Fisheries Management Act 1994 No 38
Historical version for 2 March 2012 to 8 March 2012 (accessed 28 November 2014 at 10:03) Current version
Part 7ADivision 4

Division 4 Offences

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

(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:
(a)  in specified waters, or
(b)  within a prescribed distance of any fish or marine vegetation of a threatened species, or
(c)  within a prescribed distance of the habitat of any fish or marine vegetation of a threatened species, or
(d)  on specified critical habitat.
(2)  Any such regulation may create an offence punishable by a penalty not exceeding 100 penalty units.

220ZF   Defences

(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
(iv)  State significant infrastructure approved under Part 5.1 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 fishing activity (unless it was an activity of a kind that the regulations declare is not a routine fishing 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)  (Repealed)
(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 fishing activity or routine aquacultural activity for the purposes of subsection (1) (d) or (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.
(6)  In this section, a routine fishing activity means a routine activity carried out in connection with the lawful taking of fish or marine vegetation other than a threatened species, population or ecological community.
(7)  A defence that the act or omission constituting the offence was a routine fishing activity or routine aquaculture activity is available in proceedings for an offence against this Division only if the person charged satisfies the court that, on becoming aware of taking any fish of a threatened species, population or ecological community, the person took immediate steps to return the fish to its natural environment with the least possible injury.

220ZFA   Further defences

(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 mitigate damage or restore habitat

(1)  If a court convicts a person of an offence against this Part and is satisfied the offence has caused damage to any threatened species, population or ecological community or to the habitat of any threatened species, population or ecological community, 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 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.
(3A)  If the requirements of an order under this section are not complied with within the period specified in it, the Minister:
(a)  may cause the actions specified in the order to be carried out, and
(b)  may claim or realise any security provided under this section by the person against whom the order was made to meet the reasonable costs of carrying out the actions specified in the order, and
(c)  may, by proceedings brought in a court of competent jurisdiction, recover as a debt from the person against whom the order was made the reasonable costs of carrying out the actions specified in the order (or the balance of those costs after claiming or realising any security provided by the person).
(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.

220ZGA   Community service orders

(1)  If a court makes a community service order in respect of a person convicted of an offence against this Part, the court may recommend that the community service work to be performed by the person include work the purpose of which is to restore damage to habitat (whether or not caused by the person) or to otherwise assist in achieving the objects of this Part.
(2)  This section does not limit the powers of a court under the Crimes (Sentencing Procedure) Act 1999.
(3)  In this section:

community service order has the same meaning as it has in the Crimes (Sentencing Procedure) Act 1999.

community service work has the same meaning as it has in the Crimes (Sentencing Procedure) Act 1999.

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