An Act to consolidate and amend the law relating to the establishment, preservation and management of national parks, historic sites and certain other areas and the protection of certain fauna, native plants and Aboriginal objects; to repeal the Wild Flowers and Native Plants Protection Act 1927, the Fauna Protection Act 1948, the National Parks and Wildlife Act 1967 and certain other enactments; to amend the Local Government Act 1919 and certain other Acts in certain respects; and for purposes connected therewith.

Part 1 Preliminary

1   Name of Act

This Act may be cited as the National Parks and Wildlife Act 1974.

2   Commencement

(1)  This section and section 1 shall commence on the date of assent to this Act.

(2)  Except as provided in subsection (1), this Act shall commence on such day as may be appointed by the Governor in respect thereof and as may be notified by proclamation published in the Gazette.

2A   Objects of Act

(1)  The objects of this Act are as follows:

(a)  the conservation of nature, including, but not limited to, the conservation of:

(i)  habitat, ecosystems and ecosystem processes, and

(ii)  biological diversity at the community, species and genetic levels, and

(iii)  landforms of significance, including geological features and processes, and

(iv)  landscapes and natural features of significance including wilderness and wild rivers,

(b)  the conservation of objects, places or features (including biological diversity) of cultural value within the landscape, including, but not limited to:

(i)  places, objects and features of significance to Aboriginal people, and

(ii)  places of social value to the people of New South Wales, and

(iii)  places of historic, architectural or scientific significance,

(c)  fostering public appreciation, understanding and enjoyment of nature and cultural heritage and their conservation,

(d)  providing for the management of land reserved under this Act in accordance with the management principles applicable for each type of reservation.

(2)  The objects of this Act are to be achieved by applying the principles of ecologically sustainable development.

(3)  In carrying out functions under this Act, the Minister, the Director-General and the Service are to give effect to the following:

(a)  the objects of this Act,

(b)  the public interest in the protection of the values for which land is reserved under this Act and the appropriate management of those lands.

3   Act binds Crown

This Act binds the Crown, not only in right of New South Wales but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities.

4   Repeals, amendments, savings, transitional and other provisions

(1), (2)  (Repealed)

(3)  Schedule 3 has effect.

5   Definitions

(1)  In this Act, except in so far as the context or subject-matter otherwise indicates or requires:

Aboriginal area means lands dedicated as an Aboriginal area under this Act.

Aboriginal heritage impact permit means a permit issued under Division 2 of Part 6.

Aboriginal object means any deposit, object or material evidence (not being a handicraft made for sale) relating to the Aboriginal habitation of the area that comprises New South Wales, being habitation before or concurrent with (or both) the occupation of that area by persons of non-Aboriginal extraction, and includes Aboriginal remains.

Aboriginal owner board members, in relation to lands reserved or dedicated under Part 4A, means the Aboriginal owners who are members of the board of management for the lands.

Aboriginal owners has the same meaning as in the Aboriginal Land Rights Act 1983.

Note. 

The term Aboriginal owners of land is defined in the Aboriginal Land Rights Act 1983 to mean the Aboriginal persons named as having a cultural association with the land in the Register of Aboriginal Owners kept under Division 3 of Part 9 of that Act.

Aboriginal person has the same meaning as in the Aboriginal Land Rights Act 1983 and Aboriginal people has a corresponding meaning.

Aboriginal place means any place declared to be an Aboriginal place under section 84.

Aboriginal remains means the body or the remains of the body of a deceased Aboriginal person, but does not include:

(a)  a body or the remains of a body buried in a cemetery in which non-Aboriginal persons are also buried, or

(b)  a body or the remains of a body dealt with or to be dealt with in accordance with a law of the State relating to medical treatment or the examination, for forensic or other purposes, of the bodies of deceased persons.

Act of 1967 means the National Parks and Wildlife Act 1967.

adaptive reuse of a building or structure on land means the modification of the building or structure and its curtilage to suit an existing or proposed use, and that use of the building or structure, but only if:

(a)  the modification and use is carried out in a sustainable manner, and

(b)  the modification and use are not inconsistent with the conservation of the natural and cultural values of the land, and

(c)  in the case of a building or structure of cultural significance, the modification is compatible with the retention of the cultural significance of the building or structure.

advisory committee means an advisory committee constituted under this Act.

amphibian means any frog or other member of the class amphibia that is native to Australia and includes the eggs and the young thereof and the skin or any other part thereof.

animal means any animal, whether vertebrate or invertebrate, and at whatever stage of development, but does not include fish within the meaning of the Fisheries Management Act 1994 other than amphibians or aquatic or amphibious mammals or aquatic or amphibious reptiles.

approval includes a consent, licence or permission and any form of authorisation.

authorised officer means the Director-General or a person appointed as an authorised officer for the time being under section 156B.

bird means any bird that is native to, or is of a species that periodically or occasionally migrates to, Australia, and includes the eggs and the young thereof and the skin, feathers or any other part thereof.

board of management means a board of management established under Division 6 of Part 4A.

commencement day means the day appointed and notified under section 2 (2).

community service includes the supply, provision or maintenance of access roads, parking areas or mooring areas, an electricity, gas or water service and a sewerage or garbage disposal service.

conservation agreement means an agreement entered into under Division 12 of Part 4.

conservation area means land subject to a conservation agreement.

Council means the National Parks and Wildlife Advisory Council constituted under this Act.

critical habitat has the same meaning as in the Threatened Species Conservation Act 1995.

critically endangered species has the same meaning as in the Threatened Species Conservation Act 1995.

Crown lands means:

(a)  Crown land within the meaning of the Crown Lands Act 1989, and

(b)  those parts of the seabed and of the waters beneath which it is submerged that are within the territorial jurisdiction of New South Wales and not within the Eastern Division described in the Second Schedule to the Crown Lands Consolidation Act 1913 (as in force immediately before its repeal).

damage in relation to habitat (including critical habitat) includes damage by the removal or relocation of the habitat or a part of the habitat.

Department means the Department of Environment, Climate Change and Water.

Director-General means the Director-General of the Department.

ecological community has the same meaning as in the Threatened Species Conservation Act 1995.

egg includes any part of an egg or eggshell.

emu means any bird of the species Dromaius novaehollandiae.

emu breeder means a person who exercises or carries on the business of breeding emus (including the rearing of emu chicks lawfully taken in the wild) or dealing in live emus, whole emu eggs or other emu products.

emu products means products (such as eggs, meat, skin, feathers, claws and oil) derived from emus or from the processing of emu carcases.

endangered ecological community means an endangered or critically endangered ecological community within the meaning of the Threatened Species Conservation Act 1995.

endangered population means an endangered population within the meaning of the Threatened Species Conservation Act 1995.

endangered species means an endangered or critically endangered species within the meaning of the Threatened Species Conservation Act 1995.

exercise a function includes perform a duty.

ex-officio ranger means a person who, by the operation of section 16, is a ranger by virtue of the person’s office.

explosive means an explosive within the meaning of the Explosives Act 2003.

fauna means any mammal, bird, reptile or amphibian.

fauna dealer means a person who exercises or carries on the business of dealing in fauna, whether by buying or selling or by buying and selling, and whether on the person’s own behalf or on behalf of any other person, and whether or not the person deals in other things, and whether or not the person exercises or carries on any other business.

flora reserve means a flora reserve within the meaning of the Forestry Act 2012.

function includes a power, authority or duty.

Fund means the National Parks and Wildlife Fund referred to in section 137.

game animal means any of the following animals that is not husbanded in the manner of a farmed animal and is killed in the field:

(a)  any goat, kid, swine, deer, rabbit, hare, camel, donkey, horse or bird,

(b)  any fauna permitted to be harmed for the purposes of sale in accordance with a licence under this Act.

game bird means a wild duck, wild goose or wild quail, or a bird of any other species that the Governor, by order, declares to be a species of game bird for the purposes of this Act.

habitat includes habitat periodically or occasionally occupied by a species, population or ecological community.

harm an animal (including an animal of a threatened species, population or ecological community) includes hunt, shoot, poison, net, snare, spear, pursue, capture, trap, injure or kill, but does not include harm by changing the habitat of an animal.

harm an object or place includes any act or omission that:

(a)  destroys, defaces or damages the object or place, or

(b)  in relation to an object—moves the object from the land on which it had been situated, or

(c)  is specified by the regulations, or

(d)  causes or permits the object or place to be harmed in a manner referred to in paragraph (a), (b) or (c),

      but does not include any act or omission that:

(e)  desecrates the object or place, or

(f)  is trivial or negligible, or

(g)  is excluded from this definition by the regulations.

historic site means lands reserved as a historic site under this Act.

honorary ranger means a person appointed as an honorary ranger under this Act.

interim protection order means an order made under Part 6A.

intertidal zone means the area between mean high water mark and mean low water mark.

karst conservation reserve means lands dedicated as a karst conservation reserve under this Act.

karst environment means an area of land, including subterranean land, that has developed in soluble rock through the processes of solution, abrasion or collapse, together with its associated bedrock, soil, water, gases and biodiversity.

lands of the Crown means lands vested in a Minister of the Crown or in a public authority.

livestock health and pest authority means a livestock health and pest authority constituted under the Rural Lands Protection Act 1998.

local council means the council of a local government area.

mammal means any mammal, whether native, introduced or imported, and includes an aquatic or amphibious mammal, the eggs and the young of a mammal, and the skin or any other part of a mammal, but does not include any introduced or imported domestic mammal or any rat or mouse not native to Australia.

management principles, in relation to land reserved under this Act, means the management principles set out in Division 2 of Part 4 for the land.

marine mammal means all animals of the orders of Cetacea, Sirenia and Pinnipedia.

minerals includes coal, shale and petroleum.

modified natural area means an area of land where the native vegetation cover has been substantially modified or removed by human activity (other than activity relating to bush fire management or wild fire) and that is identified in a plan of management as not being appropriate for or capable of restoration.

motor vehicle means a motor car, motor carriage, motor cycle or other apparatus propelled on land, snow or ice wholly or partly by volatile spirit, steam, gas, oil or electricity.

national park means lands reserved as a national park under this Act.

National Parks and Wildlife Reserve Trust means the National Parks and Wildlife Reserve Trust established under section 9 of the Forestry and National Park Estate Act 1998.

national parks legislation means each of the following Acts and the regulations under those Acts:

(a)  this Act,

(b)  Threatened Species Conservation Act 1995,

(c)  Wilderness Act 1987,

(d)  Marine Parks Act 1997.

native plant means any tree, shrub, fern, creeper, vine, palm or plant that is native to Australia, and includes the flower and any other part thereof.

nature reserve means lands dedicated as a nature reserve under this Act.

officer of the Service means a person referred to in section 6.

owner, in relation to lands, includes every person who jointly or severally, whether at law or in equity:

(a)  is entitled to the lands for any estate of freehold in possession,

(b)  is a person to whom the Crown has lawfully contracted to sell the lands under the Crown Lands Consolidation Act 1913 or any other Act relating to the alienation of lands of the Crown, or

(c)  is entitled to receive, or is in receipt of, or if the lands were let to a tenant would be entitled to receive, the rents and profits thereof, whether as beneficial owner, trustee, mortgagee in possession or otherwise.

pick a plant (including a native plant, a protected native plant and a plant that is of, or is part of, a threatened species, population or ecological community) includes gather, pluck, cut, pull up, destroy, poison, take, dig up, crush, trample, remove or injure the plant or any part of the plant.

plan of management means a plan of management under Part 5.

plant includes fungi and lichen.

population has the same meaning as in the Threatened Species Conservation Act 1995.

premises includes building, store, shop, tent, hut or other structure, or place, whether built upon or not, or any part thereof.

prescribed means prescribed by this Act or the regulations.

principles of ecologically sustainable development means the principles of ecologically sustainable development described in section 6 (2) of the Protection of the Environment Administration Act 1991.

prohibited weapon means:

(a)  a gun, rifle, weapon or other article:

(i)  from which a bullet, shot or other hurtful thing or material may be discharged, whether by an explosive or by any other means whatever, or

(ii)  that is designed to be used to discharge, whether by an explosive or by any other means whatever, a dart or other thing or material containing, coated or impregnated with a drug or other substance, for the purpose of tranquillising or immobilising an animal by means of the administration to the animal of the drug or other substance,

      and any telescopic sight, silencer or other accessory attached to the gun, rifle, weapon or article,

(b)  any other weapon prescribed for the purposes of this paragraph, and

(c)  an article or device that, but for the absence of, or a defect in, some part thereof, or some obstruction therein, would be a gun, rifle, weapon or article referred to in paragraph (a) or a weapon prescribed for the purposes of paragraph (b).

prospect means search for any mineral by any means and carry out such works and remove such samples as may be necessary to test the mineral bearing qualities of land.

protected fauna means fauna of a species not named in Schedule 11.

protected native plant means a native plant of a species named or referred to in Schedule 13.

public authority means a public or local authority constituted by or under an Act, a Government Department or a statutory body representing the Crown.

public register means the public register kept under section 188F.

regional advisory committee means an advisory committee constituted under section 24 (2).

regional park means land reserved as a regional park under this Act.

regional park trust means a regional park trust established under section 47S.

registered native title claimant has the same meaning as it has in the Native Title Act 1993 of the Commonwealth.

regulations means regulations under this Act.

reptile means a snake, lizard, crocodile, tortoise, turtle or other member of the class reptilia (whether native, introduced or imported), and includes the eggs and the young thereof and the skin or any other part thereof.

sell includes:

(a)  auction, barter, exchange or supply,

(b)  offer, expose, supply or receive for sale,

(c)  send, forward or deliver for sale or on sale,

(d)  dispose of under a hire-purchase agreement,

(e)  cause, permit or suffer the doing of an act referred to in paragraph (a), (b), (c) or (d),

(f)  offer or attempt to do an act so referred to,

(g)  cause, permit or suffer to be sold,

(h)  attempt to sell or offer to sell, or

(i)  have in possession for sale.

Service means the National Parks and Wildlife Service as referred to in section 6.

skin, in relation to fauna, means the whole or part of the integument of any fauna, whether dressed or tanned or otherwise processed, but does not include any manufactured article.

skin dealer means a person who exercises or carries on:

(a)  the business of dealing in the skins of protected fauna, whether by buying or selling or by buying and selling, and whether or not the person deals in other things, or

(b)  the business of tanning the skins of protected fauna, whether or not the person tans other skins,

      or both, and whether on the person’s own behalf or on behalf of any other person, and whether or not the person exercises or carries on any other business.

species has the same meaning as in the Threatened Species Conservation Act 1995.

species presumed extinct has the same meaning as in the Threatened Species Conservation Act 1995.

specified, in relation to a licence or other instrument under this Act, means specified in the licence or other instrument.

state conservation area means land reserved as a state conservation area under this Act.

state conservation area trust means a state conservation area trust established under section 47GA in respect of Cape Byron State Conservation Area.

State forest means a State forest within the meaning of the Forestry Act 2012.

sustainable, in relation to visitor or tourist use and enjoyment of land, means sustainable within the meaning of the principles of ecologically sustainable development.

threatened interstate fauna means protected fauna of a species named in Schedule 12.

threatened species has the same meaning as in the Threatened Species Conservation Act 1995.

threatened species, populations and ecological communities and threatened species, population or ecological community have the same meanings as in the Threatened Species Conservation Act 1995.

threatening process has the same meaning as in the Threatened Species Conservation Act 1995.

timber reserve means a timber reserve within the meaning of the Forestry Act 2012.

trust board means a trust board established under:

(a)  section 47GB in respect of a state conservation area trust, or

(b)  section 47T in respect of a regional park trust.

Valuer-General means the valuer-general appointed under the Valuation of Land Act 1916.

vehicle includes:

(a)  a boat or other object that, while floating on water or submerged, whether wholly or partly, under water, is wholly or partly used for the conveyance of persons or things,

(b)  an apparatus that, while propelled, or directed or controlled, in the air by human or mechanical power or by the wind, is wholly or partly used for the conveyance of persons or things,

(c)  a motor vehicle,

(d)  an apparatus propelled, or directed or controlled, upon land, snow or ice by human or animal power or by the wind, and

(e)  a trailer or caravan, whether or not it is in the course of being towed.

vulnerable species has the same meaning as in the Threatened Species Conservation Act 1995.

wild, in relation to any species of fauna, means not domesticated.

wild river means a river declared to be a wild river under this Act.

wilderness area means land (including subterranean land) that is reserved under this Act and is declared to be a wilderness area under the Wilderness Act 1987.

wilderness protection agreement has the same meaning as it has in the Wilderness Act 1987.

wildlife means fauna and native plants.

wildlife refuge means lands declared to be a wildlife refuge under this Act.

world heritage property means property of outstanding universal value that is inscribed on the World Heritage List under Article 11 of the Convention for the Protection of the World Cultural and Natural Heritage done at Paris on 23 November 1972, as in force in Australia.

world heritage values means natural, heritage and cultural values contained in a world heritage property that are of outstanding universal value as described by the Convention for the Protection of the World Cultural and Natural Heritage done at Paris on 23 November 1972, as in force in Australia.

(2)  In this Act, a reference to the Minister administering the Crown Lands Consolidation Act 1913 is:

(a)  in relation to lands that are not within an irrigation area within the meaning of that Act—a reference to the minister for lands, or

(b)  in relation to lands that are within such an irrigation area—a reference to the Minister for the time being administering the Water Management Act 2000.

(2A)  In this Act, a reference to a person convicted of an offence includes a reference to a person in respect of whom an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 is made after the commencement of this subsection.

(3)  In this Act, a reference to a licence or certificate under Part 9 or a licence under the Threatened Species Conservation Act 1995 is a reference to such a licence or certificate that is valid and in force.

(4)  Without affecting the generality of any of the definitions in subsection (1), a reference in this Act to protected fauna includes fauna in New South Wales that is of a species not named in Schedule 11 and that has been imported, or is being imported, into New South Wales.

(5)  In this Act, a reference to sustainable visitor or tourist use and enjoyment includes a reference to appropriate public recreation.

(6)  Nothing in this Act shall be construed as operating to affect the law from time to time in force with respect to the navigation of the waters referred to in paragraph (b) of the definition of Crown lands in subsection (1).

(7)  Before a regulation is made under paragraph (c) or (g) of the definition of harm in subsection (1), the Minister is required to ensure, as far as is reasonably practicable, that:

(a)  a notice is to be published in a daily newspaper circulating throughout New South Wales:

(i)  stating the objects of the proposed regulation, and

(ii)  advising where a copy of the regulation may be obtained or inspected, and

(iii)  inviting comments and submissions within a specified time, but not less than 28 days from publication of the notice, and

(b)  consultation is to take place with the Aboriginal Cultural Heritage Advisory Committee, and

(c)  all the comments and submissions received are to be appropriately considered.

5A   Notes in text

Notes in the text of this Act do not form part of this Act.

Part 2 Administration

Division 1 National Parks and Wildlife Service

6   The Service

The National Parks and Wildlife Service consists of the following:

(a)  the Director-General,

(b)  those members of staff of the Department who are principally involved in the administration of the national parks legislation,

(c)  the persons in respect of whom any arrangements under section 11 are for the time being in force.

7   Functions of Director-General relating to reservation of land

(1)  The Director-General is to consider, and may investigate, proposals for the addition of areas to any land reserved under Part 4 or for the reservation of any new areas under Part 4.

(2)  When considering or investigating any such proposal, the Director-General is to have regard to the following:

(a)  the desirability of protecting the full range of natural heritage and the maintenance of natural processes,

(b)  whether the proposal is consistent with the establishment of a comprehensive, adequate and representative reserve system,

(c)  the desirability of protecting cultural heritage,

(d)  providing opportunities for appropriate public appreciation and understanding, and sustainable visitor or tourist use and enjoyment, of land reserved under this Act,

(e)  the opportunities for promoting the integration of the management of natural and cultural values,

(f)  the desirability of protecting wilderness values,

(g)  the objects of this Act,

(h)  the desirability of protecting world heritage properties and world heritage values.

8   Miscellaneous functions of Director-General

(1)–(2A)  (Repealed)

(3)  The Director-General shall in the case of every national park, historic site, state conservation area, regional park, nature reserve, karst conservation reserve and Aboriginal area:

(a)  promote such educational activities as the Director-General considers necessary in respect thereof,

(b)  arrange for the carrying out of such works as the Director-General considers necessary for or in connection with the management and maintenance thereof, and

(c)  undertake such scientific research as the Director-General considers necessary for or in connection with the preservation, protection, management and use thereof.

(4)  The Director-General may promote such educational activities, and undertake such scientific research, in respect of Aboriginal objects and Aboriginal places as the Director-General thinks fit, either separately or in conjunction with other persons or bodies.

(4A)  The Director-General is to promote opportunities for partnerships and agreements between Aboriginal people and land owners and managers in relation to places, objects and features of significance to Aboriginal people (whether on land reserved or acquired under this Act or not).

(5)  As soon as practicable after an Aboriginal object is discovered on any land reserved under this Act, the Director-General, after such consultation with the Australian Museum Trust as appears necessary or expedient, is required to assess the scientific importance of the Aboriginal object.

(6)  The Director-General may consider and investigate proposals in relation to existing or proposed Aboriginal places, wilderness areas, wild rivers, wildlife refuges and interim protection orders.

(6A)  The Director-General may:

(a)  consider and investigate proposals in relation to existing or proposed conservation areas,

(b)  enter into negotiations on behalf of the Minister in relation to existing or proposed conservation areas, and

(c)  in the case of every conservation area, but subject to the terms of the conservation agreement concerned:

(i)  promote such educational activities as the Director-General considers necessary in respect of the area,

(ii)  arrange for the carrying out of such works as the Director-General considers necessary for or in connection with the management and maintenance of the area,

(iii)  undertake such scientific research as the Director-General considers necessary for or in connection with the preservation, protection, management and use of the area, and

(iv)  take such other action as the Director-General considers necessary for or in connection with the carrying out of directions by the Minister relating to existing or proposed conservation agreements.

(7)  The Director-General:

(a)  may promote such educational activities as the Director-General considers necessary to awaken and maintain an appreciation of the value of and the need to conserve animal and plant life, including to conserve threatened species, populations and ecological communities, and their habitats,

(b)  may enter into arrangements for the carrying out of such works as the Director-General considers necessary for or in connection with the protection and care of fauna and the protection of native plants,

(c)  may undertake such scientific research as the Director-General considers necessary for or in connection with the preservation, protection and care of fauna and the protection of native plants and other flora, either separately or in conjunction with other persons or bodies, and

(d)  shall co-operate with the trustees of any lands dedicated or reserved under the Crown Lands Consolidation Act 1913, or the Closer Settlement Acts, in connection with:

(i)  the preservation of, the protection and care of, and the promotion of the study of, fauna, and

(ii)  the protection of, and the promotion of the study of, native plants and other flora,

      and generally shall co-operate with any other persons or bodies in the establishment, care and development of areas of lands set apart for the conservation and preservation of wildlife.

(8)  The Director-General may promote such educational activities as the Director-General considers necessary for the instruction and training of ex-officio rangers, honorary rangers and prospective honorary rangers.

(9)  Without affecting the generality of any other provision of this Act conferring powers on the Director-General, the Director-General may make and enter into contracts with any person for the carrying out of works or the performance of services or the supply of goods or materials in connection with the exercise or performance by the Director-General or the Service of the Director-General’s or its responsibilities, powers, authorities, duties or functions conferred or imposed by or under this or any other Act.

(10)  The Director-General shall, in the exercise and discharge of the powers, authorities, duties and functions conferred or imposed on the Director-General by or under this or any other Act, be subject to the control and direction of the Minister.

(11), (12)  (Repealed)

9   Audit and compliance

(1)  The Minister is to establish an Audit and Compliance Committee to oversee the compliance of the Director-General with his or her obligations under this or any other Act.

(2)  The Minister may also request the Audit and Compliance Committee to oversee the investigation of any matter relating to the Director-General’s obligations under this or any other Act.

(2A)  The Audit and Compliance Committee has such other functions as may be conferred or imposed on it by this or any other Act.

(3)  The Audit and Compliance Committee may request the Director-General to provide any document or information in the Director-General’s possession to assist the Committee in the exercise of its functions. The Director-General must, unless the Minister directs otherwise, provide such documents or information to the Committee.

(4)  The members of the Committee are to comprise the Director-General (or the Director-General’s delegate) and the following members appointed by the Minister:

(a)  1 member of the Council,

(b)  (Repealed)

(c)  1 member with expertise in the protection of natural or cultural heritage who is not a member of the Public Service,

(d)  1 member with scientific qualifications and expertise in nature conservation, not being an officer of the Service,

(e)  1 member with legal or financial experience and expertise, not being a member of the Public Service,

(f)  2 officers of the Service.

(5)  The members of the Committee referred to in subsection (4) (a), (c), (d) and (e) are entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the member.

(6)  An appointed member of the Committee holds office for such period, and on such terms, as are specified in the member’s instrument of appointment, but is eligible (if otherwise qualified) for re-appointment.

(7)  The Audit and Compliance Committee is to report to the Minister at least every 2 years from the commencement of this section.

10   (Repealed)

11   Use of services of personnel of public authorities

(1)  The Minister or the Director-General may, with the approval of the Minister administering the Department concerned, on such terms as may be arranged, make use of the services of any of the officers or employees of any Government Department.

(2)  The Minister or the Director-General may, with the approval of the statutory corporation or council concerned, on such terms as may be arranged, make use of the services of any of the officers, employees or servants of a statutory corporation or of a council or county council under the Local Government Act 1993.

(3)  (Repealed)

(4)  The Minister or the Director-General may, with the approval of the trustees of any state conservation area, on such terms as may be arranged, make use of the services of any of the officers, employees or servants of those trustees.

(5)  The services of any person may only be used under this section for the purposes of the national parks legislation.

12   Powers and functions of Service

The Service is to carry out such works and activities as the Minister may direct, either generally or in a particular case, in relation to the following:

(a)  the conservation and protection of land reserved under this Act or acquired for reservation under this Act and of land for which the National Parks and Wildlife Reserve Trust is the trustee,

(b)  the conservation and protection of wildlife (including threatened species, populations and ecological communities, and their habitats),

(c)  the conservation and protection of wilderness areas and wild rivers,

(d)  the identification, conservation and protection of, and prevention of damage to, Aboriginal objects and Aboriginal places,

(e)  conservation agreements and conservation areas,

(f)  the provision of facilities and opportunities for sustainable visitor or tourist use and enjoyment on land reserved under this Act,

(g)  the identification and protection of buildings, places and objects of non-Aboriginal cultural values on land reserved under this Act,

(h)  the conduct of research into and the monitoring of any of the matters referred to in paragraphs (a)–(e),

(i)  the undertaking of public education in relation to any of the matters referred to in paragraphs (a)–(e).

Division 2

13–15 (Repealed)

Division 3 Ex-officio and honorary rangers

16   Ex-officio rangers

(1)  Unless removed from office under this Division, each police officer, each authorised officer within the meaning of the Forestry Act 2012 and each fisheries officer within the meaning of the Fisheries Management Act 1994 shall, by virtue of his or her office, be a ranger.

(2)  (Repealed)

17   Honorary rangers

(1)  The Director-General may, by instrument in writing, appoint honorary rangers.

(2)  Where the term for which an honorary ranger is to hold office is specified in the instrument of the honorary ranger’s appointment, the honorary ranger shall, unless he or she is sooner removed from office under this Division, cease to hold office upon the expiration of that term.

(3)  An honorary ranger shall, unless the honorary ranger is sooner removed from office under this Division, cease to hold office if the honorary ranger resigns the office by instrument in writing addressed to the Director-General.

18   Removal or suspension of ex-officio and honorary rangers

(1)  The Director-General may, by instrument in writing, remove or suspend from office any ex-officio ranger or honorary ranger.

(2)  An ex-officio ranger or honorary ranger who is suspended from office under this section shall not exercise any of the powers, authorities, duties and functions of an ex-officio ranger or honorary ranger, as the case may be, during the period of his or her suspension.

(3)  The Director-General may, by instrument in writing, reinstate any ex-officio ranger or honorary ranger suspended from office under this section.

19   Powers and functions of ex-officio rangers

(1)  In addition to any other powers, authorities, duties and functions conferred or imposed upon an ex-officio ranger by or under this or any other Act, an ex-officio ranger shall have and may exercise and perform such of the powers, authorities, duties and functions as are conferred or imposed by or under this Act, the Wilderness Act 1987 or the Threatened Species Conservation Act 1995 on officers of the Service and as are specified or described in the regulations for the purposes of this subsection, but subject to such limitations and restrictions (if any) as are specified or described therein.

(2)  Without affecting the generality of section 156 (2), a regulation made in relation to any matter referred to in subsection (1) may apply generally or to any ex-officio ranger or class of ex-officio rangers specified or described therein.

20   Powers and functions of honorary rangers

In addition to any other powers, authorities, duties and functions conferred or imposed upon an honorary ranger by or under this or any other Act, an honorary ranger shall have and may exercise and perform such of the powers, authorities, duties and functions as are conferred or imposed by or under this Act, the Wilderness Act 1987 or the Threatened Species Conservation Act 1995 on officers of the Service and as are specified or described in the instrument of his or her appointment, but subject to such limitations and restrictions (if any) as are specified or described therein.

Division 4 Delegation

21   Delegation

(1)  The Minister may delegate the exercise of any function of the Minister under this Act (other than this power of delegation) to:

(a)  the Director-General, or

(b)  a member of staff of the Department, or

(c)  a board of management, or

(c1)  a state conservation area trust or a regional park trust, or

(c2)  the Chairperson of the Environment Protection Authority, or

(c3)  a member of staff of the Office of the Environment Protection Authority, or

(d)  any person, or any class of persons, authorised for the purposes of this subsection by the regulations.

(2)  The Director-General may delegate the exercise of any function of the Director-General under this Act (other than this power of delegation) to:

(a)  a member of staff of the Department, or

(b)  a board of management, or

(b1)  the Chairperson of the Environment Protection Authority, or

(b2)  a member of staff of the Office of the Environment Protection Authority, or

(c)  any person, or any class of persons, authorised for the purposes of this subsection by the regulations.

(3)  The power to delegate under subsection (1) or (2) extends to the following functions of the Minister or the Director-General, as the case may be:

(a)  functions conferred or imposed by Acts that substantially provide for the reservation of land under this Act, or the vesting of land in the Minister for the purposes of Part 11 (for example, the Brigalow and Nandewar Community Conservation Area Act 2005, the National Park Estate (Reservations) Act 2002 and the National Park Estate (Southern Region Reservations) Act 2000),

(b)  functions conferred or imposed by Acts, that are exercisable:

(i)  by the Minister as owner or occupier of land, being land acquired, or the subject of other dealings, by the Minister (whether on behalf of Her Majesty or on the Minister’s own behalf) under Part 11, or

(ii)  by the Director-General as an occupier of land, being land of which the Director-General has care, control and management under this Act,

(c)  functions conferred or imposed:

(i)  on the Minister by clause 9 (2) or 10 (2) of Schedule 7A to the Crown Lands (Continued Tenures) Act 1989, or

(ii)  on the Director-General by section 14 (1A) of the Dividing Fences Act 1991, or

(iii)  on the Director-General (as an impounding authority) by the Impounding Act 1993 (other than by section 26 (1)), or

(iv)  on the Director-General by section 36A (3) (d) (ii), 36B (4) (d) (ii) or 36D (3) (d) (ii) of the Local Government Act 1993, or

(v)  on the Director-General by section 15 (4) or (5) of the Plantations and Reafforestation Act 1999, or

(vi)  on the Director-General under the Public Health Act 2010 in relation to burials on land reserved or acquired under this Act, or

(vii)  on the Director-General by section 47 (1) (d) or 100K (1) (b) of the Rural Fires Act 1997, or

(viii)  on the Director-General by section 25 (2) of the State Records Act 1998, or

(ix)  on the Director-General (as an enforcement agency) by or under the Food Act 2003.

Part 3 Council and committees

Division 1 National Parks and Wildlife Advisory Council

22   The Council

(1)  There shall be a National Parks and Wildlife Advisory Council.

(2)  Schedule 7 has effect.

23   Functions and duties of Council

(1)  The Council has the following functions:

(a)  to provide advice to the Minister and the Director-General on:

(i)  strategies for attaining the objects of this Act, and

(ii)  the development, implementation and review of the policies and plans of the Service directed towards achieving those objects, and

(iii)  strategies for promoting, consistent with this Act, the conservation of natural and cultural heritage outside the reserve system, and

(iv)  the care, control and management of areas reserved under this Act and the development, implementation, review, amendment and alteration of plans of management for those areas, and

(v)  the preservation and protection of wildlife, and

(vi)  conservation agreements and conservation areas, and

(vii)  wilderness areas and wild rivers, and

(viii)  any matter referred to the Council for advice under this Act or by the Minister or the Director-General or that the Council considers necessary for the administration of this Act.

(b)  to consult with the Director-General on the Service’s operations and on the administration of this Act,

(c)  such other functions as are conferred on it by or under this or any other Act.

(2)  Subject to section 8 (10), the Director-General shall furnish to the Council full information in relation to any matters arising out of the administration of this Act which the Council may require.

(3)  (Repealed)

Division 2 Advisory committees

24   Constitution of advisory committees

(1)  The Director-General is to divide the State into administrative regions and may at any time alter or abolish those administrative regions.

(2)  A regional advisory committee is to be constituted for each administrative region.

(3)  Additional advisory committees may be constituted by the Minister for particular purposes determined by the Minister.

(4)  Schedule 8 contains provisions with respect to each regional advisory committee constituted under subsection (2).

(5)  The Minister may determine the constitution and procedure of an additional advisory committee constituted under subsection (3).

25   Functions of advisory committees

(1)  A regional advisory committee has the following functions:

(a)  to provide advice to the Director-General and the Council on policies and plans for the administrative region for which it was constituted,

(b)  to provide advice to the Director-General and the Council on activities carried out or proposed to be carried out within the administrative region for which it was constituted,

(c)  to provide advice to responsible authorities within the meaning of section 71BO on draft plans of management relating to the administrative region for which it was constituted and to the Council on the implementation of such plans of management,

(d)  to provide advice to the Director-General on the implementation of plans of management relating to the administrative region for which it was constituted.

(2)  An advisory committee referred to in section 24 (3) has such advisory functions as are conferred or imposed on it by the Minister.

(3)  A regional advisory committee has no function in relation to the Community Conservation Area under the Brigalow and Nandewar Community Conservation Area Act 2005.

Note. The members of a Community Conservation Advisory Committee established under that Act are to include a member of the relevant regional advisory committee.

26   Dissolution of advisory committees

(1)  If an administrative region for which a regional advisory committee is constituted is abolished, the advisory committee is dissolved.

(2)  A person who was a member of the advisory committee immediately before its dissolution is eligible for appointment to another advisory committee constituted for an administrative region that encompasses all or any part of the former administrative region for which the dissolved committee was constituted.

Division 3 Aboriginal Cultural Heritage Advisory Committee

27   Aboriginal Cultural Heritage Advisory Committee

(1)  There is to be an Aboriginal Cultural Heritage Advisory Committee.

(2)  Schedule 9 has effect.

28   Functions of Committee

The Aboriginal Cultural Heritage Advisory Committee is to advise the Minister and the Director-General on any matter relating to the identification, assessment and management of Aboriginal cultural heritage, including providing strategic advice on the plan of management and the heritage impact permit process, whether or not the matter has been referred to the Committee by the Minister or the Director-General.

Division 4 Karst Management Advisory Committee

29   Constitution of Karst Management Advisory Committee

(1)  There is constituted by this Act the Karst Management Advisory Committee.

(2)  The Committee is to consist of:

(a)  the Chairperson of the Committee who is to be the Director-General or a member of staff of the Department nominated for the time being by the Director-General, and

(b)  9 other persons appointed by the Minister.

(3)  Of the members appointed by the Minister under subsection (2) (b):

(a)  one is to be a person who is a member of a regional advisory committee for a region that, in the opinion of the Minister, contains significant areas of karst, and

(b)  one is to be a person who has qualifications in karst or earth sciences or in a related discipline, and

(c)  one is to be a person with qualifications in geomorphology, hydrology, water management or a related discipline, and

(d)  one is to be a person with qualifications and experience in eco-tourism or recreational planning, and

(e)  one is to be a person nominated by the Australian Speleological Federation Inc, and

(f)  one is to be a person nominated by the NSW Heritage Office, and

(g)  one is to be a person nominated by the National Parks Association of NSW Inc, and

(h)  one is to be a person nominated by the New South Wales Aboriginal Land Council, and

(i)  one is to be a person nominated by the Nature Conservation Council of New South Wales.

(4)  The Chairperson of the Committee is entitled to attend and chair meetings of the Committee but is not entitled to vote at any such meeting.

(5)  Schedule 4 has effect with respect to the members and procedure of the Committee.

30   Function of Karst Management Advisory Committee

The function of the Karst Management Advisory Committee is to advise the Council on the following matters:

(a)  the conservation and management of karst environments on lands reserved, or acquired for reservation, under this Act (including matters relating to planning and policy),

(b)  any plan of management for land reserved under this Act that the Council considers contains significant karst environments, being a plan that the Council has referred to the Committee for its consideration and advice,

(c)  such other matters as are referred to the Committee by the Council, being matters relating to the administration of this Act with respect to karst environments,

(d)  the development, implementation and review of policies directed towards achieving the objects of this Act in relation to karst environments,

(e)  priorities for research relating to the management and conservation of karst environments across the State,

(f)  opportunities for sustainable visitor or tourist use and enjoyment of karst conservation reserves compatible with the reserves’ natural and cultural values,

(g)  opportunities for sustainable use (including adaptive reuse) of any buildings or structures on, or modified natural areas of, karst conservation reserves having regard to the conservation of the reserves’ natural and cultural values,

(h)  opportunities to secure funding in relation to the management and conservation of karst environments,

(i)  the protection of karst environments across the State,

(j)  assisting, supporting and promoting Government initiatives in relation to karst conservation.

Part 4 Reservation of land

Division 1 Reservation of land

30A   Governor may reserve certain land

(1)  The Governor may, by notice published in the Gazette, reserve land as any of the following or as part of any of the following:

(a)  a national park,

(b)  a historic site,

(c)  a state conservation area,

(d)  a regional park,

(e)  a karst conservation reserve,

(f)  a nature reserve,

(g)  an Aboriginal area.

(2)  The Governor may in a notice reserving land under this Division, or another notice published in the Gazette, assign a name to the reserved land or alter its name.

30B   Land that may be reserved under this Division

Land may only be reserved under this Division if it is:

(a)  Crown lands, or

(b)  lands of the Crown, or

(c)  land acquired under section 145, 146 or 148, or

(d)  land in respect of which the National Parks and Wildlife Reserve Trust is appointed trustee under section 9 of the Forestry and National Park Estate Act 1998 or under section 8 of the National Park Estate (Southern Region Reservations) Act 2000, or

(e)  crown lands reserved under the Crown Lands Acts (within the meaning of the Crown Lands Act 1989).

30C   Limitations on reservation of land as national park, historic site regional park, karst conservation reserve, nature reserve or Aboriginal area

Despite section 30B, land must not be reserved as a national park, historic site, regional park, karst conservation reserve, nature reserve or Aboriginal area:

(a)  in the case of lands of the Crown, without the concurrence in writing of the Minister or public authority in whom or which they are vested, and

(b)  in the case of Crown lands referred to in paragraph (b) of the definition of Crown lands, without the concurrence in writing of the Minister administering the Fisheries Management Act 1994, and

(c)  in the case of Crown-timber lands within the meaning of the Forestry Act 2012, without the concurrence in writing of the Minister administering that Act.

30D   Limitation on reservation of land as state conservation area

Despite section 30B, land must not be reserved as a state conservation area:

(a)  in the case of lands of the Crown, without the concurrence in writing of the Minister or public authority in whom they are vested, and

(b)  in the case of Crown lands referred to in paragraph (b) of the definition of Crown lands, without the concurrence in writing of the Minister administering the Fisheries Management Act 1994, and

(c)  in the case of Crown-timber lands within the meaning of the Forestry Act 2012, without the concurrence in writing of the Minister administering that Act, and

(d)  without the concurrence in writing of the Minister administering the Mining Act 1992 or the Minister administering the Offshore Minerals Act 1999, as the case requires.

Division 2 Management principles

30E   National parks

(1)  The purpose of reserving land as a national park is to identify, protect and conserve areas containing outstanding or representative ecosystems, natural or cultural features or landscapes or phenomena that provide opportunities for public appreciation and inspiration and sustainable visitor or tourist use and enjoyment so as to enable those areas to be managed in accordance with subsection (2).

(2)  A national park is to be managed in accordance with the following principles:

(a)  the conservation of biodiversity, the maintenance of ecosystem function, the protection of geological and geomorphological features and natural phenomena and the maintenance of natural landscapes,

(b)  the conservation of places, objects, features and landscapes of cultural value,

(c)  the protection of the ecological integrity of one or more ecosystems for present and future generations,

(d)  the promotion of public appreciation and understanding of the national park’s natural and cultural values,

(e)  provision for sustainable visitor or tourist use and enjoyment that is compatible with the conservation of the national park’s natural and cultural values,

(f)  provision for the sustainable use (including adaptive reuse) of any buildings or structures or modified natural areas having regard to the conservation of the national park’s natural and cultural values,

(fa)  provision for the carrying out of development in any part of a special area (within the meaning of the Hunter Water Act 1991) in the national park that is permitted under section 185A having regard to the conservation of the national park’s natural and cultural values,

(g)  provision for appropriate research and monitoring.

30F   Historic sites

(1)  The purpose of reserving land as a historic site is to identify, protect and conserve areas associated with a person, event or historical theme, or containing a building, place, feature or landscape of cultural significance so as to enable those areas to be managed in accordance with subsection (2).

(2)  A historic site is to be managed in accordance with the following principles:

(a)  the conservation of places, objects, features and landscapes of cultural value,

(b)  the conservation of natural values,

(c)  provision for sustainable visitor or tourist use and enjoyment that is compatible with the conservation of the historic site’s natural and cultural values,

(d)  provision for the sustainable use (including adaptive reuse) of any buildings or structures or modified natural areas having regard to the conservation of the historic site’s natural and cultural values,

(da)  provision for the carrying out of development in any part of a special area (within the meaning of the Hunter Water Act 1991) in the historic site that is permitted under section 185A having regard to the conservation of the historic site’s natural and cultural values,

(e)  the promotion of public appreciation and understanding of the historic site’s natural and cultural values,

(f)  provision for appropriate research and monitoring.

30G   State conservation areas

(1)  The purpose of reserving land as a state conservation area is to identify, protect and conserve areas:

(a)  that contain significant or representative ecosystems, landforms or natural phenomena or places of cultural significance, and

(b)  that are capable of providing opportunities for sustainable visitor or tourist use and enjoyment, the sustainable use of buildings and structures or research, and

(c)  that are capable of providing opportunities for uses permitted under other provisions of this Act in such areas, including uses permitted under section 47J,

      so as to enable those areas to be managed in accordance with subsection (2).

(2)  A state conservation area is to be managed in accordance with the following principles:

(a)  the conservation of biodiversity, the maintenance of ecosystem function, the protection of natural phenomena and the maintenance of natural landscapes,

(b)  the conservation of places, objects and features of cultural value,

(c)  provision for the undertaking of uses permitted under other provisions of this Act in such areas (including uses permitted under section 47J) having regard to the conservation of the natural and cultural values of the state conservation area,

(ca)  provision for the carrying out of development in any part of a special area (within the meaning of the Hunter Water Act 1991) in the state conservation area that is permitted under section 185A having regard to the conservation of the natural and cultural values of the state conservation area,

(d)  provision for sustainable visitor or tourist use and enjoyment that is compatible with the conservation of the state conservation area’s natural and cultural values and with uses permitted under other provisions of this Act in such areas,

(e)  provision for the sustainable use (including adaptive reuse) of any buildings or structures or modified natural areas having regard to the conservation of the state conservation area’s natural and cultural values and with uses permitted under other provisions of this Act in such areas,

(f)  provision for appropriate research and monitoring.

30H   Regional parks

(1)  The purpose of reserving land as a regional park is to identify, protect and conserve areas in a natural or modified landscape that are suitable for public recreation and enjoyment so as to enable those areas to be managed in accordance with subsection (2).

(2)  A regional park is to be managed in accordance with the following principles:

(a)  the provision of opportunities, in an outdoor setting, for recreation and enjoyment in natural or modified landscapes,

(b)  the identification, interpretation, management and conservation of the park so as to maintain and enhance significant landscape values,

(c)  the conservation of natural and cultural values,

(d)  the promotion of public appreciation and understanding of the regional park’s natural and cultural values,

(e)  provision for sustainable visitor or tourist use and enjoyment that is compatible with the conservation of the regional park’s natural and cultural values,

(f)  provision for the sustainable use (including adaptive reuse) of any buildings or structures or modified natural areas having regard to the conservation of the regional park’s natural and cultural values,

(g)  provision for the carrying out of development in any part of a special area (within the meaning of the Hunter Water Act 1991) in the regional park that is permitted under section 185A having regard to the conservation of the regional park’s natural and cultural values.

30I   Karst conservation reserves

(1)  The purpose of reserving land as a karst conservation reserve is to identify, protect and conserve areas, including subterranean land, containing outstanding or representative examples of karst landforms and natural phenomena so as to enable those areas to be managed in accordance with subsection (2).

(2)  A karst conservation reserve is to be managed in accordance with the following principles:

(a)  the conservation of the karst environment, including the protection of catchment values, such as hydrological processes and water quality,

(b)  the conservation of cultural values,

(c)  the protection of natural water movement and air movement regimes and processes within the karst environment,

(d)  the conservation of biodiversity, the maintenance of ecosystem function, the protection of the geological and geomorphological features and natural phenomena and the maintenance of natural landscapes, cave formations and fossil deposits,

(e)  provision for research and monitoring,

(f)  the promotion of public appreciation and understanding of the karst conservation reserve’s natural and cultural values,

(g)  provision for sustainable visitor or tourist use and enjoyment that is compatible with the karst conservation reserve’s natural and cultural values,

(h)  provision for sustainable use (including adaptive reuse) of any buildings or structures or modified natural areas having regard to the conservation of the karst conservation reserve’s natural and cultural values,

(i)  provision for the carrying out of development in any part of a special area (within the meaning of the Hunter Water Act 1991) in the karst conservation reserve that is permitted under section 185A having regard to the conservation of the karst conservation reserve’s natural and cultural values.

30J   Nature reserves

(1)  The purpose of reserving land as a nature reserve is to identify, protect and conserve areas containing outstanding, unique or representative ecosystems, species, communities or natural phenomena so as to enable those areas to be managed in accordance with subsection (2).

(2)  A nature reserve is to be managed in accordance with the following principles:

(a)  the conservation of biodiversity, the maintenance of ecosystem function, the protection of geological and geomorphological features and natural phenomena,

(b)  the conservation of places, objects, features and landscapes of cultural value,

(c)  the promotion of public appreciation, enjoyment and understanding of the nature reserve’s natural and cultural values,

(d)  provision for appropriate research and monitoring,

(e)  provision for the carrying out of development in any part of a special area (within the meaning of the Hunter Water Act 1991) in the nature reserve that is permitted under section 185A having regard to the conservation of the nature reserve’s natural and cultural values.

30K   Aboriginal areas

(1)  The purpose of reserving land as an Aboriginal area is to identify, protect and conserve areas associated with a person, event or historical theme, or containing a building, place, object, feature or landscape:

(a)  of natural or cultural significance to Aboriginal people, or

(b)  of importance in improving public understanding of Aboriginal culture and its development and transitions,

      so as to enable those areas to be managed in accordance with subsection (2).

(2)  An Aboriginal area is to be managed in accordance with the following principles:

(a)  the conservation of natural values, buildings, places, objects, features and landscapes of cultural value to Aboriginal people in accordance with the cultural values of the Aboriginal people to whose heritage the buildings, places, objects, features or landscapes belong,

(b)  the conservation of natural or other cultural values,

(c)  allowing the use of the Aboriginal area by Aboriginal people for cultural purposes,

(d)  the promotion of public understanding and appreciation of the Aboriginal area’s natural and cultural values and significance where appropriate,

(e)  provision for appropriate research and monitoring, in accordance with the cultural values of the Aboriginal people,

(f)  provision for the carrying out of development in any part of a special area (within the meaning of the Hunter Water Act 1991) in the Aboriginal area that is permitted under section 185A having regard to the conservation of the Aboriginal area’s natural and cultural values,

(g)  provision for sustainable visitor or tourist use and enjoyment that is compatible with the Aboriginal area’s natural and cultural values and the cultural values of the Aboriginal people,

(h)  provision for sustainable use (including adaptive reuse) of any buildings or structures or modified natural areas having regard to the Aboriginal area’s natural and cultural values and the cultural values of the Aboriginal people.

Division 3 National parks and historic sites

31   Care, control and management of parks and sites

(1)  The Director-General has the care, control and management of all national parks and historic sites except as provided by subsection (2).

(2)  On the establishment of a board of management for a national park or historic site reserved under Part 4A, the care, control and management of the park or site is vested in the board of management.

32   (Repealed)

33   Reservation of parks and sites

(1)–(3)  (Repealed)

(4)  On the publication in the Gazette of a notice under Division 1 reserving land as a national park or historic site:

(a)  the lands described in the notice become Crown lands to the extent to which they were not Crown lands immediately before that publication,

(b)  where a trustee of all or any part of the lands so described was holding office under any other Act immediately before that publication, the trustee shall cease to hold that office in respect of those lands or that part, as the case may be, and

(c)  the care, control and management of the lands so described shall vest in the Director-General.

(5)  On the publication of a notice under Division 1 effecting the reservation, as a particular national park or historic site, of any lands described in the notice (which lands are in this subsection referred to as the described lands):

(a)  any by-laws or rules and regulations that, immediately before that publication, applied to all of the described lands and not to any other lands:

(i)  shall continue to apply to the described lands, and

(ii)  shall be deemed to be regulations made under this Act and may be amended or repealed accordingly, and

(b)  any by-laws or rules and regulations that, immediately before that publication, applied to:

(i)  part only of the described lands, or

(ii)  all of the described lands and also to any other lands,

      shall cease to apply to the described lands.

(6)  On the publication of a notice under Division 1 effecting the reservation as part of a particular national park or historic site, of any lands described in the notice (which lands are in this subsection referred to as the described lands):

(a)  any by-laws or rules and regulations that, immediately before that publication, applied to that national park or historic site shall apply to the described lands, and

(b)  any by-laws or rules and regulations that, immediately before that publication, applied to all or any part of the described lands shall cease to apply to the described lands.

(7)  (Repealed)

(8)  To the extent to which a dedication, reservation (other than a reservation under this Division), Crown grant or vesting affects lands described in a notice under Division 1, the publication revokes the dedication, reservation, grant or vesting, and the instruments of title (if any) shall be surrendered for cancellation or notation, as the case may require.

(9)  A notice under Division 1 may relate to:

(a)  one or more national parks or one or more historic sites, or

(b)  one or more national parks and one or more historic sites.

(10)  (Repealed)

34   (Repealed)

35   Tabling of notice of reservation, and disallowance

(1)  In this section, prescribed time, in relation to a House of Parliament, means 14 sitting days of that House, whether or not they occur during the same session.

(2)  A copy of a notice published under Division 1 reserving land as a national park or historic site shall be laid before each House of Parliament within the prescribed time after publication thereof.

(3)  Where a House of Parliament passes a resolution of which notice has been given within 15 sitting days of that House after a copy of a notice has been laid before it under subsection (2) (whether or not those sitting days occur during the same session) and the resolution disallows the reservation effected by the notice of any lands as, or as part of, a particular national park or historic site:

(a)  the reservation thereupon ceases to have effect, and

(b)  those lands cease to be, or to be part of, a national park or historic site.

(4)  Where any lands cease to be, or to be part of, a national park or historic site by virtue of the disallowance of a reservation under this Division:

(a)  the Director-General shall cease to have the care, control and management of those lands,

(b)  any by-laws applicable thereto immediately before the disallowance shall cease to apply to those lands, and

(c)  those lands may be dealt with as if they had been acquired under Part 11.

(5)  (Repealed)

36   (Repealed)

37   Revocation or compulsory acquisition of park or site

(1)  Notwithstanding anything in any Act:

(a)  the reservation of lands as, or as part of, a national park or historic site shall not be revoked, or

(b)  lands within a national park or historic site shall not be compulsorily acquired,

      except by an Act of Parliament.

(1A)  Nothing in subsection (1) prevents the compulsory acquisition under this Act of lands within a national park or historic site if the reservation of the lands as, or as part of, the national park or historic site is not affected by the compulsory acquisition.

(2)  Nothing in subsection (1) prevents the withdrawal of land from or the termination of any lease, licence or occupancy in accordance with the terms and conditions thereof.

38   Limitation on use of name “national park”

The word “national” shall not be used either alone or in conjunction with other words as the name of a park within New South Wales unless the park is a national park under this Act.

39   Existing interests

(1)  In this section, existing interest means any authority, authorisation, permit, lease, licence or occupancy.

(2)  Except as provided in this Act, the reservation of lands as, or as part of, a national park or historic site does not affect:

(a)  the terms and conditions of any existing interest in respect of those lands from the Crown or the trustees, current and in force at the time of the reservation, or

(b)  the use permitted of those lands under the interest.

(3)  Subject to subsection (4), no such interest shall be renewed nor shall the term of any such interest be extended except with the approval of the Minister and subject to such conditions as the Minister determines.

(4)  The provisions of subsection (3) do not apply to any authority, lease or licence under the Mining Act 1992, the Offshore Minerals Act 1999, the Fisheries Management Act 1994 or the Petroleum (Onshore) Act 1991, or any permit or licence under the Petroleum (Offshore) Act 1982.

(5)  Upon the termination, surrender, forfeiture or determination of any existing interest (otherwise than for the purpose of renewing it or extending its term) referred to in subsection (2), the lands the subject of the interest are, to the extent to which they would not, but for this subsection, be lands reserved as part of the national park or historic site within which they are situated, hereby so reserved.

40   Restrictions on disposal of or dealing with lands within parks or sites

(1)  Notwithstanding anything in the Crown Lands Consolidation Act 1913 or any other Act, no lands within a national park or historic site shall be sold, leased or otherwise dealt with except as provided in this Act or in the Snowy Hydro Corporatisation Act 1997.

(2)  No permit to graze over any part of a travelling stock reserve or camping reserve under the care, control and management of a livestock health and pest authority, which reserve is situated within the external boundaries of a national park or historic site, shall be granted except with the concurrence in writing of the Minister.

(3)  A permit referred to in subsection (2) may be granted subject to such conditions as the Minister determines.

41   Mining

(1)  It is unlawful to prospect or mine for minerals in a national park or historic site, except as expressly authorised by an Act of Parliament.

(2)  The Mining Act 1992, the Offshore Minerals Act 1999, the Petroleum (Onshore) Act 1991 and the Petroleum (Offshore) Act 1982 do not apply to or in respect of lands within a national park or historic site.

(3)  This section does not apply to or in respect of existing interests, or the renewal or extension of the term of any such interest, as referred to in section 39.

(4)  The Minister may, subject to such terms and conditions as the Minister may determine from time to time, approve of prospecting for minerals being carried out on behalf of the Government in a national park or historic site by a person nominated by the Minister for Minerals and Energy.

(5)  Such an approval has no force unless, before the approval is granted, notice of intention to grant the approval is laid before both Houses of Parliament and:

(a)  no notice of motion that the approval not be granted is given in either House of Parliament within 15 sitting days of that House after the notice of intention was laid before it, or

(b)  if notice of such a motion is given, the motion is withdrawn, is defeated or lapses.

(6)  A certificate by the Minister to the effect that the requirements of this section have been complied with in respect of an approval specified in the certificate is conclusive evidence of compliance with those requirements.

(7)  Except as provided by this section, nothing in this section affects the right, title or interest of any person in respect of minerals in any lands within a national park or historic site.

42   Application of Forestry Act 2012

(1)  The Forestry Act 2012 does not apply to or in respect of lands within a national park or historic site.

(2)  Notwithstanding anything in subsection (1), all licences and permits under the Forestry Act 2012 affecting lands within a national park or historic site shall, unless sooner cancelled under that Act, continue in force until the expiration of the respective terms for which they were granted, and that Act shall continue to apply to and in respect of those licences and permits until they respectively expire or are cancelled.

43   Application of Soil Conservation Act 1938

The Soil Conservation Act 1938 applies to and in respect of lands within a national park or historic site, but any experimental or research work conducted pursuant to section 6 of that Act upon those lands shall be undertaken only with the concurrence of the Director-General and subject to such conditions and restrictions as the Director-General may impose.

44   Application of Fisheries Management Act 1994

(1)  Subject to subsection (2), nothing in this Act affects the operation of the Fisheries Management Act 1994 in relation to lands within a national park or historic site.

(2)  A lease under the Fisheries Management Act 1994 shall not, without the concurrence in writing of the Minister, be granted in respect of lands within a national park or historic site or in respect of any waters beneath which those lands are submerged.

45   Provisions respecting animals in parks and sites

(1)  A person shall not:

(a)  harm any animal that is within a national park or historic site, or

(b)  discharge a prohibited weapon in a national park or historic site.

(2)  A person who commits an offence arising under subsection (1) is liable to the penalty prescribed by section 175 for an offence against this Act or to imprisonment for a term not exceeding 6 months or both.

(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:

(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 or a scientific licence under section 132C, or

(b)  in pursuance of a duty imposed on the person by or under any Act.

(4)  A person, being a lessee or occupier of any lands within a national park or historic site, or a person authorised by such a lessee or occupier in that behalf, shall not be convicted of an offence arising under subsection (1) in respect of the harming of any animal (other than fauna or an animal of a threatened species) that is within those lands, other than fauna.

(5)  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).

(6)  This section does not prevent:

(a)  an Aboriginal owner on whose behalf the lands of a national park or historic site are held by one or more Aboriginal Land Councils in accordance with Part 4A, or

(b)  any other Aboriginal person who has the consent of the Aboriginal owner board members,

      from harming an animal within the park or site for domestic purposes or for ceremonial or cultural purposes (other than an animal of a threatened species or an animal protected by the plan of management for the park or site).

46   Transfer of rights, liabilities and property

(1)  Where upon the taking effect of a notice under Division 1 any persons cease to hold office as trustees of lands reserved as, or as part of, a national park or historic site and the care, control and management of the park or site are vested in the Director-General, the following provisions have effect:

(a)  all property and all right and interest therein (in this section referred to as the trust property) and all management and control of anything which immediately before that notice took effect was vested in or belonged to the trustees and was held or used by them for or in connection with the park or site shall vest in and belong to the Director-General,

(b)  all money and liquidated and unliquidated claims that, immediately before that notice took effect, were payable to or recoverable by the trustees or their predecessors in relation to the park or site or the trust property or any part thereof shall be money and liquidated and unliquidated claims payable to or recoverable by the Director-General,

(c)  all proceedings pending immediately before that notice took effect at the suit of the trustees in relation to the park or site or the trust property or any part thereof shall be deemed to be proceedings pending at the suit of the Director-General and all proceedings so pending at the suit of any person against the trustees shall be deemed to be proceedings pending at the suit of that person against the Director-General,

(d)  all contracts, agreements, arrangements and undertakings entered into with, and all securities lawfully given to or by, the trustees or their predecessors in relation to the park or site or the trust property or any part thereof, and in force immediately before that notice took effect, shall be deemed to be contracts, agreements, arrangements and undertakings entered into with, and securities given to or by, the Director-General,

(e)  the Director-General may, in addition to pursuing any other remedies or exercising any other powers that may be available to the Director-General, pursue the same remedies for the recovery of money and claims referred to in this subsection and for the prosecution of proceedings so referred to as the trustees or their predecessors might have done had they continued to be trustees of the park or site after that notice took effect,

(f)  the Director-General may enforce and realise any security or charge existing immediately before that notice took effect in favour of the trustees in connection with the care, control and management of the park or site, and may exercise any powers thereby conferred on the trustees as if the security or charge were a security or charge in favour of the Director-General,

(g)  all debts, money and claims, liquidated and unliquidated, that, immediately before that notice took effect, were due or payable by, or recoverable against, the trustees or their predecessors in connection with the care, control and management of the park or site or the trust property or any part thereof shall be debts due and money payable by, and claims recoverable against, the Director-General, and

(h)  all liquidated and unliquidated claims in connection with the care, control and management of the park or site for which the trustees would, but for the notice, have been liable shall be liquidated and unliquidated claims for which the Director-General shall be liable.

(2)  Where part only of the lands vested in trustees is, by a notice under Division 1, reserved as, or as part of, a national park or historic site and the care, control and management of the park or site are vested in the Director-General, the Director-General and the trustees shall, as soon as practicable after publication of that notice, arrange and agree upon a division of the assets, debts and liabilities of the trustees, so that the assets, debts and liabilities appropriate to the park or site and to the lands retained by the trustees may be determined, and if any difference arises between the Director-General and the trustees, the difference shall be determined in such manner as the Minister may direct.

(3)  (Repealed)

47   (Repealed)

Division 4 State conservation areas

47A   Definition

In this Division:

prescribed time, in relation to a House of Parliament, means 14 sitting days of that House, whether or not they occur during the same session.

47B   Reservation of state conservation areas

(1)  (Repealed)

(2)  On the publication of a notice under Division 1 reserving land as a state conservation area:

(a)  the land described in the notice becomes Crown land to the extent to which it was not Crown land immediately before that publication, and

(b)  if trustees of all or any of the land so described were holding office under any other Act in respect of the land immediately before that publication, those trustees cease to hold office in respect of that land, and

(c)  the care, control and management of the land so described vests:

(i)  in the Director-General, or

(ii)  if a state conservation area trust is established in respect of the land—in the state conservation area trust.

(3)  To the extent to which a dedication, reservation (other than a reservation under Division 1 of land as a state conservation area) or vesting affects land described in a notice published under Division 1 reserving land as a state conservation area, the publication revokes the dedication, reservation or vesting, and the instruments of title (if any) are to be surrendered for cancellation or notation.

(4)  A notice under Division 1 may be made in relation to one or more state conservation areas.

(5)  Schedule 9A (Transfer of assets, rights and liabilities) has effect.

47BA   (Repealed)

47C   Care, control and management of state conservation areas reserved under Part 4A

(1)  Despite section 47B, on the publication of a notice under Part 4A reserving land as a state conservation area, the Director-General has the care, control and management of the state conservation area until such time as a board of management is established for the state conservation area.

(2)  On the establishment of a board of management for the state conservation area, the board of management has the care, control and management of the state conservation area.

47D   Tabling of notification of reservation, and disallowance

(1)  A copy of a notice published under Division 1 reserving land as a state conservation area shall be laid before each House of Parliament within the prescribed time after publication thereof.

(2)  Where a House of Parliament passes a resolution of which notice has been given within 15 sitting days of that House after a copy of a notice has been laid before it under subsection (1) (whether or not those sitting days occur during the same session) and the resolution disallows the reservation effected by the notice of any lands as, or as part of, a particular state conservation area:

(a)  the reservation thereupon ceases to have effect, and

(b)  those lands cease to be, or to be part of, a state conservation area.

(3)  If any land ceases to be, or to be part of, a state conservation area by virtue of a disallowance of a reservation under this Division:

(a)  the Director-General, or any state conservation area trust appointed as trustee of the land, ceases to have the care, control and management of the land, and

(b)  the land may be dealt with as if it had been acquired by the Minister under Part 11.

(4)  (Repealed)

47E, 47F   (Repealed)

47G   Limitation on use of expression “state conservation area”

The expression “state conservation area” shall not be used either alone or in conjunction with other words as the name of any lands used for the purpose of public recreation and enjoyment unless the lands are within a state conservation area reserved under this Division.

47GA   State conservation area trusts for certain state conservation areas

(1)  The Minister may, by notice published in the Gazette, establish and name a state conservation area trust and appoint it as trustee of any one or more of the following state conservation areas (or as trustee of any one or more parts of one or more of the following state conservation areas):

(a)  Arakoon state conservation area,

(b)  Bents Basin state conservation area,

(c)  Cape Byron state conservation area.

(2)  A state conservation area trust established under this section is constituted by this Act as a corporation having as its corporate name the name assigned to the trust in the notice of its establishment. The Minister may, by notice published in the Gazette, change the corporate name of a state conservation area trust.

(3)  A state conservation area trust:

(a)  has the care, control and management of any state conservation area (or part of a state conservation area) of which it is appointed trustee, and

(b)  has the powers and functions conferred or imposed on it by or under this or any other Act.

(4)  If the Director-General had the care, control and management of the state conservation area immediately before the establishment of the state conservation area trust, any thing done or entered into by the Director-General in connection with the state conservation area is taken to have been done or entered into by the state conservation area trust.

(5)  If a state conservation area trust is appointed as trustee of more than one state conservation area (or more than one part of a state conservation area), a reference in this Act to the state conservation area (or part of the area) in relation to the state conservation area trust includes a reference to any one or more of the state conservation areas (or any one or more of the parts of the state conservation area) of which the state conservation area trust has been appointed as trustee.

47GB   State conservation area trust boards

(1)  There is to be a trust board established in respect of each state conservation area trust.

(2)  A trust board is to consist of:

(a)  at least 3, but no more than 7, members appointed by the Minister, and

(b)  the holder of any office, or the holders of any offices, that the Minister considers appropriate.

(3)  The affairs of a state conservation area trust are to be managed by the trust board.

(4)  A trust board is subject to the control and direction of the Director-General.

(5)  Schedule 10 has effect with respect to the members and procedure of a trust board.

47GC   (Repealed)

47GD   Reports by state conservation area trusts

(1)  A state conservation area trust must:

(a)  provide reports to the Director-General at such times, concerning such matters, and specifying such information, as may be required by the Director-General, and

(b)  keep such records as may be required by the Director-General.

(2)  A state conservation area trust must, at the request of the Director-General:

(a)  give the Director-General such information as the Director-General requires in relation to the operations of the trust, and

(b)  send to the Director-General such records kept by the state conservation area trust as the Director-General requires (including accounting records).

47GE   Inspection of state conservation area trust

(1)  The Director-General may appoint a person to inquire into, or carry out an audit of, any of the affairs of a state conservation area trust.

(2)  The appointed person may, for the purposes of the inquiry or audit:

(a)  inspect and take copies of or extracts from any records (including accounting records) of the trust, and

(b)  require any person concerned in the management of the state conservation area trust to give information and answer questions relating to the affairs of the state conservation area trust.

(3)  The power of the appointed person to inspect the records of a state conservation area trust includes the power to inspect the records of a lessee or licensee which the trust has power to inspect under the lease or licence.

(4)  A person must not:

(a)  without lawful excuse, refuse or fail to allow the appointed person access to records to which the appointed person is entitled, or

(b)  without lawful excuse, refuse or fail to give information or answer questions, as required by the appointed person, or

(c)  wilfully obstruct or delay the appointed person in the exercise of a power under this section.

Maximum penalty: 5 penalty units.

47GF   Removal of trust board members and appointment of administrator

(1)  The Minister may, by notice published in the Gazette:

(a)  remove any or all of the members of a state conservation area trust board from office, or

(b)  remove all the members of a state conservation area trust board from office and appoint a person as the administrator of the state conservation area trust concerned.

(2)  If an administrator is appointed:

(a)  the affairs of the state conservation area trust are to be managed by the administrator, and

(b)  the administrator has and may exercise all the functions of the state conservation area trust.

(3)  Subject to this Act, an administrator holds office for such period as may be specified in the administrator’s instrument of appointment.

(4)  The Minister may remove an administrator from office at any time.

(5)  An administrator is entitled to be paid such remuneration as the Minister may direct. The office of administrator is not, for the purposes of any Act, an office or place of profit under the Crown.

47GG   Dissolution of state conservation area trusts

(1)  The Minister may, by notice published in the Gazette, dissolve a state conservation area trust. A notice takes effect on the date of publication or such later date as is specified in the notice.

(2)  Schedule 9A (Transfer of assets, rights and liabilities) has effect.

47H   Existing interests

(1)  In this section, existing interest means any authority, authorisation, permit, lease, licence or occupancy.

(2)  Except as provided by this Act, the reservation of lands as, or as part of, a state conservation area does not affect:

(a)  the terms and conditions of any existing interest in respect of those lands from the Crown or the trustees, current and in force at the time of the reservation, or

(b)  the use permitted of those lands under the interest.

(3)  Subject to subsection (4), no such interest shall be renewed nor shall the term of any such interest be extended except with the approval of the Minister and subject to such conditions as the Minister determines.

(4)  The provisions of subsection (3) do not apply to any authority, lease or licence under the Mining Act 1992, the Offshore Minerals Act 1999, the Fisheries Management Act 1994 or the Petroleum (Onshore) Act 1991, or to any permit or licence under the Petroleum (Offshore) Act 1982.

(5)  Upon the termination, surrender, forfeiture or determination of any existing interest (otherwise than for the purpose of renewing it or extending its term) referred to in subsection (2), the lands the subject of the interest are, to the extent to which they would not, but for this subsection, be lands reserved as part of the state conservation area within which they are situated, hereby so reserved.

47I   Restrictions on dealing with land in state conservation areas

(1)  Despite anything in this or any other Act, land within a state conservation area is not to be dealt with except as provided under this Act.

(2)  Without limiting the generality of subsection (1), land within a state conservation area is not to be dedicated, reserved or otherwise dealt with under Part 5 of the Crown Lands Act 1989.

47J   Provisions relating to mining

(1)  In this section, mining interest means:

(a)  any mining lease under the Mining Act 1992, or

(b)  any mining licence under the Offshore Minerals Act 1999, or

(c)  any lease under the Petroleum (Onshore) Act 1991.

(2)  Subject to this section, the Mining Act 1992, the Offshore Minerals Act 1999, the Petroleum (Onshore) Act 1991 and the Petroleum (Offshore) Act 1982 apply, at any time, to lands within a state conservation area to the extent to which those Acts are in force at that time.

(3)  A mining interest shall not be granted in respect of lands within a state conservation area without the concurrence in writing of the Minister.

(4)  A renewal of, or extension of the term of, a mining interest in respect of lands within a state conservation area (other than an existing interest referred to in section 47H) shall not be granted under the Mining Act 1992, the Offshore Minerals Act 1999 or the Petroleum (Onshore) Act 1991 without the concurrence in writing of the Minister.

(5)  Except as provided in this section, nothing in this Division affects the right, title or interest of any person (other than a person who is or was trustee of the lands comprised in a state conservation area) in respect of minerals in any such lands.

(6)  A mineral claim must not be granted under the Mining Act 1992 over any lands within a state conservation area.

(7)  Where a provision of the Mining Act 1992 or the Offshore Minerals Act 1999 prevents, or has the effect of preventing, a person from exercising in lands within a state conservation area any of the rights conferred by either of those Acts or by an instrument under either of those Acts, except with the consent or an authorisation of the Minister for the time being administering the Mining Act 1992 or the Offshore Minerals Act 1999, as the case requires, that Minister shall not, in the case of any such lands, give consent or an authorisation under that provision without the approval of:

(a)  where the lands are not within an irrigation area or special land district as defined in the Crown Lands Act 1989—the Minister, or

(b)  where the lands are within such an irrigation area—the Minister for the time being administering the Water Management Act 2000, or

(c)  where the lands are within such a special land district—the Minister for the time being administering the Crown Lands Act 1989 obtained after consultation with the Minister administering the Water Management Act 2000.

47K   Application of certain other provisions

The provisions of sections 42, 43 and 44 apply to and in respect of a state conservation area in the same way as they apply to and in respect of a national park or historic site.

47L   Revocation or compulsory acquisition of state conservation areas

(1)  Despite anything in this or any other Act:

(a)  the reservation of land as, or as part of, a state conservation area is not to be revoked, or

(b)  land within a state conservation area is not to be appropriated or resumed, except by an Act of Parliament.

(2)  Nothing in subsection (1) prevents:

(a)  the compulsory acquisition under this Act of land within a state conservation area if the reservation of the land as, or as part of, the state conservation area is not affected by the compulsory acquisition, or

(b)  the withdrawal of land from, or the termination of, any lease, licence or occupancy in accordance with its terms and conditions, or

(c)  the revocation of the reservation of land as a state conservation area in accordance with section 47MA.

47M   Review of classification as state conservation area

(1)  The Minister is to review, every 5 years after the commencement of this section, the status of land within state conservation areas.

(2)  The review is to give reasons as to why each area of land within a state conservation area should or should not be reserved as a national park or nature reserve under section 47MA.

(3)  The results of the review are to be made available for public inspection free of charge, during ordinary office hours, at the head office of the Service and are to be published on the Internet by means of the website of the Service.

(4)  The review is to be undertaken in consultation with the Minister administering the Mining Act 1992.

47MA   Reservation of land in state conservation area as national park or nature reserve

(1)  The Governor may, by notice published in the Gazette, revoke the reservation of any land as a state conservation area or part of a state conservation area and reserve the land as a national park or nature reserve or as part of a national park or nature reserve.

(2)  The Governor may take action under subsection (1) only with the concurrence in writing of the Minister administering the Mining Act 1992.

(3)  Land that is the subject of an authority, lease, licence or permit under the Mining Act 1992, the Petroleum (Onshore) Act 1991, the Offshore Minerals Act 1999 or the Petroleum (Offshore) Act 1982 must not be reserved under this section as a national park or nature reserve, or as a part of a national park or nature reserve, during the term of that authority, lease, licence or permit (including any renewal).

(4)  A plan of management that applied to land immediately before its reservation as a national park or nature reserve (or as part of a national park or nature reserve) under subsection (1) continues to apply, to the extent to which it applied previously, to the land before that reservation, as a plan of management for the purposes of this Act.

(5)  A plan of management to which subsection (4) applies may be amended, altered, cancelled or substituted in accordance with Part 5.

47N   Special provisions relating to certain state recreation areas

(1)  This section applies to the following state recreation areas:

Copeton,

Lake Keepit,

Burrendong,

Lake Glenbawn,

Wyangala,

Grabine,

Killalea,

Burrinjuck (but only in respect of such part of the Burrinjuck state recreation area as is specified by the Director-General by notice published in the Gazette on or before the commencement of this section).

(2)  On the commencement of this section:

(a)  the reservation under this Act of land as a state recreation area to which this section applies is, by this section, revoked, and

(b)  the land comprising each of those former state recreation areas is taken to be land dedicated for the purposes of public recreation under Part 5 of the Crown Lands Act 1989, and

(c)  a reserve trust is taken to be established under Part 5 of the Crown Lands Act 1989 in respect of the land so dedicated, and

(d)  the trustees (if any) of each of those former state recreation areas are taken to be appointed as the members of a trust board for the reserve trust.

(3)  This section has effect despite section 47L.

(4)  Schedule 9A (Transfer of assets, rights and liabilities) has effect.

Division 5 Regional parks

47O   Reservation of regional parks

(1), (2)  (Repealed)

(3)  On the publication of a notice under Division 1 reserving land as a regional park:

(a)  the land described in the notice becomes Crown land to the extent to which it was not Crown land immediately before that publication, and

(b)  if trustees of all or any of the land so described were holding office under any other Act in respect of the land immediately before that publication, those trustees cease to hold office in respect of that land, and

(c)  the care, control and management of the land so described vests:

(i)  in the Director-General, or

(ii)  if a regional park trust is established in respect of the land—in the regional park trust, or

(iii)  if a local council has, with the concurrence of the council, been nominated by the Minister in the notice—in the council.

(4)  To the extent to which a dedication, reservation (other than a reservation under Division 1 reserving land as a regional park) or vesting affects land described in a notice published under Division 1 reserving land as a regional park, the publication revokes the dedication, reservation or vesting, and the instruments of title (if any) are to be surrendered for cancellation or notation.

(5)  A notice under Division 1 reserving land as a regional park may be made in relation to one or more regional parks.

(6)  Schedule 9A (Transfer of assets, rights and liabilities) has effect.

(7)  A local council may not be nominated by the Minister under subsection (3) (c) (iii) in respect of a regional park if the regional park is wholly or partly within the area of another local council, except with the consent of the other council.

(8)  A local council nominated under subsection (3) (c) (iii) by the Minister:

(a)  has, subject to this Act, the care, control and management of the regional park concerned, and

(b)  has the powers and functions conferred or imposed on it by or under this Act, and

(c)  is, in the exercise of such powers and functions, subject to the control and direction of the Minister.

47OA   Care, control and management of regional parks reserved under Part 4A

(1)  Despite section 47O, on the publication of a notice under Part 4A reserving lands as a regional park, the Director-General has the care, control and management of the regional park until such time as a board of management is established for the regional park.

(2)  On the establishment of a board of management for the regional park, the board of management has the care, control and management of the regional park.

47P   Name of regional park and limitation on use of term “regional park”

(1)  (Repealed)

(2)  The term regional park is not to be used either alone or in conjunction with other words as the name of any land used for the purpose of public recreation and enjoyment unless the land is within a regional park reserved under this Division.

47Q   (Repealed)

47R   Tabling of notice of reservation, and disallowance

(1)  A copy of a notice published under Division 1 reserving land as a regional park must be laid before each House of Parliament within 14 sitting days (whether or not they occur in the same session) after publication of the notice.

(2)  If either House of Parliament passes a resolution of which notice has been given within 15 sitting days after such a copy has been laid before it (whether or not those sitting days occur in the same session) and the resolution disallows the reservation effected by the notice of any land as a particular regional park:

(a)  the reservation ceases to have effect, and

(b)  the land ceases to be, or ceases to be part of, a regional park.

(3)  If any land ceases to be, or to be part of, a regional park by virtue of the disallowance of a reservation under Division 1:

(a)  the Director-General, or any regional park trust appointed as trustee of the land, or any local council nominated by the Minister under section 47O, ceases to have the care, control and management of the land, and

(b)  the land may be dealt with as if it had been acquired under Part 11.

47S   Regional park trusts

(1)  The Minister may, by notice published in the Gazette, establish and name a regional park trust and appoint it as trustee of any one or more specified regional parks or any one or more parts of a regional park.

(2)  A regional park trust established under this section is constituted by this Act as a corporation having as its corporate name the name assigned to the trust in the notice of its establishment. The Minister may, by notice published in the Gazette, change the corporate name of a regional park trust.

(3)  A regional park trust:

(a)  has the care, control and management of any regional park (or part of a regional park) of which it is appointed trustee, and

(b)  has the powers and functions conferred or imposed on it by or under this or any other Act.

(4)  If the Director-General had the care, control and management of the regional park immediately before the establishment of the regional park trust, any thing done or entered into by the Director-General in connection with the regional park is taken to have been done or entered into by the regional park trust.

(5)  If a regional park trust is appointed as trustee of more than one regional park (or more than one part of a regional park), a reference in this Act to the regional park (or part of the park) in relation to the regional park trust includes a reference to any one or more of the regional parks (or any one or more of the parts of the regional park) of which the trust has been appointed as trustee.

47T   Regional park trust boards

(1)  There is to be a trust board established in respect of each regional park trust.

(2)  A regional park trust board is to consist of:

(a)  at least 3, but no more than 7, members appointed by the Minister, and

(b)  the holder of any office, or the holders of any offices, that the Minister considers appropriate.

(3)  The affairs of a regional park trust are to be managed by the trust board.

(4)  A trust board is subject to the control and direction of the Director-General.

(5)  Schedule 10 has effect with respect to the members and procedure of a trust board.

47U   (Repealed)

47V   Reports

(1)  A regional park trust must:

(a)  provide reports to the Director-General at such times, concerning such matters, and specifying such information, as may be required by the Director-General, and

(b)  keep such records as may be required by the Director-General.

(2)  A regional park trust must, at the request of the Director-General:

(a)  give the Director-General such information as the Director-General requires in relation to the operations of the trust, and

(b)  send to the Director-General such records kept by the regional park trust as the Director-General requires (including accounting records).

(3)  If a local council has the care, control and management of a regional park, the council must:

(a)  provide reports to the Minister at such times, concerning such matters, and specifying such information, as may be required by the Minister, and

(b)  keep such records as may be required by the Minister, and

(c)  at the Minister’s request, give the Minister such information as the Minister requires in relation to the care, control and management of the park by the council, and

(d)  at the Minister’s request, send to the Minister such records kept by the council in relation to the care, control and management of the park as the Minister requires.

47W   Inspection and audit

(1)  The Director-General may appoint a person to inquire into, or carry out an audit of, any of the affairs of a regional park trust.

(2)  If a local council has the care, control and management of a regional park, the Minister may appoint a person to inquire into, or carry out an audit of, any of the affairs of the council in relation to the park.

(3)  The appointed person may, for the purposes of the inquiry or audit:

(a)  inspect and take copies of or extracts from any records (including accounting records) of the trust or the local council in respect of the regional park, and

(b)  require any person concerned in the management of the regional park trust or the local council to give information and answer questions relating to the affairs of the regional park trust or the local council in respect of the regional park.

(4)  The power of the appointed person to inspect the records of a regional park trust or local council includes the power to inspect the records of a lessee or licensee which the trust or council has power to inspect under the lease or licence.

(5)  A person must not:

(a)  without lawful excuse, refuse or fail to allow the appointed person access to records to which the appointed person is entitled, or

(b)  without lawful excuse, refuse or fail to give information or answer questions, as required by the appointed person, or

(c)  wilfully obstruct or delay the appointed person in the exercise of a power under this section.

Maximum penalty: 5 penalty units.

47X   Removal of trust board members or local council and appointment of administrator

(1)  The Minister may, by notice published in the Gazette:

(a)  remove any or all of the members of a regional park trust board from office, or

(b)  remove all the members of a regional park trust board from office and appoint a person as the administrator of the regional park trust concerned.

(2)  If an administrator is appointed:

(a)  the affairs of the regional park trust are to be managed by the administrator, and

(b)  the administrator has and may exercise all the functions of the regional park trust.

(3)  The Minister may, by notice published in the Gazette, appoint an administrator:

(a)  to have the care, control and management of a regional park instead of a local council as nominated by the Minister under section 47O (3) (c) (iii), and

(b)  to exercise any of the functions of the local council in respect of the regional park.

(4)  Subject to this Act, an administrator holds office for such period as may be specified in the administrator’s instrument of appointment.

(5)  The Minister may remove an administrator from office at any time.

(6)  An administrator is entitled to be paid such remuneration as the Minister may direct. The office of an administrator is not, for the purposes of any Act, an office or place of profit under the Crown.

47Y   Dissolution of regional park trusts and revocation of nomination of local councils

(1)  The Minister may, by notice published in the Gazette, dissolve a regional park trust. A notice takes effect on the date of publication or such later date as is specified in the notice.

(2)  On such a notice taking effect, Schedule 9A (Transfer of assets, rights and liabilities) has effect.

(3)  The Minister may, by notice published in the Gazette, revoke the nomination of a local council under section 47O (3) (c) (iii) and transfer the care, control and management of the regional park concerned to the Director-General. Any such notice takes effect on the date of publication or such later date as is specified in the notice.

(4)  On the date that a notice under subsection (3) takes effect, the care, control and management of the regional park concerned is vested in the Director-General and the following provisions have effect:

(a)  any act, matter or thing done or omitted to be done before that date by, to or in respect of the local council in relation to the park is (to the extent that that act, matter or thing has any force or effect) taken to have been done or omitted by, to or in respect of the Director-General, and

(b)  a reference in any instrument of any kind to the local council (in so far as it relates to the care, control and management of the park) is to be read as a reference to the Director-General.

47Z   Restrictions on dealing with land within regional parks

(1)  Despite anything in this or any other Act, land within a regional park is not to be dealt with except as provided under this Act.

(2)  Without limiting the generality of subsection (1), land within a regional park is not to be dedicated, reserved or otherwise dealt with under Part 5 of the Crown Lands Act 1989.

47ZA   Application of certain provisions to regional parks

The provisions of sections 39, 41, 42, 43 and 44 apply to and in respect of a regional park in the same way as they apply to and in respect of a national park or historic site.

47ZB   Revocation of regional park

(1)  Despite anything in this or any other Act:

(a)  the reservation of land as (or as part of) a regional park is not to be revoked, and

(b)  land within a regional park is not to be appropriated or resumed,

      except by an Act of Parliament.

(2)  Nothing in subsection (1) prevents:

(a)  the compulsory acquisition under this Act of land within a regional park if the reservation of the land as, or as part of, the regional park is not affected by the compulsory acquisition, or

(b)  the withdrawal of land from, or the termination of, any lease, licence or occupancy in accordance with its terms and conditions.

Division 6 Nature reserves

48   Care, control and management of nature reserves

(1)  The Director-General has the care, control and management of all nature reserves except as provided by subsection (2).

(2)  On the establishment of a board of management for a nature reserve reserved under Part 4A, the care, control and management of the reserve is vested in the board of management.

49   Reservation of nature reserves

(1)–(3)  (Repealed)

(4)  On the publication of a notice under Division 1 reserving land as a nature reserve:

(a)  the lands described in the notice become Crown lands to the extent to which they were not Crown lands immediately before that publication,

(b)  where a trustee of all or any part of the lands so described was holding office under any other Act immediately before that publication, the trustee shall cease to hold that office in respect of those lands or that part, as the case may be, and

(c)  the care, control and management of the lands so described shall vest in the Director-General for the purposes of this Act.

(5)  To the extent to which a dedication, reservation (other than a reservation of land as a nature reserve under Division 1), Crown grant or vesting affects lands described in a notice published under Division 1 reserving land as a nature reserve, the publication revokes the dedication, reservation, grant or vesting, and the instruments of title (if any) shall be surrendered for cancellation or notation, as the case may require.

(6)  A notice under Division 1 may be made in relation to one or more nature reserves.

50, 51   (Repealed)

52   Revocation or compulsory acquisition of nature reserve

(1)  Notwithstanding anything in any Act:

(a)  the dedication of lands as, or as part of, a nature reserve shall not be revoked, or

(b)  lands within a nature reserve shall not be compulsorily acquired,

      except by an Act of Parliament.

(1A)  Nothing in subsection (1) prevents the compulsory acquisition under this Act of lands within a nature reserve if the dedication of the lands as, or as part of, the nature reserve is not affected by the compulsory acquisition.

(2)  Nothing in subsection (1) prevents the withdrawal of land from or the termination of any lease, licence or occupancy in accordance with the terms and conditions thereof.

53   Restrictions on disposal of or dealing with lands within nature reserves

(1)  Notwithstanding anything in the Crown Lands Consolidation Act 1913 or any other Act, no lands within a nature reserve shall be sold, leased or otherwise dealt with except as provided in this Act or in the Snowy Hydro Corporatisation Act 1997.

(2)  No permit to graze over any part of a travelling stock reserve or camping reserve under the control of a livestock health and pest authority, which reserve is situated within the external boundaries of a nature reserve, shall be granted except with the concurrence in writing of the Director-General.

(3)  A permit referred to in subsection (2) may be granted subject to such conditions as the Director-General determines.

54   Mining

The provisions of section 41 apply to and in respect of a nature reserve in the same way as they apply to and in respect of a national park or historic site.

55   Application of Forestry Act 2012

(1)  The Forestry Act 2012 does not apply to or in respect of lands within a nature reserve.

(2)  Notwithstanding anything in subsection (1), all licences and permits under the Forestry Act 2012 affecting lands within a nature reserve shall, unless sooner cancelled under that Act, continue in force until the expiration of the respective terms for which they were granted, and that Act shall continue to apply to and in respect of those licences and permits until they respectively expire or are cancelled.

56   Provisions respecting animals in nature reserves

(1)  A person shall not:

(a)  harm any animal that is within a nature reserve,

(b)  use any animal, firearm, explosive, net, trap, hunting device or instrument or means whatever for the purpose of harming any animal that is within a nature reserve,

(c)  carry, discharge or have in the person’s possession any prohibited weapon in a nature reserve,

(d)  carry or have in the person’s possession any explosive, net, trap or hunting device in a nature reserve, or

(e)  be accompanied by a dog in a nature reserve.

(2)  A person who commits an offence arising under subsection (1) is liable to the penalty prescribed by section 175 for an offence against this Act or to imprisonment for a term not exceeding 6 months or both.

(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, or that the state of affairs constituting the offence existed:

(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 or a scientific licence under section 132C, or

(b)  in pursuance of a duty imposed on the person by or under any Act.

(4)  A person shall not be convicted of an offence arising under subsection (1) in respect of the carrying or having in the person’s possession of a net if the person proves that the net was carried or in the person’s possession for the purpose only of taking, or attempting to take, fish from any waters.

(5)  A person, being a lessee or occupier of any lands within a nature reserve, or a person authorised by such a lessee or occupier in that behalf, shall not be convicted of an offence arising under subsection (1) in respect of the harming of an animal that is within those lands (other than fauna or an animal of a threatened species).

(6)  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).

(7)  Without limiting subsection (6), this section does not prevent:

(a)  an Aboriginal owner on whose behalf the lands of a nature reserve are held by one or more Aboriginal Land Councils in accordance with Part 4A, or

(b)  any other Aboriginal person who has the consent of the Aboriginal owner board members,

      from harming an animal within the reserve for domestic purposes or for ceremonial or cultural purposes (other than an animal of a threatened species or an animal protected by the plan of management for the reserve).

57   Restrictions as to timber, vegetation, plants etc in nature reserves

(1)  Subject to section 55 (2), a person shall not fell, cut, destroy, injure, pick, remove or set fire to any tree, timber, plant, flower or vegetation in a nature reserve.

(2)  A person shall not have in the person’s possession any native plant within a nature reserve.

(3)  A person who commits an offence arising under subsection (1) or (2) is liable to the penalty prescribed by section 175 for an offence against this Act or to imprisonment for a term not exceeding 6 months or both.

(4)  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, or the state of affairs constituting the offence existed:

(a)  under and in accordance with or by virtue of the authority conferred by a licence issued under Division 3 of Part 9 or section 132C, or

(b)  in pursuance of a duty imposed on the person by or under any Act.

(5)  A person, being a lessee or occupier of any lands within a nature reserve, or a person authorised by such a lessee or occupier in that behalf, shall not be convicted of an offence arising under subsection (1) or (2) in respect of the felling, cutting, destroying, injuring, picking, removing of, or setting fire to any tree, timber, plant, flower or vegetation, or the possession of a native plant (not being a plant of a threatened species), that is or was growing within those lands.

(6)  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.

(7)  Without limiting subsection (6), this section does not prevent:

(a)  an Aboriginal owner on whose behalf the lands of a nature reserve are held by one or more Aboriginal Land Councils in accordance with Part 4A, or

(b)  any other Aboriginal person who has the consent of the Aboriginal owner board members,

      from picking within the reserve any tree, timber, plant (including a native plant), flower or vegetation for food for domestic purposes or for ceremonial or cultural purposes (including a protected native plant but not including a plant of a threatened species or a plant protected by the plan of management for the reserve).

58   Application of certain provisions to nature reserves

The provisions of sections 33 (5) and (6), 35, 39, 43, 44 and 46 apply to and in respect of a nature reserve in the same way as they apply to and in respect of a national park or historic site and so apply as if a reference in those provisions to:

(a)  a notice under Division 1 reserving land as a national park or historic site were a reference to a notice under Division 1 reserving land as a nature reserve, and

(b)  a reservation of land under Division 1 as a national park or historic site were a reference to a reservation of land under that Division as a nature reserve.

58A–58J   (Repealed)

Division 7 Karst conservation reserves

58K   Reservation of karst conservation reserves

(1)–(3)  (Repealed)

(4)  On the publication of a notice under Division 1 reserving land as a karst conservation reserve:

(a)  the lands described in the notice become Crown lands to the extent to which they were not Crown lands immediately before that publication, and

(b)  if a trustee of all or any part of the lands so described was holding office under any other Act immediately before that publication, the trustee ceases to hold that office in respect of those lands or that part, as the case may be, and

(c)  the care, control and management of the lands so described vests in the Director-General for the purposes of this Act except as provided by subsection (4A).

(4A)  On the establishment of a board of management for a karst conservation reserve reserved under Part 4A, the care, control and management of the reserve is vested in the board of management.

(5)  A notice under Division 1 reserving land as a karst conservation reserve may, but need not be, restricted to lands that are wholly or predominantly subterranean lands.

(6)  To the extent to which a reservation (other than a reservation of land under Division 1 as a karst conservation reserve) or vesting affects land described in a notice published under Division 1 reserving land as a karst conservation area, the publication (unless the notice otherwise provides) revokes the reservation or vesting and the instruments of title (if any) must be surrendered for cancellation or notation, as the case requires.

58L   (Repealed)

58M   Revocation or compulsory acquisition of karst conservation reserve

(1)  Notwithstanding anything in any Act:

(a)  the reservation of lands as, or as part of, a karst conservation reserve shall not be revoked, or

(b)  lands within a karst conservation reserve shall not be compulsorily acquired,

      except by an Act of Parliament.

(1A)  Nothing in subsection (1) prevents the compulsory acquisition under this Act of lands within a karst conservation reserve if the reservation of the lands as, or as part of, the karst conservation reserve is not affected by the compulsory acquisition.

(2)  Nothing in subsection (1) prevents the withdrawal of land from or the termination of any lease, licence or occupancy in accordance with the terms and conditions thereof.

58N   Restriction on disposal of or dealing with lands within karst conservation reserves

Notwithstanding anything in the Crown Lands Act 1989 or any other Act, no lands within a karst conservation reserve shall be sold, leased or otherwise dealt with except as provided in this Act or in the Snowy Hydro Corporatisation Act 1997.

58O   Mining

The provisions of section 41 apply to and in respect of a karst conservation reserve in the same way as they apply to and in respect of a national park or historic site.

58P   Application of Forestry Act 2012

(1)  The Forestry Act 2012 does not apply to or in respect of lands within a karst conservation reserve.

(2)  Notwithstanding anything in subsection (1), all licences and permits under the Forestry Act 2012 affecting lands within a karst conservation reserve shall, unless sooner cancelled under that Act, continue in force until the expiration of the respective terms for which they were granted, and that Act shall continue to apply to and in respect of those licences and permits until they respectively expire or are cancelled.

58Q   Provisions respecting animals in karst conservation reserves

(1)  A person shall not:

(a)  harm any animal that is within a karst conservation reserve, or

(b)  use any animal, firearm, explosive, net, trap, hunting device or instrument or means whatever for the purpose of harming any animal that is within a karst conservation reserve, or

(c)  carry, discharge or be in possession of any prohibited weapon in a karst conservation reserve, or

(d)  carry or be in possession of any explosive, net, trap or hunting device in a karst conservation reserve, or

(e)  be accompanied by a dog in a karst conservation reserve.

(2)  A person who commits an offence arising under subsection (1) is liable to the penalty prescribed by section 175 for an offence against this Act or to imprisonment for a term not exceeding 6 months, or both.

(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, or that the state of affairs constituting the offence existed:

(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 or a scientific licence under section 132C, or

(b)  in pursuance of a duty imposed by or under any Act.

(4)  A person shall not be convicted of an offence arising under subsection (1) in respect of the carrying or being in possession of a net if the person proves that the net was carried or was in the person’s possession for the purpose only of taking, or attempting to take, fish from any waters.

(5)  A person, being a lessee or occupier of any lands within a karst conservation reserve, or a person authorised by such a lessee or occupier in that behalf, shall not be convicted of an offence arising under subsection (1) in respect of the harming of an animal that is within those lands (other than fauna or an animal of a threatened species).

(6)  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).

(7)  Without limiting subsection (6), this section does not prevent:

(a)  an Aboriginal owner on whose behalf the lands of a karst conservation reserve are held by one or more Aboriginal Land Councils in accordance with Part 4A, or

(b)  any other Aboriginal person who has the consent of the Aboriginal owner board members,

      from harming within the reserve an animal for domestic purposes or for ceremonial or cultural purposes (other than an animal of a threatened species or an animal protected by the plan of management for the reserve).

58R   Restrictions as to timber, vegetation, plants etc in karst conservation reserves

(1)  Subject to section 58P (2), a person shall not fell, cut, destroy, injure, pick, remove or set fire to any tree, timber, plant, flower or vegetation in a karst conservation reserve.

(2)  A person shall not be in possession of any native plant within a karst conservation reserve.

(3)  A person who commits an offence arising under subsection (1) or (2) is liable to the penalty prescribed by section 175 for an offence against this Act or to imprisonment for a term not exceeding 6 months, or both.

(4)  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, or that the state of affairs constituting the offence existed:

(a)  under and in accordance with or by virtue of the authority conferred by a licence issued under Division 3 of Part 9 or section 132C, or

(b)  in pursuance of a duty imposed by or under any Act.

(5)  A person, being a lessee or occupier of any lands within a karst conservation reserve, or a person authorised by such a lessee or occupier in that behalf, shall not be convicted of an offence arising under subsection (1) or (2) in respect of the felling, cutting, destroying, injuring, picking or removing of or setting fire to any tree, timber, plant, flower or vegetation, or the possession of a native plant (not being a plant of a threatened species), that is or was growing within those lands.

(6)  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.

(7)  Without limiting subsection (6), this section does not prevent:

(a)  an Aboriginal owner on whose behalf the lands of a karst conservation reserve are held by one or more Aboriginal Land Councils in accordance with Part 4A, or

(b)  any other Aboriginal person who has the consent of the Aboriginal owner board members,

      from picking within the reserve any tree, timber, plant (including a native plant), flower or vegetation for food for domestic purposes or for ceremonial or cultural purposes (including a protected native plant but not including a plant of a threatened species or a plant protected by the plan of management for the reserve).

58S   Application of certain provisions to karst conservation reserves

(1)  The provisions of:

(a)  section 33 (5) and (6),

(b)  section 35,

(c)  section 39,

(d)  sections 43 and 44, and

(e)  section 46,

      apply to and in respect of a karst conservation reserve in the same way as they apply to and in respect of a national park or historic site, and so apply as if a reference in those provisions to:

(f)  a notice under Division 1 reserving land as a national park or historic site were a reference to a notice under that Division reserving land as a karst conservation reserve, and

(g)  a reservation under Division 1 of land as a national park or historic site were a reference to a reservation of land under that Division as a karst conservation reserve.

(2)  (Repealed)

Division 8

58T–58ZE(Repealed)

Division 9 Wild rivers

59, 60   (Repealed)

61   Declaration of wild rivers

(1)  Subject to section 61A, the Director-General may, by notification published in the Gazette, declare any river or part of a river (when within lands reserved under this Act) to be a wild river.

(2)  The Director-General may, by further notification published in the Gazette, vary or revoke any such declaration.

(3)  The Director-General may make a declaration under subsection (1):

(a)  only with the concurrence of the Minister administering the Water Management Act 2000, if the declaration will have an impact on functions carried out under that Act, and

(b)  in respect of a river or part of a river in a state conservation area, only with the concurrence of the Minister administering the Mining Act 1992, if the declaration will have an impact on functions carried out under that Act.

(4)  The purpose of declaring a river or part of a river as a wild river is to identify, protect and conserve any water course or water course network, or any connected network of water bodies, or any part of those, of natural origin, exhibiting substantially natural flow (whether perennial, intermittent or episodic) and containing remaining examples, in a condition substantially undisturbed since European occupation of New South Wales, of:

(a)  the biological, hydrological and geomorphological processes associated with river flow, and

(b)  the biological, hydrological and geomorphological processes in those parts of the catchment with which the river is intrinsically linked,

      so as to enable that river or part to be managed in accordance with subsection (5).

(5)  A wild river is to be managed in accordance with the following principles:

(a)  the restoration (wherever possible) and maintenance of the natural biological, hydrological and geomorphological processes associated with wild rivers and their catchments, including natural flow variability,

(b)  the identification, conservation and appropriate management of Aboriginal objects and Aboriginal places.

61A   Effect of declaration of wild river

(1)  Where a plan of management is in force with respect to any river or part of a river within lands reserved under this Act, a declaration shall not be made under section 61 with respect to that river or part of that river except in accordance with the plan.

(2)  A statutory authority shall not carry out development in relation to a wild river unless it has consulted with, and considered any advice given by, the Minister in relation to the development.

(3)  In this section, statutory authority and development have the same meanings as they have in Division 12.

Division 10 Aboriginal areas

62   Reservation of Aboriginal areas

(1)–(3)  (Repealed)

(4)  Lands within an Aboriginal area shall be deemed to be reserved for the purpose of preserving, protecting and preventing damage to Aboriginal objects or Aboriginal places therein.

63   Care, control and management of Aboriginal areas

(1)  The Director-General has the care, control and management of all Aboriginal areas except as provided by subsection (2).

(2)  On the establishment of a board of management for an Aboriginal area dedicated under Part 4A, the care, control and management of the area is vested in the board of management.

64   Mining

The provisions of sections 41 and 42 apply to and in respect of an Aboriginal area in the same way as they apply to and in respect of a national park or historic site.

65, 66   (Repealed)

Division 11 Wildlife refuges

67   (Repealed)

68   Wildlife refuges

(1)  Subject to this section, the Governor may, by proclamation published in the Gazette, declare any lands described in the proclamation to be a wildlife refuge.

(2)  Lands within a wildlife refuge shall be deemed to be dedicated for the purposes of:

(a)  preserving, conserving, propagating and studying wildlife,

(b)  conserving and studying natural environments, and

(c)  creating simulated natural environments.

(3)  A proclamation under subsection (1):

(a)  shall not be made:

(i)  where the lands are unoccupied Crown lands—without the consent of the Minister administering the Crown Lands Consolidation Act 1913,

(ii)  where the lands are occupied Crown lands—without the consent of that Minister, the holder and the occupier,

(iii)  where the lands are not Crown lands and are not within a State forest—without the consent of the owner and the occupier, or

(iv)  where the lands are within a State forest—without the consent of the Forestry Corporation, and

(b)  may be revoked at any time, and may be varied or amended with the consent of, and shall be revoked at the request of, any person whose consent would, if the lands were, for the time being, not a wildlife refuge, be required for their declaration as such a refuge.

(4)  A person who is a holder or occupier of Crown lands shall be deemed, for the purposes of this section, to have given his or her consent, referred to in subsection (3), if, within thirty days of being given notice that his or her consent is sought, the person does not inform the Minister or Director-General that the person gives or withholds his or her consent.

(5)  A proclamation under this section may be made so as:

(a)  to relate to one or more wildlife refuges specified therein, and

(b)  to apply differently according to such factors as may be specified therein.

(6)  A revocation, variation or amendment referred to in subsection (3) (b) shall be effected by proclamation of the Governor published in the Gazette.

(7)  Where the consent of the Forestry Corporation is required under this section, the consent shall not be given without the approval of the Minister administering the Forestry Act 2012.

(8)  The Director-General shall forward a copy of a proclamation under this section to the Valuer-General as soon as practicable after the proclamation is published in the Gazette.

69   (Repealed)

Division 12 Conservation agreements

69A   Definitions

(1)  In this Division:

development, in relation to a conservation area, means:

(a)  the erection of a building in that area,

(b)  the carrying out of a work in, on, over or under that area,

(c)  the use of that area or of a building or work in that area,

(d)  the subdivision of that area, and

(e)  the clearing of vegetation in that area.

owner, in relation to land, includes a person who leases land under the Crown Lands Consolidation Act 1913, the Closer Settlement Acts or the Western Lands Act 1901.

statutory authority means any of the following:

(a)  a government department,

(b)  (Repealed)

(c)  a council or a county council within the meaning of the Local Government Act 1993,

(d)  any other body constituted by or under an Act.

(2)  A reference in this Division to the carrying out of development includes a reference to the erection of a building, the carrying out of a work, the use of land or of a building or work, the subdivision of land or the clearing of vegetation.

(3)  A reference in this section:

(a)  to the erection of a building includes a reference to the rebuilding of, the making of structural alterations to, or the enlargement or extension of a building or the placing or relocating of a building on land,

(b)  to the carrying out of a work includes a reference to the rebuilding of, the making of alterations to, or the enlargement or extension of, a work, and

(c)  to the subdivision of land is a reference to the subdivision of land as defined by section 4B of the Environmental Planning and Assessment Act 1979.

(4)  If a conservation agreement is entered into under section 69B (1C) by a public authority that is not the owner of the conservation area concerned:

(a)  the agreement is taken to have been entered into on behalf of the owner of the conservation area, and

(b)  a reference in this Act to the owner of the conservation area (however expressed) includes, while a public authority has the control and management of the conservation area, a reference to the public authority that has that control and management.

69B   Conservation agreements

(1)  The Minister may enter into a conservation agreement relating to land with the owner of the land.

(1A), (1B)  (Repealed)

(1C)  The Minister may enter into a conservation agreement relating to land that is Crown lands or lands of the Crown with:

(a)  a public authority (not being a Government Department) that owns or has the control and management of the land, or

(b)  if the land is under the control and management of a Government Department, the responsible Minister, or

(c)  if the land is under the control and management of the Forestry Corporation—the Forestry Corporation, or

(d)  if the land is under the management of a land manager (other than the Forestry Corporation) within the meaning of the Forestry Act 2012—the relevant land manager.

(1D)  The Minister must not enter into a conservation agreement relating to Crown-timber lands within the meaning of the Forestry Act 2012 except with the consent of the Minister administering that Act.

(2)  The Minister shall not enter into a conservation agreement for land leased under the Crown Lands Consolidation Act 1913, the Closer Settlement Acts or the Western Lands Act 1901, except with the consent of the Minister administering the relevant Act.

(3)  The Minister shall not enter into a conservation agreement relating to land unless:

(a)  all the owners of the land are parties to the agreement or have consented in writing to the agreement,

(b)  where the land (not being land referred to in subsection (2)) is subject to a residential tenancy agreement or other lease, the tenant or the lessee has consented in writing to the conservation agreement, and

(c)  where the land is subject to a mortgage, charge or positive covenant, the mortgagee, chargee or person entitled to the benefit of the covenant has consented in writing to the agreement.

(4)  The Minister must not enter into a conservation agreement for land owned by a Local Aboriginal Land Council except with the consent of the New South Wales Aboriginal Land Council.

69C   Purpose and content of agreements

(1)  A conservation agreement may be entered into:

(a)  in relation to areas containing scenery, natural environments or natural phenomena worthy of preservation,

(b)  in relation to areas of special scientific interest,

(c)  in relation to areas that are the sites of buildings, objects, monuments or events of national significance,

(d)  in relation to areas in which Aboriginal objects, or Aboriginal places, of special significance are situated,

(e)  for the purpose of the study, preservation, protection, care or propagation of fauna or native plants or other flora,

(e1)  for the purpose of the study, preservation, protection or care of karst environments,

(e2)  for the purpose of the conservation of critical habitat or the conservation of threatened species, populations or ecological communities, or their habitats, or

(e3)  for the purpose of the protection, conservation or management of waters in or in connection with an area or purpose referred to in paragraph (a), (b), (c), (d), (e), (e1) or (e2), or

(f)  for any purpose connected with an area or purpose elsewhere referred to in this subsection.

(2)  A conservation agreement may contain terms, binding on the owner from time to time of the conservation area:

(a)  restricting the use of the area,

(b)  requiring the owner to refrain from or not to permit specified activities in the area,

(c)  requiring the owner to carry out specified activities or do specified things,

(d)  requiring the owner to permit access to the area by specified persons,

(e)  requiring the owner to contribute towards costs incurred which relate to the area or the agreement,

(f)  specifying the manner in which any money provided to the owner under the agreement shall be applied by the owner,

(g)  requiring the owner to repay money paid to the owner under the agreement if a specified breach of the agreement occurs, or

(h)  providing for any other matter relating to the conservation or enhancement of the area, including the implementation of any plan of management for the area.

(3)  A conservation agreement may contain terms, binding on the Minister:

(a)  requiring the Minister to provide financial assistance,

(b)  requiring the Minister to provide technical advice,

(c)  requiring the Minister to provide other assistance,

(d)  requiring the Minister to carry out specified activities or do specified things, or

(e)  providing for any other matter relating to the conservation or enhancement of the conservation area, including the implementation of any plan of management for the area.

69D   Duration and variation of agreements

(1)  A conservation agreement shall have effect from a day, or on the happening of an event, specified in the agreement.

(2)  An agreement may be varied by a subsequent agreement between all parties to the agreement.

(3)  An agreement shall have effect until it is terminated by consent of all parties to the agreement or in any such other manner or in such circumstances as may be set out in the agreement.

(4)  An agreement may be varied or terminated by the Minister, by order published in the Gazette, without the consent of the owner of the conservation area, if the Minister is of the opinion that the area is no longer needed for, or is no longer capable of being used to achieve, any purpose for which the agreement was entered into.

(5)  A copy of the order shall be laid before each House of Parliament within the prescribed time after publication of the order.

(5A)  The Minister is not to vary or terminate an agreement under subsection (4) unless:

(a)  written notice of the Minister’s intention to vary or terminate the agreement has been given to the owner of the conservation area stating that the owner may make submissions to the Minister within the period specified in the notice (being a period of not less than 28 days), and

(b)  the Minister has considered any submissions made by the owner of the conservation area, being submissions made within that specified period.

(6)  If an agreement is varied by the Minister under subsection (4), the owner of the conservation area may, by written notice given to the Minister, terminate the agreement.

(7)  The owner of a conservation area is not entitled to any compensation as a result of any variation or termination of an agreement by the Minister under subsection (4).

69E   Agreements to run with land

(1)  A conservation agreement which has been registered by the Registrar-General and which is in force is binding on, and enforceable by and against, the successors in title to the owner who entered into the agreement and those successors in title shall be deemed to have notice of the agreement.

(2)  In this section:

successors in title includes a mortgagee, chargee, covenant chargee or other person, in possession of a conservation area pursuant to a mortgage, charge, positive covenant or other encumbrance entered into before the registration of the conservation agreement.

69F   Registration of agreements

(1)  On being notified by the Minister that a conservation agreement has been entered into, or that any such agreement has been varied or terminated, the Registrar-General must:

(a)  in the case of a conservation agreement relating to land under the Real Property Act 1900—make an entry concerning the agreement, variation or termination in any folio of the Register kept under that Act that relates to that land, or

(b)  in the case of a conservation agreement relating to land not under the Real Property Act 1900:

(i)  register the agreement, variation or termination in the General Register of Deeds kept under Division 1 of Part 23 of the Conveyancing Act 1919, and

(ii)  if appropriate, make an entry concerning the agreement, variation or termination in any official record relating to Crown land that relates to that land.

(2)  A conservation agreement relating to land under the Real Property Act 1900 about which an entry is made in a folio and which is in force is an interest recorded in the folio for the purposes of section 42 of that Act.

69G   Enforcement of agreements

(1)  Proceedings relating to the enforcement of conservation agreements shall be taken in the Land and Environment Court.

(2)  Damages shall not be awarded against the owner of a conservation area for breach of a conservation agreement unless the breach arose from an intentional or reckless act or omission by the owner or a previous owner of the land (being an act or omission of which the owner had notice).

(3)  In assessing damages for breach of a conservation agreement by an owner, the Court may have regard to:

(a)  any detriment to the public interest arising from the breach,

(b)  any financial or other benefit that the owner sought to gain by committing the breach, and

(c)  any other matter that it considers relevant.

(4)  Except as provided by subsection (2), nothing in this section limits the remedies of a party under a conservation agreement.

69H   Register of agreements

(1)  The Director-General shall keep a register containing copies of conservation agreements as in force from time to time.

(2)  The register shall be open for public inspection during ordinary business hours, and copies of or extracts from the register shall be available, on payment of the fee fixed by the Director-General.

69I   Proposals by statutory authorities affecting conservation areas

(1)  A statutory authority shall not carry out development in a conservation area unless:

(a)  it has given written notice of the proposed development to the Minister and the owner of the area, and

(b)  it has received written notice from the Minister consenting to the development.

(2)  The Minister may consent to the development only if the Minister is of the opinion that the proposed development will not adversely affect the area or the Minister is satisfied that:

(a)  there is no practicable alternative to the carrying out of the proposed development, or

(b)  the area is required for an essential public purpose or for a purpose of special significance to the State.

(3)  For the purpose of enabling a statutory authority to carry out development in a conservation area, the Minister may, by order published in the Gazette, vary or terminate a conservation agreement without the consent of the owner of the conservation area.

(4)  A copy of the order shall be laid before each House of Parliament within the prescribed time after publication of the order.

(4A)  The Minister is not to vary or terminate an agreement under subsection (3) unless:

(a)  written notice of the Minister’s intention to vary or terminate the agreement has been given to the owner of the conservation area stating that the owner may make submissions to the Minister within the period specified in the notice (being a period of not less than 28 days), and

(b)  the Minister has considered any submissions made by the owner of the conservation area, being submissions made within that specified period.

(5)  If an agreement is varied under this section, the owner of the conservation area may, by written notice given to the Minister, terminate the agreement.

(6)  The owner of a conservation area is not entitled to any compensation as a result of any variation or termination of an agreement by the Minister under this section.

(7)  In this section, statutory authority does not include the Soil Conservation Service.

(8)  This section does not apply to any part of a conservation area that is a wilderness area within the meaning of the Wilderness Act 1987.

69J   Resolution of certain disputes

(1)  If:

(a)  a statutory authority proposes to carry out development in a conservation area, and

(b)  in relation to the proposal, a dispute arises between the Minister and the Minister responsible for the authority or the Minister administering the Act by or under which the authority is constituted,

      a party to the dispute may submit that dispute to the Premier for settlement.

(2)  On the submission of a dispute to the Premier, the Premier may:

(a)  appoint a Commissioner of Inquiry to hold an inquiry and make a report to the Premier, or

(b)  hold an inquiry into the dispute.

(3)  After the completion of the inquiry, and after considering any report, the Premier may make such order with respect to the dispute, having regard to the public interest and to the circumstances of the case, as the Premier thinks fit.

(4)  An order made by the Premier may direct the payment of any costs or expenses of or incidental to the holding of the inquiry.

(5)  A Minister or statutory authority shall comply with an order given under this section and shall, despite the provisions of any Act, be empowered to comply with any such order.

69K   Exhibition of proposed agreements

(1)  When a draft conservation agreement between the Minister and a statutory authority or another Minister, or which applies to Crown lands or lands of the Crown, has been prepared, the Minister must, before entering into the agreement:

(a)  give public notice, in a form and manner determined by the Director-General, of the places at which, the dates on which, and the times during which, the draft agreement may be inspected by the public, and

(b)  publicly exhibit the draft agreement at the places, on the dates and during the times set out in the notice, and

(c)  specify, in the notice, the period during which submissions concerning the draft agreement may be made to the Minister.

(2)  The Minister must cause a copy of the draft conservation agreement to be forwarded to the Council.

(3)  Any person may, during the period referred to in subsection (1) (c), make written submissions to the Minister about the draft agreement.

(4)  The Minister must, before entering into the agreement, consider any submissions made under subsection (3) or by the Council.

(5)  This section does not apply to land leased by a person (other than a statutory authority or a Minister) if the lease is made under the Crown Lands Act 1989, the Crown Lands (Continued Tenures) Act 1989 or the Western Lands Act 1901.

(6)  This section applies to a draft amendment to a conservation agreement in the same way as it applies to a draft conservation agreement.

69KA   Application of Environmental Planning and Assessment Act 1979

(1)  For the purposes of section 28 of the Environmental Planning and Assessment Act 1979:

(a)  a conservation agreement is taken to be a regulatory instrument, and

(b)  the Minister is responsible for the administration of such a regulatory instrument.

Note. Section 28 of the Environmental Planning and Assessment Act 1979 allows an environmental planning instrument to suspend the operation of a regulatory instrument for the purpose of enabling development to be carried out. Such a suspension cannot be given effect to without the concurrence in writing of the Minister responsible for the administration of the regulatory instrument.

(2)  In relation to any particular conservation agreement, a provision of an environmental planning instrument made under section 28 of the Environmental Planning and Assessment Act 1979 and in force:

(a)  immediately before the commencement of this section, or

(b)  immediately before the conservation agreement takes effect,

      does not affect the operation of the conservation agreement unless the provision is subsequently amended to expressly affect the operation of the conservation agreement.

Division 13 Offences relating to wildlife refuges and conservation areas

70   Fauna in wildlife refuges and other areas

(1)  A person shall not:

(a)  harm any fauna, or

(b)  use any animal, firearm, explosive, net, trap, hunting device or instrument or means whatever for the purpose of harming any fauna,

      being fauna within a wildlife refuge, conservation area, wilderness area or area subject to a wilderness protection agreement.

(2)  A person shall not:

(a)  carry, discharge or have in the person’s possession any prohibited weapon,

(b)  carry or have in the person’s possession any explosive, net, trap or hunting device, or

(c)  be accompanied by a dog,

      in a wildlife refuge, conservation area, wilderness area or area subject to a wilderness protection agreement.

(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, or that the state of affairs constituting the offence existed:

(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, 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 shall not be convicted of an offence arising under subsection (2) in respect of the carrying or having in the person’s possession of a net in a wildlife refuge, conservation area, wilderness area or area subject to a wilderness protection agreement if the person proves that the net was carried or in the person’s possession for the purpose only of taking, or attempting to take, fish from any waters.

(5)  (Repealed)

(6)  A person, being an owner, lessee or occupier of any lands within a wildlife refuge, conservation area, wilderness area or area subject to a wilderness protection agreement, or a person authorised by such an owner, lessee or occupier in that behalf, shall not be convicted of:

(a)  an offence arising under subsection (1) in respect of the harming of any fauna within those lands, being fauna that is not native to Australia and that is either:

(i)  not protected fauna, or

(ii)  locally unprotected fauna under section 96, or

(b)  an offence arising under subsection (2) in relation to those lands.

(6AA)  Subsections (5) and (6) do not apply to the harming for sporting or recreational purposes of game birds that are locally unprotected fauna.

(6A)  Subject to subsection (6B), a person shall not be convicted of an offence arising under this section if:

(a)  the offence occurred with respect to a conservation area or area subject to a wilderness protection agreement, and

(b)  the act or the state of affairs constituting the offence did not contravene the conservation agreement or wilderness protection agreement relating to the area.

(6B)  Subsection (6A) does not extend to the damaging of critical habitat or the harming of threatened species, populations or ecological communities.

(7)  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.

71   Native plants in wildlife refuges, conservation areas and certain wilderness areas

(1)  A person shall not pick or have in the person’s possession any native plant within a wildlife refuge, conservation area, wilderness area or area subject to a wilderness protection agreement.

(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, or the state of affairs constituting the offence existed:

(a)  under and in accordance with or by virtue of the authority conferred by a licence issued under Division 3 of Part 9, a licence under Part 6 of the Threatened Species Conservation Act 1995 or a licence issued under the Forestry Act 2012, or

(b)  in pursuance of a duty imposed on the person by or under any Act.

(3)  A person, being an owner, lessee or occupier of any lands within a wildlife refuge, conservation area, wilderness area or area subject to a wilderness protection agreement, or a person authorised by such an owner, lessee or occupier in that behalf, shall not be convicted of an offence arising under subsection (1) in respect of the picking or the possession of a native plant (not being a plant of a threatened species) that is or was growing within those lands.

(3A)  Subject to subsection (3B), a person shall not be convicted of an offence arising under this section if:

(a)  the offence occurred with respect to a conservation area or area subject to a wilderness protection agreement, and

(b)  the act or the state of affairs constituting the offence did not contravene the conservation agreement or wilderness protection agreement relating to the area.

(3B)  Subsection (3A) does not extend to the damaging of critical habitat or the harming of threatened species, populations or ecological communities.

(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).

Part 4A Aboriginal land

Division 1 Preliminary

71B   Definitions

In this Part:

Aboriginal Land Council, Local Aboriginal Land Council and New South Wales Aboriginal Land Council have the same meanings as in the Aboriginal Land Rights Act 1983.

Aboriginal negotiating panel means a panel appointed in accordance with section 71G or 71H of Division 2.

Aboriginal owner board members—see section 5 (1).

Aboriginal owners—see section 5 (1).

ALR Act lands means lands to which section 36A of the Aboriginal Land Rights Act 1983 applies that are granted to one or more Aboriginal Land Councils under that Act.

Note. Part 2 of the Aboriginal Land Rights Act 1983 makes provision as to land rights and the grant of claims to Crown lands. Section 36A, within that Part, makes provision for the grant of certain land claims, despite the fact that the lands involved are needed, or likely to be needed, for the essential public purpose of nature conservation, if the claimant Aboriginal Land Councils are prepared to lease the lands to the Minister administering this Act and are agreeable to the reservation or dedication of the lands under this Act and in accordance with the requirements of this Part.

board of management—see section 5 (1).

native title or native title rights and interests has the same meaning as it has in the Native Title Act 1993 of the Commonwealth.

Registrar means the Registrar appointed under the Aboriginal Land Rights Act 1983.

Schedule 14 lands means lands reserved under this Act that are listed in Schedule 14.

71C   Purpose of Part

(1)  The purpose of this Part is to make provision as to the lease to the Minister, and the reservation, under this Act of Schedule 14 lands and ALR Act lands.

(2)  So far as Schedule 14 lands are concerned, this Part provides for the recognition of the cultural significance of those lands to Aboriginal persons and the revocation of their reservation under this Act to enable them:

(a)  to be vested, on behalf of the Aboriginal owners, in one or more Local Aboriginal Land Councils or the New South Wales Aboriginal Land Council, and

(b)  to be leased by the Aboriginal Land Council or Councils to the Minister, and

(c)  to be then reserved under this Act in accordance with this Part.

(3)  So far as ALR Act lands are concerned, this Part provides for the lease of the lands by the Aboriginal Land Council or Councils in which they are vested to the Minister and the reservation of the lands under this Act in accordance with this Part.

(4)  The taking of any action referred to in this section in relation to Schedule 14 lands or ALR Act lands is subject to any native title rights and interests existing in relation to the lands immediately before the taking of the action and does not extinguish or impair such rights and interests.

71D   Recognition of cultural significance of certain lands to Aboriginal persons

(1)  Parliament recognises that certain lands reserved under this Act are of cultural significance to Aboriginal persons. Land is of cultural significance to Aboriginal persons if the land is significant in terms of the traditions, observances, customs, beliefs or history of Aboriginal persons.

(2)  The lands listed in Schedule 14 are identified as being of cultural significance to Aboriginal persons.

Division 2 Negotiations for lease

71E   Application of Division

This Division applies to and in respect of Schedule 14 lands and ALR Act lands.

71F   Purpose of negotiations

(1)  Negotiations under this Division are to be conducted for 2 purposes.

(2)  Firstly, so far as Schedule 14 lands are concerned, negotiations are to be conducted to determine whether one or more Local Aboriginal Land Councils or the New South Wales Aboriginal Land Council wishes to have the present reservation of lands revoked so that the lands may be vested, subject to native title, in the Aboriginal Land Council or Councils in return for:

(a)  a lease of the lands from the Aboriginal Land Council or Councils to the Minister, and

(b)  the reservation of the lands in accordance with this Part.

(3)  So far as lands that are the subject of a claim referred to in section 36A of the Aboriginal Land Rights Act 1983 are concerned, negotiations are to be conducted with the Aboriginal Land Council or Councils that have claimed the lands under that Act to determine whether the Aboriginal Land Council or Councils are agreeable, if the claim is granted, to the lease of the lands to the Minister and the reservation of the lands in accordance with this Part.

(4)  Secondly, if negotiations under subsection (2) or (3) result in an affirmative response, the negotiations are to continue with a view to settling the provisions of the proposed lease between the Aboriginal Land Council or Councils concerned and the Minister.

71G   Selection of representatives for negotiations before Aboriginal owners identified

(1)  This section applies if, at the time negotiations under this Division commence, Aboriginal owners of the lands that are the subject of the negotiations have not been identified.

(2)  The Minister administering the Aboriginal Land Rights Act 1983 may, for the purposes of the conduct of negotiations under this Division in circumstances referred to in subsection (1), appoint a negotiating panel from Aboriginal persons to represent Aboriginal persons who, in the Minister’s opinion, have a cultural association with the lands concerned.

(3)  The Minister may, for the purposes of making appointments to the panel, consult with any other person or body (including any group formed by Aboriginal persons) that may, in the Minister’s opinion, assist the Minister to ensure that the panel is appropriately constituted.

71H   Selection of representatives for negotiations after Aboriginal owners identified

(1)  This section applies if, at the time negotiations under this Division commence, the Minister administering the Aboriginal Land Rights Act 1983 is, after consulting the Registrar, satisfied a sufficient number of Aboriginal owners of the lands concerned has been identified to enable that Minister to select a negotiating panel from their number that will adequately represent the wishes of Aboriginal persons who have a cultural association with the lands.

(2)  The Minister administering the Aboriginal Land Rights Act 1983 may, for the purposes of the conduct of negotiations under this Division in circumstances referred to in subsection (1), and after consulting the Aboriginal owners of the lands concerned or any group representing them concerning nominees to the negotiating panel, appoint a negotiating panel from the Aboriginal owners to represent Aboriginal persons who have a cultural association with the lands concerned.

(3)  The Minister may, for the purposes of making appointments to the panel, consult with any other person or body (including any group formed by Aboriginal persons) that, in the Minister’s opinion, may assist the Minister to ensure that the panel is appropriately constituted.

71I   Role of Aboriginal negotiating panel

The role of an Aboriginal negotiating panel is:

(a)  to participate in negotiations with the Minister and one or more Aboriginal Land Councils for the purposes of this Division, and

(b)  to provide the Minister with advice as to the cultural significance to Aboriginal persons of any ALR Act lands that are the subject of negotiations under this Part, and

(c)  to recommend a name for any lands to be reserved pursuant to this Part as a result of the negotiations.

71J   Minister may negotiate with Aboriginal negotiating panel and Aboriginal Land Councils

(1)  The Minister may enter into negotiations for the purposes of this Division with an Aboriginal negotiating panel appointed in accordance with this Division and:

(a)  one or more Local Aboriginal Land Councils whose members have a cultural association with Schedule 14 lands, or

(b)  the New South Wales Aboriginal Land Council on behalf of one or more Local Aboriginal Land Councils referred to in paragraph (a), or

(c)  the New South Wales Aboriginal Land Council on its own behalf, or

(d)  one or more Aboriginal Land Councils that have made a claim for lands to which section 36A of the Aboriginal Land Rights Act 1983 applies.

(2)  The Minister may enter into negotiations with one Local Aboriginal Land Council whose members have a cultural association with Schedule 14 lands with which members of one or more other Local Aboriginal Land Councils also have a cultural association only if:

(a)  the members of each of those Councils, and

(b)  the Aboriginal negotiating panel,

      consent to the Minister negotiating with that Local Aboriginal Land Council.

71K   Referral of disagreements between Aboriginal negotiating panel and Aboriginal Land Councils to mediation

(1)  Any disagreement between an Aboriginal negotiating panel and an Aboriginal Land Council or Councils concerning negotiations under this Division that cannot be resolved otherwise is to be referred to a mediator selected by, and acceptable to, the Aboriginal negotiating panel and the Aboriginal Land Council or Councils for resolution.

(2)  The Minister may decline to proceed with the negotiations until the disagreement has been resolved.

(3)  The Aboriginal negotiating panel and the Aboriginal Land Council or Councils concerned are to be jointly responsible for payment of the costs of the mediation.

(4)  The regulations may make provision for or with respect to the mediation of disagreements under this section including the exoneration of mediators from liability.

71L   Preference to vesting in Local Aboriginal Land Council—Schedule 14 lands

If both a Local Aboriginal Land Council or Councils and the New South Wales Aboriginal Land Council on its own behalf indicate that they wish Schedule 14 lands to be vested in them, the Minister is to give preference with respect to the vesting:

(a)  if the Minister is satisfied, after consulting the Registrar, that sufficient Aboriginal owners of the lands have been identified to adequately represent the wishes of Aboriginal persons who have a cultural association with the lands—to the wishes of the Aboriginal owners, or

(b)  if Aboriginal owners of the lands have not been so identified—to the wishes of the Local Aboriginal Land Council or Councils.

Division 3 Vesting and reservation of Schedule 14 lands

71M   Application of Division

This Division applies to and in respect of Schedule 14 lands only unless this Act otherwise expressly provides.

Note. See Division 4 as to the application of sections 71R–71U to ALR Act lands and Division 8 as to the application of sections 71R–71T to lands added to national parks or other areas reserved or dedicated under this Part.

71N   Tabling of proposal if change of land classification involved

(1)  This section applies if, as a result of negotiations concerning Schedule 14 lands, it is proposed that the classification of the lands concerned under this Act, as listed in Schedule 14, be changed to another classification (such as, for example, from a nature reserve to a national park) when the lands are vested in an Aboriginal Land Council or Councils under this Part.

(2)  The Minister is to cause a notification of such a proposal to be laid before each House of Parliament as soon as practicable after the parties to the negotiations decide that the classification of the lands should be changed.

(3)  If a House of Parliament passes a resolution of which notice has been given within 15 sitting days of that House after a notification has been laid before it (whether or not those sitting days occur during the same session) and the resolution disallows the notification, no further action is to be taken in the matter.

(4)  Nothing in this section prevents the Minister, at some later time, causing to be laid before each House of Parliament in accordance with this Division a notification that has previously been tabled, either with or without amendments.

71O   Vesting and reservation of Schedule 14 lands

(1)  This section applies if:

(a)  no change in the classification of the Schedule 14 lands to which negotiations relate is proposed, or

(b)  no resolution disallowing a notification concerning a change in the classification of the Schedule 14 lands is or can be passed.

(2)  On completion of negotiations concerning the Schedule 14 lands and preparation of a draft lease in respect of those lands that is acceptable to, and has been executed in escrow by, the Minister and the Aboriginal Land Council or Councils concerned, the Governor may, by proclamation published in the Gazette:

(a)  revoke the existing reservation under this Act of the lands that are the subject of the proposed lease, and

(b)  vest those lands in the Aboriginal Land Council or Councils that are to lease the lands to the Minister (and, if more than one, as joint tenants (without the benefit of survivorship)), subject to the following:

(i)  any native title rights and interests that exist in relation to the lands concerned,

(ii)  any existing interest within the meaning of section 39,

(iii)  any licence issued under Part 9,

(iv)  any lease, licence, franchise or easement granted under Part 12,

(v)  any authority or consent issued under this Act or the regulations, and

(c)  reserve or dedicate those lands, with the appropriate classification, under this Act, subject to any matter referred to in paragraph (b) (i)–(v).

71P   Effect of publication of proclamation

(1)  On publication of the proclamation, the existing reservation under this Act of the lands described in the proclamation is revoked. This subsection has effect despite anything else in this Act.

(2)  On publication of the proclamation, the lands described in the proclamation vest, by virtue of the proclamation and the operation of this section, in the Aboriginal Land Council or Councils (and, if more than one, as joint tenants (without the benefit of survivorship)) named as lessor or lessors in the lease for an estate in fee simple without the necessity for any further assurance, but subject to the following:

(a)  any native title rights and interests that exist in relation to the lands concerned,

(b)  any existing interest within the meaning of section 39,

(c)  any licence issued under Part 9,

(d)  any lease, licence, franchise or easement granted under Part 12,

(e)  any authority or consent issued under this Act or the regulations.

(3)  On publication of the proclamation, the lease takes effect and is taken to have been executed on, and its term commences to run from, the date of publication of the proclamation.

(4)  On publication of the proclamation, the lands described in the proclamation are, despite the fact that the lands are vested in the Aboriginal Land Council or Councils, reserved, with the appropriate classification, under this Act in accordance with this Part, subject to any matter referred to in subsection (2) (a)–(e).

71Q   Certain other consequences of publication of proclamation

On publication of the proclamation:

(a)  the Director-General continues, until the establishment of a board of management for the lands, to have the care, control and management of the lands and may exercise on and with respect to those lands any power, authority, duty or function conferred or imposed on the Director-General by or under this or any other Act, and

(b)  the Service and the officers, employees and contractors of the Minister, the Director-General and the Service may (subject to any plan of management in force with respect to the lands and to any directions given and supervision and oversight exercised by the board of management for the lands) exercise on and with respect to those lands any power, authority, duty or function conferred or imposed on any one or more of them by or under this or any other Act, and

(c)  any regulations that, immediately before that publication, applied to the lands continue to apply to the lands and may be amended and repealed accordingly, and

(d)  any plan of management that, immediately before that publication, applied to the lands continues, subject to this Act, to apply to the lands and may be amended, altered or cancelled accordingly, and

(e)  any existing interest (within the meaning of section 39), any licence issued under Part 9, any lease, licence, franchise or easement granted under Part 12 and any authority or consent issued under this Act or the regulations that affect the lands, or any part of the lands, and that are current at the date of the proclamation continue to have effect and may be terminated or otherwise dealt with in accordance with this Act or the instrument under which they were granted, and

(f)  any fee, rent or other sum that is payable under or with respect to any matter referred to in paragraph (e) is, despite any other requirement to the contrary, to be paid as required by section 138, and

(g)  any declaration made under Division 3 of Part 4 or under the Wilderness Act 1987 with respect to the lands, or any part of the lands, continues in force and may be varied or revoked accordingly.

71R   Certain provisions not to apply to lands reserved under this Division

(1)  The provisions of Division 2 of Part 3, Division 1 of Part 4 and sections 33, 35, 46, 47B–47D, 49, 58, 58K (4)–(6), 58S and 62 do not apply to or in respect of lands reserved under this Division.

(2)  Sections 47GA–47GG, 47O and 47R–47Y do not apply to or in respect of a state conservation area or a regional park reserved under this Part.

(3)  Subsection (1) does not limit section 71Q.

71S   Application of certain provisions to lands reserved under this Division

The following provisions apply to and in respect of lands reserved under this Division in the same way as they apply to and in respect of lands reserved under Part 4:

Sections 37–44, 47G, 47H, 47I, 47J, 47K, 47L, 47P (2), 47Z, 47ZA, 47ZB, 52–55, 58M, 58N, 58O, 58P and 64.

71T   (Repealed)

71U   Name of Schedule 14 lands

(1)  The proclamation laid before Parliament under this Division must assign a name to the Schedule 14 lands (or the part or parts of Schedule 14 lands) proposed to be reserved under this Division.

(2)  The name so assigned must be the name recommended by the Aboriginal negotiating panel involved in the negotiations for the vesting and leasing of the lands, and may be the same name as, or a different name from, that listed in Schedule 14.

(3)  The Governor may, on the recommendation of the Aboriginal owner board members for lands reserved under this Division, by proclamation published on the NSW legislation website:

(a)  alter the name of the lands, and

(b)  amend Schedule 14 by omitting the former name, and by inserting instead the new name, of the lands.

(4)  If a part or parts only of Schedule 14 lands are reserved under this Division, the Governor may, by proclamation published on the NSW legislation website, assign a new name for the part or parts of the Schedule 14 lands that are not reserved under this Division.

(5)  Section 12 (1) of the Geographical Names Act 1966 does not apply to a name assigned under this Division (or that name as altered or amended). The name so assigned, or the name as so altered or amended, is, for the purposes of the Geographical Names Act 1966, the geographical name of the place to which it relates.

(6)  If, before the reservation under this Division of Schedule 14 lands, the name of the lands is altered pursuant to the publication of a proclamation under Part 4 of this Act, that proclamation or another proclamation published on the NSW legislation website may amend Schedule 14 by omitting the former name, and by inserting instead the new name, of the lands.

71V   No consideration payable by Aboriginal Land Council on vesting of lands

(1)  No consideration is payable to the Crown by an Aboriginal Land Council or Councils in relation to the vesting in the Council or Councils of lands pursuant to the publication of a proclamation under this Division.

(2)  No stamp duty under the Stamp Duties Act 1920 is payable by an Aboriginal Land Council or Councils in relation to any such vesting.

71W   Reservation of part only of Schedule 14 lands

(1)  Nothing in this Part prevents the negotiation of a lease and the reservation under this Part of a part or parts only of Schedule 14 lands.

(2)  In that event:

(a)  on the establishment of a board of management for the part or parts of the Schedule 14 lands that are the subject of the lease, the care, control and management of that part or those parts only of the Schedule 14 lands vest in the board of management, and

(b)  the provisions of this Act relating to the harming of animals and the picking of timber, vegetation, plants and similar things by Aboriginal persons apply to and in respect of the part or parts only of the Schedule 14 lands that are the subject of the lease, and

(c)  the provisions of this Part relating to Schedule 14 lands that are leased and reserved under this Part apply to and in respect of the part or parts only of the Schedule 14 lands that are the subject of the lease.

Note. See sections 31, 47BA, 47OA, 48, 58 (4A), 58K (4A) and 63 as to the vesting of reserved lands on the establishment of a board of management under this Part and sections 45 (6), 56 (7), 57 (7), 58H (7), 58I (7), 58Q (7) and 58R (7) as to the harming of animals and the picking of timber, vegetation, plants and similar things by Aboriginal persons.

Division 4 Reservation or dedication of ALR Act lands

71X   Application of Division

(1)  This Division applies to and in respect of lands to which section 36A of the Aboriginal Land Rights Act 1983 applies and to ALR Act lands only.

(2)  This Division applies to lands only if:

(a)  the Minister is satisfied that the lands proposed to be reserved under this Act are of sufficient natural conservation value to justify such reservation, and

(b)  negotiations under Division 2 concerning the preparation of a draft lease in respect of the lands have been concluded and a lease, prepared as the result of the negotiations, has been executed in escrow by the Minister and the Aboriginal Land Council or Councils concerned.

Note. Section 36A of the Aboriginal Land Rights Act 1983 applies to certain Crown lands having nature conservation value that are the subject of a claim under that Act.

71Y   Reservation of ALR Act lands

The Governor may, on the grant under the Aboriginal Land Rights Act 1983 of ALR Act lands that are referred to in section 71X (2), by notice published in the Gazette, reserve the lands under this Act and in accordance with this Part as a national park, historic site, state conservation area, regional park, nature reserve, karst conservation reserve or Aboriginal area.

71Z   Effect of publication of notice

(1)  On publication of the notice, the lease of the lands takes effect and is taken to have been executed on, and its term commences to run from, the date of publication of the notice.

(2)  On publication of the notice, the lands described in the notice are, despite the fact that the lands are vested in the Aboriginal Land Council or Councils, reserved under this Act according to the tenor of the notice.

(3)  The leasing and vesting of ALR Act lands under this section is subject to the following:

(a)  any native title rights and interests that exist in relation to the lands concerned,

(b)  any existing interest within the meaning of section 39.

71AA   Certain other consequences of publication of proclamation

On publication of a proclamation under this Division:

(a)  the Director-General has, until the establishment of a board of management for the lands, the care, control and management of the lands and may exercise on and with respect to those lands any power, authority, duty or function conferred or imposed on the Director-General by or under this or any other Act, and

(b)  the Service and the officers, employees and contractors of the Minister, the Director-General and the Service may (subject to any plan of management in force with respect to the lands and to any directions given and supervision and oversight exercised by the board of management for the lands) exercise on and with respect to those lands any power, authority, duty or function conferred or imposed on any one or more of them by or under this or any other Act.

71AB   Applications of certain provisions to ALR Act lands

(1)  Sections 71R, 71S and 71T apply to and in respect of ALR Act lands in the same way that they apply to and in respect of Schedule 14 lands.

(2)  Section 71U (1)–(4) applies to and in respect of ALR Act lands in the same way that it applies to and in respect of Schedule 14 lands except that:

(a)  references in those subsections to a proclamation under Division 3 are to be read as references to a proclamation under this Division, and

(b)  references in those subsections to Schedule 14 lands are to be read as references to ALR Act lands.

Division 5 Provisions as to leases

71AC   Application of Division

This Division applies to and in respect of Schedule 14 lands and ALR Act lands.

71AD   Matters to be covered in lease between Aboriginal Land Council and Minister

(1)  A lease of lands under this Part must make provision for the following:

(a)  the leasing of the whole of the lands vested in the Aboriginal Land Council or Councils to the Minister, subject to native title,

(b)  a term of at least 30 years,

(c)  the renewal of the lease for a further term of at least 30 years, with no limitation on the number of times the lease may be so renewed, provided that each party consents to the renewal,

(d)  the manner in which the lease is to be renewed,

(e)  the replacement of the lease, in accordance with this Part, with a new lease,

(f)  an acknowledgement that the care, control and management of the lands is to be vested in a board of management established under this Part,

(g)  an acknowledgement that the Aboriginal Land Council or Councils in which the lands are vested hold the lands on behalf of the Aboriginal owners of the lands,

(h)  an acknowledgement that the Service and the officers, employees and contractors of the Minister, the Director-General and the Service are (subject to any plan of management in force with respect to the lands and to any directions given and supervision and oversight exercised by the board of management for the lands) entitled to exercise on and with respect to the lands any power, authority, duty or function conferred or imposed on any one or more of them by or under this or any other Act,

(i)  an acknowledgement that the Aboriginal owners of the lands, and any other Aboriginal persons who have the consent of the Aboriginal owner board members, are entitled (subject to this and any other Act applying to the lands and any plan of management in force with respect to the lands) to enter and use the lands for hunting or fishing for, or the gathering of, traditional foods for domestic purposes and for ceremonial and cultural purposes to the extent that that entry or use is in accordance with the tradition of the Aboriginal owners,

(j)  an acknowledgement that the Aboriginal Land Council or Councils in which the lands are vested and their employees, contractors and agents must comply with the provisions of this and any other Act applying to the lands, the regulations and any plan of management in force with respect to the lands, including provisions concerning the protection of animals, trees, timber, plants, flowers and vegetation,

(k)  an acknowledgement that the lease is subject to any existing interest within the meaning of section 39, any licence issued under Part 9, any lease, licence, franchise or easement granted under Part 12 and any authority or consent issued under this Act or the regulations affecting the lands, or any part of the lands, that is current on the date on which the lands are vested in the Aboriginal Land Council or Councils,

(l)  the grant, extension or extinguishment of any interest, licence, lease, franchise, easement, authority or consent of a kind referred to in paragraph (k) subject to the requirements of this Act and, in the case of an extension or extinguishment, to any instrument under which the interest, licence, lease, franchise, easement, authority or consent was granted,

(m)  an acknowledgement that the public generally has (subject to any plan of management in force with respect to the lands) a right of access to the lands in accordance with this Act and the regulations,

(n)  a term acknowledging that the lands, or any part of the lands, may not be the subject of any sale, exchange, disposal or mortgage and providing that, to the extent to which the lands may otherwise be dealt with, any such dealing must be only with the prior written consent of the Minister.

(2)  A lease under this Part must also make provision for the following:

(a)  a requirement that the Minister consult with the Aboriginal Land Council or Councils in which the lands are vested before the making, amending or repealing of any regulations in respect of the lands,

(b)  a requirement that consultations concerning the operation of the lease are to involve the Director-General and the board of management for the lands,

(c)  the compliance by the parties to the lease with any requirements that arise because the lands are, or a part of the lands is, situated in an area listed as an item of cultural heritage or natural heritage of outstanding universal value in accordance with:

(i)  the World Heritage Properties Conservation Act 1983 of the Commonwealth, and

(ii)  the Convention for the Protection of the World Cultural and Natural Heritage adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organization, being the convention a copy of the English text of which is set out in the Schedule to the Commonwealth Act referred to in subparagraph (i).

(3)  As a condition of a lease under this Part, the Minister must undertake to use the Minister’s best endeavours to implement the Aboriginal Employment and Training Plan 1991–1996 published by the National Parks and Wildlife Service in October 1991 or any plan replacing that Plan and, in particular, any timetable set out in such a plan. The Minister must report to Parliament from time to time on progress achieved in implementing any such plan.

(4)  The lease may make provision for such other matters, not inconsistent with this Act or the regulations, as the Minister and the Aboriginal Land Council or Councils consider appropriate.

71AE   Rent payable under lease

(1)  The Minister is to pay rent under any lease entered into with an Aboriginal Land Council or Councils under this Part.

(2)  All rent payable by virtue of this section is payable out of the Consolidated Fund, which, to the necessary extent, is appropriated accordingly.

(3)  The rent is to be an amount, negotiated by the parties or otherwise fixed in accordance with this section, that compensates the Aboriginal Land Council or Councils for the fact that it or they do not have the full use and enjoyment of the lands the subject of the lease.

(4)  In negotiating the rent, the parties are to have regard to the following matters:

(a)  the nature, size and location of the lands concerned and the nature of the infrastructure and improvements, if any, on the lands,

(b)  the nature of the ownership rights in the lands that the Aboriginal Land Council or Councils possess,

(c)  the provisions of this Act and the lease relating to the lands,

(d)  the extent to which the cultural significance of the lands to Aboriginal persons restricts the use that may be made of the lands under the lease,

(e)  the arrangements contained in this Act and the lease for the care, control, management and development of the lands,

(f)  the amount of rent payable under leases of lands adjoining or in the vicinity of the lands the subject of the lease,

(g)  the amounts realised on recent sales of freehold or leasehold land adjoining or in the vicinity of the lands the subject of the lease.

(5)  If the parties are unable to agree on the rent to be paid, the matter is to be referred to a mediator, experienced in valuation matters, selected by, and acceptable to, the Minister and the Aboriginal Land Council or Councils.

(6)  The regulations may make provision for and with respect to the mediation of a matter under this section including the remuneration of mediators and the exoneration of mediators from liability.

(7)  If the mediator is unable to resolve the matter within a reasonable period, the Minister may request the Valuer-General to fix the rent to be paid.

(8)  The Valuer-General, in fixing the rent, is to have regard to the matters referred to in subsection (4) and any other matters that the Valuer-General notifies to the parties and considers to be relevant. The decision of the Valuer-General as to the rent is final.

(9)  The rent is payable by the Minister, on annual rests, to the credit of the separate account in the Fund referred to in section 138 (1B) for payment out in accordance with section 139 (5).

71AF   Dating of lease

On publication of a proclamation under Division 3 or 4, the Minister must cause the date of publication of the proclamation to be inserted in the lease as:

(a)  the date of execution of the lease, and

(b)  the date of the commencement of the term of the lease.

71AG   Registrar-General to enter particulars of vesting and lease in register

(1)  On publication of a proclamation under Division 3 or 4, there must be lodged at the Land Titles Office:

(a)  all title documents held by the Minister or the Director-General (in the case of Schedule 14 lands) or by the Aboriginal Land Council or Councils concerned (in the case of ALR Act lands) in relation to the lands referred to in the proclamation, and

(b)  the lease, completed with the date of execution and commencement of the term.

(2)  On lodgment of those documents, the Registrar-General must enter in the appropriate register particulars of:

(a)  in the case of Schedule 14 land—the vesting of the lands in the Aboriginal Land Council or Councils concerned, and

(b)  in the case of Schedule 14 lands and ALR Act lands—of the lease of those lands to the Minister.

(3)  Following entry of the particulars, the Registrar-General must deliver the title documents to the Aboriginal Land Council or Councils.

71AH   Regular review of lease required

(1)  At least once every 5 years during the term of a lease under this Part:

(a)  the Director-General, on behalf of the Minister, and

(b)  the Aboriginal Land Council or Councils in which the lands are vested, and

(c)  the Aboriginal owner board members for the lands concerned,

      must consider whether or not any one or more of the provisions of the lease (including provisions relating to rent and the term of the lease) require amendment.

(2)  The review must include a consideration of the adequacy of the then existing arrangements for management of the lands concerned and whether a recommendation should be made for amendments to this Act to meet specific requirements relating to the management of those lands.

(3)  If a party to the lease or the Aboriginal owner board members fail to agree to an amendment proposed by another party, the disagreement is to be arbitrated in accordance with this Part.

(4)  A lease may be amended by agreement of the parties and the Aboriginal owner board members as a result of the consultations despite any other provision of this or any other Act or law or of the lease.

71AI   Re-negotiation of lease before expiry of lease term

(1)  At least 5 years before the expiry of each term of a lease under this Part:

(a)  the Director-General, on behalf of the Minister, and

(b)  the Aboriginal Land Council or Councils in which the lands are vested, and

(c)  the Aboriginal owner board members for the lands concerned,

      must consider whether or not any one or more of the provisions of the lease should be amended to enable the lease to operate more effectively.

(2)  If it is agreed that a provision does require amendment, the Director-General, the Aboriginal Land Council or Councils and the Aboriginal owner board members must negotiate on and prepare the required amendment at least 2 years before the expiry of the then current term of the lease.

(3)  Any amendment prepared in accordance with subsection (2) and agreed to by the Aboriginal Land Council or Councils must be presented to the Minister for approval at least 18 months before the expiry of the then current term of the lease.

(4)  If an amendment is approved by the Minister, a new lease must be prepared incorporating the amended provision.

(5)  At least 6 months before the expiry of the then current term of the lease, the new lease should, if at all possible, be executed in escrow by the Minister and the Aboriginal Land Council or Councils in which the lands are vested.

(6)  A lease executed under subsection (5) takes effect, in substitution for the previous lease between the Minister and the Aboriginal Land Council or Councils, on the expiration of the term of the previous lease.

(7)  If the Director-General and the Aboriginal Land Council or Councils agree that no provisions of the lease require amendment, the lease between the parties operates for a further term of 30 years, commencing on the expiration of the current term of the lease, in accordance with its provisions and the requirements of this Part.

(8)  The times specified by this section for the consideration of the provisions of the lease, the negotiation and preparation of amendments, the presentation of the amendments to the Minister and the execution of the lease may be varied by the agreement of the parties.

71AJ   Dating and registration of re-negotiated lease

(1)  The Minister must cause the date on which a re-negotiated lease takes effect under this Division to be inserted in the lease as:

(a)  the date of execution of the lease, and

(b)  the date of the commencement of the term of the lease.

(2)  The Aboriginal Land Council or Councils in which the lands are vested must cause all title documents held by the Aboriginal Land Council or Councils in relation to the lands referred to in the re-negotiated lease to be lodged at the Land Titles Office to enable the lease to be lodged for registration and the Registrar-General to enter in the appropriate register particulars of the lease.

(3)  Following entry of the particulars, the Registrar-General must return the title documents to the Aboriginal Land Council or Councils.

71AK   Variation of lease

A lease under this Part may be varied only by the agreement of the parties and the Aboriginal owner board members for the land concerned, not inconsistent with this Act, or by an Act of Parliament.

71AL   Holding over under lease

(1)  A lease under this Part does not expire by effluxion of time except as otherwise provided by this Part.

(2)  On the expiry of the then current term of a lease under this Part, the Minister holds over under the lease until such time as the lease is renewed or replaced.

(3)  The term of a lease that renews or replaces a lease whose term has expired runs from the date of execution of the new lease by the Minister.

(4)  For the avoidance of doubt, the expiry of a term of a lease under this Part does not affect:

(a)  the reservation under this Act of the land that is the subject of the lease as a national park, historic site, state conservation area, regional park, nature reserve, karst conservation reserve or Aboriginal area, or

(b)  the establishment of any board of management under this Act for the land that is the subject of the lease and the appointment of any member of any such board.

Division 6 Boards of management

71AM   Application of Division

This Division applies to and in respect of Schedule 14 lands and ALR Act lands.

71AN   Boards of management

(1)  There is to be a board of management for each area of Schedule 14 lands and ALR Act lands leased and reserved under this Part. A board of management is to be established as soon as practicable after the lands are leased and reserved.

(2)  A board of management is to consist of at least 11, but no more than 13, members appointed by the Minister with the concurrence of the Minister administering the Aboriginal Land Rights Act 1983.

(3)  Of the members:

(a)  the majority are to be Aboriginal owners of the lands concerned nominated by themselves or by another Aboriginal owner of the lands with the consent of the nominee, and

(b)  one is to be a person appointed from nominees of a Local Aboriginal Land Council or Councils in whose area or areas the whole or part of the lands are located, and

(c)  one is to be a person appointed to represent the local council or councils (if any) whose area or areas comprise, or adjoin, the lands, and

(d)  one is to be an officer of the Service for the time being nominated by the Director-General, and

(e)  one is to be a person appointed from a panel of persons nominated by a group concerned in the conservation of the region in which the lands are located to represent conservation interests, and

(f)  one is to be a person appointed on the nomination of owners, lessees and occupiers of land adjoining or in the vicinity of the lands to represent those owners, lessees and occupiers.

(4)  The Minister, in appointing Aboriginal owners under subsection (3) (a), is to have regard to such matters as the gender of the nominees and their cultural affiliations and family groupings in an endeavour to ensure that a representative group of members is appointed.

(5)  A matter or thing done or omitted to be done by a board of management, a member of a board of management or a person acting under the direction of a board of management does not, if the matter or thing was done or omitted to be done in good faith for the purpose of executing this Act (or any regulation under this Act), subject the member or the person so acting personally to any action, liability, claim or demand.

(6)  However, any such liability attaches instead to the Crown.

(6A)  Schedule 14A contains provisions with respect to the constitution and procedure of boards of management.

(7)  Subject to this Act (including Schedule 14A), the regulations may make provision with respect to the constitution and procedure of a board of management including the declaration of pecuniary interests by members.

71AO   Functions of boards of management

(1)  A board of management for lands to which this Division applies has the following functions:

(a)  the care, control and management of the lands,

(b)  the preparation of plans of management for the lands,

(c)  the supervision of payments from the Fund with respect to the lands.

(2)  Without limiting subsection (1), a board of management has the function of considering proposals for the carrying out, by Aboriginal owners or other Aboriginal persons, of cultural activities (such as hunting and gathering) within the lands and of approving, or refusing to approve, the carrying out of those activities.

(3)  A board of management must exercise its functions in accordance with any plan of management in force with respect to the lands for which it is established.

(4)  In the exercise of its functions, a board of management is subject to the control and direction of the Minister.

(5)  Despite subsection (4), the Minister may not give directions to a board of management in relation to:

(a)  the contents of any report, advice, information or recommendation that is to be or may be made or given by the board, or

(b)  any decision of the board, that is not inconsistent with this Act and the plan of management for the lands for which it was established, relating to the care, control and management of Aboriginal heritage and culture within the lands.

(6)  In the exercise of its functions with respect to the care, control and management of lands for which no plan of management is in force, a board of management is to consult with and have regard to the advice of the Director-General.

(7)  A board of management may delegate the exercise of any function of the board of management under this Act (other than this power of delegation) to:

(a)  a member of the board, or

(b)  a member of staff of the Department, or

(c)  any person, or any class of persons, authorised for the purposes of this subsection by the regulations.

71AP   Term of office of board members

Subject to Schedule 14A and the regulations, a member of a board of management holds office for such period (being not less than 4 years and not more than 6 years) as may be specified in the instrument of appointment of the member, but is eligible (if otherwise qualified) for re-appointment.

71AQ   Board of management’s accounts, budgets, quarterly and annual reports

(1)  A board of management must cause proper accounts and records to be kept in relation to all of its operations.

(2)  A board of management must, before the commencement of each financial year, prepare and submit to the Minister a detailed budget relating to its proposed operations during that financial year.

(3)  The board of management must furnish to the Minister such information relating to the budget as the Minister requests.

(4)  A board of management must monitor its financial activities to determine whether it is operating in accordance with its budget.

(5)  A board of management must in each year, as soon as practicable after 30 June, but on or before 1 October, forward to the Minister an annual report of its operations for the 12 months ending on 30 June in that year.

(6)  The regulations may prescribe the form and content of budgets and reports under this section.

Division 7 Addition of lands to Schedule 14

71AR   Application of Division

This Division applies to and in respect of lands proposed for addition to Schedule 14 only.

71AS   Proposals for additions to Schedule 14

(1)  Any person or body (including a statutory authority) may submit to the Director-General a written proposal that lands reserved under this Act be identified as having cultural significance to Aboriginal persons and listed in Schedule 14.

(2)  A copy of the proposal is to be given to the Registrar who must notify the following persons and bodies of the proposal:

(a)  the New South Wales Aboriginal Land Council, and

(b)  the Local Aboriginal Land Council or Councils in whose area or areas the lands the subject of the proposal are located, and

(c)  the Aboriginal owners of the lands concerned (if they have been identified), and

(d)  any body representing Aboriginal persons that the Registrar considers to be relevant.

(3)  The Registrar is to provide the Director-General with the names of the persons and bodies that the Registrar has notified of the proposal.

Note. Land in Zone 1, 2 or 3 of the Brigalow and Nandewar Community Conservation Area (established under the Brigalow and Nandewar Community Conservation Area Act 2005) is not eligible to be proposed under this section for listing in Schedule 14 to this Act.

71AT   Assessment of proposals

(1)  The Director-General must, after receiving a proposal, make an assessment of the cultural significance to Aboriginal persons of the lands referred to in the proposal and make a report to the Minister in relation to the proposal.

(2)  The Director-General is to consult with:

(a)  the person or body that submitted the proposal, and

(b)  the persons and bodies notified of the proposal by the Registrar, and

(c)  any other person or body that the Director-General considers should be consulted,

      in relation to the making of the assessment and report.

71AU   Report to Minister

(1)  In preparing a report for the Minister, the Director-General is to consider the following:

(a)  whether the lands concerned contain places of spiritual or mythological importance in accordance with Aboriginal custom or lore,

(b)  whether the lands contain places used for the conduct of ceremonial activities by Aboriginal persons, including areas recognised for gender specific cultural activities,

(c)  whether the lands contain areas that are significant for their association with Aboriginal life after occupation of the area in which the lands are situated by persons of European extraction.

(2)  The Director-General’s report is to make comment on the following matters in relation to the lands concerned:

(a)  whether Aboriginal burials or remains, or both, are present,

(b)  the rarity of types of Aboriginal sites and objects on the lands in the context of the cultural area in which the lands are located,

(c)  the diversity of Aboriginal sites and objects on the lands,

(d)  the antiquity of Aboriginal sites and objects on the lands,

(e)  whether the lands have been listed:

(i)  in the Register of the National Estate kept in pursuance of the Australian Heritage Commission Act 1975 of the Commonwealth, or

(ii)  as an item of cultural heritage of outstanding universal value in accordance with the World Heritage Properties Conservation Act 1983 of the Commonwealth and the Convention for the Protection of the World Cultural and Natural Heritage that is referred to in section 71AD (2) (c) (ii),

      on the basis, or partly on the basis, of their cultural significance to Aboriginal persons.

(3)  The Director-General must also indicate in the report whether any disagreement exists among the persons or bodies consulted by the Director-General regarding the proposal as to whether the lands are of cultural significance to Aboriginal persons or should be listed in Schedule 14, or both.

(4)  The Director-General may include any other matters in the report that the Director-General considers to be relevant.

71AV   Consideration of report by Minister

(1)  On receiving a report from the Director-General, the Minister is to consider whether the lands concerned are of cultural significance to Aboriginal persons and, if so, whether the Minister should recommend to the Governor that the lands be listed in Schedule 14.

(2)  The Minister is not to make a recommendation that the lands be listed in Schedule 14 unless the Minister is satisfied that the cultural significance of the lands to Aboriginal persons is at least equivalent to that of the lands already listed in the Schedule.

71AW   Listing of additional lands in Schedule 14

(1)  Additional lands may be listed in Schedule 14 only by an Act of Parliament.

(2)  If Parliament approves of the listing of lands in Schedule 14 following the making of a recommendation by the Minister to the Governor that the lands be so listed, the lands may be dealt with in accordance with the provisions of this Part that apply to Schedule 14 lands and, in particular, with the provisions of Divisions 2, 3, 5 and 6.

Division 8 Addition of lands to Schedule 14 lands or ALR Act lands leased under Part

71AX   Application of Division

This Division applies to and in respect of Schedule 14 lands and ALR Act lands that are leased and reserved under this Part.

71AY   Definition of “area”

In this Division, area means lands reserved under this Part as a national park, historic site, state conservation area or regional park or dedicated under this Part as a nature reserve, state game reserve, karst conservation reserve or Aboriginal area.

71AZ   Additions may be made to reserved lands leased under Part

(1)  Nothing in this Act prevents the reservation of lands, in accordance with this Division, as part of an area that has been leased and reserved in accordance with this Part (whether those lands are to be reserved as the same category of reserved lands as the area already leased and reserved or otherwise).

(2)  Lands may be reserved as part of an area referred to in this section only with the consent of:

(a)  the Aboriginal Land Council or Councils in which they are vested, and

(b)  the board of management for the area.

71BA   Addition of lands already reserved under Act

(1)  Lands that are reserved under this Act may be added as part of an area that is leased under this Part only if the lands are listed in Schedule 14.

(2)  The Governor may, by proclamation published in the Gazette, declare that the whole or part of lands listed in Schedule 14, be taken to be reserved as part of an area reserved under this Part.

(3)  On the publication of the proclamation:

(a)  the lands are reserved as part of the area, and

(b)  the lands are vested in the Aboriginal Land Council or Councils in which the area is vested, and

(c)  the care, control and management of the lands is to be exercised:

(i)  by the board of management for the area, or

(ii)  if a board of management has not been established for the area, by the Director-General until a board of management is established for the area, and

(d)  the lease over the area negotiated under this Part is taken to extend and apply to the lands in the same way that the lease applies to the area, and

(e)  the provisions of this Act and any instrument made under this Act (including any plan of management or regulations) apply to the lands in the same way that they apply to the area.

(4)  Subsections (2) and (3) apply, in relation to the lands added to the area, subject to the following:

(a)  any native title rights and interests that exist in relation to the lands,

(b)  any existing interest within the meaning of section 39,

(c)  any licence issued under Part 9,

(d)  any lease, licence, franchise or easement granted under Part 12,

(e)  any authority or consent issued under this Act or the regulations.

(5)  Despite subsection (3) (e), a plan of management applying to land in an area already leased and reserved under this Part only applies to lands added to the area if the plan of management already applies to lands of the same reservation category.

Note. For example, if the plan of management applies only to land reserved as a national park and the added land is to be reserved as a state conservation area, the plan of management will not apply to the newly added state conservation area land.

71BB   Tabling of proclamation to add lands if change of land classification involved

(1)  A copy of a proclamation published under section 71BA is to be laid before each House of Parliament within 14 sitting days of that House after the publication of the proclamation if the classification of the lands specified in the proclamation is changed from the classification that the lands have in Schedule 14.

(2)  If a House of Parliament passes a resolution of which notice has been given within 15 sitting days of that House after a copy of a proclamation has been laid before it under this section (whether or not those sitting days occur during the same session) and the resolution disallows the reservation taken to be effected by the proclamation of any lands:

(a)  the reservation of the lands as part of the area leased under this Part ceases to have effect on the disallowance, and

(b)  the lands cease to be part of the area concerned and revert to the classification, as lands reserved under this Act and listed in Schedule 14, that they had before the publication of the proclamation, and

(c)  the vesting of the lands in an Aboriginal Land Council or Councils is of no effect, and

(d)  the care, control and management of the lands is to be exercised by the person or body that had the care, control and management of the lands before the publication of the proclamation, and

(e)  the lease of the lands does not operate in respect of the lands, and

(f)  the provisions of this Act and any instrument made under this Act that applied to the lands by reason only of the publication of the proclamation cease to apply to the lands.

71BC   Addition of lands not already reserved under Act

(1)  The Governor may, by proclamation published in the Gazette, reserve or dedicate, as part of an area leased under this Part any of the following:

(a)  Crown lands,

(b)  lands of the Crown,

(c)  lands acquired under section 145, 146 or 148,

(d)  Aboriginal lands.

(2)  On the publication of the proclamation:

(a)  the lands described in the proclamation become Crown lands to the extent to which they were not Crown lands immediately before that publication, and

(b)  if a trustee of all or any part of the lands so described was holding office under any this or any other Act immediately before that publication, the trustee ceases to hold that office in respect of those lands, and

(c)  any by-laws or regulations that, immediately before that publication, applied to the lands cease to apply so far as they relate to the lands, and

(d)  the lands are reserved as part of the area, and

(e)  the lands are vested, or in the case of Aboriginal lands, remain vested, in the Aboriginal Land Council or Councils in which the area is vested, and

(f)  the care, control and management of the lands is to be exercised:

(i)  by the board of management for the area, or

(ii)  if a board of management has not been established for the area, by the Director-General until a board of management is established for the area, and

(g)  the lease over the area is taken to extend and apply to the lands in the same way that it applies to the area, and

(h)  the provisions of this Act and any instrument made under this Act (including any plan of management or regulations) apply to the lands in the same way that they apply to the area.

(3)  Subsection (2) applies, in relation to the lands added to the area, subject to the following:

(a)  any native title rights and interests in relation to the lands,

(b)  any existing interest within the meaning of section 39.

(3A)  Despite subsection (2) (h), a plan of management applying to land in an area already leased and reserved under this Part only applies to lands added to the area if the plan of management already applies to lands of the same reservation category.

Note. For example, if the plan of management applies only to land reserved as a national park and the added land is to be reserved as a state conservation area, the plan of management will not apply to the newly added state conservation area land.

(4)  To the extent to which a reservation (other than a reservation under Division 4 or this Division), Crown grant or vesting affects lands described in a proclamation published under this section, the publication revokes the reservation, grant or vesting, and the instruments of title (if any) must be surrendered for cancellation or notation.

(5)  In this section, Aboriginal lands, in relation to an Aboriginal Land Council or Councils that are the lessors of an area leased under this Part, means:

(a)  lands owned in fee simple by the Aboriginal Land Council or Councils (other than lands referred to in paragraph (b)), or

(b)  lands granted to the Aboriginal Land Council or Councils under Part 2 of the Aboriginal Land Rights Act 1983, whether or not subject to conditions of the kind referred to in section 36A (2) of that Act,

      that the Aboriginal Land Council or Councils have requested, by written notice served on the Minister, be reserved as part of the area vested in the Aboriginal Land Council or Councils.

71BD   Application of certain provisions to additional lands

(1)  Sections 71R, 71S and 71T apply to and in respect of lands added to an area reserved under this Part in the same way that they apply to and in respect of lands reserved under Division 3 or 4 except as provided in this section.

(2)  Despite subsection (1), sections 34, 47C, 47I (as substituted by the National Parks and Wildlife Amendment Act 1996), 47Q (as inserted by the National Parks and Wildlife Amendment Act 1996), 47Z (as inserted by that Act), 49, 50, 58B and 58N apply to and in respect of lands reserved under this Part.

71BE   Review of lease after addition of lands

(1)  A party to a lease under this Part may request a review of the provisions of the lease if:

(a)  lands are added to the lands originally leased, and

(b)  the next regular review of the lease in accordance with the requirements of Division 5 is not due within the 2 years next following the date of publication of the proclamation by which lands are added to the lands originally leased.

(2)  Section 71AH applies to and in respect of the review of a lease under this section in the same way that it applies to and in respect of a lease referred to in that section.

Division 9 Miscellaneous

71BF   Application of Division

This Division applies to and with respect to Schedule 14 lands and ALR Act lands.

71BG   Aboriginal Land Councils to act with agreement of Aboriginal owner board members

An Aboriginal Land Council or Councils in which reserved or dedicated lands are vested must, when exercising any power, authority, duty or function conferred or imposed on it or them under this Act or under the lease of the lands made under this Part (but subject to the requirements of this Act and any instrument, including the lease, made under this Act), act only with the agreement of the Aboriginal owner board members for the lands.

71BH   Regard to be had to interests of Aboriginal owners

The Director-General and the National Parks and Wildlife Service must, when exercising any power, authority, duty or function conferred or imposed on them under this Act in relation to management of the lands to which this Part applies (but subject to the requirements of this Act and any instrument, including the lease, made under this Act), have regard to the interests of the Aboriginal owners of the lands concerned.

71BI   Land management activities subject to native title

(1)  Despite any other provision of this Act:

(a)  the exercise of functions by a board of management, and

(b)  the exercise of powers, authorities, duties and functions by the Director-General and the National Parks and Wildlife Service,

      in relation to the management of the lands to which this Part applies is subject to the preservation of native title rights and interests (if any) that exist in relation to the lands.

(2)  If at any time an approved determination of native title is made that native title exists in relation to lands to which this Part applies, the Minister, the Aboriginal Land Council or Councils in which the lands concerned are vested and the board of management for the lands are authorised to enter into arrangements with the common law native title holders or their representatives (or both) to ensure that the native title rights and interests in relation to the lands are preserved.

(3)  An arrangement of the kind referred to in subsection (2) may be entered into despite any provision of this or any other Act or law and despite the fact that the entry into of the arrangement may involve the breach of another previously concluded arrangement.

(4)  No compensation is payable in respect of the breach of an arrangement because of the operation of this section.

Note. Approved determination of native title is defined in section 253 of the Native Title Act 1993 of the Commonwealth.

71BJ   Arbitration of disputes

(1)  Any dispute between:

(a)  the Director-General and a board of management, or

(b)  the Minister or Director-General and an Aboriginal Land Council or Councils,

      concerning matters arising under this Part (other than matters in respect of which a direction has been given to the Director-General by a board of management in accordance with this Part) is to be arbitrated by a panel of 3 arbitrators.

(2)  One of the 3 arbitrators is to be appointed by the Director-General, one by the board of management for the lands concerned and the third by agreement between the first 2 arbitrators or, failing such agreement, by the Chief Judge of the Land and Environment Court.

(3)  The procedures to apply to an arbitration are to be determined by the panel of arbitrators.

(4)  In conducting an arbitration, the arbitrators are to have regard to:

(a)  the preservation of the rights and interests of native title holders, and

(b)  the views on the subject of the dispute expressed by the Aboriginal owner board members,

      in relation to the lands concerned.

(5)  The regulations may make provision with respect to the arbitration of disputes under this section including as to the fixing and payment of the remuneration and expenses of the arbitrators.

71BK   Dissolution of Local Aboriginal Land Council

(1)  If lands to which this Part applies are vested:

(a)  in one Local Aboriginal Land Council and that Council is dissolved, or

(b)  in more than one Local Aboriginal Land Council and each of the Councils in which the lands are vested is dissolved,

      the lands are on and from the date of dissolution vested in the Aboriginal owners of the lands recorded in the register of Aboriginal owners until a new Aboriginal Land Council or Councils are constituted for the area or areas that constituted or included the area or areas of the dissolved Aboriginal Land Council or Councils.

(2)  On the constitution of the new Aboriginal Land Council or Councils, the lands vest in that Council or those Councils.

(3)  If lands to which this Part applies are vested in more than one Aboriginal Land Council and one or more but not all of the Councils in which the lands are vested are dissolved, on constitution of a new Aboriginal Land Council or Councils to replace the dissolved Council or Councils, the lands vest in that new Council or those new Councils for the interest held immediately before the dissolution by the dissolved Council or Councils.

71BL   Status of leased lands and board of management

(1)  A lease of lands to the Minister under this Part is taken, for the purposes of any Act or law, not to be a lease of lands for private purposes.

(2)  Each board of management is taken, for the purposes of the Environmental Planning and Assessment Act 1979 and any regulation or planning instrument made under that Act, to be a public authority and, for all purposes under that Act and any such regulation or planning instrument, to occupy in respect of the lands of which it has care, control and management under this Part, the same position that the Director-General occupies in respect of lands of which the Director-General has care, control and management under this Act.

71BM   Omission of land from Schedule 14

Schedule 14 may be amended by the omission of lands only by Act of Parliament.

71BN   Review of Part

(1)  The Minister is to review the operation of this Part to determine whether the policy objectives of the Part remain valid and whether the terms of the Part remain appropriate for securing those objectives.

(2)  The review is to be undertaken as soon as possible after the period of 5 years from the date of assent to the National Parks and Wildlife Amendment (Aboriginal Ownership) Act 1996.

(3)  A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years.

Part 5 Plans of management

71BO   Definitions

In this Part:

appropriate regional advisory committee means, in relation to land reserved under this Act, the regional advisory committee constituted for the administrative region in which the reserved land is situated.

responsible authority, in relation to a plan of management, means the person or body who or which has responsibility under sections 72, 72A, 73 or 75 for preparing, or causing to be prepared, the plan of management.

72   Preparation of plans of management

(1)  The Director-General:

(a)  shall cause a plan of management to be prepared for each national park and historic site in existence on the commencement day, as soon as practicable after that day, unless a plan of management was adopted with respect thereto under the Act of 1967,

(b)  shall cause a plan of management to be prepared for each nature reserve in existence on the commencement day, as soon as practicable after that day, unless a scheme of operations was approved with respect thereto under the Fauna Protection Act 1948,

(c)  shall cause a plan of management to be prepared for each historic site, nature reserve, karst conservation reserve or national park reserved after the commencement day, as soon as practicable after the reservation,

(d)  may from time to time cause a plan of management to be prepared for any Aboriginal area, wildlife refuge or wildlife management area, and

(e)  may from time to time, after consulting with the owner, cause a plan of management to be prepared for a conservation area.

(1A)  The Director-General is to cause a plan of management to be prepared for each state conservation area, and for each regional park (other than a park that is under the care, control and management of a local council), as soon as practicable after the reservation of the land concerned.

(1B)  If a local council is nominated by the Minister to have the care, control and management of a regional park, the council is to cause a plan of management to be prepared for the regional park as soon as practicable after the reservation of the land concerned.

(1BA)  The responsible authority is to seek the advice of the appropriate regional advisory committee in the preparation of a plan of management, other than a plan of management prepared for lands reserved under Part 4A or lands within Zone 1, 2 or 3 of the Community Conservation Area under the Brigalow and Nandewar Community Conservation Area Act 2005.

Note. The responsible authority is to consult with the relevant Community Conservation Advisory Committee established under the Brigalow and Nandewar Community Conservation Area Act 2005 in the preparation of a plan of management for lands within Zone 1, 2 or 3 of the Brigalow and Nandewar Community Conservation Area.

(1C)  A plan of management for lands reserved or dedicated under Part 4A is to be prepared by the board of management for the lands concerned in consultation with the Director-General.

(1D)  If a part or parts only of lands listed in Schedule 14 are reserved or dedicated under Part 4A:

(a)  the Director-General may prepare a separate plan of management for the part or parts of the lands that are not so reserved or dedicated in accordance with this Part, or

(b)  the Director-General and the board of management may agree that the plan of management prepared for the lands reserved or dedicated under Part 4A should extend and apply to the lands that are not so reserved or dedicated in which event the provisions of this Part applying to the preparation of plans of management by boards of management apply to the plan.

(1E)  Subsections (1C) and (1D) do not require a plan of management to be prepared if an existing plan of management is in force when the lands are reserved or dedicated under Part 4A. However, any such existing plan, in so far as it relates to lands reserved or dedicated under Part 4A, must be reviewed by the board of management for the lands concerned within 2 years after the lands are so reserved or dedicated and may be amended, altered or cancelled in accordance with this section.

(1F)  Without limiting subsection (1) (c), in the case of lands for which a plan of management is not in force when the lands are reserved or dedicated under Part 4A, a plan of management is to be prepared by the board of management for the lands within 5 years after that reservation or dedication.

(1G)–(4)  (Repealed)

(5)  This section does not apply to or in respect of a wildlife refuge or conservation area that is comprised wholly or partly of lands within a State forest.

72AA   Objectives and content of plans of management

(1)  The following matters are to be taken into consideration in the preparation of a plan of management for land reserved under this Act:

(a)  the relevant management principles,

(b)  the conservation of biodiversity, including the maintenance of habitat, ecosystems and populations of threatened species,

(c)  the protection and appreciation of objects, places and structures of cultural significance, and tracts of land,

(d)  the protection of landscape values and scenic features,

(e)  the protection of geological and geomorphological features,

(f)  the protection of wilderness values and the management of wilderness areas,

(g)  the maintenance of natural processes,

(h)  the rehabilitation of landscapes and the reinstatement of natural processes,

(i)  fire management,

(j)  in the case of a plan of management for a national park, nature reserve or karst conservation reserve, the prohibition of the execution of any works adversely affecting the natural condition or special features of the park or reserve,

(k)  the potential for the reserved land to be used by Aboriginal people for cultural purposes,

(l)  the provision of opportunities for public understanding and appreciation of natural and cultural heritage values, including opportunities for sustainable visitor or tourist use and enjoyment of the reserved land,

(m)  the adaptive reuse of buildings and structures,

(n)  the appropriate (including culturally appropriate) and ecologically sustainable use of the reserved land, including use by lessees, licensees and occupiers of the land,

(o)  the preservation of catchment values,

(p)  the encouragement of appropriate research into natural and cultural features and processes, including threatening processes,

(q)  the identification and mitigation of threatening processes,

(r)  the statutory natural resource management, land use management plans and land management practices of land surrounding or within a region of the reserved land,

(s)  the regional, national and international context of the reserved land, the maintenance of any national and international significance of the reserved land and compliance with relevant national and international agreements, including the protection of world heritage values and the management of world heritage properties,

(t)  benefits to local communities,

(u)  the social and economic context of the reserve so as to ensure, for example, that the provision of visitor or tourist facilities is appropriate to the surrounding area or that pest species management programs are co-ordinated across different tenures,

(v)  the protection and management of wild rivers,

(w)  the impact of the management and the use of land acquired under Part 11 on the reserved land’s management.

(2)  A plan of management must include the means by which the responsible authority proposes to achieve the plan’s objectives and performance measures.

(3)  The matters referred to in subsection (1) (b)–(s) are to be taken into account, where appropriate, in the preparation of a plan of management for a wildlife refuge, wildlife management area or conservation area.

(4)  A plan of management is to contain a written scheme of operations which it is proposed to undertake in relation to the land that is the subject of the plan of management.

(5)  The written scheme of operations for a plan of management must:

(a)  if the plan is for land within a conservation area, relate to the carrying out of operations for the purpose and objects of the conservation agreement, and

(b)  if the plan is for land within a State forest, be consistent with the purpose and objects of this Act and the Forestry Act 2012.

(5A)  A plan of management for a karst conservation reserve is to include environmental performance standards and indicators for the purposes of section 151D (1) that ensure the environmental values of the reserve are conserved or restored.

(6)  Without limiting subsection (1), a plan of management may do any one or more of the following:

(a)  (Repealed)

(b)  in relation to land within a state conservation area, specify any activity proposed to be permitted in any part of the area and the nature of any development proposed to be carried out to encourage the use of that part for the activity so specified,

(c)  in relation to land reserved under Part 4A, provide for the use of the land for any community development purpose prescribed by the regulations.

(7)  A plan of management for a national park, historic site, nature reserve or karst conservation reserve may relate to land acquired or occupied, or proposed to be acquired or occupied, under Part 11.

72A   Plans of management for combined areas and areas adjoining State borders

(1)  A single plan of management may be prepared under this Part for a combination of contiguous or related areas for which separate plans of management may be prepared under this Part or under the Wilderness Act 1987.

(2)  With the consent or on the request of the Minister, the Director-General may, together with the relevant authority of another State or a Territory, cause a joint plan of management to be prepared for an area comprising an area within that other State or Territory and an area for which a plan of management may be prepared under this Part or under the Wilderness Act 1987.

(3)  The provisions of this Act or the Wilderness Act 1987 with respect to a plan of management for a particular area apply to:

(a)  a single plan of management referred to in subsection (1), or

(b)  a joint plan of management referred to in subsection (2),

      in so far as any such plan relates to any such area.

(4)  A plan of management prepared in accordance with this section may include provisions relating to any or all of the following types of land:

(a)  land reserved under Part 4,

(b)  land reserved under Part 4A,

(c)  land acquired or occupied or proposed to be acquired or occupied under Part 11.

73   State forests

(1)  The Director-General may, from time to time, with the concurrence in writing of the Forestry Corporation, cause a plan of management to be prepared for any State forest.

(2)  (Repealed)

(3)  This section applies to and in respect of a State forest that is comprised wholly or partly of lands within a wildlife refuge or conservation area or that is not comprised of any such lands.

73A   Public exhibition of and consultation on plans of management

(1)  When a plan of management is prepared, the responsible authority is to give notice of the preparation of the plan in accordance with the regulations.

(2)  The notice is to include:

(a)  the address of the place at which copies of the plan of management may be inspected, and

(b)  the address to which representations may be forwarded, and

(c)  the period within which such representations may be made, being a period of not less than 90 days from the date on which the notice is made public.

(3)  The responsible authority for a plan of management for a national park, historic site, state conservation area, regional park, nature reserve, karst conservation reserve or Aboriginal area must forward the plan of management and any representations received within the time for making representations specified in the notice to the appropriate regional advisory committee and the Council.

(4)  The appropriate regional advisory committee must consider the plan of management and representations and provide the Council with such advice as the committee considers appropriate.

(5)  The Council must consider the plan of management, the representations and any advice received from the appropriate regional advisory committee and provide the Minister with such advice as it considers appropriate.

(6)  The Council must send a copy of any advice it provides to the Minister to the appropriate regional advisory committee and the appropriate regional advisory committee may provide comments to the Minister within 30 days of receiving the copy of the advice.

(7)  Subsection (3) does not apply to a plan of management for land reserved under Part 4A. However, the responsible authority for such a plan of management is to forward any representations received within the time for making representations specified in the notice to the Council for consideration and advice.

(8)  This section does not apply in relation to a plan of management for land within Zone 1, 2 or 3 of the Community Conservation Area under the Brigalow and Nandewar Community Conservation Area Act 2005.

73B   Adoption, amendment and cancellation of plans of management

(1)  After considering the representations made under section 73A and any advice from the Council, the Minister may adopt a plan of management without alteration or with such alterations as the Minister may think fit or may refer it back to the responsible authority and the Council for further consideration.

(2)  The Minister is to refer the plan of management back to the responsible authority for consideration if the Minister has not adopted the plan within 12 months after receiving it for consideration.

(3)  The Minister may, on the recommendation of the responsible authority:

(a)  amend or alter a plan of management from time to time, or

(b)  cancel a plan of management, or

(c)  cancel a plan of management and substitute a new plan of management.

(4)  If the Minister proposes to amend or alter a plan of management, or to cancel a plan of management and substitute a new plan of management, the Minister is to instruct the responsible authority to cause the amendment, alteration or new plan of management to be prepared.

(5)  The responsible authority is to cause the amendment, alteration or new plan of management to be prepared as soon as possible.

(6)  The Minister may take action under subsection (1) or (3):

(a)  in relation to a plan of management for a wildlife refuge—only with the consent in writing of the owner or holder, and the occupier, of the land to which the plan of management relates, or

(b)  in relation to a plan of management for a conservation area or proposed conservation area—only with the consent in writing of the owner of the land to which the plan of management relates, or

(c)  in relation to a plan of management for a State forest—only with the concurrence in writing of the Forestry Corporation.

(7)  Section 72AA, 73A, 74, 75 and subsections (1)–(6) apply to and in respect of an amendment, alteration or substitution of a plan of management in the same way as they apply to the preparation of a new plan of management.

However, in relation to an amendment or alteration of a plan of management, the reference in section 73A (2) (c) (as applied) to “90 days” is taken to be a reference to “45 days”.

(8)  Despite the other provisions of this section, the Minister is to cancel a plan of management for a State forest at the request in writing of the Forestry Corporation.

Note. Sections 74 and 80 include other provisions relating to the adoption, amendment and cancellation of plans of management for certain land.

74   Catchment areas and special areas—generally

(1)  This section applies where:

(a)  any lands reserved as a national park, historic site, state conservation area, regional park, nature reserve, karst conservation reserve or Aboriginal area or that comprise a wilderness area within the meaning of the Wilderness Act 1987 are wholly or partly within a catchment area or special area of a water authority, or

(b)  the waters from any lands so reserved drain into a catchment area, special area or structure of a water authority.

(1A)  This section does not apply to land referred to in subsection (1) (a) that is wholly or partly within a special area within the meaning of the Hunter Water Act 1991.

(2)  The Director-General (or, if a regional park is under the care, control and management of a local council, the council) must, before submitting to the Minister a plan of management for the national park, historic site, state conservation area, regional park, nature reserve, karst conservation reserve, Aboriginal area or wilderness area:

(a)  refer the plan to the relevant water authority for its information, and

(b)  also refer the plan to the Director-General of the Department of Land and Water Conservation if the relevant water authority is the Hunter Water Corporation.

(3)  The Minister must, before adopting the plan of management, consider any representations made by the relevant water authority and (in a case involving the Hunter Water Corporation) the Director-General of the Department of Land and Water Conservation.

(4)  In this section, water authority means the Sydney Water Corporation, the Sydney Catchment Authority, the Hunter Water Corporation or a water supply authority within the meaning of the Water Management Act 2000.

75   Special areas under the Hunter Water Act 1991—joint preparation and approval of plans of management

(1)  This section applies to land that:

(a)  is reserved as a national park, historic site, state conservation area, regional park, nature reserve, karst conservation reserve or Aboriginal area, and

(b)  is wholly or partly within a special area within the meaning of the Hunter Water Act 1991.

(2)  The Director-General and the Chief Executive Officer of the Hunter Water Corporation have joint responsibility for:

(a)  causing any plan of management for land to which this section applies to be prepared under section 72 (1) or (1A), and

(b)  carrying out and giving effect to any such plan of management under section 81.

(3)  In the case of a plan of management for land to which this section applies that is a regional park under the care, control and management of a local council, the council and the Chief Executive Officer of the Hunter Water Corporation have joint responsibility for:

(a)  causing any plan of management for the land to be prepared under section 72 (1B), and

(b)  carrying out and giving effect to any such plan of management under section 81.

(4)  The Minister, and the Minister administering Division 8 of Part 5 of the Hunter Water Act 1991, are jointly responsible for the adoption, amendment or alteration, cancellation or substitution of any such plan of management. For this purpose, a reference to the Minister in sections 73B and 81 is taken to be a reference to both of those Ministers.

(5)  If the whole or any part of land reserved as a national park, historic site, state conservation area, regional park, nature reserve, karst conservation reserve or Aboriginal area is declared, after it is so reserved, to be a special area under the Hunter Water Act 1991, a plan of management for the land is to be prepared as soon as practicable after the whole or part of the land is declared to be a special area.

75A–79   (Repealed)

79A   Lapsing of plans of management

(1)  A plan of management for lands reserved under Part 4A expires on the tenth anniversary of the date on which it was adopted unless it is sooner cancelled under this Part.

(2)  Not less than 6 months before a plan of management expires, the board of management for the lands concerned must prepare a new plan of management to replace it.

(3)  The board of management is to have regard to a plan of management that has expired until the new plan of management comes into effect.

80   Lands submerged by water

(1)  Where lands submerged by water are lands that are the subject of any part of a plan of management for a national park, historic site, state conservation area, regional park, nature reserve, karst conservation reserve or Aboriginal area, the plan, before being made or adopted by the Minister, shall be referred to the Minister administering the Fisheries Management Act 1994.

(2)  A plan of management referred to in subsection (1):

(a)  shall not be adopted, amended, altered or cancelled by the Minister in so far as it relates to Crown lands within the meaning of paragraph (a) of the definition of Crown lands in section 5 (1) (other than Crown lands to which paragraph (b) of this subsection applies), until the Minister has considered any representations made with respect to the plan of management by the Minister administering the Fisheries Management Act 1994, and

(b)  shall not be adopted, amended, altered or cancelled by the Minister in so far as it directly relates to the intertidal zone or Crown lands within the meaning of paragraph (b) of the definition of Crown lands in section 5 (1), without the concurrence in writing of the Minister administering the Fisheries Management Act 1994.

81   Operations under plan of management

(1)  Where the Minister has adopted a plan of management for a national park, historic site, nature reserve, karst conservation reserve, Aboriginal area or wildlife refuge, it shall, subject to subsections (5) and (6), be carried out and given effect to by the Director-General.

(2)  Where the Minister has adopted a plan of management for a conservation area, it shall be carried out and given effect to by the Director-General, the owner (within the meaning of Division 7 of Part 4) of the area and any successors in title (within the meaning of section 69E) to the owner.

(3)  Where the Minister has adopted a plan of management for a State forest, it shall be carried out and given effect to by the Director-General by arrangement with the Forestry Corporation.

(3A)  If the Minister has adopted a plan of management for a state conservation area or a regional park, it is to be carried out and given effect to:

(a)  by the Director-General, or

(b)  by the relevant state conservation area trust or regional park, trust, or

(c)  by the local council (if any) that has the care, control and management of the regional park.

(4)  Despite anything in this or any other Act or in any instrument made under this or any other Act, if the Minister has adopted a plan of management under this Part, no operations shall be undertaken in relation to the lands to which the plan relates unless the operations are in accordance with that plan. However, this subsection does not prevail over section 185A.

(5)  Where any lands to which a plan of management relates are:

(a)  lands acquired or proposed to be acquired under Part 11 for any purpose referred to in section 145—operations under the plan shall not be undertaken on or in relation to the lands until they have been reserved as, or as part of, the park, site or reserve, as the case may require, to which the plan relates, or

(b)  lands proposed to be acquired or occupied under Part 11 for any purpose referred to in section 146—operations under the plan shall not be undertaken on or in relation to the lands until they have been so acquired or occupied.

(6)  If the Minister has adopted a plan of management for lands reserved under Part 4A, it is to be carried out and given effect to by the board of management for the lands.

81A   Leases, licences and easements subject to plan of management

Without limiting the generality of this Part, this Part has effect in respect of any part of a national park, historic site, nature reserve, karst conservation reserve, state conservation area, regional park or Aboriginal area that is the subject of a lease, licence or easement granted under Part 12.

82   Concurrence of Forestry Corporation

Where the concurrence of the Forestry Corporation is required under this Part, the concurrence shall not be given without the approval of the Minister administering the Forestry Act 2012.

Part 6 Aboriginal objects and Aboriginal places

Division 1 General

83   Certain Aboriginal objects to be Crown property

(1)  Subject to this section:

(a)  an Aboriginal object that was, immediately before the commencement day, deemed to be the property of the Crown by virtue of section 33D of the Act of 1967, and

(b)  an Aboriginal object that is abandoned on or after that day by a person other than the Crown,

      shall be, and shall be deemed always to have been, the property of the Crown.

(2)  Nothing in this section shall be construed as restricting the lawful use of land or as authorising the disturbance or excavation of any land.

(3)  No compensation is payable in respect of the vesting of an Aboriginal object by this section or section 33D of the Act of 1967.

84   Aboriginal places

The Minister may, by order published in the Gazette, declare any place specified or described in the order, being a place that, in the opinion of the Minister, is or was of special significance with respect to Aboriginal culture, to be an Aboriginal place for the purposes of this Act.

85   Director-General’s responsibilities as to Aboriginal objects and Aboriginal places

(1)  The Director-General shall be the authority for the protection of Aboriginal objects and Aboriginal places in New South Wales.

(2)  In particular, the Director-General shall be responsible:

(a)  for the proper care, preservation and protection of any Aboriginal object or Aboriginal place on any land reserved under this Act, and

(b)  subject to Division 2, for the proper restoration of any such land that has been disturbed or excavated in accordance with an Aboriginal heritage impact permit.

85A   Transfer of Aboriginal objects

(1)  The Director-General may, despite any other provision of this Act, dispose of Aboriginal objects that are the property of the Crown:

(a)  by returning the Aboriginal objects to an Aboriginal owner or Aboriginal owners entitled to, and willing to accept possession, custody or control of the Aboriginal objects in accordance with Aboriginal tradition, or

(b)  by otherwise dealing with the Aboriginal objects in accordance with any reasonable directions of an Aboriginal owner or Aboriginal owners referred to in paragraph (a), or

(c)  if there is or are no such Aboriginal owner or Aboriginal owners—by transferring the Aboriginal objects to a person, or a person of a class, prescribed by the regulations for safekeeping.

(2)  Nothing in this section is taken to limit the right of an Aboriginal owner or Aboriginal owners accepting possession, custody or control of any Aboriginal object pursuant to this section to deal with the Aboriginal object in accordance with Aboriginal tradition.

(3)  The regulations may make provision as to the manner in which any dispute concerning the entitlement of an Aboriginal owner or Aboriginal owners to possession, custody or control of Aboriginal objects for the purposes of this section is to be resolved.

86   Harming or desecrating Aboriginal objects and Aboriginal places

(1)  A person must not harm or desecrate an object that the person knows is an Aboriginal object.

Maximum penalty:

(a)  in the case of an individual—2,500 penalty units or imprisonment for 1 year, or both, or (in circumstances of aggravation) 5,000 penalty units or imprisonment for 2 years, or both, or

(b)  in the case of a corporation—10,000 penalty units.

(2)  A person must not harm an Aboriginal object.

Maximum penalty:

(a)  in the case of an individual—500 penalty units or (in circumstances of aggravation) 1,000 penalty units, or

(b)  in the case of a corporation—2,000 penalty units.

(3)  For the purposes of this section, circumstances of aggravation are:

(a)  that the offence was committed in the course of carrying out a commercial activity, or

(b)  that the offence was the second or subsequent occasion on which the offender was convicted of an offence under this section.

This subsection does not apply unless the circumstances of aggravation were identified in the court attendance notice or summons for the offence.

(4)  A person must not harm or desecrate an Aboriginal place.

Maximum penalty:

(a)  in the case of an individual—5,000 penalty units or imprisonment for 2 years, or both, or

(b)  in the case of a corporation—10,000 penalty units.

(5)  The offences under subsections (2) and (4) are offences of strict liability and the defence of honest and reasonable mistake of fact applies.

(6)  Subsections (1) and (2) do not apply with respect to an Aboriginal object that is dealt with in accordance with section 85A.

(7)  A single prosecution for an offence under subsection (1) or (2) may relate to a single Aboriginal object or a group of Aboriginal objects.

(8)  If, in proceedings for an offence under subsection (1), the court is satisfied that, at the time the accused harmed the Aboriginal object concerned, the accused did not know that the object was an Aboriginal object, the court may find an offence proved under subsection (2).

Note. An offence against subsection (1), (2) or (4) 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.

87   Defences

(1)  It is a defence to a prosecution for an offence under section 86 (1), (2) or (4) if the defendant shows that:

(a)  the harm or desecration concerned was authorised by an Aboriginal heritage impact permit, and

(b)  the conditions to which that Aboriginal heritage impact permit was subject were not contravened.

(2)  It is a defence to a prosecution for an offence under section 86 (2) if the defendant shows that the defendant exercised due diligence to determine whether the act or omission constituting the alleged offence would harm an Aboriginal object and reasonably determined that no Aboriginal object would be harmed.

(3)  The regulations may provide that compliance with requirements specified in the regulations, or in a code of practice adopted or prescribed by the regulations, is taken for the purposes of subsection (2) to constitute due diligence in determining whether the act or omission constituting the alleged offence would harm an Aboriginal object.

(4)  It is a defence to a prosecution for an offence under section 86 (2) if the defendant shows that the act or omission constituting the alleged offence is prescribed by the regulations as a low impact act or omission.

(5)  The Minister is not to recommend the making of a regulation under subsection (3), unless:

(a)  the Director-General has, under subsection (6), set minimum standards for requirements specified in the regulations, or in a code of practice adopted or prescribed by the regulations, and

(b)  the Minister:

(i)  is satisfied that the requirements specified in the recommended regulation, or in the code of practice adopted or prescribed by the recommended regulation, meet those minimum standards, and

(ii)  has consulted with the Aboriginal Cultural Heritage Advisory Committee.

(6)  The Director-General may, for the purposes of subsection (5) set minimum standards for requirements specified in the regulations, or in a code of practice adopted or prescribed by the regulations, under subsection (3). The Director-General is to publish any such minimum standards in the Gazette.

(7)  The Minister is not to recommend the making of a regulation under subsection (4) unless the Minister has consulted with the Aboriginal Cultural Heritage Advisory Committee.

87A   Exemptions for certain activities

Section 86 (1)–(4) do not apply in relation to the following:

(a)  work for the conservation or protection of an Aboriginal object or place that is carried out by an officer of the Service or a person under the direction of such an officer,

(b)  any emergency fire fighting act or bush fire hazard reduction work within the meaning of the Rural Fires Act 1997 that is authorised or required to be carried out under that Act,

(c)  any thing authorised by or under the State Emergency and Rescue Management Act 1989 in relation to an emergency (within the meaning of that Act) and that was reasonably necessary in order to avoid an actual or imminent threat to life or property,

(d)  any thing specifically required or permitted under the express terms of a conservation agreement entered into under Division 12 of Part 4 of this Act (being an agreement that was entered into or modified after the commencement of this section).

87B   Exemption for traditional Aboriginal cultural activities

(1)  The object of this section is to exempt Aboriginal people from the provisions of section 86 that prohibit the harming of an Aboriginal object or place.

(2)  Aboriginal people are exempt from the provisions of section 86 (1), (2) and (4) to the extent to which those provisions would, but for this section, prohibit Aboriginal people from carrying out traditional cultural activities (except commercial activities).

(3)  This section applies to and in respect of any dependants (whether Aboriginal or not) of Aboriginal people in the same way as it applies to and in respect of Aboriginal people.

88   Australian Museum Trust to have custody of certain Aboriginal objects

(1)  Nothing in section 87 shall be construed as authorising the Director-General to permit an Aboriginal object to be removed from a national park, historic site, nature reserve, karst conservation reserve, Aboriginal area, state conservation area or regional park to the custody or control of a person other than the Australian Museum Trust, except where:

(a)  the Aboriginal object remains in the custody or under the control of the Director-General, or

(b)  the Aboriginal object is being moved from a national park, historic site, nature reserve, karst conservation reserve, Aboriginal area, state conservation area or regional park to any or any other national park, historic site, nature reserve, karst conservation reserve, Aboriginal area, state conservation area or regional park.

(2)  An Aboriginal object that is the property of the Crown, other than an Aboriginal object:

(a)  in a national park, historic site, nature reserve, karst conservation reserve, Aboriginal area, state conservation area or regional park,

(b)  being moved from a national park, historic site, nature reserve, karst conservation reserve, Aboriginal area, state conservation area or regional park to any or any other national park, historic site, nature reserve, karst conservation reserve, Aboriginal area, state conservation area or regional park,

(c)  in the custody or under the control of the Director-General, or

(d)  acquired by the Minister or the Director-General pursuant to section 89 or by the Minister pursuant to Part 11,

      shall be deemed not to be in the possession of the Crown unless it is in the custody or under the control of the Australian Museum Trust.

(3)  The Director-General may arrange with the Australian Museum Trust for the deposit or exhibition of an Aboriginal object in a building or structure in a national park, historic site, nature reserve, karst conservation reserve, Aboriginal area, state conservation area or regional park and, where an Aboriginal object is so deposited or exhibited, section 86 does not apply to the Australian Museum Trust in relation to that Aboriginal object.

(4)  Nothing in this Act shall be construed as affecting the powers, authorities, duties or functions conferred or imposed on the Australian Museum Trust by the Australian Museum Trust Act 1975.

89   Preservation or exhibition of certain Aboriginal objects

(1)  Subject to this section, the Minister or the Director-General may, by agreement with a person having the ownership or possession of:

(a)  an Aboriginal object that is not the property of the Crown, or

(b)  an Aboriginal place,

      acquire the Aboriginal object or take such other action as the Minister or the Director-General thinks is practicable for the preservation or exhibition of the Aboriginal object or Aboriginal place.

(2)  An Aboriginal object acquired under this section shall be the property of the Crown.

(3)  An Aboriginal object that is real property shall not be acquired under this section, but nothing in this section affects anything contained in Part 11.

(4)  Any Aboriginal object acquired by the Minister or the Director-General prior to the commencement day shall be deemed to have been acquired under this section.

89A   Notification of sites of Aboriginal objects

A person who is aware of the location of an Aboriginal object that is the property of the Crown or, not being the property of the Crown, is real property, and does not, in the prescribed manner, notify the Director-General thereof within a reasonable time after the person first becomes aware of that location is guilty of an offence against this Act unless the person believes on reasonable grounds that the Director-General is aware of the location of that Aboriginal object.

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.

Division 2 Aboriginal heritage impact permits

90   Aboriginal heritage impact permits

(1)  The Director-General may issue an Aboriginal heritage impact permit.

(2)  An Aboriginal heritage impact permit may be issued subject to conditions or unconditionally. However, a condition cannot be imposed on a permit if compliance with the condition would result in a breach of a requirement made by or under this Act.

(3)  An Aboriginal heritage impact permit may be issued in relation to a specified Aboriginal object, Aboriginal place, land, activity or person or specified types or classes of Aboriginal objects, Aboriginal places, land, activities or persons.

90A   Application for issue of permit

(1)  An application may be made to the Director-General for the issue of an Aboriginal heritage impact permit.

(2)  An application must:

(a)  be made in or to the effect of a form approved by the Director-General, and

(b)  contain or be accompanied by such documents and information as is required by regulations or by the Director-General (as indicated in the form or in material accompanying the form).

90B   Application for transfer of permit

(1)  An application may be made to the Director-General for the transfer of an Aboriginal heritage impact permit to another person.

Note. Section 90E requires the application to be made only with the consent in writing of the holder of the permit.

(2)  An application for the transfer of a permit must:

(a)  be made in or to the effect of a form approved by the Director-General, and

(b)  contain or be accompanied by such documents and information as is required by the Director-General (as indicated in the form or in material accompanying the form).

90C   Grant or refusal of application

(1)  The Director-General may grant or refuse an application for the issue or transfer of an Aboriginal heritage impact permit.

(2)  An application is granted by the issue or transfer of the permit concerned.

(3)  If the Director-General proposes to refuse such an application, the Director-General must before doing so:

(a)  give notice to the applicant that the Director-General intends to do so, and

(b)  specify in that notice the reasons for the Director-General’s intention to do so, and

(c)  give the applicant a reasonable opportunity to make submissions in relation to the matter, and

(d)  take into consideration any such submissions by the applicant.

(4)  A permit is issued or transferred by notice in writing given to the applicant.

Note. Section 90L enables appeals to be made in connection with permit applications within a specified period after the person is given notice of the decision concerned.

90D   Variation of permits

(1)  The Director-General may vary an Aboriginal heritage impact permit (including the conditions of such a permit).

(2)  A variation includes the imposing of a condition on a permit (whether or not any conditions have already been imposed), the substitution of a condition, the omission of a condition or the amendment of a condition.

(3)  A permit may be varied only on the application of the holder of the permit. However, the Director-General may vary a permit:

(a)  to correct a typographical error, or

(b)  to resolve an inconsistency between conditions to which the permit is subject.

(4)  A permit may be varied at any time during its currency, including (subject to section 90R) on its being transferred to another person.

(5)  A permit is varied by notice in writing given to the holder of the permit.

90E   Restrictions on making applications to transfer permits

An application for the transfer of an Aboriginal heritage impact permit may be made only with the consent in writing of the holder of the permit.

90F   Requirement for further information

(1)  If an application has been made under this Division, the Director-General may, by notice in writing given to the applicant, require the applicant to supply to the Director-General such further information as the Director-General considers necessary and relevant to the application and specifies in the notice.

(2)  In this section:

information includes plans and specifications.

90G   Suspension or revocation of permit

(1)  The Director-General may suspend or revoke an Aboriginal heritage impact permit.

(2)  A suspension or revocation of a permit is effected by notice in writing given to the holder of the permit.

(3)  A suspension may be for a specified period, or until the fulfilment of specified conditions, or until further order of the Director-General.

(4)  Without limiting subsection (1), a permit may be revoked while it is suspended.

(5)  The Director-General must not suspend or revoke a permit unless before doing so the Director-General has:

(a)  given notice to the holder of the permit that it intends to do so, and

(b)  specified in that notice the reasons for its intention to do so, and

(c)  given the holder of the permit a reasonable opportunity to make submissions in relation to the proposed revocation or suspension, and

(d)  taken into consideration any such submissions by the holder of the permit.

(6)  The reasons for suspending or revoking a permit may include (but are not limited to) the following:

(a)  the holder of the permit has obtained the permit improperly,

(b)  a condition of the permit has been contravened,

(c)  the activities covered by the permit are completed or no longer being carried on.

(7)  No fees are refundable on the suspension or revocation of a permit.

90H   Surrender of permit

An Aboriginal heritage impact permit may, on the written application of the holder of the permit, be surrendered with the written approval of the Director-General.

90I   Conditions of suspension, revocation or surrender

(1)  The Director-General may, by notice in writing, impose conditions on the suspension or revocation of, or the approval of the surrender of, an Aboriginal heritage impact permit.

(2)  Those conditions may include (but are not limited to) any conditions to which the permit was subject immediately before it was suspended, revoked or surrendered.

(3)  The Director-General may, by notice in writing, impose new conditions on, or vary or revoke any existing conditions of, the suspension, revocation or surrender of the permit.

Note. Section 90J makes it an offence to breach conditions under this section.

90J   Failure to comply with conditions

(1) Offences
If any condition of an Aboriginal heritage impact permit is contravened by any person, the holder of the permit (or, if more than one person holds the permit, each holder of the permit) is guilty of an offence.

(2)  If any condition to which a suspension or revocation of, or the approval of the surrender of, an Aboriginal heritage impact permit is subject is contravened by any person, the holder of the permit or former permit (or, if more than one person holds or held the permit or former permit, each holder of the permit or former permit) is guilty of an offence.

Maximum penalty (subsections (1) and (2)):

(a)  in the case of an individual—1,000 penalty units or imprisonment for 6 months, or both and, in the case of a continuing offence, a further penalty of 100 penalty units for each day the offence continues, or

(b)  in the case of a corporation—2,000 penalty units and, in the case of a continuing offence, a further penalty of 200 penalty units for each day the offence continues.

(3) Defence
The holder of an Aboriginal heritage impact permit or former Aboriginal heritage impact permit is not guilty of an offence against this section if the holder establishes that:

(a)  the contravention of the condition was caused by another person, and

(b)  that other person was not associated with the holder at the time the condition was contravened, and

(c)  the holder took all reasonable steps to prevent the contravention of the condition.

A person is associated with the holder for the purposes of paragraph (b) (but without limiting any other circumstances of association) if the person is an employee, agent, licensee, contractor or sub-contractor of the holder.

Note. An offence against subsection (1) or (2) 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.

90K   Factors to be considered in making determinations regarding permits

(1)  In making a decision in relation to an Aboriginal heritage impact permit, the Director-General must consider the following matters:

(a)  the objects of this Act,

(b)  actual or likely harm to the Aboriginal objects or Aboriginal place that are the subject of the permit,

(c)  practical measures that may be taken to protect and conserve the Aboriginal objects or Aboriginal place that are the subject of the permit,

(d)  practical measures that may be taken to avoid or mitigate any actual or likely harm to the Aboriginal objects or Aboriginal place that are the subject of the permit,

(e)  the significance of the Aboriginal objects or Aboriginal place that are the subject of the permit,

(f)  the results of any consultation by the applicant with Aboriginal people regarding the Aboriginal objects or Aboriginal place that are the subject of the permit (including any submissions made by Aboriginal people as part of a consultation required by the regulations),

(g)  whether any such consultation substantially complied with any requirements for consultation set out in the regulations,

(h)  the social and economic consequences of making the decision,

(i)  in connection with a permit application:

(i)  any documents accompanying the application, and

(ii)  any public submission that has been made under the Environmental Planning and Assessment Act 1979 in connection with the activity to which the permit application relates and that has been received by the Director-General,

(j)  any other matter prescribed by the regulations.

(2)  The Director-General, in making a decision in relation to an Aboriginal heritage impact permit, must not consider any matter other than the matters referred to in subsection (1).

90L   Appeals

(1)  An applicant for, or holder or former holder of, an Aboriginal heritage impact permit may appeal to the Land and Environment Court against any of the following decisions of the Director-General:

(a)  a decision to refuse any application in relation to an Aboriginal heritage impact permit or former permit,

(b)  a decision in relation to any condition to which a permit or former permit (or a surrender of a permit) is subject,

(c)  a decision to suspend or revoke a permit.

(2)  The Land and Environment Court:

(a)  may refuse to grant the appeal, or

(b)  may grant the appeal wholly or in part, and may give such directions in the matter as the Land and Environment Court thinks appropriate.

(3)  The decision of the Land and Environment Court on the appeal is final and is binding on the Director-General and the appellant, and is to be carried into effect accordingly.

(4)  The regulations may (but need not) prescribe the manner in which an appeal is to be made under this section.

(5)  An appeal under this section must be made within 21 days after the day the person was given notice of the decision being appealed.

(6)  For the purposes of this section, an application is taken to be refused (unless it is earlier granted or refused), and notice of that refusal is taken to have been given to the applicant, on the expiration of the period of 60 days after the date on which the application was received by the Director-General.

(7)  For the purposes of subsection (6), any period under section 90F during which an applicant is required to supply to the Director-General such further information is to be disregarded in determining whether the 60 day period referred to in that subsection has expired.

90M   Date from which decision operates

A decision of the Director-General in relation to an Aboriginal heritage impact permit operates from:

(a)  the date of the decision, or

(b)  if another later date is specified by the Director-General in the decision—that other date.

90N   Regulations relating to consultation

The regulations may make provision for or with respect to the following:

(a)  consultation that must be undertaken in relation to an application or proposed application that relates to an Aboriginal heritage impact permit (including the nature, extent and timing of the consultation),

(b)  the persons, or classes of persons, who must be so consulted (including but not limited to Aboriginal people with a cultural association with the object or land concerned),

(c)  the opportunity of persons, or classes of persons, so consulted to make submissions as part of the consultation.

90O   Interaction between permits and stop work and interim protection orders

For the avoidance of doubt, the existence of an Aboriginal heritage impact permit does not prevent the making of an order under Division 1 of Part 6A or an interim protection order under Division 2 of Part 6A.

90P   Validity of permits

The validity of the Aboriginal heritage impact permit cannot be questioned in any legal proceedings except in proceedings commenced in the Land and Environment Court before the expiration of 3 months from the date on which the issue of the permit was published on the public register.

90Q   Aboriginal Heritage Information Management System

(1)  The Director-General is to establish and keep a database to be known as the Aboriginal Heritage Information Management System (the AHIMS).

(2)  The AHIMS is to contain:

(a)  information and records regarding Aboriginal objects whose existence and location have been reported to the Director-General, and

(b)  copies of any reports that have been provided to the Director-General regarding Aboriginal objects and other objects, places and features of significance to Aboriginal people, and

(c)  any other information required by the regulations.

(3)  The purposes of the AHIMS are:

(a)  to maintain a record of Aboriginal objects whose existence and location have been reported to the Director-General, and

(b)  to maintain a copy of any report that has been provided to the Director-General relating to the assessment of objects, places and features that are or are likely to be of significance to Aboriginal people, and

(c)  to maintain a record of the details of any other report (of which the Director-General is aware) relating to the assessment of objects, places and features that are or are likely to be of significance to Aboriginal people, and

(d)  to allow access to the AHIMS:

(i)  by Aboriginal people and organisations and by academic researchers, and

(ii)  by or on behalf of persons exercising due diligence to determine whether an act or omission would harm an Aboriginal object for the purposes of section 87 (2), and

(iii)  by public and local authorities in the exercise of their land management, planning and other similar functions,

      but the AHIMS is not intended to be conclusive about whether any information or records contained within it is up-to-date, comprehensive or otherwise accurate.

(4)  The AHIMS is to be kept and maintained in such form as the Director-General thinks fit. Different parts of the AHIMS may be kept in different forms.

(5)  The regulations may prescribe any or all of the following:

(a)  the persons and classes of persons who may be granted access to information and records contained in the AHIMS,

(b)  the method of accessing the AHIMS,

(c)  the form in which access to the AHIMS is to be given (for example, whether by access to full records or summaries or through supplied maps or other forms of information),

(d)  the type of information or records that are available to be accessed from the AHIMS and any conditions or restrictions on the access to, and use of, that information or those records,

(e)  fees for access to the AHIMS and for copies or extracts of information and records kept on the AHIMS.

90R   Certain Aboriginal heritage impact permit conditions to run with the land

If an Aboriginal heritage impact permit relates to a specified parcel of land and an application is made under section 90B to transfer the permit to another person, the Director-General:

(a)  must not refuse the application, and

(b)  in granting the application, must not vary any of the conditions of the permit.

91   (Renumbered as section 89A)

Part 6A Stop work orders, interim protection orders and remediation directions

Division 1 Stop work orders

91AA   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 significantly affect:

(a)  protected fauna or native plants or their environment, or

(b)  an Aboriginal object or Aboriginal place, or

(c)  any other item of cultural heritage situated on land reserved under this Act,

      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 with respect to that environment or in the vicinity of those items 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 environment or place 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 authorised to be done by or under:

(a)  a licence granted under this Act or the Threatened Species Conservation Act 1995, or

(b)  the State Emergency and Rescue Management Act 1989 that is reasonably necessary in order to avoid a threat to life or property.

(3A)  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.

(4)  This section does not apply in relation to anything that is 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.

(5)  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 an order under this Division may be modified accordingly.

(6)  A person must not:

(a)  contravene an order under this section, or

(b)  cause or permit another person to contravene such an order.

Maximum penalty (subsection (6)):

(a)  in the case of a corporation—10,000 penalty units and, in the case of a continuing offence, a further penalty of 1,000 penalty units for each day the offence continues, or

(b)  in the case of an individual—1,000 penalty units and, in the case of a continuing offence, a further penalty of 100 penalty units for each day the offence continues.

Note. An offence against subsection (6) 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.

91BB   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.

91CC   Appeal to Minister

(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 (as described in section 6 (2) of the Protection of the Environment Administration Act 1991).

91DD   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.

91EE   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 environment of any protected fauna or native plants.

(2)  If, in the opinion of the Director-General, satisfactory arrangements cannot be made to protect the environment that is the subject of an order under this Division, the Director-General must recommend the making of an interim protection order under Division 2.

(3)  The Director-General must not recommend the making of an interim protection order in relation to anything that is authorised to be done by or under an authority referred to in section 91AA (3) or that is essential for a purpose referred to in section 91AA (4).

91FF   Order prevails over other instruments

(1)  If an order under this Division is in force in relation to an environment, an approval, notice or order (whether made or issued before or after the order pursuant to this Division) under any other Act that requires or permits the environment to be significantly affected is inoperative to the extent of the inconsistency with the order.

(2)  This section has effect whether the approval, notice, order or other instrument concerned was made before or after the making of the order under this Division.

Division 2 Interim protection orders

91A   Interim protection of areas having significant values

The Director-General may recommend to the Minister the making of an interim protection order in respect of an area of land:

(a)  which has, in the Director-General’s opinion, natural, scientific or cultural significance, or

(b)  on which the Director-General intends to exercise any of the Director-General’s powers, authorities, duties or functions under this Act or the Threatened Species Conservation Act 1995 relating to fauna, native plants, threatened species, populations or ecological communities or critical habitat of endangered species, populations or ecological communities, or

(c)  that is critical habitat or the habitat of a threatened species, population or ecological community.

91B   Interim protection orders

(1)  The Minister may, after considering a recommendation made under section 91A, make an interim protection order in respect of the area of land the subject of the recommendation.

(2)  An interim protection order shall take effect on the date of its publication in the Gazette or on a later date specified in the order.

(3)  An interim protection order may contain terms of a kind set out in the regulations, being terms relating to the preservation, protection and maintenance of the area of land, its fauna, plants, threatened species, populations and ecological communities and critical habitat of endangered species, populations and ecological communities and any Aboriginal object or place subject to the order.

91C   Notice of intention to make order not required

The Minister is not required, before making an interim protection order, to notify any person who will be affected by the order of the intention to make the order.

91D   Duration of interim protection order

(1)  An interim protection order has effect for such period, being not longer than 2 years, as is specified in the order.

(2)  An order ceases to have effect if the area of land subject to the order is reserved or dedicated under this Act or the order is revoked.

(3)  (Repealed)

91E   Revocation of interim protection order

(1)  The Minister may revoke an interim protection order by notice of revocation.

(2)  A notice of revocation shall take effect on the date of its publication in the Gazette or on a later date specified in the notice.

91F   Notice of making of interim protection order

The Minister shall cause notice of an interim protection order and its terms or of the revocation of such an order to be given, as soon as practicable after its publication in the Gazette, to:

(a)  any person who appears to the Minister to be an owner or occupier of the area of land subject to the order,

(b)  the Council,

(c)  the council in whose area (within the meaning of the Local Government Act 1993) the area of land subject to the order is situated, and

(d)  any other person the Minister thinks fit,

and shall consider any advice given by the Council relating to the order.

91G   Failure to comply with interim protection order

A person who is given notice of an interim protection order under section 91F must not:

(a)  contravene the terms of the order, or

(b)  cause or permit another person to contravene the terms of the order.

Maximum penalty:

(a)  in the case of a corporation—10,000 penalty units and, in the case of a continuing offence, a further penalty of 1,000 penalty units for each day the offence continues, or

(b)  in the case of an individual—1,000 penalty units and, in the case of a continuing offence, a further penalty of 100 penalty units for each day the offence continues.

Note. An offence against this section 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.

91H   Appeal against order

(1)  An owner or occupier of the whole or any part of an area of land subject to an interim protection order may appeal to the Land and Environment Court against the imposition of the order or any of its terms.

(2)  Such an appeal shall be made within the time and in the manner provided by the rules of the Court.

(3)  In deciding an appeal, the Court may have regard to:

(a)  any hardship caused to the owner or occupier by the imposition of the order or any of its terms, and

(b)  the purposes of the order.

(4)  In deciding such an appeal, the Court has all the functions and discretions of the Minister under this Part and may make such order as it thinks fit.

(5)  A decision of the Court on an appeal is final and shall be given effect to as if it were the decision of the Minister.

91I   Register of orders

(1)  The Director-General shall keep a register containing copies of interim protection orders as in force from time to time.

(2)  The register shall be open for public inspection during ordinary business hours, and copies of or extracts from the register shall be available, on payment of the fee fixed by the Director-General.

Division 3 Remediation directions

91J   Definitions

In this Division:

damage:

(a)  in relation to land reserved under this Act or acquired under Part 11, includes:

(i)  harming an animal, or picking a plant, that is in or on that land, or

(ii)  damming, diverting or polluting any waters on that land, or

(iii)  damage to anything in or on the land (such as a building, structure, pipe, sign, gate, fence etc or any object or place of cultural value), or

(iv)  removal of anything, or part of anything, in or on the land, and

(b)  in relation to a plant, includes picking the plant, and

(c)  in relation to an animal, includes harming the animal.

landholder 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.

pollute waters has the same meaning as in the Protection of the Environment Operations Act 1997.

waters includes a stream, creek, river, estuary, dam, lake or reservoir.

91K   Directions for remedial work relating to damage to land, habitat and plants and animals

(1)  The Director-General may, by notice in writing, direct a person to carry out specified remediation work in a specified manner and within a specified time, if the Director-General is satisfied that:

(a)  any land reserved under this Act or acquired under Part 11, or

(b)  any critical habitat, or habitat of threatened species, an endangered population or an endangered ecological community, or

(c)  any plant or animal that is of, or is part of, a threatened species, an endangered population or an endangered ecological community,

      has been damaged in or as a result of the commission of an offence under this Act (whether or not any person has been proceeded against or convicted for the offence).

(2)  The specified remediation work to be carried out by a person may include one or more of the following types of work:

(a)  work to control, abate or mitigate the damage to the land, habitat, plant or animal concerned,

(b)  work to maintain, remediate or restore the damaged land, habitat, plant or animal concerned (including replacing removed or dead plants or animals).

(3)  A direction under this section may be varied or revoked by a further notice in writing.

91L   Directions for remedial work relating to harm to Aboriginal objects and places

(1)  The Director-General may, by notice in writing, direct a person to carry out specified remediation work in a specified manner and within a specified time, if the Director-General is satisfied that:

(a)  any Aboriginal object, or

(b)  any Aboriginal place,

      has been harmed in or as a result of the commission of an offence under this Act (whether or not any person has been proceeded against or convicted for the offence).

(2)  The specified remediation work to be carried out by a person may include one or more of the following types of work:

(a)  work to control, abate or mitigate the harm to the Aboriginal object or Aboriginal place concerned,

(b)  work to protect, conserve, maintain, remediate or restore the harmed Aboriginal object or Aboriginal place concerned.

(3)  A direction under this section may be varied or revoked by a further notice in writing.

91M   Persons to whom directions may be given

A direction under this Division may be given to any or all of the following persons:

(a)  the current or former landholder of any land affected by the damage or harm referred to in section 91K or 91L or on which such damage or harm occurred,

(b)  any other person the Director-General reasonably believes is responsible for that damage or harm or caused or permitted that damage or harm.

91N   Other ancillary actions that may be directed to be carried out

The Director-General in a direction under this Division may also direct a person to carry out the following actions:

(a)  ascertaining the nature and extent of the damage or harm concerned and furnishing the information or records obtained to other persons (including to the Director-General),

(b)  preparing, furnishing and carrying out a plan of action,

(c)  furnishing progress reports,

(d)  monitoring, sampling and analysing anything to ascertain the nature and extent of the harm concerned or the progress in remediating the harm,

(e)  vacating the land concerned (or part of it), ceasing to carry on, modifying, or not commencing, an activity on, or use of, the land (or part of it),

(f)  carrying on an activity (or an aspect of it) only during particular times or in a particular manner,

(g)  in relation to harm to an Aboriginal object or place, preparing a report on an activity’s likely impact on the Aboriginal object or Aboriginal place concerned,

(h)  construction, installation or removal of anything (including plants and structures such as fencing, walls, bunds or other barriers),

(i)  erecting or displaying on the land concerned any sign or notice containing directions to persons not to enter the land or not to use the land in a specified manner or for a specified purpose or containing other directions of that kind or any other kind,

(j)  refraining from disturbance or further disturbance of the land concerned in a specified manner or below a specified depth,

(k)  informing the Director-General of any change in the ownership or occupancy of the land concerned, to the extent that the person subject to the requirement is aware of the change,

(l)  in relation to harm to an Aboriginal object or place, consulting with Aboriginal community groups or representatives (for example to develop a strategy or plan in relation to the remediation work),

(m)  in relation to harm to an Aboriginal object, moving the object.

91O   Other person may carry out remediation work if failure to comply with direction

(1)  If a person fails to comply with a direction under section 91K or 91L, the Director-General may direct any other person to enter the land concerned and carry out all or part of the specified work.

(2)  The Director-General may recover the cost of that work from the person given the direction in any court of competent jurisdiction as a debt due by that person to the Crown.

91P   Entry to land to carry out direction

(1)  A person may enter land to carry out a direction under this Division.

(2)  Nothing in this Division authorises a person to enter any part of premises used only for residential purposes except with the consent of the occupier of the premises.

91Q   Failure to comply with remediation direction

(1)  A person must not, without reasonable excuse:

(a)  contravene a direction under this Division, or

(b)  cause or permit another person to contravene such a direction.

Maximum penalty:

(a)  in the case of a corporation—2,000 penalty units and 200 penalty units for each day the offence continues, or

(b)  in any other case—1,000 penalty units and 100 penalty units for each day the offence continues.

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.

(2)  For the purposes of subsection (1), an example of a reasonable excuse is that the person was unable to enter land because of the refusal of access to the land by its occupier, but entry to that land was essential for the person to avoid committing the relevant offence.

91R   Delay or obstruction of remediation direction

A person must not wilfully delay or obstruct another person:

(a)  who is carrying out any action in compliance with a direction under this Division, or

(b)  who is authorised to enter land and carry out work under this Division.

Maximum penalty:

(a)  in the case of a corporation—2,000 penalty units and 200 penalty units for each day the offence continues, or

(b)  in any other case—1,000 penalty units and 100 penalty units for each day the offence continues.

Note. An offence against this section 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.

91S   Recovery by person given notice

If the person given a direction under this Division complies with the direction but was not the person who caused the damage or harm concerned, the cost of complying with the direction may be recovered by the person who complied with the direction as a debt in a court of competent jurisdiction from the person who caused the damage or harm.

91T   Appeals under this Division

(1)  A person given a direction under this Division may appeal against the direction to the Land and Environment Court within 30 days of the service of the notice of the direction.

(2)  The lodging of an appeal does not, except to the extent that the Land and Environment Court otherwise directs in relation to the appeal, operate to stay action on the direction appealed against.

Part 7 Fauna

92   Director-General’s responsibilities as to fauna

The Director-General shall be the authority for the protection and care of fauna.

92A–92E   (Repealed)

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.

94A, 95   (Repealed)

96   Locally unprotected 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.

103   Harming fauna for sale

(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.

104   Fauna dealers

(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.

105   Skin dealers

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.

105A   Emu breeders

(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.

108   (Repealed)

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.

111   Method of shooting fauna

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.

112   Harming snakes

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.

Part 7A Marine mammals—special provisions

112A   Constitution of Marine Mammals Advisory Committee

(1)  There is constituted by this Act the Marine Mammals Advisory Committee.

(2)  The Committee shall consist of:

(a)  the Chairperson of the Committee who shall be the Director-General or an officer of the Service nominated by the Director-General, and

(b)  5 other persons appointed by the Minister.

(3)  Of the members appointed by the Minister:

(a)  one shall be a person nominated by the Minister administering the Fisheries Management Act 1994,

(b)  one shall be a person nominated by the Australian Museum Trust,

(c)  one shall be a person nominated by the Zoological Parks Board of New South Wales, and

(d)  2 shall be persons representing conservation organisations.

(4)  Schedule 8A has effect with respect to the members and procedure of the Committee.

112B   Functions of the Marine Mammals Advisory Committee

The Marine Mammals Advisory Committee shall have the following functions:

(a)  to advise the Minister on the conservation and protection of marine mammals,

(b)  to advise the Minister in relation to plans for dealing with strandings of marine mammals,

(c)  to advise the Minister on plans of management referred to it under this Part,

(d)  to advise and make recommendations on such matters relating to the administration of this Act with respect to marine mammals as are referred to it by the Minister.

112C   Preparation of plans of management for marine mammals

(1)  The Director-General may cause plans of management to be prepared for the management of populations of marine mammals.

(2)  A plan of management may deal with the following matters:

(a)  population distribution and abundance of marine mammals,

(b)  threats to the survival of species of marine mammals, populations of species of marine mammals or individual marine mammals,

(c)  research and strategies related to the conservation and protection of marine mammals,

(d)  educational activities which promote an appreciation of the value of marine mammal life or which relate to the conservation and protection of marine mammals,

(e)  international agreements or agreements between the States and the Commonwealth relating to marine mammals.

112D   Adoption etc of plan of management for marine mammals

(1)  Where a plan of management has been prepared for marine mammals under section 112C, the Director-General shall give notice as prescribed that the plan of management has been prepared and shall, in that notice:

(a)  specify the address of the place at which copies of the plan of management may be inspected, and

(b)  specify the address to which representations in connection with the plan of management may be forwarded.

(2)  Any person interested may, within one month or such longer period as may be specified in the notice, make representations to the Director-General in connection with the plan of management.

(3)  The Director-General shall, upon the expiration of the period referred to in subsection (2), refer the plan of management, and any representations forwarded to the Director-General, to the Marine Mammals Advisory Committee for its consideration and advice.

(4)  The Director-General shall thereupon submit the plan of management to the Minister together with any comments or suggestions of the Marine Mammals Advisory Committee.

(5)  The Minister shall, before adopting the plan of management, consider the comments and suggestions of the Marine Mammals Advisory Committee.

(6)  The Minister may adopt the plan of management without alteration or with such alterations as the Minister may think fit or may refer it back to the Director-General and the Marine Mammals Advisory Committee for further consideration.

(7)  The Minister may:

(a)  amend or alter a plan of management from time to time, or

(b)  cancel the plan and substitute a new plan.

(8)  Where the Minister proposes to amend or alter a plan of management or to cancel a plan of management and substitute a new plan of management, the Minister shall instruct the Director-General to cause the amendment or alteration or the new plan of management to be prepared, and the Director-General shall proceed to do so as soon as practicable after being so instructed.

(9)  Subsections (1) to (6), inclusive, apply to and in respect of an amendment or alteration referred to in subsection (8) in the same way as they apply to and in respect of a plan of management.

112E   Carrying out of plan of management

Where the Minister has adopted a plan of management, it shall be carried out and given effect to by the Director-General.

112F   Restriction on issue of licences to take marine mammals for exhibition etc

A licence is not to be issued under section 120 or section 132C to authorise a person to harm or obtain a marine mammal for exhibition or other purposes unless the authorised officer who issues the licence is satisfied that the marine mammal is required for genuine scientific or educational purposes or any other purpose connected with the conservation or protection of marine mammals.

112G   Approaching marine mammal

(1)  A person must not approach a marine mammal any closer than such distance as may be prescribed by the regulations or interfere with a marine mammal.

Penalty: 1,000 penalty units or imprisonment for 2 years or both.

(2)  If:

(a)  a person is convicted by the Land and Environment Court of an offence arising under this section, and

(b)  the Court is satisfied that the person committed the offence in the course of commercial operations relating to the killing of marine mammals,

      the maximum penalty that the Court may impose in respect of the offence is 2,000 penalty units.

(3)  A person must not be convicted of an offence under this section 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, a scientific licence under section 132C or a licence under Part 6 of the Threatened Species Conservation Act 1995.

(4)  If the provisions of any other Act or instrument made under any other Act authorise or require anything to be done that would constitute an offence under this section:

(a)  the provisions of this section prevail, except if the other Act is the Rural Fires Act 1997 or the State Emergency and Rescue Management Act 1989, and

(b)  a person must not to be convicted of an offence against the other Act or instrument because of the person’s failure to comply with the other Act or instrument if compliance with the other Act or instrument would constitute an offence under this section.

(5)  A reference in section 112F, 120, 129, 132C, 132D or 171 to harming any fauna includes, so far as is applicable in relation to a marine mammal, approaching or interfering with the marine mammal as referred to in subsection (1).

(6)  In this section, interfere with includes harass, chase, herd, tag, mark and brand.

Part 8 Native plants

113   Definitions

In this Part:

Christmas Bush means the native plant named Ceratopetalum gummiferum.

private land includes land leased from the Crown, or which is in the course of alienation by the Crown under any Act.

114   Director-General’s responsibilities as to native plants

The Director-General shall be the authority for the protection of native plants.

115   Amendment of Schedule 13 (protected native plants)

(1)  The Governor may, by order published on the NSW legislation website, amend Schedule 13:

(a)  by omitting therefrom the name of any species of native plant, or

(b)  by inserting therein the name of any species of native plant, or

(c)  by inserting a new part or group, or removing a part or group, or combining any parts or groups.

(2)  The Governor may, by order published on the NSW legislation website, amend this Act by omitting Schedule 13 and by inserting instead a Schedule containing the names of species of native plants.

115A   Management plans for protected native plants

(1)  The Director-General may cause a flora plan of management to be prepared for any commercial activity relating to a species or group of species of protected native plant if the Director-General is of the opinion that the activity has the potential to affect adversely the conservation of the species or group.

(2)  The Director-General may require consultation with the Scientific Committee established under Part 8 of the Threatened Species Conservation Act 1995 in the preparation of a flora plan of management.

(3)  In the preparation of a flora plan of management for a species of protected native plant the following matters are to be considered:

(a)  the ecology of the species,

(b)  the sustainability of the proposed management regime,

(c)  Aboriginal cultural practices,

(d)  standards to be adhered to in the picking or growing of plants,

(e)  whether limits need to be imposed on the number of licences that may be issued for a commercial activity if a licence is required to carry out the activity,

(f)  protocols for the extraction of plant material from the wild,

(g)  consistency with any threat abatement plan, or recovery plan, within the meaning of the Threatened Species Conservation Act 1995,

(h)  monitoring of the activity,

(i)  any other matters that the Director-General considers relevant.

(4)  Before a flora plan of management is adopted by the Director-General, the Director-General is to ensure that a draft of the plan is publicly exhibited and that a period of at least 30 days is given for the making of representations on the draft plan.

(5)  The Director-General is to consider any representations made within that period before adopting the flora plan of management.

(6)  The Director-General may amend or revoke a flora plan of management.

(7)  Subsections (2)–(5) apply to an amendment of a flora plan of management in the same way as they apply to the preparation and adoption of a flora plan of management.

(8)  The regulations may make provision for or with respect to treating flora plans of management (however described) prepared for the purposes of other legislation, including legislation of the Commonwealth, as flora plans of management for the purposes of this Act.

(9)  If a flora plan of management adopted by the Director-General provides that no protected native plant (or part of such a plant) is to be sold unless it is tagged in accordance with the flora plan of management, a person must not sell a protected native plant (or a part of such a plant) unless it is so tagged.

Maximum penalty: 100 penalty units and an additional 10 penalty units in respect of each whole plant that was affected by or concerned in the action that constituted the offence.

Note. The term sell is defined by section 5 to include:

(a)  auction, barter, exchange or supply,

(b)  offer, expose, supply or receive for sale,

(c)  send, forward or deliver for sale or on sale,

(d)  dispose of under a hire-purchase agreement,

(e)  cause, permit or suffer the doing of an act referred to in paragraph (a), (b), (c) or (d),

(f)  offer or attempt to do an act so referred to,

(g)  cause, permit or suffer to be sold,

(h)  attempt to sell or offer to sell, or

(i)  have in possession for sale.

116   Restriction as to licences under Forestry Act 2012

(1)  Notwithstanding anything in this Act or the Forestry Act 2012, but subject to subsection (2):

(a)  the Forestry Corporation shall not issue a licence for the removal of any protected native plant from any State forest, timber reserve or Crown land, and

(b)  any such licence shall cease to be operative while it relates to any protected native plant.

(2)  The Forestry Corporation may, in accordance with the Forestry Act 2012, authorise the removal of any protected native plant from a State forest, timber reserve or Crown land if:

(a)  the authorisation is subject to a condition that the removal is to be undertaken in accordance with any relevant flora plan of management in force under section 115A of this Act, or

(b)  the Forestry Corporation is of the opinion that the plant would be damaged or destroyed in the taking of timber, products or forest materials under, or in the carrying out of any activity authorised by, the Forestry Act 2012.

117   Restriction on picking or possession of native plant

(1)  A person shall not pick or have in the person’s possession a protected native plant.

Maximum penalty:

(a)  100 penalty units and an additional 10 penalty units in respect of each whole plant that was affected by or concerned in the action that constituted the offence, or

(b)  imprisonment for 6 months,

      or both.

(2)  Without affecting the operation of section 57 or 71, subsection (1) does not apply in relation to the picking or possession of a protected native plant in a nature reserve or wildlife refuge or in lands reserved or dedicated under Part 4A by an Aboriginal owner on whose behalf the lands are vested in an Aboriginal Land Council or Councils under that Part or any other Aboriginal person who has the consent of the Aboriginal owner board members for the lands for purposes referred to in section 57 (7).

(3)  A person shall not be convicted of an offence arising under subsection (1) if the person proves that:

(a)  the protected native plant was grown upon private land and was picked by or with the consent of the owner, lessee or occupier of that land, or

(a1)  the act constituting the offence was authorised by, and done in accordance with, a conservation agreement, or

(a2)  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, or

(b)  the protected native plant was picked by the person:

(i)  under and in accordance with or by virtue of the authority conferred by a licence issued under section 131 or 132C or a licence issued under the Forestry Act 2012, or

(ia)  under and in accordance with or by virtue of the authority conferred by a licence issued under Part 6 of the Threatened Species Conservation Act 1995, or

(ii)  in pursuance of a duty imposed on the person by or under any Act,

      or was in the person’s possession after having been so picked, or

(c)  the protected native plant was in the person’s possession in accordance with a licence issued under section 132A, or

(d)  the protected native plant that was picked or in the person’s possession was cultivated by the person as a hobby and not for commercial purposes or was cultivated by another person as a hobby and not for commercial purposes, or

(e)  the protected native plant was obtained from a person who was authorised to grow and sell it by a licence issued under section 132, or

(f)  the act constituting the offence 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 by a determining authority within the meaning of Part 5 of that Act if the determining authority has complied with that Part, or

(iii)  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

(iv)  a project approved under Part 3A of that Act, or

(v)  State significant infrastructure approved under Part 5.1 of that Act.

(4)  In any prosecution for an offence arising under subsection (1), proof that a protected native plant was found in the possession of the defendant shall be prima facie evidence that the defendant picked the native plant or had the native plant in the defendant’s possession in contravention of this section and the onus of proof to the contrary shall be upon the defendant.

(5)  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).

(6)  A reference in this section to a person’s having a protected native plant in the person’s possession includes a reference to the person’s having a protected native plant in a vehicle, building, lodging, apartment, field or other place whether belonging to or occupied by the person, and whether the plant is then had or placed for the person’s own use or the use of another.

118   Restriction on selling of native plant

(1)  A person shall not sell a protected native plant.

Maximum penalty:

(a)  100 penalty units and an additional 10 penalty units in respect of each whole plant that was affected by or concerned in the action that constituted the offence, or

(b)  imprisonment for 6 months,

      or both.

(2)  A person shall not be convicted of an offence arising under subsection (1) in respect of:

(a)  any protected native plant that is of a class exempted from the operation of this section by the regulations, or

(b)  any protected native plant that has been picked for commercial purposes in pursuance of a licence issued under section 131, or

(c)  any protected native plant that has been grown in pursuance of a licence issued under section 132 and picked by or with the consent of the holder of the licence, or

(d)  the sale of any protected native plant in accordance with a licence under section 132A.

(3)  A person is not to be convicted of an offence arising under subsection (1) in respect of the supply of a protected native plant to another person if the person proves that the act constituting the alleged offence was not done for commercial purposes and:

(a)  was done in relation to a plant that was cultivated by a person as a hobby, and

(b)  both the person who supplied the plant, and the person to whom it was supplied, are persons who cultivate plants as a hobby.

Part 8A Threatened species, populations and ecological communities, and their habitats, and critical habitat

118A   Harming or picking threatened species, endangered populations or endangered ecological communities

(1)  A person must not:

(a)  harm any animal that is of, or is part of, a threatened species, an endangered population or an endangered ecological community, or

(b)  use any substance, animal, firearm, explosive, net, trap, hunting device or instrument or means whatever for the purpose of harming any such animal.

Penalty:

(a)  in respect of any species presumed extinct, any critically endangered species or any endangered species, population or ecological community—2,000 penalty units or imprisonment for 2 years or both, and, in a case where an animal of any species presumed extinct, any critically endangered species or any endangered species, population or ecological community is harmed, an additional 100 penalty units in respect of each animal that is harmed,

(b)  in respect of any vulnerable species—500 penalty units or imprisonment for 1 year or both, and, in a case where an animal of any vulnerable species is harmed, an additional 50 penalty units in respect of each animal that is harmed.

(2)  A person must not pick any plant that is of, or is part of, a threatened species, an endangered population or an endangered ecological community.

Penalty:

(a)  in respect of any species presumed extinct, any critically endangered species or any endangered species, population or ecological community—2,000 penalty units or imprisonment for 2 years or both, and an additional 100 penalty units in respect of each whole plant that was affected by or concerned in the action that constituted the offence,

(b)  in respect of any vulnerable species—500 penalty units or imprisonment for 1 year or both, and an additional 50 penalty units in respect of each whole plant that was affected by or concerned in the action that constituted the offence.

(3)  It is a defence to a prosecution for an offence against this section if the accused proves that the act constituting the alleged offence:

(a)  was authorised to be done, and was done in accordance with, a general licence under section 120, a licence under section 131, 132 or 132A, a scientific licence under section 132C or a licence granted under Part 6 of the Threatened Species Conservation Act 1995, or

(a1)  was the subject of a certificate issued under section 95 (2) of the Threatened Species Conservation Act 1995, or

(a2)  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 4 of Part 7 of the Threatened Species Conservation Act 1995 when the plan was approved, or

Note. See also the defences under section 118G.

(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 by a determining authority within the meaning of Part 5 of that Act if the determining authority has complied with that Part, or

(iii)  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

(iv)  a project approved under Part 3A of the Environmental Planning and Assessment Act 1979, or

(v)  State significant infrastructure approved under Part 5.1 of the Environmental Planning and Assessment Act 1979, or

(b1)  was authorised by, and done in accordance with, a conservation agreement, or

(b2)  was authorised by, and done in accordance with, a joint management agreement entered into under Part 7 of the Threatened Species Conservation Act 1995, or

(c)  was authorised to be done by or under the State Emergency and Rescue Management Act 1989 or the State Emergency Service Act 1989 and was reasonably necessary in order to avoid a threat to life or property, or

(d)  was not done for commercial purposes and was done in relation to a plant that was cultivated by the person as a hobby or was cultivated by another person as a hobby, or

(e)  was done in relation to a plant that was obtained from a person who was authorised to grow and sell it by a licence issued under section 132.

(3A)  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.

(4)  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 section:

(a)  this section prevails (except in relation to a matter referred to in subsection (3) (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 section.

Note. An offence against subsection (1) or (2) 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.

118B   Buying, selling or possessing threatened species or endangered population

(1)  A person must not buy, sell or have in possession or control any animal or plant that is of, or is part of, a threatened species or an endangered population.

Penalty:

(a)  in respect of any species presumed extinct, any critically endangered species or any endangered species or endangered population—2,000 penalty units or imprisonment for 2 years or both,

(b)  in respect of any vulnerable species—500 penalty units or 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.

(2)  The Governor may, by order published in the Gazette, exempt from subsection (1) threatened species named in the order, subject to such conditions and restrictions relating to the buying, selling or having in possession of any such threatened species as may be prescribed in the order.

(3)  A person must not to be convicted of an offence against this section of having in the person’s possession or control a plant of any threatened species if the plant is naturally occurring on land that the person owns or of which the person is the lessee or lawful owner.

(4)  It is a defence to a prosecution for an offence against this section if the accused proves that the act constituting the alleged offence:

(a)  was authorised to be done, and was done in accordance with, a general licence under section 120, a licence under section 131, 132 or 132A, a scientific licence under section 132C or a licence granted under Part 6 of the Threatened Species Conservation Act 1995, or

(b)  was the subject of a certificate issued under section 95 (2) of the Threatened Species Conservation Act 1995.

(5)  A person must not be convicted of an offence under this section in respect of the possession of any threatened species if the person satisfies the court that:

(a)  the species, being an animal, is the progeny of any animal lawfully in the possession of the person pursuant to a licence granted under this Act or under Part 6 of the Threatened Species Conservation Act 1995 and that progeny is less than 6 months old, or

(a1)  the act constituting the offence was authorised by, and done in accordance with, a conservation agreement, or

(a2)  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, or

(b)  the species, being an animal:

(i)  was incapable of fending for itself in its natural habitat, and

(ii)  the person notified the Director-General, in the manner and within the time prescribed by the regulations, that the animal came into the person’s possession, and

(iii)  the person complied with any direction given to the person about the animal by the Director-General, or

(c)  the species, being a plant, was propagated from a plant lawfully in the possession of a person pursuant to a licence granted under this Act or under Part 6 of the Threatened Species Conservation Act 1995, or

(d)  the act constituting the alleged offence was not done for commercial purposes and was done in relation to a plant that was cultivated by the person as a hobby or was cultivated by another person as a hobby, or

(e)  the act constituting the alleged offence was done in relation to a plant that was obtained from a person who was authorised to grow and sell it by a licence issued under section 132.

(6)  A reference in this section to a person’s having threatened species in the person’s possession includes a reference to the person having threatened species in a vehicle, building, lodging, apartment, field or other place whether belonging to or occupied by the person, and whether the species is then had or placed for the person’s own use or the use of another person.

118C   Damage to critical habitat

(1)  A person must not damage any critical habitat.

Maximum penalty: 2,000 penalty units or imprisonment for 2 years 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.

(2)  If a map of the critical habitat was published in the Gazette before the offence was committed, it is not necessary for the prosecution to prove that the person knew that the habitat was declared as critical habitat or that the person knew that it was habitat of an endangered species, population or ecological community.

(3)  If a map of the critical habitat was not published in the Gazette before the offence was committed, the prosecution must prove that the person knew that the habitat was declared as critical habitat or that the person knew, or ought to have known, that it was critical habitat.

(4)  It is a defence to a prosecution for an offence against this section in relation to an area of critical habitat that the Director-General has declined to publicly notify under section 146 of the Threatened Species Conservation Act 1995 that the accused did not know and could not reasonably be expected to have known that the area was critical habitat.

(5)  It is a defence to a prosecution for an offence against this section if the accused proves that the damage resulted from an act that:

(a)  was authorised to be done, and was done in accordance with, a licence granted under this Act or under Part 6 of the Threatened Species Conservation Act 1995, or

(a1)  was the subject of a certificate issued under section 95 (2) of the Threatened Species Conservation Act 1995, 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 by a determining authority within the meaning of Part 5 of that Act if the determining authority has complied with that Part, or

(iii)  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

(iv)  a project approved under Part 3A of the Environmental Planning and Assessment Act 1979, or

(v)  State significant infrastructure approved under Part 5.1 of the Environmental Planning and Assessment Act 1979, or

(c)  was authorised to be done by or under Part 2 of the Rural Fires Act 1997, the State Emergency and Rescue Management Act 1989 or the State Emergency Service Act 1989 and was reasonably necessary in order to avoid a threat to life or property, or

(d)  was authorised by, and done in accordance with, a conservation agreement, or

(e)  was authorised by, and done in accordance with, a joint management agreement entered into under Part 7 of the Threatened Species Conservation Act 1995.

(6)  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 section:

(a)  this section prevails (except in relation to a matter referred to in subsection (5) (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 section.

(7)  In this section, damage includes cause or permit damage.

118D   Damage to habitat of threatened species, endangered populations or endangered ecological communities

(1)  A person must not damage any habitat of a threatened species, an endangered population or an endangered ecological community if the person knows that the habitat concerned is habitat of that kind.

Penalty: 1,000 penalty units or 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.

(2)  It is a defence to a prosecution for an offence against this section if the accused proves that the damage resulted from an act that:

(a)  was authorised to be done, and was done in accordance with, a licence granted under this Act or under Part 6 of the Threatened Species Conservation Act 1995, or

(a1)  was the subject of a certificate issued under section 95 (2) of the Threatened Species Conservation Act 1995, or

(a2)  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 4 of Part 7 of the Threatened Species Conservation Act 1995 when the plan was approved, or

Note. See also the defences under section 118G.

(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 by a determining authority within the meaning of Part 5 of that Act if the determining authority has complied with that Part, or

(iii)  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

(iv)  a project approved under Part 3A of the Environmental Planning and Assessment Act 1979, or

(v)  State significant infrastructure approved under Part 5.1 of the Environmental Planning and Assessment Act 1979, or

(c)  was authorised to be done by or under the State Emergency and Rescue Management Act 1989 or the State Emergency Service Act 1989 and was reasonably necessary in order to avoid a threat to life or property, or

(d)  was authorised by, and done in accordance with, a conservation agreement, or

(e)  was authorised by, and done in accordance with, a joint management agreement entered into under Part 7 of the Threatened Species Conservation Act 1995.

(2A)  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.

(3)  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 section:

(a)  this section prevails (except in relation to a matter referred to in subsection (2) (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 section.

(4)  In proceedings for an offence under this section in respect of damage to any habitat of a threatened species, an endangered population or an endangered ecological community, it is to be conclusively presumed that the person knew that the habitat concerned was habitat of that kind if it is established that the damage resulted from an act that:

(a)  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)  constituted a failure to comply with any such development consent or approval.

(5)  If an act is an offence against both this section and section 118C, the offender is not liable to be punished twice in respect of the offence.

(6)  In this section, damage includes cause or permit damage.

118E   (Repealed)

118F   Definitions

In this Part:

animal has the same meaning as in the Threatened Species Conservation Act 1995.

Note. 

The definition of animal in the Threatened Species Conservation Act 1995 may include some types of fish.

plant has the same meaning as in the Threatened Species Conservation Act 1995.

118G   Defences

(1)  It is a defence to a prosecution for an offence under this Part 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)  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.

Part 9 Licensing in respect of fauna, native plants and threatened species

Division 1 Preliminary

119   Definition

In this Part:

private land includes land leased from the Crown, or which is in the course of alienation by the Crown under any Act.

Division 2 Fauna

120   General licence

(1)  The Director-General may issue a licence (in this Act referred to as a general licence), authorising a person to do any or all of the following:

(a)  to harm or obtain any protected fauna for any specified purpose,

(a1)  to hold or keep in possession or under control any protected fauna for any specified purpose,

(b)  to exhibit protected fauna,

(c)  to dispose of, whether by sale or otherwise, any fauna harmed, obtained, held, kept or exhibited under the authority of the licence,

(d)  to sell any fauna in the person’s lawful possession, otherwise than as a fauna dealer or skin dealer,

(e)  to harm any protected fauna (other than a threatened species, population or ecological community) in the course of carrying out specified development or specified activities.

(2)  A general licence does not, except in so far as the terms of the licence otherwise expressly provide, authorise the harming of fauna in a national park, historic site, state conservation area, regional park, nature reserve, karst conservation reserve, wildlife refuge, conservation area, wilderness area or area subject to a wilderness protection agreement.

(2A)  A general licence does not authorise the harming of game birds for sporting or recreational purposes. However, a licence can authorise a sporting or recreational shooter to harm game birds for any other specified lawful purpose.

(2B)  A general licence is not to be issued to authorise the harming of protected fauna solely for scientific, educational or conservation purposes. A licence may be issued under section 132C for those purposes.

Note. Section 91 of the Threatened Species Conservation Act 1995 further provides that a general licence is not to be issued to authorise a person to harm any animal that is of, or part of, a threatened species, population or ecological community except:

(a)  for the welfare of an animal, or

(b)  if there is a threat to life or property.

(3)  A general licence may be issued without conditions or limitations or may be issued subject to specified conditions or limitations.

(4)  Without affecting the generality of subsection (3):

(a)  a general licence may but need not specify the species of protected fauna that may be harmed under its authority, and

(b)  a general licence may but need not be limited to specified areas.

(5)  A general licence may authorise any specified persons in addition to the person to whom the licence is issued to do the things authorised by the licence. In any such case, the specified persons are taken to be holders of the licence for the purposes of this Act.

(6)  To avoid doubt, the Director-General is not a determining authority for the purposes of Part 5 of the Environmental Planning and Assessment Act 1979 when issuing a general licence.

121   Occupier’s licence

(1)  The Director-General may issue a licence (in this Act referred to as an occupier’s licence), authorising an owner or occupier of specified lands:

(a)  to harm, or

(b)  to permit a person, holding a general licence issued to the person under section 120 or a commercial fauna harvester’s licence issued to the person under section 123, to harm,

      a specified number of fauna of a specified class found on those lands and the licence may authorise the disposal, whether by sale or otherwise, of fauna harmed under the authority of the licence.

(2)  If an occupier’s licence is proposed to be subject to a condition requiring labels, tags, slips or other objects to be affixed or attached to the skin or carcase of fauna harmed under the authority of the licence, the licence must not be issued unless the licensee has been supplied by the Service with sufficient labels, tags, slips or other objects to enable the licensee to comply with the relevant condition.

(3)  An occupier’s licence shall not be issued with respect to threatened species, populations or ecological communities or to authorise game birds to be harmed for sporting or recreational purposes. However, a licence can authorise a sporting or recreational shooter to harm game birds for any other specified lawful purpose.

122   (Repealed)

123   Commercial fauna harvester’s licence

(1)  The Director-General may issue a licence (in this Act referred to as a commercial fauna harvester’s licence), authorising a person to harm fauna of a species named therein for the purposes of sale.

(2)  A commercial fauna harvester’s licence does not, except in so far as the terms of the licence otherwise expressly provide, authorise the harming of fauna in a national park, historic site, state conservation area, regional park, nature reserve, karst conservation reserve, wildlife refuge, conservation area, wilderness area or area subject to a wilderness protection agreement.

(3)  A commercial fauna harvester’s licence must not be issued with respect to threatened species, populations or ecological communities.

(4)  A person licensed under subsection (1) must not, in connection with harming fauna for the purposes of sale, use any carcass chiller unless the chiller is:

(a)  registered under this section, or

(b)  on premises registered under section 124.

(5)  The Director-General may issue registration certificates in respect of each carcass chiller that a person licensed under subsection (1) uses in connection with harming fauna for the purposes of sale.

(6)  In this section, carcass chiller means any refrigeration container used for the storage of animal carcasses, and includes a refrigerated shipping container and a refrigerated truck or vehicle.

124   Fauna dealer’s licence

(1)  The Director-General may issue a licence (in this Act referred to as a fauna dealer’s licence), authorising a person to buy or sell fauna as a fauna dealer and otherwise to exercise or carry on the business of a fauna dealer.

(2)  A person licensed under subsection (1) shall not exercise or carry on business as a fauna dealer in New South Wales at or on any premises that are not registered under this section.

(3)  The Director-General may issue registration certificates in respect of each of the premises at or on which a person licensed under subsection (1) exercises or carries on business as a fauna dealer in New South Wales.

125   Skin dealer’s licence

(1)  The Director-General may issue a licence (in this Act referred to as a skin dealer’s licence), authorising a person to buy or sell skins as a skin dealer and otherwise to exercise or carry on the business of a skin dealer.

(2)  A person licensed under subsection (1) shall not exercise or carry on business as a skin dealer in New South Wales at or on any premises that are not registered under this section.

(3)  The Director-General may issue registration certificates in respect of each of the premises at or on which a person licensed under subsection (1) exercises or carries on business as a skin dealer in New South Wales.

125A   Emu licence

The Director-General may issue a licence (in this Act referred to as an emu licence), authorising a person to do any one or more of the following:

(a)  to buy or sell live emus, whole emu eggs or other emu products,

(b)  to kill emus reared or bred under and in accordance with the authority conferred by such a licence,

(c)  otherwise to exercise or carry on the business of an emu breeder.

126   Import and export licences

(1)  The Director-General may issue a licence (in this Act referred to as an import licence), authorising a person to import protected fauna into New South Wales.

(2)  The Director-General may issue a licence (in this Act referred to as an export licence), authorising a person to export protected fauna from New South Wales.

(3)  Where an application for an import licence or an export licence has been made in accordance with the regulations, the application shall not be refused except on one or more of such grounds (if any) as are prescribed for the purposes of this subsection.

127   Licence to liberate animals

The Director-General may issue a licence authorising a person to liberate an animal anywhere, or in a specified locality or specified localities, within New South Wales.

128   (Repealed)

129   Certain licences authorising shooting etc in national parks etc

Except in so far as the conditions and restrictions attaching thereto otherwise provide:

(a)  a licence, being a general licence under section 120, an occupier’s licence under section 121 or a commercial fauna harvester’s licence under section 123, that authorises a person to harm any animal in a national park, historic site, state conservation area, regional park, nature reserve or karst conservation reserve, also authorises that person to do, in connection with the harming of any such animal, any act referred to in section 45 (1) or 56 (1), and

(b)  a licence, being a general licence under section 120, an occupier’s licence under section 121 or a commercial fauna harvester’s licence under section 123, that authorises a person to harm any fauna in a wildlife refuge, conservation area or area subject to a wilderness protection agreement, also authorises that person to do, in connection with the harming of any such fauna, any act referred to in section 70 (1) or (2).

130   Certain licences and certificates deemed to authorise possession

Except in so far as the licence or certificate otherwise provides, a licence or certificate under this Division that authorises a person to harm or to obtain any fauna also authorises the person to keep and have the fauna in the person’s possession.

Division 3 Native plants

131   Licence to pick protected native plants

(1)  The Director-General may issue a licence authorising a person to pick the protected native plants specified therein.

(2)  Despite subsection (1), a licence must not be issued under this section that authorises the picking of a plant of a threatened species unless the plant has been grown in accordance with a licence issued in under section 132.

(2A)  A licence is not to be issued under this section to authorise the picking of native plants solely for scientific, educational or conservation purposes. A licence may be issued under section 132C for those purposes.

132   Licence to grow native plants for sale

The Director-General may issue a licence authorising an owner or occupier of private land to grow upon that private land, or part thereof specified in the licence, protected native plants for the purposes of sale.

132A   Import and export licences for protected native plants

(1)  The Director-General may issue a licence authorising a person to import protected native plants into New South Wales.

(2)  The Director-General may issue a licence authorising a person to export protected native plants from New South Wales.

(3)  If an application for a licence under this section has been made in accordance with the regulations, the application must not be refused except on one or more of such grounds (if any) as are prescribed for the purposes of this subsection.

132B   Classes of licences

(1)  The regulations may provide for different classes of licences to be issued under section 131, 132 or 132A.

(2)  Without limiting subsection (1), the regulations may provide for different classes of licences under section 131, 132 or 132A to be issued in respect of different groupings of protected native plants within Schedule 13.

Division 3A Scientific licences

132C   Scientific licences

(1)  The Director-General may issue a licence (in this Act referred to as a scientific licence) authorising a person to take action, for scientific, educational or conservation purposes, that is likely to result in one or more of the following:

(a)  harm to any protected fauna, or to an animal that is of, or is part of, a threatened species, an endangered population or an endangered ecological community,

(b)  the picking of any protected native plant or of any plant that is of, or is part of, a threatened species, an endangered population or an endangered ecological community,

(c)  damage to critical habitat,

(d)  damage to a habitat of a threatened species, an endangered population or an endangered ecological community.

(2)  A scientific licence does not, except in so far as the terms of the licence otherwise expressly provide, authorise the harming of fauna, or the picking of any native plant, in a national park, historic site, state conservation area, regional park, karst conservation reserve, nature reserve, Aboriginal area, wildlife refuge, conservation area, wilderness area or area subject to a wilderness protection agreement.

(3)  A scientific licence may be issued without conditions or limitations or may be issued subject to specified conditions or limitations.

(4)  In particular:

(a)  a scientific licence may but need not specify the animal or plant that may be harmed or picked under its authority, and

(b)  a scientific licence may but need not be limited to specified areas.

(5)  A scientific licence may authorise any specified persons, or class of persons, in addition to the person to whom the licence is issued to do the things authorised by the licence. In such a case, the specified persons or class of persons are taken to be holders of the licence for the purposes of this Act.

(6)  To avoid doubt, the Director-General is not a determining authority for the purposes of Part 5 of the Environmental Planning and Assessment Act 1979 when issuing a scientific licence.

132D   Licence authorises certain actions

Except in so far as any conditions or restrictions attached to a scientific licence otherwise provide:

(a)  a scientific licence that authorises a person to harm any animal in a national park, historic site, state conservation area, regional park, karst conservation reserve, nature reserve or Aboriginal area also authorises that person to do, in connection with the harming of any such animal, any act referred to in section 45 (1) or 56 (1), and

(b)  a scientific licence that authorises a person to harm any fauna in a wildlife refuge, conservation area or area subject to a wilderness protection agreement also authorises that person to do, in connection with the harming of any such fauna, any act referred to in section 70 (1) or (2), and

(c)  a scientific licence that authorises a person to harm any animal or pick any plant also authorises the person to keep and have the animal or plant in the person’s possession.

132E   Definitions

In this Division:

animal has the same meaning as in the Threatened Species Conservation Act 1995.

Note. 

The definition of animal in the Threatened Species Conservation Act 1995 may include some types of fish.

plant has the same meaning as in the Threatened Species Conservation Act 1995.

Division 4 General

133   Conditions and restrictions attaching to licences and certificates and variation of licences and certificates

(1)  A licence or certificate issued under this Part shall be subject to such conditions and restrictions (if any) as are for the time being prescribed in relation to licences or certificates of the class to which the licence or certificate belongs.

(1A)  It is a condition of a licence issued under section 131 authorising the picking of a protected native plant in the wild that the picking be carried out in accordance with any relevant flora plan of management for the protected native plant adopted under section 115A.

(2)  The Director-General may, if the Director-General thinks fit, attach any conditions or restrictions to a licence or certificate upon its issue.

(3)  The Director-General may, by notice in writing served on the holder of a licence or certificate:

(a)  attach any conditions or restrictions to the licence or certificate after its issue,

(b)  vary or remove any conditions or restrictions attached to the licence or certificate, or

(c)  otherwise vary the licence or certificate.

(4)  The holder of a licence or certificate (whether issued under this Act or under Part 6 of the Threatened Species Conservation Act 1995) shall not contravene or fail to comply with any condition or restriction attached to the licence or certificate under this Act or Part 6 of the Threatened Species Conservation Act 1995.

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.

Note. An offence against subsection (4) 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.

(5)  Subsections (2) and (3) do not apply to an import licence or export licence under section 126.

134   Cancellation of licence or certificate

(1)  Subject to subsection (2), a licence or certificate issued under this Part may be cancelled by the Minister or the Director-General.

(2)  An import licence or export licence under section 126 shall not be cancelled under this section except on one or more of such grounds (if any) as are prescribed for the purposes of this subsection.

135   Appeal

(1)  A person whose application for a licence or certificate under this Part is refused, or whose licence or certificate has been cancelled by the Director-General, or who is dissatisfied with any condition or restriction which the Director-General has attached to the person’s licence or certificate, may appeal to the Minister.

(2)  The Minister:

(a)  may refuse to grant the appeal, or

(b)  may grant the appeal wholly or in part, and may give such directions in the matter as seem proper.

(3)  The decision of the Minister on the appeal is final and is binding on the Director-General and the appellant, and shall be carried into effect accordingly.

(4)  Where the regulations prescribe:

(a)  the manner in which an appeal is to be made under this section—the appeal shall be made in that manner, or

(b)  the period within which an appeal is to be made under this section—the appeal shall be made within that period.

(5)  Where the Director-General fails to grant an application for a licence or certificate under this Part, the application shall, for the purposes of this section, be deemed to be refused upon the expiration of:

(a)  subject to paragraph (b)—1 month after the application was received by the Director-General, or

(b)  where the regulations prescribe some other period—that other period.

136   Licences do not authorise entry etc

Where, had this Act not been enacted:

(a)  the consent or permission of any person would have been required for entering any lands or doing any act on or in respect of any lands, the issue of a licence under this Part does not authorise the entering of those lands, or the doing of that act on those lands, without that consent or permission, or

(b)  the doing of an act on or in respect of any lands would have been unlawful, the issue of a licence under this Part does not authorise the doing of that act.

Part 10 Finance

137   National Parks and Wildlife Fund

The National Parks and Wildlife Fund established under the Act of 1967 shall continue in existence and shall be kept at the Treasury in the Special Deposits Account.

138   Payments into Fund

(1)  There shall be paid into the Fund:

(a)  all money provided by Parliament for the purposes of this Act (including money provided for the expenses incurred or likely to be incurred by boards of management in connection with the preparation of plans of management for, and the care, control and management of, lands reserved or dedicated under Part 4A), the Wilderness Act 1987 or the Threatened Species Conservation Act 1995 (except any money provided by Parliament for the purposes of the Biodiversity Banking Account or Biobanking Trust Fund under Part 7A of the Threatened Species Conservation Act 1995),

(a1)  all money provided by Parliament for the management of any land for which the National Parks and Wildlife Reserve Trust is trustee,

(b)  all money received in respect of:

(i)  leases, licences, permits or occupancies within a national park, historic site, state conservation area, regional park, nature reserve, karst conservation reserve, Aboriginal area or land for which the National Parks and Wildlife Reserve Trust is trustee,

(ii)  leases and licences granted under section 149 (4),

(iii)  royalties, fees and charges under this Act or the regulations, the Wilderness Act 1987 or the Threatened Species Conservation Act 1995 or the regulations made under those Acts, except those that are required to be paid into the Biodiversity Banking Account or Biobanking Trust Fund under Part 7A of the Threatened Species Conservation Act 1995,

(iiia)  despite the provisions of any other Act, royalties, fees and charges in respect of land for which the National Parks and Wildlife Reserve Trust is trustee,

(iv)  franchises granted under section 152,

(v)  easements or rights of way granted under section 153,

(vi)  community service contributions,

(vii)  penalties recovered pursuant to this Act or the Threatened Species Conservation Act 1995 or the regulations made under those Acts, or (despite the provisions of any other Act) under another Act in respect of land for which the National Parks and Wildlife Reserve Trust is trustee, except penalties recovered pursuant to Part 7A of the Threatened Species Conservation Act 1995 or the regulations under that Part,

(viii)  property forfeited pursuant to this Act or the regulations,

(ix)  costs paid pursuant to an order under section 176 (3),

(x)  amounts paid pursuant to an order under section 177, and

(xi)  policies of insurance under which money is paid to the Minister or the Director-General with respect to any national park, historic site, state conservation area, regional park, nature reserve, karst conservation reserve or Aboriginal area, or any property in the custody or under the control of the Director-General,

(b1)  all money received in respect of:

(i)  rent paid by the Minister in respect of lands leased under Part 4A, and

(ii)  matters of a kind referred to in paragraph (b) in respect of those lands,

(c)  any money acquired by the Minister pursuant to section 148, except money required to be paid into the Biodiversity Banking Account under Part 7A of the Threatened Species Conservation Act 1995,

(d)  any money received by the Minister pursuant to section 149, except money required to be paid into the Biodiversity Banking Account under Part 7A of the Threatened Species Conservation Act 1995,

(e)  any other money received in connection with any national park, historic site, state conservation area, regional park, nature reserve, karst conservation reserve or Aboriginal area or any proposed national park, historic site, state conservation area, regional park, nature reserve, karst conservation reserve or Aboriginal area,

(e1)  any money received from the Sydney Catchment Authority in connection with carrying out and giving effect to a plan of management adopted under the Sydney Water Catchment Management Act 1998,

(e2)  any money received by the Director-General or a board of management in connection with an order of a court under section 201, 203 or 204 of this Act or section 141J, 141L or 141M of the Threatened Species Conservation Act 1995,

(f)  any money received in connection with any wildlife refuge or conservation area, and

(g)  any other money received in connection with the administration of this Act, the Wilderness Act 1987 or the Threatened Species Conservation Act 1995, other than money received in the prescribed circumstances (if any) or money payable into the Biodiversity Banking Account or Biobanking Trust Fund under Part 7A of the Threatened Species Conservation Act 1995.

(1A)  Within the Fund there is to be a separate account for each area of lands leased under Part 4A.

(1B)  Subject to subsections (2) and (3), any money paid into the Fund, including rent paid by the Minister, in respect of an area of lands leased under Part 4A is to be carried into the separate account in the Fund that relates to that area.

(1C)  Any money referred to in subsection (1B) may, pending its application in accordance with this Act, be invested by the Minister with the Treasurer or in any manner in which trustees are for the time being authorised to invest trust funds.

(2)  Where any money acquired by the Minister pursuant to section 148 is subject to any condition to which the Minister has agreed, the money shall be carried to a separate account in the Fund and shall be applied in accordance with the condition.

(3)  Any money referred to in subsection (2) may, pending application in accordance with the condition so referred to, be invested by the Minister with the Treasurer or in any manner in which trustees are for the time being authorised to invest trust funds.

(4)  A reference in subsection (1) (b) (i) or (e) to a regional park does not include a reference to a regional park that is, or is proposed to be, under the care, control and management of a local council.

(5)  Money received in connection with the administration of the biodiversity certification scheme (including any fees paid under the scheme or any monetary contributions made for the purposes of the scheme) is not to be paid into the National Parks and Wildlife Fund.

(6)  In this section:

biodiversity certification scheme means:

(a)  the provisions of Part 7AA of the Threatened Species Conservation Act 1995 and any regulations made for the purposes of that Part, and

(b)  the provisions of Parts 7 and 8 of Schedule 7 to that Act (which relate to biodiversity certification of environmental planning instruments).

139   Payments out of Fund

(1)  No money shall be paid out of the Fund except under the authority of this Act or in accordance with section 52 (2) (b) of the Fire Brigades Act 1989.

(2)  There may be paid out of the Fund:

(a)  all charges, costs and expenses incurred by the Minister or the Director-General in exercising and performing the Minister’s or the Director-General’s powers, authorities, duties and functions under this Act, the Wilderness Act 1987 or the Threatened Species Conservation Act 1995, except those incurred under the biodiversity certification scheme and the biobanking scheme,

(b)  all money allocated by the Minister for expenditure by a state conservation area trust in connection with a state conservation area or by a regional park trust in connection with a regional park,

(b1)  all charges, costs and expenses incurred by the National Parks and Wildlife Reserve Trust in exercising its functions in relation to land for which it is trustee,

(c)  the fees and travelling and other expenses payable to the members of the Council or any committee under this Act, the Wilderness Act 1987 or the Threatened Species Conservation Act 1995,

(d)  the cost of acquiring land for the purposes of this Act, the Wilderness Act 1987 or the Threatened Species Conservation Act 1995,

(e)  the cost of improvement of any land adjoining or in the vicinity of a national park, historic site, regional park, nature reserve, karst conservation reserve, Aboriginal area or state conservation area, where in the opinion of the Minister this is desirable to provide or improve access to the park, site, reserve or area, or to provide or improve facilities or amenities for persons visiting the park, site, reserve or area,

(f)  all money which the Minister directs shall be set aside to provide a reserve for insurance,

(g)  all money allocated by the Minister for expenditure on Aboriginal areas,

(h)  the cost of acquiring Aboriginal objects or land in which Aboriginal objects or Aboriginal places are situated,

(i)  the cost of erecting and maintaining buildings or structures for the safe custody, storage or exhibition of any Aboriginal object,

(j)  the cost of entering into, and giving effect to, agreements under sections 145 and 146,

(k)  the cost of carrying out the purposes for which land is acquired or occupied under section 146,

(l)  all costs incurred under sections 147 and 149 (except in relation to a dealing in land or other property, or an interest in property, the proceeds of which are payable into the Biodiversity Banking Account under Part 7A of the Threatened Species Conservation Act 1995),

(m1)  charges, costs and expenses incurred in the administration of the Marine Parks Act 1997,

(m2)  the cost of carrying out and giving effect to a plan of management adopted under the Sydney Water Catchment Management Act 1998,

(m)  all money allocated by the Minister for use in connection with a wildlife refuge or conservation area, and

(n)  all money to be paid to a livestock health and pest authority under section 141.

(3)  Any money set aside, as referred to in subsection (2) (f), may be invested by the Minister with the Treasurer or in any manner in which trustees are for the time being authorised to invest trust funds.

(4)  Where:

(a)  any lands are acquired under Part 11 out of money wholly or partly provided by Parliament, and

(b)  those lands, or any part thereof, are sold under section 149,

      there shall be paid from the Fund to the Treasurer, out of the proceeds of the sale referred to in paragraph (b), such amount as the Treasurer may determine.

(5)  Any money in a separate account kept under section 138 (1B) in respect of lands reserved or dedicated under Part 4A must be applied:

(a)  for the management of the lands (including the preparation of a plan of management for the lands), and

(b)  in accordance with the provisions of any plan of management for the lands.

(6)  In this section:

biobanking scheme means the provisions of Part 7A of the Threatened Species Conservation Act 1995 and any regulations made for the purposes of that Part.

biodiversity certification scheme means:

(a)  the provisions of Part 7AA of the Threatened Species Conservation Act 1995 and any regulations made for the purposes of that Part, and

(b)  the provisions of Parts 7 and 8 of Schedule 7 to that Act (which relate to biodiversity certification of environmental planning instruments).

140   Community service contribution

(1)  The Director-General shall from time to time assess the amount of the contribution to be paid by the holder of a lease of or licence to occupy or use lands within a national park, historic site, state conservation area, regional park, nature reserve or karst conservation reserve for the cost of providing or maintaining any community service in the park, site, area or reserve.

(2)  The Director-General may levy the contribution payable by the holder of the lease or licence by serving on the holder a written notice of the contribution payable.

(3)  The notice referred to in subsection (2) may:

(a)  relate to one or more types of community service, and

(b)  specify a date by which the contribution must be paid.

(3A)  The amount of the contribution is due and payable to, and is recoverable by, the Director-General:

(a)  if a date is specified in the notice referred to in subsection (2)—on that date, or

(b)  if no such date is specified—on the expiration of one month from the service of the notice.

(3B)  Nothing in this section prevents the Director-General from issuing separate notices to the same holder of a lease or licence for different types of community service.

(4)  The Minister, on the recommendation of the Director-General, may for any reason which to the Minister seems sufficient exempt any such holder from the payment of such a contribution or part thereof.

(5)  In this section, community service includes the following actions or services when undertaken or provided in connection with public health or building safety:

(a)  making an inspection,

(b)  conducting an audit,

(c)  receiving an application,

(d)  granting an approval.

141   Payment of rates to livestock health and pest authorities in Western Division

(1)  In this section, authority means a livestock health and pest authority for a livestock health and pest district within the meaning of the Rural Lands Protection Act 1998.

(2)  There shall, subject to this section, be payable to an authority an amount equal to the amount that would have been payable to the authority under Part 7 of the Rural Lands Protection Act 1998 by way of rates for any period, in respect of all lands within its district reserved as national parks or historic sites or dedicated as nature reserves or karst conservation reserves, had those lands been ratable lands under that Act at all relevant times after they were so reserved or dedicated.

(3)  No amount is payable under subsection (2) except upon an application:

(a)  made to the Director-General in the prescribed manner and within the prescribed time, and

(b)  containing the prescribed particulars.

(4)  Any dispute between the Director-General and an authority with respect to the particulars contained in an application or the amount payable under this section shall be determined in accordance with such directions as the Minister, after consultation with the Minister for Agriculture, may give.

(5)  Nothing in this section requires or authorises the payment of an amount in relation to any period before the commencement day.

142   Royalty

(1)  Royalty shall, in accordance with the regulations, be payable to the Crown at the prescribed rates upon such species of fauna and the skins of such species of fauna as may be prescribed.

(2)  Notwithstanding subsection (1), royalty shall not be payable under this section in respect of a skin or carcase to which there has been affixed or attached in compliance with a condition of a licence issued under Division 2 of Part 9 a label, tag, slip or other object for which a charge or fee has been paid pursuant to regulations made under section 154 (e).

143   Charges and fees

(1)  Where the Minister, the Director-General or an officer of the Service:

(a)  supplies any service, product or commodity,

(b)  grants any licence to carry on a trade, business or occupation,

(c)  gives, varies or transfers any permission, consent or approval or issues any licence, registration certificate or permit,

(d)  furnishes any information,

(e)  processes an application for any permission, consent, approval, licence, registration certificate or permit (including by making an inspection or conducting an audit in connection with the application),

(f)  provides advice on request (including by way of lecture or seminar), or

(g)  provides administrative services on request (including photocopying and the like),

      under this Act or the regulations, the Wilderness Act 1987 or the Threatened Species Conservation Act 1995 or the regulations under those Acts or in connection with any national park, historic site, state conservation area, regional park, nature reserve, karst conservation reserve or Aboriginal area, the Director-General or an officer of the Service may make, demand, levy and recover such charges and fees as may be prescribed or where no charge or fee is prescribed such charges and fees as may be fixed by the Director-General, subject to the maximum (if any) prescribed.

(2)  Nothing in this section prevents the Director-General or an officer of the Service making, demanding, levying or recovering separate charges or fees in respect of the same person for the supply of different things or carrying out of different activities.

(3)  The services referred to in subsection (1) include, but are not limited to, health or building services provided or maintained by the Director-General in a national park, historic site, state conservation area, regional park, nature reserve, karst conservation reserve or Aboriginal area.

144   (Repealed)

144A   Overdue community service contributions, charges, fees and other money

(1)  Interest on overdue money payable in respect of:

(a)  leases, licences, permits or occupancies within reserved or dedicated lands, and

(b)  leases and licences granted under section 149 (4), and

(c)  royalties, fees and charges under this Act, the Wilderness Act 1987 or the Threatened Species Conservation Act 1995, and

(d)  franchises granted under section 152, and

(e)  easements or rights of way granted under section 153, and

(f)  community service contributions under section 140,

      shall be payable in accordance with this section.

(2)  If payment of the whole or any part of an amount payable in respect of a matter referred to in subsection (1) has not been made at the date when the amount was due, the balance due from time to time after that date is to attract interest:

(a)  except as provided by paragraph (b)—calculated at the prescribed rate, or

(b)  in the case of interest payable under a lease, agreement or other instrument the terms of which fix a rate of interest that is higher than the prescribed rate—calculated at that higher rate.

(3)  If the Minister, on the recommendation of the Director-General, is satisfied that circumstances warrant it, the Minister may:

(a)  direct that an amount due shall not attract interest in accordance with this section, or

(b)  grant an extension of time after the due date during which the amount payable or due for the time being will not attract interest, or

(c)  remit the payment of the whole or any part of any interest payable under this section.

(4)  No refund shall be made as a consequence of a remission under subsection (3) (c).

(5)  This section applies to overdue money payable before, as well as on or after, the commencement of this section, in so far as it is due on and after that commencement, and so applies notwithstanding the terms of any lease, agreement or other instrument under which the money is payable.

(6)  Interest payable under this section may be recovered in the same way as the money in respect of which it is payable.

144B   Annual report

The Service is to include a statement of its operations and expenditure in connection with lands reserved or dedicated under Part 4A in each report it makes under the Annual Reports (Departments) Act 1985.

Part 11 Acquisition and disposal of property

145   Acquisition of land for reservation or other purposes

The Minister may, for the purpose of obtaining land for reservation under Part 4 or Part 4A, of conserving threatened species, populations or ecological communities, or their habitats or of preserving, protecting and preventing damage to Aboriginal objects or Aboriginal places:

(a)  on behalf of Her Majesty, enter into and give effect to an agreement for the vesting in, or surrender to, Her Majesty of any land, or

(b)  acquire land by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991.

146   Acquisition or occupation of lands for certain purposes

(1)  For the purpose of:

(a)  improving access to any land reserved or dedicated or acquired under this Act,

(b)  the management, maintenance or improvement of any such land, or

(c)  carrying out works for any of those purposes,

      the Minister may:

(d)  on behalf of Her Majesty, enter into, and give effect to, an agreement for the vesting in, surrender to, or leasing to, Her Majesty, or for the occupation under licence, of any land adjoining or in the vicinity of the land so reserved or dedicated, or

(e)  acquire any land (including an interest in land) adjoining or in the vicinity of the land so reserved or dedicated by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991.

(2)  For the purpose of obtaining lands for use in connection with the administration of this Act, the Wilderness Act 1987 or the Threatened Species Conservation Act 1995, the Minister may:

(a)  on behalf of Her Majesty, enter into, and give effect to, an agreement for the vesting in, surrender to, or leasing to, Her Majesty, or for the occupation under licence, of any land, or

(b)  acquire land (including an interest in land) by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991.

(2A)  The Minister may, on behalf of the Crown, acquire land (including an interest in land) for the purpose of a future lease grant or dealing by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991.

(2B)  An acquisition for a future lease grant or dealing is an acquisition:

(a)  to enable the reservation or dedication of land under this Act and the exercise of powers, authorities, duties and functions conferred or imposed by or under this Act in relation to the land, or

(b)  to enable the exercise of powers, authorities, duties and functions conferred or imposed by or under this Act in relation to land already reserved or dedicated under this Act.

(2C)  The publication in the Gazette of an acquisition notice under section 19 of the Land Acquisition (Just Terms Compensation) Act 1991 for a purpose that is described as a future lease grant or dealing does not:

(a)  to the extent to which the land referred to in the acquisition notice was Crown land immediately before the publication of the acquisition notice, affect the status of the land as Crown land, or

(b)  operate to revoke any reservation as national park, historic site, state conservation area, regional park, nature reserve or karst conservation reserve of the land referred to in the acquisition notice.

(2D)  Nothing in this section is taken to mean that the Minister cannot exercise functions in relation to land under this Act unless the Minister first compulsorily acquires the land concerned.

(2E)  Subsection (2A) does not limit the purposes for which land may be acquired under section 145 or any other provision of this Act.

(3)  The Minister or Director-General may, for the purpose of the management, maintenance or improvement of any land reserved or dedicated under this Act, enter into and give effect to an agreement with the owner or lessee of the land, as the case requires, concerning the management or care of any land adjoining or in the vicinity of land so reserved or dedicated.

(4)  (Repealed)

147   Application of Public Works Act 1912

(1)  For the purposes of the Public Works Act 1912, any acquisition of land under section 145 or 146 is taken to be for an authorised work and the Minister is, in relation to that authorised work, taken to be the Constructing Authority.

(2)  Sections 34, 35, 36 and 37 of the Public Works Act 1912 do not apply in respect of works constructed under this Act.

148   Power of Minister to accept gifts

(1)  The Minister may acquire, by gift inter vivos, devise or bequest, any property for the purposes of this Act, the Wilderness Act 1987 or the Threatened Species Conservation Act 1995 and may agree to the condition of any such gift, devise or bequest.

(2)  The rule of law against remoteness of vesting shall not apply to any such condition to which the Minister has agreed.

(3)  Where the Minister acquires property under subsection (1):

(a)  neither an instrument that effects the acquisition nor any agreement pursuant to which the property is acquired is chargeable with duty under the Stamp Duties Act 1920, and

(b)  the property, or the value of property, shall not be included in the dutiable estate of the donor or testator for the purposes of assessing death duty under that Act.

(4)  Notwithstanding anything in Part 4 or Part 4A, lands acquired under this section must not be reserved as, or as part of, a national park, historic site, state conservation area, regional park, nature reserve or karst conservation reserve in contravention of any such condition to which the Minister has agreed.

149   Disposal of property

(1)  Subject to any conditions of a gift or an agreement by or under which any such property may have been acquired, the Minister may sell, grant leases of, dispose of or otherwise deal with any lands or other property:

(a)  acquired by the Minister, otherwise than on behalf of Her Majesty, under this Part, or

(b)  acquired by the Minister on behalf of Her Majesty for the purposes of this Act or the Threatened Species Conservation Act 1995 by purchase with money from the Fund, by exchange of any property so purchased or by gift,

      or any interest in any such lands or other property.

(2)  Nothing in this section applies to or in respect of lands while reserved as, or as part of, a national park, historic site, state conservation area, regional park, nature reserve or karst conservation reserve.

(3)  Nothing in this section affects the operation of Part 4A.

(4)  Without limiting subsection (1), the Minister may:

(a)  for any purpose specified in section 146 (1) (a), (b) or (c) grant a lease of, or a licence with respect to, lands acquired or occupied under section 146 (1), or

(b)  for use in connection with the administration of this Act grant a lease of, or a licence with respect to, lands referred to in section 146 (2).

150   Minister to be corporation sole for certain purposes

(1)  For the purposes of the exercise and performance of the Minister’s authorities, duties and functions under Part 4A and this Part and under any other provisions of this or any other Act that are identified (by those provisions) for the purposes of this section, the Minister is hereby constituted a corporation sole under the name of “Minister administering the National Parks and Wildlife Act 1974”.

(2)  The corporation sole constituted by this section:

(a)  has perpetual succession,

(b)  shall have an official seal,

(c)  may take proceedings and be proceeded against in the corporate name,

(d)  may, in accordance with this Act (or with such provisions of any other Act as are identified as referred to in subsection (1)), purchase, exchange, hold, dispose of and otherwise deal with property, and

(e)  may do and suffer all other things that a body corporate generally may, by law, do and suffer and that are necessary for or incidental to the purposes for which the corporation sole is constituted.

(3)  The seal of the corporation sole so constituted shall not be affixed to any instrument or document except in the presence of the Minister, and the Minister shall attest by the Minister’s signature the fact and date of the affixing of the seal.

(4)  All courts and persons acting judicially:

(a)  shall take judicial notice of the seal of the corporation sole so constituted that has been affixed to any instrument or document, and

(b)  shall until the contrary is proved presume that seal was properly affixed.

Part 12 Leases, licences, easements etc

Division 1 Preliminary

150A   Definitions

In this Part:

existing building or structure means:

(a)  in relation to land reserved under this Act before the commencement of this section, a building or structure in existence on the land at that commencement, or

(b)  in relation to land that becomes reserved under this Act on or after the commencement of this section, a building or structure in existence on the land at the time of that reservation.

reserve means a national park, historic site, state conservation area, regional park, nature reserve, karst conservation reserve or Aboriginal area (and includes any such land reserved under Part 4A).

Division 2 Granting of leases and licences

151   Leases and licences of reserved lands

(1)  The Minister may grant a lease or licence of land within a reserve (including any buildings or structures on the land).

(2)  A lease or licence granted under this section may authorise any one or more of the following:

(a)  the exclusive use of the land, buildings and structures concerned,

(b)  the erection of a new building or structure on the land concerned,

(c)  the modification of an existing building or structure on the land concerned.

(3)  Without limiting section 2A, in determining whether to grant a lease or licence of land under this section, the Minister is to give effect to the objects of this Act.

Note. Section 2A (1) (d) provides that it is an object of this Act that the management of reserved land be in accordance with the applicable management principles.

Section 81A makes it clear that Part 5 (Plans of management) has effect in any part of a reserve that is the subject of a lease or licence under this Part. Section 151C also provides that it is a condition of every lease or licence of land granted under this section that the lessee or licensee must ensure that the provisions of this Act, the regulations and the relevant plan of management are complied with.

151A   Purposes for which a lease or licence may be granted

(1)  A lease or licence of land (other than a nature reserve) may only be granted under section 151 for one or more of the following purposes:

(a)  General purposes

(i)  the provision of buildings for use in connection with any of the following:

(A)  the protection or preservation of land from fire,

(B)  the provision of services relating to the work of rendering first aid to, and the transport of, sick and injured persons,

(C)  a surf life-saving club,

(D)  any purpose of a similar nature,

(ii)  the provision of research facilities or activities for natural heritage (including natural phenomena) and cultural heritage,

(iii)  to enable activities of a recreational, educational or cultural nature to be carried out and the provision of facilities for that purpose,

(iv)  to enable sporting activities to be carried out and the provision of temporary facilities for that purpose,

(v)  to enable activities for natural heritage management, cultural heritage management, park management or fire management to be carried out and the provision of facilities for that purpose,

(vi)  to enable Aboriginal cultural activities to be carried out and the provision of facilities for that purpose,

(vii)  subject to section 151I (Restrictions on grant of lease for residential accommodation), the provision of residential accommodation,

(viii)  any other purpose that is:

(A)  consistent with the relevant management principles for the land set out in Division 2 of Part 4, and

(B)  identified in the relevant plan of management as being a permissible purpose for the land concerned,

(b)  Purposes related to the sustainable visitor or tourist use and enjoyment of reserved land

(i)  the provision of accommodation for visitors and tourists,

(ii)  the provision of the following facilities if the facilities are ancillary to accommodation facilities for visitors or tourists:

(A)  retail outlets,

(B)  facilities to enable the hosting of conferences or functions,

(C)  facilities to enable activities of a sporting nature to be carried out,

(iii)  the provision of facilities and amenities for visitors and tourists, including the following facilities:

(A)  information centres and booking outlets,

(B)  restaurants, cafes, kiosks and other food outlets,

(iv)  the provision of the following facilities if the facilities are ancillary to facilities and amenities for visitors and tourists:

(A)  retail outlets,

(B)  facilities to enable the hosting of conferences or functions,

(c)  Adaptive reuse and use of modified natural areas
any purpose that enables the adaptive reuse of an existing building or structure or the use of a modified natural area.

Note. See section 5 (1) for the definitions of “adaptive reuse” and “modified natural area”.

(2)  A lease or licence of land within a nature reserve may only be granted under section 151 for a purpose that is consistent with the relevant management principles for nature reserves set out in section 30J.

(3)  In addition to the purposes set out in subsection (1), a lease or licence of land (other than a nature reserve) may be granted under section 151 to enable any activity or development in a ski resort area (within the meaning of Part 8A of Schedule 6 to the Environmental Planning and Assessment Act 1979) that is permitted by an environmental planning instrument specifically applying to ski resort areas.

(4)  A licence of land under section 151 for the purpose of a conference, function or event must not be granted if the licence authorises the use of the land for a cumulative period that exceeds 3 months in any 12 month period.

(5)  The Minister must not grant a lease of land under section 151 for any purpose referred to in subsection (1) (b) that authorises the erection of a new building or structure on the land unless:

(a)  the purpose for which the lease is to be granted is identified in the relevant plan of management as being a permissible purpose for the land concerned, and

(b)  the general location for any such new building or structure is identified in that plan of management.

151AA   (Repealed)

151B   Matters that Minister must consider before granting lease or licence

(1)  The Minister must not grant a lease or licence of land (including any buildings or structures on the land) under section 151 unless the Minister is satisfied that:

(a)  the purpose for which the lease or licence is granted is compatible with the natural and cultural values of:

(i)  the land to be leased or licensed, and

(ii)  land reserved under this Act in the vicinity of that land, and

(b)  the lease or licence provides for the sustainable and efficient use of natural resources, energy and water, and

(c)  in relation to any lease or licence that authorises the erection of a new building or structure on the land or the modification of an existing building or structure on the land—the authorised development or activity is appropriate in relation to the built form and scale of the building or structure, including its bulk, height, footprint, setbacks and density.

(2)  In determining whether the Minister is satisfied in relation to any of the matters referred to in subsection (1), the Minister is to have regard to:

(a)  the assessment criteria adopted by the Director-General under subsection (3), and

(b)  in relation to a proposal to grant a lease of land—a report prepared by the Director-General that addresses the relevant matters referred to in subsection (1) in light of those assessment criteria.

(3)  The Director-General:

(a)  must adopt assessment criteria relating to the matters referred to in subsection (1), and

(b)  may vary those criteria, but only if:

(i)  the Director-General has consulted with the Council, and

(ii)  the Council has advised the Director-General that the proposed variation, on balance, improves or maintains the environmental outcomes provided for under the existing criteria.

(4)  The assessment criteria are to be published on the Department’s website.

(5)  This section does not apply to the following:

(a)  a lease or licence of land within a ski resort area within the meaning of Part 8A of Schedule 6 to the Environmental Planning and Assessment Act 1979,

(b)  a renewal of a lease of land granted in accordance with an option to renew a current lease,

(c)  a renewal of a lease of land (otherwise than in accordance with an option to renew), but only if:

(i)  the renewed lease is on substantially the same terms and conditions as the current lease, and

(ii)  the term of the lease (including any options to renew) does not exceed 10 years, and

(iii)  there have been no significant breaches of the current lease, this Act or the regulations during the term of the current lease.

151C   Leases and licences subject to conditions

(1)  A lease or licence under section 149, 151 or 151H may be granted subject to conditions.

(2)  It is a condition of every lease or licence of land granted under section 151 that the lessee or licensee must ensure that the provisions of this Act, the regulations and the plan of management for the reserve in which the land is situated are complied with in relation to the land.

151D   Special provisions relating to leases and licences of karst conservation reserves

(1)  The Minister is to include in every lease or licence of land within a karst conservation reserve granted under section 151 a condition requiring:

(a)  the lessee or licensee (in relation to the lands leased or licensed) to comply with the relevant environmental performance standards set out in the plan of management for the reserve, and

(b)  the environmental performance of the lessee or licensee (in relation to the lands leased or licensed) to be measured against the relevant environmental performance indicators set out in that plan of management.

(2)  The Director-General is (in relation to a lease or licence to which subsection (1) applies):

(a)  to monitor:

(i)  the lessee’s or licensee’s compliance with the relevant environmental performance standards set out in the relevant plan of management, and

(ii)  the lessee’s or licensee’s environmental performance as measured against the relevant environmental performance indicators set out in that plan of management, and

(b)  to report on the results of that monitoring, annually, by:

(i)  recording the results in the register kept under section 151J, and

(ii)  placing the results on the Department’s website.

151E   Special provisions relating to leases and licences of Aboriginal land

(1)  The Minister may only grant a lease or licence under section 151 of land reserved under Part 4A with the concurrence of the relevant board of management for the land concerned.

(2)  The Minister must not grant a lease or licence under section 151 of land reserved under Part 4A contrary to the terms of the lease of the land to the Minister under that Part.

Division 3 Miscellaneous

151F   Public consultation regarding grant of leases and licences

(1)  Before granting a lease or licence under section 151 or 151H, the Minister must cause notice of the proposed lease or licence to be published:

(a)  in a newspaper circulating in the area in which the land is located and on the Department’s website if the proposed lease or licence:

(i)  is for a purpose for which the land (including any buildings or structures on the land) has previously not been used or occupied, or

(ii)  authorises the erection of a temporary building or structure on the land concerned, and

(b)  in a newspaper circulating throughout New South Wales, in a newspaper circulating in the area in which the land is located and on the Department’s website if the proposed lease or licence:

(i)  authorises the erection of a new permanent building or structure on the land concerned, or

(ii)  authorises a significant modification of an existing building or structure on the land concerned or any other significant permanent physical change to the land concerned.

(2)  A notice under subsection (1) must contain the following:

(a)  sufficient information to identify the land concerned,

(b)  the purposes for which the land and any building or structure on the land is proposed to be used,

(c)  the term of the proposed lease or licence (taking into account any option to renew),

(d)  the name of the person to whom the lease or licence is proposed to be granted,

(e)  the closing date for making submissions on the proposal, being a date not earlier than:

(i)  in relation to a notice under subsection (1) (a)—14 days after the date on which the notice was first published, or

(ii)  in relation to a notice under subsection (1) (b)—28 days after the date on which the notice was first published,

(f)  the address to which submissions are to be sent,

(g)  any other information that the Minister considers relevant to the consideration of the proposal.

(3)  The Minister, on request, is to provide such further information, as the Minister considers reasonably practicable, describing the proposed lease or licence. The information provided must not include any commercial in confidence information.

Note. Further information provided under this subsection could include drawings or diagrams describing the proposed lease or licence.

(4)  The Minister may hold a public hearing into any proposed lease or licence under this Part if the Minister thinks it appropriate to do so.

(5)  Before determining whether or not to grant a lease or licence under section 151 or 151H, the Minister must take into account:

(a)  any submissions received before the notified closing date for submissions under subsection (2) (e), and

(b)  if relevant, any report from, or submissions received at, a public hearing.

(6)  This section does not apply to a proposal to grant a lease or licence of land if:

(a)  the proposed lease or licence authorises the land concerned to be used or occupied for a total period that does not exceed 31 days, or

(b)  the proposed lease or licence relates to land reserved under Part 4A and authorises the land concerned to be used or occupied for any community development purpose prescribed by the regulations under section 72AA (6) (c), or

(c)  within the 2 years prior to the proposed grant of the lease or licence, a public consultation has occurred in relation to development or an activity that is substantially the same as the use of the land that is to be authorised by the proposed lease or licence.

Note. For example, a public consultation may have been undertaken under the Environmental Planning and Assessment Act 1979 for approval or consent to the erection and use of a building for a cafe. In that case, public consultation is not necessary under this section in relation to a proposed lease of the building to operate that cafe.

151G   Reference of certain proposed leases and licences for advice

(1)  The Minister:

(a)  must refer a proposal to lease or licence land under section 151 to the Council for advice if the proposed lease or licence:

(i)  authorises the erection of a new permanent building or structure on the land concerned, or

(ii)  authorises a significant modification of an existing building or structure on the land concerned or any other significant permanent physical change to the land concerned, or

(iii)  is for a term that exceeds 10 years (including any option to renew), and

(b)  must refer a proposal to lease land under section 151H to the Council for advice, and

(c)  may refer any other proposal to lease or licence land under this Part to the Council for advice if the Minister thinks it appropriate to do so.

(2)  The Minister may refer a proposal to lease or licence land under this Part to the Aboriginal Cultural Heritage Advisory Committee for advice if the Minister thinks it appropriate to do so.

(3)  The Minister may refer a proposal to lease or licence land within a karst conservation reserve under this Part to the Karst Management Advisory Committee for advice if the Minister thinks it appropriate to do so.

(4)  Before determining whether or not to grant a lease or licence under this Part, the Minister must, if the Minister referred the proposal to the Council, the Aboriginal Cultural Heritage Advisory Committee or the Karst Management Advisory Committee, take into account any advice received from the body concerned within 28 days of the reference.

151H   New head leases for certain lands

(1)  The Minister may grant leases (in this section referred to as head leases) in respect of the lands the subject of any or all of the leases mentioned in Schedule 15, whether or not those lands are still the subject of the leases so mentioned.

(2)  On the granting of a head lease, the following provisions have effect with respect to such of the leases mentioned in Schedule 15 as apply to the land the subject of the head lease:

(a)  the lease is taken to be varied by substituting the name of the head lessee for that of the lessor,

(b)  the lease is taken to become a sublease (in this section referred to as a statutory sublease) of the head lease,

(c)  except as otherwise provided by the regulations—the lease continues to have effect according to its tenor,

(d)  any proceedings under the lease in relation to any matter arising before the head lease was granted are to be commenced or maintained by or against the lessor as if the lease had not been varied as referred to in paragraph (a).

(3)  If a head lease is granted to a person in respect of land the subject of a lease mentioned in Schedule 15 of which the person is the sole lessee, the lease so mentioned is, by virtue of the granting of the head lease, extinguished.

(4)  A head lease is taken to include a condition to the effect that the head lessee must not:

(a)  assign or mortgage the head lessee’s interest in the lease to any other person, or

(b)  exercise any right of forfeiture or termination in respect of any statutory sublease of the lease, or

(c)  vary any rent payable under any statutory sublease of the lease,

      except with the prior consent in writing of the Minister, and that any purported assignment, mortgage, forfeiture, termination or variation of rent that does not have such consent is void.

(5)  A head lease is not affected merely because a lease mentioned in Schedule 15 ceases to have effect (whether by reason of expiry, surrender, termination, forfeiture or otherwise) while the head lease is in force.

(6)  If a head lease ceases to have effect (whether by reason of expiry, surrender, termination, forfeiture or otherwise) the following provisions have effect with respect to any statutory sublease of the head lease:

(a)  the sublease is taken to be varied by substituting the title of the Minister for the name of the head lessee,

(b)  the sublease is taken to cease to be a statutory sublease and to become a lease granted under section 151,

(c)  the lease continues to have effect according to its tenor,

(d)  any proceedings under the sublease in relation to any matter arising before the head lease ceased to have effect are to be commenced or maintained against the head lessee as if the lease had not been varied as referred to in paragraph (a).

(7)  No duty is payable under the Stamp Duties Act 1920 in respect of a variation referred to in subsection (2) (a) or (6) (a).

(8)  The operation of this section is not to be regarded:

(a)  as a breach of contract or confidence or otherwise as a civil wrong, or

(b)  as a breach of a contractual provision prohibiting, restricting or regulating the assignment or transfer of a lease or statutory sublease, or

(c)  as giving rise to any remedy by a party to an instrument, or as causing or permitting the termination of any instrument, because of a variation referred to in subsection (2) (a) or (6) (a).

(9)  No attornment to a head lessee by a statutory sublessee is required.

(10)  The regulations may amend Schedule 15:

(a)  by omitting the matter relating to any lease mentioned in that Schedule, or

(b)  by varying the matter relating to any lease mentioned in that Schedule, or

(c)  by inserting matter relating to any other lease (not being a head lease) in relation to land in, or in the vicinity of, Perisher Valley, Smiggin Holes or Guthega.

(11)  A head lease granted in respect of land the subject of a lease mentioned in Schedule 15 is not affected merely because the matter relating to the lease so mentioned is omitted from that Schedule, or is varied, while the head lease is in force.

151I   Restrictions on grant of lease for residential accommodation

(1)  The Minister must not grant a lease under section 151 or 151H for the purpose of permanent residential occupation unless the lease:

(a)  provides accommodation to an officer of the Service in the vicinity of the officer’s place of employment, or

(b)  facilitates:

(i)  the maintenance and security of the reserve, and buildings and facilities on or in the reserve, or facilities passing through the reserve such as a road, transmission lines and pipelines, or

(ii)  the provision of services to tourists and visitors to the reserve,

(iii)  the provision of educational and research facilities in the reserve, or

(c)  is for the occupation of buildings in an historic site or land reserved under Part 4A, or

(d)  is of a class prescribed for the purposes of this section.

(2)  A regulation must not be made for the purposes of subsection (1) (d) (not being a principal statutory rule within the meaning of the Subordinate Legislation Act 1989) unless the Minister has:

(a)  caused notice of the draft regulation to be published in a newspaper circulating throughout New South Wales, and

(b)  invited the public and the Council to comment on the draft regulation with the closing date for the making of submissions being not earlier than 45 days after the date of publication of the notice, and

(c)  taken into account any submissions from the Council or the public received before the notified closing date for submissions.

(3)  The validity of a regulation made for the purposes of subsection (1) (d) is not affected by a failure of the Minister to comply with subsection (2) (c).

151J   Register of certain interests to be publicly available

(1)  Information on leases granted under this Act, licences granted under section 153D and every easement or right of way granted under this Act:

(a)  is to be recorded in a register that is to be kept in the head office of the Service and made available to the public, free of charge, during ordinary office hours, and

(b)  is to be placed on the Service’s website.

(2)  Information to be included on the register and website is to include the following:

(a)  the name of the person to whom the lease, licence, easement or right of way has been granted,

(b)  the term of years of the lease, licence, easement or right of way (including any option to renew),

(c)  the location of the land to which the lease, licence, easement or right of way relates,

(d)  the purpose for which the lease, licence, easement or right of way has been granted,

(e)  information as to the terms and conditions of the lease, licence, easement or right of way, except information that the Director-General would be prevented from disclosing under the Government Information (Public Access) Act 2009 or the Privacy and Personal Information Protection Act 1998.

152   Trade within certain reserved lands

(1)  The Director-General may grant licences to carry on trades, businesses or occupations within a national park, historic site, state conservation area, regional park, nature reserve, karst conservation reserve or Aboriginal area.

(2)  Subject to any regulations, the Minister may prohibit the carrying on of any trade, business or occupation within a national park, historic site, state conservation area, regional park, nature reserve, karst conservation reserve or Aboriginal area otherwise than by some person licensed by the Director-General.

(3)  The Minister may grant a franchise to any person, on such terms and conditions as the Minister may determine, for the sale of goods and services, the provision of public transportation or the supply of other facilities and amenities within a national park, historic site, state conservation area, regional park, nature reserve, karst conservation reserve or Aboriginal area.

(4)  Any franchise granted by the trustees of the whole or part of lands reserved after the commencement day as a national park, historic site, state conservation area, regional park, nature reserve, karst conservation reserve or Aboriginal area, and in force immediately before the lands were so reserved, shall be deemed to be a franchise granted by the Minister under this section and to be as valid and effectual as it would have been if this Act had been in force when the franchise was granted.

153   Easements

(1)  The Minister may upon such terms and conditions as the Minister thinks fit grant for joint or several use easements or rights of way through, upon or in a national park, historic site, state conservation area, regional park, nature reserve or karst conservation reserve for the purpose of providing access to any area included in any lease or licence within the park, site, area or reserve, or for the construction of pipelines, or for the erection of standards, posts, wires and appliances for the conveyance or transmission of electricity, or for any other purpose deemed necessary.

(2)  The Minister may from time to time revoke or vary any grant under this section.

(3)  Any easement or right of way over lands in a national park, historic site, state conservation area or regional park reserved under this Act, which was in force immediately before the lands were reserved as, or as part of, the park, site or area, as the case may be, shall continue in force and shall be deemed to have been granted under this section.

(4)  Any easement or right of way over lands in a nature reserve or karst conservation reserve dedicated under this Act, which was in force immediately before the land was dedicated as, or as part of, the nature reserve or karst conservation reserve shall continue in force and shall be deemed to have been granted under this section.

153A   Leases etc relating to wilderness areas

The Minister shall not:

(a)  grant a lease or licence under section 151, or

(b)  (Repealed)

(c)  grant a lease, licence, easement or right of way under section 153D,

in respect of land that is within a wilderness area.

153B   Granting of interests in respect of reserved or dedicated lands that are also water catchment special areas

(1)  This section applies to lands reserved or dedicated under this Act that are also within a special area within the meaning of the Sydney Water Catchment Management Act 1998 or the Hunter Water Act 1991.

(2)  The Minister may grant leases of, or licences to occupy or use, or easements or rights of way through, on or in, lands to which this section applies for the purpose of enabling the Sydney Catchment Authority, the Sydney Water Corporation or the Hunter Water Corporation to exercise its functions in relation to water or wastewater infrastructure on the lands concerned.

(3)  Subsection (2) does not authorise the granting of a lease, licence, easement or right of way for the purpose of enabling any of the following functions to be exercised in relation to the land concerned:

(a)  the impoundment of water on the land,

(b)  the permanent inundation of the land,

(c)  the construction of flood mitigation structures on the land.

(4)  For the purposes of subsection (3) (b), permanent inundation includes any flooding additional to the temporary flooding that already occurs due to natural rainfall.

(5)  The Minister must not grant a lease, licence, easement or right of way under subsection (2) unless a plan of management for the lands concerned identifies:

(a)  the person to whom, and

(b)  the lands in respect of which, and

(c)  the purpose and term for which,

      the lease, licence, easement or right of way is to be granted.

(6)  Subsection (5) does not limit the operation of Part 5.

(7)  A lease, licence, easement or right of way under subsection (2) may be granted subject to such terms and conditions as the Minister may determine.

(8)  The Minister may from time to time revoke or vary any grant under subsection (2) of an easement or right of way.

(9)  Subsection (2) does not authorise the granting of a lease or licence in relation to land that is within a wilderness area.

(10)  The Minister must cause a register to be kept of each lease, licence, easement or right of way that is granted under subsection (2).

(11)  The register must be kept available for inspection by the public free of charge, during ordinary office hours, at the Head Office of the Service.

153C   Easements, rights of way and licences for landlocked areas

(1)  The Minister may, on such terms and conditions as the Minister thinks fit, grant an easement, right of way or licence through or over land reserved under this Act for the purposes of enabling access to other land if:

(a)  the other land is completely or partially surrounded by land reserved under this Act, and

(b)  the Minister:

(i)  is satisfied that is not practical for the owner (or any occupier) of the other land to obtain an alternative means of access (whether by land or water) because it is not legally or physically available, or

(ii)  while satisfied that it is practical for the owner (or any occupier) of the other land to obtain an alternative means of access, considers that the proposed means of access will have a lesser environmental impact than that alternative means of access to the land concerned, or

(iii)  while satisfied that it is practical for the owner (or any occupier) of the other land to obtain an alternative means of access, considers that the proposed means of access will assist in more efficient management of the reserved land and will have no greater environmental impact than that alternative means of access to the land concerned.

(2)  The Minister must not grant an easement, right of way or licence under subsection (1) unless the Minister is satisfied that:

(a)  the access proposed to be granted under the easement, right of way or licence will not have a significant impact on the environment of the area adjacent to the proposed access, and

(b)  the access proposed to be granted under the easement, right of way or licence is consistent with the relevant plan of management.

(3)  The Minister must not grant an easement, right of way or licence under subsection (1) unless the Minister has considered:

(a)  the extent of, and legality of, any access that the owner (or any occupier) had to the land before that access became unavailable, and

(b)  any guidelines (as referred to in subsection (4)) in relation to access to land.

(4)  The Director-General must prepare and adopt, after consulting with the Council, guidelines relating to the provision of access to land under this section, and may, from time to time, vary those guidelines after further consultation with the Council.

153D   Leases, licences and easements for broadcasting or telecommunications facilities

(1)  For the purpose of the erection, use or maintenance of broadcasting or telecommunications facilities, the Minister may grant leases of, or licences to occupy or use, or easements or rights of way through, on or in, any land reserved under this Act.

(2)  A lease, licence, easement or right of way under this section may be granted subject to such terms and conditions as the Minister may determine.

(3)  The Minister may from time to time revoke or vary any grant under this section of an easement or right of way.

(4)  The Minister must not grant a lease, licence, easement or right of way under this section unless the Minister is satisfied that:

(a)  there is no feasible alternative site for the proposed broadcasting or telecommunications facility concerned on land that is not reserved under this Act, and

(b)  the site of any proposed above ground broadcasting or telecommunications facility covers the minimum area possible, and

(c)  the proposed broadcasting or telecommunications facility is to be designed and constructed in such a manner as to minimise risk of damage to the facility from bushfires, and

(d)  the site and construction of the proposed broadcasting or telecommunications facility have been selected, as far as is practicable, to minimise the visual impact of the facility, and

(e)  if feasible, an existing means of access to the proposed site of the lease, licence, easement or right of way is to be used, and

(f)  the proposed broadcasting or telecommunications facility is essential for the provision of broadcasting or telecommunications services for land reserved under this Act or for surrounding areas to be served by the facility, and

(g)  the broadcasting or telecommunications facility is to be removed and the site of the facility is to be restored as soon as possible after the facility becomes redundant (for example, due to advances in technology), and

(h)  the site of the proposed broadcasting or telecommunications facility has been selected after taking into account the objectives set out in any plan of management relating to the land concerned, and

(i)  the proposed broadcasting or telecommunications facility is, if feasible, to be co-located with an existing structure or located at a site that is already disturbed by an existing lease, licence, easement or right of way on the land concerned.

(5)  The Minister must not grant a lease, licence, easement or right of way under this section in respect of land that is within an area designated as a remote natural area in a plan of management or an Aboriginal area.

(6)  In this section:

broadcasting or telecommunications facility means:

(a)  a facility used for the purpose of providing broadcasting services within the meaning of the Broadcasting Services Act 1992 of the Commonwealth, or

(b)  a facility within the meaning of the Telecommunications Act 1997 of the Commonwealth.

153E   Easements to repair and maintain the Border Fence

(1)  For the purpose of the repair and maintenance of the Border Fence, the Minister may grant easements or rights of way in favour of the Wild Dog Destruction Board through, on or in any land reserved under this Act.

(2)  An easement or right of way under this section may be granted subject to such terms and conditions as the Minister may determine.

(3)  The Minister may from time to time revoke or vary any grant under this section of an easement or right of way.

(4)  The Minister is required to consult the Minister administering the Western Lands Act 1901 before exercising a power conferred by this section.

(5)  This section does not operate to limit a power under any other section of this Part to grant easements or rights of way through, on or in any land reserved under this Act.

(6)  In this section:

Border Fence means the Queensland Border Fence, or the South Australian Border Fence, within the meaning of the Wild Dog Destruction Act 1921.

Wild Dog Destruction Board means the Wild Dog Destruction Board constituted under the Wild Dog Destruction Act 1921.

Part 13 Regulations