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Contents (1995 - 101)
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Threatened Species Conservation Act 1995 No 101
Current version for 28 April 2017 to date (accessed 28 May 2017 at 10:51)
Part 10
Part 10 Miscellaneous
Introductory note.
 This Part makes provision for a number of miscellaneous matters relating to the operation of the Act. These include:
•  a statement that the Act binds the Crown
•  a requirement that the Chief Executive report on the operation of the Act in the Chief Executive’s annual report to Parliament
•  a provision enabling third parties to bring proceedings in the Land and Environment Court for orders remedying or restraining breaches of the Act
•  a statement that the Act is not intended to affect native title rights and interests
•  a provision providing that the Chief Executive may decline to disclose the location of critical habitat (or proposed critical habitat) other than to specified persons if the Chief Executive is of the opinion that disclosure would be likely to expose the critical habitat (or proposed critical habitat) to a significant risk and that withholding of the location is in the public interest, and if affected landholders have requested, or are agreeable to, the withholding of the location
•  a provision enabling third parties to bring proceedings in the Land and Environment Court for orders remedying or restraining breaches of the Act
•  provisions as to the form and service of notices and other documents under the proposed Act
•  a provision concerning review of the operation of the Act as soon as possible after the period of 18 months after the date of assent to the proposed Act.
The Part also authorises the making of regulations, and contains formal provisions giving effect to the Schedules amending other Acts and inserting savings, transitional and other provisions.
142   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 capacities.
142A   Delegation
The Minister or the Chief Executive may delegate to any person employed in the Office any of the Minister’s or Chief Executive’s functions under this Act other than this power of delegation.
142B   Chief Executive may accredit persons to prepare assessments and surveys
(1)  The Chief Executive may institute arrangements for the accreditation of suitably qualified and experienced persons to undertake and prepare surveys and assessments for use in connection with:
(a)  biodiversity certification of land under Part 7AA, or
(b)  any assessment of the matters referred to in section 5A (Significant effect on threatened species, populations or ecological communities, or their habitats) of the Planning Act, or
(c)  the biobanking scheme established under Part 7A.
(2)  An applicant for accreditation must furnish the Chief Executive with such information as the Chief Executive requires to effectively determine the application and the application must be accompanied by the fee fixed by the Chief Executive for the consideration of the application.
(3)  An accreditation is to be for the period (not exceeding 3 years) specified by the Chief Executive in the instrument of accreditation, and the accreditation (or any renewal of it) may be given subject to the conditions and restrictions (if any) specified in the instrument of accreditation.
(4)  Without limiting subsection (3), an accreditation is to include conditions that require surveys and assessments to be undertaken and prepared in accordance with standards approved from time to time by the Chief Executive by order published in the Gazette.
(5)  The Chief Executive may vary conditions or restrictions (if any) attaching to an accreditation and may suspend or cancel an accreditation.
143   Annual report by Chief Executive on operation of Act
(1)  The Chief Executive is to report on the operation of this Act in the annual report of the National Parks and Wildlife Service.
(2)  The report is to include a report on the implementation of Parts 3, 4 and 5 of this Act.
144   Relationship of Act to National Parks and Wildlife Act 1974
Except as otherwise provided by this Act, nothing in this Act affects the operation of the National Parks and Wildlife Act 1974 in relation to animals and plants.
145   Native title rights and interests
This Act does not affect the operation of the Native Title Act 1993 of the Commonwealth or the Native Title (New South Wales) Act 1994 in respect of the recognition of native title rights and interests within the meaning of the Commonwealth Act or in any other respect.
146   Decision not to disclose location of critical habitat
(1)  The Chief Executive may, by notice in writing, determine that any matter in any document in the possession of the National Parks and Wildlife Service that may identify the location of critical habitat or any area or areas of land proposed to be identified as critical habitat should not be disclosed to the public.
(1A)  Despite the other provisions of this Act, the Chief Executive may decline:
(a)  to give public notice (by publication in a newspaper or in the Gazette) of a proposal (or amended proposal) to identify an area or areas of land as critical habitat, the approval of such a proposal, a declaration of critical habitat or the amendment or revocation of such a declaration, and
(b)  to serve a copy of a map of critical habitat on any one or more of the persons or bodies referred to in section 54 (Maps of critical habitat to be served), and
(c)  to include a copy of a declaration of critical habitat or a map of critical habitat in the register kept under section 55 (Chief Executive to keep register of critical habitat).
(2)  The Chief Executive may exercise a function under subsection (1) or (1A) only if:
(a)  the Chief Executive is of the opinion that:
(i)  not to exercise the function would be likely to expose the critical habitat (or the proposed critical habitat) and the endangered or critically endangered species, population or ecological community that occupies it to a significant threat, and
(ii)  the public interest requires the function to be exercised, and
(b)  each landholder of land concerned has requested or is agreeable to the exercise of the function.
(3)  Nothing in this section prevents the Chief Executive from disclosing the location of critical habitat to:
(a)  landholders or other persons having any legal or equitable estate, interest, easement, servitude, privilege or right in or over the land, or
(b)  public authorities exercising functions in relation to the land, or
(c)  any other person entitled by or under this or any other Act or law to notice of the declaration of critical habitat or the existence of interests in or proposals affecting the land.
Note.
 Matter that is the subject of a determination referred to in subsection (1) is information for which there is a conclusive presumption of an overriding public interest against disclosure under the Government Information (Public Access) Act 2009.
146A   Decision not to disclose other information
(1)  The Scientific Committee may make a written recommendation to the Minister that the following matter should not be disclosed to the public:
(a)  information provided to the Scientific Committee relating to the location of threatened species, populations or ecological communities,
(b)  information provided to the Scientific Committee that may identify any individual who made a nomination under Part 2 or made a submission in respect of a nomination.
(2)  The Minister may, by notice in writing:
(a)  accept the recommendation of the Committee that the matter should not be disclosed to the public, or
(b)  reject the recommendation of the Scientific Committee.
(3)  The Minister may accept a recommendation referred to in subsection (1) (a) only if the Minister is of the opinion that the public interest requires that the matter not be disclosed.
(4)  The Minister may accept a recommendation referred to in subsection (1) (b) only if the Minister is of the opinion that the matter should not be disclosed:
(a)  in the interests of safety or welfare of the individual who might otherwise be identified, or
(b)  to protect that individual against intimidation, harassment or other unwarranted reprisals in connection with the nomination or submission.
147   
(Renumbered as sec 141F)
148   Form of notices
Any notice or other document issued, made or given for the purposes of this Act or the regulations must be in writing, except where this Act expressly authorises another means of giving notice.
149   Service of documents
(1)  Any notice or other document that is authorised or required under this Act or the regulations to be served on any person may be served:
(a)  personally or by post, or
(b)  by leaving it with a person apparently of or above the age of 16 years at, or by posting it to, the person’s place of business or, in the case of a corporation, the registered office of the corporation.
(2)  This section does not apply with respect to the service of documents in accordance with section 136 (Service of documents on Scientific Committee).
150   Regulations
(1)  The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for the carrying out or giving effect to this Act.
(2)  A regulation may create an offence punishable by a penalty not exceeding 200 penalty units.
151   
(Renumbered as sec 141E)
152   Liability of directors etc for offences by corporation—offences attracting executive liability
(1)  For the purposes of this section, an executive liability offence is an offence against any of the following provisions of this Act that is committed by a corporation:
(a)  section 114 (6),
(b)  section 141O.
(2)  A person commits an offence against this section if:
(a)  a corporation commits an executive liability offence, and
(b)  the person is:
(i)  a director of the corporation, or
(ii)  an individual who is involved in the management of the corporation and who is in a position to influence the conduct of the corporation in relation to the commission of the executive liability offence, and
(c)  the person:
(i)  knows or ought reasonably to know that the executive liability offence (or an offence of the same type) would be or is being committed, and
(ii)  fails to take all reasonable steps to prevent or stop the commission of that offence.
Maximum penalty: The maximum penalty for the executive liability offence if committed by an individual.
(3)  The prosecution bears the legal burden of proving the elements of the offence against this section.
(4)  The offence against this section can only be prosecuted by a person who can bring a prosecution for the executive liability offence.
(5)  This section does not affect the liability of the corporation for the executive liability offence, and applies whether or not the corporation is prosecuted for, or convicted of, the executive liability offence.
(6)  This section does not affect the application of any other law relating to the criminal liability of any persons (whether or not directors or other managers of the corporation) who are accessories to the commission of the executive liability offence or are otherwise concerned in, or party to, the commission of the executive liability offence.
(7)  In this section:
director has the same meaning it has in the Corporations Act 2001 of the Commonwealth.
reasonable steps, in relation to the commission of an executive liability offence, includes, but is not limited to, such action (if any) of the following kinds as is reasonable in all the circumstances:
(a)  action towards:
(i)  assessing the corporation’s compliance with the provision creating the executive liability offence, and
(ii)  ensuring that the corporation arranged regular professional assessments of its compliance with the provision,
(b)  action towards ensuring that the corporation’s employees, agents and contractors are provided with information, training, instruction and supervision appropriate to them to enable them to comply with the provision creating the executive liability offence so far as the provision is relevant to them,
(c)  action towards ensuring that:
(i)  the plant, equipment and other resources, and
(ii)  the structures, work systems and other processes,
relevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,
(d)  action towards creating and maintaining a corporate culture that does not direct, encourage, tolerate or lead to non-compliance with the provision creating the executive liability offence.
152A   Liability of directors etc for offences by corporation—accessory to the commission of the offences
(1)  For the purposes of this section, a corporate offence is an offence against this Act or the regulations that is capable of being committed by a corporation, whether or not it is an executive liability offence referred to in section 152.
(2)  A person commits an offence against this section if:
(a)  a corporation commits a corporate offence, and
(b)  the person is:
(i)  a director of the corporation, or
(ii)  an individual who is involved in the management of the corporation and who is in a position to influence the conduct of the corporation in relation to the commission of the corporate offence, and
(c)  the person:
(i)  aids, abets, counsels or procures the commission of the corporate offence, or
(ii)  induces, whether by threats or promises or otherwise, the commission of the corporate offence, or
(iii)  conspires with others to effect the commission of the corporate offence, or
(iv)  is in any other way, whether by act or omission, knowingly concerned in, or party to, the commission of the corporate offence.
Maximum penalty: The maximum penalty for the corporate offence if committed by an individual.
(3)  The prosecution bears the legal burden of proving the elements of the offence against this section.
(4)  The offence against this section can only be prosecuted by a person who can bring a prosecution for the corporate offence.
(5)  This section does not affect the liability of the corporation for the corporate offence, and applies whether or not the corporation is prosecuted for, or convicted of, the corporate offence.
(6)  This section does not affect the application of any other law relating to the criminal liability of any persons (whether or not directors or other managers of the corporation) who are concerned in, or party to, the commission of the corporate offence.
152B   Evidence as to state of mind of corporation
(1)  Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular state of mind, is evidence that the corporation had that state of mind.
(2)  In this section, the state of mind of a person includes:
(a)  the knowledge, intention, opinion, belief or purpose of the person, and
(b)  the person’s reasons for the intention, opinion, belief or purpose.
153   Time within which proceedings may be commenced
(1)  Proceedings for an offence under this Act or the regulations may be commenced:
(a)  within but not later than 2 years after the date on which the offence is alleged to have been committed, or
(b)  within but not later than 2 years after the date on which evidence of the alleged offence first came to the attention of any authorised officer (within the meaning of the NPW Act).
(2)  If subsection (1) (b) is relied on for the purpose of commencing proceedings for an offence, the court attendance notice, summons or application must contain particulars of the date on which evidence of the offence first came to the attention of an authorised officer and need not contain particulars of the date on which the offence was committed. The date on which evidence first came to the attention of an authorised officer is the date specified in the court attendance notice, summons or application, unless the contrary is established.
(3)  This section applies despite anything in the Criminal Procedure Act 1986 or any other Act.
(4)  In this section, evidence of an offence means evidence of any act or omission constituting the offence.
154   Ancillary offences
(1)  A person who:
(a)  aids, abets, counsels or procures another person to commit, or
(b)  attempts to commit, or
(c)  conspires to commit,
an offence under another provision of this Act or the regulations is guilty of an offence under that other provision and is liable, on conviction, to the same penalty applicable to an offence under that other provision.
(2)  A person does not commit an offence because of this section for any act or omission that is an offence under section 152A.
154A   Evidentiary provisions etc
(1)  An allegation, in a court attendance notice, summons or application in respect of an offence under this Act or the regulations, that an animal or plant is a member of a species, population or ecological community specified in that court attendance notice, summons or application is sufficient proof of the matter alleged unless the defendant proves to the contrary.
(2)  In any prosecution under this Act, any allegation in any court attendance notice, summons or application that any person is unlicensed or acting without permission or authority need not be proved, and that person is taken to be unlicensed or acting without permission or authority, as the case may be, until the contrary is proved by the production of a licence, permit or authority or otherwise.
(3)  In any proceedings for an offence under this Act or the regulations, a certificate purporting to be signed by the Chief Executive stating that:
(a)  any person was or was not, on a date or within a period specified, the holder of any specified licence, certificate, consent, authority or other thing issued or granted by instrument in writing under this Act, or
(b)  on a date or within a period so specified, any such licence, certificate, consent, authority or other thing:
(i)  related to any specified premises, or
(ii)  was subject to any specified conditions or restrictions, or
(iii)  was, to any specified extent, unconditional or unrestricted, or
(c)  an amount specified in the certificate is the amount of any charge, cost or expense incurred as specified by reason of the offence, or
(d)  an amount specified in the certificate is the amount of any loss or damage sustained, as specified, as a result of the offence, or
(e)  at a time, or during a period, specified in the certificate:
(i)  a conservation agreement relating to land so specified was in force, and
(ii)  the agreement contained the terms specified in the certificate,
is evidence of the matter or matters so certified.
(4)  A copy of any declaration or map of critical habitat published in the Gazette, being a copy purporting to be certified by the Chief Executive, as being a true copy of the declaration or map published, is admissible in any proceedings and is evidence of the matter or matters contained in the declaration or map.
154B   Onus of proof of reasonable excuse or lawful excuse
In any proceedings under this Act, the onus of proving that a person had a reasonable excuse or lawful excuse (as referred to in any provision of this Act or the regulations) lies with the defendant.
155   Repeal of Endangered Fauna (Interim Protection) Act 1991 No 66 and amending Acts
(1)  The Endangered Fauna (Interim Protection) Act 1991 is repealed.
(2)  Section 7 of the Endangered Fauna (Interim Protection) Act 1991 has no operation and is taken never to have had any operation. This subsection applies whether or not it commences before or after 31 December 1995.
(3)  The following Acts are also repealed:
Endangered Fauna (Interim Protection) Amendment Act 1992 No 97
Endangered Fauna (Interim Protection) Amendment Act 1993 No 53
Endangered Fauna (Interim Protection) Amendment Act 1995 No 33.
156   Savings, transitional and other provisions
Schedule 7 has effect.
157   Review of Act
(1)  The Minister is to review this Act to determine whether the policy objectives of the Act are being fulfilled and whether the terms of the Act 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 Threatened Species Legislation Amendment Act 2004.
(3)  The Minister is to make arrangements for public consultation with respect to the review.
(4)  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.