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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 18:15)
Part 4
Part 4 Threatened species and threatened ecological communities
Division 1 Preliminary
4.1   Definition of “listing” species, ecological communities or threatening processes
In this Part:
listing of species, ecological communities or key threatening processes includes a reference to changing the listing of species, ecological communities or key threatening processes (whether by omitting the listing or by moving the listing from one Schedule to another Schedule or to a different part of a Schedule).
Division 2 Listing of species and ecological communities
4.2   Lists of species and ecological communities
(1)  Schedule 1 contains a list of threatened species of animals and plants for the purposes of this Act, comprising the following:
(a)  critically endangered species,
(b)  endangered species,
(c)  vulnerable species.
(2)  Schedule 2 contains a list of threatened ecological communities of animals and plants for the purposes of this Act, comprising the following:
(a)  critically endangered ecological communities,
(b)  endangered ecological communities,
(c)  vulnerable ecological communities.
(3)  Schedule 3 contains a list of extinct species, species extinct in the wild and collapsed ecological communities of animals and plants for the purposes of this Act.
4.3   General eligibility for listing
(1)  A species is eligible to be listed under this Part as a threatened species, or as part of a threatened ecological community, only if it is, in the opinion of the Scientific Committee:
(a)  a species of animal that is native to New South Wales or that is known to periodically or occasionally migrate to New South Wales, or
(b)  a species of plant that is native to New South Wales.
(2)  An animal or plant is native to New South Wales if it was established in Australia before European settlement and it occurs naturally in New South Wales.
Note.
 The definition of animal in this Act excludes fish and the definition of plant excludes marine vegetation (subject to section 14.7). Listing and protection of threatened species of fish or marine vegetation is dealt with in Part 7A of the Fisheries Management Act 1994.
4.4   Specific eligibility criteria for listing threatened species
(1)  A species is eligible to be listed as a critically endangered species if, in the opinion of the Scientific Committee, it is facing an extremely high risk of extinction in Australia in the immediate future, as determined in accordance with criteria prescribed by the regulations.
(2)  A species is eligible to be listed as an endangered species if, in the opinion of the Scientific Committee:
(a)  it is facing a very high risk of extinction in Australia in the near future, as determined in accordance with criteria prescribed by the regulations, and
(b)  it is not eligible to be listed as a critically endangered species.
(3)  A species is eligible to be listed as a vulnerable species if, in the opinion of the Scientific Committee:
(a)  it is facing a high risk of extinction in Australia in the medium-term future, as determined in accordance with criteria prescribed by the regulations, and
(b)  it is not eligible to be listed as an endangered or critically endangered species.
(4)  If a species is not eligible to be listed in any category in accordance with this section on the basis of the risk of extinction in Australia, then it is eligible to be listed in accordance with this section on the basis of the risk of extinction in New South Wales.
(5)  The regulations may make provision in connection with the separate listing of threatened species and populations of those species.
4.5   Specific eligibility criteria for listing threatened ecological communities
(1)  An ecological community is eligible to be listed as a critically endangered ecological community if, in the opinion of the Scientific Committee, it is facing an extremely high risk of extinction in Australia in the immediate future, as determined in accordance with criteria prescribed by the regulations.
(2)  An ecological community is eligible to be listed as an endangered ecological community if, in the opinion of the Scientific Committee:
(a)  it is facing a very high risk of extinction in Australia in the near future, as determined in accordance with criteria prescribed by the regulations, and
(b)  it is not eligible to be listed as a critically endangered ecological community.
(3)  An ecological community is eligible to be listed as a vulnerable ecological community if, in the opinion of the Scientific Committee:
(a)  it is facing a high risk of extinction in Australia in the medium-term future, as determined in accordance with criteria prescribed by the regulations, and
(b)  it is not eligible to be listed as an endangered or critically endangered ecological community.
(4)  If an ecological community is not eligible to be listed in any category in accordance with this section on the basis of the risk of extinction in Australia, then it is eligible to be listed in accordance with this section on the basis of the risk of extinction in New South Wales.
4.6   Specific eligibility criteria for listing extinct species, species extinct in the wild and collapsed ecological communities
(1)  A species is eligible to be listed as an extinct species at a particular time if, in the opinion of the Scientific Committee, there is no reasonable doubt that the last member of the species in Australia has died.
(2)  A species is eligible to be listed as a species extinct in the wild at a particular time if, in the opinion of the Scientific Committee:
(a)  it is known only to survive in Australia in cultivation, in captivity or as a naturalised population well outside its past range, or
(b)  it has not been recorded in its known or expected habitat in Australia, despite targeted surveys, over a time frame appropriate, in the opinion of the Scientific Committee, to its life cycle and form.
(3)  If, in the opinion of the Scientific Committee, a species is extinct or extinct in the wild in New South Wales but not Australia, it is to note that fact in a listing of the species in Schedule 1.
(4)  An ecological community is eligible to be listed as a collapsed ecological community at a particular time if, in the opinion of the Scientific Committee, all occurrences of the ecological community have moved outside the natural range of spatial and temporal variability in terms of its composition, structure or function.
4.7   Regulations prescribing eligibility criteria for listing
A regulation that prescribes criteria for the purposes of this Division is not to be made unless the Minister certifies that:
(a)  the criteria are based on scientific principles only, and
(b)  the criteria for listing under a common assessment method agreed between the Commonwealth, States and Territories were given due consideration before the regulation was made.
Division 3 Procedure for listing (other than provisional listing)
4.8   Operation of Division
(1)  This Division sets out the procedure for listing species and ecological communities in Schedule 1, 2 or 3.
(2)  This Division does not apply to a provisional listing under Division 4.
4.9   Scientific Committee responsible for listing
The Scientific Committee is responsible for determining the listing of species and ecological communities.
4.10   Who may initiate listing
(1)  The Scientific Committee may determine the listing of species and ecological communities on its own initiative.
(2)  The Scientific Committee may also determine the listing of species and ecological communities:
(a)  following a request by the Minister, or
(b)  on a nomination under this Division of any other person, or
(c)  following an assessment for listing by the Commonwealth or another State or Territory under a common assessment method agreed between the Commonwealth, States and Territories.
4.11   Priority assessment of nominations or other proposals for listing
(1)  The Scientific Committee is required to prioritise the assessment of the nominations and other proposals for listing species or ecological communities.
(2)  The regulations may make provision with respect to the prioritisation of assessments.
(3)  The priorities are to be reviewed by the Scientific Committee at least annually.
(4)  The priorities determined by the Scientific Committee are to be published on a government website maintained by the Environment Agency Head.
4.12   Nominations for listing
(1)  A nomination by any person for listing species or ecological communities must:
(a)  be made in writing to the Scientific Committee, and
(b)  include any information required by the Scientific Committee.
(2)  The Scientific Committee may request the person making the nomination to provide additional information about the nomination before it deals with the nomination.
(3)  The Scientific Committee, with the concurrence of the Environment Agency Head, may provide guidance on the making of nominations, including on the themes for listing classes of animals or plants to fill gaps in current listings.
(4)  The Scientific Committee is to give notice of a duly made nomination to the Environment Agency Head within 14 days after the nomination is provided to members of the Scientific Committee.
(5)  The Scientific Committee may consider different nominations about the same subject together.
(6)  The Scientific Committee may reject a nomination if:
(a)  the subject of the nomination has already been dealt with, or
(b)  the nomination is vexatious, or
(c)  the information required to be included in the nomination, or which is requested by the Scientific Committee, is not included or provided or is not considered to be adequate.
(7)  If the Scientific Committee rejects a nomination, it is to notify the Environment Agency Head and the person who made the nomination and is to give reasons for the rejection.
4.13   Scientific Committee’s preliminary determination (except for proposals by other jurisdictions under common assessment method)
(1)  The Scientific Committee is to make a preliminary determination as to whether a proposal to list a species or ecological community should be supported or not supported.
(2)  A preliminary determination is not required in the case of a proposed assessment for listing by the Commonwealth or another State or Territory under a common assessment method agreed between the Commonwealth, States and Territories.
(3)  As soon as possible after making a preliminary determination, the Scientific Committee must:
(a)  in a case involving a nomination, notify the person who made the nomination and the Environment Agency Head, and
(b)  in a case of a proposal raised on its own initiative or in response to a request from the Minister, notify the Minister and the Environment Agency Head, and
(c)  publish notice of, and invite submissions on, its preliminary determination in accordance with any requirements of the regulations.
(4)  The Scientific Committee is to consider written submissions duly received by it in accordance with the published notice.
4.14   Proposed assessments by jurisdictions under common assessment method
(1)  The Scientific Committee is, when dealing with a proposal for listing a species or ecological community, to give due consideration to the assessment criteria and procedures under a common assessment method agreed between the Commonwealth, States and Territories.
(2)  The Scientific Committee may liaise with relevant agencies and officials of the Commonwealth and other States or Territories in connection with the assessment of proposals for listing under any such common assessment method.
(3)  The Scientific Committee is not required to re-assess a proposal for listing by the Commonwealth or another State or Territory if it is satisfied that the proposal has been duly assessed under any such common assessment method.
4.15   Scientific Committee’s final determination
(1)  The Scientific Committee must either accept or reject a proposal for listing a species or ecological community and must give reasons for its determination.
(2)  The reasons for a determination are to include reference to such of the criteria for listing as may be relevant to the determination.
(3)  The final determination of the Scientific Committee may differ from its preliminary determination on the matter.
(4)  In a case involving a nomination, the Scientific Committee must make a final determination within 6 months (or, with the approval of the Minister, within a further 2 years) after the closing date for making submissions to the Scientific Committee about its preliminary determination on the matter.
(5)  Failure to make a final determination within the period required by this section does not affect the validity of the determination.
4.16   Publication of final determination
(1)  A final determination of the Scientific Committee is made on its publication on the NSW legislation website.
(2)  On making a final determination, the Scientific Committee must, as soon as practicable:
(a)  in a case involving a nomination, notify the person who made the nomination of the final determination, and
(b)  notify the Environment Agency Head of the final determination, and
(c)  publish notice of, and reasons for, the final determination in accordance with any requirements of the regulations.
(3)  The validity of a final determination cannot be questioned in any legal proceedings except those commenced in a court by any person within 6 months after the publication of the final determination on the NSW legislation website.
4.17   Revision of Schedule on publication of final determination
Schedule 1, 2 or 3 (as the case requires) is amended to give effect to a final determination of the Scientific Committee on the date on which the final determination is published on the NSW legislation website or on such later date provided in the final determination for its commencement.
4.18   Lists to be kept under review
The Scientific Committee must, in accordance with the regulations, keep the lists of species and ecological communities under review and must, at least every 5 years, determine whether any changes to the lists are necessary.
4.19   Minor amendments to Schedules
(1)  The Scientific Committee may make and publish a final determination under this Division to amend the list of species or ecological communities without following the procedure set out in this Division if, in the opinion of the Scientific Committee, the amendment is necessary or desirable for any of the following purposes:
(a)  to reflect any change in the name of a listed species or a reclassification of a listed species into further species as a result of taxonomic revision,
(b)  to correct any minor error or omission,
(c)  to clarify a description of an ecological community (including to reflect new surveys or research information).
(2)  Any such determination is not to alter the listing status of a particular species or ecological community or the particular area of an ecological community.
(3)  In this section, a reference to the amendment of a list of species or ecological communities includes a reference to the amendment of a determination referred to in the listing.
4.20   Restriction on releasing certain information relating to listing etc
(1)  The Minister may, at the request of the Scientific Committee, authorise the Scientific Committee to restrict access to:
(a)  information provided to the Scientific Committee related to the location of a species or ecological community, or
(b)  information provided to the Scientific Committee that may identify any individual who made a nomination or submission under this Part in relation to the listing or provisional listing of a species or ecological community.
(2)  The Minister may authorise the restriction of access to information referred to in subsection (1) (a) if satisfied that it is in the public interest to do so.
(3)  The Minister may authorise the restriction of access to information referred to in subsection (1) (b) if satisfied that it is necessary to do so to protect the individual concerned from intimidation, harassment, physical threats or other unwarranted reprisals in connection with the making of the nomination or submission.
Division 4 Procedure for provisional listing of endangered or critically endangered species on emergency basis
4.21   Operation of Division
This Division sets out the procedure for provisionally listing an endangered or critically endangered species on an emergency basis.
4.22   Scientific Committee responsible for provisional listing
The Scientific Committee is responsible for determining whether any species should be provisionally listed under this Division.
4.23   Eligibility for provisional listing
A species is eligible to be provisionally listed under this Division if, in the opinion of the Scientific Committee:
(a)  the species:
(i)  although not previously known to have existed in New South Wales, is believed on current knowledge to be native to New South Wales, or
(ii)  is subject to an immediate and significant threat of extinction, or
(iii)  was presumed to be extinct or extinct in the wild but has been rediscovered, and
(b)  the species is not listed in Schedule 1 as an endangered or critically endangered species.
4.24   Who may initiate provisional listing
(1)  The Scientific Committee may determine to provisionally list a species under this Division on its own initiative.
(2)  The Scientific Committee may also determine to provisionally list a species under this Division:
(a)  following a request by the Minister, or
(b)  on a nomination under this Division of any other person, or
(c)  following an assessment for listing by the Commonwealth or another State or Territory under a common assessment method agreed between the Commonwealth, States and Territories.
4.25   Making nomination for provisional listing
(1)  A nomination by any person for the provisional listing of an endangered or critically endangered species must:
(a)  be made in writing to the Scientific Committee, and
(b)  include any information required by the Scientific Committee.
(2)  The Scientific Committee may request the person making the nomination to provide additional information about the nomination before it deals with the nomination.
4.26   Consideration of nomination for provisional listing by Scientific Committee
The provisions of Division 3 relating to the consideration by the Scientific Committee of a nomination for listing apply also to a nomination for the provisional listing of a species under this Division.
4.27   Publication of determination for provisional listing
(1)  A determination for provisional listing is made by the Scientific Committee on its publication on the NSW legislation website.
(2)  On making a determination for provisional listing, the Scientific Committee must, as soon as practicable:
(a)  in a case involving a nomination, notify the person who made the nomination of the determination, and
(b)  notify the Environment Agency Head of the determination, and
(c)  publish notice of, and reasons for, the determination in accordance with any requirements of the regulations.
4.28   Effect of publication of determination for provisional listing
Schedule 1, 2 or 3 (as the case requires) is amended to give effect to a determination for provisional listing on the date on which the determination is published on the NSW legislation website. The amendment ceases to have effect when the provisional listing ceases to have effect under this Division.
4.29   Scientific Committee to review status of provisionally listed species
(1)  As soon as practicable after the publication of a determination under this Division, the Scientific Committee must review the status of a provisionally listed species to determine whether or not the species should be listed in Schedule 1 as a threatened species.
(2)  The requirements of Division 3 relating to the making of preliminary and final determinations for listing apply to the review of a provisional listing.
4.30   Termination of provisional listing
The provisional listing of a species under this Division ceases to have effect:
(a)  when the Scientific Committee makes a final determination in accordance with Division 3 on whether the species should or should not be listed, or
(b)  at the end of 2 years after the provisional listing,
whichever first occurs.
Division 5 Key threatening processes
4.31   List of key threatening processes
Schedule 4 contains a list of key threatening processes for the purposes of this Act.
4.32   Processes eligible for listing as key threatening processes
(1)  A threatening process is eligible to be listed as a key threatening process if, in the opinion of the Scientific Committee:
(a)  it adversely affects threatened species or ecological communities, or
(b)  it could cause species or ecological communities that are not threatened to become threatened.
(2)  The regulations may prescribe criteria for the determination of matters under this section.
4.33   Procedure for listing key threatening processes
The procedure in Division 3 with respect to the listing of species applies to the listing of threatening processes.
4.34   Referral of nomination to Fisheries Scientific Committee
(1)  If, in the opinion of the Chairperson of the Scientific Committee, a nomination of a key threatening process relates to a threatening process that is likely to have an impact on both terrestrial and aquatic environments:
(a)  the Chairperson may consult the Chairperson of the Fisheries Scientific Committee for the purpose of determining whether the nomination should also be considered by the Fisheries Scientific Committee under Part 7A of the Fisheries Management Act 1994, and
(b)  if the Chairpersons agree that the nomination should also be so considered, the nomination is to be referred to the Fisheries Scientific Committee for consideration.
(2)  In that case:
(a)  the nomination is then taken also to be a nomination for amendment of Schedule 6 to that Act, made to the Fisheries Scientific Committee in accordance with Part 7A of the Fisheries Management Act 1994, and
(b)  Part 7A of that Act applies in relation to the nomination (in addition to this Division).
(3)  For the purposes of this section, a nomination of a key threatening process means:
(a)  the nomination of any matter to be inserted in or omitted from Schedule 4, or
(b)  the nomination of any matter in Schedule 4 for amendment.
Note.
 There is a reciprocal process in Part 7A of the Fisheries Management Act 1994 for the referral of nominations made under that Part to the Scientific Committee in appropriate cases.
Division 6 Biodiversity Conservation Program for threatened species and threatened ecological communities
4.35   Establishment of Program
(1)  The Environment Agency Head is to establish a Biodiversity Conservation Program.
(2)  The Program’s objectives are:
(a)  to maximise the long-term security of threatened species and threatened ecological communities in nature, and
(b)  to minimise the impacts of key threatening processes on biodiversity and ecological integrity.
4.36   Content of Program
(1)  The Biodiversity Conservation Program is to consist of the following:
(a)  strategies to achieve the objectives of the Program in relation to each threatened species and threatened ecological community,
(b)  a framework to guide the setting of priorities for implementing the strategies,
(c)  a process for monitoring and reporting on the overall outcomes and effectiveness of the Program.
(2)  Strategies to minimise the impacts of key threatening processes may but are not required to be included in the Program.
(3)  The Environment Agency Head is to ensure that a strategy to achieve the objectives of the Program in relation to a threatened species or threatened ecological community is included in the Program within 2 years after the species or ecological community is listed in this Act.
(4)  The Environment Agency Head may amend or replace a strategy or other component of the Program at any time.
Note.
 Part 9 requires public consultation in relation to a strategy included in the Program and the keeping of a public register of the strategies included in the Program.
4.37   Review of Program
(1)  The Environment Agency Head is to review the outcomes and effectiveness of the Biodiversity Conservation Program every 5 years after the establishment of the Program.
(2)  The Environment Agency Head is to prepare a report of the review and publish the report on a government website maintained by the Environment Agency Head.
Division 7 Threatened Species Scientific Committee
4.38   Establishment of Scientific Committee
(1)  There is established by this Act a body corporate with the corporate name of the Threatened Species Scientific Committee (the Scientific Committee).
(2)  The Scientific Committee is a NSW Government agency.
4.39   Scientific Committee not subject to Ministerial control
The Scientific Committee is not subject to the control or direction of the Minister.
4.40   Functions of Scientific Committee
(1)  The functions of the Scientific Committee are as follows:
(a)  to determine which species are to be listed under this Act as relevant categories of threatened species and which ecological communities are to be listed under this Act as relevant categories of threatened ecological communities,
(b)  to determine which species are to be listed under this Act as extinct species or species extinct in the wild and which ecological communities are to be listed under this Act as collapsed ecological communities,
(c)  to determine which processes are to be listed under this Act as key threatening processes,
(d)  to advise the Minister on any matter relating to the conservation of threatened species or threatened ecological communities that is referred to the Scientific Committee by the Minister,
(e)  to periodically review the lists of threatened species and threatened ecological communities and key threatening processes,
(f)  such other functions as are conferred or imposed on the Scientific Committee by or under this or any other Act.
(2)  The Scientific Committee may, in the exercise of its functions, make use of consultants or obtain assistance or advice from other persons.
4.41   Members of Scientific Committee
(1)  The Scientific Committee is to consist of 11 members appointed by the Minister.
(2)  Of the members of the Scientific Committee:
(a)  2 are to be scientists who are employees of the Office of Environment and Heritage and nominated by the Environment Agency Head, and
(b)  1 is to be a scientist who is an employee of, and nominated by, the Royal Botanic Gardens and Domain Trust, and
(c)  1 is to be a scientist who is an employee of, and nominated by, the Australian Museum Trust, and
(d)  1 is to be a scientist who is an employee of, and nominated by, the Commonwealth Scientific and Industrial Research Organisation, and
(e)  2 are to be scientists who are employees of a public authority and who have expertise in forest ecology, agricultural science or natural resource management, and
(f)  4 are to be scientists who are:
(i)  employees of a New South Wales tertiary educational institution, or
(ii)  nominated by a professional body principally involved in ecological or invertebrate research.
(3)  A person who is appointed as a member of the Scientific Committee is to have expertise in one or more of the following areas of study:
(a)  vertebrate biology,
(b)  invertebrate biology,
(c)  plant biology,
(d)  terrestrial ecology,
(e)  plant community ecology,
(f)  limnology,
(g)  aquatic biology,
(h)  genetics of small populations,
(i)  population dynamics (including population viability analysis or evolutionary ecology).
(4)  If the person or body responsible for nominating a member of the Scientific Committee under this section (the nominating body) fails to submit a nomination to the Minister, within such time and in such manner as may be specified by the Minister by notice in writing to the nominating body, the Minister:
(a)  may seek a nomination from any other person or body that the Minister considers to be a suitable substitute for the nominating body, and
(b)  may appoint any scientist nominated by that other person or body as a member of the Scientific Committee, in place of a scientist nominated by the nominating body.
Note.
 Schedule 7 contains other provisions relating to the members and procedure of the Scientific Committee.