92 Director-General’s responsibilities as to fauna
The Director-General shall be the authority for the protection and care of fauna.
93 Amendment of Schedule 11 (unprotected fauna)
The Governor may, by order published on the NSW legislation website, amend Schedule 11 at any time by adding or omitting the name of any species of fauna.
94 Amendment of Schedule 12 (threatened interstate fauna)
The Governor may, by order published on the NSW legislation website, amend Schedule 12 at any time by adding or omitting the name of any species of protected fauna.
(1) The Governor may, by order published in the Gazette, declare any protected fauna within a locality specified or described in the order, being fauna of a species named in the order, to be fauna to which this section applies.Editorial note. For orders under this subsection, see Gazettes No 61 of 7.5.1976, p 2013; No 147 of 19.10.1984, p 5146 and No 159 of 21.10.1988, p 5499.(2) An order under subsection (1) does not apply, and shall be expressed so as not to apply, with respect to any lands within a national park, historic site or nature reserve.(3) Any protected fauna declared to be fauna to which this section applies are, for the purposes of sections 70 (5) and (6) and 98, locally unprotected fauna.(4) An order under subsection (1) does not apply to, and must not be expressed to apply to, any threatened species, population or ecological community.(5) Without affecting subsections (2) and (4), an order under subsection (1) may be subject to such conditions and restrictions as may be specified in the order.
97 Certain protected fauna to be property of the Crown
(1) In this section, prescribed fauna means:(a) an animal that is protected fauna and that is, at the time of birth, in the lawful possession of any person other than the Crown,(b) protected fauna, being fauna imported into New South Wales,(b1) (Repealed)(c) protected fauna that was, before the commencement day, lawfully taken or in the lawful possession of any person other than the Crown and that had not been liberated before that day, or(d) any protected fauna of a class or description prescribed for the purposes of this paragraph.(2) Any protected fauna, other than prescribed fauna, shall, until captured or killed in accordance with this Act, be deemed to be the property of the Crown.(3) Any prescribed fauna shall, when liberated in New South Wales, be deemed to be the property of the Crown.(4) Protected fauna which is deemed by this section to be the property of the Crown does not cease to be the property of the Crown merely because a person other than the Crown:(a) takes possession of it because it is incapable of fending for itself in its natural habitat, or(b) takes or obtains it under and in accordance with or by virtue of the authority conferred by a general licence under section 120 (being a general licence which declares that any animal so taken or obtained remains the property of the Crown).(5) The progeny of any protected fauna which was born at a time when the protected fauna was in the possession of a person in the circumstances referred to in subsection 4 (a) or (b) shall, at the time of birth, be deemed to be in the lawful possession of the Crown instead of that person.
98 Harming protected fauna, other than threatened species, endangered populations or endangered ecological communities
(1) In this section, protected fauna does not include threatened interstate fauna, threatened species, endangered populations, endangered ecological communities, or locally unprotected fauna under section 96.(2) A person shall not:(a) harm any protected fauna, or(a1) harm for sporting or recreational purposes game birds that are locally unprotected fauna, or(b) use any substance, animal, firearm, explosive, net, trap, hunting device or instrument or means whatever for the purpose of harming any protected fauna.Maximum penalty:
(a) 100 penalty units and, in a case where protected fauna is harmed, an additional 10 penalty units in respect of each animal that is harmed, or(b) imprisonment for 6 months,or both.(3) A person shall not be convicted of an offence arising under subsection (2) if the person proves that the act constituting the offence was done:(a) under and in accordance with or by virtue of the authority conferred by a general licence under section 120, an occupier’s licence under section 121, a commercial fauna harvester’s licence under section 123, an emu licence under section 125A, a scientific licence under section 132C or a licence under Part 6 of the Threatened Species Conservation Act 1995, or(b) in pursuance of a duty imposed on the person by or under any Act.(4) A person is not to be convicted of an offence arising under subsection (2) if the person proves that:(a) the act constituting the offence was authorised by, and done in accordance with, a conservation agreement, or(b) the act constituting the offence was authorised by, and done in accordance with, a joint management agreement entered into under Part 7 of the Threatened Species Conservation Act 1995.(5) Subsection (2) does not apply in relation to things which are essential for the carrying out of:(a) development in accordance with a development consent within the meaning of the Environmental Planning and Assessment Act 1979, or(b) an activity by a determining authority within the meaning of Part 5 of that Act if the determining authority has complied with that Part, or(c) an activity in accordance with 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(d) a project approved under Part 3A of the Environmental Planning and Assessment Act 1979, or(e) State significant infrastructure approved under Part 5.1 of the Environmental Planning and Assessment Act 1979.(6) A person is not to be convicted of an offence arising under subsection (2) if the person proves that the act constituting the offence was done in the course of carrying out an activity that would constitute a defence under section 118G (Defences) to a prosecution for an offence under Part 8A.
99 Harming threatened interstate fauna
(1) A person shall not:(a) harm any threatened interstate fauna, or(b) use any substance, animal, firearm, explosive, net, trap, hunting device or instrument or means whatever for the purpose of harming any such fauna, or(c) (Repealed)Maximum penalty:
(a) 1000 penalty units and, in a case where threatened interstate fauna is harmed, an additional 100 penalty units in respect of each animal that is harmed, or(b) imprisonment for 1 year,or both.Note. An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 175B.(1A) (Repealed)(2) A person shall not be convicted of an offence arising under subsection (1) if the person proves that the act constituting the offence was done under and in accordance with or by virtue of the authority conferred by a general licence under section 120 or a scientific licence under section 132C.(3) Where the provisions of any other Act or instrument under any other Act authorise or require anything to be done that would constitute an offence arising under subsection (1):(a) the provisions of this section prevail, except where the other Act is the Rural Fires Act 1997, and(b) a person shall not be convicted of an offence against that other Act or instrument by reason of the person’s failure to comply therewith in so far as compliance therewith would constitute an offence arising under subsection (1).(4)–(6) (Repealed)
99A Directions relating to protected fauna
(1) An officer of the Service may give a direction to a person to stop feeding protected fauna.(2) An officer of the Service may give a direction to a person to stop any activity that is causing, or is likely to cause, distress to protected fauna.(3) A person must not fail to comply with a direction given to the person under this section.Maximum penalty: 25 penalty units and, in the case of a continuing offence, a further penalty of 2.5 penalty units for each day the offence continues.
(4) A direction given by an officer of the Service under this section has effect for such period (not exceeding 28 days) as is specified by the officer at the time the direction is given.(5) However, nothing in subsection (4) prevents a further direction being given under this section.(5A) A person who has been given a direction by an officer of the Service under this section may, within 14 days of receiving the direction, appeal to the Minister against the direction.(5B) In deciding the appeal, the Minister may:(a) confirm the direction appealed against, or(b) modify or rescind the direction.(5C) The Minister may, by order, direct a person to stop feeding protected fauna or stop any activity that is causing, or is likely to cause, distress to protected fauna (or both).(5D) The Minister must not give a direction under subsection (5C) unless:(a) a direction in similar terms has been given to the person by an officer of the Service under this section, and(b) a period of 14 days has elapsed since that direction was given and no appeal has been made against the direction or, if an appeal has been made, the direction was not substantially modified or rescinded.(5E) A direction given by the Minister under this section has effect for such period (not exceeding 2 years) as is specified in the direction. The Minister may extend a direction by a further period (not exceeding 2 years).(6) A direction may not be issued under this section:(a) in relation to anything done in accordance with a licence or certificate issued under this Act or under the Threatened Species Conservation Act 1995, or(b) in relation to anything essential for the carrying out of development in accordance with a development consent within the meaning of the Environmental Planning and Assessment Act 1979, or(c) in relation to anything essential for the carrying out of an activity, whether by a determining authority or pursuant to an approval of a determining authority, within the meaning of Part 5 of the Environmental Planning and Assessment Act 1979, or(c1) in relation to anything essential for carrying out a project approved under Part 3A of the Environmental Planning and Assessment Act 1979, or(c2) in relation to anything essential for the carrying out of State significant infrastructure approved under Part 5.1 of the Environmental Planning and Assessment Act 1979, or(d) in relation to anything done for the purposes of the Rural Fires Act 1997, or(e) in such circumstances as are prescribed by the regulations.
100 Further provisions respecting harming protected fauna (including threatened interstate fauna)
(1) A person shall not be convicted of an offence arising under section 98 (2), 99 (1), 112G or 118A if the person proves:(a) that the animal concerned was in some person’s lawful possession and that the act constituting the offence was, having regard to the circumstances of the case, reasonably necessary for promoting the welfare of the animal, or(b) that the animal concerned had strayed or escaped from some person’s lawful possession and that the act constituting the offence was, having regard to the circumstances of the case, reasonably necessary for securing the return of the animal.(2) The regulations may make provision for or with respect to exempting, subject to conditions and restrictions (if any) prescribed by the regulations, any person or class or description of persons from the provisions of section 98 (2).
101 Buying, selling or possessing protected fauna
(1) A person shall not buy, sell or have in the person’s possession or control any protected fauna.Penalty:
(a) in respect of any protected fauna other than threatened interstate fauna—100 penalty units or imprisonment for 6 months or both,(b) in respect of any threatened interstate fauna—1,000 penalty units or imprisonment for 1 year or both.(2) (Repealed)(3) The Governor may, by order published in the Gazette, exempt from subsection (1) protected fauna of a species named in the order, subject to such conditions and restrictions relating to the buying, selling or having in possession of any such protected fauna as may be prescribed in the order.Editorial note. For orders under this subsection, see Gazettes No 54 of 11.4.1975, p 1393 (revoked GG No 148 of 16.10.1998, p 8395); No 147 of 19.10.1984, p 5146; No 138 of 4.10.1985, p 5240; No 95 of 20.8.1999, p 6321 (see also No 126 of 15.8.2003, p 7995) and No 126 of 15.8.2003, p 7996.(4) A person shall not be convicted of an offence arising under subsection (1) in respect of the buying or selling of any protected fauna if the person satisfies the court that the person believed, on reasonable grounds, that the act constituting the offence was done, or that the state of affairs constituting the offence existed, under and in accordance with or by virtue of the authority conferred by a licence under Division 2 of Part 9.(5) A person shall not be convicted of an offence arising under subsection (1) in respect of the possession of any protected fauna, if the person satisfies the court:(a) that the person believed, on reasonable grounds, that the state of affairs constituting the offence existed under and in accordance with or by virtue of the authority conferred by a licence under Division 2 of Part 9 or that the person otherwise obtained the fauna lawfully,(b) that the fauna is the progeny of any fauna which the person believed, on reasonable grounds, had been lawfully obtained by the person, being progeny born after the lastmentioned fauna was so obtained, or(c) that:(i) the animal concerned was incapable of fending for itself in its natural habitat,(ii) the person notified the Director-General, in the prescribed manner and within the prescribed time, that the animal came into the person’s possession, and(iii) the person complied with any direction given to the person with respect to the animal by the Director-General.(6) A reference in this section to a person’s having protected fauna in the person’s possession includes a reference to the person’s having protected fauna in a vehicle, building, lodging, apartment, field or other place whether belonging to or occupied by the person, and whether the fauna is then had or placed for the person’s own use or the use of another.(7) In this section, protected fauna does not include any threatened species or endangered population.Note. See section 118B in relation to buying, selling or possessing an animal or plant that is of, or is part of, a threatened species or endangered population.
102 Directions respecting protected fauna in confinement
(1) The Director-General, or an officer of the Service duly authorised by the Director-General in that behalf, may, by notice given to a person who keeps protected fauna in confinement or in a domesticated state, give such directions respecting food, drink and shelter for, and the welfare of, the fauna as appear to the Director-General or officer to be proper.(2) A person shall not fail to comply with any direction given to the person under subsection (1).Maximum penalty:
(a) in the case of an individual—100 penalty units and, in the case of a continuing offence, a further penalty of 10 penalty units for each day the offence continues, or(b) in the case of a corporation—200 penalty units and, in the case of a continuing offence, a further penalty of 20 penalty units for each day the offence continues.(3) A person shall not be convicted of an offence arising under subsection (2) in respect of a failure to comply with a direction if the person satisfies the court that the person so failed with reasonable excuse.
(1) A person shall not harm fauna for the purpose of sale.(2) A person shall not be convicted of an offence arising under subsection (1) if the person proves that the act constituting the offence was done under and in accordance with the authority conferred by a general licence under section 120, an occupier’s licence under section 121, a commercial fauna harvester’s licence under section 123 or an emu licence under section 125A.(3) A person shall not be convicted of an offence arising under subsection (1) in respect of the harming for the purposes of sale of any dingo, ferret, fox, hare or rabbit or any fauna of a species named in an order under subsection (4).(4) The Governor may, by order published in the Gazette, declare that subsection (1) does not apply to or in respect of any fauna of a species named in the order, not being threatened interstate fauna or threatened species, populations or ecological communities.
(1) A person must not:(a) exercise or carry on, or(b) advertise, notify or state that he or she exercises or carries on or is willing to exercise or carry on, or(c) in any way hold himself or herself out to the public as ready to exercise or carry on,the business of a fauna dealer, unless the person does so under and in accordance with the authority conferred by a licence under Division 2 of Part 9.Maximum penalty:
(a) in the case of an individual—100 penalty units and, in the case of a continuing offence, a further penalty of 10 penalty units for each day the offence continues, or(b) in the case of a corporation—200 penalty units and, in the case of a continuing offence, a further penalty of 20 penalty units for each day the offence continues.(1A) A person is not to be convicted of an offence arising under subsection (1) in respect of the sale by retail of meat from a game animal, but only if the meat was lawfully acquired from the holder of a licence under Division 2 of Part 9.(2) A person shall not be convicted of an offence arising under subsection (1) in respect of any dingo, ferret, fox, hare or rabbit or any fauna of a species named in an order under subsection (3).(3) The Governor may, by order published in the Gazette, declare that subsection (1) does not apply to or in respect of any fauna of a species named in the order.Editorial note. For orders under this subsection, see Gazettes No 147 of 19.10.1984, p 5146; No 138 of 4.10.1985, p 5240; No 95 of 20.8.1999, p 6319 (see also No 126 of 15.8.2003, p 7994) and No 126 of 15.8.2003, p 7995.
A person must not:(a) exercise or carry on, or(b) advertise, notify or state that he or she exercises or carries on or is willing to exercise or carry on, or(c) in any way hold himself or herself out to the public as ready to exercise or carry on,the business of a skin dealer, unless the person does so under and in accordance with the authority conferred by a licence under Division 2 of Part 9.Maximum penalty:
(a) in the case of an individual—100 penalty units and, in the case of a continuing offence, a further penalty of 10 penalty units for each day the offence continues, or(b) in the case of a corporation—200 penalty units and, in the case of a continuing offence, a further penalty of 20 penalty units for each day the offence continues.
(1) A person must not:(a) exercise or carry on, or(b) advertise, notify or state that he or she exercises or carries on or is willing to exercise or carry on, or(c) in any way hold himself or herself out to the public as ready to exercise or carry on,the business of an emu breeder, unless the person does so under and in accordance with the authority conferred by a licence under Division 2 of Part 9.Maximum penalty:
(a) in the case of an individual—100 penalty units and, in the case of a continuing offence, a further penalty of 10 penalty units for each day the offence continues, or(b) in the case of a corporation—200 penalty units and, in the case of a continuing offence, a further penalty of 20 penalty units for each day the offence continues.(2) A person is not to be convicted of an offence arising under subsection (1) in respect of the sale by retail of an emu product, but only if the product was lawfully acquired from:(a) the holder of a licence under Division 2 of Part 9, or(b) a person who is authorised to sell emu products under the fauna protection legislation of another State or Territory.
106 Importing or exporting protected fauna
(1) A person shall not import into or export from New South Wales any protected fauna.(2) Subsection (1) does not apply to any protected fauna of a species prescribed for the purposes of this subsection or to any emu product.(3) A person shall not be convicted of an offence arising under subsection (1) if the person proves that the act constituting the offence was done under and in accordance with or by virtue of the authority conferred by an import licence or an export licence under section 126.
107 Exhibiting protected fauna
A person shall not exhibit any protected fauna, unless the person does so under and in accordance with the authority conferred by a general licence under section 120.Maximum penalty:
(a) in the case of an individual—100 penalty units and, in the case of a continuing offence, a further penalty of 10 penalty units for each day the offence continues, or(b) in the case of a corporation—200 penalty units and, in the case of a continuing offence, a further penalty of 20 penalty units for each day the offence continues.
109 Unlawful liberation of animals
(1) A person shall not liberate, anywhere in New South Wales, any animal (other than a homing pigeon or a captured animal which is native to New South Wales) unless under and in accordance with a licence under section 127.(2) A person shall not liberate, elsewhere than in the locality of capture, any captured animal which is native to New South Wales unless under and in accordance with a licence under section 127.
110 Use of certain substances for harming fauna
(1) A person shall not, without the consent in writing of the Director-General, use any prescribed substance for the harming, or attempted harming, of any protected fauna (other than birds).Maximum penalty: 30 penalty units or imprisonment for 6 months or both.
(2) A person shall not, without the consent in writing of the Director-General, use any prescribed substance for the harming, or attempted harming, of any bird (whether or not protected fauna and whether or not native to, or of a species that periodically or occasionally migrates to, Australia).Maximum penalty: 30 penalty units or imprisonment for 6 months or both.
(3) A person shall not be convicted of an offence arising under subsection (1) or (2) if the person proves that the act constituting the offence was done under and in accordance with the regulations.(4) The regulations may make provision for or with respect to exempting, subject to the prescribed conditions and restrictions (if any), any person or class or description of persons from the provisions of subsection (1) or (2) or both.(5) In this section, substance includes mixture or preparation.
A person shall not, for the purpose of harming any protected fauna, use any firearm of a kind other than the kind habitually raised at arm’s length and fired from the shoulder without other support.Maximum penalty: 5 penalty units.
A person shall not be convicted of an offence against this Act in respect of the harming of a snake unless it is proved that there were no grounds on which the person could reasonably have believed at any relevant time that the snake was endangering, or was likely to endanger, any person or property.