Division 2Division 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).