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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 12 November 2019 at 09:09)
Part 4 Division 3
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.