(5)  A public authority that proposes to construct, alter or modify a dam, weir or reservoir on a waterway (or to approve of any such construction, alteration or modification):

(a)  must notify the Minister of the proposal, and

(b)  must, if the Minister so requests, include as part of the works for the dam, weir or reservoir, or for its alteration or modification, a suitable fishway or fish by-pass.

(5A)  This section does not apply to or in respect of any work or waters of a kind exempted from the operation of this section by the regulations.

(5B)  A person (other than a public authority) must not construct, alter or modify a dam, weir or reservoir on a waterway unless the person ensures that the Minister is given notice in writing of the proposed works at least 28 days before the commencement of the works.

Maximum penalty: In the case of a corporation, 200 penalty units or in any other case, 100 penalty units.

(5C)  Subsection (5B) does not apply in respect of any works approved by a public authority or approved by the Minister administering the Environmental Planning and Assessment Act 1979 under Part 3A or Part 5.1 of that Act.

(6)  In this section:

dam, weir or reservoir includes a floodgate.

waterway means a river, creek or other flowing stream of water, whether flowing regularly or intermittently, and includes any lagoon or other body of water that is intermittently subject to tidal influence or that intermittently flows into a river, creek or stream.

219   Passage of fish not to be blocked

(1)  A person who:

(a)  sets a net, netting or other material, or

(b)  constructs or alters a dam, floodgate, causeway or weir, or

(c)  otherwise creates an obstruction,

      across or within a bay, inlet, river or creek, or across or around a flat, so that:

(d)  fish will or could be blocked or left stranded, or

(e)  immature fish will or could be destroyed, or

(f)  the free passage of fish will or could be obstructed,

      is guilty of an offence.

Maximum penalty: In the case of a corporation, 2,000 penalty units or, in any other case, 1,000 penalty units.

(2)  A court convicting a person of an offence under this section may order the person to remove, within a specified period, the obstruction involved in the commission of the offence.

(3)  If such an order is not complied with within the specified period, the Minister:

(a)  may cause the obstruction concerned to be removed, and

(b)  may, by proceedings brought in a court of competent jurisdiction, recover the cost of removal as a debt from the person against whom the order was made.

(4)  An order made by a court under section 10 of the Crimes (Sentencing Procedure) Act 1999 in any proceedings for an offence under this section is taken, for the purposes of this section, to be a conviction for the offence.

(5)  This section does not apply to or in respect of the following:

(a)  any activity that is otherwise permitted by or under this Act or any other Act,

(b)  any activity that is done in accordance with a permit issued by the Minister under this Part,

(c)  any activity or waters of a kind exempted from the operation of this section by the regulations.

220   Provisions relating to permits under this Part

(1)  A permit under this Part:

(a)  is subject to such conditions as are prescribed by the regulations or specified in the permit, and

(b)  remains in force for such period as is specified in the permit, and

(c)  may be cancelled or suspended by the Minister at any time by notice given to the permit holder.

(1A)  The issue of a permit referred to in section 201, 205 or 219 in relation to integrated development within the meaning of section 91 of the Environmental Planning and Assessment Act 1979 is subject to Division 5 of Part 4 of that Act.

(1B)  Without limiting subsection (1), conditions of a permit may include conditions requiring the permit holder to enter into a bond or guarantee or other financial arrangement for the due performance of the holder’s obligations under this Act.

(2)  The Minister may from time to time, by notice given to the permit holder, vary the conditions of a permit.

(3)  The regulations may make provision for or with respect to permits under this Part.

220AA   Director-General may make stop work order

(1)  If the Director-General is of the opinion that any action is being, or is about to be, carried out in contravention of Division 3 or 4, or section 219, and that the action is likely to cause damage to fish habitat or obstruct the free passage of fish, the Director-General may order that such action is to cease and that no further action, other than such action as may be specified in the order, is to be carried out in or in the vicinity of the waters concerned within a period of 40 days after the date of the order.

(2)  An order takes effect on and from the date on which:

(a)  a copy of the order is affixed in a conspicuous place in the vicinity of the waters the subject of the order, or

(b)  the person carrying out or about to carry out the action is notified that the order has been made,

      whichever is the sooner.

(3)  A person who does not comply with an order in force under this section is guilty of an offence.

Maximum penalty:

(a)  in the case of an individual, 1,000 penalty units and an additional 500 penalty units for each day the offence continues, or

(b)  in the case of a corporation, 2,000 penalty units and an additional 1,000 penalty units for each day the offence continues.

(4)  The Director-General may, by making a further order under this section, extend an order for such further period or periods of 40 days as the Director-General thinks fit.

(5)  The Director-General is not required, before making an order under this section, to notify any person who may be affected by the order.

(6)  An order of the Director-General under this section has effect despite any consent, approval, notice, order or other instrument made or issued by or under any other Act or law that requires or permits the action prohibited by the order.

(7)  This section does not apply to the following:

(a)  any thing authorised by or under the State Emergency and Rescue Management Act 1989 that is reasonably necessary to avoid a threat to life or property,

(b)  any thing authorised to be done by or under the Rural Fires Act 1997 in relation to any emergency fire fighting act within the meaning of that Act.

(8)  A person who is dissatisfied with a decision of the Director-General to take action under this section may appeal against the decision to the Land and Environment Court within 30 days of receiving notice of the decision.

(9)  The lodging of an appeal does not, except to the extent that the Land and Environment Court otherwise directs in relation to the appeal, operate to stay the decision appealed against.