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Contents (2016 - 63)
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Biodiversity Conservation Act 2016 No 63
Current version for 1 July 2019 to date (accessed 20 September 2019 at 15:46)
Part 2
Part 2 Protection of animals and plants
Division 1 Offences
Notes.
 
1   
Division 2 provides defences in any proceedings for an offence under this Division.
2   
For civil enforcement—see Part 13.
2.1   Harming animals
(1)  A person who harms or attempts to harm:
(a)  an animal that is of a threatened species, or
(b)  an animal that is part of a threatened ecological community, or
(c)  a protected animal,
is guilty of an offence.
Maximum penalty (includes additional penalty for each animal):
(a)  in the case of an animal that is (or is part of) a threatened species or threatened ecological community (other than a vulnerable species or community)—Tier 1 monetary penalty or imprisonment for 2 years, or both, or
(b)  in the case of an animal that is (or is part of) a vulnerable species or vulnerable ecological community—Tier 3 monetary penalty, or
(c)  in any other case—Tier 4 monetary penalty.
(2)  If the act that harms an animal is the clearing of native vegetation by or on behalf of a landholder on category 1-exempt land under Part 5A of the Local Land Services Act 2013, the person does not commit an offence under this section unless it is established that the person knew that the act would be likely to harm the animal.
2.2   Picking plants
(1)  A person who picks:
(a)  a plant that is of a threatened species, or
(b)  a plant that is part of a threatened ecological community, or
(c)  a protected plant,
is guilty of an offence.
Maximum penalty (includes additional penalty for each plant):
(a)  in the case of a plant that is (or is part of) a threatened species or threatened ecological community (other than a vulnerable species or community)—Tier 1 monetary penalty or imprisonment for 2 years, or both, or
(b)  in the case of a plant that is (or is part of) a vulnerable species or vulnerable ecological community—Tier 3 monetary penalty, or
(c)  in any other case—Tier 4 monetary penalty.
(2)  In any prosecution for an offence under this section, proof that a plant was found in the possession of the person charged is prima facie evidence that the person picked the plant.
2.3   Damaging declared areas of outstanding biodiversity value
A person who damages a declared area of outstanding biodiversity value is guilty of an offence.
Maximum penalty: Tier 1 monetary penalty or imprisonment for 2 years, or both.
2.4   Damaging habitat of threatened species or ecological community
(1)  A person:
(a)  who damages any habitat of a threatened species or threatened ecological community, and
(b)  who knows that it is the habitat of any such species or community,
is guilty of an offence.
Maximum penalty: Tier 1 monetary penalty or imprisonment for 2 years, or both.
(2)  A person who damages habitat of a threatened species or threatened ecological community in the course of carrying out any unlawful activity is taken to know that it was habitat of that kind unless the person establishes that the person did not know that it was habitat of that kind.
2.5   Dealing in animals or plants
(1)  A person who deals in or attempts to deal in:
(a)  an animal or plant that is of a threatened species, or
(b)  an animal or plant that is part of a threatened ecological community, or
(c)  a protected animal or protected plant,
is guilty of an offence.
Maximum penalty (includes additional penalty for each animal or plant):
(a)  in the case of an animal or plant that is (or is part of) a threatened species or threatened ecological community (other than a vulnerable species or community)—Tier 1 monetary penalty or imprisonment for 2 years, or both, or
(b)  in the case of an animal or plant that is (or is part of) a vulnerable species or vulnerable ecological community—Tier 3 monetary penalty, or
(c)  in any other case—Tier 4 monetary penalty.
(2)  For the purposes of this section, a person deals in animals or plants if the person:
(a)  buys or sells the animals or plants, or
(b)  trades in animals or plants, or
(c)  imports into, or exports from, New South Wales the animals or plants, or
(d)  possesses the animals or plants.
(3)  This section applies to an animal or plant, whether or not it is a living animal or plant, and extends to a part of an animal or plant.
(4)  The regulations may exclude a dealing of a kind described in the regulations from the application of this section.
(5)  In this section:
buy, sell, trade, import or export includes:
(a)  advertise or hold out as being prepared to buy, sell, trade, import or export animals or plants, and
(b)  deliver or receive animals or plants for the purpose of their purchase, sale, trade, import or export.
possess has the same meaning as in section 7 of the Crimes Act 1900.
2.6   Liberating animals
(1)  A person who, without authority, liberates in New South Wales any animal (other than a captured protected animal) is guilty of an offence.
(2)  A person who, without authority, liberates a captured protected animal in a place other than the place of its capture is guilty of an offence.
(3)  In this section, without authority means without the authority conferred by a biodiversity conservation licence under Division 3 or by the regulations.
Maximum penalty: Tier 3 monetary penalty.
2.7   Protection of marine mammals
(1)  In this section:
marine mammal means an animal of the order of Cetacea, Sirenia or Pinnipedia.
(2)  The regulations may make provision for or with respect to the protection, care or preservation of marine mammals, including prohibiting or regulating:
(a)  approaching a marine mammal any closer than the distance prescribed by the regulations, or
(b)  interfering with or doing any other thing in relation to a marine mammal.
(3)  Any such regulation may impose a Tier 2 monetary penalty for an offence against any such regulation, and may impose a Tier 1 monetary penalty or imprisonment for 2 years, or both, for any such offence if the offence is committed in the course of commercial operations relating to the killing of marine mammals.
(4)  Any such regulation may provide that any action prohibited by the regulation in relation to marine mammals constitutes harming a marine mammal for the purposes of this Act.
(5)  A biodiversity conservation licence is not to be issued under Division 3 to authorise a person to harm or obtain a marine mammal for exhibition or other purposes unless the person issuing the licence is satisfied that it is necessary for genuine scientific or educational purposes or any other purpose connected with the conservation or protection of marine mammals.
Division 2 Defences
2.8   Acts authorised under other legislation etc
(1)  It is a defence to a prosecution for an offence under Division 1 if the person charged establishes any of the following in relation to the act that constitutes the offence:
(a)  Planning approval etcThe act was necessary 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)  development that is exempt development under that Act, or
Note.
 Section 76 (3) of that Act provides that development carried out in a declared area of outstanding biodiversity value or in a wilderness area is not authorised exempt development.
(iii)  an activity by a determining authority within the meaning of Part 5 of that Act that was carried out after compliance with that Part, or
(iv)  an activity authorised by an approval granted by a determining authority within the meaning of Part 5 of that Act after compliance with that Part, or
(v)  an approved transitional Part 3A project under Schedule 6A to that Act, or
(vi)  State significant infrastructure approved under Part 5.1 of that Act.
(b)  Authorised clearing of native vegetation—rural areasThe act was clearing native vegetation on category 1-exempt land (within the meaning of Part 5A of the Local Land Services Act 2013), other than any such clearing by a person:
(i)  that harms an animal and that the person knew would be likely to harm the animal, or
(ii)  that damages the habitat of an animal that is (or is part of) a threatened species or threatened ecological community and that the person knew would be likely to damage that habitat.
The act was clearing native vegetation on category 2-regulated land (within the meaning of Part 5A of the Local Land Services Act 2013):
(i)  that was an allowable activity authorised under Division 4 of Part 5A of the Local Land Services Act 2013, or
(ii)  that was authorised by a land management (native vegetation) code under Division 5 of that Part, or
(iii)  that was authorised by an approval under Division 6 of that Part, or
(iv)  that was authorised or required under Division 5 of that Part in relation to a set aside area under that Division.
The defences under this paragraph do not apply if the act was the carrying out of a forestry operation in a State forest or other Crown-timber land to which an integrated forestry operations approval under Part 5B of the Forestry Act 2012 applies.
(c)  Authorised removal of trees etc—urban areasThe act was picking plants and was authorised by a permit or other authorisation under an environmental planning instrument made under section 26 (4) of the Environmental Planning and Assessment Act 1979.
(d)  Rural fires authorisationThe act was:
(i)  an emergency fire fighting act or emergency bush fire hazard reduction work within the meaning of the Rural Fires Act 1997, or
(ii)  bush fire hazard reduction work to which section 100C (4) of the Rural Fires Act 1997 applies or vegetation clearing work under section 100R of that Act.
(e)  Electricity network operator bush fire risk mitigation direction on private bush fire prone landsThe act was picking plants and was required to be done to give effect to a direction of a network operator under Division 2A of Part 5 of the Electricity Supply Act 1995.
(f)  State emergency authorisationThe act was authorised 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.
(g)  Plantation operations authorisationThe act was the carrying out of a plantation operation on an authorised plantation in accordance with the Plantations and Reafforestation Act 1999, the conditions of the authorisation and the provisions of the Plantations and Reafforestation Code applying to the plantation.
(h)  Forestry operations authorisationThe act was:
(i)  the carrying out of a forestry operation in a State forest or other Crown-timber land to which an integrated forestry operations approval under Part 5B of the Forestry Act 2012 applies, being a forestry operation that is carried out in accordance with the approval, or
(ii)  the carrying out of a forestry operation that is authorised by a private native forestry plan under Part 5B of the Local Land Services Act 2013, being a forestry operation that is carried out in accordance with the plan and the applicable private native forestry code of practice.
Note.
 See also section 44 (7) and (8) of the Forestry Act 2012, as inserted by Schedule 11 to this Act.
(i)  Private land conservation agreementsThe act was authorised by a private land conservation agreement (including a conservation agreement under the National Parks and Wildlife Act 1974).
(j)  Aboriginal landThe act was picking or possessing protected plants on lands reserved or dedicated under Part 4A of the National Parks and Wildlife Act 1974 by an Aboriginal owner on whose behalf the lands are vested in an Aboriginal Land Council under that Part or any other Aboriginal person who has the consent to do so of the relevant Aboriginal owner board members (within the meaning of that Act).
(k)  Domestic purposes of Aboriginal personsThe act was:
(i)  harming, attempting to harm or possessing protected animals, or
(ii)  picking or possessing protected plants (but only to the extent of gathering or harvesting fruit, flowers or other parts of the plants),
by an Aboriginal person (or any dependant of an Aboriginal person) for his or her own domestic purposes. Any such act is subject to any exemption or requirement provided by the regulations.
(l)  Non-commercial hobby activitiesThe act was not done for commercial purposes and was picking plants that were cultivated by the person as a hobby or were cultivated by another person as a hobby.
(m)  Plants obtained from commercial plant growersThe act was picking plants that were obtained from a person who was authorised to grow and sell them by a licence issued under this Act.
(n)  Joint management agreementsThe act was authorised by a joint management agreement entered into in accordance with regulations between the Minister and one or more public authorities for the management or control of any action that is jeopardising the survival of a threatened species or threatened ecological community.
(o)  Officials enforcing ActThe act was done by a person engaged in the administration of this Act for the purposes only of determining whether this Act or the regulations have been contravened or of exercising any other official function of the person.
(2)  In the case of an act done in a declared area of outstanding biodiversity value the defences under subsection (1) (b), (c), (h), (k), (l) and (m) do not apply.
Note.
 Other Acts authorise particular activities despite harm to animals or picking plants eg section 6A of the Game and Feral Animal Control Act 2002 with respect to hunting game animals authorised by a game hunting licence, or native game birds under a native game bird management licence.
2.9   Acts authorised by regulations (including codes of practice)
(1)  The regulations may make provision for additional defences to a prosecution for an offence under Division 1, including by reference to acts done in accordance with codes of practice made or adopted under subsection (2).
(2)  The regulations may provide for the making and publication by the Minister of codes of practice relating to animals or plants or for the adoption of other codes of practice relating to animals or plants.
2.10   Acts authorised by biodiversity conservation licence
It is a defence to a prosecution for an offence under Division 1 if the person charged establishes that the act that constitutes the offence was authorised by, and done in accordance with, a biodiversity conservation licence under Division 3.
Division 3 Biodiversity conservation licences
2.11   Licences to do acts that would otherwise constitute offence
The Environment Agency Head may grant a licence (a biodiversity conservation licence) to a person that authorises the doing of an act that would otherwise constitute an offence under Division 1 or under any other provision of this Act.
2.12   Applications for licences
(1)  An application for a biodiversity conservation licence:
(a)  is to be made to the Environment Agency Head in the form approved by that Agency Head and containing the information required by that Agency Head, and
(b)  is to be accompanied by the standard application fee prescribed by the regulations.
(2)  If the Environment Agency Head considers that the cost of determining a particular application for a biodiversity conservation licence exceeds the standard application fee, that Agency Head may require the applicant to pay an additional amount for the determination of the application if the additional amount is calculated in accordance with a methodology published by the Environment Agency Head and does not exceed the additional reasonable costs of determining that application.
Note.
 See section 14.6 with respect to recovery, waiver or refund of fees.
(3)  The Environment Agency Head may require the applicant for a biodiversity conservation licence to provide such additional information as the Environment Agency Head may require to determine the application.
2.13   Grant or refusal and variation of licence
(1)  If an application for a biodiversity conservation licence is duly made, the Environment Agency Head may:
(a)  grant the licence, or
(b)  refuse to grant the licence.
(2)  A biodiversity conservation licence may be granted for the period specified in the licence.
(3)  The Environment Agency Head may, by notice served on the holder of a biodiversity conservation licence, vary the licence. A licence may be varied on the application of the holder of the licence or on the initiative of the Environment Agency Head.
(4)  To avoid doubt, the Environment Agency Head is not a determining authority for the purposes of Part 5 of the Environmental Planning and Assessment Act 1979 when granting or varying a biodiversity conservation licence.
(5)  The Environment Agency Head may refuse to grant a biodiversity conservation licence if the Agency Head considers that the application for the licence relates to a matter that should be dealt with by an application for an approval to clear native vegetation under Division 6 of Part 5A of the Local Land Services Act 2013.
2.14   Conditions of licences
(1)  A biodiversity conservation licence may be granted unconditionally or subject to such conditions as are specified or referred to in the licence or as are prescribed by the regulations.
(2)  The conditions that may be imposed on a biodiversity conservation licence include:
(a)  minimum standards relating to the humane treatment of animals (including minimum standards relating to the accommodation, care, rescue, rehabilitation, release or killing of animals), or
(b)  the places at which animals are to be kept, or
(c)  the keeping of records, or
(d)  conditions on any other matter that the Environment Agency Head considers appropriate in the circumstances.
(3)  The variation of a biodiversity conservation licence under section 2.13 includes the addition, removal or amendment of a condition of the licence (other than a condition prescribed by the regulations).
(4)  A person who contravenes a condition of a biodiversity conservation licence is guilty of an offence.
Maximum penalty:
(a)  in the case of a contravention that relates to an animal or plant that is (or is part of) a threatened species or threatened ecological community (other than a vulnerable species or community)—Tier 1 monetary penalty or imprisonment for 2 years, or both, or
(b)  in the case of a contravention that relates to an animal or plant that is (or is part of) a vulnerable species or vulnerable ecological community—Tier 3 monetary penalty, or
(c)  in any other case—Tier 4 monetary penalty.
(5)  A defence to a prosecution for an offence under Division 1 extends to a prosecution for an offence under subsection (4).
(6)  A person cannot be convicted of both an offence under subsection (4) and an offence under Division 1 in respect of the same act or omission because the defence for an offence under Division 1 provided by the biodiversity conservation licence is not available as a result of the contravention of the condition of the licence.
2.15   Cancellation or suspension of licences
The Environment Agency Head may, by notice served on the holder of a biodiversity conservation licence, suspend or cancel the licence for any reason the Environment Agency Head thinks appropriate.
2.16   Reasons for, and appeals against, licensing decisions
(1)  In this section:
licensing decision means a decision of the Environment Agency Head:
(a)  to refuse an application for a biodiversity conservation licence, or
(b)  to grant a biodiversity conservation licence subject to conditions, or
(c)  to vary a biodiversity conservation licence, or
(d)  to suspend or cancel a biodiversity conservation licence.
(2)  The Environment Agency Head is required to provide a written statement of reasons for a licensing decision if the applicant or holder of the licence makes a written request for the statement of reasons.
(3)  An applicant for, or the holder of, a biodiversity conservation licence may appeal to the Land and Environment Court against a licensing decision.
(4)  The appeal is to be made within the time prescribed by the regulations and in the manner prescribed by the rules of the Court.
(5)  The regulations may provide that a failure to determine an application for a biodiversity licence within the period provided by the regulations is taken to be a refusal of the application for the purposes of this section.
(6)  The lodging of an appeal does not, except to the extent the Court otherwise directs in relation to the appeal, operate to stay the decision appealed against.
2.17   Regulations relating to licences
The regulations may make provision for or with respect to biodiversity conservation licences and, in particular, for or with respect to the following:
(a)  the assessment of applications for licences (including mandatory impact assessment requirements carried out by or on behalf of the applicant),
(b)  the eligibility of persons to be granted a licence,
(c)  different classes of licences,
(d)  the conditions of licences,
(e)  the obligations of the holders of licences,
(f)  the accreditation of providers of wildlife rehabilitation and rescue services and the services to which the accreditation relates that are to be taken to be the subject of a biodiversity conservation licence.
Division 4 Miscellaneous provisions
2.18   Protected animals (unless excluded) to be property of the Crown
(1)  In this section:
excluded protected animal means:
(a)  a protected animal that is, at the time of birth, in the lawful possession of any person other than the Crown, or
(b)  a protected animal imported into New South Wales, or
(c)  a protected animal that was, before the commencement of the National Parks and Wildlife Act 1974 on 1 January 1975, lawfully taken or in the lawful possession of any person other than the Crown and that had not been liberated before 1 January 1975, or
(d)  a protected animal of a class prescribed by the regulations for the purposes of this definition.
protected animal includes an animal of (or part of) a threatened species or threatened ecological community.
(2)  A protected animal (other than an excluded protected animal) is, until lawfully captured or killed, deemed to be the property of the Crown.
(3)  A protected animal is, when liberated in New South Wales, deemed to be the property of the Crown.
(4)  A protected animal that 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 a biodiversity conservation licence that declares that any animal so taken or obtained remains the property of the Crown.
(5)  The progeny of any protected animal that was born at a time when the protected animal was in the possession of a person in the circumstances referred to in subsection (4) is, at the time of birth, deemed to be in the lawful possession of the Crown instead of that person.
2.19   Regulations for the purposes of this Part
(1)  The regulations may amend or substitute Schedule 5 (Protected animals) or Schedule 6 (Protected plants).
(2)  The regulations may make provision for or with respect to the regulation or welfare of protected animals and the regulation of protected plants. In particular, the regulations may:
(a)  regulate the breeding of protected animals, and
(b)  make provision for or with respect to the registration of persons who deal in protected animals or protected plants and of premises used by those persons, and
(c)  require the keeping of records by persons who deal in protected animals or protected plants, and
(d)  make provision for or with respect to the preparation of management plans in relation to any commercial activity that may adversely affect protected animals or protected plants (including provision with respect to tagging of animals or plants that are sold).
(3)  In this section, protected animal includes an animal of (or part of) a threatened species or threatened ecological community, and protected plant includes a plant of (or part of) a threatened species or threatened ecological community.