Biodiversity Conservation Regulation 2017 (NSW)
This Regulation is the Biodiversity Conservation Regulation 2017.
This Regulation commences on 25 August 2017 and is required to be published on the NSW legislation website.
In this Regulation—
(a) a wilderness area declared under the Wilderness Act 1987,
(b) land reserved under the National Parks and Wildlife Act 1974 or acquired by the Minister administering that Act under Part 11 of that Act,
(c) land dedicated or set apart as a flora reserve under the Forestry Act 2012 (or any Act repealed by that Act),
(d) land to which an interim heritage order or listing on the State Heritage Register under the Heritage Act 1977 applies,
(e) a declared area of outstanding biodiversity value under the Act,
(f) an area declared to be critical habitat under Division 3 of Part 7A of the Fisheries Management Act 1994,
(g) a declared World Heritage property within the meaning of the Environment Protection and Biodiversity Conservation Act 1999 of the Commonwealth,
(h) land dedicated or reserved under the Crown Lands Act 1989 for similar public purposes for which land is reserved, declared or listed under the other Acts referred to in this definition,
(i) land to which an interim protection order under Part 11 of the Act applies,
(j) Lord Howe Island.
The Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Regulation.
Notes included in this Regulation do not form part of this Regulation.
The following are prescribed as additional biodiversity values for the purposes of the Act—
(a) threatened species abundance—being the occurrence and abundance of threatened species or threatened ecological communities, or their habitat, at a particular site,
(b) vegetation abundance—being the occurrence and abundance of vegetation at a particular site,
(c) habitat connectivity—being the degree to which a particular site connects different areas of habitat of threatened species to facilitate the movement of those species across their range,
(d) threatened species movement—being the degree to which a particular site contributes to the movement of threatened species to maintain their lifecycle,
(e) flight path integrity—being the degree to which the flight paths of protected animals over a particular site are free from interference,
(f) water sustainability—being the degree to which water quality, water bodies and hydrological processes sustain threatened species and threatened ecological communities at a particular site.
For the purposes of this Regulation, a
(a) in the financial year 2017/2018—$100, and
(b) in each subsequent financial year—the amount calculated as follows—
where—
A is the CPI number for the March quarter in the financial year immediately preceding the financial year for which the amount is calculated.B is the CPI number for the March quarter of 2017.
The amount of a fee unit and the amount of a fee calculated by reference to a fee unit is to be rounded to the nearest dollar (and an amount of 50 cents is to be rounded down).
However, if the amount of a fee unit calculated for any financial year is less than the amount that applied for the previous financial year, then the amount for that previous financial year applies instead.
As soon as practicable after the CPI number for the March quarter is first published by the Australian Statistician, the Environment Agency Head is required to publish on the NSW legislation website a notice of the amount of the fee unit for the next financial year. That notice may be published by the addition of an editorial note relating to the amount of the fee unit in the in force version of this Regulation published on the NSW legislation website.
The Environment Agency Head is also required to give public notice on an appropriate government website of the actual amounts of the fees applying in each financial year resulting from the application of the amount of fee unit calculated under this clause.
This clause operates to change an amount of a fee that is calculated by reference to a fee unit and that change is not dependent on the publication of a notice by the Environment Agency Head under this clause.
In this clause—
See section 14.6 of the Act with respect to recovery, waiver or refund of fees.
Fee unit amount calculated under this clause—
Financial year | Fee unit amount |
2018–2019 | $102 |
2019–2020 | $103 |
2020–2021 | $105 |
2021–2022 | $106 |
2022–2023 | $111 |
2023–2024 | $119 |
2024–2025 | $124 |
In this Division—
(a) to determine or exercise control over the course or direction of the vessel or over the means of propulsion of the vessel (whether or not the vessel is underway), and
(b) to pilot the vessel.
A person must not interfere with a marine mammal.
Maximum penalty—Tier 2 monetary penalty.
In this clause,
A person must not approach a marine mammal any closer than the distance declared by or under this clause.
Maximum penalty—Tier 2 monetary penalty.
The following distances are declared for any marine mammal (except a marine mammal to which subclause (3) or (4) applies)—
(a) 300 metres—if the person is approaching a whale, dolphin or dugong and is on, or using, a prohibited vessel,
(b) 100 metres—if the person is approaching a whale and is on, or using, a vessel other than a prohibited vessel,
(c) 50 metres—if the person is approaching a dolphin or dugong and is on, or using, a vessel other than a prohibited vessel,
(d) 30 metres—if the person is approaching a whale, dolphin or dugong and is swimming,
(e) a height lower than 100 metres within a horizontal radius of 100 metres—if the person is operating an unmanned aircraft,
(f) a height lower than 300 metres within a horizontal radius of 300 metres—if the person is operating an aircraft (other than a helicopter, gyrocopter or unmanned aircraft),
(g) a height lower than 500 metres within a horizontal radius of 500 metres—if the person is operating a helicopter or gyrocopter,
(h) 10 metres—if the person is approaching a seal or sea lion (other than a pup) that is in the water and the person is in, or on, a vessel or is swimming or is a pedestrian,
(i) 40 metres—if the person is approaching a seal or sea lion (other than a pup) that is hauled out on land and the person is swimming, operating a vessel or vehicle or is a pedestrian,
(j) 80 metres—if the person is approaching a pup.
The following distances are declared for any whale, dolphin or dugong that is predominantly white in colour and that is approached by a person operating a vessel or aircraft—
(a) 500 metres—if the person is operating a vessel,
(b) a height lower than 610 metres within a horizontal radius of 610 metres—if the person is operating an aircraft (other than an unmanned aircraft),
(c) a height lower than 100 metres within a horizontal radius of 100 metres—if the person is operating an unmanned aircraft.
The Environment Agency Head may, by order, declare a special protection approach distance for a marine mammal described in the order that is approached by a person in the circumstances described in the order if satisfied that the marine mammal is—
(a) a dugong or other rarely sighted species of marine mammal, or
(b) a morphological or colour-variant marine mammal, or
(c) a female marine mammal that has recently given, or is about to give, birth, or
(d) a calf separated from a mother or group of marine mammals, or
(e) a sick or injured marine mammal, or
(f) at risk of harassment, injury or death.
An order under this subclause is required to be published in the Gazette as soon as practicable after it is made and has effect for the period (not exceeding 6 months) specified in the order.
Until the order declaring a special protection approach distance is so published, the order does not apply to any persons who establish that they were not aware of the declaration.
This clause does not apply to a person approaching a marine mammal in the following circumstances—
(a) the person is approaching in the course of taking action that is reasonably necessary to prevent a risk to human health or to deal with a serious threat to human life or property,
(b) the person is approaching in the course of taking action in the person’s capacity as an officer of or person acting on behalf of a law enforcement agency and the action is reasonably necessary for the purposes of law enforcement,
(c) the person is approaching in the course of taking an action in the person’s capacity as a fisheries officer under the Fisheries Management Act 1994 and the action is reasonably necessary for the purposes of exercising a law enforcement function conferred on the officer under that Act,
(d) the person is approaching in the course of taking action that is a result of an unavoidable accident, other than an accident caused by the person’s negligent or reckless behaviour,
(e) the person is approaching in the course of taking any action as a result of the person being given a direction by an authorised officer (within the meaning of Part 12 of the Act) and that is being taken in accordance with that direction.
In this clause—
(a) the NSW Police Force or the police force of another State or Territory, or
(b) the Australian Federal Police, or
(c) the New South Wales Crime Commission, or
(d) Transport for NSW, or
(e) the Department of Climate Change, Energy, the Environment and Water.
A person operating a prohibited vessel that is being approached by a whale, dolphin or dugong must move away from the whale, dolphin or dugong at a constant slow speed so that the vessel remains at least 300 metres away from the whale, dolphin or dugong.
Maximum penalty—Tier 2 monetary penalty.
In this clause—
(a) for a dolphin or dugong (including a calf)—150 metres,
(b) for a whale (including a calf)—300 metres.
Within the caution zone for a whale, dolphin or dugong (other than a calf), a person operating a vessel that is not a prohibited vessel—
(a) must operate the vessel at a constant slow speed and in a manner that consistently minimises noise, and
(b) must make sure that the vessel does not drift closer than—
(i) for a dolphin or dugong—50 metres, or
(ii) for a whale—100 metres, and
(c) if the whale, dolphin or dugong shows signs of being disturbed—must immediately withdraw the vessel from the caution zone at a constant slow speed, and
(d) if there is more than one person on the vessel—must post a lookout for whales, dolphins or dugongs, and
(e) without limiting paragraph (b), must approach a whale, dolphin or dugong only—
(i) from the rear, at an angle of no closer than 30 degrees to its observed direction of travel, or
(ii) by positioning the vessel ahead of the whale, dolphin or dugong at more than 30 degrees from its observed direction of travel, and
(f) must make sure the vessel does not restrict the path of the whale, dolphin or dugong, and
(g) must make sure the vessel is not used to pursue the whale, dolphin or dugong.
For the purposes of paragraph (c), signs of disturbance include regular changes in direction or speed of swimming, hasty dives, changes in breathing patterns, changes in acoustic behaviour or aggressive behaviour such as tail slashing or trumpet blows.
A person operating a vessel that is not a prohibited vessel must not allow the vessel to enter the caution zone of a calf.
If a calf approaches a vessel that is not a prohibited vessel so that the vessel comes within the caution zone of the calf, the person operating the vessel—
(a) must immediately stop the vessel, and
(b) must—
(i) turn off the vessel’s engines, or
(ii) disengage the vessel’s gears, or
(iii) withdraw the vessel from the caution zone at a constant slow speed.
A person operating a vessel that is not a prohibited vessel must not enter the caution zone of a whale, dolphin or dugong if there are more than 2 vessels in the caution zone.
If a whale (other than a calf) approaches a vessel that is not a prohibited vessel or comes within the limits specified in subclause (2)(b), the person operating the vessel must—
(a) disengage the vessel’s gears and let the whale approach, or
(b) reduce the speed of the vessel and continue on a course away from the whale.
If a dolphin or dugong (other than a calf) approaches a vessel that is not a prohibited vessel or comes within the limits specified in subclause (2)(b), the person operating the vessel must not suddenly change the course or speed of the vessel.
Maximum penalty—Tier 2 monetary penalty.
A person must not operate an aircraft so as to approach a marine mammal from head-on for the purpose of observing a marine mammal.
A person must not operate an aircraft so as to hover over a marine mammal.
A person must not land an aircraft on water for the purpose of observing a marine mammal.
Maximum penalty—Tier 2 monetary penalty.
A person must not intentionally feed or attempt to feed a marine mammal that is in its natural environment.
Maximum penalty—Tier 2 monetary penalty.
In this clause—
A person must not enter water within 100 metres of a whale or within 50 metres of a dolphin or dugong.
If any whale, dolphin or dugong comes within 30 metres of a person who is in the water, the person—
(a) must move slowly to avoid startling it, and
(b) must not touch it or move towards it.
Maximum penalty—Tier 2 monetary penalty.
A person must not, in relation to an animal of the order Cetacea—
(a) import the animal into New South Wales, or
(b) cause or permit the animal under the control of the person to breed.
Maximum penalty—Tier 2 monetary penalty.
For section 2.7(4) of the Act, the actions listed in subclause (1) in relation to an animal of the order Cetacea constitute harming a marine mammal for the purposes of the Act.
Section 2.10 of the Act provides that it is a defence to a prosecution for an offence under this Division if the person charged establishes that the act that constituted the offence was authorised by and done in accordance with a biodiversity conservation licence. Section 2.7(5) of the Act prevents the issue of biodiversity conservation licences that authorise harm to marine mammals or the obtaining of marine mammals for exhibition or other purposes unless it is necessary for genuine scientific or educational purposes or any other purpose connected with the conservation or protection of marine mammals.
It is a defence to a prosecution for an offence under Division 1 of Part 2 of the Act if the person charged establishes that the act that constitutes the offence was authorised by, and done in accordance with, a code of practice relating to animals or plants that is published by order of the Minister on the NSW legislation website.
Division 1 of Part 9 of the Act requires the Minister to undertake public consultation on a proposed code of practice.
Any such code of practice may be made by the Minister or may be a code of practice made by another person or body and adopted by the Minister.
Any such code of practice may limit the offences for which the code provides a defence.
It is a defence to a prosecution for an offence under Division 1 of Part 2 of the Act if the person charged establishes that the act that constitutes the offence was part of an emergency response carried out in relation to any marine mammal by or under the authority of—
(a) an authorised officer under Part 12 of the Act, or
(b) an employee of the Public Service in the course of the administration of or the exercise of functions under the Act, the Fisheries Management Act 1994 or the Marine Estate Management Act 2014.
In this clause—
The offences in Division 2.1 above are offences arising under Division 1 of Part 2 of the Act and are accordingly offences to which this defence applies.
For the purposes of section 2.6 of the Act, a person is authorised to liberate a homing pigeon.
It is a defence to a prosecution for an offence under Division 1 of Part 2 of the Act if the act that constitutes the offence was harming a snake, unless the prosecution establishes that the person charged did not have any reasonable grounds to believe that the snake was endangering or likely to endanger any person or property at the time it was harmed.
It is a defence to a prosecution for an offence under Division 1 of Part 2 of the Act if the person charged establishes that the act that constitutes the offence was authorised by, and done in accordance with, an authority given under section 171 of the National Parks and Wildlife Act 1974.
It is a defence to a prosecution for an offence under Division 1 of Part 2 of the Act if the person charged establishes that the act that constitutes the offence was authorised by, and done in accordance with, a property management plan approved under section 113B of the Threatened Species Conservation Act 1995 before the repeal of that Act.
It is a defence to a prosecution for an offence under section 2.5 of the Act constituted by the possession of an animal if the person charged establishes that—
(a) the animal was not capable of fending for itself, and
(b) the person notified the Environment Agency Head in writing of the person’s possession of the animal within 3 days after the animal came into the person’s possession, and
(c) the person complied with any direction given to the person by the Environment Agency Head with respect to the animal.
This clause does not apply to a marine mammal (within the meaning of Division 2.1) or a marine turtle.
It is a defence to a prosecution for an offence for an offence under section 2.5 of the Act constituted by the possession of a plant on any land if the person charged establishes that—
(a) the plant naturally occurs on the land, and
(b) the person is a landholder of the land.
It is a defence to a prosecution for an offence under Division 1 of Part 2 of the Act constituted by the picking of a protected plant on any land if the person charged establishes that—
(a) the plant was grown or cultivated on the land, and
(b) the person is a landholder of the land or had the consent of the landholder to pick the plant.
It is a defence to a prosecution for an offence under section 2.5 of the Act constituted by dealing (or attempting to deal) in any plant if the person charged establishes that the plant was obtained from a person who was authorised to grow, pick or sell the plant by a licence under the Act.
It is a defence to a prosecution for an offence under section 2.5 of the Act constituted by importing into, or exporting from, New South Wales (or attempting to so import or export) a protected plant if the person charged establishes that—
(a) the plant was tagged in accordance with relevant requirements made under the Act, or
(b) in the case of the import of a plant from a State or Territory that requires the plant to be tagged—the plant was tagged in accordance with those requirements.
It is a defence to a prosecution for an offence under section 2.5 of the Act constituted by any of the following—
(a) a dealing in any meat derived from a protected animal that was lawfully killed for the purposes of sale (other than a dealing in the carcass of a kangaroo),
(b) a dealing in any product derived from an emu that was lawfully killed for the purposes of sale,
(c) a dealing in any manufactured article derived from the skin of a protected animal that was lawfully killed for the purposes of sale (other than an article that is an unprocessed or processed skin),
(d) a dealing in any manufactured article derived from a protected plant (for example, wood or oils) that was lawfully picked.
For the purposes of this clause, a reference to an animal or plant that is lawfully killed or picked is a reference to an animal or plant that is lawfully killed or picked under the Act or under a corresponding law of the Commonwealth or of another State or Territory.
It is a defence to a prosecution for an offence under section 2.1 of the Act if the person charged establishes that the act that constitutes the offence was causing harm to any of the following species of animal and was not for sporting or recreational purposes—
(a) purple swamphens (
Porphyrio porphyrio )—but only if—(i) the harm is for the purpose of mitigating damage to commercial rice crops, and
(ii) the harm occurs between 1 December and the following 30 April, and
(iii) the harm occurs in the Riverina and Murray Local Land Services regions, and
(iv) the harm does not occur in national park estate and other conservation areas,
(b) Australian raven (
Corvus coronoides ), forest raven (Corvus tasmanicus ), little raven (Corvus mellori ), Australian crow (Corvus orru ) or little crow (Corvus bennetti )—but only if the harm occurs outside the Greater Sydney Local Land Services region, and outside national park estate and other conservation areas,(c) sulphur-crested cockatoo (
Cacatua galerita ) or galah (Eolophus roseicapillus )—but only if the harm occurs in the Western, North West, Central West, Riverina and Murray Local Land Services regions, and outside national park estate and other conservation areas.
See also section 6A of the Game and Feral Animal Control Act 2002.
This clause applies to the offence of dealing or attempting to deal in an animal under section 2.5 of the Act.
The offence does not apply to the following—
• Sulphur-crested cockatoo (
Cacatua galerita ),• Western corella (
Cacatua pastinator butleri ),• Galah (
Eolophus roseicapillus ),• Little corella (
Cacatua sanguinea ),• Long-billed corella (
Cacatua tenuirostris ),• Cockatiel (
Nymphicus hollandicus ),• Scaly-breasted lorikeet (
Trichoglossus chlorolepidotus ),• Rainbow lorikeet (
Trichoglossus haematodus ),• Red-collared lorikeet (
Trichoglossus rubritorquis ),• Musk lorikeet (
Glossopsitta concinna ),• Princess parrot (
Polytelis alexandrae ),• Pale-headed rosella (
Platycercus adscitus ),• Adelaide rosella (
Platycercus elegans adelaidae ),• Yellow rosella (
Platycercus elegans flaveolus ),• Eastern rosella (
Platycercus eximius ),• Western rosella (
Platycercus icterotis ),• Red-capped parrot (
Purpureicephalus spurious ),• Twenty-eight parrot (
Barnardius zonarius semitorquatus ),• Port lincoln parrot (
Barnardius zonarius zonarius ),• Hooded parrot (
Psephotus dissimilis ),• Red-rumped parrot (
Psephotus haematonotus ),• Bourke’s parrot (
Neopsephotus bourkii ),• Elegant parrot (
Neophema elegans ),• Scarlet-chested parrot (
Neophema splendida ),• Budgerigar (
Melopsittacus undulatus ),• King quail (
Coturnix chinensis ),• Stubble quail (
Coturnix pectoralis ),• Brown quail (
Coturnix ypsilophora ),• Painted button-quail (
Turnix varia ),• Little button-quail (
Turnix velox ),• Diamond dove (
Geopelia cuneata ),• Bar-shouldered dove (
Geopelia humeralis ),• Peaceful dove (
Geopelia striata ),• Common bronzewing (
Phaps chalcoptera ),• Crested pigeon (
Ocyphaps lophotes ),• Emerald dove (
Chalcophaps indica ),• Star finch (
Neochmia ruficauda ),• Painted finch (
Emblema pictum ),• Gouldian finch (
Erythrura gouldiae ),• Blue-faced parrot finch (
Erythrura trichroa ),• Zebra finch (
Taeniopygia guttata ).
It is a defence to a prosecution for an offence under Division 1 of Part 2 of the Act constituted by the harming of a protected animal if the person charged establishes that the act that constitutes the offence was the use of a pesticide—
(a) for the control of a pest that is not a protected animal, and
(b) in accordance with any pesticide control order or other requirement of the Pesticides Act 1999.
In this clause,
This clause applies to the defence under section 2.8(1)(k) of the Act.
The defence does not apply in relation to—
(a) a parrot, or
(b) a raptor, or
(c) an animal that is of a threatened species, or
(d) an animal that is part of a threatened ecological community.
This clause applies to the defence under section 2.8(1)(n) of the Act relating to acts authorised by a joint management agreement entered into in accordance with the 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.
The Minister may enter into such a joint management agreement. Other persons may also be parties to a joint management agreement.
The parties to a joint management agreement may amend the agreement by a further joint management agreement.
A joint management agreement is to contain terms, binding on all parties, that—
(a) identify the threatened species or threatened ecological community to which the agreement applies, and
(b) identify the action that it manages, controls, regulates or restricts, and
(c) state its objective (for example, maintenance of a habitat in a state that will contribute to the long-term survival of the species or ecological community), and
(d) state the way in which the objective is to be achieved, and
(e) specify the measures by which progress towards achieving the objective is to be assessed, and
(f) identify the parties who are responsible for the implementation of those measures.
A joint management agreement entered into with a public authority is void to the extent to which it fetters any discretion of the public authority in the granting or refusal of a planning approval (within the meaning of Part 6 of the Act) or an approval under the Local Government Act 1993.
A joint management agreement under this clause and a joint management agreement under Division 8 of Part 7A of the Fisheries Management Act 1994 may be combined into a single document if both agreements deal with the same subject-matter.
The Minister must, before entering into a joint management agreement—
(a) give a copy of the draft agreement to the Threatened Species Scientific Committee for review, and
(b) give the public an opportunity to make submissions on the draft agreement.
Division 1 of Part 9 of the Act applies to the draft agreement in the same way as it applies to a public consultation document under that Division.
Before a joint management agreement is entered into, the Threatened Species Scientific Committee must review the draft joint management agreement and provide the Minister with comments on the review by the date specified for the making of public submissions on the draft agreement.
The Minister must consider all written submissions received by the Minister on or before the date specified for the making of public submissions about the draft agreement.
The Minister may, with the consent of the other parties to the agreement, amend the draft joint management agreement to take into account any of those submissions and any comments made by the Threatened Species Scientific Committee about the draft agreement.
The Threatened Species Scientific Committee must also—
(a) conduct an annual review of the performance of all parties to a joint management agreement, and
(b) advise the Minister of any deficiencies in implementation of any joint management agreement by any party to it.
The Threatened Species Scientific Committee’s advice on the annual review of joint management agreements is to be set out in the annual report of the Environment Agency Head to Parliament or is to be available for public inspection at a place specified in that annual report.
It is a defence to a prosecution for an offence under the Act, Part 2, Division 1, if the person charged establishes that the activity resulting in the offence was—
(a) bee keeping or grazing, and
(b) authorised by, and done in accordance with, a forest permit, and
(c) occurred on land to which the forest permit applies.
In this clause—
The Environment Agency Head may take the following matters into consideration in determining an application for a biodiversity conservation licence—
(a) any likely impact of the activity to be authorised by the licence on—
(i) any protected animals or protected plants, and
(ii) any animals or plants that are of a threatened species, and
(iii) any animals or plants that are part of a threatened ecological community, and
(iv) the habitat of any such animals or plants,
(b) any likely contribution of the activity to be authorised by the licence to the conservation of matters referred to in paragraph (a),
(c) any likely impact of the activity to be authorised by the licence on national park estate and other conservation areas,
(d) whether the activity to be authorised by the licence is directed at preventing or minimising a threat or potential threat to human health, safety or well-being,
(e) whether the activity to be authorised by the licence is directed at preventing or minimising damage or loss to property that is being or likely to be caused by an animal,
(f) any relevant management plan referred to in Division 2.4,
(g) the public interest,
(h) any other matter the Environment Agency Head considers relevant.
A person is not eligible to hold a biodiversity conservation licence unless the Environment Agency Head is satisfied that the person is a fit and proper person to hold the licence.
The Environment Agency Head may, in determining whether an applicant for a biodiversity conservation licence is a fit and proper person to hold the licence, have regard to any of the following matters—
(a) whether the applicant has contravened any relevant legislation or any licence or other authority under relevant legislation,
(b) whether the applicant was a director or other person concerned in the management of a corporation that has contravened any relevant legislation or any licence or other authority under relevant legislation,
(c) whether, in the opinion of the Environment Agency Head, the applicant is of good repute having regard to character, honesty and integrity.
(d) whether the applicant is a partner or other associate of a person whom the Environment Agency Head considers is not a fit and proper person to hold such a licence,
(e) whether the applicant has the technical competencies required to undertake the activities to be authorised by the licence.
For the purposes of this clause,
(a) the Act,
(b) this Regulation or any other statutory instrument made under the Act,
(c) any Act repealed by the Act or any statutory instrument made under any such repealed Act,
(d) Part 5A of the Local Land Services Act 2013 or any statutory instrument made under that Part,
(e) the Protection of the Environment Operations Act 1997, the Biosecurity Act 2015, the Fisheries Management Act 1994, the Prevention of Cruelty to Animals Act 1979, the Animal Research Act 1985 or the Exhibited Animals Protection Act 1986 or any statutory instrument made under any such Act,
(f) any other Act or statutory instrument of the State, the Commonwealth, any other State or Territory or any other country that relates to the protection of the environment, the welfare of animals or other matter that the Environment Agency Head considers relevant in determining whether a person is a fit and proper person to hold a licence.
An application for a biodiversity conservation licence is to be accompanied by a standard fee of—
(a) in the case of a licence that authorises a person to harm kangaroos or deal in kangaroos that are harmed under the licence—$150, or
(b) in the case of a licence that authorises a person to deal in kangaroos only—$300, or
(c) in any other case—$30.
Section 2.12 of the Act enables the Environment Agency Head to determine an additional application fee if the cost of determining the application exceeds the standard fee. Section 14.6 of the Act provides for the recovery, waiver or refund of fees.
The Environment Agency Head is to determine an application for a biodiversity conservation licence—
(a) within 28 days after the date on which the application has been duly made, or
(b) if the Environment Agency Head determines that additional time is required to determine the licence, within 56 days after that date.
Any period after the applicant is required by the Environment Agency Head under section 2.12(3) of the Act to provide additional information and until that additional information is provided is not to be counted in calculating that 28-day or 56-day period.
An application for a biodiversity conservation licence that has not been determined is taken to have been refused—
(a) after the expiration of the period within which the Environment Agency Head is required by this clause to determine the application, or
(b) after the expiration of the period of 90 days after the application was made,
whichever is the latter.
Section 2.16 of the Act confers a right of appeal to the Land and Environment Court against the refusal of an application for a licence.
The Environment Agency Head may grant or refuse an application for a biodiversity licence even if the application for the licence is taken to have been refused under subsection (3).
For the purposes of this clause, an application for a licence is not duly made unless the applicant has complied with the requirements of section 2.12(1) and (2) of the Act in relation to the application.
An appeal by an applicant for, or by the holder of, a biodiversity conservation licence is to be made within 28 days after the date the applicant or holder is given notice of the decision.
If an application for a licence is taken to have been refused under clause 2.29, the appeal is to be made within 28 days after the date the application is taken to have been so refused.
The Environment Agency Head may make or adopt a management plan in relation to the conservation of any of the following that may be adversely affected by any commercial activity—
(a) a protected animal or protected plant,
(b) an animal or plant that is of a threatened species,
(c) an animal or plant that is a part of a threatened ecological community.
The Environment Agency Head is to take the following matters into consideration in deciding whether to make or adopt a management plan—
(a) the ecology of the species,
(b) the sustainability of the proposed management regime,
(c) Aboriginal cultural practices in relation to the species,
(d) whether limits need to be placed on the number of biodiversity conservation licences that may be granted for a commercial activity if a licence is required for that activity,
(e) whether it is necessary to monitor the commercial activity,
(f) any other matter the Environment Agency Head considers relevant.
Division 1 of Part 9 of the Act applies to a management plan in the same way as it applies to a public consultation document under that Division.
A biodiversity conservation licence may require compliance with a management plan under this Division in connection with the carrying out of any activity authorised by the licence.
For example, a biodiversity conservation licence that is granted to a person to authorise the person to sell protected animals or plants may require the animal or plant to be tagged in accordance with a management plan under this Division. A contravention of that tagging requirement results in the person not having a defence to a prosecution for an unauthorised dealing in the protected animal or plant under section 2.5 of the Act.
In this Division—
A relevant instrument may require—
(a) persons who deal in protected animals or protected plants, as referred to in section 2.5 of the Act, to be registered by the Environment Agency Head, or
(b) premises used by a person for the purposes of dealing in protected animals or protected plants to be registered by the Environment Agency Head.
The relevant instrument may—
(a) provide for the cancellation of any such registration for a contravention of the Act, this Regulation or any other statutory instrument made under the Act, and
(b) require the payment of a fee for registration.
A relevant instrument may require a tag to be attached to a protected animal or protected plant that is harmed or picked or that is subject to a dealing referred to in section 2.5 of the Act.
For the purposes of any such requirement, the relevant instrument may—
(a) specify the manner in which the tag is to be attached to the animal or plant, and
(b) specify the place on the animal or plant where the tag is to be attached, and
(c) specify the type of tag that is to be attached to the animal or plant, and
(d) require the tag that is attached to be purchased from the Environment Agency Head, and
(e) restrict the number of tags that are available to be purchased from the Environment Agency Head during a specified period.
A relevant instrument may require a person who deals in protected animals or protected plants, as referred to in section 2.5 of the Act, to keep records of any matter relating to the dealing in the animals or plants and to produce any such record on request to an authorised officer under Part 12 of the Act.
A relevant instrument may require a person who deals in protected animals or protected plants, as referred to in section 2.5 of the Act, to notify the Environment Agency Head of any matter relating to the dealing in the animals or plants.
A person to whom a relevant instrument applies and who contravenes a requirement of the instrument relating to—
(a) the registration of the person or of premises used by the person, or
(b) the tagging of a protected animal or plant, or
(c) the keeping or production of records relating to a dealing in animals or plants,
is guilty of an offence.
Maximum penalty—$5,500.
If an act or omission constitutes an offence against this clause and an offence against any provision of Division 1 of Part 2 of the Act, the person may not be convicted of both offences.
In this clause—
A person who interbreeds native waterfowl under the person’s control with waterfowl that are not native waterfowl is guilty of an offence.
Maximum penalty—$5,500.
This clause sets out the criteria to be applied by the Minister in determining whether an area should be declared an area of outstanding biodiversity value because—
(a) the area is important at a state, national or global scale, and
(b) the area makes a significant contribution to the persistence of at least one of the following—
(i) multiple species or at least one threatened species or ecological community,
(ii) irreplaceable biological distinctiveness,
(iii) ecological processes or ecological integrity,
(iv) outstanding ecological value for education or scientific research.
An area makes a significant contribution to the persistence of multiple species or at least one threatened species or ecological community if—
(a) it provides resilience during periods of environmental stress that is important for their continued existence, or
(b) it sustains adaptive capacity or evolutionary potential because it contains high levels of unique components of genetic or phenotypic diversity that will enable species to adapt to changing environments or it functions as an important ecological or evolutionary refuge able to sustain viable populations of species at risk due to climate change or other environmental stresses, or
(c) it supports migration or dispersal of animals and plants, currently or in the future, that will contribute significantly to the persistence of species at risk, or
(d) it is habitat critical for the survival of a threatened species.
An area makes a significant contribution to the persistence of irreplaceable biological distinctiveness if—
(a) it has a very high structural, functional or compositional diversity, or
(b) it is an essential site for the persistence of evolutionary or ecological distinctive species, endemic species or ecological communities, or
(c) it is an essential site for the persistence of 2 or more threatened species or ecological communities in any combination.
An area makes a significant contribution to the persistence of ecological processes or ecological integrity if—
(a) it has ecological integrity, being an area that is—
(i) an outstanding, relatively intact example of a functioning ecosystem type, or if a fully intact ecosystem does not remain, then the best remaining example of that ecosystem type that contributes to maintaining the persistence of biodiversity and ecological integrity, or
(ii) the most intact remaining site of a species occurrence that provides habitat requirements vital to the conservation of a species, or
(iii) the last known remaining site of a species occurrence, or
(b) it is a primary contributor to the continuation of essential ecological processes, or
(c) it is an essential site for a significant proportion of the population of a species during one or more key life history stages or processes.
An area makes a significant contribution to the persistence of outstanding ecological value for education or scientific research if it contains established infrastructure or data related to long-term ecological research monitoring programs that establish an irreplaceable historic baseline, being the best site anywhere in NSW for long-term research on particular species, ecological communities or ecological processes.
The Environment Agency Head may, following consultation with the Secretary of the Department of Planning, Housing and Infrastructure, publish guidelines on the application of the criteria under this clause that the Environment Agency Head will take into account when making a recommendation under section 3.3 of the Act for the declaration of an area of outstanding biodiversity value.
The notice of the declaration of an area of outstanding biodiversity value (and the public register under Division 2 of Part 9 of the Act) is to include—
(a) an indicative map showing the spatial extent of the area, and
(b) a statement of the reasons that the area is eligible to be so declared.
Subclause (1) does not apply if the Environment Agency Head is authorised by section 9.10 of the Act to restrict access to information about the area concerned.
If the Environment Agency Head would be authorised by section 9.10 of the Act to restrict access to information about a declared area of outstanding biodiversity value, the Environment Agency Head may also restrict access to that information during public consultation and other procedures required for the purposes of making the declaration.
In addition to the offences under this Division, section 2.3 of the Act makes it an offence to damage the biodiversity values of a declared area of outstanding biodiversity value, and section 2.1 of the Act makes it an offence to harm an animal of a threatened species. The maximum penalty for such an offence is $1.65 million in the case of a corporation or $330,000 in the case of an individual, or imprisonment for 2 years, or both.
In this Division—
See Gazette No 263 of 20.12.2002, p 10,983 for the declaration of land as critical habitat of the Little Penguin.
A person must not bring a companion animal into the Little Penguin declared area.
Maximum penalty—$5,500
If a companion animal is found in the Little Penguin declared area—
(a) the owner of the companion animal, or
(b) if the owner is not present at the time of the offence and another person who is of or above the age of 16 years is in charge of the companion animal at that time—that other person,
is guilty of an offence.
Maximum penalty—$5,500.
In any prosecution for an offence against this clause it is a defence if the defendant establishes that the relevant companion animal is an assistance animal that was being used by a person with a disability (within the meaning of the Disability Discrimination Act 1992 of the Commonwealth).
In any prosecution of the owner of a companion animal for an offence against this clause it is a defence if the defendant establishes that—
(a) another owner of the animal has been convicted of an offence arising out of the same circumstances, or
(b) the commission by another owner of the animal of an offence arising out of the same circumstances has been proved but a court has made an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 in respect of the offence, or
(c) the offence could not have been avoided by any reasonable efforts on the defendant’s part.
In this clause—
A person must not—
(a) anchor or moor a vessel in the Little Penguin declared area A during the Little Penguin breeding season, or
(b) anchor or moor a vessel outside the Little Penguin declared area A during the Little Penguin breeding season in such a way that the anchored or moored vessel enters the Little Penguin declared area A, or
(c) cause a vessel (other than a non-motorised tender) to enter or remain in the Little Penguin declared area A between sunset and sunrise during the Little Penguin breeding season.
Maximum penalty—$5,500.
In this clause—
(a) any non-displacement craft, and
(b) a seaplane, but only while it is on water.
A person must not take or attempt to take fish from the Little Penguin declared area between sunset and sunrise during the Little Penguin breeding season.
Maximum penalty—$5,500.
In this clause,
A person must not interfere with a burrow or nesting box in the Little Penguin declared area.
Maximum penalty—$5,500.
In this clause—
A person must not knowingly be within 5 metres of a Little Penguin while the Little Penguin is on land in the Little Penguin declared area.
Maximum penalty—$5,500.
A person must not knowingly disturb a Little Penguin in the Little Penguin declared area.
Maximum penalty—$5,500.
In this clause,
If a designated officer is of the opinion that a person is contravening this Division or disturbing a Little Penguin’s breeding or moulting activities, or is likely to do so, the officer may give one or more of the following directions—
(a) direct the person to cease a particular activity within the Little Penguin declared area,
(b) direct the person to leave the Little Penguin declared area.
A person must not, without reasonable excuse, fail to comply with a direction given under this clause.
Maximum penalty—$5,500.
A person is not guilty of an offence of failing to comply with a direction given under this clause unless it is established that the designated officer—
(a) warned the person that a failure to comply with the direction is an offence, and
(b) identified himself or herself as a designated officer.
A designated officer may remove from the Little Penguin declared area, or any part of it, any person who fails to comply with a direction under this clause and any vehicle, vessel, animal or other property in the possession of the person.
It is a defence to a prosecution for an offence against this Division if the defendant establishes any of the following in relation to the act constituting the offence—
(a) that the act was an act authorised under Division 2 (Defences) of Part 2 of the Act in relation to an alleged offence under section 2.3 of the Act of damaging a declared area of outstanding biodiversity value, or
(b) that the act was carried out—
(i) by an employee of the Office of Environment and Heritage in the exercise of his or her functions as such an employee, or
(ii) by a designated officer in the exercise of his or her functions as such an officer, or
(iii) by an employee of the local council of the area concerned or a State government agency in the exercise of his or her monitoring or enforcement functions as such an employee, or
(iv) with the written authorisation of the Environment Agency Head.
In addition to the offences under this Division, section 2.3 of the Act makes it an offence to damage the biodiversity values of a declared area of outstanding biodiversity value, and section 2.1 of the Act makes it an offence to harm an animal of a threatened species. The maximum penalty for such an offence is $1.65 million in the case of a corporation or $330,000 in the case of an individual, or imprisonment for 2 years, or both.
In this Division—
(a) picking any plant within the Wollemi Pine declared area, and
(b) clearing or removing any vegetation (whether or not living) within the Wollemi Pine declared area, and
(c) harming any animal within the Wollemi Pine declared area, and
(d) introducing, or causing the spread of,
Phytophthora cinnamomi within the Wollemi Pine declared area.
Nothing in this Division affects the operation of Part 2 of the National Parks and Wildlife Regulation 2009.
For example, under Divisions 1 and 3 of Part 2 of the National Parks and Wildlife Regulation 2009, a park authority may regulate the use and closure of a national park by means of a public notice, a written notice or an oral direction and an authorised officer may remove a person from a national park in certain circumstances.
The Environment Agency Head may close all or any part of the Wollemi Pine declared area to the public by means of a notice displayed in, or at the boundary of, the Wollemi Pine declared area or the part of it to which the notice relates.
Any such closure may be specified to have effect at all times or during specified times.
A person must not enter, remain in, or leave a vehicle parked in, any part of the Wollemi Pine declared area that is closed to the public in accordance with this clause.
Maximum penalty—$5,500.
The Environment Agency Head may close all or any part of the Wollemi Pine declared area to the public by order published in the Gazette.
Any such closure may be specified to have effect at all times or during specified times.
The Environment Agency Head may decide not to disclose the location of the declared area to the public under section 9.10 of the Biodiversity Conservation Act 2016. This clause gives the Environment Agency Head an alternative means of closing the declared area without disclosing the location of the declared area to the public.
A designated officer may direct a person to leave any part of the Wollemi Pine declared area that is closed to the public in accordance with this Part.
If a designated officer is of the opinion that a person is contravening this Division or causing damage to the Wollemi Pine declared area, or is likely to do so, the officer may give one or more of the following directions—
(a) direct the person to cease a particular activity within the Wollemi Pine declared area,
(b) direct the person to modify a particular activity within the Wollemi Pine declared area so as to avoid any damage or likelihood of damage to the Wollemi Pine declared area,
(c) direct the person to leave the Wollemi Pine declared area.
A person must not, without reasonable excuse, fail to comply with a direction given under this clause.
Maximum penalty—$5,500.
A person is not guilty of an offence of failing to comply with a direction given under this clause unless it is established that the designated officer—
(a) warned the person that a failure to comply with the direction is an offence, and
(b) identified himself or herself to the person as a designated officer.
A designated officer may remove from the Wollemi Pine declared area, or any part of it, any person who fails to comply with a direction under this clause and any vehicle, animal or other property in the possession of the person.
It is a defence to a prosecution for an offence against this Division if the defendant establishes any of the following in relation to the act constituting the offence—
(a) that the act was an act authorised under Division 2 (Defences) of Part 2 of the Act in relation to an alleged offence under section 2.3 of the Act of damaging a declared area of outstanding biodiversity value, or
(b) that the act was carried out—
(i) by an employee of the Office of Environment and Heritage in the exercise of his or her functions as such an employee, or
(ii) by a designated officer in the exercise of his or her functions as such an officer, or
(iii) with the written authorisation of the Environment Agency Head.
The relevant criteria for critically endangered species set out in this Division apply to a determination by the Scientific Committee that a species is eligible to be listed as a critically endangered species on the basis that it is facing an extremely high risk of extinction in Australia in the immediate future.
The relevant criteria for endangered species set out in this Division apply to a determination by the Scientific Committee that a species is eligible to be listed as an endangered species on the basis that—
(a) it is facing a very high risk of extinction in Australia in the near future, and
(b) it is not eligible to be listed as a critically endangered species.
The relevant criteria for vulnerable species set out in this Division apply to a determination by the Scientific Committee that a species is eligible to be listed as a vulnerable species on the basis that—
(a) it is facing a high risk of extinction in Australia in the medium-term future, and
(b) it is not eligible to be listed as a critically endangered species or an endangered species.
A species is eligible to be listed in a particular category if the criteria specified in any of the following clauses of this Division apply to the species.
A population of a species is not eligible to be listed as a threatened species under any of the criteria specified in the following clauses of this Division unless—
(a) the species to which the population belongs is not separately listed as a threatened species, and
(b) the population is, in the opinion of the Scientific Committee, of significant conservation value based on its role in the conservation of the species or a number of other species.
Section 4.4 of the Act provides that if a species is not eligible to be listed in any category in accordance with that section on the basis of the risk of extinction in Australia, then it is eligible to be listed in accordance with that section on the basis of the risk of extinction in New South Wales.
The species has undergone or is likely to undergo within a time frame appropriate to the life cycle and habitat characteristics of the taxon—
(a) for
critically endangered species —a very large reduction in population size, or(b) for
endangered species —a large reduction in population size, or(c) for
vulnerable species —a moderate reduction in population size.
The determination of that criteria is to be based on any of the following—
(a) direct observation,
(b) an index of abundance appropriate to the taxon,
(c) a decline in the geographic distribution or habitat quality,
(d) the actual or potential levels of exploitation of the species,
(e) the effects of introduced taxa, hybridisation, pathogens, pollutants, competitors or parasites.
The geographic distribution of the species is—
(a) for
critically endangered species —very highly restricted, or(b) for
endangered species —highly restricted, or(c) for
vulnerable species —moderately restricted,
and at least 2 of the following 3 conditions apply—
(d) the population or habitat of the species is severely fragmented or nearly all the mature individuals of the species occur within a small number of locations,
(e) there is a projected or continuing decline in any of the following—
(i) an index of abundance appropriate to the taxon,
(ii) the geographic distribution of the species,
(iii) habitat area, extent or quality,
(iv) the number of locations in which the species occurs or of populations of the species,
(f) extreme fluctuations occur in any of the following—
(i) an index of abundance appropriate to the taxon,
(ii) the geographic distribution of the species,
(iii) the number of locations in which the species occur or of populations of the species.
The estimated total number of mature individuals of the species is—
(a) for
critically endangered species —very low, or(b) for
endangered species —low, or(c) for
vulnerable species —moderately low,
and either of the following 2 conditions apply—
(d) a continuing decline in the number of mature individuals that is (according to an index of abundance appropriate to the species)—
(i) for
critically endangered species —very large, or(ii) for
endangered species —large, or(iii) for
vulnerable species —moderate,
(e) both of the following apply—
(i) a continuing decline in the number of mature individuals (according to an index of abundance appropriate to the species), and
(ii) at least one of the following applies—
(A) the number of individuals in each population of the species is—
(I) for
critically endangered species —extremely low, or(II) for
endangered species —very low, or(III) for vulnerable species—low,
(B) all or nearly all mature individuals of the species occur within one population,
(C) extreme fluctuations occur in an index of abundance appropriate to the species.
The total number of mature individuals of the species is—
(a) for
critically endangered species —extremely low, or(b) for
endangered species —very low, or(c) for
vulnerable species —low.
The probability of extinction of the species is estimated to be—
(a) for
critically endangered species —extremely high, or(b) for
endangered species —very high, or(c) for
vulnerable species —high.
For
The relevant criteria for critically endangered ecological communities set out in this Division apply to a determination by the Scientific Committee that an ecological community is eligible to be listed as a critically endangered ecological community on the basis that it is facing an extremely high risk of extinction in Australia in the immediate future.
The relevant criteria for endangered ecological communities set out in this Division apply to a determination by the Scientific Committee that an ecological community is eligible to be listed as an endangered ecological community on the basis that—
(a) it is facing a very high risk of extinction in Australia in the near future, and
(b) it is not eligible to be listed as a critically endangered ecological community.
The relevant criteria for vulnerable ecological communities set out in this Division apply to a determination by the Scientific Committee that an ecological community is eligible to be listed as a vulnerable ecological community on the basis that—
(a) it is facing a high risk of extinction in Australia in the medium-term future, and
(b) it is not eligible to be listed as a critically endangered ecological community or an endangered ecological community.
An ecological community is eligible to be listed in a particular category if the criteria specified in any of the following clauses of this Division apply to the ecological community.
Section 4.5 of the Act provides that if an ecological community is not eligible to be listed in any category in accordance with that section on the basis of the risk of extinction in Australia, then it is eligible to be listed in accordance with that section on the basis of the risk of extinction in New South Wales.
The ecological community has undergone or is likely to undergo within a time span appropriate to the life cycle and habitat characteristics of its component species—
(a) for
critically endangered ecological communities —a very large reduction in geographic distribution, or(b) for
endangered ecological communities —a large reduction in geographic distribution, or(c) for
vulnerable ecological communities —a moderate reduction in geographic distribution.
The ecological community’s geographic distribution is—
(a) for
critically endangered ecological communities —very highly restricted, or(b) for
endangered ecological communities —highly restricted, or(c) for
vulnerable ecological communities —moderately restricted,
and at least one of the following conditions apply—
(d) there is a projected or continuing decline in any of the following—
(i) a measure of spatial extent appropriate to the ecological community,
(ii) a measure of environmental quality appropriate to the characteristic biota of the ecological community,
(iii) a measure of disruption to biotic interactions appropriate to the characteristic biota of the ecological community,
(e) there are threatening processes that are likely to cause continuing decline in either geographic distribution, environmental quality or biotic interactions within the near future,
(f) the ecological community exists at—
(i) for
critically endangered ecological communities —an extremely low number of locations, or(ii) for
endangered ecological communities —a very low number of locations, or(iii) for
vulnerable ecological communities —a low number of locations.
The ecological community has undergone or is likely to undergo within a time span appropriate to the life cycle and habitat characteristics of its component species—
(a) for
critically endangered ecological communities —a very large degree of environmental degradation, or(b) for
endangered ecological communities —a large degree of environmental degradation, or(c) for
vulnerable ecological communities —a moderate degree of environmental degradation.
The ecological community has undergone or is likely to undergo within a time span appropriate to the life cycle and habitat characteristics of its component species—
(a) for
critically endangered ecological communities —a very large disruption of biotic processes or interactions, or(b) for
endangered ecological communities —a large disruption of biotic processes or interactions, or(c) for
vulnerable ecological communities —a moderate disruption of biotic processes or interactions.
The probability of collapse of the ecological community is estimated to be—
(a) for
critically endangered ecological communities —extremely high, or(b) for
endangered ecological communities —very high, or(c) for
vulnerable ecological communities —high.
For
This Division applies for the purposes of the interpretation and application of the criteria prescribed by Division 4.1 or 4.2.
A relevant criteria for the listing of species or ecological communities that refers to a state of affairs, matter or thing, or a likely or projected state of affairs, matter or thing, extends to a state of affairs, matter or thing that is observed, estimated, inferred or reasonably suspected.
Mature individuals are individuals in the wild that are capable of producing viable offspring. The total number of mature individuals excludes individuals that are too young (juvenile), too old (senescent), too moribund (for example, diseased) or otherwise unable to produce viable offspring (for example, due to low population density).
In populations with biased sex ratios, it is appropriate to use a lower value for the total number of mature individuals in a way that takes this into account.
In populations that fluctuate, the number of mature individuals will refer to a minimum number of individuals that are present most of the time (in a time span appropriate to the life cycle and habitat characteristics of the species), and will thus usually be much less than the mean number present.
In clonal organisms, reproducing units may be regarded as mature individuals, so long as they survive independently of one another. However, if clonally reproduced individuals are more limited in viability or dispersal ability than sexually reproduced individuals, the total number of mature individuals may be reduced accordingly to take this into account.
For species in which individuals have synchronous dormant life stages, the number of mature individuals should be assessed during, or projected for, a time when mature individuals are available for breeding.
Re-introduced individuals must have produced viable offspring (after the individuals were re-introduced) before they are counted as mature individuals.
Captive, cultivated or artificially maintained individuals cannot be counted as mature individuals.
Geographic distribution is the area or areas in which a species or ecological community occurs, excluding cases of vagrancy in species.
This may be assessed by estimating—
(a) the extent of occurrence (the area of the total geographic range that includes all extant populations of the species or all extant occurrences of the ecological community), or
(b) the area of occupancy (the area within the total range that is currently occupied by the species or ecological community, that is it excludes unsuitable and unoccupied habitat), or
(c) the area of suitable habitat (the area within the total range that includes occupied and unoccupied suitable habitat, but excludes unsuitable habitat).
The scale at which a geographic distribution is assessed should be appropriate to the biology of the species (or component species in ecological communities), the nature of threats and available data.
The population or habitat of a species is severely fragmented if individuals of the species are distributed among sub-populations or patches of habitat that are small and isolated relative to the life cycle and habitat characteristics of the species.
Extreme fluctuations occur when the population or distribution of a species varies reversibly, widely and frequently, as—
(a) indicated by changes of—
(i) an index of abundance appropriate to the taxon, or
(ii) the geographic distribution of the species, or
(iii) the number of locations or populations of the species, or
(b) inferred from the life history or habitat biology of the species.
The Scientific Committee may publish guidelines relating to the application of the relevant criteria for listing prescribed by Division 4.1 or 4.2.
The Scientific Committee is required to publish notice of, and invite submissions on, a preliminary determination under section 4.13 of the Act for a period of at least 4 weeks.
Land is not eligible to be designated as a biodiversity stewardship site by a biodiversity stewardship agreement if—
(a) the Minister is of the opinion that any current or previous use or proposed use of the land proposed to be designated as the site is inconsistent with biodiversity conservation, or
(b) the Minister is of the opinion that any use or proposed use of any land proposed to be designated as the site (or that is in the vicinity of that land) will prevent relevant management actions from being carried out on the land proposed to be designated as the site or prevent the purpose of those actions from being achieved, or
(c) the Minister is of the opinion that the owner of the land proposed to be designated as the site is already under a legal obligation to carry out biodiversity conservation measures on the land unless—
(i) a government or statutory agency that imposed the legal obligation, or that administers the provisions relating to the legal obligation (or a Minister to whom the agency is responsible) advises in writing that the legal obligation was not created for biodiversity offset purposes, or
(ii) the biodiversity stewardship agreement is entered into for the purpose of satisfying the legal obligation and the biodiversity credits generated in connection with the land are to be retired and not traded or used to meet any other biodiversity offset obligation, or
(d) the land is reserved under Part 4 or Part 4A of the National Parks and Wildlife Act 1974, or
(e) the land is a flora reserve or special management zone within the meaning of the Forestry Act 2012.
A legal obligation to carry out biodiversity conservation measures referred to in subclause (1)(c) includes an obligation under—
(a) an offset (within the meaning of the Native Vegetation Regulation 2013) under a property vegetation plan approved under the Native Vegetation Act 2003, or
(b) a set aside under section 60ZC of the Local Land Services Act 2013, or
(c) a condition of an approval or consent under the Environmental Planning and Assessment Act 1979, or
(d) an offset arrangement made for the purpose of complying with requirements imposed by or under any Act (including the requirements of any authority granted by a public authority under any Act).
Subclause (1) does not prevent other parts of a parcel of land (that do not comprise land referred to in subclause (1)(a)–(e)) from being designated as a biodiversity stewardship site by a biodiversity stewardship agreement.
An application to enter into a biodiversity stewardship agreement is to be accompanied by a processing fee of 25 fee units.
A request for the consent of the Minister to the termination of a biodiversity stewardship agreement is to be accompanied by a fee of 25 fee units.
A request for the consent of the Minister to the variation of a biodiversity stewardship agreement is to be accompanied by—
(a) in the case of a variation to create additional biodiversity credits—a fee of 65 fee units, or
(b) in the case of a variation to include additional owners subject to the agreement—a fee of 105 fee units, or
(c) in any other case (not being a variation that the Minister is satisfied is a minor variation)—a fee of 15 fee units.
Information relating to an existing licence under an Act or provision of an Act repealed by the Act (being a licence that is taken under the Act to be a biodiversity conservation licence) is not required to be included in the public register of biodiversity conservation licences.
The following information is required to be included in the public register of private land conservation agreements—
(a) whether the agreement is a biodiversity stewardship agreement, a conservation agreement or a wildlife refuge agreement,
(b) the names of the current and previous owners of the land to which the agreement relates during any period the agreement is in force,
(c) the lot and deposited plan numbers of the land to which the agreement relates,
(d) the local government area in which the land to which the agreement relates is situated,
(e) any Interim Biogeographic Regionalisation of Australia subregion in which the land to which the agreement relates is situated,
(f) a copy of the agreement (and any variation of the agreement),
(g) a copy of the biodiversity assessment report that relates to the agreement,
(h) a copy of any management plan prepared under the agreement (and any variation of the plan),
(i) in the case of a biodiversity stewardship agreement—the number and class of biodiversity credits created in relation to the agreement,
(j) any additional information the Environment Agency Head considers appropriate.
If a private land conservation agreement ceases to be in force, the public register of private land conservation agreements is to continue to contain the information relating to the agreement immediately before it ceased to be in force. The information is to be kept separately from information about agreements that are in force.
The following information is required to be included in the public register of biodiversity credits—
(a) the name of the credits (and any former name),
(b) the contact details of the current holder of the credits (or of the agent of the holder),
(c) the lot and deposited plan numbers of the land comprising the biodiversity stewardship site in respect of which the credits were created,
(d) the local government area in which that land is situated,
(e) the status of the credits (for example, whether available, retired or committed),
(f) the profile attributes of the credits identified in the Biodiversity Assessment Method,
(g) in the case of a transfer of biodiversity credits—the credits transferred, the amount paid to the existing holder of the credits for the transfer and the date of the transfer (including, if disclosed, whether the transfer was made for philanthropic reasons),
(h) in the case of a retirement of biodiversity credits—
(i) the credits retired, and
(ii) the date the credits were retired, and
(iii) the amount paid to the holder of the credits if the credits have not previously been traded, and
(iv) the reference number and date of the consent, approval, biodiversity obligation or other instrument that imposed the obligation to retire the credits (if any), and
(v) the address and local government area of the land to which that instrument applies,
(i) in the case of a suspension of biodiversity credits—the date the suspension took effect and the date the suspension ends,
(j) in the case of the cancellation of biodiversity credits—the date the cancellation took effect and the reasons for the cancellation provided under section 6.23(3)(b) of the Act,
(k) any additional information the Environment Agency Head considers appropriate.
The following information is required to be included in the public register of accredited persons—
(a) the name of each accredited person whose accreditation is in force,
(b) the date of accreditation of each such person,
(c) the date the accreditation of each such person expires,
(d) the contact details of each such person (but only if the person requests those details to be included in the register),
(e) any additional information the Environment Agency Head considers appropriate.
Information relating to a remediation direction given under section 38 of the Native Vegetation Act 2003 (being a direction that is taken under the Act to be a remediation order under section 11.15 of the Act) is not required to be included in the public register of remediation orders.
A public register is to be kept and made available under Division 2 of Part 9 of the Act of persons seeking biodiversity credits.
The following information is required to be included in the public register—
(a) the name of any person seeking biodiversity credits who requests to be included in the register (or the nominated agent of the person),
(b) contact details of the person (or the nominated agent of the person),
(c) the number and class of credits (or range) sought by the person,
(d) the date the person requested to be included in the register,
(e) any additional information the Environment Agency Head considers appropriate.
A public register is to be kept and made available under Division 2 of Part 9 of the Act of biodiversity stewardship site expressions of interest.
The following information is required to be included in the public register—
(a) the name of any landholder seeking to establish a biodiversity stewardship site who requests to be included in the register (or the nominated agent of the landholder),
(b) contact details of the landholder (or the nominated agent of the landholder),
(c) the local government area in which the proposed site is situated,
(d) any Interim Biogeographic Regionalisation of Australia subregion in which the proposed site is situated,
(e) the date the person requested to be included in the register,
(f) any additional information the Environment Agency Head considers appropriate.
A public register must be kept and made available under the Act, Part 9, Division 2 of the strategic offset delivery agreements entered into by the Environment Agency Head.
The following must be included in the public register—
(a) a copy of each strategic offset delivery agreement,
(b) for each strategic offset delivery agreement—the following information for each 3-month period commencing on 1 January, 1 April, 1 July and 1 October—
(i) expenditure incurred by the Environment Agency Head,
(ii) details of the actions that benefit biodiversity values that were carried out by the Environment Agency Head,
(c) additional information about strategic offset delivery agreements the Environment Agency Head considers appropriate.
In this clause—
The Environment Agency Head may revise a public register kept under Division 2 of Part 9 of the Act to correct any error or out-of-date information in the register.
The Environment Agency Head may restrict access to information in a public register kept under Division 2 of Part 9 of the Act if the Environment Agency Head is satisfied that—
(a) in the case of the public register of biodiversity conservation licences—the information would identify the location of particular animals or plants (or the location of activities relating to particular animals or plants), or
(b) the information would disclose the name of the owner of the site to which a conservation agreement or wildlife refuge agreement applies, or
(c) the information would disclose the name or contact details of the current holder of a biodiversity credit (or the holder’s agent) in any case in which the holder has not agreed to have that information disclosed, or
(d) the information would disclose the name or contact details of a former holder of a biodiversity credit (or the former holder’s agent), or
(e) the information would disclose the land title information of land subject to a conservation agreement or wildlife refuge agreement in a case in which the landholder has requested that the information should not be disclosed, or
(f) the information in a private land conservation agreement that is identified in the agreement as information to which access on a public register is to be restricted, or
(g) the information is subject to an authorisation restricting access given under (or taken to be given under) section 4.20 of the Act.
Section 9.10 also provides for the restriction of access to information in the public interest or if its disclosure would contravene privacy legislation.
This clause applies to a licence, agreement or biodiversity credit under the Threatened Species Conservation Act 1995 that is continued in force under the Act.
Despite anything to the contrary in this Part, information relating to any such licence, agreement or credit is not required to be included in a public register under Division 2 of Part 9 of the Act if the information was not included in the corresponding register under the Threatened Species Conservation Act 1995.
Subclause (2) ceases to have effect in relation to any such licence, agreement or credit if a change is made in relation to the licence, agreement or credit under the Act.
Relevant information about any such licence, agreement or credit on the corresponding register under the Threatened Species Conservation Act 1995 that was not kept in electronic form need not be kept in electronic form under Division 2 of Part 9 of the Act.
The business plan of the Trust is to contain the following—
(a) the goals of the Trust (being goals that are consistent with its objects under section 10.4 of the Act) and its plans for achieving those goals,
(b) its plan for the investment of money of or under the control of the Trust and for the management of the proceeds of its investments,
(c) its plan for collecting and managing data or information for the exercise of its functions (including for the purposes of the biodiversity information programs of the Environment Agency Head under section 14.3 and of the evaluation of investment in biodiversity conservation on private land).
While the Trust continues to be the Fund Manager of the Biodiversity Stewardship Payments Fund, the business plan of the Trust extends to its functions as the Fund Manager.
The annual reporting information prepared for the Trust under the Government Sector Finance Act 2018 is to include the following additional matters—
(a) the progress in the annual reporting period on the achievement of the goals of the Trust set out in its approved business plan,
(b) the actions undertaken by the Trust during the annual reporting period to implement the plans in its approved business plan.
While the Trust continues to be the Fund Manager of the Biodiversity Stewardship Payments Fund, the annual reporting information for the Trust extends to its activities as the Fund Manager.
The annual reporting information prepared for the Trust under the Government Sector Finance Act 2018 may be combined with the annual report of the Trust under section 6.37 of the Act while it continues to be the Fund Manager of the Biodiversity Stewardship Payments Fund.
The combined report is to contain separate financial statements for the Biodiversity Stewardship Payments Fund and for other money or funds of or under the control or management of the Trust.
An interim protection order may contain terms of either or both of the following kinds—
(a) terms prohibiting the owner or occupier of any land that is subject to the order from doing any of the activities referred to in subclause (2),
(b) terms allowing the owner or occupier of any land that is subject to the order to do any of those activities only with the consent of the Minister or only subject to other specified conditions.
The activities that may be prohibited or regulated are the following—
(a) the total or partial destruction, demolition, removal, damaging or defacing of any building, structure or work on any land,
(b) the damaging or despoiling of any land,
(c) the carrying out of development on any land,
(d) the clearing of native or other vegetation on any land,
(e) any other activity that may affect the preservation, protection or maintenance of any land, including any threatened species or ecological community (or its habitat) or any protected animal or protected plant.
In this clause,
An appeal by a landholder against an interim protection order is to be made within 30 days after the date the landholder is given notice of the order under section 11.11 of the Act.
This clause applies to an animal, plant or other thing seized under Part 12 of the Act that is not required to be returned to the person from whom it was seized.
Any such thing—
(a) may be returned to the person from whom it was seized, and
(b) may be retained by the authorised officer who seized it or by the Environment Agency Head, and
(c) may be destroyed or disposed of with the authority of the Environment Agency Head.
In this clause,
(Repealed)
Schedule 1 contains provisions relating to penalty notice offences.
The following provision of information is declared to be the provision of information in connection with a matter under the Act for the purposes of section 13.10 of the Act—
(a) the provision of information by a landholder to the Environment Agency Head in connection with a request by the landholder under section 60L of the Local Land Services Act 2013 for a review relating to the categorisation or re-categorisation of land on a native vegetation regulatory map,
(b) the giving of a notice by a landholder to Local Land Services under section 60X of the Local Land Services Act 2013 of the clearing of native vegetation under the authority conferred by a land management (native vegetation) code,
(c) the provision of information by a person pursuant to an obligation imposed by the conditions of a licence, approval, certificate or other authority (or by an agreement or other instrument) under the Act or under Part 5A of the Local Land Services Act 2013,
(d) the provision of information by or on behalf of a person who commissions the preparation of a biodiversity assessment report to the person preparing the report,
(e) the provision of information by or on behalf of an owner of land to the Environment Agency Head or the Biodiversity Conservation Trust in connection with a proposal by that owner for a private land conservation agreement over the land,
(f) the provision of information to the Environment Agency Head in connection with the accreditation of persons under a scheme referred to in section 6.10 of the Act.
The following additional matters may be certified under section 13.31(1) of the Act—
(a) that a specified animal or plant is a protected animal or protected plant,
(b) that a specified animal or plant is an animal or plant of a specified species,
(c) that a specified person was or was not the holder of biodiversity conservation licence at a specified time,
(d) that a specified amount is payable or has been paid by a specified person under the Act or under Part 5A of the Local Land Services Act 2013,
(e) that a document of a specified kind under the Act or under Part 5A of the Local Land Services Act 2013, a copy of which is attached to the certificate, was in effect at a specified date or during a specified period,
(f) that a specified approval, certificate, order or other document was or was not given, issued, published or in force in respect of specified land or at a specified date or during a specified period,
(g) that a specified animal or plant is classified in a specified manner on a specified official database of animals or plants,
(h) that a determination, a copy of which is attached to the certificate, is a determination of the Scientific Committee,
(i) that specified reasons were the reasons why the Environment Agency Head designated specified land as a specified category under the Act or under Part 5A of the Local Land Services Act 2013,
(j) that specified land (described in the certificate or identified on a map or other document attached to the certificate) was land of a specified category on a native vegetation regulatory map or other map under the Act or under Part 5A of the Local Land Services Act 2013 at a specified time or during a specified period,
(k) that specified compliance or enforcement action was taken in relation to the clearing of native vegetation on specified land for the purposes of a determination of the Environment Agency Head under section 60J(3) of the Local Land Services Act 2013,
(l) that an application, a copy of which is attached to the certificate, is an application that was made to the Minister, Environment Agency Head or Local Land Services under the Act or under Part 5A of the Local Land Services Act 2013,
(m) that a specified amount is the amount of any loss, charge, cost or expense incurred by reason of a specified offence, the making good of specified damage caused by an offence or the investigation of a specified offence,
(n) that a specified amount is the reasonable cost of complying with a specified requirement referred to in section 11.26 of the Act.
Schedule 2 contains provisions relating to the members and procedure of the Biodiversity Conservation Advisory Panel.
This clause applies to programs established by the Environment Agency Head under section 14.3 of the Act for the collection, monitoring and assessment of information on biodiversity.
The programs are to collect, monitor and assess information on the status and trends of biodiversity in New South Wales.
The programs are to use a method for that collection, monitoring and assessment which identifies key biodiversity indicators and sets out how data related to those indicators is to be collected and measured.
The Environment Agency Head is to publish from time to time on a website maintained by the Agency Head a NSW Biodiversity Outlook Report on the results of the programs (including the method used for the collection, monitoring and assessment of the biodiversity information).
The method for the collection, monitoring and assessment of information on biodiversity and the NSW Biodiversity Outlook Report are to be subject to peer review by at least 3 people who have, in the opinion of the Environment Agency Head, appropriate qualifications.
The following persons or classes of persons are prescribed as additional persons or classes of persons to whom the exercise of the functions of the Minister or the Environment Agency Head may be delegated—
(a) the Biodiversity Conservation Trust, a member or committee of the Board of the Trust or an employee of the Trust,
(b) Local Land Services, a member of the Board of Chairs, the chair or any other member of a local board or a member of the staff of Local Land Services,
(c) a local council or an employee of a local council,
(d) a police officer or other member of the NSW Police Force,
(e) the Environment Protection Authority, the CEO of the Authority or a person employed in the Environment Protection Authority Staff Agency,
(f) a person employed in the Department of Planning, Housing and Infrastructure.
(clause 13.1)
For the purposes of section 13.5 of the Act—
(a) each offence specified in this Schedule is a penalty notice offence for which a penalty notice may be issued, and
(b) the amount payable under any such penalty notice is the amount specified in this Schedule for the offence, and
(c) an authorised officer under Part 12 of the Act may issue any such penalty notice.
Column 1 | Column 2 | Column 3 |
Provision | Penalty—corporations | Penalty—individuals |
Section 2.1 [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 vulnerable ecological community)] | $16,500 | $3,300 |
Section 2.1 [in the case of an animal that is (or is part of) a vulnerable species or vulnerable ecological community] | $4,400 | $880 |
Section 2.1 [in any other case] | $1,100 | $300 |
Section 2.2 [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)] | $16,500 | $3,300 |
Section 2.2 [in the case of a plant that is (or is part of) a vulnerable species or vulnerable ecological community] | $4,400 | $880 |
Section 2.2 [in any other case] | $1,100 | $300 |
Section 2.3 | $16,500 | $3,300 |
Section 2.4 | $16,500 | $3,300 |
Section 2.5 [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 vulnerable ecological community)] | $16,500 | $3,300 |
Section 2.5 [in the case of an animal or plant that is (or is part of) a vulnerable species or vulnerable ecological community)] | $4,400 | $880 |
Section 2.5 [in any other case] | $1,100 | $300 |
Section 2.6 | $4,400 | $880 |
Section 2.14(4) [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 vulnerable ecological community)] | $16,500 | $3,300 |
Section 2.14(4) [in the case of an animal or plant that is (or is part of) a vulnerable species or vulnerable ecological community)] | $4,400 | $880 |
Section 2.14(4) [in any other case] | $1,100 | $300 |
Section 5.18(6) | $16,500 | $3,300 |
Section 6.29(2) | $16,500 | $3,300 |
Section 11.5 | $16,500 | $3,300 |
Section 11.12 | $16,500 | $3,300 |
Section 11.22 | $6,600 | $1,320 |
Section 11.27 | $6,600 | $1,320 |
Section 11.36 [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 vulnerable ecological community)] | $6,600 | $1,320 |
Section 11.36 [in the case of an animal that is (or is part of) a vulnerable species or vulnerable ecological community] | $4,400 | $880 |
Section 11.36 [in any other case] | $1,100 | $220 |
Section 12.22(1) | $6,600 | $1,320 |
Section 12.22(2) | $1,100 | $220 |
Section 12.22(3) | $16,500 | $3,300 |
Section 12.22(4) | $16,500 | $3,300 |
Section 12.22(5) | $16,500 | $3,300 |
Section 12.22(6) | $6,600 | $1,320 |
Section 13.10 | $16,500 | $3,300 |
Clause 2.2 (Interfering with marine mammals) | $6,600 (or $16,500 if offence committed in the course of a commercial operation) | $1,320 (or $3,300 if offence committed in the course of a commercial operation) |
Clause 2.3 (Approaching marine mammals) | $6,600 (or $16,500 if offence committed in the course of a commercial operation) | $1,320 (or $3,300 if offence committed in the course of a commercial operation) |
Clause 2.4 (Operation of prohibited vessels approached by marine mammals) | $6,600 (or $16,500 if offence committed in the course of a commercial operation) | $1,320 (or $3,300 if offence committed in the course of a commercial operation) |
Clause 2.5 (Operation of vessels that are not prohibited vessels) | $6,600 (or $16,500 if offence committed in the course of a commercial operation) | $1,320 (or $3,300 if offence committed in the course of a commercial operation) |
Clause 2.6 (Operation of aircraft in vicinity of marine mammals) | $6,600 (or $16,500 if offence committed in the course of a commercial operation) | $1,320 (or $3,300 if offence committed in the course of a commercial operation) |
Clause 2.7 (Feeding marine mammals) | $6,600 (or $16,500 if offence committed in the course of a commercial operation) | $1,320 (or $3,300 if offence committed in the course of a commercial operation) |
Clause 2.8 (Swimming with whales, dolphins or dugongs) | $6,600 (or $16,500 if offence committed in the course of a commercial operation) | $1,320 (or $3,300 if offence committed in the course of a commercial operation) |
Clause 2.38 (Offences relating to registration, tagging and record keeping) | $1,100 | $300 |
Clause 2.39 (Prohibition on breeding native waterfowl with non-native waterfowl) | $1,100 | $220 |
Division 3.2 (Little Penguin declared area) | $1,100 | $500 |
Division 3.3 (Wollemi Pine declared area) | $1,100 | $500 |
Section 60N [in relation to land to which section 60K(9) applies] | $4,400 | $880 |
Section 60N [in any other case] | $15,000 | $5,000 |
Section 60X(1) | $1,100 | $220 |
Section 60ZC(6) | $15,000 | $3,300 |
Clause 139 (Offence of contravening certain requirements of approvals or certificates) | $2,200 | $440 |
Section 60ZZA | $15,000 | $5,000 |
Section 69SA | $15,000 | $5,000 |
(clause 14.1)
In this Schedule—
A member of the Panel holds office, subject to this Schedule, for such period (not exceeding 3 years) as is specified in the member’s instrument of appointment.
A member is eligible (if otherwise qualified) for re-appointment.
The office of a member is a part-time office.
A member is 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.
The Minister may, from time to time, appoint a person to be the alternate of a member, and may revoke any such appointment.
In the absence of a member, the member’s alternate may, if available, act in the place of the member.
While acting in the place of a member, a person has all the functions of the member and is taken to be a member.
A person while acting in the place of a member is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the person.
The alternate of a member who is the chairperson has the member’s functions as chairperson.
The Minister may remove a member from office at any time for any reason and without notice.
The office of a member becomes vacant if the member—
(a) dies, or
(b) completes a term of office and is not re-appointed, or
(c) resigns the office by instrument in writing addressed to the Minister, or
(d) is removed from office under this or any other Act, or
(e) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or
(f) becomes a mentally incapacitated person, or
(g) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable.
If the office of a member becomes vacant, a person may, subject to the Act and this Schedule, be appointed to fill the vacancy.
The procedure for the calling of meetings of the Panel and for the conduct of business at those meetings is, subject to the Act and this Schedule, to be as determined by the Panel.
The quorum for a meeting of the Panel is a majority of its members for the time being.
The chairperson (or, in the absence of the chairperson, a member elected by the members of the Panel who are present at a meeting of the Panel) is to preside at a meeting of the Panel.
The person presiding at a meeting has a deliberative vote and, in the event of an equality of votes, has a second or casting vote.
A decision supported by a majority of the votes cast at a meeting of the Panel at which a quorum is present is the decision of the Panel.
If—
(a) a member has a pecuniary interest in a matter being considered or about to be considered at a meeting of the Panel, and
(b) the interest appears to raise a conflict with the proper performance of the member’s duties in relation to the consideration of the matter,
the member must, as soon as possible after the relevant facts have come to the member’s knowledge, disclose the nature of the interest at a meeting of the Panel.
A member has a pecuniary interest in a matter if the pecuniary interest is the interest of—
(a) the member, or
(b) the member’s spouse or de facto partner or a relative of the member, or a partner or employer of the member, or
(c) a company or other body of which the member, or a nominee, partner or employer of the member, is a member.
However, a member is not taken to have a pecuniary interest in a matter as referred to in subclause (2)(b) or (c)—
(a) if the member is unaware of the relevant pecuniary interest of the spouse, de facto partner, relative, partner, employer or company or other body, or
(b) just because the member is a member of, or is employed by, a council or a statutory body or is employed by the Crown, or
(c) just because the member is a member of a company or other body that has a pecuniary interest in the matter, so long as the member has no beneficial interest in any shares of the company or body.
A disclosure by a member at a meeting of the Panel that the member, or a spouse, de facto partner, relative, partner or employer of the member—
(a) is a member, or is in the employment, of a specified company or other body, or
(b) is a partner, or is in the employment, of a specified person, or
(c) has some other specified interest relating to a specified company or other body or to a specified person,
is a sufficient disclosure of the nature of the interest in any matter relating to that company or other body or to that person which may arise after the date of the disclosure and which is required to be disclosed under subclause (1).
Particulars of any disclosure made under this clause must be recorded by the Panel and that record must be open at all reasonable hours to inspection by any person.
After a member has disclosed the nature of an interest in any matter, the member must not, unless the Minister or the Panel otherwise determines—
(a) be present during any deliberation of the Panel with respect to the matter, or
(b) take part in any decision of the Panel with respect to the matter.
For the purposes of the making of a determination by the Panel under subclause (6), a member who has a direct or indirect pecuniary interest in a matter to which the disclosure relates must not—
(a) be present during any deliberation of the Panel for the purpose of making the determination, or
(b) take part in the making by the Panel of the determination.
A contravention of this clause does not invalidate any decision of the Panel.
The Panel must provide the Minister with such information and reports as the Minister may, from time to time, request.
See section 14.5 of the Act for the exclusion of personal liability of a member of the Panel acting in good faith in the exercise of the member’s functions.
Biodiversity Conservation Regulation 2017 (432). LW 25.8.2017. Date of commencement, 25.8.2017, cl 2. This Regulation has been amended as follows—
No 40 | Forestry Legislation Amendment Act 2018. Assented to 27.6.2018. Date of commencement of Sch 3.2, 9.11.2018, sec 2 and 2018 (620) LW 9.11.2018. | |
No 70 | Government Sector Finance Legislation (Repeal and Amendment) Act 2018. Assented to 22.11.2018. Date of commencement of Sch 4.11, 1.7.2023, sec 2(1) and 2023 (91) LW 2.3.2023. | |
(552) | Biodiversity Conservation Amendment (Controlled Actions) Regulation 2019. LW 22.11.2019. Date of commencement, on publication on LW, cl 2. | |
(598) | Biodiversity Conservation Legislation Amendment Regulation 2020. LW 9.10.2020. Date of commencement, on publication on LW, cl 2. | |
(671) | Biodiversity Conservation Amendment (COVID-19) Regulation 2020. LW 19.11.2020. Date of commencement, on publication on LW, cl 2. | |
(684) | Biodiversity Conservation Amendment (Exemptions) Regulation 2020. LW 27.11.2020. Date of commencement, on publication on LW, cl 2. | |
(73) | Biodiversity Conservation Amendment (Cetacea) Regulation 2021. LW 26.2.2021. Date of commencement, on publication on LW, cl 2. | |
No 5 | COVID-19 Recovery Act 2021. Assented to 25.3.2021. Date of commencement of Sch 1.6, assent, sec 2(1). | |
No 47 | National Parks and Wildlife Amendment Act 2021. Assented to 8.12.2021. Date of commencement of Sch 3.1, assent, sec 2(1). | |
(120) | Biodiversity Conservation Amendment Regulation 2022. LW 1.4.2022. Date of commencement, on publication on LW, sec 2. | |
(684) | Biodiversity Conservation Amendment (Bee Keeping and Grazing) Regulation 2022. LW 18.11.2022. The Regulation (statutory rule) appointed 9.11.2022 as the date of its commencement. Under sec 39(2A) of the Interpretation Act 1987, the Regulation is not invalid merely because the Regulation was published on the NSW legislation website after the day on which one or more of its provisions is or are expressed to commence, but provides, in that case, for the provisions concerned to commence on the day on which the instrument is published on the NSW legislation website, instead of on the earlier day. | |
(724) | Biodiversity Conservation Amendment (Bushfire-Affected Development) Regulation 2022. LW 25.11.2022. Date of commencement, on publication on LW, sec 2. | |
No 30 | Radiation Control Amendment Act 2023. Assented to 24.10.2023. Date of commencement of Sch 2, assent, sec 2(c). | |
No 47 | Statute Law (Miscellaneous Provisions) Act 2024. Assented to 9.8.2024. Date of commencement, assent, sec 2. | |
No 96 | Biodiversity Conservation Amendment (Biodiversity Offsets Scheme) Act 2024. Assented to 2.12.2024. Date of commencement of Sch 2, 7.3.2025, sec 2 and 2025 (88) LW 7.3.2025. | |
(198) | Biodiversity Conservation Amendment (Strategic Offset Delivery Agreements) Regulation 2025. LW 9.5.2025. Date of commencement, on publication on LW, sec 2. |
Cl 1.3 | Am 2019 (552), Sch 1[1]. |
Cl 2.1 | Am 2020 (598), Sch 1[1]–[4]. |
Cl 2.3 | Am 2020 (598), Sch 1[5]; 2024 No 47, Sch 1.3[1]. |
Cl 2.8A | Ins 2021 (73), cl 3. |
Cl 2.22 | Am 2020 (598), Sch 1[6]. |
Cl 2.25A | Ins 2022 (684), sec 3. |
Cl 2.28 | Am 2020 (598), Sch 1[7]. |
Cl 3.1 | Am 2024 No 47, Sch 1.3[2]. |
Cl 5.1 | Am 2021 No 47, Sch 3.1. |
Cl 6.2 | Am 2024 No 96, Sch 2; 2025 (198), Sch 1[1] [2]. |
Cl 6.3A | Ins 2025 (198), Sch 1[3]. |
Cl 6.4 | Am 2019 (552), Sch 1[2]. |
Cl 6.6 | Am 2019 (552), Sch 1[3]. |
Cl 6.6A | Ins 2019 (552), Sch 1[4]. |
Cl 6.8A | Ins 2022 (120), sec 3. |
Cl 7.1A | Ins 2020 (684), cl 3. Am 2022 (724), sec 3(1) (2). |
Cl 7.3 | Am 2020 (598), Sch 1[8]. |
Cl 8.8 | Am 2020 (598), Sch 1[9] [10]. |
Cl 9.8A | Ins 2025 (198), Sch 1[4]. |
Cl 10.2 | Subst 2018 No 70, Sch 4.11[1]. |
Cl 10.3 | Subst 2018 No 70, Sch 4.11[2]. |
Cl 12.2 | Ins 2020 (671), cl 3. Rep 2021 No 5, Sch 1.6. |
Cl 14.3 | Am 2023 No 30, Sch 2.1; 2024 No 47, Sch 1.3[2]. |
Sch 1 | Am 2018 No 40, Sch 3.2. |
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