Fisheries Management Act 1994 No 38
Historical version for 2 March 2012 to 8 March 2012 (accessed 20 December 2014 at 04:30) Current version
Part 7ADivision 6Subdivision 1

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).

220ZX   Application for licence

(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.

220ZZA   Assessment guidelines

(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.

221C   Deemed approval

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.

221G   Cancellation of licence

(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.
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