Part 7A Threatened species conservation
The objects of this Part are as follows:(a) to conserve biological diversity of fish and marine vegetation and promote ecologically sustainable development and activities,(b) to prevent the extinction and promote the recovery of threatened species, populations and ecological communities of fish and marine vegetation,(c) to protect the critical habitat of those threatened species, populations and ecological communities that are endangered,(d) to eliminate or manage certain processes that threaten the survival or evolutionary development of threatened species, populations and ecological communities of fish and marine vegetation,(e) to ensure that the impact of any action affecting threatened species, populations and ecological communities of fish and marine vegetation is properly assessed,(f) to encourage the conservation of threatened species, populations and ecological communities of fish and marine vegetation by the adoption of measures involving co-operative management.Note. In furtherance of the objects of this Part, the responsibilities of the Minister and the Director-General extend to biological diversity of fish and marine vegetation—see the other provisions of this Part and the provisions relating to the Biological Diversity Advisory Council and the Biological Diversity Strategy in relation to fish and marine vegetation under Part 9 of the Threatened Species Conservation Act 1995.
(1) In this Part:BDAC means the Biological Diversity Advisory Council established under the Threatened Species Conservation Act 1995.
catchment action plan or CAP means a catchment action plan approved under Part 4 of the Catchment Management Authorities Act 2003.
critical habitat means habitat declared to be critical habitat under Division 3.
critically endangered ecological community means an ecological community specified in Part 2 of Schedule 4A.
critically endangered species means a species specified in Part 1 of Schedule 4A.
critically endangered species and ecological communities means species and ecological communities specified in Schedule 4A and critically endangered species or ecological community means a species or ecological community respectively specified in that Schedule.
Department means the Department of Primary Industries.
ecological community means an assemblage of species of fish or marine vegetation (or both) occupying a particular area.
endangered ecological community means an ecological community specified in Part 3 of Schedule 4.
endangered population means a population specified in Part 2 of Schedule 4.
endangered species means a species specified in Part 1 of Schedule 4.
endangered species, populations and ecological communities means species, populations and ecological communities specified in Schedule 4 and endangered species, population or ecological community means a species, population or ecological community respectively specified in that Schedule.
environmental planning instrument or EPI means an environmental planning instrument under the Environmental Planning and Assessment Act 1979.
fish means any fish (as defined in section 5) that is indigenous to New South Wales, but does not include any fish declared to be a species of animal for the purposes of the Threatened Species Conservation Act 1995 by order in force under section 5A of that Act.
Note. Animals may be listed under the Threatened Species Conservation Act 1995.Fisheries Scientific Committee means the Fisheries Scientific Committee constituted under Division 9.
harm means:
(a) in the case of fish—take, injure or otherwise harm the fish, or(b) in the case of marine vegetation—gather, cut, pull up, destroy, poison, dig up, remove, injure or otherwise harm the marine vegetation, or any part of it,but in any such case does not include harm by changing the habitat of the fish or marine vegetation.joint management agreement means an agreement entered into under Division 8.
key threatening process means a threatening process specified in Schedule 6.
land includes:
(a) land covered with water, whether regularly or intermittently, and(b) the sea or an arm of the sea, and(c) a bay, inlet, lagoon, lake or body of water, whether inland or not and whether tidal or not, and(d) a river, stream or watercourse, whether tidal or not.landholder of land means a person who owns land or who, whether by reason of ownership or otherwise, is in lawful occupation or possession, or has lawful management or control, of land.
list means a list set out in Schedules 4–6, and includes a list in one or more of those Schedules that does not contain any entries.
marine vegetation means any marine vegetation (as defined in section 4) that is indigenous to New South Wales, but does not include any marine vegetation declared to be a species of plant for the purposes of the Threatened Species Conservation Act 1995 by order in force under section 5A of that Act.
Note. Plants may be listed under the Threatened Species Conservation Act 1995.NPW Act means the National Parks and Wildlife Act 1974.
NRC means the Natural Resources Commission established under the Natural Resources Commission Act 2003.
population means a group of organisms, all of the same species of fish or marine vegetation, occupying a particular area.
Priorities Action Statement means a Threatened Species Priorities Action Statement under Division 5A.
public authority means a public authority (as defined in section 4), and includes a person exercising any function on behalf of the authority and any person prescribed by the regulations to be a public authority.
recovery plan means a recovery plan prepared and approved under Division 5.
region means a region within the meaning of the Threatened Species Conservation Act 1995.
SEAC means the Social and Economic Advisory Council established under the Threatened Species Conservation Act 1995.
species means a species of fish or marine vegetation, and includes any defined sub-species and taxon below a sub-species and any recognisable variant of a sub-species or taxon.
species impact statement means a statement referred to in Subdivision 2 of Division 6 and includes an environmental impact statement, prepared under the Environmental Planning and Assessment Act 1979, that contains a species impact statement.
species presumed extinct means a species specified in Part 4 of Schedule 4.
threat abatement plan means a threat abatement plan prepared and approved under Division 5.
threatened ecological community means an ecological community specified in Part 3 of Schedule 4, Part 2 of Schedule 4A or Part 2 of Schedule 5.
threatened species means a species specified in Part 1 (Endangered species) or 4 (Species presumed extinct) of Schedule 4, Part 1 (Critically endangered species) of Schedule 4A or Part 1 (Vulnerable species) of Schedule 5.
threatened species, populations and ecological communities means species, populations and ecological communities specified in Schedules 4, 4A and 5 and threatened species, population or ecological community means a species, population or ecological community respectively specified in any of those Schedules.
Threatened Species Scientific Committee means the Scientific Committee constituted under the Threatened Species Conservation Act 1995.
threatening process means a process that threatens, or that may threaten, the survival or evolutionary development of species, populations or ecological communities of fish or marine vegetation.
vulnerable ecological community means an ecological community specified in Part 2 of Schedule 5.
vulnerable species means a species specified in Part 1 of Schedule 5.
(2) A reference in this Part to fish or marine vegetation indigenous to New South Wales is a reference to fish or marine vegetation of a species that was established in New South Wales before European settlement.(3) A reference in this Part to New South Wales includes a reference to the coastal waters of the State.Note. Coastal waters of the State is defined in section 58 of the Interpretation Act 1987. Generally speaking, coastal waters extend to the waters of the sea within 3 nautical miles of the coast.
220BA Relationship of Part to Threatened Species Conservation Act 1995
(1) The Minister may, by order made with the concurrence of the Minister administering the Threatened Species Conservation Act 1995:(a) declare a species of animal to be a species of fish for the purposes of this Act if it is an invertebrate and it is a species that may inhabit water at some stage of its biological development, or(b) declare a species of plant to be a species of marine vegetation for the purposes of this Act if it is a species that may inhabit water (other than freshwater) at some stage of its biological development.(2) Any species of animal or plant that is the subject of an order in force under this section is taken to be a species of fish or marine vegetation for the purposes of this Part, in accordance with the terms of the order.(3) The Minister and the Minister administering the Threatened Species Conservation Act 1995 may at any time consult with each other for the purpose of determining whether an order under this section should be made and the terms of the order.(4) The Ministers may also consult with the Chairperson of the Fisheries Scientific Committee, the Chairperson of the Threatened Species Scientific Committee and any other person or body before making an order under this section.(5) If the Ministers are unable to resolve any dispute between them as to the making or the terms of an order under this section, the matter is to be referred to the Premier for resolution. The decision of the Premier in relation to the matter is to be given effect to by the Ministers.(6) An order under this section is to be published in the Gazette.(7) For avoidance of doubt, an order under this section does not require the species concerned to be listed under this Part.(8) In this section:animal means any animal-life that is indigenous to New South Wales or is known to periodically or occasionally migrate to New South Wales, in any stage of biological development, but does not include humans.
plant means any plant-life that is indigenous to New South Wales, whether vascular or non-vascular and in any stage of biological development, and includes fungi and lichens.
Division 2 Listing of threatened species, populations and ecological communities and key threatening processes
(1) Endangered species
Part 1 of Schedule 4 contains a list of endangered species for the purposes of this Part.(2) Endangered populations
Part 2 of Schedule 4 contains a list of endangered populations for the purposes of this Part.(3) Endangered ecological communities
Part 3 of Schedule 4 contains a list of endangered ecological communities for the purposes of this Part.(4) Species presumed extinct
Part 4 of Schedule 4 contains a list of species presumed extinct for the purposes of this Part.(4A) Critically endangered species
Part 1 of Schedule 4A contains a list of critically endangered species for the purposes of this Part.(4B) Critically endangered ecological communities
Part 2 of Schedule 4A contains a list of critically endangered ecological communities for the purposes of this Part.(5) Vulnerable species
Part 1 of Schedule 5 contains a list of vulnerable species for the purposes of this Part.(5A) Vulnerable ecological communities
Part 2 of Schedule 5 contains a list of vulnerable ecological communities for the purposes of this Part.(6) Key threatening processes
Schedule 6 contains a list of key threatening processes for the purposes of this Part.
(1) The Fisheries Scientific Committee may, by order published on the NSW legislation website, amend Schedule 4, 4A, 5 or 6:(a) by inserting the name or description of a species, population, ecological community or threatening process, or(b) by omitting the name or description of a species, population, ecological community or threatening process, or(c) by amending the name or description of a species, population, ecological community or threatening process.(2) The Fisheries Scientific Committee may, by order published on the NSW legislation website, amend this Act by omitting Schedule 4, 4A, 5 or 6 and by inserting instead a Schedule containing the names or descriptions of species, populations, ecological communities or threatening processes.(3) A new species, population, ecological community or threatening process may not be listed, nor any such listing changed or omitted, unless the requirements of Subdivision 2 have been complied with.(4) An order under this section is not invalid because of a contravention of the requirements of Subdivision 2 relating to the order.
220E Identification of nationally threatened species and ecological communities
(1) A species or ecological community listed in Schedule 4, 4A or 5 that is also a listed threatened species or listed threatened ecological community under the Environment Protection and Biodiversity Conservation Act 1999 of the Commonwealth is shown in Schedule 4, 4A or 5 to this Act marked with an asterisk to show its national status.(2) As soon as practicable after a species or ecological community that is or was indigenous to New South Wales becomes a listed threatened species or listed threatened ecological community under the Environment Protection and Biodiversity Conservation Act 1999 of the Commonwealth, the Fisheries Scientific Committee is to consider whether, in accordance with this Division, the species or ecological community should be listed in Schedule 4, 4A or 5 to this Act.(3) If a species or ecological community ceases to be a listed threatened species or a listed threatened ecological community under the Environment Protection and Biodiversity Conservation Act 1999 of the Commonwealth:(a) Schedule 4, 4A or 5 to this Act may be amended to omit the asterisk showing its national status, and(b) the Fisheries Scientific Committee is to consider, in accordance with this Division, whether the species or ecological community should be omitted from Schedule 4, 4A or 5 to this Act.
220F Eligibility for listing of species
(1) A species is eligible to be listed as a species presumed extinct at a particular time if, in the opinion of the Fisheries Scientific Committee, it has not been recorded in its known or expected habitat in New South Wales, despite targeted surveys, over a time frame appropriate, in the opinion of the Fisheries Scientific Committee, to its life cycle and form.(2) A species is eligible to be listed as a critically endangered species if, in the opinion of the Fisheries Scientific Committee, it is facing an extremely high risk of extinction in New South Wales in the immediate future, as determined in accordance with criteria prescribed by the regulations.(3) A species is eligible to be listed as an endangered species if, in the opinion of the Fisheries Scientific Committee:(a) it is facing a very high risk of extinction in New South Wales in the near future, as determined in accordance with criteria prescribed by the regulations, and(b) it is not eligible to be listed as a critically endangered species.(4) A species is eligible to be listed as a vulnerable species if, in the opinion of the Fisheries Scientific Committee:(a) it is facing a high risk of extinction in New South Wales in the medium-term future, as determined in accordance with criteria prescribed by the regulations, and(b) it is not eligible to be listed as an endangered or critically endangered species.
(1) A population is eligible to be listed as an endangered population if, in the opinion of the Fisheries Scientific Committee, it is facing a very high risk of extinction in New South Wales in the near future, as determined in accordance with criteria prescribed by the regulations.(2) A population is not eligible to be listed as an endangered population if it is a population of a species already listed in Schedule 4 or 4A.
220FB Listing of ecological communities
(1) An ecological community is eligible to be listed as a critically endangered ecological community if, in the opinion of the Fisheries Scientific Committee, it is facing an extremely high risk of extinction in New South Wales in the immediate future, as determined in accordance with criteria prescribed by the regulations.(2) An ecological community is eligible to be listed as an endangered ecological community if, in the opinion of the Fisheries Scientific Committee:(a) it is facing a very high risk of extinction in New South Wales in the near future, as determined in accordance with criteria prescribed by the regulations, and(b) it is not eligible to be listed as a critically endangered ecological community.(3) An ecological community is eligible to be listed as a vulnerable ecological community if, in the opinion of the Fisheries Scientific Committee:(a) it is facing a high risk of extinction in New South Wales in the medium-term future, as determined in accordance with criteria prescribed by the regulations, and(b) it is not eligible to be listed as an endangered or critically endangered ecological community.
220FC Threatening processes eligible for listing as key threatening processes
(1) A threatening process is eligible to be listed as a key threatening process if, in the opinion of the Fisheries Scientific Committee:(a) it adversely affects threatened species, populations or ecological communities, or(b) it could cause species, populations or ecological communities that are not threatened to become threatened.(2) The regulations may prescribe criteria for the determination of matters under this section.
220FD Regulations prescribing criteria under this Part
A regulation that prescribes criteria for the purposes of section 220F, 220FA, 220FB or 220FC is not to be made unless the Minister certifies in writing that:(a) the criteria are based on scientific principles only, and(b) any criteria for listing under the Environment Protection and Biodiversity Conservation Act 1999 of the Commonwealth were given due consideration before the regulation was made.
Subdivision 2 Procedure for listing
220G Fisheries Scientific Committee responsible for lists
The Fisheries Scientific Committee is responsible for determining whether any species, populations, ecological communities or threatening processes should be listed in Schedule 4, 4A, 5 or 6.
220H Who may initiate action for listing
(1) The Fisheries Scientific Committee may make a determination for the purposes of this Subdivision on its own initiative.(2) The Fisheries Scientific Committee may also make a determination:(a) following a request by the Minister or the NRC, or(b) on a nomination, made in accordance with this Division, of any other person.(3) A proposal that involves the alteration of the listing status of a species or ecological community (by moving the description of the species or ecological community from one Schedule to another or from one Part of a Schedule to another Part of the Schedule) may be dealt with under this Subdivision as a composite proposal, whereby all aspects of the proposal are dealt with together.
(1) Any person may nominate an amendment of Schedule 4, 4A, 5 or 6.(2) A nomination must be in writing addressed to the Chairperson of the Fisheries Scientific Committee and must include any information prescribed by the regulations.(3) The Fisheries Scientific Committee may request a person who makes a nomination to provide additional information about the subject-matter of the nomination within a specified period.(4) A person must not deliberately and wilfully make a vexatious nomination.Maximum penalty (subsection (4)): 20 penalty units.
(5) The Fisheries Scientific Committee is to give notice of a nomination to the Minister and the NRC within 14 days after the nomination is made.
220IA Referral of nomination to Threatened Species Scientific Committee
(1) If, in the opinion of the Chairperson of the Fisheries Scientific Committee, a nomination of a key threatening process relates to a threatening process that is likely to have an impact on both terrestrial and aquatic environments, the Chairperson may consult with the Chairperson of the Threatened Species Scientific Committee for the purpose of determining whether the nomination should also be considered by that Committee under the Threatened Species Conservation Act 1995.(2) If the Chairpersons agree that the nomination should also be considered by the Threatened Species Scientific Committee under the Threatened Species Conservation Act 1995, the nomination is to be referred to the Threatened Species Scientific Committee for consideration.(3) In such a case:(a) the nomination is taken also to be a nomination for the amendment of Schedule 3 to that Act, made to the Threatened Species Scientific Committee in accordance with Division 3 of Part 2 of that Act on the date the Chairpersons agree that the nomination should be referred to that Committee for consideration, and(b) Division 3 of Part 2 of that Act applies in relation to the nomination (in addition to this Part).(4) For the purposes of this section, a nomination of a key threatening process means a nomination of an amendment to Schedule 6.Note. There is a reciprocal process in the Threatened Species Conservation Act 1995 for the referral of nominations made under that Act to the Fisheries Scientific Committee in appropriate cases.
220J Consideration of nomination by Fisheries Scientific Committee
(1) The Fisheries Scientific Committee is to determine priorities for its consideration of nominations every 12 months and in determining those priorities is to have regard to:(a) the degree of threat, immediacy of threat, taxonomic distinctiveness and such other matters as the Fisheries Scientific Committee considers relevant, and(b) any advice or recommendations of the Minister or the NRC concerning those priorities.(1A) The NRC and the Minister may give advice or make recommendations to the Fisheries Scientific Committee concerning priorities for the consideration of nominations by the Fisheries Scientific Committee, and in giving that advice or making those recommendations the NRC and the Minister may consider State-wide issues of concern in biodiversity conservation.(2) The Fisheries Scientific Committee may consider different nominations about the same subject together, and may consider different matters in the same nomination separately.(3) The Fisheries Scientific Committee may reject a nomination if:(a) the Committee determines not to make the amendment nominated having regard to the eligibility requirements of this Part for listing, or(b) the subject of the nomination has already been dealt with, or(c) the nomination is vexatious, or(d) the nomination is not accompanied by the information prescribed by the regulations, or(e) any additional information requested by the Committee is not provided within the period specified for its provision or any such additional information provided is inadequate.(4) If the Fisheries Scientific Committee rejects a nomination, it is to notify the Minister, the NRC and the person who made the nomination and is to give reasons for the rejection.Note. Section 220O enables the Committee to recommend other measures to protect the fish or marine vegetation even if it rejects a nomination.
220K Notification and consultation with respect to proposed determination of Fisheries Scientific Committee
Before it makes a determination for the amendment of Schedule 4, 4A, 5 or 6, the Fisheries Scientific Committee must:(a) notify the Minister of the proposed determination and, if it was made in response to a nomination, also notify the person who made the nomination, and(b) give the public an opportunity to make submissions on the proposed determination and the reasons for it, and(c) have regard to any written submissions received by the Committee on or before the date specified for the receipt of public submissions about the proposed determination.Note. Section 284 regulates the public consultation procedure. It requires copies of the proposed determination and reasons to be publicly exhibited and a period of at least 30 days for public comment.Section 220N provides for provisional listings of endangered species without the need for compliance with this section.
220L Fisheries Scientific Committee’s final determination
(1) The Fisheries Scientific Committee must either accept or reject a proposal for the amendment of Schedule 4, 4A, 5 or 6, and must give reasons for the determination.(2) The reasons for a determination are to include reference to such of the criteria prescribed by the regulations under sections 220F–220FC as may be relevant to the determination.(3) In a case involving a nomination, the Fisheries Scientific Committee must make a final determination within 6 months after the end of the period allowed for public comment on the proposed determination of the nomination under section 220K (as provided under section 284).(4) Before making a final determination the Fisheries Scientific Committee must give the Minister notice in writing of the proposed final determination. The Minister then has 2 months to decide whether to refer the proposed final determination back to the Fisheries Scientific Committee for further consideration under section 220M.(5) The Fisheries Scientific Committee is not to proceed to make the proposed final determination unless:(a) the Minister has notified the Fisheries Scientific Committee that the Minister has decided not to refer the proposed determination back to the Fisheries Scientific Committee for further consideration, or(b) the Minister has not referred the proposed final determination back to the Fisheries Scientific Committee for further consideration under section 220M within 2 months after the Minister was given notice of the proposed final determination, or(c) if the Minister has referred the proposed final determination back to the Fisheries Scientific Committee for further consideration under section 220M within that 2 months, the Fisheries Scientific Committee has decided to proceed with the final determination following that further consideration.(6) The Minister may at the request of the Fisheries Scientific Committee extend and further extend the period of 6 months under subsection (3), to a maximum period of 2 years.(7) Failure to make a final determination within the period required by this section or to give notice to the Minister of a proposed final determination within the period required by this section does not affect the validity of the determination.
220M Minister’s response to proposed final determination
(1) Within 2 months after receiving notice from the Fisheries Scientific Committee of a proposed final determination, the Minister may:(a) notify the Fisheries Scientific Committee that the Minister has decided not to refer the proposed determination back to the Fisheries Scientific Committee for further consideration, or(b) refer the proposed final determination back to the Fisheries Scientific Committee for further consideration.(2) The Minister may only refer a matter back to the Fisheries Scientific Committee for reasons of a scientific nature provided to the Fisheries Scientific Committee. In the case of a nomination, the Fisheries Scientific Committee is to notify the person who made the nomination that the matter has been referred back to the Fisheries Scientific Committee and of the Minister’s reasons for doing so.(3) If a proposed final determination is referred back to the Fisheries Scientific Committee for further consideration:(a) the Fisheries Scientific Committee may, after further considering it, decide to proceed with the final determination, to change the final determination or not to proceed with the final determination, and(b) the Fisheries Scientific Committee is to make that decision within 3 months, and(c) the Minister cannot refer the matter back to the Fisheries Scientific Committee again after it has made that decision.(4) Failure to make a decision within the period required by this section does not affect the validity of the decision.
220MA Publication of final determination
(1) On making a final determination, the Fisheries Scientific Committee must, as soon as practicable:(a) make an order under section 220D giving effect to the determination, and(b) in a case involving a nomination, notify the person who made the nomination of the determination, and(c) notify the Minister, the NRC and the Director-General of the determination, and(d) publish notice of the determination in a newspaper circulating generally throughout the State and, if the determination is likely to affect a particular area or areas (other than the State as a whole), in a newspaper circulating generally in that area or areas, and(e) publish notice of the making of the determination in the Gazette.(2) The notice must specify the manner in which members of the public may obtain a copy of the determination and the reasons for it.(3) The reasons for a final determination are to include reference to such of the criteria prescribed by the regulations under sections 220F–220FC as may be relevant to the determination.(4) Copies of the final determination and the reasons for it are to be made available to members of the public (free of charge) as follows:(a) by publication on the internet site of the Department,(b) in response to a request made by contacting an office of the Department in a manner specified in the notice of the determination,(c) in response to a request made in person at an office of the Department at an address specified in the notice of the determination.(5) The validity of a final determination cannot be questioned in any legal proceedings except those commenced in a court by any person within 3 months of the date of publication in the Gazette of notice of the making of the final determination.
(1) This section applies to the provisional listing, on an emergency basis, of a species in Part 1 of Schedule 4 as an endangered species, being a species that:(a) although not previously known to have existed in New South Wales, is believed on current knowledge to be indigenous to New South Wales, or(b) was presumed to be extinct in New South Wales but has been rediscovered.(2) The Fisheries Scientific Committee may make a determination for the provisional listing of any such endangered species without complying with sections 220K, 220L (3)–(6) and 220M. The other provisions of this Subdivision apply to and in respect of any such determination.(2A) The Fisheries Scientific Committee must make a determination about a nomination within 6 months after it is made or, if additional information has been requested, after that information has been provided or the period specified for its provision has expired. Failure to make a determination within that period does not affect the validity of the determination.(3) An order made for the purpose of provisionally listing the endangered species must provide, in the matter inserted in Schedule 4, that the listing has effect for a specified period (not exceeding 12 months).(4) The Fisheries Scientific Committee must review the status of any such endangered species in accordance with this Subdivision (including section 220K) as soon as practicable after the species is provisionally listed.
220NA Lists to be kept under review
(1) The Fisheries Scientific Committee must keep the lists in Schedules 4, 4A, 5 and 6 under review and must, at least every 2 years, determine whether any changes to the lists are necessary.(2) The NRC or the Minister may give advice or make recommendations to the Fisheries Scientific Committee concerning priorities for the review of the lists in Schedules 4, 4A, 5 and 6 under this section, and the Fisheries Scientific Committee is to have regard to any such advice or recommendations.(3) The NRC or the Minister may give directions to the Fisheries Scientific Committee requiring the Fisheries Scientific Committee to undertake investigations for the purpose of identifying species, populations and communities that are potentially threatened species, populations and communities.
220O Protection measures apart from listing
(1) The Fisheries Scientific Committee may, if of the opinion that a species, population or ecological community should be protected but does not satisfy the criteria for listing, recommend to the Minister that other measures should be taken under this Act to protect the species, population or ecological community.(2) The Minister is to give the Committee the reasons for any rejection of such a recommendation of the Committee.Note. The measures that could be taken to protect an unlisted species, population or ecological community include fishing closures (s 8), prohibitions on the taking of specified species of fish (s 19—protected fish), prohibitions on the taking of specified species of fish for sale or taking fish from specified waters (s 20—fish and waters protected from commercial fishing), bag limits (s 17), declaration of prohibited size of fish (s 15), restrictions on the lawful use of fishing gear (s 24), determination of total allowable catches (ss 26–34), declaration of share management fishery (ss 41–101), declaration of restricted fishery (ss 111–116), habitat protection plans (s 192), declaration of aquatic reserves (ss 194–197) and protection of marine vegetation (ss 204–205A).
Division 3 Critical habitat of endangered species, populations and ecological communities and critically endangered species and ecological communities
220P Habitat eligible to be declared critical habitat
(1) The whole or any part of the habitat of an endangered species, population or ecological community or critically endangered species or ecological community that is critical to the survival of the species, population or ecological community is eligible to be declared under this Division to be the critical habitat of the species, population or ecological community.(2) The regulations may provide that a specified habitat, or habitat of a specified kind, may, or may not, be declared to be critical habitat for the purposes of this Division.Note. For the purposes of this section, habitat means any area occupied, or periodically or occasionally occupied, by fish or marine vegetation (or both), and includes any biotic or abiotic component—see section 4.
220Q Identification of critical habitat
(1) The Minister is to identify (where this is possible) the critical habitat of each endangered species, population and ecological community and each critically endangered species and ecological community.(2) The Minister must consult the Fisheries Scientific Committee about the identification of any such critical habitat and must not make a preliminary identification until the Minister has considered the advice of the Committee on the matter.
220R Publication of preliminary identification and consultation with other Ministers
(1) After making a preliminary identification of critical habitat, the Minister must:(a) give details of the preliminary identification to the Fisheries Scientific Committee, and(b) give a copy of the notice of the preliminary identification that is required to be published under section 284 to all affected persons, and(c) give the public an opportunity to make submissions about the preliminary identification.Note. Section 284 regulates the public consultation procedure. It requires copies of the preliminary identification to be publicly exhibited and a period of at least 30 days provided for public comment.(2) If a submission from a public authority indicates that the declaration of the area concerned as critical habitat is likely to affect the exercise of functions by the public authority, the Minister is to consult with the responsible Minister for the public authority before making a decision on the matter.(3) For the purposes of this Division, an affected person is any of the following persons who (to the knowledge of the Minister after the making of reasonable searches and inquiries) would be affected by the declaration of critical habitat:(a) landholders (including public authorities who are landholders) of the land concerned,(b) other public authorities known to the Minister to exercise relevant functions in relation to the land concerned,(c) if the land concerned is subject to a mortgage, charge or positive covenant—the mortgagee, chargee or person entitled to the benefit of the covenant,(d) holders of leases and other interests granted by the Crown over the land concerned.
220S Matters to which Minister to have regard in declaring critical habitat
(1) Before deciding whether an area identified by the Minister should be declared critical habitat, the Minister must have regard to the following:(a) the likely social and economic consequences of a declaration of the area as critical habitat,(b) without limiting paragraph (a), the likely consequences of a declaration of the area as critical habitat for landholders of, or other persons having an interest in, or in lawful uses of, the land concerned,(c) the advice of the Fisheries Scientific Committee on the matter,(d) any written submissions received by the Minister on or before the date specified for the receipt of public submissions about the preliminary identification of the area and, in particular, any submissions received from public authorities exercising relevant functions in relation to the area.(2) In so doing, the Minister must also consider whether, consistent with the principles of ecologically sustainable development, the area identified might be amended to avoid or lessen any adverse consequences of its declaration as critical habitat.
220T Declaration of critical habitat by Minister
(1) The Minister may, by notification published in the Gazette, declare an area described in the notification to be the critical habitat of a specified endangered species, population or ecological community or critically endangered species or ecological community.Editorial note. For notification of critical habitat see Gazette No 237 of 29.11.2002, p 10137.(2) The Minister must not do so until the Minister has made a preliminary identification of the area as critical habitat and complied with the other requirements of this Division with respect to the declaration of that area as critical habitat.(3) The Minister may declare the area the subject of the preliminary identification to be critical habitat without amendment or with any amendments that the Minister considers appropriate.(4) The Minister may refuse to declare the area the subject of the preliminary identification to be critical habitat (on the basis of one or more of the factors referred to in section 220S or otherwise).(5) The Minister must make a decision on whether to declare a particular area as critical habitat within 6 months after the date specified for the receipt of public submissions about the preliminary identification of the area.(6) As soon as practicable after the declaration of critical habitat, the Minister must:(a) give notice of the declaration to all affected persons, and(b) publish notice of the declaration in a newspaper circulating generally throughout the State and in a newspaper circulating generally in the area declared to be critical habitat.Note. See section 220W for requirements with respect to the publication of a map of the critical habitat.
220U Amendment or revocation of declaration of critical habitat
(1) The Minister may amend or revoke a declaration of critical habitat by a further notification published in the Gazette.(2) However, the Minister must not amend or revoke a declaration unless the Minister:(a) has consulted the Fisheries Scientific Committee about the matter, and(b) has given notice of the proposed amendment or revocation to affected persons and given the public an opportunity to make submissions as if it were a preliminary identification of critical habitat, and(c) has had regard to the matters the Minister would be required to have regard to if it were a decision to declare critical habitat.(3) The Minister must give notice of the amendment or revocation to all affected persons as if it were a declaration of critical habitat.(4) The Minister must, in a notification amending or revoking a declaration of critical habitat and in a notice under subsection (3), give the reasons for the amendment or revocation of the declaration.
220V Public authorities to have regard to critical habitat
A public authority must have regard to the existence of critical habitat declared under this Division:(a) in relation to the use of any of the land concerned of which it is a landholder, or(b) in exercising its functions in relation to any of the land concerned.Note. The Environmental Planning and Assessment Act 1979 contains a number of significant provisions with respect to critical habitat (and also certain other habitat of threatened species, populations and ecological communities of fish and marine vegetation), including in connection with the preparation of environmental planning instruments, the granting of development consents and environmental assessment under Part 5 of that Act. Section 192 of this Act also enables habitat protection plans to be made for the protection of critical habitat.
(1) Before any critical habitat is declared or any declaration of critical habitat is amended, the Minister must arrange for the preparation of a map that shows the location of the critical habitat proposed to be declared or amended.(2) A copy of the map is to be published in the Gazette and the description in a notification of the area declared to be critical habitat, or any amendment of that area, is to be provided by or by reference to that map.(3) The Minister must serve a copy of a map of critical habitat on the following:(a) the Director-General of the Department of Land and Water Conservation,(b) the Director-General of the Department of Urban Affairs and Planning,(c) each local council within whose area the whole or part of the critical habitat is located,(d) any other affected persons as the Minister considers appropriate.
220X Minister to keep register of critical habitat
(1) The Minister must keep a register containing copies of declarations of critical habitat as in force from time to time, and maps of the critical habitat that are published in the Gazette.(2) The register is to be made available to public authorities.(3) The register is to be open for public inspection, without charge, during ordinary business hours, and copies of or extracts from the register are to be made available to the public on request, on payment of the fee fixed by the Minister.
220Y Discretion not to disclose location of critical habitat
(1) Despite the other provisions of this Division, the Minister may decline to disclose the precise location of critical habitat (or proposed critical habitat) in accordance with this Division to the public or to any class of affected persons. This subsection extends to the notification of a preliminary identification of critical habitat, the declaration of critical habitat, any public or other notice of any such declaration, the service of a copy of any map or the keeping of any register under this Division.(2) The Minister may decline to disclose the precise location of critical habitat (or proposed critical habitat) only if the Minister is satisfied that:(a) the disclosure would be likely to expose the habitat and the endangered species, population or ecological community or critically endangered species or ecological community that occupies it to a significant threat, and(b) each landholder of land concerned agrees that the precise location should not be disclosed, and(c) it is in the public interest that the precise location should not be disclosed.(3) This section does not prevent the Minister from disclosing the precise location of critical habitat (or proposed critical habitat) to particular persons, including:(a) landholders or other persons having an interest in, or in lawful uses of, the land, or(b) public authorities exercising functions in relation to the land, or(c) persons entitled by law to notice of the existence of interests in or proposals affecting the land.
220Z Effect of failure to comply with procedural requirements
A declaration of critical habitat (or any amendment or revocation of the declaration) is not open to challenge, because of a failure to comply with the procedural requirements of this Division, after notification of the declaration (or of the amendment or revocation) has been published in the Gazette.
220ZA Harming threatened species, populations or ecological communities
A person must not harm any fish or marine vegetation of a threatened species, population or ecological community.Maximum penalty:
(a) in the case of any endangered species, population or ecological community—2,000 penalty units or imprisonment for 2 years, or both, or(b) in the case of any vulnerable species—500 penalty units or imprisonment for 1 year, or both.
220ZB Buying, selling or possessing threatened species
(1) A person must not buy, sell or have in possession any fish or marine vegetation of a threatened species.Maximum penalty:
(a) in the case of any endangered species—2,000 penalty units or imprisonment for 2 years, or both, or(b) in the case of any vulnerable species—500 penalty units or imprisonment for 1 year, or both.(2) The following are exempt from this section:(a) fish or marine vegetation that has been cultivated or kept under the authority of an aquaculture permit,(b) any class of fish or marine vegetation exempted by the regulations, subject to such conditions as may be specified in the regulations.
220ZC Damage to critical habitat
(1) A person must not, by an act or omission, do anything that causes damage to any critical habitat.Maximum penalty: 2,000 penalty units or imprisonment for 2 years, or both.
(2) If a map of the critical habitat has been duly published in the Gazette, it is not necessary for the prosecution to prove that the person knew that the habitat was declared as critical habitat or that the accused knew that it was the habitat of an endangered species, population or ecological community.(3) It is a defence to a prosecution for an offence against this section in relation to an area of critical habitat that the Minister has declined to disclose its precise location under section 220Y and that the accused did not know and could not reasonably be expected to have known that the area was critical habitat.
220ZD Damage to habitat of threatened species, population or ecological community
(1) A person must not, by an act or omission, do anything that causes damage to any habitat (other than critical habitat) of a threatened species, population or ecological community if the person knows that the area concerned is habitat of that kind.Maximum penalty: 1,000 penalty units or imprisonment for 1 year, or both.
(2) In proceedings for an offence under this section in respect of an act or an omission of a person that causes damage to any habitat (other than critical habitat) of a threatened species, population or ecological community, it is to be conclusively presumed that the person knew that the land concerned was habitat 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.
220ZE Regulations may prohibit certain actions on critical habitat
(1) The regulations may prohibit or regulate, for the purposes of this Part, the carrying out of specified actions, or actions of a specified class or description, on specified critical habitat.(2) Any such regulation may create an offence punishable by a penalty not exceeding 100 penalty units.
(1) It is defence to a prosecution for an offence against this Division if the accused proves that the act or omission constituting the offence:(a) was authorised by, and was done or omitted in accordance with:(i) a licence granted under this Part, or(ii) a Ministerial order or interim order made under Subdivision 1A of Division 6, or(iii) a permit under section 37, or(iv) an aquaculture permit, or(b) was essential for the carrying out of:(i) development in accordance with a development consent within the meaning of the Environmental Planning and Assessment Act 1979, or(ii) an activity, whether by a determining authority or pursuant to an approval of a determining authority within the meaning of Part 5 of that Act, if the determining authority has complied with that Part, or(iii) a project approved under Part 3A of the Environmental Planning and Assessment Act 1979, or(b1) was authorised by a property vegetation plan approved under the Native Vegetation Act 2003, being an act that had the benefit of biodiversity certification of the native vegetation reform package under Division 10 when the plan was approved, or(c) was authorised by or under the State Emergency and Rescue Management Act 1989 and was reasonably necessary in order to avoid a threat to life or property, or(d) was a routine activity in connection with the lawful taking of fish or marine vegetation other than a threatened species, population or ecological community of fish (unless it was an activity of a kind that the regulations declare is not a routine activity for the purposes of this paragraph), or(e) was a routine aquacultural activity (unless it was an activity of a kind that the regulations declare is not a routine activity for the purposes of this paragraph), or(f) is identified in, and carried out in accordance with, a property management plan approved by the Director-General under subsection (4) or by the Director-General of National Parks and Wildlife under section 91 of the Threatened Species Conservation Act 1995.(2) If the provisions of any other Act or law or of any instrument made under any other Act or law authorise or require anything to be done that would constitute an offence under this Part:(a) this Part prevails (except in relation to a matter referred to in subsection (1) (b) or (c)), and(b) a person is not to be convicted of an offence against the other Act, law or instrument because of the person’s failure to comply with the other Act, law or instrument if compliance with the other Act, law or instrument would constitute an offence under this Part.(3) The Minister must not recommend the making of any regulation under subsection (1) (e) unless the Minister certifies that the Director-General has consulted with the Director-General of the Department of Agriculture concerning the making of the regulation.(4) The Director-General may, for the purposes of subsection (1) (f), approve of a property management plan for land prepared by a landholder. Any such plan may identify an activity even if it is declared not to be a routine agricultural or aquacultural activity for the purposes of subsection (1) (e).(5) This section does not apply in relation to 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.
(1) It is a defence to a prosecution for an offence against this Division if the accused proves that the act constituting the alleged offence was any of the following activities:(a) clearing of native vegetation that constitutes a routine agricultural management activity,(b) a routine farming practice activity (other than clearing of native vegetation),Note. Both (a) and (b) must be read subject to subsection (3).(c) an activity that is permitted under any of the following provisions of the Native Vegetation Act 2003:(i) section 19 (Clearing of non-protected regrowth permitted),(ii) section 23 (Continuation of existing farming activities),(iii) section 24 (Sustainable grazing),(d) any other activity prescribed by the regulations for the purposes of this section.(2) Each of the following is a routine agricultural management activity for the purposes of this section:(a) the construction, operation and maintenance of rural infrastructure:(i) including (subject to the regulations) dams, permanent fences, buildings, windmills, bores, air strips (in the Western Division), stockyards, and farm roads, but(ii) not including rural infrastructure in areas zoned as rural-residential under environmental planning instruments or on small holdings (as defined in the regulations),(b) the removal of noxious weeds under the Noxious Weeds Act 1993,(c) the control of noxious animals under the Rural Lands Protection Act 1998,(d) the collection of firewood (except for commercial purposes),(e) the harvesting or other clearing of native vegetation planted for commercial purposes,(f) the lopping of native vegetation for stock fodder (including uprooting mulga in the Western Division in areas officially declared to be drought affected),(g) traditional Aboriginal cultural activities (except commercial activities),(h) the maintenance of public utilities (such as those associated with the transmission of electricity, the supply of water, the supply of gas and electronic communication),(i) any activity reasonably considered necessary to remove or reduce an imminent risk of serious personal injury or damage to property.(3) This section does not authorise the doing of an act:(a) if it exceeds the minimum extent reasonably necessary for carrying out the routine agricultural management activity or routine farming practice activity, or(b) if it is done for a work, building or structure before the grant of any statutory approval or other authority required for the work, building or structure.(4) This section does not apply to land described or referred to in Part 3 (Urban areas) of Schedule 1 to the Native Vegetation Act 2003.(5) The regulations may make provision for or with respect to:(a) extending, limiting or varying the activities referred to in subsection (1) (and that subsection is to be construed accordingly), or(b) excluding any specified land or class of land from the operation of subsection (1), or(c) including any specified land or class of land in the operation of subsection (1) that would otherwise be excluded from its operation by subsection (4).(6) Until regulations under subsection (5) otherwise provide, any regulations in force under section 11 (2) of the Native Vegetation Act 2003 apply for the purposes of extending, limiting or varying the activities referred to in subsection (2) in the same way as those regulations apply for the purposes of extending, limiting or varying the activities referred to in section 11 (1) of that Act.
220ZFB Defences relating to joint management agreements
It is a defence to a prosecution for an offence against:(a) this Division or the regulations under this Division, or(b) Part 2 or 7 or the regulations under those Parts,if the accused proves that the act or omission constituting the alleged offence was authorised by, and done in accordance with, a joint management agreement.
220ZG Court may order offender to restore critical habitat
(1) If a court convicts a person of an offence against section 220ZC (Damage to critical habitat), the court may, in addition to or in substitution for any pecuniary penalty for the offence, direct the person to take any action to mitigate the damage or to restore the critical habitat.(2) The court may specify the actions to be taken to mitigate the damage or restore the habitat and may order the person to maintain the habitat until those actions have been fully performed.(3) The court may order the person to provide security for the performance of any obligation imposed under this section.(4) For the purposes of this section, a conviction includes the making of an order under section 10 of the Crimes (Sentencing Procedure) Act 1999.
Division 5 Recovery plans and threat abatement plans
(1) This Division applies to the preparation, approval and implementation of:(a) recovery plans for threatened species, populations and ecological communities, and(b) threat abatement plans to manage key threatening processes.(2) In this Division, plan means any such recovery plan or threat abatement plan.
220ZI Director-General to prepare recovery plans for threatened species, populations and ecological communities
(1) The Director-General may prepare a recovery plan:(a) for each endangered or critically endangered species (other than a species presumed extinct), and(b) for each endangered population or endangered ecological community, and(c) for each vulnerable species,to promote the recovery of the species, population or ecological community to a position of viability in nature.(2) A recovery plan may contain provisions relevant to more than one species, population or ecological community and may be made for part of a range of a species, population or ecological community, and more than one recovery plan may be prepared for a species, population or ecological community.
220ZJ Director-General to prepare threat abatement plans
(1) The Director-General may prepare a threat abatement plan for each key threatening process to manage the threatening process so as to abate, ameliorate or eliminate its adverse effects on threatened species, populations or ecological communities.(2) A threat abatement plan may contain provisions dealing with more than one key threatening process and more than one threat abatement plan may be prepared for a key threatening process.
220ZJA Joint preparation of recovery and threat abatement plans
(1) The Director-General may, with the prior approval of the Minister and the Minister administering the Threatened Species Conservation Act 1995, make arrangements with the Director-General of National Parks and Wildlife for the joint preparation of a recovery plan or threat abatement plan under this Act and the Threatened Species Conservation Act 1995.(2) In such a case, any function of the Director-General or the Minister under this Part in respect of the plan may be exercised in conjunction with any corresponding function of the Director-General of National Parks and Wildlife or the Minister administering the Threatened Species Conservation Act 1995 in respect of the plan under that Act.Note. For example, the Director-General and the Director-General of National Parks and Wildlife may jointly publish a notice of the preparation of the plan under section 220ZO of this Act and section 61 or 79 of the Threatened Species Conservation Act 1995.(3) The Minister may exercise his or her functions under section 220ZP of this Act in respect of any such plan only with the concurrence of the Minister administering the Threatened Species Conservation Act 1995.(4) If the Minister administering this Act and the Minister administering the Threatened Species Conservation Act 1995 are unable, following consultation, to resolve any dispute as to the exercise of any function under section 220ZP of this Act in respect of any such plan, the matter is to be referred to the Premier for resolution. The decision of the Premier in relation to the matter is to be given effect to by the Ministers.(5) Except as otherwise provided by this section, this Part applies in respect of a recovery plan or threat abatement plan that is jointly prepared as provided for by this section in the same way as it applies in respect of any other recovery plan or threat abatement plan.
220ZK Priorities for recovery or threat abatement plans
Priorities in the preparation of recovery plans or threat abatement plans are to be in accordance with the priorities for recovery or threat abatement established by the relevant Priorities Action Statement.
220ZM Guidelines for recovery or threat abatement plans
(1) The Director-General must, in preparing a plan and in deciding which measures to include in it, have regard to the following:(a) the objects of this Part,(b) the likely social and economic consequences of the making of the plan,(c) the most efficient and effective use of available resources for the conservation of threatened species, populations and ecological communities,(d) the desirability of minimising any significant adverse social and economic consequences.(2) The Director-General is to consider, when preparing a plan, any measures by which the public may co-operate:(a) in the conservation of the threatened species, population or ecological community, or(b) in the abatement, amelioration or elimination of the adverse effects of the key threatening process on threatened species, populations or ecological communities.
220ZN Contents of recovery or threat abatement plans
(1) Recovery plans
A recovery plan must:(a) identify the threatened species, population or ecological community to which it applies, and(b) identify any critical habitat declared in relation to the threatened species, population or ecological community, and(c) identify any threatening process or processes threatening the threatened species, population or ecological community, and(d) identify methods by which adverse social and economic consequences of the making of the plan can be minimised, and(e) state what must be done to ensure the recovery of the threatened species, population or ecological community, and(f) state what must be done to protect the critical habitat (if any) identified in the plan, and(g) state, with reference to the objects of this Part:(i) the way in which those objects are to be implemented or promoted for the benefit of the threatened species, population or ecological community, and(ii) the method by which progress towards achieving those objects is to be assessed, and(h) identify the persons or public authorities who are responsible for the implementation of the measures included in the plan, and(i) state the date by which the recovery plan should be subject to review by the Director-General.(2) Threat abatement plans
A threat abatement plan must:(a) state the criteria for assessing the achievement of the objective, and(b) identify the actions needed to abate, ameliorate or eliminate the effects of the key threatening process, and(c) identify the persons or public authorities who are responsible for the implementation of the measures included in the plan, and(d) where practicable, provide a proposed timetable for the implementation of the plan, and(e) state the estimated cost of the measures included in the plan, and(f) state the date by which the plan should be subject to review by the Director-General, and(g) include any other matter relating to the impact of the plan as the Director-General considers appropriate.
220ZO Public and other consultation concerning draft recovery or threat abatement plan
(1) Publication of draft plans
As soon as practicable after preparing a draft plan, the Director-General must:(a) give a copy of the draft plan to the Fisheries Scientific Committee, and(b) give a copy of the draft plan to any public authority that the Director-General knows is likely to be affected by the plan, and(c) give the public an opportunity to make submissions on the draft plan.Note. Section 284 regulates the public consultation procedure. It requires copies of the draft plan to be publicly exhibited and a period of at least 30 days for public comment.(2) Consideration of submissions by Director-General
The Director-General must consider all written submissions received by the Director-General on or before the date specified for the receipt of public submissions about the draft plan. The Director-General may amend the draft plan to take account of those submissions or any advice given by the Fisheries Scientific Committee.(3) If the Director-General considers that a public authority should be responsible for the implementation of a measure to be included in a plan:(a) the Director-General must consult with the chief executive officer of the public authority before completing the preparation of the plan, and(b) a measure must not be included in a plan for implementation by a public authority unless the chief executive officer of the public authority approves of the inclusion of the measure.
220ZP Approval of recovery or threat abatement plan by Minister
(1) After considering the submissions and making amendments (if any) to the draft plan, the Director-General must:(a) forward the draft plan to the Minister, and(b) provide the Minister with a summary of any advice given by the Fisheries Scientific Committee and of all submissions received about the draft plan, and details of any amendments made to the draft plan by the Director-General to take account of that advice or those submissions.(2) In considering whether to approve or to refuse to approve a draft plan, the Minister must have regard to the likely social and economic consequences of the approval of the plan.(3) The Minister may:(a) approve a draft plan without amendment or with any amendments that the Minister considers appropriate, or(b) refuse to approve the plan (on the basis of the likely social or economic consequences of the plan or otherwise), or(c) refer the plan back to the Director-General for further consideration (whether with or without a request for the amendment of the plan).
220ZQ Recovery and threat abatement plans to be published
(1) As soon as practicable after the Minister approves a draft plan, the Director-General must:(a) give a copy of the plan to the Fisheries Scientific Committee, and(b) publish notice of the approval of the plan in a newspaper circulating generally throughout the State and in such local newspapers (if any) as the Director-General considers appropriate, and(c) notify any public authority that the Director-General knows is likely to be affected by the plan, and(d) publish notice of the approval of the plan in the Gazette.(2) The Director-General must also make a copy of the plan available for public inspection, without charge, during ordinary business hours and copies of or extracts from the plan are to be made available to the public on request, on payment of the fee fixed by the Director-General.
220ZR Review of recovery and threat abatement plans
(1) The Director-General is required to keep each plan under review and, if a date by which a plan is to be reviewed is stated in it, is to review the plan by that date.(2) The Director-General is also to consider any submissions about plans received from public authorities or the public.(3) If the Director-General considers that any change (other than a minor change) should be made to a plan, the Director-General is to prepare a new plan in accordance with this Division.
220ZS Ministers and public authorities to implement recovery and threat abatement plans
(1) Ministers and public authorities are to take any appropriate action available to them to implement those measures included in a plan for which they are responsible and must not make decisions that are inconsistent with the provisions of a plan.(2) If the implementation of a plan affects a statutory discretion of a Minister or public authority, this section does not operate to exclude the discretion, but the Minister or public authority must take the plan into account.(3) This section does not operate to require or authorise any action by a Minister or public authority that is inconsistent with any statutory or other legal obligation of the Minister or public authority.
220ZT Public authorities to report on implementation of recovery and threat abatement plans
(1) A public authority (other than a local council) identified in a plan as responsible for the implementation of measures included in the plan must report on action taken by it to implement those measures in its annual report to Parliament.(2) A local council identified in a plan as responsible for the implementation of measures included in the plan must report on action taken by it to implement those measures in its annual report as to the state of the environment of its area.
220ZU Notification of, and consultation concerning, proposed departures from recovery or threat abatement plan
(1) A public authority must not exercise a function in a manner that is inconsistent with the implementation of measures included in a plan unless the public authority has given notice of the proposed exercise of the function to the Director-General.(2) The Director-General must, on receiving notice of a proposed departure from a plan from a public authority, advise the Minister whether the exercise of the function in the manner proposed is acceptable or whether it is likely to jeopardise the effective implementation of the plan.(3) If the Minister (having regard to that advice) considers that the departure is acceptable, the Director-General must notify the public authority accordingly.(4) If the Minister (having regard to that advice) considers that the departure is likely to jeopardise the effective implementation of the plan, the Director-General must consult with the public authority in an endeavour to resolve the matter by modification of the action proposed or by other mutually acceptable means.(5) This section does not apply in relation to anything authorised to be done by or under the State Emergency and Rescue Management Act 1989 that is reasonably necessary in order to avoid a threat to life or property.(6) This section does not apply in relation to 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.
220ZV Reference of matters concerning departures to Ministers and Premier for settlement
(1) A matter that has not been resolved after consultation between the Director-General and the public authority concerned must be referred by the parties to their respective Ministers.(2) In the case of a local council, the reference is to be made to the Minister administering the Local Government Act 1993 unless the matter relates, in whole or in part, to the exercise of functions under the Environmental Planning and Assessment Act 1979. In that event, the reference is to be made to the Minister administering the Environmental Planning and Assessment Act 1979.(3) The Ministers, on receiving a reference, are to consult in an endeavour to resolve the matter by means that the Ministers consider to be appropriate.(4) If the Ministers are unable to resolve the matter after consultation, it is to be referred to the Premier for resolution.(5) A public authority must give effect to any decision of, or directions made or given by, the Premier on the matter and is, despite the requirements of any other Act or law, empowered to comply with any such decision or directions.
Division 5A Threatened Species Priorities Action Statements
220ZVA What the Statement provides for
A Threatened Species Priorities Action Statement (also called a Priorities Action Statement) is a statement that:(a) sets out the strategies (recovery and threat abatement strategies) to be adopted for promoting the recovery of each threatened species, population and ecological community to a position of viability in nature and for managing each key threatening process as provided by section 220ZJ (1), and(b) establishes relative priorities for the implementation of recovery and threat abatement strategies, and(c) establishes performance indicators to facilitate reporting on achievements in implementing recovery and threat abatement strategies and their effectiveness, and(d) contains a status report on each threatened species, where information is available, and(e) sets out clear timetables for recovery and threat abatement planning and achievement.
220ZVB Director-General to prepare and adopt Priorities Action Statement
(1) The Director-General is to prepare and adopt a Priorities Action Statement for the purposes of this Part.(2) The Priorities Action Statement must be completed as soon as practicable and no later than 12 months after the date of assent to the Threatened Species Legislation Amendment Act 2004.(3) The Director-General is to review the Priorities Action Statement every 3 years and may make changes to the Priorities Action Statement pursuant to any such review by adopting amendments to the Statement.(4) In preparing or reviewing a Priorities Action Statement, the Director-General is to seek advice from the NRC, the Fisheries Scientific Committee, BDAC, SEAC and such other State government agencies as the Director-General considers appropriate.
220ZVC Public consultation on draft statement or amendments
Before adopting a Priorities Action Statement or any amendment to the statement, the Director-General must first prepare a draft of the statement or amendment and give the public an opportunity to make submissions on the draft statement or amendment.Note. Section 284 regulates the public consultation procedure. It requires copies of the draft statement to be publicly exhibited and a period of at least 30 days for public comment.
220ZVD Consideration of submissions by Director-General
(1) The Director-General must consider all written submissions received by the Director-General on or before the date specified in the notice.(2) The Director-General may alter the draft statement or amendment to take account of those submissions.(3) The Director-General must adopt the Priorities Action Statement or amendment (with or without alterations) within 4 months after the end of the period allowed for the public comment on the draft statement or amendment.
220ZVE Review to include report on achievements
As part of each review of the Priorities Action Statement, the Director-General is to include in the Priorities Action Statement a report on achievements in implementing the strategies established by the Priorities Action Statement during the period to which the review applies.
Division 6 Licensing and Ministerial orders
Subdivision 1 Grant of licences
220ZW Licence to harm threatened species, population or ecological community or damage habitat
(1) The Director-General may grant a licence authorising a person to take action that is likely to result in one or more of the following:(a) harm to a threatened species, population or ecological community,(b) damage to a critical habitat,(c) damage to a habitat of a threatened species, population or ecological community.(2) A permit under section 37 may only be issued for a purpose referred to in subsection (1):(a) for scientific purposes, or(b) for the welfare of fish or marine vegetation, or(c) if there is a threat to life or property.Note. Section 220ZF provides a defence for offences under Division 4 if the accused proves that the action constituting the alleged offence was a routine fishing, agricultural or aquacultural activity or was authorised by a property management plan approved by the Director-General or by the Director-General of National Parks and Wildlife.(3) A permit under section 37A may not be issued for a purpose referred to in subsection (1).
(1) An application for a licence must be in a form approved by the Director-General and be accompanied by any processing fee payable under this Division.(2) If the action proposed to be taken under the authority of the licence is on land that is critical habitat, the application must be accompanied by a species impact statement prepared in accordance with Subdivision 2.(3) If the action proposed is not on land that is critical habitat, the application must include the following:(a) details of the types, and condition, of habitats in and adjacent to the land to be affected by the action,(b) particulars of any known records of a threatened species in the same or similar known habitats in the locality,(c) details of any known or potential habitat for a threatened species on the land to be affected by the action,(d) details of the amount of such habitat to be affected by the action proposed in relation to the known distribution of the species and its habitat in the locality and region,(e) an assessment of the likely nature and intensity of the effect of the action on the life cycle and habitat of the species,(f) details of possible measures to avoid or ameliorate the effect of the action.(4) An applicant may lodge a species impact statement with an application even if the action proposed is not on land that is critical habitat. In that event, the application need not include the information referred to in subsection (3).(5) The Director-General may request the applicant to provide additional information in support of an application for a licence.
220ZY Payment of licence processing fee
(1) The Director-General is to levy a processing fee, being not more than the costs (including on-costs) incurred by the Department in the assessment and processing of a licence application (whether or not the application is successful).(2) The fee is recoverable by the Director-General as a debt due to the Crown in a court of competent jurisdiction.(3) The Director-General may, before dealing with an application, require the applicant to pay an amount not exceeding one-half of the estimated processing fee.(4) The Director-General may reduce the amount of a processing fee levied for any licence application having regard to the following:(a) the extent of scientific examination necessary for the processing of the application,(b) the adequacy of any species impact statement or environmental impact statement that includes a species impact component supplied by the applicant,(c) the capacity of the applicant or persons with whom the applicant is associated to meet the fee levied,(d) whether and to what extent the activity sought to be licensed may confer a commercial benefit on the applicant if the licence is granted.(5) Before a prospective applicant for a licence lodges an application, the Director-General must advise the applicant of the maximum fee payable in respect of the application.
220ZZ Significant effect on threatened species, populations or ecological communities, or their habitats
(1) If the action proposed to be taken by the applicant is not on land that is critical habitat and the application is not accompanied by a species impact statement, the Director-General must determine whether the action proposed is likely to significantly affect threatened species, populations or ecological communities, or their habitats.(2) For that purpose, the Director must take into account the following:(a) each of the factors listed in subsection (2A),(b) any assessment guidelines issued and in force under section 220ZZA.(2A) The following factors must be taken into account in making a determination under this section:(a) in the case of a threatened species, whether the action proposed is likely to have an adverse effect on the life cycle of the species such that a viable local population of the species is likely to be placed at risk of extinction,(b) in the case of an endangered population, whether the action proposed is likely to have an adverse effect on the life cycle of the species that constitutes the endangered population such that a viable local population of the species is likely to be placed at risk of extinction,(c) in the case of an endangered ecological community or critically endangered ecological community, whether the action proposed:(i) is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction, or(ii) is likely to substantially and adversely modify the composition of the ecological community such that its local occurrence is likely to be placed at risk of extinction,(d) in relation to the habitat of a threatened species, population or ecological community:(i) the extent to which habitat is likely to be removed or modified as a result of the action proposed, and(ii) whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed action, and(iii) the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species, population or ecological community in the locality,(e) whether the action proposed is likely to have an adverse effect on critical habitat (either directly or indirectly),(f) whether the action proposed is consistent with the objectives or actions of a recovery plan or threat abatement plan,(g) whether the action proposed constitutes or is part of a key threatening process or is likely to result in the operation of, or increase the impact of, a key threatening process.(3) If the Director-General determines that an action proposed by an applicant for a licence is likely to significantly affect threatened species, populations or ecological communities, or their habitats, the Director-General must notify the applicant that, if the application is to proceed, a species impact statement prepared in accordance with Subdivision 2 must be provided.(4) If the Director-General determines that an action proposed is not likely to significantly affect threatened species, populations or ecological communities, or their habitats, a licence under this Part is not required and the Director-General must, as soon as practicable after making the determination, issue to the applicant a certificate to that effect.Note. An action that is not required to be licensed under this Part may however be required to be authorised by other provisions of this Act or may otherwise constitute an offence under this Act.
(1) The Minister may, by order published in the Gazette, issue guidelines (assessment guidelines) relating to the determination of whether an action is likely to significantly affect threatened species, populations or ecological communities, or their habitats.(2) An order under this section (including any order that amends, revokes or replaces such an order) may be made only with the concurrence of the Minister for Planning.
221 Publication of licence application
On the receipt of a licence application accompanied by a species impact statement or a species impact statement provided in response to a notification from the Director-General that a statement is required, the Director-General must cause to be placed in a newspaper circulating throughout the State a notice:(a) outlining the nature of the application, and(b) specifying the address of the place at which copies of the species impact statement may be inspected or purchased, and(c) inviting written submissions within a period of not less than 30 days after the date of the notice.
221A Matters that Director-General must take into account
(1) In considering whether to grant or to refuse to grant a licence application, the Director-General must take into account the following:(a) any species impact statement,(b) any written submissions received concerning the application within the period, and at the address for submissions, specified in the notice,(c) the factors specified in section 220F (Eligibility for listing),(d) any relevant recovery plan or threat abatement plan,(e) the principles of ecologically sustainable development,(f) whether the action proposed is likely to irretrievably reduce the long-term viability of the species, population or ecological community in the region,(g) whether the action proposed is likely to accelerate the extinction of the species or ecological community or place it at risk of extinction.(2) The Director-General must also consider the likely social and economic consequences of granting or refusing to grant a licence application.
221B Determination of licence application
(1) After considering an application for a licence and accompanying material, the Director-General may:(a) grant the application, unconditionally or subject to conditions or restrictions, or(b) refuse the application.(2) The Director-General must, subject to subsection (3), make a decision about an application within 120 days after the Director-General receives a species impact statement or within such further period as may be agreed with the applicant for the licence.(3) The Director-General must not grant an application until the processing fee levied in respect of it has been paid.(4) A licence may authorise specified persons in addition to the person to whom the licence is granted to do the things authorised by the licence. In any such case, the specified persons are taken to be the holders of the licence for the purposes of this Part.(5) For the avoidance of doubt, it is declared that the Director-General is not a determining authority for the purposes of Part 5 of the Environmental Planning and Assessment Act 1979 when granting a licence.
If the Director-General fails to grant, but does not refuse, a licence application by the time the Director-General is required by this Division to make a decision on the application, the application is taken to have been granted.
221D Conditions and restrictions to licence
(1) Without limiting section 221B (1) (a), the Director-General may grant an application for a licence subject to a condition that the applicant:(a) make specified modifications to the action proposed, whether in relation to the area of land proposed to be affected or otherwise, or(b) make a monetary contribution towards the cost of preparation of a recovery plan for any threatened species, population or ecological community, or any of their habitats, likely to be affected by the action proposed.(2) The Director-General may, by notice in writing served on the holder of a licence:(a) attach any conditions or restrictions to the licence after its issue, or(b) vary or remove any conditions or restrictions attached to any licence, or(c) otherwise vary the licence.(3) The holder of a licence must not contravene or fail to comply with a condition or restriction attached to the licence.Maximum penalty: 40 penalty units.
221E Proposed variation of licence to be publicly notified
(1) The Director-General must, before removing or varying any condition or restriction attached to a licence:(a) cause to be placed in a newspaper circulating throughout the State a notice:(i) outlining the nature of the proposed variation to the licence, and(ii) specifying the address of the place at which copies of any species impact statement relating to the licence may be inspected or purchased, and(iii) inviting written submissions within a period of not less than 30 days after the date of the notice, and(b) take into account the matters required by this Division to be taken into account by the Director-General when considering whether to grant or refuse to grant a licence.(2) This section does not apply if the proposed variation to the licence constitutes a minor amendment only of that licence.
221F Notification of licence determination
The Director-General is to notify an applicant and any person who has made submissions of the Director-General’s determination of a licence application.
(1) A licence granted under this Division may be cancelled by the Director-General.(2) The Director-General is to notify the holder of a licence of its cancellation and is to include the reasons for the cancellation in that notification.
221H Director-General to keep register of licences
(1) The Director-General must keep a register containing copies of licences issued under this Subdivision as in force from time to time.(2) The register is to be open for public inspection, without charge, during ordinary business hours, and copies of or extracts from the register are to be made available to the public on request, on payment of the fee fixed by the Director-General.
221I Appeal by applicant or person commenting on licence application
(1) An applicant for a licence or a person who has made written submissions (within the period specified in this Subdivision) about an application for a licence, or a person to whose licence conditions or restrictions have been attached or whose licence has been varied or cancelled may, if dissatisfied with the Director-General’s decision, appeal to the Land and Environment Court.(2) In determining an appeal about an application for a licence, the Court must take into account the matters required by this Division to be taken into account by the Director-General when considering whether to grant or refuse to grant a licence, but this requirement does not limit the operation of section 39 of the Land and Environment Court Act 1979.(3) An appeal is to be made by a person within 28 days after the Director-General notifies the person of the matter concerned or, if the appellant is dissatisfied with any condition or restriction attached to a licence when it is granted, within 28 days after the licence is granted.(4) If an appeal relates to the grant of a licence, the licence has no operation until the expiration of the period within which a person entitled to lodge an appeal may do so or, if an appeal has been lodged, until the appeal is finally determined.(5) If no written submissions about an application of a licence are received at the specified place and by the specified date and the applicant informs the Director-General in writing that the applicant does not wish to lodge an appeal but that the applicant wishes the licence to commence, the licence is to operate from a date stipulated by the Director-General.
Subdivision 1A Ministerial orders
221IA Ministerial order to permit harm to threatened species etc
(1) The Minister may make an order authorising a class of persons to carry out an activity that may result in one or more of the following:(a) harm to a threatened species, population or ecological community,(b) damage to a habitat of a threatened species, population or ecological community.(2) Such an order may be made only if the Minister complies with the requirements of this Subdivision.(3) An order may be made subject to conditions or restrictions.(4) Before making an order, the Minister must provide:(a) the Fisheries Scientific Committee, and(b) any advisory council established under section 229 that, in the opinion of the Minister, has an interest in the proposed order,with a copy of the proposed order, and must invite the Committee and any such council to provide advice, within such period as the Minister may specify (being a period of not less than 30 days), on the proposed order.
(1) For the purposes of this Subdivision, making an order includes varying an existing order but does not include making a minor amendment to an existing order.(2) An amendment to an existing order that the Minister considers to be a minor amendment may be made by publishing the amended order in the Gazette.(3) The Minister is not obliged to comply with any other requirements of this Subdivision in relation to a minor amendment.
221IC Species impact statement
Before the Minister makes an order, a person appointed by the Minister must prepare a species impact statement in relation to the activity the subject of the proposed order in accordance with Subdivision 2.
(1) After the species impact statement is prepared and before making an order, the Minister must give the public an opportunity to make written submissions on the proposed order.(2) For the purposes of that public consultation procedure, a copy of the species impact statement and a copy of any advice received by the Minister under section 221IA is to be exhibited with the proposed order as provided by section 284.Note. Section 284 regulates the public consultation procedure.
221IE Matters that Minister must take into account
(1) In determining whether to make an order, the Minister must take into account the following:(a) the species impact statement,(b) any advice of the Fisheries Scientific Committee, and any advice of any advisory council established under section 229 that, in the opinion of the Minister, has an interest in the proposed order, received under section 221IA.(c) any written submissions concerning the order received within the period allowed for public comment,(d) the factors specified in section 220F (Eligibility for listing),(e) any relevant recovery plan or threat abatement plan,(f) the principles of ecologically sustainable development,(g) whether the action proposed is likely to irretrievably reduce the long-term viability of the species, population or ecological community in the region,(h) whether the action proposed is likely to accelerate the extinction of the species or ecological community or place it at risk of extinction.(2) The Minister must also consider the likely social and economic consequences of making or not making an order.
(1) The Minister makes an order by publication of the order in the Gazette.(2) For the avoidance of doubt, it is declared that the Minister is not a determining authority for the purposes of Part 5 of the Environmental Planning and Assessment Act 1979 when making an order or an interim order.
(1) The Minister may make an interim order to permit the continuation of an existing activity if the Minister considers that the making of the interim order is reasonably necessary to reduce social or economic impacts during the assessment of a proposed order under this Subdivision.(2) The Minister makes an interim order by publishing the order in the Gazette.(3) An interim order remains in force for such period, not exceeding 6 months, as the Minister specifies in the order, but the order may be remade.(4) The Minister is not obliged to comply with any other requirements of this Subdivision in relation to an interim order.(5) An interim order may be made subject to conditions or restrictions.
221IH Director-General to keep register of orders
(1) The Director-General must keep a register containing copies of all orders and interim orders in force under this Subdivision.(2) The register is to be open for public inspection, without charge, during ordinary business hours, and copies of or extracts from the register are to be made available to the public on request, on payment of the fee fixed by the Director-General.
An order or interim order made under this Subdivision may be revoked by the Minister at any time by notification in the Gazette.
221IJ Breaching conditions or restrictions
A person must not contravene or fail to comply with a condition or restriction attached to an order or interim order.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.
Subdivision 2 Species impact statements
221J Form of species impact statements
(1) A species impact statement must be in writing.(2) A species impact statement must be signed by the principal author of the statement and by the sponsor who, for the purposes of this Subdivision, is one of the following:(a) if the species impact statement is prepared for the purposes of a licence application under Subdivision 1—the applicant for the licence,(b) if the species impact statement is prepared for the purposes of an order under Subdivision 1A—the person appointed by the Minister in accordance with section 221IC,(c) if the species impact statement is prepared for the purposes of the Environmental Planning and Assessment Act 1979—the applicant for development consent or the proponent of the activity to be carried out (as the case requires),(d) if the species impact statement is prepared for the purposes of the Plantations and Reafforestation Act 1999, the applicant for authorisation under that Act.
221K Content of species impact statement
(1) A species impact statement must include a full description of the action proposed, including its nature, extent, location, timing and layout and, to the fullest extent reasonably practicable, the information referred to in this section.(2) A species impact statement must include the following information as to threatened species and populations:(a) a general description of the threatened species or populations known or likely to be present in the area that is the subject of the action and in any area that is likely to be affected by the action,(b) an assessment of which threatened species or populations known or likely to be present in the area are likely to be affected by the action,(c) for each species or population likely to be affected, details of its local, regional and State-wide conservation status, the key threatening processes generally affecting it, its habitat requirements and any recovery plan or threat abatement plan applying to it,(d) an estimate of the local and regional abundance of those species or populations,(e) a full description of the type, location, size and condition of the habitat (including critical habitat) of those species and populations and details of the distribution and condition of similar habitats in the region,(f) a full assessment of the likely effect of the action on those species and populations, including, if possible, the quantitative effect of local populations in the cumulative effect in the region,(g) a description of any feasible alternatives to the action that are likely to be of lesser effect and the reasons justifying the carrying out of the action in the manner proposed, having regard to the biophysical, economic and social considerations and the principles of ecologically sustainable development,(h) a full description and justification of the measures proposed to mitigate any adverse effect of the action on the species and populations, including a compilation (in a single section of the statement) of those measures,(i) a list of any approvals that must be obtained under any other Act or law before the action may be lawfully carried out, including details of the conditions of any existing approvals that are relevant to the species or population.(3) A species impact statement must include the following information as to ecological communities:(a) a general description of the ecological community present in the area that is the subject of the action and in any area that is likely to be affected by the action,(b) for each ecological community present, details of its local, regional and State-wide conservation status, the key threatening processes generally affecting it, its habitat requirements and any recovery plan or any threat abatement plan applying to it,(c) a full description of the type, location, size and condition of the habitat of the ecological community and details of the distribution and condition of similar habitats in the region,(d) a full assessment of the likely effect of the action on the ecological community, including, if possible, the quantitative effect of local communities in the cumulative effect in the region,(e) a description of any feasible alternatives to the action that are likely to be of lesser effect and the reasons justifying the carrying out of the action in the manner proposed, having regard to the biophysical, economic and social considerations and the principles of ecologically sustainable development,(f) a full description and justification of the measures proposed to mitigate any adverse effect of the action on the ecological community, including a compilation (in a single section of the statement) of those measures,(g) a list of any approvals that must be obtained under any other Act or law before the action may be lawfully carried out, including details of the conditions of any existing approvals that are relevant to the ecological community.(4) A species impact statement must include details of the qualifications and experience in threatened species conservation of the person preparing the statement and of any other person who has conducted research or investigations relied on in preparing the statement.(5) The requirements of subsections (2) and (3) in relation to information concerning the State-wide conservation status of any species or population, or any ecological community, are taken to be satisfied by the information in that regard supplied to the principal author of the species impact statement by the Department, which information the Department is by this subsection authorised and required to provide.
221L Director-General’s requirements
(1) The sponsor must request from the Director-General and must, in preparing the species impact statement, comply with any requirements notified to the person by the Director-General concerning the form and content of the statement.(2) The Director-General must notify any requirements under this section within 28 days after having been requested to provide them.(3) Despite the other provisions of this Subdivision, the Director-General may, having regard to the circumstances of a particular case, limit or modify (or limit and modify) the matters to be included in a species impact statement in such manner as may be specified by the Director-General in the particular case.(4) Despite anything in this Part or the Environmental Planning and Assessment Act 1979 or the Plantations and Reafforestation Act 1999, the Director-General may, having regard to the circumstances of a particular case, dispense with the requirement for a species impact statement in the particular case if the Director-General is satisfied that the impact of the activity concerned will be trivial or negligible.
The regulations may make further provision for or with respect to the form and content of species impact statements.
221N Director-General may accredit persons to prepare assessments of species impact statements
(1) The Director-General is to institute arrangements for the accreditation of suitably qualified and experienced persons to prepare assessment reports on species impact statements for the purposes of this Part.(2) An applicant for accreditation must furnish the Director-General with such information as the Director-General requires to effectively determine the application and must be accompanied by the fee fixed by the Director-General for the consideration of the application.(3) An accreditation is to be for the period specified by the Director-General in the instrument of accreditation, and the accreditation (or any renewal of it) may be given subject to the conditions and restrictions (if any) specified in the instrument of accreditation.(4) The Director-General may vary conditions or restrictions (if any) attaching to an accreditation and may suspend or cancel an accreditation.
(1) The regulations may provide that development or an activity of a specified type constitutes, or does not constitute, development that is likely to significantly affect threatened species, populations or ecological communities, or their habitats.(2) Any such regulation has effect (despite the provisions of this Act or any other Act) for the purposes of the operation of:(a) Division 6 (Licensing and Ministerial orders) of Part 7A of this Act, and(b) Parts 4 and 5 of the Environmental Planning and Assessment Act 1979 (including the operation of those Parts as applying under any other Act).Note. Exceptions for the carrying out of routine agricultural management activities are provided for in section 220ZFA.(3) A regulation that provides that development or an activity of a specified type does not constitute development that is likely to significantly affect threatened species, populations or ecological communities, or their habitats, is not to be made unless the Minister has certified in writing that the development or activity is of minimal environmental impact on threatened species, populations and ecological communities, and their habitats.
221O 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 that is likely to result in one or more of the following:(a) harm to a threatened species, population or ecological community,(b) damage to critical habitat,(c) damage to habitats of threatened species, populations or ecological communities,the Director-General may order that the action is to cease and that no action, other than such action as may be specified in the order, is to be carried out in or in the vicinity of the critical habitat or the habitat of the threatened species, population or ecological community 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 critical habitat or other habitat the subject of the order, or(b) the person performing or about to perform the action is notified that the order has been made,whichever is the sooner.(3) This section does not apply in relation to anything that (under section 220ZF) constitutes a defence to an offence under Division 4.(4) In this Division, a reference to action being, or about to be, carried out includes a reference to action that should be, but is not being, carried out and the Director-General may make an order, in accordance with this Division, that any such action is to be carried out.(5) A person who does not comply with an order in force under this section is guilty of an offence and is liable, on conviction:(a) in the case of a corporation, to a penalty not exceeding 2,000 penalty units and, in the case of a continuing offence, to a further penalty not exceeding 1,000 penalty units for each day the offence continues, or(b) in the case of an individual, to a penalty not exceeding 1,000 penalty units and, in the case of a continuing offence, to a further penalty not exceeding 500 penalty units for each day the offence continues.
221P Prior notification of making of stop work order not required
The Director-General is not required, before making an order under this Division, to notify any person who may be affected by the order.
(1) A person against whom an order is made under this Division may appeal to the Minister against the making of the order.(2) After hearing an appeal, the Minister may:(a) confirm the order, or(b) modify or rescind the order, but only if this is consistent with the principles of ecologically sustainable development.
221R Extension of stop work order
The Director-General may extend an order under this Division for such further period or periods of 40 days as the Director-General thinks fit.
221S Consultation about modification of proposed detrimental action
(1) After making an order under this Division, the Director-General must immediately consult with the person proposing to perform the action to determine whether any modification of the action may be sufficient to protect the threatened species, populations or ecological communities, critical habitat or other habitat concerned.(2) The Director-General may, for the purposes of making any such determination and considering whether the adoption of any other steps (such as the grant of a licence under Division 6) may be appropriate, request the person proposing to perform the action to provide the information referred to in section 220ZX (3).(3) After considering any information provided under subsection (2) in accordance with the requirements of section 220ZZ, the Director-General may, if appropriate and if the person concerned wishes to apply for a licence under Division 6, request the person to provide an application for a licence and a species impact statement for determination under that Division.
221T Recommendations for further protective measures
The Director-General is to recommend to the Minister the taking of other protective measures under this Act if, after consulting the person proposing to perform the action, the Director-General is of the opinion that satisfactory arrangements cannot be made to protect the threatened species, population or ecological community, critical habitat or other habitat that is the subject of the order under this Division.Note. See note to section 220O for examples of other protective measures.
221U Stop work order prevails over other instruments
(1) An approval, notice, order or other instrument made or issued by or under any other Act or law that requires or permits critical habitat, the subject of an order in force under this Division, to be significantly affected is inoperative to the extent of any inconsistency with the order under this Division.(2) This section has effect whether the approval, notice, order or other instrument concerned was made or issued before or after the making of the order under this Division.
Division 8 Joint management agreements
221V Joint management agreements
(1) The Minister may enter into a joint management agreement with one or more public authorities for the management, control, regulation or restriction of an action that is jeopardising the survival of a threatened species, population or ecological community.(2) The parties may amend a joint management agreement, but only by a further joint management agreement.
221W Contents of joint management agreements
(1) A joint management agreement is to contain terms, binding on all parties, that:(a) identify the threatened species, population or ecological community to which the agreement applies, and(b) identify the action that it manages, controls, regulates or restricts, and(c) state its objective (for example, maintenance of a habitat in a state that will contribute to the long-term survival of the species, population or ecological community), and(d) state the way in which the objective is to be achieved, and(e) specify the measures by which progress towards achieving the objective is to be assessed, and(f) identify the parties who are responsible for the implementation of those measures.(2) A joint management agreement entered into with a local council or a consent authority (within the meaning of the Environmental Planning and Assessment Act 1979) is void to the extent to which it fetters any discretion of the local council or consent authority in the granting or refusal of a consent or approval under the Environmental Planning and Assessment Act 1979 or the Local Government Act 1993.(3) A joint management agreement under this Act and a joint management agreement within the meaning of the Threatened Species Conservation Act 1995 may be combined into a single document if both agreements deal with the same subject-matter.
221X Publication of draft joint management agreement
The Minister must, before entering into a joint management agreement:(a) give a copy of the draft agreement to the Fisheries Scientific Committee for review, and(b) give the public an opportunity to make submissions on the draft agreement.Note. Section 284 regulates the public consultation procedure. It requires copies of the draft agreement to be publicly exhibited and a period of at least 30 days for public comment.
221Y Role of Fisheries Scientific Committee
(1) Before a joint management agreement is entered into, the Fisheries Scientific Committee must review the draft joint management agreement and provide the Minister with comments on the review by the date specified for the making of public submissions on the draft agreement.(2) The Fisheries Scientific Committee must also:(a) conduct an annual review of the performance of all parties to a joint management agreement, and(b) advise the Minister of any deficiencies in implementation of any joint management agreement by any party to it.(3) The Fisheries Scientific Committee’s advice on the annual review of joint management agreements is to be set out in the annual report to Parliament of the Department or is to be available for public inspection at a place specified in that annual report.
221Z Consideration of submissions by Minister
(1) The Minister must consider all written submissions received by the Minister on or before the date specified for the making of public submissions about the draft agreement.(2) The Minister may, with the consent of the other parties to the agreement, amend the draft joint management agreement to take into account any of those submissions and any comments made by the Fisheries Scientific Committee about the draft agreement.
Division 9 Fisheries Scientific Committee
221ZA Establishment of Fisheries Scientific Committee
There is established by this Act a body corporate with the corporate name of the Fisheries Scientific Committee.
221ZB Functions of Fisheries Scientific Committee
(1) The Fisheries Scientific Committee has the functions conferred or imposed on it by or under this or any other Act or law.(2) The principal functions of the Fisheries Scientific Committee are as follows:(a) the functions relating to the listing of species, populations, ecological communities of fish and marine vegetation and key threatening processes as are conferred on it by this Act,(b) to advise the Minister on the identification of critical habitat of endangered or critically endangered species, populations or ecological communities,(c) to review draft joint management agreements and the performance of parties under executed joint management agreements,(d) to advise the Director-General on the exercise of the Director-General’s functions under this Part,(e) to advise the Minister and the NRC on any matter relating to the conservation of threatened species, populations or ecological communities that is referred to the Committee by the Minister or that the Committee considers appropriate.(3) The Fisheries Scientific Committee may, in the exercise of its functions, make use of consultants or obtain assistance or advice from other persons.(4) The Fisheries Scientific Committee and the Scientific Committee under the Threatened Species Conservation Act 1995 are required to consult each other on matters that affect the exercise of their respective functions.
221ZC Members of Fisheries Scientific Committee
(1) The Fisheries Scientific Committee is to consist of 7 members appointed by the Minister.(2) Of the members of the Fisheries Scientific Committee:(a) two are to be scientists employed in the Department nominated by the Director-General,(b) one is to be a scientist nominated by the Australian Society for Fish Biology,(c) one is to be a scientist employed and nominated by the Australian Museum Trust,(d) one is to be a scientist employed and nominated by the Royal Botanic Gardens and Domain Trust,(e) one is to be a scientist who is employed by a tertiary educational institution and who is selected by the Minister,(f) one is to be a scientist with expertise in fisheries science and natural resource management who is selected by the Minister.(3) A person appointed as a member of the Fisheries Scientific Committee is to have expertise in one or more of the following areas of study:(a) fish biology,(b) aquatic invertebrate biology,(c) marine vegetation biology,(d) population dynamics,(e) aquatic ecology,(f) genetics of small populations.
221ZD Fisheries Scientific Committee not subject to Ministerial control
The Fisheries Scientific Committee is not subject to the control or direction of the Minister.
221ZE Provisions relating to members and procedure of Fisheries Scientific Committee
Schedule 6A has effect.
Division 10 Biodiversity certification of native vegetation reform package
221ZF Native vegetation reform package
For the purposes of this Division, the native vegetation reform package is the package of reforms comprising the following:(a) the Native Vegetation Act 2003 and the regulations under that Act,(b) State-wide standards and targets for natural resource management issues recommended under the Natural Resources Commission Act 2003 and adopted by the Government,(c) catchment action plans under the Catchment Management Authorities Act 2003,(d) protocols and guidelines adopted or made under the regulations under the Native Vegetation Act 2003, the Catchment Management Authorities Act 2003 and the Natural Resources Commission Act 2003.
221ZG Biodiversity certification of native vegetation reform package
(1) The Minister may by order published in the Gazette confer biodiversity certification on the native vegetation reform package for the purposes of this Part.(2) The Minister may confer biodiversity certification even if the native vegetation reform package does not comprise all the elements of the package.(3) The Minister may, by order published in the Gazette, suspend biodiversity certification of the native vegetation reform package if the composition of the package changes after its certification (for instance by any amendment of the Native Vegetation Act 2003 or regulations under that Act, or by the approval or amendment of a State-wide standard or target or of a catchment action plan). The Minister may by order published in the Gazette lift any suspension under this subsection.(4) The Minister may, in an order conferring biodiversity certification or in another order published in the Gazette, exclude from the certification of the native vegetation reform package any specified class of activity.(5) In deciding on any action under this section, the Minister is to have regard to the likely impact of the native vegetation reform package (or any relevant aspect of its operation) on the achievement of the objects of this Part.
221ZH Effect of biodiversity certification
While biodiversity certification of the native vegetation reform package is in force, any activity on land within the area of operations of each catchment management authority has the benefit of that biodiversity certification (except any activity excluded from certification under section 221ZG (4)).Note. Biodiversity certification has the following effects:(a) the clearing of native vegetation as authorised by a property vegetation plan that is approved while the clearing has the benefit of biodiversity certification is a defence to a prosecution for certain offences under Part 8A of the NPW Act, and(b) development consent to clearing of native vegetation that has the benefit of biodiversity certification does not require the preparation of a species impact statement or consultation between Ministers. (See section 14 (4) of the Native Vegetation Act 2003.)
221ZI Suspension of certification in connection with implementation of package
(1) The Minister may by order published in the Gazette suspend biodiversity certification of the native vegetation reform package in its application to a particular catchment management authority if the Minister is of the opinion that the catchment management authority:(a) has failed to properly exercise its functions under the native vegetation reform package, or(b) has otherwise failed to exercise its functions in a manner that promotes the conservation of threatened species, populations and ecological communities.(2) During the suspension of biodiversity certification of the native vegetation reform package in its application to a particular catchment management authority, land within the area of operations of the catchment management authority does not have the benefit of the biodiversity certification of the native vegetation reform package.(3) The Minister is only entitled to form an opinion for the purposes of this section:(a) based on the outcomes of any audit undertaken by the NRC, or(b) based on the results of an investigation conducted by the Director-General, or(c) in such other circumstances as may be prescribed by the regulations.
221ZJ Notification of certification, variation or suspension
(1) Notice of the grant of biodiversity certification under this Division or of any suspension of that certification under this Division is to be given within 14 days:(a) to the Director-General of the Department of Infrastructure, Planning and Natural Resources, and(b) on the website of the Department of Primary Industries.(2) The Minister is to keep a register containing copies of each notice of the grant of biodiversity certification under this Division and of any suspension or revocation of that certification.(3) The register is to be open for public inspection, without charge, during ordinary business hours, and copies of or extracts from the register are to be made available to the public on request, on payment of the fee fixed by the Minister.
Division 11 Biodiversity certification of environmental planning instruments
221ZK Biodiversity certification
(1) The Minister may by order published in the Gazette confer biodiversity certification on an EPI if satisfied that the EPI, in addition to any other relevant measures to be taken, will lead to the overall improvement or maintenance of biodiversity values. Biodiversity values include threatened species, populations and ecological communities and their habitats.(2) In deciding whether to confer biodiversity certification on an EPI the Minister must also have regard to the following considerations:(a) the likely social and economic consequences of implementation of the EPI,(b) the most efficient and effective use of available resources for the conservation of threatened species, populations and ecological communities,(c) the principles of ecologically sustainable development,(d) conservation outcomes resulting from any reservation or proposed reservation of land under Part 4 of the NPW Act or the entering into of a conservation agreement relating to the land under that Act, or resulting from any other action to secure the protection of land for conservation purposes,(e) conservation outcomes resulting from the operation outside the area of operation of the EPI of strategies, plans, agreements and other instruments (whether or not they are EPIs).(3) In deciding any matter under this section the Minister is to have regard to the objects of this Part.(4) An EPI cannot be biodiversity certified unless:(a) notice is given of proposed biodiversity certification of the EPI in the course of the community consultation of the proposed EPI under Part 3 of the Environmental Planning and Assessment Act 1979 or by public exhibition following a procedure that substantially accords with the procedure for public exhibition required by that Part, and(b) copies of submissions made in response to an invitation for submissions in the course of that public exhibition have been provided to the Minister.(5) The Minister may issue guidelines for the purpose of assisting in the preparation of EPIs for biodiversity certification.
221ZL Certification can be conditional
(1) Biodiversity certification of an EPI can be subject to conditions, including conditions that limit the certification to specified threatened species, populations and communities or to a specified part of the land to which the EPI applies.(2) Unless limited by the conditions of certification, biodiversity certification of an EPI applies to the whole of the land to which the EPI applies, and to all threatened species, populations and ecological communities.
221ZM Effect of biodiversity certification
(1) Any development for which development consent is required under the provisions of a biodiversity certified EPI is, for the purposes of Part 4 of the Environmental Planning and Assessment Act 1979 taken to be development that is not likely to significantly affect any threatened species, population or ecological community, or its habitat.(2) An activity to which Part 5 of the Environmental Planning and Assessment Act 1979 applies that a biodiversity certified EPI provides can be carried out without the need for development consent is, for the purposes of that Part, taken to be an activity that is not likely to significantly affect any threatened species, population or ecological community, or its habitat.(3) This section applies only to development or an activity on land to which the certification of the EPI applies and only to threatened species, populations or ecological communities (and their habitat) to which the certification applies.
221ZN Period of certification and extension
(1) Biodiversity certification of an EPI remains in force for such period as the Minister determines and specifies in the certification. If no period is specified, biodiversity certification remains in force for 10 years.(2) Prior to the expiration of biodiversity certification of an EPI, the Minister may by order published in the Gazette extend by a period of up to 10 years the period for which that certification remains in force, but only if the Minister has reviewed the EPI to take account of any new listing of a species, population or ecological community or the discovery of a species, population or ecological community not previously known in an area.(3) The Minister must not extend the period of biodiversity certification of an EPI unless, prior to granting the extension, the Minister:(a) by notice published in a newspaper circulating generally throughout the State, invites persons to make written submissions to the Minister on the proposed extension, and(b) considers any written submissions received before the closing date specified in the notice for the making of submissions (being a date that is not less than 30 days after the date the notice is first published under this subsection).(4) This section does not prevent further biodiversity certification of an EPI under this Division.
221ZO Reassessment of biodiversity certification
(1) The Minister is to reassess the grant of biodiversity certification in respect of an EPI following any review of the EPI under the Environmental Planning and Assessment Act 1979, or any rezoning of land to which the EPI applies, to determine whether biodiversity certification should be maintained or modified.(2) If a local council undertakes a review of a biodiversity certified EPI that applies to land in its area, the council is to notify the Minister of the commencement of that review, and the outcome of that review, as soon as practicable.
221ZP Suspension and revocation of certification
The Minister may by order published in the Gazette suspend or revoke the certification of an EPI if the Minister is of the opinion that:(a) the EPI fails (or will, as a result of any proposed amendment of the EPI, fail) to make appropriate provision for the conservation of threatened species, populations and ecological communities, or(b) the consent authority under the EPI has failed to adequately comply with a direction by the Minister to review the EPI in response to any new listing of a species, population or ecological community or the discovery of a species, population or ecological community not previously known in an area.
221ZQ Notification of certification, suspension or revocation
(1) Notice of the grant of biodiversity certification under this Division or of the extension, suspension or revocation of that certification is to be given within 21 days:(a) to the Director-General of the Department of Infrastructure, Planning and Natural Resources, and(b) on the website of the Department of Primary Industries, and(c) to each local council that is the council of an area of which land to which the EPI applies forms part.(2) The Minister is to keep a register containing copies of each notice of the grant of biodiversity certification under this Division and of any extension, suspension or revocation of that certification.(3) The register is to be open for public inspection, without charge, during ordinary business hours, and copies of or extracts from the register are to be made available to the public on request, on payment of the fee fixed by the Minister.
221ZR Concurrence can be conditional on voluntary conservation action
(1) The Director-General may grant concurrence under section 79B or 112C of the Environmental Planning and Assessment Act 1979 conditional on the taking of specified action (voluntary action, as provided by subsection (2)) that the Director-General considers will significantly benefit threatened species conservation, but only if the Director-General is satisfied that the person who proposes to carry out the development or activity to which the concurrence relates has agreed to take the voluntary action and agrees to the imposition of the condition.(2) The voluntary action that can be required by a condition imposed under this section is any one or more of the following:(a) the reservation of land under Part 4 of the NPW Act or the entering into of a conservation agreement relating to the land under that Act,(b) action to secure the protection of land for conservation purposes by a method that the Director-General considers satisfactory,(c) action to restore threatened species habitat on land referred to in paragraph (a) or (b),(d) the contribution of money for a purpose referred to in paragraph (a)–(c).(3) In determining whether to confer biodiversity certification on an EPI, the Minister is entitled to have regard to the conservation benefits that will result from the taking of action in accordance with a condition proposed to be imposed under this section (as if those benefits would result from the implementation of the EPI).(4) When such a condition is imposed as a condition of concurrence in respect of development, the consent authority for the development must also impose the condition on its consent for the development.(5) The annual report of the Department is to include an assessment of how any voluntary action taken pursuant to a condition imposed under this section has benefited or is likely to benefit the adversely affected threatened species, including details of how any land or money contributed pursuant to such a condition has benefited or is likely to benefit threatened species.
221ZS Director-General may accredit persons to prepare assessments and surveys
(1) The Director-General is to institute arrangements for the accreditation of suitably qualified and experienced persons to undertake and prepare surveys and assessments for use in connection with:(a) biodiversity certification of EPIs under this Division, or(b) any assessment of the matters referred to in section 5A (Significant effect on threatened species, populations or ecological communities, or their habitats) of the Environmental Planning and Assessment Act 1979.(2) An applicant for accreditation must furnish the Director-General with such information as the Director-General requires to effectively determine the application and the application must be accompanied by the fee fixed by the Director-General for the consideration of the application.(3) An accreditation is to be for the period (not exceeding 3 years) specified by the Director-General in the instrument of accreditation, and the accreditation (or any renewal of it) may be given subject to the conditions and restrictions (if any) specified in the instrument of accreditation.(4) Without limiting subsection (3), an accreditation is to include conditions that require surveys and assessments to be undertaken and prepared in accordance with standards approved from time to time by the Director-General by order published in the Gazette.(5) The Director-General may vary conditions or restrictions (if any) attaching to an accreditation and may suspend or cancel an accreditation.